Pushing back at growing shadows

We call them “sunshine laws,” but it's often the shadows that matter most.

And by shadows I mean the exemptions lawmakers carved into those laws to allow certain records to be kept confidential and certain issues to be discussed behind closed doors. Some confidentiality is necessary, clearly, but I worry when I see the shadows slowly growing.

Last month, the appointed state Environmental Protection Commission denied an appeal by the elected Poweshiek County Board of Supervisors, which sought to stop construction of a hog confinement operation. The EPC reaffirmed its decision in a telephonic meeting July 26, during which it met in closed session.

It did so on the advice of the Iowa Attorney General's Office, which says the county's appeal amounts to litigation. Under Iowa law, meetings can be closed to discuss litigation that is in progress or is “imminent.” The appeal was administrative and was not a court proceeding, where litigating usually happens. But because it looks like legal action, with briefs and lawyers, etc., the AG says it's litigation. Case, and meeting, closed.

Will this advice provide more legal cover for skittish state boards or local officials seeking to close doors? Eric Tabor, the attorney general's chief of staff, said he can't address hypotheticals but insists the advice is very narrow and is nothing new.

But I worry that another shadow is growing. Kathleen Richardson, who leads the Iowa Freedom of Information Council, said including administrative proceedings under litigation does appear to expand an already broad exemption.

And no matter how the AG's office sees its advice, the final call is often subject to old-fashioned litigation.

Just this month, we found out, according to the Iowa Supreme Court, that an exemption allowing government to keep personnel records secret means that parents in Atlantic may never know what punishment was given to school staff who strip-searched students. It also ruled that an exemption allowing secrecy if disclosure would lead to lost federal funds means the University of Iowa doesn't have to release records pertaining to a sexual assault on its campus. On a brighter note, justices found that an exemption shielding trade secrets did not extend to a list of production costs for films bankrolled by scandal-plagued tax credits. In that case, the Attorney General's office argued on behalf of the state for public disclosure.

Nearly 20 years ago, the Attorney General's Office issued a broad open meetings opinion that included a very narrow exemption allowing advisory panels appointed by superintendents to close their meetings. But the impact was anything but narrow this year for students at Polk Elementary School.

It's our government, paid for with our money. We shouldn't be left in the dark.