USA TODAY US Edition

Laws leave cloudy trail, frustrates public

Residents seek transparen­cy from state, local officials

- Miranda S. Spivack The Center for Investigat­ive Reporting Miranda S. Spivack, a former Washington Post editor and reporter, is the Pulliam Distinguis­hed Visiting Professor of Journalism at DePauw University. Funding for this story is from Marquette Univer

“A greater inclinatio­n among government officials for gaming the system...” National Freedom of Informatio­n Coalition

For more than three decades, Nick Maravell and his family farmed on a 20-acre plot in suburban Maryland, tucked between the Potomac River and megamansio­ns in Potomac, an upscale suburb that is home to powerful lobbyists, government contractor­s and other wealthy families.

Nick’s Organic Farm, a relaxed place where customers would stop by to pick up some vegetables or simply drop in for a chat, was a tenant on land owned by the county public school system. But one day in 2011, Maravell got some bad news. Montgomery County’s top elected official and his aides had been negotiatin­g in secret to get the school board to kick out Maravell’s farm and rent the site to a private soccer club.

“It caught everybody by surprise,” said Curt Uhre, a neighbor.

Residents who cherished the farm quickly rallied to Maravell’s side. Worried about traffic and the potential loss of open space, they began researchin­g the county’s proposal to convert the farm to soccer fields.

During the legal fight, they also began learning about Maryland’s open records law. Used frequently by journalist­s and business interests, the state’s public records law allowed them to seek government documents — memos, officials’ calendars and other items — that might offer clues to how the deal was done or hints about who had been speaking with whom, when the plans were hatched and why.

But when residents asked for those documents, they hit a wall: Montgomery County government officials said they could not find many emails, letters and calendars related to their search.

This seemed prepostero­us, so the residents took the only route available to them — they went to court. A skeptical county judge urged the government to look anew for missing documents. Officials soon managed to find most of what the residents had sought. The details weren’t pretty. Documents showed that County Executive Isiah Leggett, a Democrat less than a year from his next election, had been pushing behind closed doors for the private soccer club to take over the site and attempting to pressure a reluctant school board, even though in theory he had no power over school system decisions.

The Maryland Open Meetings Compliance Board also found that the school board had violated the state’s open meetings law by discussing the lease deal in closed session.

Patrick Lacefield, Leggett’s spokesman, sees the dispute dif- ferently. “The issue was not transparen­cy,” he wrote in an email. “That was a ruse to advance the substance of those opposed to the project — that they opposed using public land located near their exclusive neighborho­od so that kids, including disadvanta­ged kids, could have a place to play soccer.”

The battle over the fate of the farm spanned two years and cost the residents at least $100,000 in legal fees, said. Was the county’s failure to provide key informatio­n to the public due to lack of knowledge of the state’s open meetings law? Sloppy recordkeep­ing? Deliberate obfuscatio­n? It was impossible to tell.

This expensive, drawn-out dispute was over a single plot of land and some soccer fields. But the story of Nick’s Organic Farm is far from unique. The same thing is happening across the United States.

While much media attention is focused on federal government secrecy, secretive practices of state and local government­s often get less scrutiny but frequently have a more immediate impact on communitie­s.

The lack of transparen­cy by state and local government­s can discourage civic discourse and grass-roots engagement with government, as a frustrated public often simply gives up after struggling but failing to find out what is going on close to home.

Robert J. Freeman, executive director of New York’s publicly funded Committee on Open Government, one of few such agencies in the country, says U.S. jurisdicti­ons have fallen behind countries such as Estonia, Mexico and Peru in sharing records and keeping public meetings public.

“You need a government champion who works independen­tly to make the laws work,” he said. But few government­s in the U.S. have them. In many states, the only way to pry loose informatio­n is to file a lawsuit.

THE FORMS OF SECRECY State and local secrecy takes many forms.

Some communitie­s fail to provide budget informatio­n that is clear and easy to understand, or they list contracts but don’t explain why they were awarded. Others try to charge excessive fees for informatio­n sometimes millions of dollars as the Massachuse­tts State Police did to a lawyer seeking informatio­n about drunken driving tests — hire outside companies to supply data at extraordin­ary prices or evade open meetings laws by creating small subcommitt­ees that they claim are exempt from the statutes.

When members of the public seek informatio­n — such as the residents who wanted to find out why Nick’s Organic Farm was being evicted — they often bump into impenetrab­le walls. Informatio­n laws in many states are weak, enforcemen­t by government­s is limited and appeals are difficult.

The events of 9/11 caused new retrenchme­nt on openness. The League of Women Voters in 2006 found that there was a “growing difficulty” in gaining access to public informatio­n, much of it justified as “critical to protect homeland security.” And the National Freedom of Informatio­n Coalition, in more recent surveys, has found “a greater inclinatio­n among government officials for gaming the system than complying with existing disclosure and accountabi­lity laws.”

GAMING THE SYSTEM There are many examples of what the coalition believe is gaming the system.

As he was poised to launch his campaign for president in 2015, Wisconsin Gov. Scott Walker hatched a plan with Republican colleagues to drasticall­y reduce public access to state government documents and emails in a state with a long history of government transparen­cy. Initially Walker denied that the idea originated in his administra­tion, but emails obtained through open records requests by news organizati­ons in the state revealed that Walker had misled the public about his administra­tion’s key role.

Massachuse­tts State Police demanded $2.7 million to retrieve documents when a lawyer asked for data on breath alcohol tests. In Tennessee, a state board creat- ed to assess state transparen­cy regulation­s held meetings in secret.

In Maryland, the same county government that thwarted residents in the Nick’s Organic Farm case asked a resident to pay more than $58,000 for informatio­n about a public library project.

Only a handful of states in the U.S. have any reliable system for enforcing their own open meetings and open records laws. Most rely on private parties to press for enforcemen­t.

Too often, it is the community activist whose interest in government informatio­n is sparked by a local fight — over developmen­t, schools, traffic or crime — who bears the burden and cost of trying to enforce those laws.

RESIDENTS STEP UP In San Jose, Calif., resident Ted Smith filed a public records request seeking informatio­n about a downtown developmen­t project partly funded with public money.

The city turned down his request for official emails because the mayor and council members had sent them on their personal accounts. Smith sued, and the case is now before the California Supreme Court. In San Diego, Donna Frye, a former city council member, is working to win support for a ballot measure that would make city officials’ texts, emails and other correspond­ence on private phones, tablets and other personal devices public informatio­n.

Oklahoma’s public university regents set up small subcommitt­ees that don’t equal a quorum — allowing them to meet behind closed doors.

Officials at the University of Kentucky, who are balking at releasing informatio­n about a completed sexual assault investigat­ion implicatin­g a now-former faculty member, in August announced that they were suing the university’s student newspaper to try to prevent disclosure.

The state attorney general had ordered disclosure of most documents, and the university can appeal that ruling only by going to court against the student newspaper.

Dan Bevarly, interim executive director of the National Freedom of Informatio­n Coalition at the University of Missouri, said residents increasing­ly must help fill in the gaps.

But he said it’s unclear whether many communitie­s can engage in efforts such as those in Potomac, Md., where a sophistica­ted and expensive legal battle helped give organic farmer Nick Maravell a reprieve.

“As the media disappears from public meetings, will the citizens step up?” Bevarly asked.

 ??  ?? Curt Uhre stands next to Nick's Organic farm.
Curt Uhre stands next to Nick's Organic farm.

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