[2441.AB] Sunshine Act Reformulation

Assembly
,
1

I’ve been posting a lot in the [2438.AB] CRS + Sunshine thread but I realized some of the things I was talking about were a bit broader in scope than Roavin’s proposal and could lend themselves to a broader revision of the Sunshine Act.

Some intentions here:

  • Better handling of communication between institutions. Discussions are disclosed if they lead to an action by any significant institution — the institution taking action is responsible for disclosure — instead of assuming that discussion happens within a single institution’s inner working area. For instance, if the Cabinet asks the Delegate to vote early on a World Assembly resolution, that produces deliberate action by the Delegate, and it’s on the Delegate to disclose that information. If you don’t trust the person you’re talking to to withhold information properly, that seems like a problem because you’re already trusting them to act or not act.
  • Inclusion of a petition system. I know citizens can just request information if they want it, but I think back when we had a petition system, those petitions (see here, here, and here) provided a focused venue for citizens to demand information they cared about when they cared about it.
  • Petitions aren’t limited to listed institutions. I think this strikes a good balance for some of our institutions where, I promise you, disclosures are really really boring or pointless tedium. 99% of CitComm discussions, for example, are either personally identifiable information or just copy-pasting the application, but if someone wants to see the discussion for a particular application, they can always petition for it. Similarly, I think there’s a pretty strong argument that the Assembly is an institution but I feel that regularly dumping logs from #legislators-lounge on Discord is really unnecessary, but if there is someone who’s a citizen but not a legislator and wants to see something, they can petition for it.

I realized it’s been a while since I properly wrote a draft like this. Comments and feedback welcome!

1 Like
2

Something about the language here doesn’t please me, maybe:

"(1) For the purposes of this Act, a significant institution refers to the:

  1. Prime Minister, their Deputy and the Cabinet, collectively;
  2. office of the Delegate;
  3. office of the Chair of the Assembly;
  4. High Court;
  5. Council on Regional Security;
  6. Coral Guard."
3

I really like this!

Regarding the petitions, do we want to include anything that compels an institution to at least respond to that petition or such? TNP’s FOIA Act is awfully written but it includes the following which we could use as inspiration:

  1. At any time a resident may request the release of any government record or private government record through the appropriate officers.
  2. The appropriate officers will retrieve information requested from the different departments of the government.
  3. Residents who do not receive this information for any reason not specifically designated in appropriate laws or regulations may file a request for the information to the court, where the appropriate officers may present evidence that addresses any claim that release of the information meets one or more of the acceptable criteria for classification.
  4. Information appropriately not disclosed will be accepted as classified by a majority vote of the Court sitting as a three-member panel.
4

Are you looking for a requirement to respond or to explicitly specify judicial review as recourse (or both)? I don’t mind conceptually, but I think the former only really serves to enable the latter. For what it’s worth, I think the Sunshine Act is an awkward place to grant the High Court some specific judicial review authority — we can just let the Court receive questions to clarify whether the Sunshine Act permits the withholding of certain information, just as it can clarify and has clarified whether the actions of government officials comport with regional law.

5

I’m with you, it’s redundant to specify that the Court can review it because the Court can always review. But something that compels (even if it has no teeth, like the rest of the act) an institution to have to respond seems reasonable to me.

6

Generally, I think this is great. One substantive comment and then a few nits.

Why is it an awkward place to grant the Court such authority? The reason that most RL FOIA statutes are successful is that they contain specific judicial review provisions that give them teeth. Otherwise, the institution from which the records are sought could just stonewall the requesting citizen. Usually, it’s the threat of an injunction (and contempt for failure to comply with said injunction) that forces the institution to give up the material that the citizen requested. I guess failure to comply with a Court ruling after a review request could subject a government official to contempt? Could the Court issue an injunction ordering the release of material notwithstanding the Judicial Act’s limitation of injunctive authority to “temporary” injunctions that are “pertinent to the orderly progression of the case or in the interest of public peace and order”? Maybe. Just seems to be that it would be worth clarifying exactly what role we want the Court to play in enforcing FOIA.

Not a huge deal, but given the proposed language, I actually would have thought that the Cabinet would have been responsible for releasing the material in your hypothetical. That was the institution that affirmatively decided to act. The Delegate was likely legally compelled to follow the Cabinet’s instruction, or at most just acquiesced in their request. The Delegate didn’t really “make a decision to take deliberate action” in that scenario, did they?

My only drafting edit–I would word this clause as: “leads to a decision by a significant institution to take or refrain from taking deliberate action beyond that institution’s inner working area.”

7

I see the logic behind this, but I agree with Welly that the Delegate is legally compelled to use their powers in most situations. Further, I think it may be considered unlawful for the Delegate to release discussions belonging to the Cabinets domain.

I’d rather see the Cabinet release discussion threads as part of their Sunshine releases and, if needed, highlight Delegate orders.

8

Yeah, I agree.

I think vesting of judicial power should happen in the Charter and should not be buried in a general law. It’s fine, I suppose, to codify some specific procedure for the exercise of judicial power, but I don’t know if there’s a benefit to a separate procedure for this compared to other legal questions. My point is that the Court can already entertain legal questions along the lines of “does X conduct by Y government official comport with Sunshine Act 2(3)?”.

Legal teeth, sure. Arguably, the practical teeth comes not from the courts being able to rule that the withholding of certain documents is unlawful, but from the fact that there exists some notion of ‘law enforcement’ that can ensure compliance with that ruling. I think our judiciary can already review whether withholding certain information is unlawful.

I can see that argument but am not sure it applies uniformly to situations that may seem similar at first glance. For instance, the Regional Officers Act uses the wording that the Prime Minister decides on the regional officer appointments for the Cabinet. But the World Assembly Act contains no requirement for the Delegate to vote early on a World Assembly resolution if requested. (It would be pretty silly, I think, to make it unlawful to be unavailable for an evening.) If the Delegate votes early, that’s their choice. It’s not a great example though because which way to vote is not decided by the Delegate.

I think you’ve convinced me though that this is just a bad system. For example:

Alice: Hey Bob, can I send out this telegram? <blah blah blah>
Bob: Sure, looks good to me.
Alice: Thanks!

Looks like Bob made the decision to send the telegram, right? Or is it Alice because they asked? (If that feels more right to you — what if Bob said not to send the telegram?) What if Alice actually didn’t need Bob’s permission, and legally speaking they were just asking for feedback rather than authorization? What if Alice thought they needed permission though?

At the end of the day, I don’t really care who releases the discussions, I just think it’s best if it’s clear who’s responsible when multiple institutions work together. I’m open to suggestions! Maybe some ‘order of precedence’ could work? Or just making it the institution that takes or avoids the action?

I think that if it’s a crime to release some information, then those contents would be “otherwise required by law to remain private.” But yeah, espionage is weird. Is it technically espionage if the Assembly raises concerns about a proposed treaty, and then the Cabinet raises those concerns in treaty negotiations to try and address them? That’s probably a broader discussion but if we feel it’s overbroad enough to criminalize Sunshine Act disclosures then I don’t mind bundling it together.

I like that suggestion but I’m actually thinking of rewording that clause. The “inner working area” terminology is taken from the current Sunshine Act, but I think it bakes in the assumption that each institution has its own working area. (Also, I’m not sure it should be singular.) I think the gist of the Sunshine Act is to shed light on discussions that produce public action, so maybe it would be better to refer to deliberate action in publicly visible areas.

9

I mean, technically, failure to release as per Sunshine Act can be criminal if somebody really wanted to piss on an institution’s leg (and the institution just refused to do what it’s supposed to): Somebody would have to go to Court (with an appropriately formulated case, not what I did the other day), the Court then has to compel the institution, and if the institution still refuses to do it, they could be brought to the Court again and the institution’s members indicted for Contempt of Court and, at that point, possibly other charges as well (the Court would then have to figure out why the institution refused and depending on what it is, may also indict on Corruption or Organized Crime charges, for example).

If we had a FOIA-like system (and please let’s not call it that if/when we do), we’d have the same issue. A citizen could request it with a given reason, the institution refuses, the citizen then files a request with the Court, the Court compels, etc.etc.etc.

So, putting this together: I don’t think we need to make explicit that the Court can review this, because the Court always can review anything non-administrative by definition, but we should make it explicit that institutions can’t just decide to not release (either for Sunshine or for a request) without a good (and therefore court-checkable) reason.

10

A suggested edit:

(1) Any citizen may petition any official, office, or institution of the Coalition for the release of private discussion. The petitioned must respond to this request, either with the information or with an explanation for why it cannot be provided.

11

I agree with the edit suggestion of Roavin.
I think we should take this discussion more into account, we are talking about something extremely important and that is done little or almost nothing except by the High Court.

12

I can promise you that 95% of the discussions that would be up for disclosure would be mind-numbingly boring or mundane. I agree that it is important to have transparency but I do want to put things into perspective and dispute the idea that disclosures are “something extremely important”.

13

I disagree with this - having seen (via court order) certain discussions, I believe they would have a very significant impact on how certain institutions are viewed and the degree to which their rulings are accepted uncritically.

14

Hence 95% instead of 100%. I’m not even disagreeing with the concept of sunshine and FOIA disclosures, I agree that they’re important. I just think people should temper the expectations regarding how much “juicy” stuff there would be most of the time.

15

This is the first time I am jumping into this conversation fully, but it doesn’t matter what “juicy” stuff is in it, what matters is the information that comes out of these reports, I haven’t seen the temper of people, which means I think we’re fine, and no matter what the information is we can handle it, depending on your definitions of “juicy” information.

16

I don’t understand why you respond as if I was arguing against the idea of disclosures. I already said multiple times in this thread that I support them -three times including this post- and am simply advising people to argue with the understanding that, while it is undoubtedly important to ensure transparency in government discussions, including through sunshine releases, these discussions will mostly be dull and uninteresting so we should not overestimate the immediate magnitude of such releases as if they were something “extremely important”. In most cases they will be no more than historical curiosities.

17

In my point of view it seemed you were going against them in a way, yes, they might be sometimes dull and uninteresting, and it is not good to overestimate, but they could bye important, dull and uninteresting ones still matter, even though we might overestimate them for being extremely important, sometimes yes and sometimes no, their will be just historical curiosities, it all just depends.

18

For the fourth time, I am not opposing sunshine disclosures. This isn’t rocket science: we can hold the non-contradictory thoughts that disclosures are important while also advising people not to think that they are arguing for access to any interesting content.

19

You didn’t hear what I was saying, in the beginning, I thought you were starting to go against them, but then you said you supported them, so I understood, that you supported them, I didn’t say you were against them.

20

In my experience, Kris is right - in most cases, things in a Sunshine release are boring.

Anyway, here’s taking pronoun’s draft and adding in my addition that nobody seems opposed to:

Sunshine Act

An act to periodically publish threads in private government forums

1. Significant Discussions

(1) For the purposes of this Act, a significant institution refers to any of the following:

  1. the Prime Minister and the Cabinet, collectively;
  2. the office of the Delegate;
  3. the office of the Chair of the Assembly;
  4. the High Court;
  5. the Council on Regional Security; or
  6. the Coral Guard;

(2) For the purposes of this Act, significant discussion refers to discussion that:

  1. is held in areas that are not publicly accessible; and
  2. leads to a decision by a significant institution into taking deliberate action or inaction beyond that institution’s inner working area.

(3) Significant discussions must be documented on the regional forums for the purpose of persistence and posterity.

(4) Significant discussions occurring via real-time communication methods may be quoted verbatim or reasonably summarized on the forums, as deemed most reasonable by that institution. If the communication via such a method cannot be saved, meeting minutes must be taken of that discussion.

2. Publishing of Discussions

(1) Significant discussions shall be regularly released into publicly available archives.

(2) For each significant discussion, the institution which makes the decision to take deliberate action or inaction is responsible for the release of said discussion.

(2) The release of significant discussions shall occur no later than the following times:

  1. For the Prime Minister and Cabinet, the office of the Delegate, and the office of the Chair of the Assembly, discussions shall be released no later than six months after the completion of each term.
  2. For the High Court, discussions shall be released no later than six months after the opinion for a case is delivered, a case is dismissed, or any other natural conclusion of a discussion.
  3. For the Council on Regional Security and the Coral Guard, discussions shall be released no later than one year after the natural conclusion of the discussion.

(3) Significant discussions may be withheld from release, in part or whole, if:

  1. they are ongoing or directly related to another ongoing discussion,
  2. the public release of information contained therein would threaten the security of the region or an ally, or
  3. they contain diplomatic conversations with other regions or organizations.

(4) Significant discussions must be withheld from release, in part or whole, if:

  1. any personally identifiable information is contained therein, or
  2. the contents of the discussion are otherwise required by law to remain private.

(4) When a significant discussion contains information that may or must be withheld, the institution should strive to withhold discussions only in part, to the extent that is reasonably possible, by providing the discussion in a redacted form with the withheld information censored. The normative copy of the discussion must then remain in a private forum category.

3. Requests for Discussions

(1) Any citizen may petition any official, office, or institution of the Coalition for the release of private discussions. The petitioned must respond to this request, either with the information or with an explanation for why it cannot be provided.

(2) The High Court, as part of a case, may compel any official, office, or institution to grant the Court insight into related discussions.

I’ll motion this soon if nobody else chimes in.