The touchstone of the sunshine law is the concept of a "meeting." Here the law seeks to distinguish between the formal deliberations of a quorum within an agency in which actual decisions affecting the public will be made, and the preliminary and informal discussions of policy that are a natural and inevitable requirement of governance. Congress, in drafting the Sunshine Act's definition of "meeting," recognized that the administrative process cannot be conducted entirely in the public eye. Informal background discussions that clarify issues and expose varying views are a necessary part of a government agency's work. To impair such discussions would inhibit candor among the officials, and would act as a drag on the conduct of government, without achieving significant public benefit. Thus, the law strikes a compromise, and is triggered only when at least a quorum of the agency's members actually conduct or dispose of official agency business.

 

Once again, this legal picture has been augmented by television. Throughout the United States, local cable television systems typically set aside one or two channels devoted entirely to the broadcast of local government deliberations, including such meetings as city or county government sessions, meetings of school boards, or zoning boards.

Access to places

To what extent, in a free society, should citizens, including members of the media, have a legal right of access to public places like prisons or schools run by the government?

 

One response to the issue of access to places owned by the government would simply be to say that citizens have no access to government property at all, because it is, after all, the government's property, and the government should have the power to include or exclude anyone it wishes. This notion has been rejected in American law, however, and has been replaced by a body of First Amendment principles that go under the heading of "public forum law." Certain places, such as parks, major public squares, streets, and sidewalks are deemed "traditional public forums," areas of government property that are held "in trust" for the people -- that is, places where the people have retained the right to assemble for peaceful expression and demonstration, as long as public order is maintained. Even beyond places such as parks and public squares, American courts have recognized that certain other facilities, such as public auditoriums, meeting rooms, or atriums of large public buildings, may also become "public forums" in which any person has the right to speak or to listen to what is transpiring.

 

Many government institutions, however, are not "open spaces" suitable for expression, but are rather working institutions in which the government's routine day-to-day business is being conducted. I am not speaking here of the deliberative or decision-making business of government, the subject of access to official proceedings, such as courts or administrative agency meetings, but rather the other non-deliberative functions of government, such as those provided by government hospitals, or schools, or prisons. These institutions are traditionally not regarded as "public forums." There is, by tradition, no recognized legal right for citizens to enter these institutions, and access to them can be limited to those with business to conduct there. Schools may exclude all but students, teachers, administrators, and parents, for example. Hospitals may exclude all but patients, medical personnel, and bona-fide visitors. Prisons may exclude all but prisoners, prison officials, and lawyers.

 

Yet for all of these institutions, and many others that can be imagined, there may be pressure from citizens, including members of the media, for access, in order to observe and perhaps critique what is transpiring. Members of the public or the media may wish to report on alleged abuses, corruption, squalid conditions, or other perceived improprieties taking place within these institutions. Since these institutions are financed by public money, the argument is that the public has a right to know what is going on inside them. At least for the present, American courts have not been willing to recognize any constitutional right of access that is generally applicable to such institutions. What some courts have been willing to acknowledge, however, is a principle of non-discrimination. If institutions do grant some rights of public access -- such as public tours of prisons, for example -- the institutions cannot discriminate against the media, or against citizens who take the tour solely for the purpose of observing and gathering information potentially critical of how the institution is operating.

 

The value of openness

All governments everywhere and at all times in world history have an inherent inclination to govern at least partly in secret. This is a natural human instinct, and a natural instinct of government. A society that wishes to take openness seriously as a value must therefore devise rules that are deliberately tilted in favor of openness -- tilted more than may at first seem reasonable -- in order to counteract the inherent proclivity of governments to engage in control, censorship, and secrecy.

 

We are challenged in modern times by breathtaking developments in communications, as technologically revolutionary as the printing press, developments that promise to alter dramatically the ways in which we gather, store, organize, and communicate information. A nation committed to an open culture will defend human expression and conscience in all its wonderful variety, and accord substantial protection to freedom of speech, freedom of the press, freedom of religion, freedom of association, freedom of assembly, and freedom of peaceful mass protest. These freedoms will not only be extended to political discourse, but to the infinite range of artistic, scientific, religious, and philosophical inquiries that capture and cajole the human imagination.

 

A society that wishes to adopt openness as a value of over-arching significance will not merely allow citizens a wide range of individual expressive freedom, but will go one step further, and actually open up the deliberative processes of government itself to the sunlight of public scrutiny. In a truly open culture the normal rule is that government does not conduct the business of the people behind closed doors. Legislative, administrative, and judicial proceedings should, as a matter of routine, be open to the public.

 

For Additional Reading

Ellen Alderman and Caroline Kennedy, The Right to Privacy (Knopf 1995)

How to Use the Federal Freedom of Information Act, Reporters' Committee for Freedom of the Press (6th ed., FOI Service Center)

Ithiel De Sola Pool, Technologies of Freedom (Harvard 1983)

Rodney A. Smolla, Free Speech in an Open Society (Knopf, 1992)

Sanford Unger, The Paper & the Papers: An Account of the Legal and Political Battle over the Pentagon Papers (E.P. Dutton 1972)

About the Author:

Rodney A. Smolla is the Allen Professor of Law at the University of Richmond School of Law. He is a scholar, author, and lawyer with expertise in constitutional law.
(Rodney A. Smolla)