Not-So-Public Records

by Jeremy Alford

When it comes to sensitive documents in state government, some elected officials are still trying to keep citizens in the dark.

It is widely known as "sunshine," the willingness by government to open up its books and meetings and operations to the general public. In Louisiana, as far as public records laws go, the forecast is partly sunny with threatening clouds overhead. At least that's how the Citizen Access Project at the University of Florida grades the state: "Somewhat open."

The project relies on a quirky index reminiscent of the Weather Channel, with bright sunshine on one end of the spectrum (completely open) and a dark sky on the other (completely closed). Access to the Legislature is well above average, even though the constitutional provision calling for such openness does not directly identify the body by name. Availability of election records pulled from state voting machines is another area that scored high on the index. Louisiana falls largely in the middle in most categories, although a few ' children's records for medical examiners, certain computer records, gubernatorial documents ' are second-to-last on the index, dubbed as "nearly dark."

There are always a dozen or more bills filed in every regular session of the Legislature that seek to chip away at public access to government documents. Barry Erwin, president of a Council for a Better Louisiana, a nonprofit that monitors the activities of state government, says that persistence may be more dangerous than the actual intent of the bills.

"It is very disconcerting," Erwin says. "It seems there is always an effort to create an exemption or find a loophole. Some years are worse than others, and you never know what's going to come up. They just keep coming back again and again. The good news, though, is that most of these bad bills usually get killed."

Baton Rouge Rep. William Daniel was pushing legislation that would have excluded law enforcement personnel records from public view, including disciplinary actions, but he pulled it from consideration in the face of opposition from the Louisiana Press Association and others.

"I'm not going anywhere with that bill," Daniel confirms, making this the second consecutive year he has personally introduced and then withdrawn the concept.

As one door closes, however, another opens. Rep. Clo Fontenot, a Livingston Parish Republican, has a bill that would expunge certain files related to internal police department investigations. If an officer is accused of a wrongdoing, then later found innocent, the charge could be removed from the officer's jacket. "But if the accusations are true, they stay in the record," Fontenot says.

Not only would the information be erased from documents available to the public for viewing, it would also be shielded from superiors and future employers.

On the state level, the Insurance Department wants to close off certain public records connected to companies that do business with the Louisiana Casualty and Surety Rating Commission. The measure by New Orleans Democratic Rep. Karen Carter, a New Orleans Democrat, identifies "biographical information" as being exempt from sunshine laws but offers no definition of the term.

Additionally, the Department of Transportation and Development has a set of bills filed for the session that would prohibit preconstruction estimates from being viewed by the public until all bids on the project are received.

Some of these concepts might not look like much on the surface, but Joe Cook, executive director of the Louisiana chapter of the American Civil Liberties Union, says they set a dangerous precedent if approved and applied the wrong way.

"It all depends on the legislative intent, but any time an exception is being made to government operating in the open, that should immediately raise questions," Cook says. "The price of liberty is eternal vigilance, and it pays to be vigilant any time the Legislature is in session."

On the flip side, a few current bills aim to further open up government to public inspection ' but aren't gaining much traction. A bill that would have made public certain documents in the governor's office ' just like the way all other state agencies are treated ' met a quiet defeat earlier this month.

Terry Ryder, executive counsel to Gov. Kathleen Blanco, rattles off a number of reasons that helped lawmakers torpedo the proposal. Information shared in the executive branch is sensitive, he tells them, and answering public requests of that nature would be too time-consuming for the staff. But most of all, the governor's ability to receive information freely would be obstructed.

Rep. Mert Smiley, a Republican from Port Vincent, notes an irony in the administration's opposition. He recalls how Blanco was elected as a reformer and how she has made ethics a central platform in nearly every session.

"I couldn't think of any way better to show transparency than this," Smiley says, referring to the defeated legislation.

New Orleans Rep. Peppi Bruneau has filed another version of the bill that would allow Blanco's personal records to remain sealed but open up all other sections of her office.

The ultimate responsibility of keeping an open government resides with the voters, who have the final say in how government should operate. Cook contends it is the only way to ensure accountability.

"Any time the government tries to do business behind closed doors and knock out the sunshine, it is a threat to freedom and democracy and accountability," Cook says. "Never forget: these people work for us and they should answer to us."