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For Government, Trust Comes With Transparency

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By Reed Anfinson, Publisher

In every community, school district, and county in Minnesota we elect fellow citizens to represent us trusting our financial security, public health, safety, education, and quality of life to their best judgement. We don’t give them this authority and trust without some conditions.

We have two laws in our state that protect citizens’ right to be informed about the actions of their local governments: The Minnesota Open Meeting Law (OML) and the Minnesota Data Practices Act (DPA.) These laws start with the premise that citizens have a right to attend public body meetings and have access to the documents that inform their decisions.

If only these rights were always honored by those serving in public office.

We’ve sat through more than three thousand public meetings in our career as a journalist. Our experiences in covering these meetings have taught us that public trust and government transparency go together.

If citizens sense that something is being done behind closed doors and behind their backs, they will air their suspicions to others. Distrust spreads. As it does, public officials lose the cooperation essential to their efforts to improve their communities.

Citizens have always had a fundamental mistrust of government. It was strong at the founding of the country. It is why we have three branches of government – legislative, executive, and judicial. Each is a check on the other. It is why we have what is known as the Fourth Estate – the press. It is why the rights of the press are specifically guaranteed in the First Amendment. Our role and duty are to hold those in power accountable.

When lawmakers, whether at the state or local level, pass laws to protect citizens, they receive broad public support. When a law enforcement officer pulls someone over for speeding, he enforces traffic laws and makes our roads safer. When a county attorney prosecutes a person for going 100 mph and endangering the public, he is ensuring those who violate the law face consequences. When a judge sentences the offender, she imposes the consequence of breaking the law.

In all these cases, the public supports their efforts. They are backed by their colleagues.

But it is a very lonely job when a journalist asks public officials to follow the Minnesota Open Meeting Law and the Data Practices Act. Rather than receiving support from those who have sworn oaths to uphold the law, we are often seen as an inconvenient and annoying adversary. Their support coalesces around the public official or body the subject of a newspaper’s attempt to gather information.

It pits us against public officials with whom we would much rather be building mutually beneficial relationships that serve citizens’ information needs and rights.

We recognize there are times when public bodies have a legitimate right to close a meeting. It isn’t just a right allowed under state law but a requirement. At times, a closed meeting is needed to best serve the public interest.

When public bodies discuss negotiating strategies with a labor union, do employee evaluations, bid on a piece of property, or plan their defense against legal action, they can meet privately. However, there are rules for closing a meeting.

Minnesota State Statute says, “Before closing a meeting, a public body shall state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed.”

At times, a public body will feel the need to go into closed session for issues they say involve an attorney-client privilege issue.

Based on “a series of appellate court decisions, it’s clear that meetings may be closed for under the attorney-client exception only to discuss ‘pending litigation (which is litigation that’s already underway), or imminently threatened litigation,” Minnesota Newspaper Association and First Amendment attorney Mark Anfinson says.

“Furthermore, there’s a Minnesota Court of Appeals decision interpreting this provision that requires government bodies to furnish some reasonable amount of detail about the subject of the closed meeting,” he writes.

In an article on OML, the Minnesota House Research office writes, “In order to close a meeting under the attorney-client privilege exception, the governing body must give a particularized statement describing the subject to be discussed. A general statement that the meeting is being closed to discuss pending or threatened litigation is not sufficient.”

Failing to follow the law can sometimes be done out of ignorance of the requirements. Many public bodies are unfamiliar with the process, having rarely been challenged to comply. At other times, their silence is intentional. In small towns, it is easy for public officials to become gatekeepers who jealously guard the flow of information to the public, abridging the rights and freedoms of citizens. Some think they are above the law, developing an attitude of, “We know what’s best for you, and we don’t need you meddling in our deliberations.”

For the most part, citizens can trust their elected officials to be honest and upfront with them. We appreciate the openness of our local units of government, their hard work that is often unappreciated, and the quality of those who serve.

Still, their quality is also revealed when required to be forthcoming with the public on sensitive issues.

The public has a right to hear the deliberations of public bodies as they discuss issues. It has a right to know the reasoning behind decisions. It has a right to examine the documents upon which decisions are based. Only through these observations can they judge the competency of those they have elected to office.

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