Laws leave cloudy trail, frustrates public
Residents seek transparency from state, local officials
“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.