Here’s something to ponder in the wake of the big stories that keep trickling out from the emails released by state Superintendent of Public Education Glenda Ritz: What if the emails in question had been from her own tenure in that office? Or, what if a reporter had asked Tony Bennett for the same emails while he was still in office (or asked for the emails from then-Gov. Mitch Daniels)?
I’ll tell you what would happen. Said officials would suddenly find themselves to be big fans of the deliberative materials exception in the state’s public records law.
A quick refresher on the law might be in order. First, it is clear that emails of government officials are generally subject to public inspection, but they are also subject to a whole host of possible caveats.
Perhaps the biggest one—big enough to drive the Fair Train through—is the deliberative materials exception. It’s meant to allow officials latitude to speculate and express opinions in the process of making decisions.
Now, back to the emails Ritz released. Whether it’s Daniels trying to squelch the voice of a historian or Bennett manipulating the school grading process, it’s easy to see how they could have refused to release the emails because they were of a “deliberative” nature.
(Incidentally, won’t it be interesting to see if Ritz withholds any of her own emails down the road, citing the deliberative materials exception?)
It’s impossible to say how much pertinent information we will never know because of this terribly broad exception to public records disclosure. About the only time we can count on officials not citing it is when it involves someone else’s deliberation.
Politicians are much more inclined to release damning information about their opponents than about themselves, and crafty reporters know that changes of administration (particularly those involving a change in party) present opportune moments to obtain records about past administrations that wouldn’t be released otherwise.
So that leaves us with the question of whether the deliberative materials exception is necessary. Politicians argue they need space to deliberate about sensitive matters without public micromanagement of every idea that might or might not come to fruition. Colorado Gov. John Hickenlooper is the latest to try that line: “We elected these people; let them go back into a room like they always did.”
And if we don’t let them, officials frequently just find ways to get around public disclosure. A federal judge recently suggested Environmental Protection Agency officials might have been using personal email accounts specifically to skirt disclosure rules. And here in Indiana, Ivy Tech Community College officials say it was only an oversight that they illegally carried over a closed-door meeting from the announced date and time to the next day.
Such examples happen all the time, and when challenged, officials often raise high-level arguments about how too much transparency makes it difficult to govern efficiently. To which I say, precisely. Efficiency can be nice, but it’s not the most important thing in democratic governance.
Deliberation about public matters should happen, with extremely few exceptions, in public. We certainly shouldn’t have to wait for a regime change to find out—after the fact—about discussions on policy decisions that affect us all.
There’s no question that openness slows the process, preventing deals from getting done as expediently as some would like. But what’s the alternative? Authoritarian efficiency? Thanks, but I’d rather take the emails—and the good, old democratic gridlock that comes with them.•
Lanosga is an assistant professor of journalism at Indiana University and president of the Indiana Coalition for Open Government. Send comments on this column to firstname.lastname@example.org.