By David Bordewyk
This week is Sunshine Week – a national observance of the importance of open government and the public’s right to know.
As Supreme Court Justice Louis Brandeis said more than a century ago: “Sunlight is said to be the best of disinfectants.” It is a proverb often cited by journalists and others when making a case for why transparency in government is important.
Transparency about the workings of government proves effective in preventing corruption and misuse or abuse of tax dollars.
In South Dakota, that sunlight on government often comes in three forms: open meetings, open records and public notices.
Open meetings refer to the state laws that guide public boards such as school boards and city councils on when and how to promote and conduct their meetings in public.
Open records refer to the laws that dictate on how government officials make available upon request to the public information kept in file cabinets, computer drives and in cyberspace.
Public notices refer to the laws about what government – especially local governments – must publish in a local newspaper. Items such as meeting minutes, bid notices and proposed budgets.
However, this three-legged stool for open government – open meetings, open records and public notices – is not without its weaknesses and faults, especially when it comes to open meetings and open records laws.
The open meetings laws include provisions for when a public board may meet behind closed doors to discuss certain topics such as the conduct or performance of an employee or an ongoing lawsuit involving the public entity. Sometimes, the use of executive session by public boards is abused, either unwittingly or knowingly.
The open records laws include a laundry list of exceptions for when public officials may deny someone’s request for information held by government. My experience has been government officials readily pick and choose from that laundry list of exceptions if they are not interested in complying with someone’s request for government information.
To be fair, there are legitimate reasons why government officials should discuss certain topics behind closed doors or not release certain government records. Allowing a school board to meet in executive session to discuss its negotiating strategy for purchasing land for a new school building can serve to protect taxpayers from paying too much for the land. Personally identifiable information such as Social Security numbers and credit card information absolutely must be protected from public view when kept by government.
Still, the weaknesses in our current open government laws cannot be overlooked. Executive sessions provisions in the open meetings laws are vague and ripe for abuse. The exceptions in the open records laws are too plentiful and too expansive.
Work is needed to better educate public officials about these laws and to improve them through legislation – all easier said than done. Over the years we have seen improvements in our open government laws, but much more work is needed. We need more advocates and champions for open government in elected office, both locally and at the state level. We need you to be involved as well.
Why? Because the sunshine Louis Brandeis was talking about does not come naturally.
David Bordewyk is executive director for the South Dakota Newspaper Association, which represents the state’s weekly and daily newspapers.
