Various forces chip away at open government; courts should protect it

Two legal cases -- one decided recently by the Supreme Court of the United States, the other working its way through the Ohio courts -- have only one thing in common. They demonstrate that the public's right to know what the government is doing is under attack near and far, in new and ever more imaginative ways.
Too often, the forces of secrecy are winning.
In the federal case, the Supreme Court ruled last week that the government does not have to release 11-year-old photographs from the apparent suicide of Vincent Foster a White House lawyer in the Clinton administration.
"Family members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own," Justice Anthony M. Kennedy wrote for the court.
Compassionate, but dangerous
That sounds like a very compassionate response by the court, which unanimously rejected the request for the pictures by a California attorney who says that the photos might prove that Foster was murdered as part of a White House cover-up.
But this ruling could turn out to be a textbook example of the legal axiom that bad cases make bad law. In going out of its way to protect the sensibilities of the Foster family, the court has almost certainly made it more difficult to use a public records law to access law enforcement records. The justices are, in effect, giving private citizens a veto power over the release of public records.
Compassion toward the Foster family is a noble thing. But Foster had chosen a very public line of work, handling legal matters for Bill and Hillary Rodham Clinton at the time of the Whitewater investigation. He also chose to leave the White House one day, drive to a public park in Virginia and take his own life with a pistol
By his actions, he opened his family to incalculable pain. To suggest that it is incumbent on the government to lessen that pain by thwarting the efforts of a conspiracy theorist is unfair to the investigator and it is bad public policy.
Back in Ohio
The Ohio case is much more mundane. It doesn't involve the death of a presidential confidant or grisly photographs or the demand of a family for privacy.
The case of Schuette v. Liberty Township Board of Trustees involves a Delaware County case that represents a clear attack on the state's open meetings law.
Liberty Township in Delaware County sits just north of Columbus (not to be confused with the Liberty Township that sits just north of Youngstown in Trumbull County.)
In the summer of 2002, there were some people who thought that it might be to the advantage of the township and the municipality of Powell to merge. Two of those people were elected trustees of Liberty Township, Kim Cellar and John Werner. They invited a dozen "interested individuals" to a "private, non-public meeting" related to the potential merger. The agenda of this "non-public" meeting, which was held in the township fire hall, called for a discussion of the benefits and liabilities of a potential merger, the merger process, a roundtable discussion and discussion of when they should next meet and when they would hold their first "public meeting."
Exception taken
When a former trustee, John Schuette, heard about the meeting, he cried foul. Ohio's Sunshine Law defines a meeting as "any prearranged discussion of public business of the public body by a majority of its members." There are well defined circumstances that allow public officials to hold executive sessions. If there are gray areas, the law states that it is to be "liberally construed" toward openness.
It would seem that Schuette had an open and shut case.
But a Delaware County Common Pleas judge dismissed Schuette's case. The trustees claimed that they were meeting to discuss the township's future not as trustees, but as private citizens. Further, they said, the meeting was for informational purposes and so not subject to the state's Sunshine Law, even though it was clearly prearranged and clearly involved a majority of the board of trustees.
The court, in effect, said that it was permissible for the trustees to grease the skids toward a merger that would affect every aspect of the township's operation. Under the court's interpretation, the public had no right to know what plans were being discussed, what deals were being made, whose interests were being protected or unprotected until the trustees and their cohorts had managed to cross every t and dot every i.
By the time the trustees were done plotting the area's future in secret, any opponents of the plan could only hope to play catch-up.
Not here, not now
There might be places in which that kind of behavior passes as good government, but Ohio shouldn't be one of them. We trust that the judges of the Fifth Appellate District will agree.
Over the years, the United States and the state of Ohio have developed a system of government that often encourages officials to error on the side of openness. Open doors promote good government and engender good will among citizens and taxpayers. Courts should be cautious in closing the doors on open government. Once closed, some doors become very difficult, almost impossible, to reopen.