The nine-member Iowa Public Information Board created by a law Gov. Terry Branstad signed on Thursday, May 3, is not the perfect solution for making government in Iowa more transparent. But it is the right solution at this point in time because of the board’s ability to enforce open meetings and open records laws on behalf of citizens who otherwise could not afford to challenge local government secrecy.
A perfect solution for a defective situation, which we have in Iowa when it comes to enforcing government transparency laws, is unattainable. Economist Harold Demsetz noted this in a famous 1969 Journal of Law and Economics article, “Information and Efficiency: Another Viewpoint” that produces the term “nirvana fallacy.” This fallacy leads you to believe your choice is between an ideal norm and the existing imperfect arrangement.
Demsetz argued that “the relevant choice is between alternative real institutional arrangements.” Senate File 430, which creates the Iowa Public Information Board, emerged from alternative real institutional arrangements. Getting to this point took six years as institutions with an interest in the state's open meetings and open records laws pushed their particular alternatives. "Well, we've waited a long time for this," Branstad said in an understatement as he settled in behind a desk at his Statehouse office desk to sign the new law on May 3 in Des Moines.
The board, with representatives from government, media and the general public, will hear citizens’ complaints about getting access to public information and also will work with local government entities, offering advice and training on public access matters. The board can mediate citizen complaints but has authority to order corrective action and even damages if determining that a government body has broken Iowa’s open meetings or open records laws.
Branstad said he hopes to have something in place by the beginning of the next fiscal year, which begins July 1, so that the board can start getting organized. The law gives him until Sept. 1. The board's executive director cannot be hired until July 1, 2013.
“Compromise used to mean that half a loaf was better than no bread. Among modern statesmen it really seems to mean that half a loaf is better than a whole loaf.” British writer G.K. Chesterson (1874-1936)
Over the past few years the Iowa Newspaper Association has collected stories about citizens running into roadblocks when trying to learn what their government is doing: city council members in some towns who, with the majority present, have huddled with city employees about city business or have met off-site immediately before public meetings; public safety agencies refusing to provide call logs or reports on arrests, fires and accidents; and government agencies turning job recruitment over to consultants who call their documents confidential.
True, countless public servants bend over backwards to ensure that they act above board at all times. But questionable practices persist. A study earlier this year that the Iowa Center for Public Affairs Journalism and The Gazette newspaper conducted for the Center for Public Integrity, Global Integrity and Public Radio International graded Iowa at C+ for openness. High marks for Iowa’s transparency laws were eroded by how those laws are enforced. The Iowa Legislature earned a C-. The grade for access to public records was a big, fat F.
Attempts to get an oversight board began in 2007 and required compromise. Media representatives from the Iowa Newspaper Association and Iowa Broadcasters Association pushed for strong enforcement while government-based agencies such as the Iowa League of Cities, Iowa State Association of Counties and Iowa Association of School Boards favored weaker approaches in which complaints would be debated and opinions could be produced but enforcement would be left to others.
Some concerns remain with the new law. Exemptions exist for deliberative drafts, depriving the public of some of the early thoughts of policy makers. Also, the Legislature, governor’s office and judiciary are exempt. Ironically, on the same day Branstad signed the law select Republican and Democratic state legislators met in closed session to work on a budget agreement.
Branstad said at the bill-signing ceremony exempting the three branches of state government from the board's oversight recognizes those branches' constitutional roles and also keeps politics from seeping into the oversight board's decisions.
The Iowa Public Information Board has authority to recommend proposed legislation "to provide as much public access as possible to government information as is consistent with the public interest." Adjustments, if needed, can come through that process.
In the meantime, having an oversight board with enforcement power and also the ability to advise local governments is a big advance. Turning down an opportunity to move the needle toward more open government would have been a mistake.