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There’s no place for trade secrets in government

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Government is not a business. And it is dangerous public policy to treat it like one.

Local politicians recently invoked the “government as business” mentality to justify skirting the law when they met behind closed doors to hammer out a deal on gambling in Polk County.

The Iowa open meetings law says that when a majority of the members of a government entity gathers to discuss public policy, the meeting must be open to the public. The law seeks to ensure that “the basis and rationale of governmental decisions, as well as those decisions themselves, are easily accessible to the people.”

The Polk County Board of Supervisors avoided having a quorum present at the gambling negotiations by having members rotate in and out of the meeting at various times. Three of the seven Des Moines City Council members also attended the meeting. Important decisions that will affect the community for years were railroaded through the political process with minimal public education or input.

The officials argued that they couldn’t talk frankly in public session. Said Board of Supervisors Chairman John Mauro: “You can’t negotiate in the open when you’ve got other sides trying to make deals. Do you see other businesses doing that?”

The county made a similar government-as-business argument earlier this year when it refused to release documents related to the development of the Iowa Events Center. The supervisors hired an outside lawyer in an attempt to hide a feasibility study as “attorney work product” and also claimed that they shouldn’t have to release the study because it contained “trade secrets.” (A Polk County district judge rejected the first argument, but agreed with the second.)

Polk County officials aren’t alone in employing this gambit. An intergovernmental agency in southeast Iowa threw up the trade-secrets smoke screen recently when it introduced a new “public information policy.” The agency, a regional waste authority, said right off the bat that it wasn’t going to release documents that contained “proprietary and trade secret information” because it didn’t want to “compromise [its] position in a competitive waste disposal and waste diversion environment.”

The proposed policy also said that the agency would refuse “requests for unreasonable amounts of information” — unreasonable to whom? — and said the records it did release could not be used for “commercial or political purposes.” Huh?

It’s easy to see how this government-as-business mindset has gained credence. Politicians campaign on promises to streamline government and make it more efficient. Traditionally public services are increasingly being outsourced to private business in an effort to save money, despite the inherent dangers of increased secrecy and lack of accountability.

But government is not a business — legally or philosophically — and it is contrary to the public interest to argue that it should be run like one.

Many areas of the law distinguish between the public and private spheres. A private employer has great latitude in limiting the free speech rights of its employees in the workplace: the sorts of slogans they can wear on their T-shirts, for example, or the e-mail they can send or receive at work. Under state open records law, the salaries of government employees are public fodder, but the same information is usually confidential in the business world.

Philosophically, the purposes of government often diverge from those of businesses. A business exists to make money for its owners. A government body exists to serve the public, plain and simple. And though secrecy may be appropriate in the context of a private business, it rarely serves the public good. Democracy thrives on information, education and accountability.

The issue of open government isn’t “inside baseball,” of concern only to politicians and journalists. It affects us all. When our elected officials cut us out of the political process, we lose our voice in deciding what kind of community we want to live in and to leave for our children.

Kathleen Richardson is executive secretary of the Iowa Freedom of Information Council, a non-profit coalition of Iowans concerned about open government. She teaches journalism and media law at the Drake University School of Journalism and Mass Communication. She is a graduate of Drake Law School.