Sunshine Week: Public Records Laws the Key to Accountability by Marjorie Arons-Barron

The entry below is being cross posted from Marjorie Arons Barron’s own blog.

The roadmap to robust democracy starts with access to information, even when public officials don’t want you to have it. Your right to know is enshrined in The Freedom of Information Act (FOIA). Both federal and state versions are a major tool for reporters, businesses, law firms and ordinary citizens seeking to understand how decisions are made and hold government officials accountable. But sometimes that’s a challenge.

In December, Reporter Andrea Gallo of The Advocate/Times-Picayune in Baton Rouge filed a FOIA request with Attorney General Jeff Landry for information related to a series of sexual harassment complaints against Patrick Magee, head of the criminal division in his office. Shockingly, not only did Landry refuse. In a man-bites-dog move on February 5th, he actually sued Gallo in her personal capacity, not as a representative of The Advocate. Journalists across the country rightfully rose to her defense.

Fortunately, Louisiana Judge Tim Kelley directed Landry to release the records Gallo sought and ordered him to pay court costs and Gallo’s attorney’s fees. The judge ruled that those records were central to the public’s ability to assess the case and whether it was being handled properly. As the judge said, “It is paramount that the public have trust that our government is transparent.”   There are other records Gallo is still seeking.  (Magee resigned just before a Gallo follow-up story was to appear.)

Officials often create obstacles by foot-dragging and heavily redacting documents. During the early months of the pandemic, some officials went so far as to suspend their states’ FOIA process. By the time delays ended, some files, required to be kept for a certain period of time, had been destroyed. We don’t need to be reminded that Donald Trump took contempt for the public’s right to know to a whole new level. Just one example: about a year ago Time Magazine reported our National Director of Intelligence withheld from the House Intelligence Committee the worldwide threat assessment on our preparedness for this pandemic. Today, reporters are using FOIA requests to track new variants of the virus, to expose handling of police-involved shootings, children separated from their parents on our southern border, self-dealing by corrupt officials and so much more. Failure to expose wrongdoing early in the process can allow problems to fester until the stories explode on the front page, further destroying the public’s faith in government.

Despite such obfuscation, the judge’s point is clear.  Under the Freedom of Information Act, journalists and other citizens are entitled have their requests for documents and other government materials fulfilled.  The importance of that basic principle underlies the observance this week of Sunshine Week, a testament to the public’s right to know and the obligation of government to provide them needed information.

For obvious reasons, the Freedom of Information Act has never been celebrated by those in power, regardless of party. After Congress passed it in 1966, LBJ signed it quietly on a weekend at his Texas ranch.  Even under President Obama, the federal government was loath to facilitate Freedom of Information Act (FOIA) requests. They spent millions defending their reluctance in court.

The news media can’t play their rightful role in aiding the public’s right to know, and we can’t be a responsible citizenry without better access to public information. That will require a substantial reduction in obfuscation, obstacles, and other government displays of officious passive-aggressive behavior.

Sunshine Week is the annual collaboration started in 2005 by AP, Associated Press Media Editors and the American Society of News Editors, to call attention to the centrality of the free flow of information in a democratic society.  March 16th was the anniversary of the birthday of James Madison, a father of the Constitution and its First Amendment. He knew well, even without using the name, that Sunshine – that is, transparency – is the best disinfectant.