As Freedom of Information Day approaches, three stories show the limits of openness

Wednesday is national Freedom of Information Day. As if on cue, three recent stories show the limitations of that freedom when it comes to government.

On Friday, Dolan Media special projects editor Bill Clements lambasted representatives of the Met Council, the U, the cities of St. Paul and Minneapolis and Hennepin and Ramsey counties for keeping him from observing Central Corridor light-rail transit negotiations.

Unlike Minnesota Public Radio, the U has decided against suing over how the Central Corridor will run through its territory, instead opting for talks. Clements reports that Hennepin County Commissioner Peter McLaughlin and Ramsey County Commissioner Jim McDonough have been doing the Met Council’s heavy lifting with the U.

Writes Clements:

Leaders from both of the Twin Cities and two large and powerful public bodies (both of which get a boatload of public dollars) have been negotiating decisions about the largest public works project in the history of the state — a public transit train to be built on public roadways — and the public has had no witness to, not to mention influence upon, these dealings.

That ain’t right — and I write that not just as a journalist, but more importantly as a tax-paying citizen of Minnesota.

Clements acknowledges Minnesota’s Open Meetings law won’t crack open the talks, because the negotiating team doesn’t constitute a quorum of any governing body. Presumably, the Met Council and the U will hold public meetings — with a public vote — if a plan is hammered out.

Clements writes that “I’m ashamed of myself and ashamed of my profession,” because he’s “the first journalist who’s asked to cover the negotiations.”

Though I’m not convinced Clements is really ashamed of himself, I appreciate any journalist trying to bang down a door. But … should Clements be in the room when McLaughlin, McDonough and the U’s rep are haggling?

The journalist in me would love it, but (at the risk of embarrassing my profession further), the taxpayer in me is not so sure. It’s hard to see how true negotiation would happen in such a circumstance, and negotiation is preferable to lawsuit.  The Open Meetings law seems to recognize that, deferring sunshine to the meetings where decision-making bodies decide.

The problem, of course, is that the Met Council and Board of Regents open meetings become rubber stamps, with little or no public discussion. That seems to be the case for the Iron Range Resources and Rehabilitation Board (IRRRB), reports Mesabi Daily News legislative correspondent Jon Collins.

Unfortunately, the Mesabi Daily News’ information isn’t free — you have to shell out $80 for a 20-week online subscription — so I can’t link to more than a two-paragraph stub.  But here’s the short version:

The IRRRB (“ the only state agency run mostly by legislators,” Collins writes) gathers information, sometimes about private businesses, and conducts “frank discussions” in five “liaison groups” made up mostly of legislators. The groups lack quorums and don’t make decisions; “No notes are taken, no agendas are disclosed and the public is not welcome,” Collins notes.

And when the action gets to the full board? Issues “seem to fly through with relatively little debate and discussion,” citizen activists say.

Collins notes that current DFL gubernatorial candidate Tom Rukavina came up with the liaison-group idea, and the IRRRB has sought advice from the Minnesota Attorney General’s office about legality. That advice, naturally, is confidential under attorney-client privilege.

But a state official and Hamline Law Prof. David Schultz argue that if IRRRB subgroups are having non-public discussions leading toward the group’s final position, the liaison meetings should be open — and of course, recorded.

Are the IRRRB rump groups all that different — philosophically if not legally — from the powers negotiating a Central Corridor deal? Is there a difference when it’s one governmental body haggling with itself compared to governmental bodies haggling with each other?

Then there’s a question of whether lawyers know how to keep their own meetings legal. The Pioneer Press’ Frederick Melo has done yeoman’s work covering the hiring of a new state chief appellate public defender. David Merchant has “scant” experience yet was chosen over several in-house candidates.

Pissed-off p.d.s who were watching the selection meeting like hawks say the governing board violated open meetings laws by coalescing around Merchant in private. As evidence, they cite the fact that four of seven board members literally went into a back room at various times, just before taking the barely discussed climactic vote. One board member says the furtive kibbitzing was to discuss “whether or not we could close that portion of the meeting where there was discussion of personnel.”

I’m not a lawyer, but that one doesn’t pass the smell test. Yes, there are discussions that can close an open meeting (pending litigation, for example), but discussing whether a meeting can be closed seems like something that should be, well, open.

Melo notes that prior to Merchant’s unanimous selection, board members signaled their first choices via paper ballot, but “it was impossible to tell which board member had written what name on each piece of paper.” This may constitute an illegal secret poll, he writes, though the board argues the voting was done in public and “no one asked us” to reveal who voted for whom.

The public defenders’ union has asked the board for application materials and minutes from the Feb. 11 meeting. Given the legal skills of all involved, it will be interesting to see if new case law will be made. Which of these cases cross the line in your opinion? Comments welcome.

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Comments (2)

  1. Submitted by Josh Williams on 03/15/2010 - 10:02 am.

    really don’t have the knowledge to speak on the IRRRB. But the Central Corridor negotiations don’t bother me. It is relatively easy for anyone, reporter or otherwise, to figure what the issues at stake in those negotiations are, and what the positions of the two main parties are. Keeping those negotiations closed allows all to speak freely and greatly increases the chances of eventual resolution (and thereby avoiding a lawsuit).

    As far as the choice of Merchant as the new chief p.d., it all seems a little fishy. Perhaps he was a great candidate, but there are a number of reasons to question the choice. By holding backroom discussions of a nature, that (if the content was indeed as claimed) from a common-sense standpoint would not seem to require closure of a public meeting, the board only added to the suspicion that something untoward occurred… and perhaps also invited a lawsuit.

  2. Submitted by Paul Udstrand on 03/15/2010 - 11:48 am.

    //The Open Meetings law seems to recognize that, deferring sunshine to when the decision-making bodies decide.

    Look, you either believe in Democracy or you don’t. This is business, the people’s business, it’s not national security. Most of the time no one’s gonna show up anyways. Secret closed door meetings is how the Met crams things like stadiums down everyone’s throat. I’ve had enough of that. It’s illogical to assume that a secreted meeting will necessarily produce a better outcome than a lawsuit. We need good policy, not policy making.

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