(Jon Margolis writes political columns for VTDigger.)
[A]s if with one firm voice, the journalistic and good-government communities of New England have proclaimed their unease over a recent Vermont Superior Court decision and the dire consequences that would ensue if that decision is not overturned on appeal.
Tempting though it would be to contradict the combined journalistic and good-government communities (what is more boring than respectability?), the facts require concluding that they are right.
Oh, not necessarily right about the law. That’s one of those semantic struggles, a quarrel over whether the precise wording of the statute means what Lawyer A says or what Lawyer B says.
What the combined journalistic/good-government communities are right about is that if the appeal fails, what one lawyer called “a huge loophole” would appear in Vermont’s Public Records Act.
Unless the Legislature closed it, a likely but not certain outcome.
Judge Robert Mello, who issued the decision under appeal, agreed that under his ruling state workers could “avoid valid public records requests merely by conducting work-related communications on private email and text messaging accounts.”
That was, he said, a “disturbing concern,” but “a matter for the Legislature, not the courts, to decide.”
Mello determined that the attorney general’s office did not have to examine the personal email accounts of nine state employees subject to a public records request because the statute “patently implies that a record must be in the custody or control of the agency to be subject to search or disclosure.”
So the objections of the news organizations (including the Vermont Journalism Trust, VTDigger.org’s publisher) and groups such as the Vermont chapter of the American Civil Liberties Union are reasonable. The public’s business is … the public’s business. If state workers can keep the public’s business secret by doing that business on personal email addresses, it isn’t just journalism that is diminished. It is democracy.
But while democracy is diminished when government is not transparent, it is also diminished when government is incompetent and ineffective, which it will be if the people who work in it cannot speak candidly to one another.
We the people have the right to know everything our government does. We need not know everything the government thought about doing but decided against, or every conversation that went into every decision.
If we do, the decisions are likely to be much worse as officials dumb themselves down lest they be embarrassed one day.
Consider the deputy secretary assigned to work up a new policy. She has an interesting but unconventional idea. Obviously, she should share it with colleagues, and email is a convenient way to do that.
But an email is a document, meaning it is a public record, meaning at some point the whole world might know about this idea, which (remember, it’s unconventional) might be foolish. So the deputy secretary, out of fear that she might one day be ridiculed, never offers it.
Pity. Maybe it was a great idea.
Or suppose the deputy secretary gets a copy of another proposal by a colleague. Let’s call this colleague Charlie.
Our deputy secretary thinks Charlie’s idea is really dumb. But she wouldn’t want to say so in public because either: (a) Charlie is a valued colleague who just had a bad day; (b) Charlie is a nincompoop but a nice enough guy who need not be insulted; or (c) Charlie is a vindictive lout who will seek revenge, and besides his uncle is the governor.
Our deputy secretary’s course is clear: Don’t write an assessment of Charlie’s idea. Not in an email or a text message or a slip of paper in the office. Instead she should tell other colleagues over the phone, or personally in their offices or – better yet – over a cup of coffee in a nearby cafe.
Or, depending on the time of day, over a more interesting libation. Some of the best policy is made in saloons.
This is what government workers used to do before these infernal emails were invented, which isn’t all that long ago. Officials would talk to one another, leaving no record until they intended to leave a record.
Not a bad idea. Much as respectable good-government types and journalists hate to acknowledge it, in both the private and public sectors the best plans, policies and processes often require officials to be — well, not so nice. Perhaps the recalcitrant (and obnoxious?) naysayer has to be cut out of the loop. Maybe two officials have to make a deal. Not the kind where money changes hands – in government, that would be corrupt – but where each agrees to support the other’s pet project.
Sure, it would be great to know all that, and good journalists will reveal some of it. But there is no law requiring public disclosure of all these dealings and deliberations.
State workers should do all their work on state equipment, using state systems. All that work would then be public record, and disputes like this one would be unnecessary.
If there is any evidence that state workers are doing something illegal, law enforcement can and should investigate, issuing subpoenas and compelling testimony. But (unlike mere foolishness) lawbreaking by state officials is quite rare, and democracy is both ill-served and unsustainable if policy or law assumes otherwise.
Meanwhile, let’s hope a real-life version of our fictional deputy secretary is secretly keeping a journal at home detailing which obnoxious naysayer was cut out of the loop and who made a deal with whom, all to be published at some future date. We can wait.
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