By Richard C. Gagliuso
During Sunshine Week, we remember and celebrate our ability to keep track of what our public officials are up to, through our broad right of access to governmental records and proceedings.
Like many of the rights we enjoy as Americans, this is one we would do well to keep in mind continually and not just once a year.
Our right to look at the records of our government at every level, and to attend the meetings of public bodies, derives from both constitutional and common law principles. Since the mid-1960s, however, the Freedom of Information Act has governed our right of access on the federal level, while New Hampshire’s counterpart, the Right-to-Know Law, has been in place since the early 1970s.
Today all states have some version of a “sunshine law,” guaranteeing the public’s right of access to state and local governmental records and proceedings.
We must note that, like virtually all the rights we enjoy as Americans, our right to watch what’s going on with our government is not absolute and unqualified. There is a natural and unavoidable tension between the need to keep watch over government and the need to let public officials do their jobs efficiently and effectively. No one would argue, for example, that the public should have immediate and unfettered access to the records and meetings of agencies charged with protecting our national security.
Accordingly, exceptions to the general rule in favor of access are enumerated in both the Freedom of Information Act and the Right-to-Know Law, and the nature and scope of these exceptions is the battleground where issues of access are contested and litigated.
I have had the privilege of representing media interests and enforcing these laws for over 30 years. While rights of access are, for the most part, shared equally by the public and the press, it is fair to say that the media exercise these rights much more frequently than most citizens. And so I have found myself on the front lines of these contests on a regular basis, and this experience has led to a few observations that I am confident in reporting.
I am convinced that most public officials at both the state level and the municipal level are generally cognizant of their responsibilities under the Right-to-Know Law. For the most part, government officials understand the importance of open and transparent government and endeavor to operate in this environment.
There are still too many occasions, however, where the interests of transparency seem to take a back seat to the exigencies of governing. In some instances, the failure to comply with the Right-to-Know Law appears to be a matter of ignorance of, or confusion over, its technical requirements. This is particularly true where officials in smaller New Hampshire towns do not have the consistent benefit of counsel to advise them.
It must be acknowledged, however, that governing is generally easier when the governed are not paying attention. Decision-making without scrutiny or resistance is always a smoother process. Yet, the smooth road does not necessarily lead to the best decisions, and so our laws and public policies have struck the critical balance in favor of openness and transparency.
All of those who serve us in an official capacity must remember this: Your records are not yours – they belong to all of us. And the business you are doing is not your business, it is ours. Accordingly, in the interest of sound government, what you are doing must be exposed to the light and not shrouded in darkness.
Richard C. Gagliuso is a New England First Amendment Coalition board member and an attorney with Bernstein Shur in Manchester. Gagliuso frequently represents news media in right-to-know- cases.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.
Major Supporters of NEFAC include the Hearst Connecticut Media Group, the Barr Foundation, The Providence Journal Charitable Legacy Fund, The Robertson Foundation, The Boston Globe, Boston University and WBUR-Boston.