Keeping the California government honest requires transparency
Spending at the federal, state and local levels has exploded over the past few decades. Are taxpayers getting their money’s worth?
The answer is too often clouded by resistance – at all levels of government – to requests for documents by members of the public who want information about how their government works. While politicians and bureaucrats disagree on many issues, unfortunately it seems that one thing they agree on is to keep members of the public in the dark as much as possible about government operations, how decisions are made and how government money is spent. The secret, it seems, is something that enjoys bipartisan support among politicians.
No politician will come out and admit that he or she believes in secrecy. If you had a dime for every time a candidate for office proclaims their commitment to “transparency,” you’d be rich. The problem is that politicians and bureaucrats who know how to talk about transparency often fall short when it comes to following open records and open meeting laws.
The laws are good. The federal Freedom of Information Act (“FOIA”) begins with a strong presumption in favor of access to federal agency records, although a recent US Supreme Court decision has weakened FOIA. the California Public Records Act also states that “access to information concerning the conduct of the affairs of the people is a fundamental and necessary right of every person in this State”. The California Supreme Court in recent years has put some teeth into the CPRA with a series of pro-access rulings, holding in one of its rulings, “Openness to government is essential to the functioning of a democracy.
Why is all this important and what is the problem? This is important because the government has vast power over our lives and taxes weigh heavily on people’s paychecks. Government money spent wisely and efficiently protects our country from foreign enemies like Vladimir Putin and criminals who would harm us at home. The government can play a role in fighting global warming, keeping workers safe on the job and putting out the fires that, with global warming, pose an increasingly serious threat to California.
The problem arises when the government wastes our money. The Pentagon is pouring money into huge defense contractors with little or no control over spending or cost overruns. FOIA requests to the Department of Defense typically encounter long delays or denials, and defense contractors often join the Pentagon in fighting the disclosure of even innocuous defense contract information.
When COVID-19 hit, the federal government poured in hundreds of billions of dollars. The relief effort was well-intentioned, but billions were wasted at the same time. When news organizations and the American Small Business League (ASBL) asked the FOIA to find out where the Paycheck Protection Program money was going, the Small Business Administration refused to release the names and amounts of the recipient loans until a judge orders disclosure. When the information was released, it revealed that hundreds of billions of dollars had gone to big business, not the small businesses the PPP was supposed to save. The SBA inspector general later discovered that much of the bailout money had gone to fraudsters. Lloyd Chapman, president of the non-profit organization, had to file dozens of FOIA lawsuits to extract documents the government should have released without a fight.
State and local governments are no better. Governor Gavin Newsom has proposed a $286 billion budget for the 2022-23 fiscal year, but state agencies routinely resist releasing emails that could prove embarrassing to them or reveal flawed programs or unnecessary expense. And at the state and local level, politicians often text each other about important government business in an attempt to hide their communications with lobbyists and others, even though the California Supreme Court has ruled. ruled that texts and emails dealing with government business must be released even if they are on “private” phones.
The city of Fresno is also not immune to the trend of secrecy. When it was recently revealed that the city had been cheated out of more than $600,000 in a phishing attack, Mayor Jerry Dyer seemed more concerned that someone may have leaked a public record on the scam than on the scam itself.
This month we celebrate National Sun Week, a reminder that only vigilant and active citizens can maintain the honesty of government and monitor government operations and spending. Without vigorous enforcement of sunshine and access to information laws, democracies wither away.
Karl Olson is a San Francisco attorney specializing in California Public Records Act and Freedom of Information Act litigation.