Peter Scheer is the Executive Director of the First Amendment Coalition in California. A lawyer and journalist, Scheer was editor and publisher of The Recorder, a daily legal newspaper in San Francisco, publisher of Legal Times, a Washington, DC-based weekly on law and lobbying, and CEO of callaw.com and law.com. Scheer practiced appellate law in Washington, DC, both in the U.S. Justice Department and in private practice. He was a partner in the Washington, DC firm of Onek, Klein & Farr, and was general counsel to the National Security Archive. Scheer has argued appellate cases in most of the federal courts of appeal and in the U.S. Supreme Court.
Scheer sat down to talk to NFOIC about California’s transparency and reasons why open government is so important to the public.
What does the First Amendment Coalition do?
The organization is a free speech and open government organization. What that means is we are an advocate in a variety of ways for first amendment rights, freedom of speech, principally, and government transparency. When I say government transparency, we’re really talking about enforcement of open government laws in the state of California and also national.
Importance of open government?
The answer is not self evident. Government openness or government transparency is not really a fundamental interest or right for its own sake. It is a vehicle for something else. It is a means to something else, and that something else is… democracy that works. Democracy that is responsive to citizens. Democracy that works for people. Government that is accountable. And the only way you can have government that is accountable is if the citizens, who are the sovereign in this scheme, understand what it is that government is doing on their behalf and in their name. If government is opaque, if government is worse than that, if government is a secret state where people can not possibly hold that government accountable — they don’t have the means, the inclination — in order to do so.
How does California rank in the scheme?
Well, California is a state where government officials, much like government officials like everywhere in the country, will say as a matter of principal that of course they are for open government. Everybody is for open government and government transparency and will say that again and again when they’re running for office and talking to prospective voters. When it comes to specifics, they are usually on the other side of the table denying access and defending the denial of access. I would say that in California, in recent years, the general trend has been towards less transparency in government. At the top of the government, that is to say the legislature, you really have almost no transparency at all. The government has, in effect, exempted itself from most of the open government laws or principals that apply to local government and to state agencies and even to the executive branch. The legislature does have laws which in name and in theory allow one to have access to what the government does in the legislature, but in reality, those laws are so riddled with loopholes that they don’t do anything.
There have also been a number of court decisions that have curtailed access rights in recent years. The difficulties with the economy, the really harsh recession that we’re experiencing in California, that has resulted in major, major budget cutbacks in all levels of government. Perhaps most of all, local government. A certain natural, predictable response to that has been to curtail the processing of public record requests and other aspects of open government that do involve staffing and therefore some resources. Those resources are now in greater demand in other, more higher priority areas — higher priority to the elected officials. So that now looms as a large, practical obstacle for access.
In your opinion, what’s the best way to get the public interested in this issue, and whose job is that?
That’s a good question. I think historically it has been the press, traditionally construed, because they have made the most effective use, I think, of open government. I think that will be less so in the future. There may be individuals who are not associated with mainstream press organizations who will also be able to raise awareness through reporting, through journalism. It may also come, perhaps, from maverick politicians. People who are on the outside trying to get on the inside, running for long shot elections, and by use, by effective use of open government tools, may be able to reveal to the public a scandal or some other serious matter reflecting poorly on the governance of incumbents and enhancing the candidate’s chances of getting elected. It could come from any number of areas. I think it’s also likely to be, as we go forward, the most effective uses of public information are likely to come from the computerization of access by citizens mining of data and access to government data. The intelligent analysis of data. Because the open government community in California and elsewhere has made great strides in pushing government agencies at the state level to make more data available on the internet. I think only recently are people applying the smart tools, computerized tools, to be able to analyze that data, to see patterns and trends in that data, that illuminate, shed a light on, government activities. We’re seeing it first in the area of political finance but we’ll see it in many other areas as well, I hope.