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As we embrace sunlight in government, courts weigh demands for darkness

Sunshine Week is upon us and we join our journalism colleagues in steadfast support of government transparency. An informed public is essential in a democracy.

Yet, every day brings new attempts to limit public information, restrict open deliberation and attack press freedom. March alone has cast a spotlight on the legal challenges to  the public’s right to know: defamation lawsuits, Supreme Court challenges, and classified coronavirus meetings.

In the past three weeks, the campaign of President Donald Trump has filed defamation lawsuits against The New York Times, The Washington Post and CNN. The claims are designed to stir the blood of Trump’s political base, force these news organizations to spend money on a defense or, at worst, create a chilling effect in newsrooms and editorial boards. The only question is how long will it take judges to dismiss the cases. But the message to smaller news organizations operating on limited budgets is clear – no matter how much protection they may get from the First Amendment, the rich and the powerful can still make them pay.

The Supreme Court had been scheduled to hear arguments on whether Trump banks must turn over his financial records to Congress and local prosecutors. Though the court postponed arguments on Monday in response to the coronavirus outbreak, its ultimate decision could determine whether the public eventually sees information that the president would prefer it didn’t. The president has long sought to keep his finances private and has spurned a 40-year tradition presidents making their tax records public.

Last week, Reuters reported the White House ordered coronavirus meetings held at the Department of Health and Human Services to be classified, raising the prospect of legal fights if those deliberations are to ever see the light of day. And the Supreme Court just this month agreed to hear a Freedom of Information Act case that would keep Endangered Species Act records out of the public eye, with broad ramifications for the application of FOIA and for the public’s ability to understand internal government deliberations and decision making.

When it comes to Freedom of Information Act cases, court decisions directly affect the public’s right to know. Any FOIA request for information regarding coronavirus deliberations would test how easily the government could apply national security secrecy to its deliberations.

“National security is open to interpretation, and courts tend to be pretty deferential when it comes to claims of classification by the executive branch,” said Adam Marshall, the Knight Litigation Attorney at the Reporters Committee for Freedom of the Press. But courts could be persuaded, he said, especially if the information being classified was simply designed to prevent embarrassment to the government.

Together, these looming issues suggest that we’re on the cusp of some big legal decisions that will affect government accountability and the freedom to comment on important matters of the day. These issues directly or indirectly affect press freedom and bad decisions could cast a dim light on government transparency.

The public has a right to sunshine. Only with an informed citizenry can democracy work. The courts should not place a protective shroud over those who govern.

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