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 Hana Callaghan.
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
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.
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.
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.
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:
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.
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.
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.