Secrecy comes at a steep price
by Walter E. Hussman Jr. Arkansas Democrat-Gazette | March 16, 2020 at 3:07 a.m.
Several years ago, when business owners applied for a state permit to operate a commercial hog farm in the Buffalo River watershed, Arkansas' environmental regulatory agency buried public notice of the permit somewhere within the bureaucracy's vast labyrinth of files on the Internet.
The Arkansas Department of Environmental Quality approved the permit, sparking years of public protests and litigation that eventually led to the permanent closure of the operation earlier this year.
A better option--one that ADEQ later appropriately utilized--was public notice in an Arkansas newspaper. Public notice in the local newspaper in this instance would have cost the state, on average, about $80 per insertion. Citizens would have known about the issue, and regulators may have made a different permitting decision as a result of it.
Instead, the state paid $6.2 million in taxpayer money to settle with the farm's owners and shut down the operation this year.
While it may be impossible and unwise to put a price tag on government transparency, the price of secrecy evidently starts at $6.2 million of your money.
Fortunately, the Arkansas Legislature recognized the pivotal role of Arkansas newspapers as the repository for public notices and enacted legislation in 2013 to require public notice of commercial farming permit applications to be published in newspapers.
This law is one of hundreds enacted since statehood that compel state agencies, counties, municipalities, school districts and courts to do the public's business in public through legal notices.
Every state requires government entities to publish public notices in local newspapers. The informed public for centuries now has known to check the newspaper for notices of controversial items like a hog farm in a protected watershed or important day-to-day matters such as new local ordinances or bid solicitations.
Without newspapers as a repository of public notices, Arkansas residents would be forced to navigate a jumble of websites just to find basic information like a city budget or a polling location. Without newspapers as a repository of public notices, government officials could easily shield items from public view.
Want to make sure your golf buddy is the only one to bid on a new paving project? Just hide the notice on the city's least-clicked web page. Want to discourage public criticism of a newly enacted ordinance? Cross your fingers that the website link malfunctions or the page won't load correctly (a real and significant problem for the 750,000 Arkansas residents who have no reliable broadband Internet access).
The Public Notice Resource Center lists four essential elements for public notices: accessibility, independence, verifiability and archivability. Newspapers have always been the only option to consistently attain all four elements, and they always will.
Newspapers are much more accessible to the general public, especially to senior citizens and to residents in rural areas with spotty Internet service. Even with Internet production of notices, the government has no incentive to make its websites accessible, efficient, or easy to use. The competitive marketplace requires newspapers to have effective websites.
We take pride in our independence as newspaper publishers. Bad actors can't play favorites with your tax money when everything's right there in black and white.
That matter-of-fact black-and-white notice has additional value in places like our judicial system, where courts consistently weigh digital evidence with more scrutiny than they do published newspaper notices.
Those published notices can't be randomly or "conveniently" removed from a website at a moment's notice or suddenly disappear from print. Some courts require proof of publication in the form of an affidavit showing the actual notice and the date of publication.
It's almost impossible to ensure 100-percent security and the veracity of any online public posting. Hackers can't manipulate or change a printed newspaper, but they certainly can wreak havoc on government websites.
It's certain that accessibility, independence, verifiability and archivability are the reasons why our Founders established public notice requirements in the very first Congress.
That commitment to transparency is why Arkansas legislatures since 1836 have done the same, and why Republican Gov. Winthrop Rockefeller signed the state's groundbreaking Freedom of Information Act more than 53 years ago.
As we observe Sunshine Week, let's remember how government transparency emboldens our people and strengthens our democracy. Let's also remember that transparency is priceless, and the best way to guarantee that is publishing legal notices in newspapers.