Let the sun shine on public agencies

On July 4, 1966, Lyndon B. Johnson signed the first federal sunshine law in the United States. The text of the bill stated, “a democracy works best when people have all the information that the security of the nation will permit.”

President Johnson signed the Freedom of Information Act (FOIA) into law, but the law was authored by freedom of information champion John Moss twelve years earlier. Moss’ inspiration arose from the government’s secrecy during the Cold War era.

Following the Freedom of Information Act’s passage, open records laws spread across the states from Washington, D.C. to California. Behind each of these laws was the worthy premise that without access to information, the public cannot hold the government accountable.

{mosads}Unfortunately, experts say that public access to records is worse today than it was four years ago. Today, public officials are more likely to deny record requests, according to nearly half of the media experts surveyed in the “Forecasting Freedom of Information” study. In the same study, more than one-third of survey respondents (38 percent) said they were denied records more frequently at all levels of government in the last four years.

In addition, claimants filed lawsuits in every state in the country claiming that public officials did not produce public records within the statutorily required time period, or that they did not produce records at all. Government transparency issues are compounded in the nightly news as we hear about failures to retain public records at the highest levels of government.

The purpose of open records laws is to protect democracy by ensuring an open, transparent government. The reality is that most public offices want to comply with open records requests. They struggle for the budget to hire staff to respond to requests, gather documents, make copies, and redact requested documents.

Office conversations now happen over text message, instant message, and through new collaboration tools such as Slack and Facebook Workplace. These new communication channels are almost impossible for the harried county clerks to manage. Most clerks rely on manual systems to search for records, convert the record into a format that can be reviewed and produced. Cities and states struggle to even capture these kinds of records. For most government entities, the problem with transparency is not due to a government conspiracy to withhold information, it’s due to a lack of resources.

Technology has a beautiful way of making life easier. Technology can be used to capture text messages, instant messages and all the other channels we communicate over. It can make finding the right communication and producing that communication easy.

Technology can even automate the very manual redaction process most government entities use. Clerks who used to request emails from all users, print out those emails, send them to legal for redaction, and then fax those emails to the requester can now search within one application for multiple individual’s communications, make use of automatic redaction tools that automatically scan documents for information which would be exempt from disclosure under state law, and make the batch available to legal for a spot check. A process that once took days or weeks could take seconds. Imagine the budget impact!

Our democracy depends on an informed, educated citizenry and an open, transparent government. Technology can enable transparency by making it easier and less time-consuming for officials to respond to records requests.

March 11-17 is Sunshine Week, America’s annual celebration of government transparency, marked by hundreds of speeches, workshops, proclamations, performances, news stories and press releases nationwide. As the song so aptly proclaims, “Let the sunshine in!”

Bonnie Page is the general counsel at Smarsh, a technology company providing archiving solutions for compliance, e-discovery and risk management. She is an expert in the regulation of communications platforms as they apply to the financial services industry and government sector.