Open Government Thu Dec 01 2011

The Pitfalls of Mayor Emanuel's Transparency Pledge

By Ramsin Canon

What do people want when they demand transparency in government?

The Sunlight Foundation, a transparency watchdog group, provides this background:

Public oversight, civic participation and electoral engagement--the stuff of democratic accountability--all depend on a transparent, open government.

Indeed, transparency and openness are the very foundations for public trust; without the former the latter cannot survive. The Internet is making increased transparency cheaper, more effective, and in more demand every day as Americans come to expect instantaneous and constant access to all kinds of information.

But what kinds of information? The Sunlight Foundation focuses on "influence data," information on money flowing into politics, lobbyist information, and oversight and corruption data. They also advocate for "public means on-line," meaning that to be truly public, data and information needs to be put on-line in easily searchable and manipulable formats.

Consider Mayor Emanuel's transparency initiative. While I've poked fun at the flood of spreadsheets we've gotten, there's no doubt that the administration has done a phenomenal job of putting information--including "influence data"--on-line in extraordinarily user-friendly ways. The City's data portal allows you to look through lobbyist disclosures, spending, and registration information, with an impressive depth and breadth of information. Everything from food inspections to 311 requests are eminently searchable, allowing citizens, journalists, and researchers to track what the government knows, when it knows it, and how it is reacting to it.

But this week, the Chicago Tribune expressed some ire with the administration for refusing to release e-mails and memoranda that could shed light on the decision making that went into crafting the Mayor's water fee hikes and speeding cameras policies:

After Emanuel this fall proposed a series of fee increases to help balance his budget, the Tribune filed requests for any internal City Hall documents to show how Emanuel came up with his plans to charge homeowners and drivers more, including emails, memos and any relevant contacts with outside companies or interests.

This on the heels of an earlier report that the Mayor was "shrouding his office in secrecy":

[E]fforts to peer into the daily operations of the mayor himself -- a man with enormous say over hundreds of millions of dollars in city contracts, hiring and regulations -- are met by a stone wall.

The mayor refused Tribune requests for his emails, government cellphone bills and his interoffice communications with top aides, arguing it would be too much work to cross out information the government is allowed to keep private. After lengthy negotiations to narrow its request for two months of these records, the newspaper was told that almost all of the emails had been deleted.

Illinois' freedom of information (FOI) law explicitly exempts "deliberative materials" from its requirements as to what must be made public upon request:

(f) Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body.

The argument for exempting these records is clear: if public officials and their staff knew that all their deliberations could be made public, it'd be harder for public officials to get freely voiced opinions from their staff, constituents, and outsiders; the flow of information would constrict and people would censor themselves. Even more likely (though generally unspoken) is that elected officials and their staffs would resort to avoiding official channels to communicate.

Is Mayor Emanuel betraying his commitment to transparency by refusing to release the types of information the Tribune is requesting? Not necessarily, though by proclaiming an unprecedented era of transparency he certainly set himself up for it. These types of things--the internal deliberations of the administration--just may not necessarily be what Emanuel, or his lauded chief of transparency John Tolva, consider "data" that the public is interested in, or really necessary for the public to participate in their government.

This speaks to the ex post/ex ante transparency issue that I wrote about previously. As a person interested in municipal government and its operating mechanics, this type of information is certainly important to me. Arguably, giving the press reasonable access to this information is precisely what would bring people into government, by shedding light into how it works, how decisions are arrived it, and how our elected officials arrive at decisions.

That's a reasonable debate to be had; but it is not constructive to have it through innuendo in newspaper articles. It should be had in an official capacity, through agencies or bodies empowered to promulgate rules or pass legislation. That is what I mean by ex ante transparency: Mayor Emanuel is not necessarily shrouding his administration in secrecy (though this report by Mick Dumke and Ben Joravsky in the Reader was troubling) by not dumping his emails on a website. But if the public wants this information or sees a compelling value in it, there should be some way to deliberate it officially and compel its release.

Currently, that decision making resides completely with the executive, and that's the problem. Where the decision on what is important and what gets released is made unilaterally--perhaps in consultation with advisory groups with no authority--then the transparency program will be deficient. Not only will it be deficient, but it will lead to stories like these regularly, as differing understandings of the scope and auspices of transparency will multiply, bad blood and frustration will mount, and institutional resistance will create conflict.