California First Amendment expert: Governments fight sunshine while spending soars

Spending at the federal, state and local government levels has soared in the last few decades. Are taxpayers getting their money’s worth?

The answer is too often obscured by resistance — at all levels of government — to records requests by members of the public who want information about how their government works. While politicians and bureaucrats disagree about many issues, it unfortunately seems that one thing they agree on is keeping members of the public in the dark as much as possible about government operations, how decisions are made, and how government money is spent. Secrecy, it seems, is something that has bipartisan support among politicians.

Not that any politician will come out and admit he or she believes in secrecy. If you had a dime for every time someone running for office proclaimed their commitment to “transparency,” you’d be rich. The problem is, the politicians and bureaucrats who know how to talk the talk about transparency don’t often walk the walk when it comes time to following open records and open meetings laws.

The laws are good. The federal Freedom of Information Act (‘‘FOIA”) starts with a strong presumption in favor of access to federal agency records, although a recent U.S. Supreme Court decision weakened FOIA. The California Public Records Act likewise declares that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” The California Supreme Court in recent years has put teeth in the CPRA with a series of pro-access decisions, holding in one of its rulings, “Openness in government is essential to the functioning of a democracy.”

Why is all of this important, and what’s the problem? It’s important because government has vast power over our lives, and taxes take a big bite out of people’s paychecks. Government money spent wisely and effectively keeps our country safe from foreign enemies like Vladimir Putin and criminals who would do us harm at home. The government can play a role in combating global warming, keeping workers safe on the job and putting out fires which, with global warming, pose an increasingly dire threat to California..

The problem comes when the government wastes our money. The Pentagon showers money on huge defense contractors with little or no oversight about spending or cost overruns. FOIA requests to the Department of Defense are commonly met with either lengthy delays or denials, and defense contractors often join the Pentagon in fighting against disclosure of even innocuous information about defense contracts.

When COVID-19 broke out, the federal government rushed hundreds of billions of dollars out the door. The relief effort was well-intentioned, but billions were wasted at the same time. When news agencies and the American Small Business League (ASBL) made FOIA requests to see where Paycheck Protection Program money went, the Small Business Administration refused to disclose the names and loan amounts of loan recipients until a judge ordered disclosure. When the information was released, it revealed that hundreds of billions of dollars went to large businesses, not the small businesses which the PPP was designed to rescue. The SBA’s Inspector General later found that a lot of the rescue money went to fraudsters. Lloyd Chapman, ASBL’s president, has had to file dozens of FOIA lawsuits to pry loose records the government should have released without a fight.

State and local governments are no better. Gov. Gavin Newsom has proposed a $286 billion budget for fiscal year 2022-23, but state agencies routinely resist disclosure of emails which might prove embarrassing to them or might reveal flawed programs or wasteful spending. And at both the state and local levels, politicians often text each other about important government business in an effort to hide their communications with lobbyists and others, even though the California Supreme Court has ruled that texts and emails dealing with government business must be disclosed even if they are on “private” phones.

The city of Fresno is not immune to the trend toward secrecy, either. When it was recently revealed that the city got scammed out of more than $600,000 in a phishing attack, Mayor Jerry Dyer seemed more concerned that someone may have leaked a public record about the scam than he was about the scam itself.

This month we celebrate National Sunshine Week, which serves as a reminder that only watchful and active citizens can keep government honest and monitor government operations and spending. Without vigorous enforcement of sunshine laws and access to information, democracies wither away.