EDITORIAL: Secret government is not democracy

THE LEGAL CONFRONTATION between county District Attorney Paul Czajka and Kinderhook Town and Village Justice David Dellehunt reached a milestone recently, when Judge Jonathan Nichols ruled in favor or Mr. Czajka’s position that a district attorney, not a judge, has the exclusive right to determine who is prosecuted for a crime. Judge Nichols said that a judge has no business intruding in the decisions of a prosecutor, adding that to do so would lead to an “abhorrent” injustice.

That’s the judicial equivalent of a slap upside the head. The sting would disappear, though, if Judge Dellehunt, an accomplished lawyer who works for the state court system, appeals the case and a higher court overturns Judge Nichols’ ruling. Let’s hope that doesn’t happen. Judge Nichols got it right the first time. His decision should stand intact. In some societies judges do serve as prosecutors. Such systems may be more efficient than ours, but it’s hard to imagine how Americans would consider them either fair or just.

Prosecutors can abuse their power, but the strongest deterrent to that the ballot box not the gavel.
The decision on the Kinderhook face-off over prosecutorial discretion has overshadowed a different flashpoint between Mr. Czajka and Judge Dellehunt: the availability of court records. The Kinderhook Court denied the DA access to a recording of a court session in at which Mr. Czajka appeared. An acting state supreme court judge later ordered that the recording be turned over to the district attorney.
There are times when court proceedings should be secret. That’s done routinely in family court to protect the privacy of children. And secrecy rules are usually invoked in national security cases–undoubtedly too often and sometimes to absurd lengths. But keeping most town court proceedings under wraps makes no sense at all, and courts aren’t the only institutions of government that restrict public access to information.
All municipal agencies, whether town, city, village, school district, county or state, are subject to the state’s excellent Freedom of Information Law (FOIL). As citizens, we can invoke FOIL to seek records of official actions and other documents that help us understand how government works. The law in this state also has a provision that anyone who is denied or unreasonably delayed in getting access to public records may seek reimbursement of the costs associated with seeking those records.
FOIL was originally adopted before there was widespread use of the Internet. At that time, the presumption was that government documents would remain hidden from view until somebody asked for them. A no-ask, no-tell policy.
The digital world has flipped that approach on its head. Reformers and progressive officials of all political persuasions now speak of “e-government,” which starts from a presumption that government documents should automatically be within easy reach of the public. Yes, some things must remain secure and inaccessible to protect individual privacy (or whatever’s left of it in the age of Google). The rest belongs online as searchable and readily accessible as possible, because you never know when taxpayers might do something useful with information they’ve already paid for.
How does this apply locally? Consider the Office of the State Comptroller, which for some time has made its audits of municipal governments easily available online. Recently the comptroller’s auditors released findings that found serious shortcomings in the accounting and money-handling practices at the office of the Town of Livingston town clerk. Reading the report, which contained responses from the Town Board and the clerk, gives a thorough, nuanced picture of sloppy and inappropriate actions not much different from the problems attributed to officials in other towns around the county and statewide.
Whether or not you agree with the comptroller’s assessments, this e-government approach gives citizens materials they need to make better informed decisions. Every level of government needs to review what it does to foster more access and set that access as a high priority.
Perhaps Judge Dellehunt had some reason in mind when he withheld court records from the DA. In fairness to him, the rules of judicial conduct prevent him from responding to non-judicial criticism like this. But regardless of his rationale, all public officials need to know that the emphasis has now changed. The public expects access to information. The motives of those who restrict that right are suspect and their actions are out of sync with the way democracy works in the 21st century.

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