Editorial: Legislators should not be able to hide from public scrutiny

“Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” 

         — Justice Louis Brandeis

This is Sunshine Week, created by the American Society of News Editors and the Reporters Committee to spotlight the importance of public access to government information in a democratic republic, allowing the citizens to be the watchdogs over their elected and appointed representatives.

To illustrate this issue for the public, The Associated Press asked for the official emails and calendars for four Nevada legislative leaders — Democratic Sen. Aaron Ford, Republican Sen. Michael Roberson, Republican Assembly Speaker John Hambrick and Republican Assemblywoman Irene Bustamante Adams — for the first week of February.

The legislative lawyers cited a litany of excuses for denying the request in its entirety, including the old claim that revealing behind-the-scenes communications would “chill legislative speech and debate because Legislators might censor their remarks or forgo them entirely to protect the privacy of their sources from being revealed.”

That is the old “deliberative process privilege” dodge that every newspaper editor and reporter with more than a week on the job has heard at one time or another.

But the deliberative process is precisely what the public needs to see, not just the outcome, but how it came to be — what argument prevailed and why, who influenced the decision and how. Did the best interests of the public prevail or those of some special interest group or contributor?

But the legislative lawyers said, with a straight face apparently, that releasing emails and calendars would “allow improper inquiries into the motivations of Legislators.” Precisely.

Under the Open Meeting Law, passed by these same lawmakers, it is illegal for any other public body to “deliberate toward a decision or take action” except during a meeting open to the public. It is illegal to meet in secret or even serially to escape public scrutiny.

The legislative lawyers also cited a bill passed in the closing hours of the 2015 legislative session that says immunity applies to every action lawmakers take “within the sphere of legitimate legislative activity” whether written, oral or otherwise.

Court rulings on the federal Freedom of Information Act have narrowly allowed a deliberative process exemption, but only for an agencies’ internal communication and only for “documents that are both predecisional and deliberative.” It does not apply to factual information contained therein.

Thus the blanket denial flies in the face of even this overly generous and onerous excuse for secrecy.

The AP news story offered this explanation for the rationale of its records request: “Without access to emails, calendars and other correspondence, constituents often don’t know why bills died, which lobbyists their representatives are spending the most time with and what bargains lawmakers cut to save certain bills and kill others. They can only find out if the lawmakers themselves voluntarily give up the information.”

If citizens are to judge their representatives at the ballot box, we need to know why and how decisions were made.

A version of this editorial appeared this past week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record. It ran as a column in the Elko Daily Free Press.

Nevada Legislature (R-J file photo)

11 comments on “Editorial: Legislators should not be able to hide from public scrutiny

  1. Bruce Feher says:

    Shame on you Tom! How can politicians lie, cheat and steal if the public can see what they’re doing?

  2. They will find a way.

  3. agent provocateur says:

    Reblogged this on Nevada State Personnel WATCH.

  4. Rincon says:

    Does this means their phones should be tapped and their homes, offices and cars bugged?

  5. Sure. Don’t be facetious. Official calendars and correspondence should be public, as well as all deliberations — as it says.

  6. iShrug says:

    Emails are supposed to be public record, are they not? I have all kinds of rules for my emails, even working at a sewer plant. Whenever I attend a committee hearing, while the legislature is in session, I am supposed to inform my employer, in case there is a conflict of interest. Never mind that I am attending as a private citizen. They want to know about it. Don’t members of the public deserve the same courtesy? After all, they pay the bills.

  7. Rincon says:

    I’m not being facetious. I just don’t see much of a difference among Emails, letters, phone calls and face to face conversations. You say that all deliberations should be public. Are there no deliberations conducted privately either by telephone or face to face? If there are, then shouldn’t they be in the public domain too?

    An Email is an electronic letter. If all letters are public domain, then I suppose Emails should be too. Do you know if that is the case?

  8. Official correspondence should be public.

  9. Public officials in Nevada — other than legislators — are prohibited from having face-to-face meetings with eachother serially or in less than a quorum to deliberate. They may meet with others but should keep a calendar of who.

  10. […] you thought the Nevada Legislature was veiled in near absolute secrecy — as revealed by an AP story during Sunshine Week, though a few lawmakers apparently don’t think it should […]

  11. Rincon says:

    I guess I still am not quite sure exactly where you stand. What should be public and what should be private? Phone calls? Face to face conversations? From your apparent approval of Nevada’s way, I assume they should all be public. Should lawmakers be forbidden to make small talk with each other? Should they be able to ask about each others’ families and such? Can they eat lunch together? These are human beings, not machines. One of the weaknesses of our federal government, possibly a fatal one, is that members of Congress don’t associate with each other anymore. Although they spend more time than ever in their home districts, they don’t know each other anymore and it leads to animosity. Although they fought in public, Reagan and Tip O’neal socialized. Would they have been as effective without that communication?

    How can there ever be a meeting of the minds if there are always 435 minds trying to break into the conversation? The logistics alone would be overwhelming. Partisanship would have no hope of breaking because nobody would even discuss compromise if there would always be potential shame and embarrassment. How can you even write a bill if you have to check every word during the writing process with 434 other legislators?

    What about meetings and phone calls with lobbyists? How about foreign policy? Military strategy? Are you sure you would want to prohibit all discussions among small numbers of officials? Do you really think floating all kinds of ideas or brainstorming is feasible with a quorum? If officials cannot meet privately, what about party leaders? Do they get a pass? Can you imagine how crippling it would be for private enterprise if we subjected them to the same restrictions? Why do you think it would work better for government?

    Do you think the Founding Fathers had any unrecorded conversations? Do you really think the Constitution would have turned out as well if they would have had to contend with guarding their every word so as not to say anything that would be picked up by CNN for the evening news? I suspect they were able to communicate thoroughly and probably bounced a million ideas off each other before settling on the final document. The human mind cannot operate effectively in the way you seem to propose.

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