Ralph Waldo Emerson once wrote, “Democracy becomes a government of bullies tempered by editors.” It is in this spirit that we rip back the veil of secret government as we celebrate national Sunshine Week this week.
Few would ever contend “as Wisconsin goes, so goes the rest of the nation,” but with respect to prioritizing governmental transparency, the Badger State paved the way with the nation’s first open government law in 1848. In 1967, Florida was the first state to enact an open meeting law to guard against backroom policymaking.
Were it all so simple. The march toward an accessible, transparent and open government has been a journey of fits and starts. Moreover, it is a journey with no end. As long as we are a government of human beings, we will constantly adjust and combat our frailties.
Moving through history there are a number of notable watershed moments in the service of information freedom. Arguably the first of these was the Administrative Procedure Act (APA) enacted June 11, 1946. This federal law governs the way in which administrative agencies of the federal government may propose and establish regulations. The APA also sets up a process for federal courts to directly review agency decisions. It is widely regarded as one of the most important pieces of federal administrative law.
Of course the great well-spring of governmental transparency is the 1966 Freedom of Information Act (FOIA). This legislation permits the full or partial disclosure of previously unreleased information and documents controlled by the U.S. government. FOIA defines agency records subject to disclosure, outlines mandatory disclosure procedures and grants nine exemptions to the statute. It was originally signed into law by a hesitant President Lyndon Johnson, on July 4, 1966 and went into effect the following year.
The federal FOIA served as strong inspiration for similar state and local laws across the nation. Here in Arkansas our FOIA laws (25-19-101) were first enacted in 1967. The law’s statement of intent reads in part, “It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy.”
As most members of the city and county government could attest, the media does not shrink from its regular invocation — nor should we. As the former Supreme Court Justice William O. Douglas famously quipped: “Sunlight is the best disinfectant.”
Of course, there is potential peril in knowing every aspect of how the sausage of government gets made. To this end there are nine core exemptions under which the federal government may refuse to disclose certain information. These important caveats go to Indonesian author, Toba Beta’s line from his novel, Betelgeuse Incident, “Total transparency risks country’s stability.”
As the saying goes, sometimes you can’t eat ‘all you can eat.’ At least we shouldn’t.
While FOIA is the standout, there have been many subsequent clarifications around these same themes. Among the more notable are the: Federal Advisory Committee (1972); Congressional Budget and Impoundment Control Act (1974); Government in the Sunshine Act (1976); Inspector General Act (1978); Ethics in Government Act (1978); and the Presidential Records Act (1978).
Of these, one bears special note: the Government in the Sunshine Act. The Sunshine Act is particularly important — as are its local cousins — because it provides that “every portion of every meeting of an agency shall be open to public observation.” That is a very important aspect of transparency in government.