April 5, 2010

The Unintended Consequences of Sunshine Laws

Laws created to ensure the open review of government information on the local, state and federal level, such as the Freedom of Information Act, are a good thing. Typically referred to as sunshine laws, these requirements were designed to make previously inaccessible government information available to the public. These laws not only apply to government documentation, they also grant the public and media access to government meetings.

I’m a huge proponent of the public’s right to know and of transparency. However, some consideration must be given to what falls within the public’s right to know when it comes to an organization’s internal issues, especially when an issue is communicated to a supervisor, manager, HR professional or through an employee hotline or other method for anonymous reporting.

EthicsPoint operates reporting hotlines and delivers case management solutions to more than 2,300 clients around the world. Last year, we collected over 150,000 cases from both the hotline and our clients’ web-based report forms. An analysis of these cases shows that 15-18% were found to be frivolous or unfounded, e.g., a rant or a malicious attempt to cast doubt on a co-worker or manager, while 10-15% were immediately actionable and/or contained enough specifics to allow the case manager to quickly resolve the issue or concern. The remaining 70+%, however, required a certain degree of finesse, exploration and as much ‘art as science’ to reach a point of resolution.

Recently, a high school principal in Texas abruptly retired after learning he was under investigation for allegedly sexually harassing one of his staff. His actions are not the subject of my concern, by all appearances the school district was doing a great job of seeking information and investigating the validity of the allegations. However, what does concern me is the media’s open records request for any documents pertaining to the investigation under the auspices of open records laws.

The school district’s counsel has wisely requested an opinion from Texas’ Attorney General seeking exemption from producing the documents. In her request, the counsel stated the document(s) “contains highly intimate or embarrassing facts, which if publicized would be highly objectionable to a reasonable person, and the information contained in the report is not of legitimate concern to the public.”

In 2007, another Texas school district took an entirely different path. They suspended the use of their hotline and case management system to avoid the unnecessary scrutiny the state’s sunshine law had created. In this instance, the sunshine law created the opposite effect for which it was designed. The school district retreated and many of the proven tools used to mitigate fraud and abuse were abandoned. As a result, the school district’s interests weren’t served and the people charged with protecting the school district’s interests were technologically handicapped in their ongoing efforts.

This isn’t just a Texas phenomenon. In 2009, an Arizona reporter acknowledged – “Official action by government should be public and transparent. But I think the body politic suffers – in terms of competence, efficiency and effectiveness – by making our government employees work in a fish bowl. But these broad, sweeping public-records requests are clearly fishing expeditions, intended to harass and intimidate. And as such, they constitute a threat to the rule of law.”

So while I passionately believe in bringing visibility and transparency to the issues and events that pose risk to any organization, I also feel the unintended consequences of sunshine laws have the potential to dramatically limit accountability unless they are limited in scope. How do you feel about this and do you think that open information laws should have some governing guidelines in protecting privacy, relevance and appropriateness?


1 Response to "The Unintended Consequences of Sunshine Laws"

Doug Cornelius said... April 7, 2010 at 7:45 AM

David -

When government acts an employer there is whole new set of rules. Things that work in the private workforce work differently when you have to take into account the constitutional and statutory framework imposed on the government as an employer and its workforce.

It seems to be a mistake to have the records open while an investigation is in process. In my view, giving out an incomplete record is worse than hiding the record under lock and key.

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David Childers
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