Let the Sun Shine In
Welcome to Sunshine Week!
Those who cherish openness and transparency in government use this week to highlight why citizens of a democracy should care when public officials block their access to information and meetings.
It should be obvious that you should be allowed to attend or listen in when your elected officials gather to discuss where to use road and drainage equipment, how to spend tax dollars, or who to hire for a top administrative post.
It should be routine for you to request and receive records of who is on your local or state government’s payroll, copies of the contract for local garbage pickup or IT services, and documents that can show whether a city or county agency is performing its responsibilities under the law.
But determining what’s routine or obvious in today’s information-saturated environment is not always routine or obvious.
Arkansas’s 55-year-old Freedom of Information Act once stood as a national example of openness for all levels of government. The law’s statement of legislative intent, while stilted in legalese, is straightforward: “It is vital in a democratic society that public business be performed in an open and public manner so that the electors [voters] shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy.” But in recent years, legislators have repeatedly amended the FOIA, so much so that information once routinely and obviously within the public’s right to know is now hidden from view.
Not only has the FOIA been weakened by these changes, but lawyers for various government agencies also often take a very narrow view of the law’s mandate for openness.
One of the more recent and outrageous examples of this lawyerly tendency can be seen in a Feb. 28 column in Arkansas Business by Gwen Moritz, former editor of that publication. In the piece, Moritz recounts her frustrating efforts to update a map showing which areas of the state had higher percentages of residents with medical marijuana cards.
Medical marijuana is a highly regulated business, and the state gathers all sorts of data about the suppliers and the recipients of cards that allow them to purchase the medication. It stands to reason then that a citizen ought to be able to obtain information about how well the state is performing its duties regarding medical cannabis.
One of the ways to monitor that performance is to determine how many medical marijuana cards have been issued by county.
That’s what Moritz sought to do when she asked the Arkansas Department of Health for data on the cards broken down by county. Six weeks after making her request, she received a copy of a report to legislators that gave countywide totals in ranges rather than specific totals. When Moritz renewed her request for totals, she got pushback from a Health Department lawyer.
“In a phone conference,” Moritz wrote, “ADH attorney Craig Smith cited the Medical Marijuana Amendment to the state Constitution, which protects the list of people who have received cards. He said ADH had interpreted that exemption [to the FOIA] ‘narrowly’ to include any data derived from that list.”
The lawyer also made some arguments involving the federal Health Insurance Portability & Accountability Act, but that was just more smokescreen. HIPAA applies only to medical professionals and doesn’t prevent disclosure of information that doesn’t identify individuals.
In the end – 10 weeks after her initial request – Moritz got the data. Even then, her troubles with the numbers didn’t end: the Health Department’s numbers for some counties were obviously inaccurate. Read her column for all the details.
The lesson: Although watered down, our state’s public records and meetings law remains a citizen’s strongest lever for prying information out of reluctant or recalcitrant officials.
It behooves public officials to adopt a culture that broadly construes the FOIA in favor of disclosure, not look for ways to restrict the free flow of information to the citizenry.