Grits will continue to publish during that time, but the Open Government Online amendment needs defending from increasingly mendacious attacks. It's important, I think for this city's future. I know it's critical toward ensuring openness and accountability at the local police department. And after the Austin City Council's blatant abuse of authority at last night's council meeting, I'm now fighting mad. Perhaps you can get a sense of that from the note I sent them this morning:
To the Austin City Council:Like I said, before I viewed this amendment as a good idea that deserved support. Now they've actually pissed me off.
For the record, after last night's hearing on ballot language for the open government online amendment, I'm deeply embarrassed by all of you - literally ashamed that each of you represent me in local government.
The Austin Chronicle predicted Mr. McCracken would overreach on the amendments, and he did. The claims about citizen email going online are false on their face. The clear language in the amendment only requires archiving. That was beyond sleazy - it was a betrayal of your duty to your office and the voters. If you care about the truth on that question, please see this blog post. Most of you obviously, can now quit reading.
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7 comments:
cool...!
While there is certainly some exaggeration about the consequences of the open government amendment, I have to say that some of the problematic consequences aren't so far fetched. Take me for example. I'm a law student currently studying out of state, but moving to Austin later this year after I graduate. A friend of mine e-mailed me the text of the proposed amendment a few months ago. Without reading any commentary or listening to any outside opinions whatsoever, my immediate reaction was that many of the terms in the amendment are problematically vague. Moreover, I immediately started listing off concerns that I would have as possible consequences of the amendment, just off the top of my head. As the debate progressed, I saw many of the same concerns that came to my mind echoed by others.
I approached it as a neutral party, and moreover, as someone who has been outside Austin politics for some time. I assure others that I had no predetermined agenda or attitude about the proposal - if anything, when I first heard the title, I thought it sounded great. I've wanted to move to Austin for a long time now, largely because the city is an amazing model of successful, progressive governance, nearly unparalleled in the US, especially for a city of its size. I hoped that this would be a continuation of that tradition - a shining beacon for the rest of America.
Unfortunately, I cannot simply dismiss my concerns. As a student of law, too many familiar problems of drafting and textual interpretation continue to weigh on my mind, and so far no one has really dispelled my unease. The response has mostly been vigorous reassurances that the worrisome interpretations are just wrong or won't happen. But if those interpretations seem reasonable or even probable to me, a detached observer with some legal education who approached the amendments in good faith, surely they can spring to the mind of judges, who may not be as well meaning or open minded. Even more worrisome, surely some of those interpretations will appeal to those with vested interests, grudges, or other less benign motives, who will see an opportunity to use the amendment as a basis for litigation. Even if we were to grant that the bulk of those interpretations are wrong, are we ready to confront the high probability of potentially unending litigation for all those who see something to their benefit in the language?
I hope that supporters of the amendment are willing to listen and realize that there are a lot of us out there who oppose this amendment, not because we have any interest in the status quo, not because we have something to lose, but because we feel strongly that we can do better. As a passionate progressive, I am an ardent supporter of open government. Let us not allow the emotion of the moment to blind us to the honest concerns of sincere people. Let us not fall prey to the false dichotomy of "either you're with us or against us" and believe that this plan done this way at this moment is the only choice. Let us take this opportunity to come together and create a new blueprint for progress that incorporates the insights and lessons that the citizens of Austin can offer.
Ramey - I would never say either you're with us or you're against us. I WILL say that those who misrepresent the plan knowing better are against us, and city councilmembers at Thursday's hearing were hardly expressing "honest concerns of sincere people" - they were engaging in an intentional smear job, trying to confuse "sincere people" in Austin. Those who claim it would require real-time publishing of email online, e.g., are misrepresenting the amendment, and are simply not debating in good faith.
Since you've penned four paragraphs without naming a single thing you dislike about the amendment, I can't tell whether your problems with it are based on the misrepresentations being spread around or not. Like many critics, you say you generally don't like it but name no specifics - which bad interpretations to you seem "reasonable or even probable"?
I have a problem with the expenses of the plan. Is the estimate over 30 million to implement and about 10 million a year after that? Is the current system so broken that it justifies that kind of money?
--Even if we were to grant that the bulk of those interpretations are wrong, are we ready to confront the high probability of potentially unending litigation for all those who see something to their benefit in the language?--
This states well the problem with Austin and the Dc both. To many Lawyers, writing to much crap so they can line their pockets with way way too much money.
As to the money, estimates are based on assumptions, and the City has assumed an expansive, unnecessarily broad interpretation - eg., since they claim every email must go online immediately, they budget for staff to vet each one individually. But if you read the plain language that says emails must only be archived, you forego that expense (see here).
As to the litigation issue, you're missing a key point - the City Council gets to write ordinances interpreting all this, in particular they have complete discretion to decide what's "possible" and "practical" to do. There's a distinction in the charter language - some information is actually REQUIRED to be put up, other public info must be put online only if the council finds it possible, practical, and not violative of someone's privacy to do so. If they didn't put up some of the required information, such suits might be possible. But not for areas in council's discretion.
And Jessica, I started working on this stuff 11 years ago after an incident in my neighborhood, and criminal justice was a part-time activist volunteer gig for a long time. Finally the work I did started to get big enough to require institutional support, by which time the ACLU and the Texas Criminal Justice Coalition stepped up. But most of my work on this has been as a volunteer. Meanwhile, in my professional life I left college to be an associate editor at the Texas Observer, then worked as an oppo researcher in >60 political campaigns. That's really where I honed the research and writing skill set (to the extent that it's not still pretty raw). Thanks for the compliments, and give my regards to your aunt.
Grits, just saw your response. I've been out of town for spring break, and I just got back.
To answer some of your questions, first, I'd like to re-emphasize that my concerns are not based on any "misrepresentations being spread around" because, as I mentioned in my earlier comment, these concerns came to mind without having heard any of the debate on the amendment. By this, I don't mean to imply that my opinion is completely uninformed; merely that my analysis of the language was free of outside influence.
I also believe that people should be hesitant to make judgments about the good or bad faith of the opponents of the amendment. As I said earlier, I agree with several of the criticisms of the supposed "bad faith" opponents, and I don't think it's naive to say that those critics really believe in their own criticisms. Without explicit evidence of bad faith, I think it's better to give people the benefit of the doubt unless the arguments they are making are patently absurd. Otherwise, I think it's best to simply assume that these are matters on which reasonable people can disagree.
Third, as for specific criticisms, I'm unfortunately unable to recall any off the top of my head. I'd say I'll look at it again, but the obvious concern is that now that I have been exposed to the debate, so I'm sure people may question whether I'm engaging in some revisionist history when I state my concerns.
However, I did write a fairly long comment on the initial BOR post on the open government amendment a few months ago. I believe I listed several specific concerns in that comment, so a quick search on BOR should unearth it, assuming that comments from before their recent revamping of the website are still archived.
I just tried a quick search for "open government" and "save our springs" on the Comments section of BOR, and I couldn't find my original comment.
Best I can recall right now, I had concerns about the requirements as to secrecy in settlement negotiations where the city is a party to a legal matter, the types of conversations, meetings, communications, etc. that would be covered under the amendment, the degree of detail and disclosure necessary, the problems created by ambiguity in reporting requirements, confidentiality concerns regarding citizen complaints, matters, or other communications with the city, and the sheer workload requirement of such reporting (as I recall, I compared it to the onerousness of billable hours in law firms, except the scope and detail of the open government amendment struck me as even greater than billable hours, which any attorney at a private firm can tell you eats up at least 45 minutes to an hour a day. Such an administrative regime would be a correspondingly greater concern at a government job, given that people aren't putting in the 60-80 hour work weeks that they would at a firm to make up for the time spent on administrative tasks). I'm also concerned about the effect it would have on the strategic position of the city in negotiations for company relocations, investment, etc. (I know that a lot of progressives dislike the concessions and competition that are involved in these negotiations. I myself would prefer that we had uniform tax and benefit regimes across the board to avoid these "race to the bottom" contests. Unfortunately, until that situation changes (and I'm skeptical that we could really change that in a federal system), I'd hate for Austin to unilaterally disarm and lose the valuable resources that enable us to continue our experiments in progressive governance.) As for privacy concerns, I understand that a lot of the information regarding private citizen-government communications is already available under open records laws, and that the open government amendment would ostensibly just reduce the transaction costs. However, I kind of like transaction costs, especially after studying privacy law and protections in this country, and realizing that transaction costs are often the only meaningful protections that really exist between you and invaders of privacy.
As for the city's ability to choose interpretations by ordinance, I'd be really curious to know how effective that is to stop litigation. I would imagine that the deference given to such interpretations could not possibly be greater than the deference given to administrative agency interpretations under the Chevron decision (just by way of analogy). Additionally, such statutorily enshrined interpretations are still open to attack in courts. I mean, I'd assume that the amendment authors themselves would want there to be some legal recourse if the city council chose interpretations completely at odds with the intent. I'd need to know more about the law in Texas on this type of thing to comment further, though. I'll reserve judgment until I see a detailed explanation of how this interpretation by ordinance would work, legally speaking.
I hope this has helped explain my concerns. My main point is that the motivation behind the amendment is laudable, but that there could be just a few key revisions made to the language that would vastly improve it. I just don't understand the reluctance to consider some strategic changes that would both ensure that we get the best results and protect it from being overturned as unconstitutional or in conflict with state or federal law.
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