Access to the deliberative processes of government

Openness and transparency in government apply not only to governmental records and data, but also to governmental decision-making processes themselves. In the United States, there is a strong tradition, in part protected by the American Constitution itself, guaranteeing a right of public access to the proceedings of courts and legislative bodies. In more recent times that tradition has been supplemented by the passage of federal and state laws, popularly known as "sunshine laws," that also guarantee public access to meetings conducted by executive and administrative agencies.

 

The U.S. Supreme Court has ruled, in Richmond Newspapers, Inc. v. Virginia, in 1980, that the guarantee of freedom of speech in the First Amendment to the U.S. Constitution includes a right of the people to access to criminal trials. At the heart of this right is the recognition of the vital role that public access to criminal proceedings plays in the democratic life of the community. As the Supreme Court explained in Chief Justice Burger's opinion for the majority, "the early history of open trials [in Colonial times in America] in part reflects the widespread acknowledgment, long before there were behavioral scientists, that public trials had significant community therapeutic value. Even without such experts to frame the concept in words, people sensed from experience and observation that, especially in the administration of criminal justice, the means used to achieve justice must have the support derived from public acceptance of both the process and its results." This right to attend criminal trials has been extended by many American courts to civil trials as well. And indeed there are powerful and persuasive reasons, well grounded in both history and function, for applying the right of access to civil cases. As 19th-century Justice Oliver Wendell Holmes once observed, access to civil judicial proceedings is "of vast importance" because of "the security which publicity gives for the proper administration of justice. . . . It is desirable that the trial of [civil] causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed."

 

In the modern television age, the right of the public to attend judicial proceedings has been augmented by a practice, increasingly common in the United States, of permitting television cameras to cover trials. At present there is no constitutional right to cameras in the courtroom recognized by American courts, but many courts, either by state statute or by local court rules, now routinely allow television cameras to tape and broadcast trials. There is, in fact, an American cable television network, known as Court TV, that broadcasts actual trials as part of its main programming, hour after hour, day after day. In the United States, at present, this right of access is more commonly allowed in state courts than in federal courts.

 

The U.S. Supreme Court does not permit cameras or live radio broadcasts in its courtroom. In recent years, the Court has audiotaped its proceedings, and has released them at the beginning of the next term through the National Archives. Expediting this tradition during the dramatic Supreme Court litigation over the 2000 presidential election, the Supreme Court did allow the news media to broadcast a tape-recording of the entire proceedings immediately following their conclusion, in recognition of the intense public interest. Americans were thus able to listen to the hearings, which lasted about 90 minutes, only minutes after they were concluded.

In all courts in which cameras or microphones are permitted, judges are normally granted considerable discretion to establish ground rules and procedures to minimize the disruptive impact of the cameras and microphones, and to ensure that their presence does not undercut the vital importance of ensuring a fair trial.

 

At the legislative level, there is a long tradition in the United States of open deliberations for legislative bodies. This is normally not guaranteed by constitutional documents, but rather is entrusted to the discretion of the legislative bodies. Nevertheless, by strong tradition, most legislative proceedings of the U.S. Congress and of state legislatures are open to the public. More recently, proceedings of legislative bodies have become routine on television. In the United States the C-Span Networks regularly broadcast proceedings of Congress, and to a somewhat lesser extent, proceedings of state legislatures are now broadcast.

In response to the perception that meetings of federal, state, and local agencies are often far more important in the actual administration of public business than the deliberations of legislative bodies themselves, the federal government, and many state governments, have enacted open-meetings laws, often referred to as "sunshine laws."

 

The federal open-meetings law, called the "Government in the Sunshine Act," was passed by Congress in 1976. The law requires that meetings of a federal agency be open to the public. The law defines "meeting" as constituting a "quorum" for the conduct of business -- that is, the deliberations of the minimum number of government officials required to effect official action on behalf of the agency. It commands in stern and sweeping language that officials shall not "jointly conduct or dispose of agency business" except in such an open-meeting, and further states that "every portion of every meeting of an agency shall be open to public observation."

There are, as one would expect, exceptions, largely tracking those of the FOIA, designed to exempt from the open-meetings law proceedings involving national defense or foreign policy, internal agency rules, trade secrets, law enforcement investigations, regulation of financial institutions, personal privacy, and disclosures in which an individual will be accused of a crime or formally censured.