The Face of Opacity

State agencies detest Open Records requests, perhaps in large part due to the simple fact that they generally require a staff member to pour through the raw data that a reporter, lawyer, or statistician really, really wants to see, whilst the staff member mainly cares about all the other work they would rather be doing, and there’s a lot of things to copy, sharpie out, and send out to lawyers for final review.

The whole matter could be settled by, for example, a policy where information is born free – where the use of sensitive information like payment or identity numbers are easily severable where used in forms, and a general notion that wherever a private version of a document is sitting, there is already a public version of it sitting next to it in the folder or on the server, and an irreproachable reason why that secret is being kept.

But that would make too much sense or take too much time for everything in the face of the low odds that anyone will ever inquire about any particular thing the state is doing. So to threaten the continued health of what’s left of Open Records, all it really takes is a bad moment, say a ballot measure’s advertising agency picking up B-roll that just happens to include the former manager of the Devils Lake Chamber of Commerce, and next thing you know, transparency is off the rails.

Despite the red herring about faces and waivers, what’s ultimately happening here is the state bureaucracy is proposing changes to laws that will limit public discourse and hoard state-funded and state-collected data and media for internal use only. And it has featured state employees making statements that sound like a political attack run during the middle of an election.

Now, this completely sets aside the fact that you can’t claim copyright against a public policy advertisement. Which could really be a whole post in itself.

Maybe the expectation is that with no Michael Geist or Lawrence Lessig to say a second word, the state government will write a Christmas card to itself that neuters what’s left of Open Records.  Well, if any such bill appears in the North Dakota Legislature, I will physically be there to harp upon its folly.

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