State Sen. Robert Adley has a history of grandstanding, and his signature bill this session concerns (yet again) opening up records in state government. While it had its good and bad points and would bring some benefits but create some costs, it also lent itself to use of big-government advocates such as Adley as a potential weapons against smaller and more efficient government in Louisiana. And now, reformers may have to suffer four more years of similar behavior.
SB 57 would have removed from many executive branch agencies, and some of it from the governor, chief of staff, and executive counsel, protection from disclosure “any records having been used, being in use, possessed, or retained for use by the governor in the usual course of the duties and business of his office that relate to the deliberative process of the governor, intra-office communications of the governor and his internal staff, the governor's security and schedule, or communications with or the security and schedule of the governor's spouse or children.” It would have created perhaps the most transparency involving interactions between a governor and the rest of the executive branch of any state in the country.
In some ways, this approach comports more to the historical open-records philosophy in Louisiana, which was to assume everything was open to which exceptions existed based upon origins of the communication.
But the 2009 change to this grafted on the concept of the notion of content-based exceptions, defined as to where communication was in the decision-making process, to that point not really part of Louisiana jurisprudence. As such, this would create much indeterminacy in the actual scope and coverage of the law, and thereby judicial decisions would have to become the ultimate arbiter of the exact limits placed by the new law. As a result, the change could either broaden access, with the removal of location limits of the communication, which prior to it were considerable, or actually decrease it, if courts took a very expansive view of the state’s ability to shield things based upon the new content guidelines.
Adley’s bill seeking to remove the “deliberative process” standard and other associated items would have kicked the prop out of much protection at all by eliminating the major content-definer. Whether that is a good thing is a policy question. Discretion will be the better part of valor for future administrations on this course, and the reduced candor and options presented to decision-makers almost certainly will have a negative impact on the quality of policy-making. But the public may be willing to pay that price to have greater openness.
Yet regrettably the debate over this measure focused not on this most important issue, but instead became appropriated for use as a battering ram by politicians who care more about scoring political points. Worse, it got adopted as a tool to stifle privatization in state government. Adley manages to reside in both camps.
He has a long two-faced record on the transparency issue, starting with his silence on cozy no-bid contracts his gas management company has gotten from an association of local governments over which its parent he has power as a state senator that, while contracted legally, would seem to be unlikely to have come his way had he not held this position of power. Adley also helped kill ethics reform in 2007 (passed the next year) that would have brought increased reporting requirements for local government officials sooner. Nor did the public hear from Adley in favor of greater disclosure of notorious “members amendments” that steered line-item appropriations to local governments and nonprofits; indeed, he has been one of the largest abusers of them. And Adley is fond for making publicity-driven requests of investigations of others inside and outside of government he asserts are liable for ethics violations – which don’t ever happen and whose names sullied by him never from him receive apologies.
Nor can he even get the story straight on all of this. Citing current Gov. Bobby Jindal’s 2007 campaign literature against the secrecy of members’ amendments, he tried to equate that with alleged budget obfuscation – conveniently forgetting or ignoring that every bit of information that comes with a governor’s budget also is available to legislators, while, until Jindal forced through the initial transparency requirements for those amendments, nobody knew what information or the process by which Adley has decided to include what amendments, or that he was the author of his at all.
Add to this lack of credibility Adley’s attempt to link, in his presentation of the bill to the Senate, the issue to privatization efforts. Understand that, like Adley, many want state government to do more because it makes it easier for them to claim credit for providing more state jobs and goodies in their districts. Privatization that increases efficient use of taxpayer resources and makes fewer claims on what people earn removes that ability, and the more aggressive Jindal approach to it this budgetary cycle has rankled these hog butchers. They see this bill, by forcing more of the research into and even negotiations about (information which already can be obtained by the Legislature through its contract-approval power) such efforts into the public realm, as a means to discourage privatization’s application.
Posted by Jeff Sadow at 09:00