CASPER, Wyo. — Proposed changes to Wyoming’s public records law would go farther than most states in restricting access to government documents, according to a professor who studies the issue.
The draft revisions would block correspondence sent to individual members of elected bodies — even if it relates to public business. Another change would exempt from public disclosure advisory opinions, projections and other documents created during the deliberative process.
The net effect would be less public involvement in government, said Charles Davis, a University of Missouri professor who researches open records laws. Lobbyists and interest groups could correspond with city council and school board members without the public’s knowledge.
“It’s just such a tragically short-sighted legislative proposal,” he said.
The Wyoming Association of Municipalities proposed the revisions. Mark Harris, the group’s general counsel and legislative director, said the changes would clarify state law without harming public access. The revisions would allow government workers to offer candid recommendations to leaders before decisions have to be made.
“We just feel we need to have that ability to seek those opinions, to seek that advice, prior to the decisional process starting,” Harris said.
The Legislature’s Joint Judiciary Interim Committee voted last week to include the revisions in a draft bill that would make several other changes to Wyoming’s public records law. The committee is scheduled to study the legislation at its October meeting in Evanston.
One of the revisions would keep private emails and other correspondence sent to members of elected bodies, as long as the documents aren’t received by a majority of the members.
Current law defines a public record as one made by a municipality. In proposing the revision, Harris said his group wants to clarify whether one member of an elected body constitutes a municipality.
Keeping the public from emails sent to members of elected bodies would essentially give lobbyists and influence peddlers a private channel of communication with decision makers, said Davis, who teaches at the Missouri School of Journalism.
Most leaders wouldn’t use the exemption for nefarious purposes, he added. But Davis worries some elected officials would take advantage.
“You’ve effectively created a walkie-talkie channel,” he said. “You push the button and back and forth you go. And the public will never be the wiser.”
No public harm
Harris pointed out that phone calls, text messages and in-person meetings are already exempt from Wyoming’s public record law. Keeping emails private is no different in that regard, he said.
“I don’t think you can assume there is a harm to the public,” he said.
The municipalities association also wants to make private documents created during the deliberative process. These could include advisory opinions, recommendations and projections.
A 2010 Wyoming Supreme Court decision referred to the “deliberative process privilege” but did not specify whether it exists in the state. The municipalities group wants the Legislature to clarify the matter.
Harris said the exemption is only intended to apply to documents created during the “pre-decisional process.” Once the period passes, the documents would become available.
But Harris conceded the language offered to lawmakers could be interpreted more broadly. The proposal, for example, doesn’t specify when the pre-decisional process ends. If a governing body decides it ends at the time of a public hearing, citizens would have little opportunity to study documents before a decision.
The privilege would allow government employees to share candid opinions without worrying those recommendations will become public, Harris said. That would be useful, he explained, if a mayor seeks advice on what positions to eliminate if tax revenues decline.
“We just feel we need to have that ability to seek those opinions, to seek that advice … without concern that it will be disclosed,” Harris said.
If the Legislature enacts the privilege, Davis predicts local governments would err on the side of nondisclosure. The proposed language, he said, is subject to “a million different meanings.”
“I imagine the city council will tell you what it wants to tell you, when it wants to tell you,” he said.
Davis believes exemption raises fundamental questions about how government should work.
“It would certainly put Wyoming in a class of one in terms of states who close for scrutiny any part of what once was the democratic process,” he said.
No one has ever sought access to emails sent to Casper Councilman Keith Goodenough. But generally speaking, he believes the public should be able to review his correspondence related to government business.
“We are doing the citizens’ business, and we are making decisions for them, on behalf of them,” he said. “I just prefer to keep it as open as possible.”
Elected officials already face a public that’s highly suspicious of government actions. Blocking access to email and other correspondence would only exacerbate that skepticism.
“My attitude is it’s like a postcard,” Goodenough said. “You send it through the mail, and anybody along the way can read what is on it.”
Casper Mayor Paul Bertoglio has served on the city council for more than a decade. During all of that time, he said he’s only been lobbied by email a few times. Most of the time, people prefer face-to-face meetings.
The information that’s shared during those visits will ultimately become public at council work sessions, he added.
“I have not seen the concerns that everybody has that there is some dark sides going on in our conversations, that we are hiding the entity who is for or against something,” he said. * THEN WHY IS IT NECESSARY TO DO THIS IN THE FIRST PLACE? IF IT AIN’T BROKE, DON’T FIX IT! *
Bertoglio, who is the president of the Wyoming Association of Municipalities, said he strives to be as open as possible.
But in other states, total transparency has made it difficult for local government to conduct business, he said. *DIFFICULT, HOW? IN WHAT WAY? PLEASE EXPAND UPON THIS STATEMENT? NOT SUPPOSE TO BE EASIER FOR YOU, SUPPOSE TO BE OPEN TO THE CITIZENS!
“I expect to have my name in the paper,” he said. “It’s an expectation. There are individuals out there who want to talk to me and give their point of view, and they don’t want their names dragged through the media.