Legislators should not be able to hide from public scrutiny

“Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” — Justice Louis Brandeis

This is Sunshine Week, created by the American Society of News Editors and the Reporters Committee to spotlight the importance of public access to government information in a democratic republic, allowing the citizens to be the watchdogs over their elected and appointed representatives.

To illustrate this issue for the public, The Associated Press asked for the official emails and calendars for four Nevada legislative leaders — Democratic Sen. Aaron Ford, Republican Sen. Michael Roberson, Republican Assembly Speaker John Hambrick and Republican Assemblywoman Irene Bustamante Adams — for the first week of February.

The legislative lawyers cited a litany of excuses for denying the request in its entirety, including the old claim that revealing behind-the-scenes communications would “chill legislative speech and debate because Legislators might censor their remarks or forgo them entirely to protect the privacy of their sources from being revealed.”

That is the old “deliberative process privilege” dodge that every newspaper editor and reporter with more than a week on the job has heard at one time or another.

But the deliberative process is precisely what the public needs to see, not just the outcome, but how it came to be — what argument prevailed and why, who influenced the decision and how. Did the best interests of the public prevail or those of some special interest group or contributor?

But the legislative lawyers said, with a straight face apparently, that releasing emails and calendars would “allow improper inquiries into the motivations of Legislators.” Precisely.

Under the Open Meeting Law, passed by these same lawmakers, it is illegal for any other public body to “deliberate toward a decision or take action” except during a meeting open to the public. It is illegal to meet in secret or even serially to escape public scrutiny.

The legislative lawyers also cited a bill passed in the closing hours of the 2015 legislative session that says immunity applies to every action lawmakers take “within the sphere of legitimate legislative activity” whether written, oral or otherwise.

Court rulings on the federal Freedom of Information Act have narrowly allowed a deliberative process exemption, but only for an agencies’ internal communication and only for “documents that are both predecisional and deliberative.” It does not apply to factual information contained therein.

Thus the blanket denial flies in the face of even this overly generous and onerous excuse for secrecy.

The AP news story offered this explanation for the rationale of its records request: “Without access to emails, calendars and other correspondence, constituents often don’t know why bills died, which lobbyists their representatives are spending the most time with and what bargains lawmakers cut to save certain bills and kill others. They can only find out if the lawmakers themselves voluntarily give up the information.”

If citizens are to judge their representatives at the ballot box, we need to know why and how decisions were made. — TM