Senator Gard is attempting to stiffen the public access laws with SB 232, primarily through the assessment of civil penalties of up to $1,000 for violations of the public access laws and through mandating that judges and the public access counselor review withheld or redacted records.

There is a section in here that highlights nicely the bind public officials are in with respect to public records.

Sec. 9.5. (a) In addition to any other civil or criminal penalty imposed, if an officer or employee of a public agency knowingly or intentionally:
(1) denies or interferes with a person’s request for inspection or copying of a public record if:
(A) the person’s request meets the requirements of this chapter; and
(B) the record is subject to disclosure by law;
(2) charges a copying fee that exceeds the amount permitted by this chapter; or
(3) discloses without authorization or fails to protect information classified as confidential by state statute;
a court may impose a civil penalty under subsection (b).

Got that? A public official faces a fine if he or she improperly denies a public records request but also faces a fine if he or she improperly discloses a confidential record. It is not always crystal clear which category a document falls under. And if a citizen makes a kitchen sink document request, asking for piles of documents, detecting the confidential record is going to be like detecting the needle in the haystack.

Another wrinkle is that if records are redacted, a judge is required to review public records “in camera” (usually, in his chambers, outside of the presence of the parties) if the records are redacted and a complaint is filed alleging that the records were redacted improperly. I am sure judges will appreciate mountains of paperwork to sift through, comparing the originals to the redacted versions to determine the propriety of the redaction.

Similarly, when a formal complaint is filed with the public access counselor, the public agency would be charged with turning the records over to the public access counselor for review to determine if the records were properly redacted or withheld. Along with the records, the public agency is charged with providing an inspection index that:

(i) gives the title or name of each document, or any part of the document, claimed to be exempt from disclosure;
(ii) provides a description of each document that is general enough to explain the exemptions without compromising the alleged reason for the exemption from disclosure;
(iii) lists the reasons that each document, or any part of the document, is alleged to be exempt from disclosure; and
(iv) fully explains why the alleged reason for exemption from disclosure applies to each document.

I am all for public access by citizens. It is an important part of democracy, but here is the problem. It is dead simple to write a public records request that calls for the disclosure of 15,000 pages of documents or more; requiring no real effort on the part of a citizen who maybe has an axe to grind with the public agency. In response, the public agency has to devote a non-trivial level of resources to finding the documents, sorting through them to determine which ones are required to be withheld, which ones are permitted to be withheld, and which ones are required to be disclosed. Now, the hypothetical axe grinding citizen is not going to be satisfied with any level of disclosure; so he or she spends an hour or two writing a formal complaint to the public access counselor. Now, the public agency is required to go through the thousands of pages of documents and create a privilege index for them. Next up, the aggrieved citizen cuts and pastes his or her complaint to the public access counselor and turns it into a complaint with the court.

Maybe it is just the nature of the beast. Democracy is wasteful and expensive at times. But it seems that, if we are devoted to the idea of streamlining local government and slashing budgets; perhaps a better mechanism is in order to preserve transparency while restraining the ability of a handful of disgruntled citizens to tie up significant taxpayer resources and increase burdens on local government.

I don’t suppose the State wants to fund a public access coordinator for each unit of government whose job it is to track down all the requested documents, redact it appropriately, and do all the indexing when the time comes? Didn’t think so.