Subject to Interpretation

Wednesday we had one of the shortest Tribal Council meetings in recent memory. I am not even sure if it had gone more than 10 minutes. Because you never know how long some of these public meetings can go—I think the record for my first term was a little more than four hours—for one to go short is usually kind of a relief, and a surprise. A group of Tribal youth had shown up to see us pass a resolution for the Canoe Journey, one which had failed to make it through Legislative Action Committee, not for lack of votes but for time and proper channels. They might have been disappointed, but I assured them we would pass a Record of Instruction sheet the following day, that Council support was unanimous, and there was really nothing to worry about. And as far as I know, that is what happened.
But that lapse in procedure was hardly the event of the day. Among the more notable resolutions we passed recently was Wednesday’s enacting of the Public Records Ordinance after a First Reading. We received only handful of comments, a couple rather general and one somewhat constructive. There was some slight tweaking to the language, at my request, which the previous week seemed to spawn a conversation and debate that could have gotten way out of hand.
Basically, there was some language I personally didn’t like in the ordinance. Once again, I felt some compromise had gone into this, but better to have the new law than none at all. My hang up was really on one sentence (e) (P) “Records, disclosure of which the Tribal Council determines might divulge political or business strategies.”
Okay, then there is the logical follow-up question: What exactly is your hang up? My hang up is basically that the language as written would allow Council the opportunity to declare anything confidential and not available upon request simply based upon their interpretation of that line. I didn’t like that.
You see, sometimes in a situation like this, I try to imagine what my take would be if I weren’t on Council. In this case, I found myself being skeptical, because that wording alone could basically upend the whole intent of the Public Records Ordinance, which is freedom of information. A Council could make a blanket decision that covers a slew of records, making them unavailable to Tribal members for reasons entirely left up to the Council discretion and interpretation. I know that could happen, because two years ago it nearly did.
Two years ago Council was in the process of writing, with the help of Legal staff, some ethics provisions to the Tribal Council Ordinance. A battle line was between two very distinct philosophies, and they were these: Council records are considered confidential unless deemed otherwise or Council records are considered public unless declared confidential. Really, the philosophies were polar opposites. The straw vote we had went down to the wire, another 5-4 vote, and I was on the losing end that time. But of course all that language got scrapped months later so it really didn’t matter.
What I learned in that was certain Council members had strong and differing convictions from me when dealing with openness and transparency. There appeared to be almost a blatant habit of never documenting some decisions because that same documentation could be used in court or gasp, fall into the wrong hands. The legal term is “discoverability”.
Granted, there were some legitimate scenarios that actually happened which would justify such nervousness. But realistically, that’s an unavoidable risk if you want to make a practice of accurately recording decisions, because there is no better way than simply having everything in writing. Plus, maintaining precise records can usually be a form of insurance in the long run.
The wording that bothered me in the Public Records Ordinance bothered me for the same reasons that I dislike calling for Executive Sessions. Often people, Council members too, don’t want what they say to be on the record, and the reasons for that are myriad, and to be completely honest, at times suspect. Like I wrote in a previous post, I’ve heard Council members say the exact opposite in public of what they said in private, behind closed doors, during either Executive Session or meetings subject to Attorney-Client Privilege. I don’t need to explain why that is wrong.
The language we ended up adding the (e) (P) was that the records Council decides to keep confidential must at the very least be decided by a written Record of Instruction. In other words, Council must sign, in writing, that they want a certain record classified for “business” or “political” reasons. They may not have to state their own reasons, but they do have to put their name and signature to it. By doing so, members know and can always ask them.
I don’t think the Public Records Ordinance is anywhere close to perfect. Heck, I even imagine making more amendments in the future as members get into the habit of requesting information. But for now, it’s a starting point, one that marks a good change in direction. It’s progress, imperfect, but still progress.