The Sun Going Down, But Not on Government
Who can possibly be against Sunshine and Transparency in government? Some Hillary detractors think she is. Same is being said about Jeb Bush and Scott Walker who handled their e-mails about the same way Hillary did. They have all been burnt by the insatiable appetite for disclosure of everything a public official says or does, 24/7. Like all others in public life, they’ve been victims of a good thing, pushed too far by zealots on both the left and right who think no amount of Sunshine is enough to keep government in check. Like the words from the John Denver song, Sunshine makes the watchdogs happy and high.
No violins for the beleaguered bureaucrat class here, but a little light from a whiny ex-bureaucrat who saw from the inside what too much Sunshine has done to government. That perspective gets no airing, just like the version of SAD, which no one hears about, where too much sunshine, not too little, makes it hard to function.
The most harmful effects of ever greater Sunshine are not on the careers of politicians and public employees – no one cares about them anyway — but how it inhibits the flow of information inside government; the way it makes (good) deals between allies and rivals alike harder to achieve; and (constructive) compromise more difficult to attain.
In Honor of Sunshine Week
Sunshine and Public Disclosure laws are of course generally good, very good. But they have side effects not clearly labeled on the kool-aid bottle; or on all the happy good government websites. (Here is one example). In fact, we just had “Sunshine Week” (March 15-21) brought to you by Bloomberg, The Gridiron Club, and numerous press organizations. The “gridiron club”?
Sunshine and Public Disclosure laws, and their flag ship, The federal Freedom of Information Act (FOIA), and all the little FOIAs, have done their job. Public workers have been censured or fired for appalling abuses and negligence. The most heart rending are in programs like nursing home, mental health, and child protective services, where negligence, cover-ups, and under-funding are life and death matters. All manners of corruption, inefficiency, and egregious waste inside government have been disclosed and prosecuted using the FOIAs.
That said, here are some other things about Sunshine run amuck that you hear very little about:
Hacks in both major political parties, and the “non partisan” fanatics who get tax exemptions from the IRS for improving “social welfare,” bombard governments and agencies hourly with requests (legally supported “demands” under FOIAs), for paper documents, e-mails, text messages, phone records, notes scribbled on pads, recordings, reports, photographs, you name it, in search of real or imagined abuses. These items may disclose some terrible wrong doings in government, but they are also the raw materials for scandal mongering and the life blood of opposition “research.”
Too many requests (demands) for information are unabashed fishing expeditions. Some are efforts to harass public workers so they can’t get their work done; so that anti-government zealots can prove bureaucrats don’t get their work done
Then there are the cranks, trouble-makers and malcontents (working inside governments) who find the public disclosure laws highly accommodating when they want to make life miserable for a boss or a colleague they happen to despise. These include the trolls who make digging for dirt and “whiste-blowing” a hobby and fetish. (Along with those who do it for the right reasons).
These are not the worst side effects of (too much) Sunshine. The most damaging are the chilling effects on information sharing and collaboration inside government; not just across political aisles, but also among workers “on the same side,” or not on any “side,” of an issue, just seeking the right or best answer.
Too much sunshine impairs deliberation, political deals and compromise (in the best senses). It gets in the way of candor, the unfettered search for solutions, the sharing of important information up and down the chain of an organization, or laterally. Once you fully realize that (just about) anything you put in an e-mail may wind up on the front page of the newspaper or on the nightly news, or in a law suit (with or without merit), the chilling effect is huge.
Some real and imagined anecdotes: A skittish staffer who shuns e-mail fails to tell his Boss that the draft health care bill is unclear about who’s eligible for subsidies. A signal from a political rival’s staffer looking to make a deal never get’s transmitted. A governor or mayor is unprepared for a high stakes tax negotiation because the writer of the policy brief didn’t trust her paper was non-discloseable.
Bureaucrats need some cover when they’re trying to be honest with their bosses about the risks of a proposed policy; or when they float a balloon to an adversary in a delicate negotiation.
Sunshine laws have of course been a great tool for open and good government. But even Sunshine comes at a price. Like for some miracle medications, there are ways to mitigate the worst side-effects. Sunshine cast on the Sunshine laws would be a good start.
Page Seven 
As someone who has often requested emails, letters and other communications through the state’s variations of the Freedom of Information Act, I would like to to consider the fact that those who want to “discuss” issues outside of those acts (which only allow for those communications that are written, whether physically or digitally) have the ongoing opportunity to do so. Whether it is by phone or face-to-face discussion over breakfast, lunch, dinner or a drink or two — alcoholic or not — elected officials have many occasions to talk with one another without the “fear” of being monitored by the people who elected them. But in California, the Brown Act preamble should remind us all that “The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”
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Pat Mues , when you ran Escondido2014 you put Sunshine laws to their highest and best use. Clear, targeted requests for information from Escondido government; no fishing expeditions or harassment; no unreasonable requests for a million pages of e-mail. When you interpreted public officials’ messages for blog articles, the pubic officials had the opportunity to respond if they thought they were being mis-interpreted. And you printed the responses. (At least that was my perception). It doesn’t of course always work that way.
I agree with nearly all you said here in your comment, with a caveat two. The capacity to discuss issues outside the FOIA type acts may be easy and available in some governments and agencies; but certainly not all, not even most. In my experience, face to face meetings or telephone conversations are frustrating to schedule and consummate. (Agencies now discourage them, as a waste of time). “Discussions” which used to occur over weeks or months of meetings and phone calls and breakfasts, are often, now, expected to take place at warp speed, over e-mail, text messages, and recorded phone messages. Thus, they often don’t happen, which means important information doesn’t flow. This is the price of sunshine. (And the discussions which used to occur between rivals, partisans in social settings hardly happen any more; which is not because of sunshine).
Like many other things which are good, Sunshine comes at a price. I never said the price wasn’t worth it. I was just trying to point out that there is a price. I intimated that there are things which can be done to reduce that price without harming disclosure and transparency, but didn’t elaborate in a short blog. Maybe I should. Unfortunately, many governments and agencies have tried to reduce the price by erecting hurdles and barriers to their local or state FOIAs, and making it costly for citizens to use the FOIAs.
In Escondido, as you know, I think e-mails are required to be archived for only 90 days. Is that right, Pat? If so, that’s appalling.
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If people knew exactly what correspondence there had been between parties, they could obviously make specific requests. But most FOIA requests are aimed to find out what was communicated and that may mean asking for a broad spectrum of information. Is that a fishing expedition or just an attempt to get to the facts. It is tricky to decide where the line should be drawn but if elected officials had more discussions in the public view there might be less need to make vague requests. As to Escondido, the City eliminates “unnecessary” emails after 90 days. I put the word in quotes because I know emails for some ongoing projects/activities are retained.
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I agree with you, totally, Pat, that there is not a clear line between a “fishing expedition” and a reasonable attempt to get facts around something (like the waivers for select developers in Escondido) that smells bad. But I used to know a fishing expedition when I saw it — at least from my biased view as an insider.
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Thanks for this column, Irv. My perspective on this comes from the experiences of a local health department. A consumer with a diagnosis of paranoid schizophrenia forced an office with 1.5 FTE to hire an extra 1.0 FTE to deal with his FOIA requests. Add copying and postage and it was an enormous cost to a small program. This went on for over a year and there was no way to put limits around his demands. I too think sunshine is a good thing, but you can get burned – to no good effect.
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Thanks for comment, Rosemary. Yup, there are lots of examples like that. But it’s very hard to get a sympathetic ear, and also hard to throttle people abusing the FOIAs without getting in the way of legitimate uses. Since we’ve been in government there has been more done to damp down these outrageous examples. I think the worst effects today are from political hacks looking for scandals and the chilling effect on candid discourse inside government. Look at how the progressive era referenda and initiatives haves been hijacked by the very interests they were supposed to curb.
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Well said, Irv!
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Thanks Jim. Glad to get some more confirmation from one who also seen it from the inside. Also, am glad you are still checking out the blog from time to time. Best, Irv.
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