03/11/07

Sunshine Week 2007

AP Enterprise: On Sunshine laws, governments talk loud but stick is very rarely used



By ROBERT TANNER
AP National Writer

Though laws in every state say government records and meetings must be open to all, reality often falls far short: Laws are sporadically enforced, penalties for failure to comply are mild and violators almost always walk away with nothing more than a reprimand, an Associated Press survey of all 50 states has found.

Even in the handful of states that monitor such cases, when citizens appeal over lack of access to information, the government usually wins.

Why does it matter?

Advocates for open government say public trust is at the heart of our democracy, that scrutiny keeps public officials honest, and that information is the foundation of informed debate.

"We're in an era, clearly, where there's a lot of distrust in government," said Bill Chamberlin of the Marion Brechner Citizen Access Project at the University of Florida. "The more the public officials are open in their conversation and show the documentation that they're basing decisions on, it's going to help the public have faith in what officials are doing."

The AP's survey gathered material from each state on its open government laws and penalties. Additionally, for the years 2004 to 2006, it sought more detail on open government complaints in states with the best record-keeping. The AP found that fewer than 10 states effectively track what happens in such cases.

Looking more closely at those monitoring efforts, a snapshot emerges: Oversight agencies and attorneys general are more likely to rule in favor of government offices that keep documents secret and doors closed. And when they rule that the law was broken? The overwhelming majority of decisions bring a "don't do it again" warning.

In Fort Smith, Ark., a resident fought to learn what city officials were doing when they secretly decided to buy a vacant downtown building. David Harris proved in court that the officials broke the law, but the state Supreme Court last year declined to levy the only punishment possible -- the $10,000 in legal fees it cost Harris to make his case.

And in southern Connecticut two years ago, the water authority that oversees a small lake stonewalled a former member who sought financial audits, then went behind closed doors to settle policy on winterizing boats. After the former member complained, the state oversight commission ruled that the authority violated the law, but rejected a request for a civil penalty and instead told officials to make the documents available and be public about their business.

"There is largely a culture in state and local government that violating public meetings and open records laws is not the same as committing a crime," Chamberlin said. "It's largely treated as a nuisance rather than a law."

Those charged with enforcement of open government laws strongly disagree.

They take the law very seriously, they say, but contend a reprimand is usually punishment enough for a local council member or village mayor who is guilty only of misunderstanding the law.

"We think the carrot is preferable to the stick. We use the carrot in almost every case," said Nebraska Attorney General Jon Bruning, who helped toughen his state's open government or "sunshine" statutes when he was a state senator. "Our experience is that local officials want to abide by the law, but they often don't know how."

The AP analysis found that nearly all states have crafted penalties for those who violate sunshine laws, but the majority do little to keep track of how often the law is broken and what the punishment might be.

The federal government does a much better tracking job, but has no provision for punishment and little sympathy for appeals when federal agencies reject requests for documents.

Two states have no penalties at all if someone breaks the law; eight more have no sanctions for one of the two guarantees of open government _ open meetings or open documents. In practice, few penalties are ever sought.

Many states allow for people who sue to win attorneys' fees, but place the standard so high that it's rarely met.

Consider a dispute over spending in a volunteer fire department in Riverdale, Iowa, a town of 650 people just up the Mississippi River from Davenport.

Two citizens -- an interior designer and a chiropractor -- became suspicious of spending in the department, spurred by what they said were drunken come-ons at a Christmas party and the purchase of several ladder trucks in a town with no high-rise buildings. They asked for information. They didn't get it.

Tammie Picton and Allen Diercks didn't give up. They fought the case themselves, spending two years and $28,000 in legal expenses -- and they won.

Now Mayor Norma Wren, who didn't return calls seeking comment, is facing more scrutiny. The state auditor is looking at possible financial mismanagement, and the attorney general has been asked to investigate.

It could be seen as proof the system works, but that's not how the plaintiffs saw their long struggle.

If he didn't push so vigorously, Diercks notes, nothing would have happened. "There are so many loopholes in the law," he said.

Like most states, Iowa's handling of cases is a mixed bag.

It has an oversight body to which citizens can make a complaint, and that office received 445 complaints from 2004 to 2006. But the office ruled that only 63 cases were substantiated. And because it has no enforcement powers, that meant it relied upon the moral weight of its deci1sions to convince officials to change their behavior. In most cases, a phone call was enough to get officials to relent and make information public, the office reported.

If that doesn't work, people like Diercks can sue or try to convince their local prosecutor to bring action.

Twenty-five states and the District of Columbia have agencies with some central authority to provide guidance or handle complaints of limited government access. But the results still are scattershot.

Just seven states -- Connecticut, Hawaii, Iowa, Kentucky, Nebraska, North Dakota and Rhode Island -- could provide enough information to determine ultimately what happened to complaints. And even in those states, most acknowledged untracked cases could have made their way through the court system.

Each state collects information differently, so drawing broad conclusions is problematic. However, data from those states provide a glimpse at how sunshine law complaints are handled.

For instance, from 2004 to 2006:

-- Nebraska's attorney general received 106 complaints. Officials found eight violations _ each brought a public reprimand, but no prosecution or fine. One county board was told to vote again in public, not in secret.

-- Connecticut's Freedom of Information Commission received 1,893 complaints, ruled on 575 cases and found 219 violations. It levied seven fines, ranging from $50 to $500, and ordered a half-dozen other remedies, including workshops on the law and an order that an ethics commission recreate minutes of a private meeting.

When it comes to the federal government, the vast majority of information requests are for personal records from three agencies -- Health and Human Services, Veterans Affairs and the Social Security Administration. They got 19 million requests in 2005 and almost always granted them.

The other federal agencies received just over a half-million queries, with a third of those denied or not fulfilled, according to an analysis of 2005 data by the Coalition of Journalists for Open Government. In the relatively few cases that were appealed most ended in failure.

Federal officials, along with those from school boards, town councils and state agencies, almost never face sanctions for keeping records secret.

That's fine with some charged with monitoring sunshine laws. The goal is to encourage people in public office to follow the law, not necessarily to punish them.

"The court of public opinion, in my opinion, is much more powerful than the judicial court," said Robert Freeman, head of New York's Committee on Open Government and one of the most widely respected advocates for open government in the country.

New York reflects that philosophy in practice. Freeman's office has only advisory powers. But that's enough, he said.

Florida takes a much different approach in its willingness to punish officials who break the law.

In 2004, a county commissioner who was a former state legislative leader served 49 days of a 60-day jail sentence for violating the open meetings law, becoming the first public official in Florida to do time in such a case.

In 2005, a village commissioner and a mayor of the city of North Bay Village, near Miami, pleaded no contest to misdemeanor charges that they conspired to oust the city manager and were given probation, community service and fines or court costs that ranged up to $20,000.

Chamberlin, of the University of Florida, argues that the occasional prosecution sends a stronger message than mere warnings.

"One of the arguments by many people is that criminalizing obedience to records and meetings laws is too harsh. I happen to think that it's not too harsh, because it's law," he said. "Punishment does make a difference. ... A couple prosecutions every once in a while wakes people up and they say, 'Hey, my job may be at stake.'"

Last month in Florida, new GOP Gov. Charlie Crist, a former attorney general who championed consumer rights, took another step in enforcement by creating an ombudsman to oversee sunshine cases.

Other states have sporadically moved in recent years to toughen penalties and strengthen their oversight.

Kansas lawmakers required that county prosecutors report all sunshine cases to the attorney general, whose office was to prepare an annual report. But the first report is more than a year overdue.

Bruning, Nebraska's attorney general, successfully pushed a law to make it harder for local officials to charge high costs to people seeking government documents. He now wants a mandatory one-hour training course for every public official, so they know what their citizens' rights are in terms of access to documents and meetings.

"This is critical to the citizens of Nebraska and the citizens of this country," he said. "This gives citizens confidence that government is operating truthfully and honestly and in their best interest."

While legislation would make classes mandatory, it operates under the honor system -- no penalty will be levied against those who decide to skip it, Bruning said.

"We're simply trying to educate those that hold the public trust," he said.

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AP special projects manager John Parsons in New York and Associated Press writer David Pitt in Des Moines, Iowa, contributed to this report.