On July 4th, 1966, President Lyndon Johnson signed one of the most important pieces of legislation regarding transparency in government: the Freedom Of Information Act (FOIA). The words he signed soared high, like a bald eagle.

A democracy works best when the people know what their government is doing. Good government functions best in the full light of day.

Or at least that was the first draft of the legislation, written by Johnson’s press secretary, Bill Moyers. When President Johnson read that, he angrily called Moyers and told him to cut that part out. Moyers revised the paragraph to read:

A democracy works best when the people have all the information that the security of the nation permits.

There, now it sounds better, without all the freedom mumbo jumbo.

Unlike other signing ceremonies (Johnson was a total ham and publicly handed out pens like a clearance sale at Office Max), Johnson ironically signed this transparency law behind closed doors. It wasn’t even listed on his daily calendar.

So from the beginning, the conflict between democracy (which requires an informed citizenry) and politicians (who freaking hate informing the citizenry) was clear.

Despite the reluctance of electeds, FOIA forms the legislative groundwork of other transparency laws, including Pennsylvania’s Right-To-Know Law, which grants citizens access to official records, and our Sunshine Act, which mandates any elected body conduct meetings in full view of the public. Now we even have a full week to celebrate transparency in government: Sunshine Week. (That’s this week, March 10-16, by the way.)

“Sunshine,” Melissa Melewsky, in-house counsel at the Pennsylvania NewsMedia Association says, “is the best disinfectant, as the Supreme Court once said.”

And yet.

Since we’re talking about the courts, maybe we should take a moment to highlight their work in safeguarding our democracy through vigilant enforcement of transparency laws.

Wow, I could barely type that with a straight face.

In reality, judges seem just as reluctant as their political counterparts to enforce transparency. Consider that the Sunshine Act is written in a straightforward manner, designed to avoid misinterpretation:

The right of the public to be present at all meetings of agencies and to witness the deliberation, policy formulation and decision making of agencies is vital to the proper functioning of the democratic process …

… secrecy in public affairs undermines the faith of the public in government and the public’s effectiveness in fulfilling its role in a democratic society.

Both the letter and the spirit of the law are pretty clearly laid out here, just like the Bill Moyerses of the world intended. And yet.

Melewsky tells me about a case from 2013 — Smith v. Richmond Township — with a “mountain” of evidence that an agency was conducting its public business behind closed doors. But when the case made it to the state Supreme Court, the judges saw it differently.

“They said , Well, it wasn’t really ‘deliberation,’” she says. “Yes, they had discussions amongst themselves, but this was more ‘information gathering’”

You know it’s going to be a rough trip on the road of democracy when the courts are pulling a “it depends on what the definition of ‘is’ is.”

Another issue: Even when legislators are caught, the courts can go in and retroactively “un-punish” people. “There’s this concept of ‘cure remedy,’ and it’s purely court-created,” Melewsky says. “Courts have established that if the agency ‘redoes’ the alleged violation properly at a public meeting, they won’t find that a violation occurred.”

Are politicians held to different judicial standards than the rest of us? If I hit someone with my car, not many judges are open to me un-hitting that person by returning to the scene of the crime and properly navigating the intersection, this time not looking down at Instagram.

The nuttiest thing about this law is that the responsibility for enforcing it rests squarely on the shoulders of the citizenry itself. You know, the folks who have regular jobs and kids and PTA meetings.

A legal challenge shall be filed within 30 days from the date of a(n) [unlawful] meeting.

So let’s say you’re a responsible citizen who somehow catches wind of a secret meeting. You have to pay for a lawyer who agrees to take on the case, then file a lawsuit within a very narrow window of 30 days, and then the burden of proof is on you to convince a judge that a meeting to which you were not privy occurred in violation of the Sunshine Act.

In the 18 years Melewsky has been fielding calls about the Sunshine Act, she is aware of one instance in which criminal penalties were imposed. That was in 2005, in Lancaster. “Ultimately county commissioners in Lancaster pleaded guilty and they each paid a hundred dollar fine,” she notes.

It might put your mind at ease to know that seven years later, these fines no one has to pay were increased to $100-$1,000 for a first offense, and $500-$2,000 for a second offense. On a third offense, I assume the legislator has to buy a round of drinks at her local dive bar.

Melewsky says these violations likely happen even more frequently via electronic communication — phone calls, emails, texts, Slack. “It can be difficult to track because we don’t know what we don’t know,” she says. “And it happens frequently enough for me to get calls on a regular basis.”

“Sunshine,” Melissa Melewsky, in-house counsel at the Pennsylvania NewsMedia Association says, “is the best disinfectant, as the Supreme Court once said.”

“Information gathering”

Remember when now-City Council President Kenyatta Johnson held “straw poll” get-togethers at the Prime Rib to consolidate support for his run at the presidency? Remember how he was totally not ducking the Sunshine Act by acrobatically ensuring that a majority of the Council (also known as a quorum) wasn’t in one room at one time while they were “information gathering?”

Melewsky instantly recognized this kind of language from a case where “a school board took a ‘straw vote’ behind closed doors to eliminate candidates for a superintendent position. And the courts said that was okay, that it wasn’t really an official action.”

Here’s the actual wording from Morning Call v. Bd. of Sch. Drs.:

Just because a “vote” is taken in executive session does not mean that it is an “official action”…

… The Board’s actions at the February 27, 1992 executive session were permitted because they were merely deliberations or discussions rather than official action.

Voting isn’t an “official action?”

Actions by an official body aren’t “official actions?”

Illegal deliberations are permitted because they’re “merely deliberations?”

“The courts have done a number on the Sunshine Act,” Melewsky sighs.

Credit where credit is due, though: the Court of Common Pleas of Westmoreland County did recently rule against an individual who violated the Sunshine Act. That individual was Matt Shorraw, Mayor of Monessen. Also found guilty? The entire city itself (Monessen sits 30 miles south of Pittsburgh).

On January 6, 2020 (just not a great day for democracy, folks), the Monessen City Council held an organizational meeting and purged city officials. Without informing the public, they fired both the city solicitor and city administrator, then hired their replacements, and then voted to restrict public access to all city cameras.

These firings and hirings weren’t on the official agenda, and public comment was not allowed (another violation of the Sunshine Act). The court noted: “The meeting was adjourned abruptly.”

Since the meeting was recorded, it was an open-and-shut case, but the defendants did try to wriggle out of it:

Defendants point out that the Commonwealth Court “has repeatedly held that official action taken at a later, open meeting cures a prior violation of the Sunshine Act.”

And the court sided with Monessen on this point. It cured the violation.

They didn’t get off scot-free, however. The mayor and council members were officially ordered to follow the Sunshine Act moving forward (yes, they were already supposed to be following it), and like a weird HR department, the court ordered the violators to undergo Sunshine Act sensitivity training.

So during this week — our national Sunshine Week — we really have to ask ourselves what good is a Sunshine Act that politicians so easily sidestep? What’s the point when judges blatantly twist the system in favor of electeds, and soccer moms and dads have to fish into their own pockets to enforce a law we all agree is vitally important to democracy?

“Well, it’s not …” stammered Melewsky, “… it’s not that … I don’t want to discourage people from using the Sunshine Act. It is an important statutory tool. If there were no rules … how much worse off would we be?”

There it is.

Perhaps that statement is the true spirit of Sunshine Week.

Every Who down in Who-ville, the tall and the small, remembered that some level of protection was better than none at all.

“The main problem with the Sunshine Act is not really the Act itself,” writes the Pennsylvania NewsMedia Association. “The real problem is that officials ignore it. The penalties are insignificant and very rarely imposed.”

So, if you’d like a list of suggestions you might bring up with your state representatives this week–things that would actually make the Sunshine Act work — here you go.

• • Lift the ridiculous 30-day statute of limitations. Make it at least a year.
  • Dissolve the court-created “cure remedies.” Make a crime a crime.
  • Place the burden of proof on the official body, rather than citizens who don’t have access to all of the information.
  • Create an oversight agency to deal with Sunshine Act violations, so Joe Philadelphian doesn’t have to pay court and attorney fees.

“The Sunshine Act gives the public an opportunity to understand what’s being discussed, and then to attend and participate,” Melewsky offered. “Talk to your state legislators. That’s how laws change.”

Happy Sunshine Week! Viva transparency!

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