Keeping close eye on transparency


By Steve Key
Hoosier State Press Association

I’ve never had a state legislator, state agency head, or local government official say they were against government transparency or that the public did not have a right to know what its government was doing.

But the Hoosier State Press Association flagged 65 bills at the start of this year’s state legislative session that needed attention to preserve transparency – the majority because they would have made specific records or hearings secret or eliminated the publication of government notices designed to inform the public of actions being taken by the government.

Every year, HSPA fights in the General Assembly to prevent erosion of the Open Door Law, Access to Public Records Act and Public Notice Advertising Law. Without this intervention, the statutes protecting the public’s right to know would die a death by a thousand cuts.

The bills HSPA flags as problematic generally deal with a particular set of records, hearings or notices that someone believes should be confidential – or in the case of public notice advertising, should be posted on a government website.

My initial response is always to reach out to the bill’s author to discover the genesis of why that person determined the confidential provision or public notice publication elimination is a good idea.

Often HSPA can convince the legislator of the benefit in giving an agency the discretion to make a record public – to defend its actions, for example – rather than have secrecy mandated by the General Assembly.

A 2014 American Opinion Research survey on Hoosiers’ attitudes toward the publication of public notices has been helpful in amending or killing several bills.

Sometimes the solution to a problematic bill is a matter of narrowing language down to cover only information that needs to be kept confidential.

For example, HSPA is working with Purdue University to limit access to the locations where industrial hemp will be grown during a research project. The initial bill’s confidentiality provision was much broader.

Other times, HSPA can convince a legislator of the impracticality of making a class of records confidential.

One common theme that I’ve seen emerge as the basis for the multiple attacks on government transparency is the desire by bureaucrats to make their jobs easier at the expense of the public’s right to information.

It’s much easier to post a notice on a government website than to contact the local newspaper, determine when a public notice must be submitted so it will published the correct number of days before a hearing, pay for the notice, collect the proof of publication, and file it away in case there’s a challenge to the action in the next two years.

The bureaucrat convinces himself that anyone who cares will find that notice on a government website.

Common sense says that’s not so.

Newspapers give notice to all citizens – whether they are in the know or not.

It’s much easier for the bureaucrat to urge the legislators to make wide swaths of records secret – for example, to protect business interests or the privacy of individuals – rather than limit the confidentiality of records so that the public can still monitor the state agency involved.

That’s why HSPA must read all the bills filed and all the amendments as legislation moves forward to final passage.

HSPA has worked this year on bills with subjects as varied as expungement of court records, school deregulation, limits on abortion, regulation of e-liquids, endangered species, juvenile interrogations, and industrial hemp.

Whether the reasons are self-serving or a failure to appreciate the public’s right to know, government transparency can be chipped away without oversight.

Steve Key is executive director and general counsel for HSPA.