RALEIGH – It looks like an open-government bill from Sen. David Hoyle of Gaston County is making its way through the labyrinthine halls of the North Carolina General Assembly. At the risk of dooming it with unwelcome praise, I’ll take this opportunity to commend Hoyle and Majority Leader Tony Rand of Fayetteville, a strong proponent of the legislation, which increases the ability of news organizations, watchdogs, and private citizens to recover their legal expenses when they sue the government to obtain public records. It is already possible to get a judge to order fee recovery, but in practice it is rare.
(As it happens, the John Locke Foundation’s own Carolina Journal was the first media organization to obtain state reimbursement of legal expenses after we sued in 2005 to obtain the state’s file on an economic-incentives package. But that was a condition of settlement, not the result of judicial discretion.)
State agencies and local governments are apoplectic about the bill, which makes the recovery of fees mandatory in certain cases of successful litigation. They argue that it’s unfair to force governments to pay the fees of successful plaintiffs when governments have little prospect of recovering their defense costs when public-records lawsuits are thrown out.
It’s reasonable to be concerned about frivolous litigation, but the bill addresses the problem in part by setting up a office under the Attorney General that would mediate public-records disputes before they reach the litigation stage, thus reducing the likelihood of baseless claims moving forward. More generally, however, there is a fundamental disconnect between public officials on one side and open-government advocates on the other about priorities.
Whether it’s reimbursing plaintiffs in successful public-records lawsuits, properly storing official state correspondence regardless of whether it occurs on paper or in email, or vastly expanding state and local websites to provide greater fiscal transparency, some public officials seem to believe that the prospect of spending millions of tax dollars on open-government initiatives is a sufficient reason for squashing them.
I disagree.
Government openness is important enough to spend millions of dollars to secure. There are, in fact, few higher priorities worth funding. The General Assembly, for example, has just completed work on a 2008-09 budget plan that will appropriate more than $21 billion on General Fund items alone, plus billions of additional dollars in highway revenues, fees, and federal grants. It’s not too much to ask that a fraction of this annual spending, in the millions of dollars, be dedicated to recording and broadcasting public meetings, digitizing and storing public documents, providing searchable access to fiscal and policy data on government sites, and satisfying reasonable requests for public information.
It’s not just that sunshine tends to expose waste and corruption, though it does that. Sunshine also strengthens public discourse. More information going out usually leads to more information coming in, as reporters, watchdogs, and activists spot problems, relationships, or opportunities that policymakers may have missed. Moreover, when politicians blame openness for impeding their ability to make difficult decisions on tough issues, because of possibility of triggering a public backlash, they get things precisely backwards. Political controversies often stem from an overly secretive process that creates a public perception of conspiracy or bad faith even when none is present.
George Savile, the famous Lord Halifax who was a contemporary of John Locke in 17th century England, got a rude awakening about the effects of excessive secrecy during the Glorious Revolution of 1688. Trying to negotiate between the embattled King James II and the invading William of Orange, Halifax took a message from James to William asking for terms. William responded with what Halifax, still essentially the king’s man, believed to be a reasonable set of initial demands. But when he returned to the king’s court, he found that James had misled him and never been willing to negotiate (a rather big mistake on James’ part, by the way).
Seeing numerous other instances where state deception did its practitioners no good, Halifax concluded that, “The people will ever suspect the remedies for the diseases of the state where they are wholly excluded from seeing how they are prepared.”
Given what North Carolinians have witnessed in recent years – state officials imprisoned for felonies, gross mismanagement, and a speaker of the state house selling government favors for campaign cash and using bribes to stay in power – public cynicism about their government is understandable.
If lawmakers in Raleigh were to pay due diligence to open government, they might well transform that rampant cynicism into a healthy skepticism, which would be good enough.
Hood is president of the John Locke Foundation.