Our Public Records Laws are Broken



Patrick is a mid-40 year old geek with an undergraduate degree in mathematics and a master's degree in Information Systems. Nothing he says here has anything to do with the official position of his employer or any other institution.

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41 Responses

  1. Avatar InMD says:

    While it’d be a great thing for Congress to act on I think ruling class nihilism ensures it will never happen. The last thing anyone wants to do is write a law increasing government accountability. Any Rep or Senator with any ambition knows that it one day might be used against them.Report

    • Avatar Oscar Gordon says:


      And people wonder why I think citizen initiative & referenda are a good thing.Report

      • Avatar Murali says:

        and Brexit is why they are not.Report

        • Avatar Oscar Gordon says:

          Brexit is not, in my mind, a case against citizen initiatives. While the outcome is not ideal, the vote was a signal that elected officials were not listening well enough to all of their constituents.Report

          • Avatar InMD says:

            That’s my opinion as well. The fact that a referendum may have disagreeable results sometimes doesn’t mean they have no place in how government works. It’s not like elected officials never craft bad laws or policies themselves.Report

            • Avatar Oscar Gordon says:

              Politicians are human, at least, most of them probably rise to that distinction, so they are certainly prone to all the foibles – confirmation bias, echo chambers, self-delusion, etc. One of the things our political system lacks is a concrete way to express public approval or displeasure beyond opinion polls. Ideally we should just simply vote the guy out, but that isn’t as clear a message as many like to believe. Sometimes, a referendum, even if it isn’t binding, is a way to send a clear message that something needs to happen, or that something should most decidedly NOT happen.Report

          • Avatar Snarky McSnarkSnark says:

            What I have found surprising is that national referenda on long-term and consequential changes to a society can pass on a simple majority (50% + 1). Examples include Brexit, Quebec withdrawing from Canada, or Scotland from the UK.

            I would think that for changes of this deep impact, a supermajority of, say, 60% or better would be required as a measure of national consensus…Report

            • Avatar Oscar Gordon says:

              There is something to that, although how to objectively determine what kind of referendum would pass on a simple versus a super majority would be a political furball. I mean, a citizen bill demanding government transparency isn’t something that should require a super majority, but I could see withdrawing from a treaty as something that should.Report

              • Avatar Jaybird says:

                My problem is that the dynamic always seems to work like signing up for cell service or cable television or whatever.

                It always seems to only require 50%+1 to sign up for Comcast.
                Saying “I’d like to cancel Comcast service” always seems to require 60%, or 66.67%, plus a cancellation fee, oh, and you’re racist.Report

              • In California, it takes a supermajority of the Legislature to raise taxes, but a simple majority of the voters to amend the state Constitution. This is messed up.Report

              • Avatar James K says:


                The best way to handle that I think is to use multiple referenda. For example, had I been designing the Brexit referendum, I would have had a simple “in or out” vote first, followed by negotiating an agreement-in-principle to exit with the EU, and then putting that specific deal to the vote in another referendum.

                That gives the voters a concrete proposal to vote on, but the first vote ensures that you don’t go to the trouble of negotiating an exit unless there’s public support for doing so. It also ensures that there must be sustained public interest in exiting the EU, since two yes votes separated by a year or two would be required to actually exit.Report

              • Avatar Oscar Gordon says:

                That’s not bad. First vote says, “We are going to have this conversation”, 2nd or 3rd vote(s) shape the conversation & decision.Report

              • Avatar Michael Cain says:

                The difficulty is getting the rest of the EU to go along. If the Commission sticks to its “we don’t do hypotheticals, if you want to negotiate exit terms send us an Article 50 notification and start the two-year timer” guns, the multiple-referendum strategy doesn’t work.

                Having watched referendums and initiatives for most of my life, and being strongly in favor of them in general, I would note that the voters certainly don’t have a monopoly on making stupid choices. But super-majorities are probably an important thing for one-shot irreversible decisions.Report

              • Avatar Oscar Gordon says:

                Well, I am thinking more generally, but I can see how in the case of Brexit, multiple referenda might be an issue.Report

              • Avatar DavidTC says:

                While you just described a reasonable process to leave the EU, there’s no any evidence the EU would actually play along with it. Right now, they’re refusing to do any negotiating until the button is pushed for the two-year window, it’s hard to see why they would have done any different if the UK had *scheduled* that.

                The EU wants *all* the power in the negotiation to leave. That means they want a two-year ticking clock running the background the entire time.

                Granted, if you don’t want the UK to leave the EU, it’s a plausible-sounding structure that would result in the UK staying, because the negotiations at the time of voting would be ‘We could not negotiate anything at all’.Report

              • Avatar James K says:


                Granted, the EU’s attitude represents a complication.Report

              • Avatar Guy says:

                Honestly, I might just say “all referenda require a 55% percent majority to change the status quo”, on the assumption that anything that winds up on the ballot is important and 50%+1 is vulnerable to noise on close decisions.


                But that most things probably aren’t important enough to merit a 60% requirement. That is, we want a clear majority (obviously greater than 50%), but don’t need a genuine supermajority.Report

              • Avatar Oscar Gordon says:

                Sounds good, since we are just tossing ideas around.

                Advisory votes would still be 50+1%Report

    • Avatar Patrick says:

      There is more than something to this argument.

      And it isn’t entirely embedded in nihilism, either. There are principled arguments to be made that some constituents will be less forthcoming if their input is all on the record.

      But an actual conversation about this is probably loads better for our political discourse than the current default of shoddy law that gives partisans cover to have endless investigations into actions that are likely not going to be able to be meaningfully prosecuted.

      This is independent of the conversation about actual national security documents, which… we probably still want to be handled differently for politicians than career security or military personnel.Report

      • Avatar InMD says:

        I don’t entirely disagree, and I tried to speak to that in my response below to Jaybird. I could live with delays in disclosures, or temporary secrecy provided there’s a regular system that promptly and reliably, if not immediately, brings things to light. Maybe it’s just my attorney ways but there are also times for in person conversations where certain thoughts aren’t put to writing. I’m sympathetic to off the record discussions when needed and a good leader should know how to distinguish that.

        That said my position is based on my view that our government is too opaque, not too transparent. I’m more worried about citizen ignorance of official activity than I am about a politician or bureaucrat having an embarrassing or sensitive email disclosed.Report

    • Avatar Kolohe says:

      Nihilism? Say what you will about ruling class self-perpetuation through deliberate obfuscation, at least it’s an ethos. (It’s the oldest ethos)Report

  2. Avatar Jaybird says:

    Rosemary Woods Did Nothing Wrong.Report

  3. Avatar Guy says:

    Given what’s happening with Hillary Clinton at the moment, I am of the opinion that there isn’t really a way to give a law of this nature teeth. That is, it is highly unlikely that you can provide genuine consequences such that a member of the government will choose not to use an external service for official or semi-official communications. Probably the best you can do is make it literally impossible. Of course, the question then is, do you want to? Is it appropriate that members of the federal government not be allowed private email accounts? Probably, but I could see arguments against.Report

    • Avatar Jaybird says:

      We all know that our leaders will need to discuss very, very unpleasant things and make very, very unpleasant compromises with very, very strange bedfellows in order to get things done.

      The thought that “hey, these deals will be recorded in some form” will keep some of those sausages from being made and that forces one of two reasonable outcomes:

      1. Let’s not make that deal
      2. Let’s make that deal in a place where nobody who doesn’t already know about very, very hard truths will be able to get their hands on the artifacts related to the sausages getting made

      And the people who do 1 tend to lose elections if they don’t lose the primaries. Why?

      Because people like the sausages.Report

      • Avatar InMD says:

        I think that issue is something that can be addressed with statutes of limitations and normal sunsetting of classification protocol. To me it’s more the allergy to any type or accountability that prevents positive change. The government has just convinced us there’s something noble in its secrecy, and finding out what it does behind closed doors, even many years later, could jeopardize our safety because terrorism, etc.Report

      • Avatar Guy says:

        Absolutely sausages will be made. I’m not trying to claim that we’ll lose any sorts of dried meat to proper records laws, just that Hillary Clinton is a human and presumably occasionally sends and recieves emails about, say, a friend’s child graduating from college, and I think it’s reasonable that that not automatically be recorded on the assumption that, Clinton being an officer of the government, every word she speaks is government business.Report

      • Avatar DensityDuck says:

        People like sausages, and there are also people who like being sausage-makers.

        And I’ll allow as how they genuinely believe that the world is a better place for sausage having been made and them having made it.Report

    • Avatar bookdragon says:

      I think part of the answer to “do you want to?” is “Do you want them to be able to do their jobs?”

      There’s an argument to be made wrt to politicians, but if we are talking all federal employees, esp. those in State who may well find themselves in god-knows-where with limited access to internet communication, let alone secure US govt servers (and State’s are notoriously bad and out-of-date b/c congress has refused approving upgrades for almost 20 years), how do they transmit something that can’t go by phone? If it’s time sensitive they are faced with a choice between following protocol or doing their jobs.

      Hillary may have been the only one with a private server, but she was far from the only one using private e-mail, and in many cases that wasn’t to avoid FOIA or PRA but simply to be able to send e-mail at all.

      So if we make this rule that only govt servers can be used, we also need to provide the funds to make those servers *useable* where and when they are needed.Report

  4. Avatar Damon says:

    “I’m also keenly aware of the deep and pervasive chilling effect it has upon elected and appointed officials to know that at just about any time, any old citizen can file a request that can cause some email that you authored in a moment of frustration or irritation to wind up being included in an archive, selectively plucked out, and splashed across some front page to show how nefarious you are.”

    Welcome to anyone who works for a corporation’s electronic life. You learn not to write stupid crap. But even if some law were passed mandating gov’t employees keep all this archived, they’d just get the stuff classified and put it out of the FOIA regs.Report

    • Avatar InMD says:

      I’m pretty sure this is basically what happens. The banality of so many of the diplomatic wires that were leaked is pretty good evidence that the government is classifying information that isnt dangerous but is awkward or embarrassing.Report

      • Avatar Dark Matter says:

        “awkward or embarrassing” would be viewed as “dangerous” to a politician if said information would cost them the election.Report

      • Avatar DensityDuck says:

        It’s pretty standard security procedure to classify everything. That way, the actual important stuff doesn’t stand out.

        Email 1:
        “I talked to the French ambassador. Nothing of importance was discussed.”
        Email 2:
        “I talked to the French ambassador. Nothing of importance was discussed.”
        Email 3:
        “I talked to the French ambassador. Nothing of importance was discussed.”
        Email 4:
        TOP SECRET // KLF-ACDC-XTC // 99X1
        Email 5:
        “I talked to the French ambassador. Nothing of importance was discussed.”

        D’ya think there might be something of importance in Email 4? If they only classify the important stuff that makes it a lot easier to search through 4.2 million emails to find the good ones.Report

  5. Avatar Dark Matter says:

    Now, the $64,000 question, of course:”Is this like or not like what Hillary Clinton was doing with her email server?”

    Bush’s actions are the nose of the camel, Hillary’s are the entire camel. It’s what server is hiding that I find disturbing.

    Hillary is getting 700 emails a month from The Clinton Foundation (TCF).
    Ergo she’s actively taking part, presumably raising money…
    …from the people she’s dealing with as Secretary of State

    That would be over and above how Bill Clinton’s “speaking fees” skyrocketed after she became Secretary of State. http://www.theatlantic.com/politics/archive/2015/04/more-money-more-problems-a-guide-to-hillary-clintons-cash-scandals/391299/

    At it’s root we’re trying to compare the hiding of (assumed) dirty tricks getting Bush elected and what words do we want to use to describe this? Conflict of interest? Bribery? Clinton Cattle Futures 2?Report

    • Avatar greginak says:

      The Bush stuff was while he was prez. But of course it goes without saying whatever Hills did is far worse. Always is.Report

    • I think the phrase you’re looking for is “fever dream”; Straw Hillary is indeed a potent archvillain, but, alas, she’s as much a fiction as Jim Moriarty is.Report

      • Avatar Dark Matter says:

        Not supervillain, just an openly corrupt politician. And btw I’d vote for her to keep Trump out of the White House.

        Go look at “Clinton Cattle Futures wiki”. What she claims to have done is roughly the same as winning the lottery every week for months.

        If she can actually get in/out of the market at it’s absolute low/high on a daily basis, that’s a Trillion (with a “T”) dollar skill which no one else on the earth has and she’s wasting her talents.Report

  6. First, it is not credibly arguable that Alberto Gonzalez didn’t know that they were doing this, which was pretty clearly in violation of the Presidential Records Act (IMO).

    Albert Gonzales was subject to the e-mail policy, so every 30 days everything in his brain was deleted.Report

  7. Avatar Dark Matter says:

    Honestly, I might just say “all referenda require a 55% percent majority to change the status quo”, on the assumption that anything that winds up on the ballot is important and 50%+1 is vulnerable to noise on close decisions.

    I don’t know… the whole point of bypassing the politicians is to avoid the “agent” problem (where what’s good for the agent isn’t for the people). A 50%+1 vote is the legit will of the people, including the ability to be stupid.

    Do we really want to establish a principal where 55%(-1) can declare they despise the current situation and have them still be told, “not good enough to override your political masters”? The powers in charge already have lots of ways to put their thumb on the scales, and I have to assume they did (competently is a different question).

    I understand the attraction to wanting to override this one, but it seems like something which could and would be abused just as a matter of course.Report

  8. Avatar DensityDuck says:

    Never really understood where the whole “BOTH SIDES DID IT” argument was supposed to be going in this instance. It’s not actually an argument that Hillary Clinton didn’t break the law.Report

  9. I will note that public records laws are not criminal statutes, so elected and appointed officials bypassing public records laws are a poster child for “relatively toothless legislation”.

    I wasn’t aware of this. I understand that some states’ records laws are criminal statutes, though. If that isn’t the case nationally, that’s a surprise. (I’m not saying it’s wrong, just that I didn’t know it.)Report