Wednesday, June 18, 2014

Can the state declare records secret?

Posted By on Wed, Jun 18, 2014 at 7:12 AM

click to enlarge WHO'S COuNTING? Arkansas has agreed to keep oil shipment information secret.
  • WHO'S COuNTING? Arkansas has agreed to keep oil shipment information secret.
The Arkansas Democrat-Gazette reported this morning  that state officials had signed an agreement with two railroads not to release information provided to the state about rail shipments of crude oil.

Not even North Dakota, the source of his heavy crude, has rolled over so readily to the railroads' request for secrecy. As a regulator there noted, anybody with fingers and a notebook can go down to a railroad crossing and count rail cars. So much for proprietary information.

I haven't thought much about this particular issue, but I do have a thought on a broader question:

A contract doesn't make an illegal action legal. Records kept in the course of business by a state agency are open to public inspection unless otherwise exempted by law. Law, I said, not agency whim.

But for the dubious "proprietary information" claim — something that a business can't legally invoke without some shred of proof that it's a valid claim — a state agency, here the Department of Emergency Management, can't agree to violate state law.

If the legislature wants to exempt this information, let the legislature exempt it. It's a bad practice to let state employees decide on their own hook what is and is not open to the public to the point that they sign a solemn contract. This further ratchets up the difficulty of public access against a deep-pocketed private company with no interest in public accountability.

I am reminded again of when the University of Arkansas invented a "competitive disadvantage" argument to shield its dealings with Walton billionaires from public disclosure over an effective rental of a portion of  the public's university in return for Walton money. The doughty throwaway tabloid that challenged this giveaway of public accountability didn't have the deep pockets to challenge the phalanx of taxpayer-funded lawyers  who won a lower court's poor decision to keep the public's business secret. Judge Chris Piazza was wrong on that one, but he's made up for it since. Note, please, that we didn't call for his impeachment at the time.


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