Equality before the law is a fundamental tenet of broadly liberal republican democracy. Yet under new draft legislation concerning “access to government records,” dated March 9 and sponsored by Senator Chris Hansen and Rep. Marc Snyder, some journalists would be more equal than others under Colorado law.
Getting government into the business of defining what is and what is not “news media,” as the draft legislation seeks to do, is a very dangerous game. As I remarked on Twitter, the measure “creates a caste system of government-privileged reporters and second-class citizens.”
Making some journalists more equal than others
As the editor of Colorado Newsline points out, his publication would be excluded from special consideration under the drafted language. And, ironically, the Colorado Freedom of Information Coalition also would be excluded. So too would Complete Colorado. The definition of “news media” consumes nearly two pages of Byzantine legalese.
Quoting from the summary, the measure defines different response times concerning Colorado Open Records Act (CORA) requests for “news media” (three days), other parties (seven days), and parties from out of state or who want “to use the records for a commercial purpose” (fourteen days). So now we have politicians trying to define not only what counts as “news media” but what counts as a “commercial purpose.” “Custodians” of public records also can extend the time frame, again depending on the status of the person making the request. Moreover, the fee for requesting information varies depending on one’s defined status. We should just call this the Animal Farm bill.
I very much sympathize with the central aim of the draft bill: to make public information more readily accessible to journalists. That is a worthy goal. All the time I hear journalists complain about information requests being unreasonably delayed or subject to unreasonable fees.
Such restrictions on public information are wrong. The government belongs to the people and is answerable to us. We cannot possibly hope to competently oversee government actions unless we have access to the information pertaining to what government agents are up to.
Journalists in particular heroically devote their careers to holding people in power accountable. In large part that means checking out the actions of political office holders and bureaucrats. No, journalists do not always get all the details of their stories right. No, they do not always overcome their own biases in reporting the news. Nevertheless, journalists play an essential role in a free society of keeping the public informed about public business. Any unnecessary government impediment to releasing public information is a slap in the face of democracy.
Yet the solution to this problem of access to public information cannot be for government to privilege certain people over others in granting that access. Any such effort is inherently unjust.
Public records belong to the public
One thing government can do to help alleviate the problem is simply to publish as much public information online as possible in a convenient format. We do live in the internet age, after all—yet governments often act like relics of the past century. No one has to request information already published online; they just have to go look at it. Yes, it would cost governments some money to process and publish that information. It would be worth it. I’m a fiscal conservative. But public provision of public information should be considered a basic governmental function.
Let us say, for sake of argument, that there is a substantial class of public information that should not be automatically published online for whatever reason, or that would be prohibitively expensive to publish in full. I’m not convinced of that—I’d have to evaluate the details—but for the moment let’s concede the possibility.
In that case, government needs to figure out a way to give equal access to requested public information to all comers. In no case should government be in the business of declaring that some people have greater access than others. Hence the problem with the draft legislation.
An excellent case can be made that, if people have to specially request specific information from government, then government should have to provide that information at no cost to the person making the request. Yes, this means taxpayers have to pick up the expenses. Again, I think that is appropriate. Such expenses should be seen as part of the costs of having a government.
The only problem that I then see is the possibility of, let us say, nuisance requests. We can imagine someone who has no genuine interest in publishing or evaluating public information who is just trying to make life miserable for government employees and to ring up costs for taxpayers in the process.
One answer would be simply to accept some nuisance requests as part of the costs of maintaining a government. At least the people making the nuisance requests could potentially be publicly named and shamed by private parties.
Letting politicians and bureaucrats decide what is a nuisance request and what is a legitimate request is fraught. We can easily imagine bureaucrats trying to avoid public scrutiny by throwing requests they don’t like into the “nuisance” pile. Often what counts as a nuisance is in the eye of the beholder. One person’s nuisance is another person’s important investigative reporting.
Assuming that there’s some information that government should not automatically publish online, I would be fine with government charging a token fee per request, just to discourage nuisance requests. But I’m not sure that would do much good, as some people filing nuisance requests easily would be able to cover the costs. On the other side, many serious news operations operate on a very tight budget.
Perhaps government could define nuisance requests very broadly and charge fees only for those. As a first stab, language along these lines might work: “If a party requesting information has previously requested information from the same office, but has not published that information or an analysis of it, then government may charge a fee for processing subsequent requests.” Again, though, I’m not sure that would do much good. Someone filing nuisance requests easily could just drop the unprocessed files online and say, “See, look, I published them!” I might be open to residency requirements for no-fee access; Colorado residents are the ones paying the bills and the ones most directly affected by Colorado governments.
Considering all of this, here are the guidelines I recommend. 1) Government should automatically publish as much public information online as possible. 2) If government does not automatically publish public information, others may request it (subject to reasonable redaction for privacy and security) at no cost to the person making the request, with everyone subject to the same rules. That approach keeps politicians out of the business of deciding which requests for public information are favored and which are not. As a compromise, if government wants to charge fees for nuisance requests, broadly defined, I think we can live with that. If governments insist on charging fees across the board—again, I don’t think they should—at least they should set the same rules for all comers. But in no case should government try to privilege certain Coloradans over others in granting access. That’s just wrong.
If this bill goes forward as drafted, it will undermine journalistic independence from government and further inflame public polarization regarding news media. No journalist who endorses this insidious bill has any moral claim to the title. Our equal rights under the law do not end where public information begins.
Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.
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