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Friday, March 03, 2006

MEMO TO GOV. TIM PAWLENTY: Don't Let Extreme Privacy Destroy Public Accountability in Government

Minnesota Gov. Tim Pawlenty is being mentioned in some corners of the conservative movement as a potential Republican presidential candidate, primarily because of his stiff opposition to new taxes.

But his latest proposal to replace public accountability in government with a slavish devotion to a fictional protection of individual privacy in government data is a political train wreck looking for a place to happen.

Why? Because, as even Pawlenty admits, the proposal changes the most fundamental assumption about the nature of government documents:

"Minnesota law provides that all information held by the government is public unless a specific law designates it as private. That's backwards. We need to start with the obligation of government to protect all citizens, and that all personal information that government has about individuals is private," Pawlenty said in the last paragraph of a news release announcing his proposal.

"We realize that turning that statute on its head is a big turn," he told a news conference announcing the proposal.

The fact that concession was only mentioned in the last graph of the official release indicates either that Pawlenty and his advisors didn't think this proposal through fully, or they did and decided it was better to avoid drawing attention to its most radical implication.

Ostensibly, the proposal is aimed only at protecting data held by government about individuals in order to prevent bad things like identity theft, abusive telephone marketing and the commercial sale of drivers license information.

But achieving such desirable ends does not require reversing a fundamental assumption about the nature of government. Think about it:

The Founders said government should have only specific powers granted by the people through the Constitution. Otherwise, wily politicians and turf-hungry bureaucrats over time will expand the scope of their perogatives and the powers of their favored programs to the point that individual freedoms are subordinated to the interests of public officials.

Making government as transparent and accountable as possible is essential to keeping government limited. That's why Founders such as Patrick Henry (yes, I know he was an Anti-Federalist during the Virginia ratification debate) said things like: "The liberties of a people never were, nor ever will be, secure when the transactions of their rulers may be concealed from them."

Thus, laws like the federal Freedom of Information Act begin with the assumption that the people have a right to see all government documents except those covered by specific, detailed and reasonable exceptions for things like national security, law enforcement and personal privacy.

What Pawlenty's proposal does is take what ought to be no more than a specific category of exceptions to the general rule of public access and elevates it to the governing assumption about the nature of government documents and the public's rights to see those documents.

It's as if the people only have such individual rights as are specifically granted by the politicians and bureaucrats, with all other rights and powers belonging to the government. Individual freedoms would exist subject to the pleasure of government, rather than government powers existing subject to the pleasure of the governed.

What will inevitably happen if Pawlenty's proposal becomes law is that Minnesota politicians in both parties and career bureaucrats in local and state government will starting soon and over time find or invent all kinds of creative ways of concealing the truth about their official actions behind the new privacy shield.

The only means of puncturing that shield will be those exceptions approved by the politicians and bureaucrats. Don't be surprised if they start by defining data on individual campaign contributions to be "private data" and thus exempt from public disclosure.

At least Pawlenty admits that his proposal is turning things upside down.

Apparently there is something in the water in Minnesota that makes politicians want to let government rather than citizens decide the scope of its powers because Pawlenty isn't the state's first politico to cook up such a proposal.

Back in the Roaring 20s, Minnesota passed the 1925 Public Nuisance Law - aka "Lommen's Gag Law," after one of politicians who wrote it - giving state authorities power to shut down as a "public nuisance" any publication deemed by a judge to be "malicious, scandalous or defamatory."

Sure enough, a judge decided Jay Near was just such a scoundrel and so ordered his Saturday Press silenced. It just happened that Near was exposing corruption in the Minneapolis city government and police department.

Near took his case to court and, with the help of Chicago Tribune Publisher Col. R. R. McCormick, won Near v Minnesota, a landmark U.S. Supreme Court case that established the right of the press to publish without prior restraint by government.

Defining all government data as exempt from public access unless specifically designated as releaseable is a way of sneaking a kind of prior restraint into the law by the back door of an supernumerary right to privacy.

McCormick rightly recognized the Minnesota law in 1925 as "an ideal weapon in the hands of a corrupt administration, which could use it effectually to prevent criticism of itself." It probably doesn't look like it at first glance to most folks, but further reflection reveals Pawlenty's proposal as the step back towards a gag law that it is.

Interested folks should read "Minnesota Rag" by Fred Friendly for the authoritative account of the Near Supreme Court case and Richard Norton Smith's wonderful McCormick biography, "The Colonel," to understand why that rock-ribbed old school conservative loved the free press so very much.

This is a bad idea and Pawlenty ought to withdraw it immediately.