Why writing is an essential tool in the open government toolkit

Redact. “To hide or remove (text) from a document before it is published or distributed.” redact” is not a word you regularly hear in conversation.

But it is currently dominating the news as a federal magistrate judge in Florida decides whether, or to what extent, he will order the redaction of the affidavit submitted by the FBI to obtain a search warrant for the residence of the former president. Donald Trump.

I fell into the final category (and in a real sense the most “exclusive”, but the least enviable) when it came to the term “redact”. agencies for 25 years under a Kentucky statute that provides a mechanism for resolving access to public records disputes without appeal to the courts (and the costs and delays associated with the latter). It was my responsibility to decide, among other things, whether a public body violated the Open Records Act by redacting a public document. In Kentucky, the public agency’s duty to redact is governed by statute. “If a public document contains matters which are not excepted under [one or more of 18 exceptions to the public’s right of access,] the public agency must separate the exceptions and make the non-excepted material available for review. “Contrary to the doubts openly expressed by critics, decisions about the appropriate scope of redaction of public documents were not easy to make – some decisions posed a significant mental challenge and others were, in fact, heartbreaking. Imagine everything from a supplier’s three-inch binder in its bid for a public contract to a series of 911 calls from a remote location involving the accidental death of a young child during a game. of T-ball.

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The reasons we expurge are simple.

“Despite its clear intention to enact a disclosure law, the General Assembly decided that certain public documents should be excluded from disclosure. From the exclusions, we must conclude that with respect to certain records, the General Assembly has determined that the public’s right to know is subordinate to statutory privacy rights and the need for government confidentiality. Beckham versus Bd. de l’Éduc. of Jefferson County. 873 SW2d 575 (1994)

It’s the tension – soon to be played out in a Florida courtroom – between the public interest in holding officials accountable and the interest of officials in ensuring government confidentiality where law – and public policy – establish the power to do so.

In a recent editorial, the New York Daily News summed up the challenge of “balancing these two imperatives” through editorial:

“Florida Federal Magistrate Judge Bruce Reinhart is right to take seriously press requests to shed light on the affidavit that led to an FBI search warrant at Donald Trump’s Mar-a residence. -The girlfriend. He is also right to take seriously the Justice Department’s concerns that releasing the entire document without obscuring any sensitive details could jeopardize the government’s ongoing investigation. His baby-sharing exercise in court on Thursday yielded a healthy outcome: The federal government will send him drafting proposals, under seal, later this week, and he will then determine what can be responsibly released to the public.

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“It will be a thoughtful and careful process,” Reinhart said.

“We don’t know what we don’t know. The affidavit, if properly drafted and then published, could prove extremely illuminating in completing the picture. It could end up being wildly unsatisfying, effectively reiterating what we already know. This is how it is when it comes to balancing twin imperatives. From across the country, The Oregonian describes the challenge more succinctly: “The tension between journalists fighting for the public’s right to know, law enforcement investigators concerned about the integrity of an investigation, and the courts [charged with the duty to dispassionately strike a reasonable balance] will exist as long as we fulfill all of our independent roles. or its independent role – is an essential tool in the open government toolbox.

Amye Bensenhaver is a retired assistant attorney general who drafted public records and open meeting decisions in this office for 25 years. She is co-founder and co-director of the Kentucky Open Government Coalition with Jennifer P. Brown, former editor of the Kentucky New Era and currently editor of the Hoptown Chronicle.

Geraldine D. Luckett