By Richard Karpel
*Public Notice Week is Feb. 5-11.
Politicians don’t like to be forced to share information. Some are more forthcoming than others but every last one of them — regardless of party — prefer to shape their own narrative without outside interference.
That’s why public notice laws requiring government officials to publish factual information about their plans and actions — meetings, budget and zoning proposals, school district reports, etc. — are under perpetual assault in state legislatures. Unfortunately, legislation introduced recently in Nashville would give lawmakers the control they seek. Senate Bill 525 (the House version is HB 300) would authorize local officials to hide such notices on county websites instead of publishing them in local newspapers and on newspaper websites where citizens are more likely to see them.
It’s a dangerous proposal.
Public notice laws represent the best of self-government. Along with open-meeting and freedom of information laws, they’re an important part of the three-legged stool of government transparency. They ensure that citizens have access to information they need to participate in the governance of their communities. They’re an essential element of our fragile democracy.
Those in favor of changing such laws claim they should be published on the internet instead of newspapers. That’s a specious argument because the law in Tennessee already requires them to be published on the internet — on newspaper websites. And newspaper websites almost always get far more traffic than county websites.
The measure being considered in Nashville also would completely eliminate the print component of public notice even though print provides notice far more effectively than the web. When we read a newspaper, the tactile, contemplative experience and the size of its pages encourage us to find information we didn’t expect to see. That serendipitous process guarantees that notices in local newspapers will be seen by many people in the community who didn’t pick up the paper seeking them.
We’re more goal-oriented on the internet, visiting websites for a particular reason. Digital interfaces tend to be unidirectional and are often focused on the sensational. Public notices don’t stand a chance in that environment; they get lost and are easily hidden. Moreover, the massive migration from desktop computers to small-screen mobile devices has exacerbated the problem. Who’s going to be able to find an important government notice on a smartphone app or browser?
The internet has other vulnerabilities that make it a poor choice as an exclusive venue for notice. Newspaper notices can’t be altered once they’re published. By contrast, notices that are digitally published are fraught with the potential for modification. Websites can be hacked and altered; government sites are especially vulnerable. They can be taken off-line through normal service disruptions, extended power outages, denial-of-service attacks or ransomware demands. Public notices on websites can even be fabricated to cover up the fact they were never published. That’s why courts make it more difficult to introduce digital evidence.
The mutability of digital information raises another vital issue exposing the folly of SB 525. Do we really want to put the government fox in charge of the informational henhouse?
As Ronald Reagan was fond of saying: “Trust, but verify.”
Requiring independent, third-party newspapers with a financial and civic interest in ensuring public notices run in accordance with the law was our legislative ancestors’ way of providing verification. Giving government officials the means to hide public notice information that may be embarrassing or simply doesn’t suit their interests, is a surefire way to guarantee they’re going to do it. It doesn’t mean they’re bad people; it’s simply human nature to seek to avoid embarrassment or criticism. Foxes aren’t inherently evil animals; we just know they like to eat hens so we plan accordingly.
The inescapable truth is there are too many ways for public officials to hide information on websites under their exclusive control. And removing newspapers from the public notice process would eliminate an important check on that tendency and exponentially increase the risk that vital civic matters will be hidden from the public.
Swapping the current system of notice via newspaper and newspaper website for government website notice is a bad trade that will leave more people less informed. That’s why SB 525 is a bad trade for Tennesseans.
Richard Karpel, is executive director of the Public Notice Resource Center, a non-profit organization that provides education and research on the importance of effective official notice.
