States of darkness

Accountability. Transparency. Sunshine.

These words were tossed around frequently during the 2010 gubernatorial elections. As candidates, many of the 26 newly elected governors promised an increase in government transparency. They made open government and accountability key tenets of their platforms, pledging that they would set new standards of openness once in office.

Gov. Rick Scott, R-Fla., said in a campaign ad in May 2010 that, by choosing him, the people of Florida would be voting for someone who “demands accountability.”

In December, then governor-elect John Kasich, R-Ohio, faced questions about his commitment to transparency. Ohio’s Youngstown News reported that Kasich’s spokesperson Rob Nichols said Ohioans should “absolutely not” be concerned about the transparency of Kasich’s administration.

Gov. Paul LePage, R-Maine, featured an entire section on his campaign website calling for open government, saying “he will fight for stronger laws to protect and expand Maine citizens’ right to access information from state and local government.”

However, months after taking office, these governors, and many other executives, seem to be reneging on those promises.

In March, Ohio’s Kasich tried to ban broadcast recording equipment and cameras from a state budget press conference, though he eventually decided to allow the devices, The Dayton Daily News reported.

Also in March, LePage signed an executive order exempting a business advisory council from Maine’s freedom of access law, though a spokesperson later said LePage may not move forward with creating the council in response to media pressure.

“What you see is people running for public offices, governors certainly among them, embracing transparency in a sort of abstract way when they are on the campaign trail, without probably giving much thought to what it means when you are governing,” said Charles Davis, an associate professor of journalism at the University of Missouri and the former executive director of the National Freedom of Information Coalition.

“I was just talking to someone the other day, and I was saying this has got to be one of the most depressing years in terms of gubernatorial hypocrisy when it comes to open government.”

 

Florida: “Without transparency, there is no accountability.” — Gov. Rick Scott

As a gubernatorial candidate Rick Scott vowed to uphold the state’s open government laws.

In a May 2010 campaign advertisement, Scott addressed his opponents who highlighted Scott’s ties to Columbia/HCA, now known as Hospital Corporation of America.

The company was involved in about $2 billion in fraud-settlement payments, including funds to settle criminal and civil charges.

In response to the criticism, Scott said he demonstrated accountability during the controversy, and would maintain accountability as governor. “If you want someone who learns, needs and demands accountability, I’m Rick Scott. Let’s get to work,” his campaign ad boasted.

However, Scott’s administration has faced significant backlash for his actions limiting access on numerous fronts.

According to Tampa-based television station WFTS, one Capitol reporter asserted that Scott has limited access to press conferences and events, has forbidden agency heads to independently speak with the media, has delayed requests for documents and has tried to hand pick which reporters cover certain events.

Pulitzer Prize winner Lucy Morgan of the St. Petersburg Times told WFTS in March: “We have never had a governor who was this reluctant to talk to the press corps.”

Jim Rhea, director and general counsel for the First Amendment Foundation of Florida, said Morgan’s assessment is fair.

Rhea noted that Scott has a drastically different relationship with the press than his predecessor, Charlie Crist, a Republican who later ran for U.S. Senate as an independent, who many say increased open government in Florida.

For example, Crist signed an executive order in 2007 creating the Office of Open Government to provide training and education to agency personnel and help assure compliance with state sunshine laws.

Rhea noted that, unlike Crist, who many regard as a champion of sunshine laws and a press-friendly leader, Scott never held public office before becoming governor.

Kathleen Haughney, a reporter for the Fort Lauderdale-based Sun-Sentinel, said Scott’s office more recently appears to be “better” about responding to requests from the media.

Lane Wright, Scott’s press secretary, said the press office was not fully staffed in the months following the election, but more personnel have been hired, improving the office’s ability to quickly get back to reporters.

“We understand, obviously, there has been this perceived tension out there between Governor Scott’s press office and the press,” Wright said. “But we want that perception to change, and we want people to know that we are happy to work with the media.”

Scott has also taken positive steps regarding transparency. He renewed the state’s Office of Open Government immediately after he took office.

The governor’s press office publicized how Scott created “FloridaHasARightToKnow.com,” a website that provides records on spending and regulation.

In April, Scott suspended and removed a Wauchula city commissioner from office for attending secret meetings and violating the state’s Sunshine Law.

Under Florida law, Scott is able to suspend any official charged with a misdemeanor and remove the official once he or she is “convicted of any charge.”

However, Scott has also continued to take actions that have drawn the ire of transparency advocates.

For example, those who seek access to documents or the governor’s email now face a monetary charge to obtain copies of documents.

Scott’s administration issued a memorandum on the fees in early March.

“Upon receiving requests for public records, the Office of Open Government will provide an itemized estimate to the person initiating the request. The estimate will include the hours required, the estimated service charge for extensive labor, and actual duplicating or other material costs,” the memo said.

Requesters also have to pay a duplication fee and an extensive use fee that applies to office assistance in finding the documents.

“Clerical or supervisory assistance includes searching for and/or locating the requested record, reviewing for statutorily exempt information, deletion of statutorily exempt information, and preparing, copying, and re-filing of the request record.”

The move is authorized under Florida law. In the past, efforts to obtain a document that required a great deal of technology or personnel could have resulted in an extensive use fee.

But that fee would typically match the rate of the lowest paid person who could do that job.

“When you request emails from the head of the press office, what they are saying is the only person who can go through his [Scott’s] emails and be assured that there is no information that is confidential or exempt and that has to be redacted is the head of the press office, and he makes $145,000 a year. So break that down by an hourly rate,” Rhea said.

In April, Scott shuttered a website Crist created in March 2009 that informed taxpayers where the state was spending federal stimulus money and whether the money was successfully creating jobs.

Crist said the website would lead to greater transparency for the public, as voters could see exactly how the state was using federal funds.

Scott noted that he did not support the federal stimulus in any way. “We decided we wouldn’t do anything to promote the stimulus program,” Scott’s Communications Director Brian Burgess told The Gainesville Sun.

Members of Scott’s administration have also shown an apparent lack of commitment to transparency. The Miami Herald reported in late April that Scott’s adviser, Mary Anne Carter, said in an email exchange with the office of U.S. Sen. Bill Nelson, D-Fla.: “I rarely check and almost never respond to work e-mail because of the open records law.” She sent the message from a private email account.

And in February, Politico reported that Scott’s administration “resolved to limit the press’s access and to instill a new sense of ‘professionalism’ on their flip-flop-wearing, question-shouting, governor-mobbing press corps,” resulting in a “civil war” between the media and the administration.

The contentious exchanges between reporters and Burgess often play out in public on Twitter.

The Associated Press reported on April 11 that Burgess and St. Petersburg Times reporter Michael Bender engaged in an argument via the social media site.

Bender tweeted in February that, although the governor planned to announce a proposed $1 billion property tax cut, the proposed cut is 30 percent less than a $1.4 billion cut he promised during his campaign. Burgess tweeted back at Bender: “Myth.” Bender then responded: “Going by your press release.”

While Twitter battles continue, Scott’s administration apparently does not view official social media messages as public records, though Florida’s former Attorney General Bill McCollum said in an advisory opinion in 2009 that Florida’s Public Records Law applies to social media.

According to a St. Petersburg Times article, Scott’s office does not archive all of posts or comments on Facebook; instead, only those that are deleted for inappropriate content and Facebook messages are saved for the record. But Facebook comments, status updates and postings are not saved.

Christina M. Locke of the Brechner Center for Freedom of Information at the University of Florida said the governor’s office is ignoring McCollum’s opinion.

“The spokesperson told the St. Petersburg Times that they just don’t have time,” Locke said. “But I think it’s pretty clear that it is a public record, and these posts need to be archived and accessible to the public.”

 

Ohio: “My bias is towards openness.” — Gov. John Kasich

In April, Democratic Ohio state Reps. Matt Lundy and Debbie Phillips said that they were considering legal action against Kasich for denying an information request they submitted to the governor’s office.

Lundy said they requested about 12 documents from Kasich’s office regarding the governor’s proposed education cuts and funding for schools. They later received a response from Kasich’s office that said the requests were “too broad.”

Lundy said that, in his time as a representative and a reporter for several television stations, he has never had that type of response.

He also said that Kasich’s predecessor, Democratic Gov. Ted Strickland, released information about his education plan when legislators requested it. “I’ve made many public records requests as a former reporter, and I have never had anyone come back and tell me that every single request I made was too broad in nature. That to me is just a way of avoiding releasing the information,” Lundy said.

“I wouldn’t call him [Kasich] an advocate for public records, I would call him an advocate for government in the dark,” he added.

Yet before being elected, Kasich told The Cincinnati Enquirer’s editorial board that he was “not worried about transparency,” because “If you’ve got something you want to know, I’ll tell you.”

That tone quickly changed shortly after Kasich was elected. The then governor-elect made plans to be sworn in at his private home, away from the media. The Columbus Dispatch noted: “Kasich is breaking Ohio tradition by not allowing a representative of the public to attend his official swearing-in at his Genoa Township home shortly after midnight Monday, citing security concerns. Kasich will have a public swearing-in ceremony later Monday.”

The governor-elect eventually relented to public pressure and was sworn in at the statehouse.

Weeks later, Kasich refused to release resumes of those applying for politically appointed jobs.

Kasich’s office chose to solicit resumes for government positions through a private Web portal — FixOhioNow.com — and has refused to make applicants’ names and resumes public. The Toledo Blade reported that the governor said releasing the resumes would deter people from taking government jobs.

“Now I blame it on all of you, all this transparency and conflicts and all this other stuff,” Kasich told reporters in December. “I just want to tell you, it is a problem to get quality people to come to work in the government. Our problems in government are bigger, and the quality of people who want to come in is less.”

And once in office, Kasich announced plans to privatize the state’s cabinet-level Department of Development, which attempts to keep employers in Ohio and attract new ones to the state.

In February, he signed H.B. 1, which replaced the department with the private, non-profit organization JobsOhio.

As such, many opponents claim the department will no longer be subject to state open meetings and records requirements.

On April 18, Democratic state Sen. Mike Skindell, Democratic state Rep. Dennis Murray and liberal policy group Progress Ohio filed a lawsuit against Kasich’s administration to block the JobsOhio privatization plan from moving forward.

They called the plan “unconstitutional,” saying the governor cannot take a second position of authority for the state while serving as governor and that the state constitution prohibits the Ohio governor from being a joint owner or stockholder in a private company. The lawsuit also says JobsOhio creates unconstitutional debt liabilities.

The suit also claims the new plan gives the governor undue power and keeps conversations on business decisions from public view.

Brian Rothenberg, Progress Ohio’s executive director, told The Associated Press that “[t]he interest of political expediency does not trump the Ohio Constitution, which for over 150 years has existed in this state, and every other governor has managed to abide by it and create jobs.”

Kasich has similar plans for other departments.

“There are more privatizations to come,” Kasich said at a news conference to discuss his two-year budget. “We don’t want to leave any money on the table.”

Carrie Davis of the American Civil Liberties Union of Ohio noted that privatizing departments hinders the public’s ability to learn more about what their government is doing.

“Our biggest concerns currently are all the various proposals he is making to privatize aspects of state government services,” she said. “There are numerous concerns with privatization, but certainly the biggest is this notion of transparency and accountability.”

Davis also discussed how during Sunshine Week, a nationally recognized celebration of transparency and open government in March, Kasich infuriated the press and government access advocates by banning television cameras and recording equipment from his state budget plan press conference. After outcries from the ACLU of Ohio and the state’s media outlets, the governor relented and allowed the equipment.

“It seems to be a common theme,” Davis said. “He promised transparency when he was running for governor, but we’ve seen anything but.”

Kasich’s office did not respond to requests for comment.

 

Maine: “When Paul is Governor, open government will be a reality, not a talking point.” — Gov. Paul LePage’s campaign website

In Maine, Republican Gov. Paul LePage’s campaign website was still accessible to the public in early May. Under the “Solutions” page, the site says: “Paul will require all state spending to be posted online, and he will fight for stronger laws to protect and expand Maine citizens’ right to access information from state and local government.”

Yet a column in the Kennebec Journal reported in March that LePage briefly turned the topic of conversation to the Maine Freedom of Access Act at a legally mandated meeting with members of the other two branches of the state government. Although there were few members of the media there, LePage said his office was inundated with records requests and said “FOAA [Freedom of Access Act] is being used as a form of internal terrorism.”

Mal Leary, president of the Maine Freedom of Information Coalition and the owner of Maine’s Capitol News Service, said he asked the governor about the quote after it reached the public. LePage clarified that he was referring to bloggers and the number of requests they submit.

“You know, voice mail, email, notes, as he put it ‘scribbles on his napkin at lunch,’ and he is just irritated about that, and that was the focus of his comment about internal terrorists. You know, the focus was on bloggers, it wasn’t about the law in general,” Leary said.

Such comments aside, LePage also caused a stir among open government advocates when he signed an executive order exempting a business advisory council from the state’s public records law.

LePage said that members of the business advisory council and other planned councils to address K-12 education, higher education and environmental issues should not feel the added pressure of meeting in public, the Bangor Daily News reported.

“Basically these are people that we want to be able to sit around a table and say it the way it is, talk to us as business people, the dilemmas they face and they don’t want to be in the press,” LePage told reporters. “They’re not public workers. They’re trying to help the state.”

Leary said he was surprised by the governor’s move to exempt these groups from public meetings, noting that LePage made transparency a key platform in his campaign for office.

“You know, he made transparency an issue. Plus he was a signatory on a pledge to support open meeting and open records laws,” he said. “And then he turns around and uses that exemption, not to mention the timing of it — since it was Sunshine Week.”

Leary added there is an exemption from state access laws that was first created in 2005 so then-Gov. John Baldacci, a Democrat, could create a homeland security advisory group that could meet in private.

Leary said he can’t recall Baldacci using the exemption to completely shield advisory groups from the public, noting “in essence [LePage] used this sledgehammer approach provision of the law to totally exempt the group.”

Yet later in March, LePage decided not to go forward with creating the councils because of public pressure. LePage did not officially rescind the executive order, but temporarily put the move on hold.

“The media really came after him on this issue,” LePage spokeswoman Adrienne Bennett told the Bangor Daily News.

LePage’s office did not respond to requests for comment.

 

South Carolina: “From day one, she will demand accountability and reform across state government.” — Gov. Nikki Haley’s campaign website

South Carolina’s Republican Gov. Nikki Haley has also faced criticism from open government advocates, as the new governor may have violated freedom of information laws — and has been criticized for allegedly using personal email accounts to conduct state business.

In February, Haley met with the chairman of the House Ways and Means Committee and the chairman of the state Senate Finance Committee to discuss the state budget.

But in doing so, the three-person meeting actually constituted a meeting with a majority of the Budget and Control Board, which is required by state law to meet in the public eye and with adequate public notice.

But Bill Rogers, executive director of the South Carolina Press Association, said Haley may have larger problems stemming from her unwillingness to share email and other records.

Even before she reached the governor’s office, Haley’s actions as a state legislator garnered concern from open government advocates.

Newspapers in South Carolina requested Haley’s email in May 2010 after a political blogger claimed to have had an “inappropriate physical relationship’’ with the then-state legislator. Haley, who is married, denied the claim and did not turn over her email messages.

She cited a lawmaker exemption to state open records law, which says that “[m]emoranda, correspondence, and working papers in the possession of individual members of the General Assembly or their immediate staffs” are exempt from disclosure.

As a gubernatorial candidate, Haley was criticized by open government advocates because she released email messages containing constituent requests, inspirational words and newsletters, but released few other documents containing official business.

Her Democratic opponent in the governor’s race, Vincent Sheheen, released records, copies of his hard drives and campaign receipts.

This marks a stark contrast from what Haley championed while running for governor.

In one of her campaign ads, Haley told voters: “There are two roads you can take: There’s the status quo with big spending, special interest deals and no reform. Or there’s real fiscal discipline, smaller government and accountability.”

Recently, the governor has taken some steps to increase government accountability, at least for other elected officials in South Carolina.

On April 12, Haley signed a bill requiring South Carolina lawmakers to vote on the record.

Specifically, the law requires a recorded vote on the final passage of any piece of legislation, with amendments, and recorded votes on the individual sections of the state budget.

“And this is about the people having the right to know what their elected officials are doing all the time because elected officials work for the people, not the other way around,” Haley said at the bill signing.

Rogers called Haley “a leader” regarding the passage of that legislation, saying “it was a big success for her.”

When asked whether this would have an impact because the legislature had previously amended rules to incorporate more on-the-record voting, Rogers said: “I’m not going to be opposed to openness in voting.”

Haley’s office did not respond to requests for comment.

 

Wisconsin: “Government is spending your money and you have a right to know when, where, and how much.” — Gov. Scott Walker’s campaign website

Gov. Scott Walker, R-Wis., did not have a hard act to follow in terms of running an open administration.

Some open government advocates said they couldn’t imagine how Walker could be less transparent than his Democratic predecessor Jim Doyle.

Wisconsin Freedom of Information Council member Mark Pitsch said in a column written shortly after Walker’s election that Doyle was known for “shunning media inquiries, defying the state open records law, and keeping his whereabouts under wraps.”

Before Walker took office, Pitsch, who is also an assistant city editor at the Wisconsin State Journal, said he asked then-governor-elect Walker in 2010 what Pitsch called “a softball” question: “Will you pledge right now to run the most open, transparent gubernatorial administration in the history of the universe?”

Walker responded: “Absolutely.”

In early March, The Wisconsin Associated Press, among others, requested email messages that Walker referred to in labor speeches.

Walker said in a speech that he had received more than 8,000 email messages, with most telling the governor to “stay firm” on his controversial budget repair bill, which would strip the state’s public workers of most of their collective bargaining rights.

The governor’s office did not respond to the requests.

Members of the Wisconsin media responded by suing Walker for allegedly violating Wisconsin’s Open Records Law.

According to the state’s Open Records Law, offices are legally bound to respond to requests “as soon as practicable and without delay.”

The complaint states: “Defendants have violated the Wisconsin Open Records Law . . . by withholding the requested email messages and delaying granting access to the email messages.” It also called the failure to provide the records “arbitrary and capricious.”

Walker’s office did not respond to requests for comment.

 

Hawaii: “There must also be transparency in government.” — Gov. Neil Abercrombie

Neil Abercrombie, D-Hawaii, took office in December and there is concern about the governor’s transparency, even though it was not a major tenet of his campaign.

In 2005, a panel of prominent members of Hawaii’s legal community known as the American Judicature Society’s Hawaii chapter recommended that governors of Hawaii disclose the names of Hawaii Supreme Court judicial candidates.

But in February, Abercrombie refused to disclose the names of candidates.

Like Kasich in Ohio, Abercrombie said disclosing the information would discourage people from persuing those jobs.

The Honolulu Star Advertiser noted that Abercrombie’s decision breaks with tradition, calling it “a departure from the practice of his predecessor,” Republican Linda Lingle.

When Abercrombie announced his first judicial appointment, he defended his decision by saying: “The public doesn’t pick the judge. I do.”

A few months later, Abercrombie angered members of the media for holding what appeared to be a staged press conference to which they were not invited, to announce that his administration reached a tentative labor agreement with the state’s largest labor union.

Initially, the caption on the governor’s official YouTube page called the meeting a “press conference,” but after The Honolulu Civil Beat questioned why more reporters were not present, Abercrombie’s press secretary, Donalyn Dela Cruz, told Civil Beat in an email that “press conference ‘was the wrong term.’”

However, in an investigation into Abercrombie’s commitment to open government, Civil Beat found that, throughout his campaign, Abercrombie rarely made promises about transparency.

The paper went through multiple speeches and press releases searching for the word, but only found it a few times.

“These few uses of the T-word do not seem to amount to evidence that Neil Abercrombie is a spokesman for the cause,” the paper said.

Abercrombie’s office did not respond to requests for comment.

 

Tennessee: “There was no secret about any of this or how I felt about it when I ran.” — Gov. Bill Haslam

While some governors made transparency promises that they haven’t yet followed through on, or only mentioned transparency in passing, others seem unapologetic for their secretive ways.

Gov. Bill Haslam, R-Tenn., has insisted that the voters knew his stance against disclosing personal income records before he was elected.

Haslam signed an executive order on his first day as governor that declared members of his senior administration would have to disclose only the financial information that members of the state General Assembly are required to disclose.

The Tennessee Report noted that this means the governor and other top state leaders would only be required to list sources of income, not how much they actually make.

State open government advocates said that, even though the executive order may be permissible under state law, prior governors, such as Haslam’s Democratic predecessor Phil Bredesen, set a standard of openness that Haslam is ignoring.

Dick Williams, state chairman of Common Cause in Tennessee, told the Report that the change is too drastic.

“It sticks out like a sore thumb at being a difference from what had been the precedent,” Williams said.

“He [Haslam] is correct that the law doesn’t require it, but it’s kind of one of those things, once you’ve set the precedent, it’s definitely a step backward to not continue it.”

But The Daily News of Memphis reported that Haslam dismissed opposition to the order, saying he made it clear he would not disclose his income throughout his campaign.

“There was no secret about any of this or how I felt about it when I ran, and ultimately I think the people of Tennessee felt very comfortable with it,” Haslam said at his first cabinet meeting in January.

 

Utah: “Our goal is open and transparent government.” — Gov. Gary Herbert

Though Gov. Gary Herbert, R-Utah, did not take office this year — he became governor in 2009 after his predecessor Jon Huntsman resigned to become the U.S. ambassador to China — he also caused a recent uproar across the state and country when he signed legislation that critics said drastically weakened the state’s open records laws.

In early March, despite protests from freedom of information advocates and citizens, Herbert signed into law the controversial House Bill 477.

Notably, the legislation passed the House and Senate after little public discussion.

The legislature recalled the bill from the governor’s desk and amended it to delay the date it would take effect at the urging of the governor and transparency advocates, who said that would give them more time to consider amending the law again before it took effect.

Herbert signed the bill after the date change was made.

H.B. 477 modified provisions of the Utah Government Records Access and Management Act so that voice mails, instant messages, video chats and text messages would not be subject to the open records law, with few exceptions.

It also placed a larger financial burden on requesters by making them responsible for any administrative “overhead costs” incurred while gathering the information.

It also said that legislators who feared that releasing certain documents would lead to prosecution could have opted to make the requested documents private.

The Reporters Committee for Freedom of the Press urged Herbert to veto the bill.

The Utah Society of Professional Journalists blasted the governor’s decision to sign it in a statement, saying: “HB477 ushers in the nation’s worst, most open-ended, ill-defined language about the costs of accessing public information.”

A few weeks later in an opinion piece for The Salt Lake Tribune, Herbert said that, even though he signed the bill, the legislature did not give the legislation the public discussion it warranted.

He called on the legislature to repeal and replace the law.

Finally, after a special session, the legislature passed H.B. 1001, which overrides H.B. 477. Herbert signed that bill into law on March 30.

Since the repeal, a working group created by Herbert has been reviewing the Utah Government Records Access and Management Act.

 

Some sunshine

Notably, there are governors who appear to have upheld their campaign promises regarding access.

New Mexico’s newly elected Gov. Susana Martinez, R-N.M., signed a bill in April requiring state agencies to provide public records electronically if the records exist in digital form, a requirement in many other states and at the federal level.

Gov. Andrew Cuomo, D-N.Y., recently signed two open government bills into law.

One law allows members of the general public to record public meetings, and the other encourages state leaders to consider the size of spaces for public meetings and whether they provide enough room for the public to attend.

Gov. Robert Bentley, R-Ala., is expected to sign a transparency bill that cleared the House, if it passes the Senate.

As of early May, the state Senate had yet to vote on the bill, which would require elected officials, candidates and their spouses to publicly disclose contracts they have with state agencies.