The launching of $TRUMP crypto currency and the landing of a new plane from the government of Qatar, among other deals, have brought a lot of attention to ethical concerns at the federal executive level. In her new book, Backroom Deals in Our Backyards: How Government Secrecy Harms Our Communities and the Local Heroes Fighting Back, however, Miranda S.. Spivack, a former writer and editor at the Washington Post, points out that most Americans encounter malfeasance closer to home-at the state and sometimes very local level. She looks at the ways local governments and private companies have kept citizens out of important decisions in their communities and the ways those citizens—accidental activists—have fought back. We asked her a few questions.
What was your motivation to write about the increased secrecy and decrease in transparency at the state and local level?
When I was a reporter and editor at The Washington Post, I was continually blocked from getting information that, frankly, should have been posted on a government website, from Prince George’s County, Md. I was looking for contracts the government had with outside vendors, and for out of court settlements that the county paid out after the county executive went to prison on corruption charges. But I was continually stonewalled. I saw that this was a big problem in Prince George’s but probably was also happening in many other places. So, I started looking, first around the Capital Beltway and then across the country. And indeed, I found that secrecy at the state and local level was widespread, even though the taxpayers had paid for most of what the government was keeping secret.
You approach the topic through a number of case studies. Some examples of government secrecy seem to arise out of a desire to avoid accountability—engaging in a cover-up, in essence, and some examples seem to arise out of a desire of corporations to keep the public in the dark about the deals it makes with a governmental body–either for liability concerns or business competition concerns. Can you give an example of each and draw out the reasons the government or the private entity sought the secrecy?
As a reporter in a newsroom, my colleagues and I always speculated that there were a lot of conspiracies out there. But first, my mantra is, don’t underestimate incompetence – and a desire by some people in government and in the private industries that hold government contracts – to hide mistakes because those mistakes can be embarrassing. In the book, there are a number of examples of how governments and private companies work together to keep the public in the dark. Often the private company, which is a government contractor, will tell the government that it should not reveal certain information that someone in the public wants to see, because it is a “trade secret” and will put the company at a competitive disadvantage. And governments are not often equipped with enough expertise to say “no, that’s not a trade secret and should be available to the public.” There is a lot of abuse of the trade secret exemption to public disclosure, which is available in nearly every state and in the federal government. In one instance I cite in the book, a West Virginia water company redacted – that is blacked out – the 800 number for the state public utilities commission before allowing its documents to be made public. A federal judge I cited in the book, William Alsup of California’s northern federal district, noted that such ill-advised secrecy is common. In a case he was handling he noted that” in twenty-five years of practice and twenty years as a judge how prolifically companies claim confidentiality, including over documents that, once scrutinized, contain standard fare blather and even publicly available information.”
He could easily have been talking about the West Virginia water case. But he obviously was not and clearly has seen similar examples of secrecy overreach.
In the book, you discuss outsourcing, which you say has increased since Ronald Reagan made it a priority for the federal government, and its role in local governments having less transparency. Can you explain that role? Is secrecy one of the goals of outsourcing, or a byproduct?
I would say that secrecy is clearly a byproduct of outsourcing, and that outsourcing came about as part of a downsizing government trend that quickly spread to the states. But it likely also has morphed into a goal. Consider the “public/private” economic development agencies in the states that are now set up to do deals in secret. They claim that they are not truly government entities, and thus not subject to state/local open government laws. But they are often doing deals that are paid for with public funds, or with tax exemptions, so they are using the public’s resources – and thus in my view should be subject to state open government laws.
Did you discover any areas in which transparency could be a problem to accomplish a goal, or put another way, examples in which secrecy is justified?
National security and state/local security are clear reasons to keep some matters behind closed doors. For instance, you would not want the floor plan of the local electrical plant or nuclear power plant to be made public, would you? But there is always the risk of overreach and the use of excessive secrecy when a government invokes security issues as a reason to keep secrets. And that’s hard for the public to challenge.
Your first case study is of Hoosick Falls, NY, where a local resident made a link between an uptick in the local cancer rate and a factory in town. You write that company and government officials knew there was a problem but not only did nothing but tried to cover it up. Why do you think no one spoke up—the city officials and their families lived in the area—what was their incentive to cover it up?
State and local officials worried about setting off a panic before they had what they thought were firm and understandable data. But they took a long time, and it was only when a federal EPA official pushed them hard and local teens spoke up at a community meeting, that the state government and Andrew Cuomo, who was governor at the time, began to be more open about what they knew. The local mayor, as I also note in the book, was especially worried about harming the reputation of the community, which was in the throes of trying to position itself as a desirable place to live. But of course, not telling people about a public health risk, and hoping they will move into your community, is a risky strategy.
What was the most egregious example of the harm government secrecy could do?
I think the stories about government secrecy affecting the communities in the book are all pretty egregious. I am particularly concerned currently about secrecy surrounding a failed sewer system in Uniontown, Alabama, a low-income community that has had a failing sewer system for about 40 years. More than $30 million in public funds – mostly from the U.S. Department of Agriculture – have been spent, and the problem affecting this small community of about 2,000 people has not been fixed. And the local water board, the state environmental agency and the U.S. Department of Agriculture still will not explain in detail where the money has gone, and why they are backing a 20-mile pipeline to pipe sewage from Uniontown to another community instead of building a local sewage treatment plant or working with a couple of nearby communities on a cluster system of small plants. Documents I did finally obtain from a federal Freedom of Information Act request to the USDA – after more than two years of trying to get information – showed that there was concern within the governments about whether that plan was a good one – the same questions the community has been asking. But there still has been no public explanation of why that plan was the best plan for the community. It would help two major local users of the sewer system, the local catfish plant, and the major landfill that contains many toxins, which are big users of the sewer system. But whether it helps the local residents is still a wide-open question. And the local accidental activists are still struggling for answers. In fact, one of them was recently named to the local waterboard by a city council member. But there has been an effort underway from a local state legislator who serves as the board’s lawyer, and a USDA official, to question whether she is qualified to sit on the board.
How much of government secrecy is purposely baked into the process through things like non-disclosure agreements, and how much is sort of ad hoc and panic-driven—governments stonewalling on Freedom of Information requests, poor record-keeping, after-the-fact cover-up? Put another way—how much of secrecy is following the law, however bad it is, and how much is breaking the law?
The widespread use of non-disclosure agreements, such as those demanded by Amazon when it was hunting for its second headquarters, is part of a threat hanging over the heads of local and state officials, both elected officials and government staff. If they refuse to sign, they could not apply for what they thought would be a big job generator for their communities. But Amazon has not fully kept its part of the bargain in Arlington, Va. Many of the promised jobs have not materialized, and may never . And in the meantime, lots of tax benefits and other benefits often accrue to companies like Amazon and other companies, such as data centers, that also have been asking officials to sign NDAs before engaging in negotiations over the possibility of locating in a community. Also, Amazon asked for, and got Arlington to notify the company when it received public records requests that might involve the company, so the company could review and potentially oppose them. Mere mortals do not get the same privileges.
Are there communities, such as lower-income areas, that are more at risk from the instances and impacts of government secrecy?
More affluent communities are better equipped to fight, because the fights often end up in court, since many states don’t have any formal appeals process for a member of the public to challenge a denial of information other than filing a lawsuit. One community in Potomac, Md. spent about $100,000 on legal fees in a public records case involving a soccer field whose establishment they said was hatched in private by the then-county executive Isiah Leggett. The residents of Uniontown, Alabama, whom I write about in the book, were able to get important legal help for free from a legal clinic at Vermont Law School, and from an environmental non-profit in Alabama, the Black Warrior Riverkeeper, But most people often lack access to pro bono legal assistance. So going to court is often out of the question. Which means that the government’s efforts to keep secrets are allowed to continue.
What advice do you give to people who suspect they’re not being told the truth from their state or local government?
First, see if you can go in person to the agency which has the information you are seeking, and see if a friendly staff member might help you out. They usually know what documents they have and the format for certain records and can be helpful if you approach them in a friendly way. They can also help you figure out how to write a public records request.
And: there is strength in numbers. If you believe there is a problem in your community and you aren’t getting straight answers, try to enlist your neighbors in petitions or other requests for information. Politicians pay attention when 50 people are worried about an issue, rather than when two or three.
Look for pro bono legal help from the American Civil Liberties Union, nonprofits that specialize in your issue (lot of environmental groups like Black Warrior Riverkeeper have resources or can help you find them). There is a full list of ways to get legal help in the book.
Network! I was fascinated that many of the people I wrote about in the book used social media, especially Facebook, to find people around the country who were experiencing similar problems and had advice on how to proceed. The last chapter of the book which is “Playbook for Accidental Activists,” has lots of specific advice. The individual stories in the book about how different communities tackled local problems – secrecy around dangerous roads; toxins in firefighter PPE; mysterious algorithms used in the criminal justice system; poisoned drinking water; and that failing sewer system – all show how they taught themselves to unravel the secrecy surrounding these issues.