February 12, 2016 at 2:13 p.m.
What in the world is Moustakis trying to protect?
What in the world is Moustakis trying to protect?
Those records include documents concerning an investigation or investigations conducted by the DOJ of allegations made against Moustakis. As we report, the DOJ could not substantiate the allegations and determined that they were unfounded.
The case, though, raises some troubling - and outstanding - questions, and it sets the stage for critical open-records decisions down the road.
The first question is, why is Moustakis trying so hard to keep the records sealed? It's always a sign of desperation to take a case all the way to the Supreme Court when the case is not based on public principle but on private interests.
And, make no mistake, Moustakis is spending a lot of time, money, and effort to protect his private interests. This is especially curious when the Department of Justice has said the allegations against the district attorney are unfounded, and even more curious when you consider that the documents are "heavily redacted."
What that means is, the most egregious allegations have been blacked out, but Moustakis doesn't want the public to see even the lesser accusations. This goes against both the letter and the spirit of the public records statutes, it goes against established case law, and transparency becomes even more important when his attorney says these allegations, if published, could impact his ability to be district attorney and, he further suggested, could affect Moustakis's ability to practice law.
If that is true - and we assume it is because it was his attorney who said it - then that's all the more reason for the public to see what these charges are. When a serious charge is made against an employee, and that charge is work-related, it's only appropriate for the boss to see exactly what the charges are and what the truth is.
In this case, the public is the boss, and, to make sure the Vilas County district attorney's office is operating in the public interest, the boss needs to know what's in those records. It's one thing to keep the government out of your private affairs; it's quite another to try and keep the public out of the public's business. And the latter situation is what we have here.
Beyond Moustakis, this case has raised two vital questions and issues for open records advocates.
The first is, who is better at performing balancing tests related to disclosure, elected judges or, as justice Michael Gableman put it, unelected bureaucrats?
In this case, the law seems to have carved out a certain class of employee - elected officials in particular - who have no notification and review rights when certain sensitive records are about to be released. That leaves the balancing test decision in the hands of bureaucrats for those employees, without any real recourse, and Gableman has a point about the wisdom of trusting unelected bureaucrats (with much of anything, we would add).
But, we hasten to point out, as Thomas Jefferson put it, judges are no more or less honest, no more or less partisan, and no more or less human than anybody else.
So we aren't sure it matters. Consistency and uniformity matter, and so all employees should be treated the same with respect to notification and review, but, in the end, we don't very much trust judicial review, either.
What's important is not who is doing the review; what's important is that notification and review themselves be limited to a very narrow channel of records, so that few employees ever qualify for a notification that records are about to be released.
That should be the principle, and it was in fact the intent of the Legislature to limit such notification and review when it enacted the current legislation. That statutory principle may need to be refined, but it should not be weakened.
That's especially so when it comes to investigatory records. Allegations of wrongdoing made against public employees are a very serious matter, and as such the public needs to be fully involved in the vetting of those charges.
Were accused employees treated properly and given due process? Were serious violations swept under the rug? The list goes on, but accountability can only be ensured when the public is involved, and the public can only be involved when it has access, to the fullest extent possible, to the relevant information.
What is perhaps most disturbing is the DOJ's attempt to divide records relating to "unfounded charges" into categories of "unfounded but releasable" and "so unfounded they cannot be released."
The point is, charges are either unfounded or they are not. They can't be somewhat unfounded or very unfounded. Trying to invent degrees of innocence, or degrees of being not guilty, only invites more abuse.
We urge the courts to maintain our state's commitment to the fullest possible disclosure.
Indeed, there shouldn't even be a category of unfounded charges. Allegations are allegations, and it's the investigation of those allegations that is critical, not whether any allegation is true or false.
It's how we arrive at those conclusions, and how we treat employees and the truth along the way, that matters. It's about ensuring that our government is working efficiently and honestly, and it's about transparency.
Once the state begins to parse degrees of truthfulness, there will be nothing left of the fabric of truth itself.
Truth is a whole cloth, or it is an Emperor's suit.
Comments:
You must login to comment.