Punishing With Sunshine

The government sometimes hands out open-access rules as discipline for agencies rather than benefits for citizens.

by / January 31, 1999
As Congress scurried to finish work in time for members to campaign before November's elections, one deal reportedly struck with the Clinton administration was further funding for the International Monetary Fund. The administration had requested an extra $18 billion to replenish the IMF's funds, but conservatives in Congress had balked. Agreed on at the last moment, the reported quid pro quo demanded by Congress was greater openness on the part of the IMF. Since the IMF is not a federal agency, Congress could not insist that the Freedom of Information Act or the Sunshine Act be applied to its proceedings. So the openness that was demanded probably means required reporting to Congress, which can then make the information public as it sees fit.

What some may see as a fit of pique by congressional conservatives suggests an intriguing way of looking at openness -- not as a public benefit that undergirds a democratic society, but as punishment for a government entity that legislators may not like. There is plenty of evidence that many public bodies view access to records and meetings more a punishment than a public good.

Back in 1993, when the Democrats still controlled the House of Representatives, the sometimes quixotic Henry Gonzales, then chairman of the House Banking Committee, went to battle against Federal Reserve Chairman Alan Greenspan over opening up the proceedings of the Federal Open Market Committee (FOMC), the group that makes decisions about monetary policy. Gonzales wanted the Fed to disclose the minutes of the meetings within 60 days. Greenspan originally insisted they shouldn't be disclosed at all. He eventually backed down, conceding that, perhaps, they could be disclosed after five years.

The real bombshell at that time was that the Fed acknowledged that the FOMC had meeting transcripts dating back to 1976 that no one even knew existed. Gonzales confronted Greenspan with notes of a conference call in which FOMC members discussed ways of evading disclosure, including suggestions that future transcripts be destroyed and Greenspan's own suggestion to claim it would cost too much to edit the transcripts. Greenspan told the committee that disclosure of the transcripts presented issues of "great importance to the nation because of their impact on the deliberative process of the FOMC and the quality of monetary policy." But Lyle Gramley, who served as a Federal Reserve governor for five years during the 1980s, told the Wall Street Journal that he didn't think disclosure would have much effect. "It'll be to the good if what it does is assure people that nothing sinister goes on behind the closed doors of the Fed," he said.

While a Supreme Court decision allows the FOMC to withhold records of its meetings under Rule 26(c) of the Federal Rules of Civil Procedure, that protection, for information that has a temporal commercial value, only applies temporarily. Beyond that, there is no legal reason to withhold the records. But apparently the FOMC had been operating under the assumption that what the people did not know would not hurt them.

But not only does such disregard of the principles of openness hurt the cause of government in the sunshine, it may also backfire in the way Gramley suggested. It is common nature to suspect that when public bodies meet in secret it is because they have something to hide. While there may be nothing sinister or underhanded, it implies that members of the public body have reservations about the way the public might react if it knew what they were doing.

Here in Virginia, a county school board went into closed session to discuss the possibility of having a drug-testing policy at the high school. The reason for closing the meeting was because drug-testing was too controversial and would probably lead to litigation if implemented. Another local board went into executive session to discuss a dress code for teachers. The reason given for the closed session was personnel matters. Justifications like this indicate a general unwillingness to discuss perceived controversial topics in public. It is always easier to discuss such matters where no one is listening in. But the rationale for public attendance at such meetings is to emphasize that government decision-making at the board or commission level is open and above-board. Poorly reasoned justifications for closing meetings only tend to throw suspicion on the proceedings of the public body.

Personal experience may also inform a body's reluctance to meet in public. In the 1980s, the Nuclear Regulatory Commission lobbied hard to change some of the strictures imposed by the Sunshine Act, claiming in particular that the statute made it impossible to hold informal discussions before addressing an issue during a public meeting. While that is a realistic concern that may require an amendment, some reactions of the various commissioners seemed to be driven by their personal backgrounds. Several came from the private sector, where there is no tradition of making decisions in public, and there was often a sense that these commissioners could not understand why openness was a benefit rather than a punishment.

For members of public bodies who view openness as a ball and chain that impedes progress, any greater degree of openness is surely a punishment. But for those who believe openness is positive and a way to preserve democratic values, openness imposed more as a punishment than as a benefit should be viewed as a gift. When access to records and meetings is the goal, the legislative squabbles that produce the desired results are nothing more than a sideshow. Here, perhaps, the ends do justify the means.

Harry Hammitt is editor/publisher of Access Reports, a newsletter published in Lynchburg, Va., covering open-government laws and information-policy issues. Email.
Harry Hammitt Contributing Writer