Bill Would Make FOIA More Explicit

July 19, 2016

Inside Insight

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meeting in progress

Thanks to a high court ruling, government entities can conveniently forget to say what’s on the agenda

Since we first went live in 2010, our reporters have crashed more public meetings than we can count.

Over the last two or three years, however, we’ve seen more and more official meetings take place that should have been public but weren’t. That makes it pretty tough for a reporter – or an ordinary engaged citizen – to figure out what politicians are doing with public money and the authority of the state. We’ve seen the President Pro Tem of the Senate summon an ad hoc committee and then have it meet behind closed doors. We’ve seen the public shut out of a State House debate on transparency and ethics reform – no joke there. We’ve seen state officials meet to discuss the allocation of millions of public dollars, and then usher reporters out of the room as soon as the substance of the meeting had begun. We’ve seen – or rather we haven’t seen, but we’ve known about – lawmakers approving utility rate-hikes in secret meetings. We’ve seen public officials refuse to hand over the agendas of public meetings and base that refusal on the attorney-client privilege.

Two years ago, the state Supreme Court – in a decision that endangered decades’ worth of work toward greater transparency in government – ruled that public bodies need not post agendas before public meetings. “We conclude FOIA’s notice statute does not require an agenda to be issued for a regularly scheduled meeting,” the court concluded in an interpretation of the state’s Freedom of Information law, “and FOIA contains no prohibition on the amendment of an agenda for a regularly scheduled meeting.”

What that means in many cases is that public officials can neglect to announce that some important topic will be dealt with at the next meeting – and so, in effect, turn a public meeting into a secret one. If one of our reporters, for instance, sees that an upcoming meeting of some government agency won’t deal with anything of great importance, he or she probably won’t go. We are a small organization with limited resources; we can’t send reporters to every meeting in Columbia.

But suppose agency officials decide to place a major regulation proposal or outlay of public funds on the agenda . . . Conveniently, the agency will have avoided at least one media report.

In response to the ruling, last year’s S.11 required agendas to be posted (except for emergency meetings) and prevented public bodies from adding items to the agenda within 24 hours of the meeting (unless two/thirds of members present and voting decide to), but exempted legislative committees and all subcommittees.

A bill considered by the legislature in 2016 – H.3192 – sought to put teeth (at least a couple of teeth, anyway) back into the law. It would have required agendas to be posted on a website if there is one, and closed the loophole allowing legislative committees and legislative subcommittees to add items to a meeting agenda without 24-hour notice to the public. It did, however, keep the exemption for non-legislative subcommittees.

The bill passed the House almost unanimously. We won’t propose to tells the legislature what it should or shouldn’t do next year. But the next time a large government entity is poised to do something big, we’d sure like to know about it beforehand.