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Government transparency: AFP’s and AFPF’s roles in holding government accountable

This week, the newsletter is authored by AFPF Policy Counsel Ryan Mulvey, whose name you might recognize from previous newsletters about administrative state reform. He’s also an expert in government transparency, so I’m delighted to have him author this newsletter in honor of Sunshine Week. – Casey

In the early months of the pandemic, the state of Kansas summarily ordered any business that was not considered “essential” (as defined by the Kansas Division of Emergency Management) to shut down.

Among the businesses allowed to stay open? Golf courses, liquor stores, pool cleaners, and bait shops.

Meanwhile, others were ordered closed, even when they could operate without open contact or outdoors in the open air.

And these businesses were left in the dark as to how these decisions were made. The agency didn’t provide explanations, even when the businesses begged for the opportunity to follow health and safety guidelines to stay open.

It was only when Americans For Prosperity-Kansas used the Kansas Open Records Act that citizens were able to learn which businesses were allowed to stay open and why.

The COVID-19 pandemic may have been a once-in-a-generation situation. But the unfortunate reality is that the state showing favoritism wasn’t a one-off; the government picks winners and losers in states across the country every day.

That’s why transparency is so important. Which is one reason I’m excited to celebrate Sunshine Week, which runs from March 10 – 16 this year.

What’s Sunshine Week?

Sunshine Week is a special time when we acknowledge the importance of open government, transparency, and the role that Freedom of Information (FOI) laws play in holding those in power to account.

Sunshine Week also presents a unique opportunity for transparency advocates to gather with journalists, citizen activists, and government bureaucrats — groups that usually don’t overlap! — to celebrate a shared commitment to the principles of political accountability that undergird our constitutional order.

The promise of FOI laws is that they empower everyday Americans to check those in positions of power and to shed sunlight — the best of disinfectants, as Justice Louis Brandeis once quipped — on the unelected bureaucrats who occupy the countless alphabet agencies and regulatory bodies that increasingly govern all aspects of our daily lives.

The power that derives from the right to access public records is vital to the success of our democracy. And I’m proud to work at an organization that takes that power, and the responsibility it entails, so seriously. Here are a few examples of the good work being done by Americans for Prosperity (AFP) and Americans for Prosperity Foundation (AFPF) in the transparency space.

AFPF’s Annual Sunshine Week Symposium

Throughout the week of March 11–15, AFPF will publish short essays to our website from thought leaders discussing the importance of open government at the federal, state, and local levels. And this year we’re inviting those from the center-right space to provide a conservative/libertarian perspective.

On Thursday, March 14, at 1pm Eastern, the essayists will join me for a webinar discussion, the Fourth Annual AFPF Sunshine Week Symposium. Anything FOI-related will be fair game. If you’re interested, you can register online.

Previous years’ symposia and webinar videos are still accessible, too.

“Right on Transparency” – A New Coalition Effort

Many of the folks we expect to participate in this year’s Sunshine Week Symposium are also part of a new coalition group that debuted last October. “Right on Transparency” brings together leading right-of-center groups committed to comprehensive reform of open-government laws with an aim of fostering a more engaged citizenry.

The coalition effort, which was spearheaded by AFPF and includes eight other charter members, has already published three model policies on proactive disclosure, requester fees, and best practices for records management. The policies are worth glancing over.

I’ve also heard through the grapevine that another model policy is going to debut next week! So be sure to check back on the coalition website or contact the group to request being added to the press distribution list.

AFP’s State Chapters Are Fighting the Good Fight

Being an advocate for good government isn’t just an academic exercise.

Don’t get me wrong! I love litigating FOI issues as part of my day-to-day job, and I appreciate the effort involved with writing a good old-fashioned white paper. But sometimes ensuring that transparency is a priority requires the hard work of talking to legislators and staying vigilant about legislative proposals that find their way to the committee floor.

AFP’s state chapters are doing an excellent job in this regard. I’d like to highlight a couple of recent examples.

Just a few weeks ago, in Kentucky, a bill was introduced that would have radically altered the definition of a “public record” to the point of excluding a whole host of important categories of documents that reflect how government business is conducted and policy formulated.

The AFP team were instrumental in helping correct course — as the head of the Kentucky Open Government Coalition publicly stated — and securing a promise from the bill’s sponsors that revisions would be made to ensure the integrity of the Kentucky Open Records Act. AFP State Director Heather LeMire’s statement was featured in the Louisville Courier-Journal:

As currently written, the bill would place many records currently available to the public outside the reach of disclosure, effectively keeping members of the public in the dark about the actions of those who represent them . . . We are eager to see new language that preserves the public’s right [to] know what its government is up to[.]

Down in Arkansas, AFP State Director Ryan Norris was on the front lines back in September 2023, when an unexpected bill dropped that would have severely undermined the state FOI law by expanding the grounds for keeping records secret and introducing other novelties that were both counter-intuitive and deleterious towards the principles of open government.

Here’s how the AFP team explained the importance of fighting the bill, as introduced:

The Investigative Potential of FOIA Realized

On a final note, I want to illustrate how FOI statutes can be used as an investigative tool and powerful mechanism for exposing government waste, fraud, and abuse. Our crack investigators and policy experts are always thinking of creative ways to use public-records laws to advance our vision and effect positive change.

DHS and its Disinformation Board – Every day we keep learning more about the Department of Homeland Security’s constitutionally questionable (but now defunct) Disinformation Governance Board. Casey has written about it in the past. But my colleague Kevin Schmidt provided an interesting update in a blog post a few months ago.

DHS officials continue to evade questions about what they were trying to accomplish with the Disinformation Board, and records obtained by AFPF in FOIA litigation were recently used in a congressional hearing to press DHS officials on their refusal to speak clearly about why the agency thought it had legal authority to jump into the “disinformation” space in the first place. The FOIA records speak for themselves, yet the DHS witnesses could only offer “word salad” in response, as Kevin noted.

The VA’s Efforts to Kill the MISSION Act – For years now, AFPF has been litigating against the Department of Veterans Affairs to obtain information about the agency’s manipulation of “wait time” data and its efforts to undermine the Community Care Program. The findings have been disturbing, to put it mildly. But they’ve also helped spur action to hold the VA accountable and ensure that America’s veterans get the quality care they deserve. The team over at Concerned Veterans for America blogged about those efforts just last month. Check it out!

Shining Light on Kansas – FOI laws are powerful investigative tools at the state level, too. AFPF’s work in Kansas is a great example.

Using the results of the public-records requests I mentioned at the beginning of this newsletter, the AFPF-Kansas team was able to publish a report showing how the Kansas government shut down businesses during the COVID-19 pandemic that were deemed “non-essential,” even though they had been willing and able to comply with health and safety guidelines.

Similarly, AFPF requests have exposed how the Kansas Department of Commerce has shown “a startling lack of oversight” — as one media source termed it — over the administration of STAR bonds.

These are just two illustrations of how open-records laws help to shed light on poor governance that has a real negative impact on economic freedom and prosperity.

* * *

I could go on with arguments for why transparency is important or with highlights of what we’ve done to hold government accountable. I hope these few updates on our work whet your appetite. Enjoy Sunshine Week! And I hope to see you at the symposium webinar next week!

Ryan Mulvey
Policy Counsel
Americans for Prosperity Foundation


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