Citizens in a democracy should know what their government is doing, but politicians, bureaucrats and judges too often decide otherwise. That’s why federal and state laws guaranteeing public access to government meetings and documents are so important.
This week news media groups, libraries, educational institutions and even the U.S. government are calling attention to the importance of transparency as part of an annual observance called “Sunshine Week.” The event was launched in 2005 by the American Society of News Editors, now known as the News Leaders Association. (Sewell Chan, the Los Angeles Times’ editorial page editor, is a member of the organization’s board of directors.)
The last year has yielded some victories worth celebrating. For example, a coalition of news organizations filed a federal Freedom of Information Act request last year to identify the recipients of taxpayer-funded help under an emergency loan program for small businesses. After the Trump administration released an edited list, a federal judge ordered the Small Business Administration to provide the rest of the details.
In addition, courts and government bodies have compensated for COVID-19 disruptions by providing virtual access to proceedings, making it easy to watch but not always to participate. The U.S. Supreme Court became even more transparent, livestreaming oral arguments conducted over the telephone. (It should continue livestreaming when it returns to in-person arguments.) And federal officials charged with responding to freedom-of-information requests received remote training on how to process hundreds of thousands of requests.
These are welcome developments. But it’s still too easy for government officials to frustrate the public’s legitimate interest in the workings of government, despite the existence of laws meant to ensure transparency.
Chief among those is the Freedom of Information Act signed into law by President Lyndon Johnson in 1966 and significantly strengthened in 2016. At a Sunshine Week event at the Justice Department on Monday, Attorney General Merrick Garland said that “faithful administration of FOIA is essential to American democracy.”
He’s right, but the law doesn’t always live up to its promise of transparency. In a March 11 letter to Garland, the Reporters Committee for Freedom of the Press and the Knight First Amendment Institute complained that the act has been “plagued by high rates of withholding, increased delays in responding to requests, and, consequently, a significant increase in the number of lawsuits against federal agencies.” The letter urged the Justice Department to “take swift and decisive action to ensure compliance with FOIA.”
Slow responses to requests aren’t the only problem. Exemptions in the law allow agencies to withhold material for a range of subjective reasons, including concerns about national security, individual privacy and internal government deliberations.
With some requests, moreover, federal agencies can refuse to confirm or deny that a requested document even exists. The law also contains “exclusions” for certain criminal justice and national security matters, meaning that they aren’t subject to FOIA at all. Withholding some sensitive information — such as the identity of a confidential informant — may be appropriate, but nondisclosure must be the exception, not the rule.
The state of California is more committed to transparency than the federal government — at least on paper. In 2004, voters amended the state Constitution to include the people’s right to “access to information concerning the conduct of the people’s business.” And in 2018 the Legislature approved SB 1421, which allows the public to see records involving police misconduct and serious uses of force under the state Public Records Act.
Some law enforcement agencies, however, have dragged their feet in complying. The LA Times has sued Los Angeles County, alleging that the Sheriff’s Department repeatedly refused to turn over public records about deputies involved in misconduct or shootings. That is one of several cases in which this newspaper, sometimes joined by other news organizations, has gone to court to seek information that the public has the right to see on matters ranging from possible police misconduct to allegations of sexual abuse and harassment at immigration detention centers.
So-called sunshine laws can be improved further to make it harder for public officials to shroud their decisions in secrecy. For example, state Sen. Nancy Skinner, D-Berkeley, the author of SB 1421, has proposed new legislation that would give the public access to additional records about police misconduct and impose fines on agencies that didn’t respond in a timely manner.
On the federal level, Congress should require members of the judicial branch to be more forthcoming about their financial affairs, including any gifts they receive in connection with speaking appearances and reimbursement of travel expenses.
But no matter what the law says, some government agencies will prefer to operate in the shadows. That’s why government must be pressed to be transparent and accountable not just during Sunshine Week, but every day of the year.
Editorial by the Los Angeles Times
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