March 17, 2022 at 12:43 p.m.
Toward a government of openness and inclusion
Toward a government of openness and inclusion
In recent years politicians on the state and local levels have been working overtime to throw as many obstacles as they can in front of citizens who seek access and records. They charge outrageous fees they know citizens can't pay; they redact information they shouldn't; and the Legislature effectively exempts itself from the open records law by being able to throw out records anytime lawmakers want.
In addition, Tony Evers has already been sued three times for open government violations, once in a case in which he aggressively tried to rewrite the records statute to redefine "or" to mean "and" and in the process make broad public oversight impossible.
Then, too, the state's judiciary has stacked so many bad decisions upon bad decisions that case law resembles a Dagwood sandwich, rendering the state's open government statutes, which were too vague to begin with, virtually unrecognizable.
We could go on, but you get the picture. And when officials don't throw down barriers and actually "comply" with a request, they most often do the least they can to meet the minimum requirements of the law. Hardly inclusionary.
Interestingly, Wisconsin's statutory language already makes this a part of its governmental policy: "Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information."
That's pretty inclusionary but because the declaration is so often ignored it should be strengthened by adding an "inclusionary" requirement that would mandate that governments, in providing that information and in fulfilling its essential function, shall make every effort to provide the most expansive and inclusionary means to access.
Open government, to be truly open, is about being proactive rather than passive. It is about including people - not merely about breaking down barriers to participation but actually pursuing ever wider engagement. Without such an outlay of commitment, government will continue to recede into the darkest corners of special interests.
In this context, when we refer to engagement and participation, we are talking about participation in the daily workings of government decision-making, access to the records and meetings and evidence that underlie decision making, and the notice-and-comment requirements that allow citizens to participate in the process.
We are not talking about voting participation. Expanding voting rights is a worthy goal, too, but the integrity of that critical process demands defined rules for identity and qualification, to prevent ineligible people from corrupting elections.
It is exactly the opposite in the world of daily decision-making once elected officials have moved into the halls of power. In the freedom of information process, it is government officials, particularly the unelected ones, who these days most often pose the biggest threat to the integrity of the democratic process, and who must be bound by rules that stop them from constricting the policy-making process by whatever means, be it illegal closed meetings, records suppression, or retaliation.
So how to open up the doors of government?
The best way is to rewrite the open government statutes to require maximum rather than minimum inclusion. For example, the open meetings laws provide a number of specific exemptions that allow government bodies to go into closed session. Interestingly, the statutes do not require those bodies to go into closed session over such matters, but gives them the right to do so if necessary.
However, virtually every governmental body on the planet uses the exemptions to declare that they must go into closed session over those matters. It has become automatic. The statutes should be rewritten to tighten the ability to go into closed session.
Then, too, these days most open government advocates consider their foundational principles to be participation, accountability, and transparency. But what if the foundational principles of open government were not just participation, accountability, and transparency? What if we added another element, namely, inclusion?
Ah, inclusion. It's a nice term that long ago was co-opted by partisans but which should be returned to the public domain where everyone can claim ownership. So what is inclusion, and how does it differ from participation?
Well, participation is the act of taking part in something. It requires effort on the part of the people. It also requires that government provide a means of access so that people, when they make that effort, can indeed find their way in. So open government laws require that records requests be answered and filled with few exceptions, and that meetings be open, to look at the general framework. The posting of meetings and agendas is required, too.
But notice that the focus in all this is on what the government must do to provide access rather than what it should do. After the government fulfills its basic requirements, then the people can do what they must to take part.
Imagine it this way. Imagine all of government as one single capitol building. In our current way of thinking, the law would require that, when the Legislature convenes, one or two doors must be open to let the people in. If someone arrives at the back, they might have to walk around to the front.
That might satisfy the "participation" principle, but in its formulation it is a rather exclusionary, not inclusionary, approach to open government. The fact that any government official would even consider locking some doors indicates an attempt to frustrate access. It is exclusionary thinking.
Some might object that, in this age of mass violence, the number of entrances to government buildings must be reduced, but that's a different matter not relevant to the simile's real point. But here is a real-world application. In the past, we have talked of attempts by some lawmakers to abolish the state's online court records for various reasons. One of the traditional fallback positions is that they really wouldn't be dismantling any transparency or access to those actual records because they would still be available for public inspection at the courthouse.
Really? It's obvious that making someone drive or take public transportation to a courthouse rather than walking to the computer in the next room is an attempt to reduce the participation level. If this were the case, the government might still be providing an access to participation, but its approach would be exclusionary rather than inclusionary, in the same way that simply providing open data portals and declaring transparency as a mission accomplished is exclusionary rather than inclusionary.
So inclusion must be a foundational principle of open government, and it should be reflected in state statutes. However it is written, government must be required not simply to provide minimum access but to provide as much access as it possibly can, in as many venues and formats as it possibly can, with the right of citizens to appeal instances where the government has fallen short.
In sum, such a standard would automatically rule out limiting court records to public inspection at a courthouse. A public record is a public record and an inclusionary approach to providing access to those records requires their online availability.
To use another more recent example, during the Covid-19 pandemic, many governments at all levels have begun providing access to their meetings via phone teleconference or Zoom or other platforms. The question is, why haven't they been doing so all along? What would prevent them from continuing these means of access?
Already many county and local governments, having made Golden Goose investments in technology using federal pandemic funds, have begun to shut down or narrow their use of remote access for the public. Holding an in-person meeting should always be the standard, but just holding such a meeting and compelling the public to attend when existing technology would allow much greater participation is an example of an exclusionary approach to government.
Open government, to be truly open, is about being proactive rather than passive. It is about including people - not merely about breaking down barriers to participation but actually pursuing ever wider participation.
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