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Rahm Emanuel Tue Feb 14 2012
Mr. Mayor, why won't you tell this woman what your staff was saying about her dead grandchild?
That's the devastating question Chicago Tribune reporter David Kidwell leaves unasked at the end of his forceful article on the Mayor's refusal to release his staff's internal communications regarding the city's plan to build a network of red-light cameras across the city. I'm not giving a blockquote to encourage you to read the article. Go ahead, then come back. Or, open it in a new tab and switch back and--you know what, you know what you're doing.
The full transcript of Kidwell's contentious interview with the Mayor, released by the Tribune as a companion piece to the article, is a winding, gruff dialog between approaches to transparency, accountability, and even democracy. At times frankly insulting ("I mean this insulting so get it right") and at times sounding like legal wrangling in a courtroom ("You said there is a disconnect. That's a conclusion. How do you know there's a disconnect?"), Kidwell and Emanuel argue about just what transparency means and just how voters are supposed to hold their elected leaders accountable.
Throughout the interview, the Mayor is frustrated that the Tribune seems to have decided what "transparency" means--e.g., full access to internal administration decisionmaking--and passes judgment on his commitment to his transparency pledge based on their interpretation. The Mayor repeatedly chides the Tribune for ignoring the will of the voters on the matter--diminishing the Tribune's concerns as out of step with the type of transparency people want. This is, at first glance, the "voters don't care about process, just results" philosophy.
But that's not all it is, and--I can't believe I'm writing this--I have to side, with some reservations, with the Mayor.
Mayor Emanuel's essential objection to Kidwell's and the Tribune's request for internal administration communication is that were he to provide it, he couldn't be assured of honest counsel from his staff. Honest counsel from his staff is, in turn, necessary for a government to find the most-efficient-for-the-best-result (the most utilitarian) solutions to identified problems. If the Tribune could access internal emails (and the Mayor's phone records), the Mayor's staff would communicate with him with an eye towards potential public scrutiny. The reasonable result is that either a) Mayoral staff would censor themselves or b) Mayoral staff would find ways to communicate outside of the official channels, defeating the very purpose of the Freedom of Information Act.
Mayor Emanuel's abrasive defense, in other words, shouldn't be taken as mere pretext for opacity. Stated less pompously, we should take him at his word on this one, at least to a certain extent. That extent is the point at which public availability of administration communications would just lead to a change in administration behavior. In any policy-making apparatus, its component members will seek to honestly exchange opinion and find an appropriate space for deliberation. To the degree that public access to preliminary policy deliberations will simply push those deliberations underground, it is counter-productive to insist on their release.
The Freedom of Information Act has an explicit exemption for "pre-decisional deliberative communications that are part of an agency's decisionmaking process" per the case law surrounding the statute. The public policy reason is obvious; to permit for free deliberation and honest counsel, to ensure that potentially unpopular (but important) ideas aren't self-censored.
The response to this of course is that while this exemption permits the Mayor to refuse to release emails, his pledge of "unprecedented" transparency is inconsistent with invoking that exemption. But it is a bit of equivocation to argue that because the Mayor pledged to be "the most transparent" that he must be "one hundred percent transparent."
According to the city's FOIA request log, the Tribune requested "records regarding the proposal to install red light cameras, including data and internal correspondence and supporting documentation for CDOT's pedestrian crash analysis." There was something troubling to come out of the article on this point. Kidwell apparently later requested a report upon which the Mayor's administration relied when proposing and supporting a state statute permitting the city to install automated red light cameras all over the place. The Mayor's administration declined to provide this report--after the Mayor repeatedly points to it during the interview--on the grounds that parts of it are confidential.
That is not in the spirit of any kind of transparency. With the (even still) distressing exception of national security issues, the government should never keep secret information which it claims justifies its policies, particularly when those policies relate to something like law enforcement (which traffic enforcement is) and can and will result in depriving people of property (i.e., fines).
In fact, the Freedom of Information Act specifically countermands doing such, at the very least in spirit, in the very section the Mayor indirectly cites to justify hiding the emails. Section 7(1)(f), while exempting those "pre-decisional documents" goes on in the same sentence to say "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 Mayor angrily citing this report repeatedly seems relevant.
Now I'm sure the city has a legal or policy theory as to why this report cannot be released; I'd guess 7(1)(g) or 7(1)(i) which protect "trade secrets" and "valuable formulas." Given that the Mayor's press secretary declined to release the report to Kidwell because parts of it were "confidential," this is the most likely rationale, but the article doesn't single one out. (Other options--legal proceedings, personal privacy and law enforcement records--seem less likely, though possible). Presumably the consultant who did the study uses some proprietary formula--but the public interest in seeing the report which the government is citing as justifying any policy, particularly an unpopular one, certainly outweighs the need for a competitive business advantage of a consultant who knew she was providing a report to a high-profile government body.
Nevertheless, and to return to the issue at contention, people brainstorm via email and cognate messaging systems. If the Mayor has initiated a process to consider a new policy, his staff is going to throw ideas back and forth, raise concerns, and anticipate problems--all things we want them to do; the more they're free to do that, the better the bureaucracy is working. The more stifled the conversation, the more the head of the body is only hearing echoes. Even if you detest the Mayor's policies, you must at least acknowledge that he was elected precisely to exercise his discretion, and that discretion is better exercised with freer counsel.
That said, the Mayor would do well to take it easy with the tough guy routine. Pretty soon he's going to be able to hear the city's collective eye-roll when he puffs his chest out. It's not necessary to try to attack Kidwell for not having worked in a Presidential administration and thus not "getting it." Kidwell and other journalists are not unable to do their jobs well because they're not one of the several dozen or so people who have worked in the Oval Office. This is little more than ad hominem (or, I guess, appeal to authority, if we're being formal about it), this idea that because Kidwell hasn't had the same personal experience as the Mayor that he doesn't know what voters want or how government should work.
Worse, it's an anemic defense of his position. It is circular to say that the people only care about "results" and not "process" when a part of the process is being deliberately concealed; nor is that appeal to popular opinion particularly meaningful when it comes to the uprightness of a policy. I mean, Jim Crow was popular too--and no, I'm not comparing the two. Something being unknown to or unpopular with the public is not germane to this element of a policy debate.
The appeal to the public will is a related species of fallacy. At one point in the transcript, the Mayor stonewalls Kidwell by saying that if he isn't transparent enough, "The taxpayers [sic] will hold [him] accountable." Voters (not just taxpayers) in America can't allocate their vote that way, and it's vacuous to intimate that he actually believes voters will throw him out based on the fine points of his transparency policy.
But the Mayor is right to point out that he is an elected official, and the fact of his election has weight. It means the citizenry implicitly trusted him to exercise his authority wisely; and to do that, he needs to be able to communicate openly with his staff and know they're being open with him. To the degree transparency would interfere with that--and to that precise degree only--invoking exemptions is not synonymous with cynical obfuscation.