Can Government Be Too Transparent?

This blog was originally published by Governing. 

Open records laws make it possible for the public to get their hands on valuable government information. That's generally a good thing.

But there are a number of instances in which greater transparency can actually work against public-sector employees and taxpayers.

Disclosing government employee pay, for example, can have a negative impact on those workers. According to research from Princeton University's Woodrow Wilson School of Public and International Affairs, after the pay for the highest-earning city employees was disclosed in California, their salaries took an 8 percent hit. That, in effect, "triggered a 75 percent increase in the quit rate among city managers," according to the report.

"If the public has an adverse response to large salaries, regardless of whether these salaries are justified, there might be adverse consequences," says Alexandre Mas, professor of economics and public affairs and author of the report.

Government transparency can also have unintended consequences for taxpayers.

For one, it can threaten people’s privacy. In some jurisdictions, documents that are subject to open records laws may include private information that can be abused, such as Social Security numbers or pre-trial material about upcoming court cases.

In addition, open government laws can hamper efforts to keep costs down in labor, lawsuits and real estate. Laws vary from state to state and city to city, but legislative meetings (and their minutes) about these issues are often open to the public -- and more importantly, to the men and women who are negotiating with the government.

“In negotiating real estate deals, you don’t want to give away your bottom line. You want to get the best deal for the public,” says Jerry Newfarmer, president of Management Partners and a former city manager of Cincinnati.

In that city, there was a long-standing exemption that allowed the city council to go into closed sessions. But after a lawsuit brought by the Cincinnati Enquirer in the mid-1990s, these exemptions were shut down.

"So now," says Newfarmer, "city council members don't have an opportunity to discuss these things [in private]."

Responding to public records requests takes time and money. In Washington state, an attorney told legislators this year that one request for all of one county's e-mails and documents would have taken the county 56 years to fill. The request was later withdrawn, but not before the county spent $17,000 on it.

The very phrase “working behind closed doors” connotes images of smoke-filled rooms where decisions are made without providing any information to deserving taxpayers. But sometimes closed doors are the best way to get something done.

Larry Jacobs, director of the Center for the Study of Politics and Governance at the University of Minnesota, tells one such story: During the last couple of years of the Tim Pawlenty administration in Minnesota, between 2007 and 2009, a small high-level group gathered regularly in a small room at the Humphrey Institute to discuss election reform. Attendees included representatives of the Democratic-controlled House and Senate as well as the Republican governor’s office.  Areas of consensus emerged.

“It produced the best election law we could have hoped for,” says Jacobs, who was part of the group. “And we were invisible.”

But then party activists, angry that the group was making policy in secret, threatened to file lawsuits. The group, they argued, was in violation of the open meetings rule, which required meeting minutes to be published. The result?

“[The group] lost the candor and intimacy and didn’t produce much anymore.”

While you might think frustration with public information laws would be a hot topic, few public-sector officials “are willing to take on the issue of the ‘downside of public records acts’ for fear of retaliation from the media,” says Newfarmer.

One solution to overreaching public records acts and open meetings laws is exemptions, which many places have for information surrounding public safety, adoption, juvenile justice and health. But exemptions can become extremely specific, overly broad, too complex and even nonsensical.

For example, Florida, which has some of the nation’s strongest government transparency laws, also has more than 1,000 exemptions. One of them deals with boxing. The state boxing commission successfully fought for keeping secret the records of boxing matches that will air on TV. Who wants to watch a match if they already know who wins?

Questions swirling around public information laws remind us of a quote from U.S. Supreme Court Justice Oliver Wendell Holmes: “The right to swing my fist ends where the other man’s nose begins.” Our interpretation: “The right to access government information should end when it leads to negative ramifications for the public.”