From bad bills come bad laws: A proactive prescription for restoring trust in government and democracy

Open government reforms in states improve democracy and create economic benefits.

When the John S. and James L. Knight Foundation announced in March a $300 million investment to improve the quality of local news, it made an important first step to restore trust in a key component of our society.

The funding decision was spurred by a recent report from the Knight Commission on Trust, Media and Democracy, which explored the disconnect between the public, the press and our public institutions, notably government.

Its conclusion: We are in a watershed moment and must make reforms in our media and civic infrastructure.

The report advances a series of recommendations aimed at the news media, civic educators and the public. And while the report urges “every government official to be open and transparent,” what is missing is a list of reforms required in our federal, state and local governments to help restore trust.

Instructing government to be transparent is not enough. Restoring trust in democracy through our public institutions must include reforms in all branches to ensure openness, access and accountability.

Knight addresses one area of needed reforms by granting $10 million to the Reporters Committee for the Freedom of the Press to increase litigation efforts to defend access to public information. This is an important and welcome investment to ensure our First Amendment rights.

Even so, building trust in government requires a strong offense as well as a strong defense. The National Freedom of Information Coalition and its state coalitions support a multi-faceted approach beyond reactionary litigation to usher in needed reforms.

Most litigation challenges bad laws that lead to bad policies. But before they were bad laws, they were bad bills. A proactive, holistic approach to needed legislative and policy reforms can prevent these bad laws and poor public policies from being created in the first place.

It’s a daunting task to enact reforms that promote trust in our public institutions in an era where more and more governments, particularly state legislatures, attempt to undermine existing open government precedent, making it harder for journalists and the public to monitor and report violations that diminish access and accountability.

But there are areas that have shown results to increase transparency and accountability of our public institutions and should be instilled in all public institutions across the nation:

· Legislative tracking. Bad bills can be identified and fought early. Yet this is not an easy task. Many state legislatures can bury amendments that dismantle existing open government laws or increase exemptions to existing laws in the text of unrelated bills — hiding them from the public until it’s too late.

· Compliance enforcement. State and local governments across the nation inconsistently comply with their open government laws. Sometimes it’s lack of training and education. Other times it’s intentional. Enforcement of existing open government laws is critical to discourage violations. Yet violators are rarely charged and when they are, punishment is usually a slap on the wrist.

· Formal appeals processes. Some states don’t have an appeals process when a record is denied, leaving the petitioner no option but to sue, which creates a financial burden not only on the requestor, but also the taxpayer. Independent state open records ombudspersons are a way some states combat this issue. Fee shifting, where the losing government agency pays the legal fees of the prevailing petitioner is another.

· Technology solutions. Open data and online request portals readily provide public access to public records, establish or advance professional standards, and help create best practices within executive branch agencies.

Without public oversight, without creating more professionalism in administering state open government laws and policies, and without an internal culture to punish violators, there will always be inevitable situations where a bad bill is passed, or when a public agency continues to deny access in violation of their state open government laws. And the only option is to sue.

Still, through enacting reforms in all branches of state and local governments, and proactively monitoring and educating the public (and officials of their responsibilities), we can help restore trust in our democracy through restoring trust in our public institutions.

Daniel Bevarly is executive director of the National Freedom of Information Coalition, a nonprofit, nonpartisan organization that promotes press freedom and legislative and administrative reforms that ensure open, transparent and accessible state and local governments. Reach him at dbevarly@nfoic.org.