Confidentiality vs. Transparency in Colorado -- A Court Decision

Government ethics policies sometimes clash. The most common clash involving ethics commissions is with transparency laws.

Like any government body, ethics commissions would prefer not to discuss many sorts of matters in public, both to protect the parties involved and because it is uncomfortable to discuss many ethics matters in public. Because counsel is present during most such discussions, ECs (and their lawyers) often feel that such discussions are privileged. There are also often rules that require confidentiality, at least until probable cause is found. And there are also often rules that require confidentiality regarding the names of those who seek advisory opinions.

In many states, these confidentiality rules override freedom of information and open meetings laws. Investigations and pre-probable cause meetings and hearings can be held in executive session or, as in Connecticut, where the FOI administration has determined that such meetings are not under the FOI’s jurisdiction, they are separate, closed sessions rather than executive sessions. See these CT FOI Commission decisions:

http://www.state.ct.us/foi/2001fd/20011010/FIC2001-056.htm
http://www.state.ct.us/foi/2004FD/20041027/FIC2003-449.htm
http://www.state.ct.us/foi/2006FD/20060823/FIC2005-425.htm

But keeping too much discussion confidential goes against the important ethical value of transparency. Despite the fact that it is easier to operate in secrecy, democracy requires that discussion and information be public, unless there are clear reasons to keep them confidential.

According to an article in the Colorado Independent, this week a decision in the case Center for Independent Media (owner of the Independent) v. Independent Ethics Commission of Colorado (Denver District Court, Aug. 31, 2009) found that because the state's EC did not follow the requirements for closing its public meetings, the tapes of their closed sessions are not privileged. The requirement the EC failed to follow was clear identification of the particular matters to be considered in the closed meetings, including the number of the case and a generic description of the complaint or request for advisory opinion being considered.

In other words, there must be a public record of what is going to be discussed or what is actually discussed becomes a public record.

More seriously, the court reached a conclusion opposite to that of the CT FOI Commission:  "with respect to the Commission’s deliberations on ethics complaints, advisory opinions, letter rulings, and position statements, there is no statutory basis for conducting such discussions behind closed doors." The court put transparency ahead of confidentiality.

The court also concluded that attorney-client privilege provides only a limited reason for closing a meeting, quoting a statutory provision that authorizes "such a closure only when the discussion pertains to 'disputes involving the public body that are the subject of pending or imminent court action.'" Such an action would have to be identified on the record of the meeting.

It is important for governments, not courts, to balance confidentiality against transparency, where statutes or ordinances have not already done this. Laws should be consciously made consistent, to clearly show the government's policy.

As I wrote in a recent blog post, I am increasingly unsympathetic to arguments for confidentiality. Protecting innocent officials is a weak argument, considering that freedom of speech rights allow people to attack innocent officials all they want. Adjudicating openly in a neutral forum is a far better way of handling a matter and providing innocent officials with justice than personal attacks in newspapers and blogs. Confidentiality should be as limited as possible, with emphasis put instead on quickly dismissing frivolous complaints and complaints that do not involve ethics code violations.

Robert Wechsler
Director of Research-Retired, City Ethics

---