Confidentiality vs. Transparency in Colorado -- A Court Decision
Government ethics policies sometimes clash. The most common clash
involving ethics commissions is with transparency laws.<br>
<br>
Like any government body, ethics commissions would prefer not to
discuss
many sorts of matters in public, both to protect the parties involved
and
because it is uncomfortable to discuss many ethics matters in public.
Because counsel is present during most such discussions, ECs (and their
lawyers) often feel that such discussions are privileged. There are
also often rules that require confidentiality, at least until probable
cause is found. And there are also often rules that require
confidentiality regarding the names of those who seek advisory opinions.<br>
<br>
In many states, these confidentiality rules override freedom of
information and open meetings laws. Investigations and pre-probable
cause meetings and hearings can be held in executive session or, as in
Connecticut, where the FOI administration has determined that such
meetings are not under the FOI’s jurisdiction, they are separate,
closed sessions rather than executive sessions. See these
CT FOI Commission decisions:<br>
<small><br>
<a class="moz-txt-link-freetext" href="http://www.state.ct.us/foi/2001fd/20011010/FIC2001-056.htm" target="”_blank”">http://www.state.ct.us/foi/2001fd/20011010/FIC2001-056.htm</a><br>
<a class="moz-txt-link-freetext" href="http://www.state.ct.us/foi/2004FD/20041027/FIC2003-449.htm" target="”_blank”">http://www.state.ct.us/foi/2004FD/20041027/FIC2003-449.htm</a><br>
<a class="moz-txt-link-freetext" href="http://www.state.ct.us/foi/2006FD/20060823/FIC2005-425.htm" target="”_blank”">http://www.state.ct.us/foi/2006FD/20060823/FIC2005-425.htm</a></small>
<br>
<br>
But keeping too much discussion confidential goes against the
important ethical value of transparency. Despite the fact that it is
easier to operate in secrecy, democracy requires that discussion and
information be public, unless there are clear reasons to keep them
confidential.<br>
<br>
According to <a href="http://coloradoindependent.com/36942/judge-colorado%E2%80%99s-top-ethic…; target="”_blank”">an
article in the Colorado Independent</a>, this week <a href="http://coloradoindependent.com/wp-content/uploads/2009/08/Order-to-Make…; target="”_blank”">a
decision in the case</a> Center for Independent Media (owner of the <span>Independent</span></span></span>) v.
<a href="http://www.colorado.gov/ethicscommission" target="”_blank”">Independent Ethics Commission of Colorado</a> (Denver District Court, Aug.
31, 2009) found that because the state's EC did not follow the
requirements for closing its public meetings, the tapes of their closed
sessions are not privileged. The requirement the EC failed to follow
was clear identification of the particular matters to be considered in
the closed meetings, including the number of the case and a generic
description of the complaint or request for advisory opinion being
considered.<br>
<br>
In other words, there must be a public record of what is going to be
discussed or what is actually discussed becomes a public record.<br>
<br>
More seriously, the court reached a conclusion opposite to that of the
CT FOI Commission: "with respect to the Commission’s
deliberations on ethics complaints, advisory opinions, letter rulings,
and position statements, there is no statutory basis for conducting
such discussions behind closed doors." The court put transparency ahead
of confidentiality.<br>
<br>
The court also concluded that attorney-client privilege provides only a
limited reason for closing a meeting, quoting a statutory provision
that authorizes "such a closure only when the discussion pertains to
'disputes involving the public body that are the subject of pending or
imminent court action.'" Such an action would have to be identified on
the record of the meeting.<br>
<br>
It is important for governments, not courts, to balance confidentiality
against transparency, where statutes or ordinances have not already
done this. Laws should be consciously made consistent, to clearly show the government's policy.<br>
<br>
As I wrote in <a href="http://www.cityethics.org/node/762" target="”_blank”">a recent
blog post</a>, I am increasingly unsympathetic to arguments for
confidentiality. Protecting innocent officials is a weak argument,
considering that freedom of speech rights allow people to attack
innocent officials all they want. Adjudicating openly in a neutral
forum is a far better way of handling a matter and providing innocent
officials with justice than personal attacks in newspapers and blogs.
Confidentiality should be as limited as possible, with emphasis put
instead on quickly dismissing frivolous complaints and complaints that
do not involve ethics code violations.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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