A fundamental tenet of the Washington state Public Records Act, the federal Freedom of Information Act and all other open government laws, is that a government does not discriminate based on the identity of the requester.
Even if this was not true, because with the Internet, once something is public there is no way to stop it from getting into the hands of whomever wants it. This includes the hands of criminals and terrorists.
So when you ask whether it is in the public’s interest to know, you have to assume it is in the public’s interest for every single member of the public to know.
This is one reason why almost all open government laws have exemptions — times when the government says for these good reasons the public is better served by the government keeping confidences and secrets.
When is it in the public’s interest not to know?
For wise management of taxpayer dollars.
For wise administration of government.
And sometimes for protection of private commercial interests (e.g., trade secrets).
But if the public isn’t allowed to know something, the public gets suspicious.
Open government laws are meant to build trust.
To combat suspicion and mistrust, governments need to be transparent why it is not in the public’s interest to know. Governments also have a responsibility to keep only those secrets that actually benefit the public’s interest, not simply rely on technical exemptions.
And hiding mistakes or protecting public employees from embarrassment about work-related conduct is never a good reason — even when an exemption may apply.
There also needs to be checks and balances.
In Washington state, the state auditor reviews agency compliance with open government laws. The public can also seek input from the open government ombudsman in the Attorney General’s Office. (Tim Ford’s number is 360-586-4802).
Finally, there is the additional check a succeeding administration. Elected officials without any involvement are in a unique position of controlling claims of secrecy and can — and should — disclose any secrets that are not in the public interest to maintain.
Sometimes, like with the torture memos recently released by the Obama administration, this creates a conflict — the conflict that led George
Will on ABC’s This Week (4/19/09) to note, “The problem with transparency is that it’s transparent for the terrorists as well.”
President Obama struck the right balance by releasing the torture memos because keeping that particular “secret” would have been devastating to public trust.
It may be that terrorists will now be better prepared for these — now banned — interrogation techniques. But sometimes government has to tell the terrorists so it can also tell the public.
That is a price of living in a free society.
Ramsey Ramerman is an attorney in the Seattle law firm of Foster Pepper PLLC. He teaches public employees about the Public Records Act and writes a blog at www.localopengovernment.com. He can be reached at firstname.lastname@example.org.