making local government more ethical

A Government Ethics Approach to Open Records

Luis Toro, the director of Colorado Ethics Watch, raised an important local government ethics issue in a recent Huffington Post post. It is a problem that is not peculiar to Colorado. It is also a problem that could benefit from a government ethics approach.

Here is the problem in a nutshell: "Although the Open Records Act specifies a charge of only 25 cents per page for copies of documents, court decisions have allowed agencies to charge for research time in certain circumstances. The exception has grown to swallow the rule as government offices routinely charge fees for time spent responding to open records responses."

25 cents is already expensive enough for a citizen seeking information. Copy machine copies are not nearly that expensive, and in many cases records are digital, meaning that the out-of-pocket cost of printing them out is small and of placing them on a thumb drive is nothing.

If providing records to citizens is considered a public duty, there should be no charge for the time spent doing this. If providing records to citizens is considered a public duty, citizens should be charged no more to copy records than it costs the local government. Just because a city is allowed to charge 25 cents does not mean that it has to. It can charge nothing, if it wants.

Transparency laws are ethics laws and, therefore, their requirements too are minimum requirements. The use of a maximum number does not change this. It might seem confusing at first, but a maximum number is a minimum requirement:  a government can, and should, provide easier access than this by charging less. Setting a limit on fees is a way of preventing limitations on citizen access to public records, not a way to require access to be limited.

A Story From My Town
Here is a story that will more clearly show how much access to public records is a government ethics issue. Back in 2007, I started a website to make easily accessible a lot of information about my town's government, especially budget information. I went to the clerk to get copies of board meeting minutes to put online, and was told that the only minutes she could give me were the Town Meeting minutes, in xerox form. I told her that since I am putting these minutes up as a public service to the town – effectively doing the town’s work – I should not be charged for copying (the town's charge was 50 cents a page). She told me that anyone could come in saying that they were acting in the public interest. As if citizens were lying to her about their need for Town Meeting minutes.

She told me that all the other towns around charge $1 per page, even though I didn't ask. I said that in the city next door you can get most minutes at the library and pay only 15 cents a page to copy them. A man who happened to be in the office (and seemed to spend a lot of time in clerks' offices) named one town clerk's office that charged only 25 cents, and said that most towns charge 50 cents (which is, by the way, the legal limit).

The clerk had a political interest in preventing the records from being easily accessible. She therefore ignored the public's interest in easy access to these records, especially in a New England Town Meeting town, where every citizen is a member of the town's legislative body. And she was willing to stretch the truth to defend her attempt to limit access. It mattered that much to her.

Public Records Are Necessary for Public Participation
It is important to recognize that public records are public resources that, without any rules, should be freely available to everyone, especially in the Internet age. This interest in free information is balanced against the cost to taxpayers of filling records requests.

If an individual has to be hired to fill records requests on a full-time basis, it could be considered reasonable to charge a fee sufficient to, over a year, pay the individual's salary and benefits, just as it is considered reasonable to charge parents a fee for an after-school program sufficient to pay the government's costs, but not a fee that gives the local government a profit.

But the public records situation is more complex than this comparison implies. Citizens who seek public records consist of two types:  those who seek them for business purposes, who are like parents, and those who seek them for political purposes, who will use them for what they consider to be the good of the community, often putting the information online or including them in articles, blog posts, or public speeches. These public records are valuable to everyone, and it is arguable that making such public records public is a service a government should provide just as it provides education.

It is far more arguable to charge fees to those seeking business-oriented public records than to those seeking them for political purposes. It might be difficult, in some instances, to differentiate the two, but if the definition of business-oriented public records is limited to those where it would be rare that they would be needed for any other purpose, it could be responsibly done.

Enforcement and Government Ethics Approaches
In his post, Toro looks at the enforcement side of the issue. He talks of Denver charging $1,400 to redact e-mail addresses from messages sent to city council about a local development, and how this cost meant that the records were not made public. He talks about how a citizen's only choice is to file suit against the city or county, something few people can afford to do, and not even most local civic organizations. And he talks of city and county officials filing preemptive suits against citizens in order to try to prevent them from having to pay the requester's attorney fees if the requester wins the suit.

The problem here is less an unfair law than an inappropriate approach to transparency. Looking at the issue as a government ethics issue, things look different. Government ethics is not about suits to fight over huge redaction costs. Government ethics is about making open, responsible decisions that affect citizen participation in government. From a government ethics point of view, public records are public resources, and ethics codes prohibit the misuse of public resources. Usually, the misuse of public resources involves personal benefit. But that's only because this is what is normally the case, with respect to personal use of city vehicles, equipment, and computers.

Transparency involves a different sort of misuse of public resources, a misuse that is not covered by an ethics code. A city or county clerk, or another designated official, has control over the use of public records. This official, and the local legislative body, determine the government's priorities. The assumption too often is that accessibility to public records is a low priority, because it does not further the goals of providing government services such as education, public works, or the collection of taxes.

Because transparency involves a misuse of public resources, enforcement need not be legal and done by suing a city or county. It may be handled like any other government ethics situation, that is, by dealing with officials and their obligations. For example, castigating the town clerk in my Town Info blog was sufficient to change town officials' policy. The First Selectman soon wrote a memo outlining what was required to comply with open records laws. And the town clerk not only allowed me to have minutes for free, but she also called me with information about changes in meeting times and places, so this information could appear on my website.

I did not need to sue or even file a complaint with the state commission (which is the better Connecticut alternative, except that it can take a long time for a complaint to be heard). Enforcement of open records laws can often occur through direct request and then, if the request is not made, by shame. But things can be more difficult to accomplish in this manner when a request involves information that is more secret than minutes or meeting times, which no one could publicly argue should be kept secret or charged for.

On the other hand, things would have gone easier if even one local newspaper had become involved. Newspapers are traditionally the principal requesters and protectors of citizen rights to open records. Their poor economic situation has made them less aggressive in this area.

Public Records Should Be Available Online
What goal is more important in a democracy than easy access to public information by those who want to participate in determining the policies of their community? No one can effectively participate without easy access to information. Historically, it was hard for a local government to provide such easy access. Now providing access is cheap and easy. The balance between access to information and the cost to taxpayers has changed radically in the past decade. New technology has finally allowed us to have easy access to information we need to function effectively as citizens.

There is another argument against charging a lot for public records. The less a government charges per page or per hour of research time, the more it is in the government's interest to make records available online, so that citizens do not individually have to seek access to the records. This makes the records accessible to all at any time, with the least amount of trouble. Officials too often ignore the fact that most citizens cannot visit a government office during office hours, even when they are willing to pay for public records.

Even with respect to business-oriented public records, it would be better to make them available online so that people do not need to waste time and gasoline traveling from town to town.

Many local governments have recognized this, and have put huge amounts of information online, including budgetary information, meeting agendas and minutes (with all relevant documents), calendars, and even e-mail correspondence. If a government chooses not to do this, it should both explain the reasons in a public meeting and keep down the cost to the public of its decision to keep records hidden in its file drawers or computers.

Laws need to reflect the current technology, and this is happening in some states and localities. One way to do this is to recognize that this is a government ethics issue by having (1) different rules for different kinds of documents or different kinds of uses of them, and (2) an express statement that any fee amount is a maximum amount, that stated fees are limits that should be only be charged in exceptional circumstances.

Robert Wechsler
Director of Research, City Ethics
rwechsler@cityethics.org
203-230-2548