Open Meetings, Open Records, and Transparency
in Government
By Judy Nadler and Miriam Schulman
These materials were prepared for the Markkula Center for
Applied Ethics program in Government Ethics by Senior Fellow
Judy Nadler and Communications Director Miriam Schulman. The
Center provides training in local government ethics for public
officials. For more information, contact Judy
Nadler.
What is the definition of transparency?
What is an open meeting law?
What do open meetings have to do with ethics?
What ethical dilemmas do open meetings and open
records present?
Resources on open meetings, open records, and
transparency
What is the definition of transparency?
Of course, transparency means that something can be seen through.
When we talk about transparency in government, we mean that
citizens must be able to "see through" its workings,
to know exactly what goes on when public officials transact
public business. Government that is not transparent is more
prone to corruption and undue influence because there is no
public oversight of decision making.
What is an open meeting law?
To protect transparency in government, every state in the United
States has some variety of law mandating that all government
business be conducted in open meetings to which the public has
access. These are sometimes referred to as "sunshine laws,"
open government laws, or, in California, the Brown Act. The
Oklahoma Court's decision in Oklahoma Ass'n of Municipal Attorneys
v. State (1978) gives a clear statement of why open meetings
are important: "If an informed citizenry is to meaningfully
participate in government or at least understand why government
acts affecting their daily lives are taken, the process of decision
making as well as the end results must be conducted in full
view of the governed."
In addition, most states have laws ensuring public access to
government documents and records. These are often versions of
the federal Freedom of Information Act.
What do open meetings have to do with
ethics?
Transparency is a way of protecting fairness and ensuring the
common good. When citizens know what their government is up
to, they have a better chance of ensuring that decisions treat
everyone equally and protect the common conditions that are
important to everyone's welfare. As the Carter Center puts it:
Democracy depends on a knowledgeable citizenry whose access
to a range of information enables them to participate more fully
in public life, help determine priorities for public spending,
receive equal access to justice, and to hold their public officials
accountable. Inadequate public access to information allows
corruption to flourish, and back-room deals to determine spending
in the interests of the few rather than many.
What ethical dilemmas do open meetings present?
While the principle behind open meetings is straightforward,
the application sometimes is not.
Exceptions to Open Meeting Rules:
There are issues, such as real property negotiations and matters
pertaining to pending litigation, which can be handled in closed
session. Personnel issues are another area, one where privacy
concerns may legitimate closed meetings. California's sunshine
law, the Brown Act, "provides for closed sessions regarding
the appointment, employment, evaluation of performance, discipline
or dismissal of a public employee."
The rationale for this exception is protecting public employees
from undue publicity or embarrassment, but not every embarrassing
or sensitive situation should be handled behind closed doors.
In fact, the California Attorney General's Office points out
that these very characteristics may indicate the need for public
scrutiny. Evidence of corruption in the awarding of city contracts
may be very embarrassing to the city council, but it must still
be dealt with in an open meeting.
What is a meeting?
Public officials may be unclear about or too loose in their
interpretation of what constitutes a meeting. If, for example,
a majority of council members go out for lunch together and
discuss city business, despite the informal setting, they are
having a meeting. The important thing for officials to keep
in mind is the principle behind the law: the public's right
to know how public decisions are made and to participate in
making them.
Barriers to Access:
Open meetings should allow everyone access to the political
process. This may mean breaking down the barriers that exclude
some citizens, such as:
Technological Barriers:
Sometimes called the "digital divide," our society
suffers from disparities in access to technology, usually because
of income. One obvious example is that low-income individuals
are less likely to own computers that would allow them to access
government services that are available on line. Building permit
forms, council minutes and agendas, utilities applications are
all examples of forms that can often be filled out over the
Internet. To reduce the effects of the digital divide on access,
governments must support such services as public library access
to the Internet and the continuing availability of in-person
assistance.
Disabilities:
A disability may impede a person's ability to participate in
the political process. For example, a person using a wheelchair
cannot even enter City Hall if the only access is a long flight
of marble stairs. A deaf citizen cannot follow government debate
without assisted hearing devices. The
Americans with Disabilities Act requires government entities
to remove barriers to the full participation of people with
disabilities. As always in regard to ethics, however, the law
is the floor and not the ceiling. Government officials have
a duty to ensure that people with disabilities are welcomed
into the public arena.
Officials should also understand that their accessibility to
the public should extend beyond meetings. They need to participate
in public life, to attend community events, to make themselves
available to the community outside of more formal governmental
gatherings. They have the responsibility of taking phone calls
from constituents, responding to e-mails, and generally listening
to concerns and questions coming from their community.
Open Records:
Public records also must be publicly accessible, though here
again there may be exceptions, such as classified information.
A key issue facing governments is the proper balance between
open records and security. For example, safety reports on nuclear
or chemical plants may be public records, but should they be
widely available? What information must be protected to keep
citizens safe, and what records are classified simply because
their publication would reflect badly on those in power?
Additionally, a great deal of information about individuals
is available in government records, such as voter registration
rolls. Databases make this information widely available, raising
privacy concerns.
Resources on Open Meetings, Open Records,
and Transparency
Articles
About Government Ethics on This Web Site
Articles
About Ethical Decision Making on This Web Site
Links
to Other Sites About Transparency, Open Meetings, and Open Records
Introduction
to Government Ethics Homepage
March, 2006
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