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LANOSGA: And you thought the feds were secretive

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LanosgaGovernment secrecy is big news these days. Recent stories have revealed confidential federal programs to collect massive amounts of data from cell phone and Internet companies. What’s more, the programs were authorized by secret orders of a secret court. The only reason we know about these things that government is doing in our name—and with our money—is that information was leaked to journalists.

The revelations have spawned a million commentaries, and there’s no need for me to add to them. But one thing has been echoing in my head lately, a comment a local political activist recently made.

“Some of the most secret governments are on the local level,” he told me.

That might be a bit over the top considering the creepy Orwellian stuff we know about the feds, but it’s worth stopping to think about the things state and local governments are keeping from you. They are legion and often perfectly legal, thanks to Indiana’s expansive restrictions on information.

As I’ve mentioned before, the state’s Access to Public Records Act contains numerous exceptions to public disclosure. There are 13 categories of explicitly confidential records and another 24 categories for which public officials are given discretion to withhold.

Here’s a fun challenge: Can you guess how often officials choose to release these discretionary records? I’ll buy coffee for anyone who can show me an example.

The access law, by the way, is not the final word on secret records. The law’s first two exceptions are broad catchalls for any records declared confidential by statute or agency rule. Naturally, there are a multitude of such declarations.

Now, it should be said that many of these categories of confidential records make sense. Reasonable people understand there is some information that shouldn’t be released—Social Security numbers, blueprints of government buildings and scoring keys for licensing exams come to mind.

The concern with these restrictions, though, is that they are so broad and sometimes so poorly defined that they allow government agencies to withhold far more information than is reasonable under common-sense notions.

An example: the “discretionary” exception for law enforcement investigatory records. No one would argue the public should be able to see a list of confidential informants or detectives’ notes in open cases. But what about closed cases? Do investigatory records ever stop being investigatory? The law doesn’t say.

In practice, agencies have interpreted this exception as mandatory and have used it to withhold a huge swath of information. Just last month, the Indianapolis Fire Department tried to withhold routine inspection reports on businesses in the Belmont Street fire, citing the investigatory exception.

Incidentally, Indiana law enforcement agencies, like federal agencies, are authorized to hide information regarding investigations relating to sensitive criminal matters, including terrorism. A new law, in fact, allows them to refuse to even acknowledge the existence of such records.

And did you know that, by rule, Indiana courts can have cases that are completely shielded from public disclosure? Such cases wouldn’t even show up in a computer search of a court’s active caseload.

Does all this make you wonder what government agencies are up to here in Indiana? It should, and that’s a healthy impulse—an instinct of suspicion toward the exercise of hidden power that predates the republic. The political philosopher Gunter Grass said, “The job of a citizen is to keep his mouth open.”

It’s a good idea to keep your eyes open as well.•

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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 ibjedit@ibj.com.

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