Editorial: Are they ‘leaks’ or an expression of the public’s right to know?

The apparent leak of email communications among San Anselmo town officials is being cited as good reason to strengthen the town’s ethics policies.

The call for that measure comes in the wake of allegations that a council member leaked emails considered confidential about the county’s closure of the platform bridge across San Anselmo Creek and a nearby seating area.

The county closed the bridge after concluding that it is unsafe. That conclusion and the liability it brings with it didn’t leave county flood control officials much alternative.

The town, however, wants the bridge – which is going to be torn down as part of the creek flood-control work – and park area reopened.

Town officials have not provided details of the email or who released them. Interestingly, officials say they were released prior to the county fencing off the bridge.

The dilemma, according to Mayor Alexis Fineman, is that the town’s ethics rules do not spell out “any enforcement mechanisms for raising concerns, assessing potential violations and rectifying them.”

Bridging those gaps, however, could run right into having to define what the public has a right to know.

It is not unusual for the leak of confidential documents to bring greater sunlight to the public’s awareness about issues.

San Anselmo’s emails and the “Pentagon Papers” are hardly comparable in size and scope, but they still raise similar tests regarding the public’s right to know.

In the local case, a Town Council member felt the contents of those emails could be shared or deserved broader distribution beyond Town Hall’s decision-making circle.

It is hard to determine whether that conclusion was appropriate without knowing the details of the emails. It is also hard to determine whether there was a risk to the town’s legal standing in making that information available to more people.

Typically, politicians and governmental staffers prefer to “control the message,” but that control also frequently limits the public’s right to know.

And you aren’t going to find many newspapers and other media outlets urging tougher controls on leaks, especially those regarding government – the public’s business.

The state’s Brown Act open-government law, conflict of interest laws and the Fair Political Practices Act are all examples of amplifying the public’s right to know and open and fair political decision-making.

Ensuring confidential communication among decision-makers is a different matter.

That, apparently, is where one council member allegedly misstepped.

Unfortunately, that’s easy to do when relying on email or other documentation.

Fineman says any decision regarding an ethics policy will involve “maximum transparency and accountability to the public.”

Legal ramifications regarding the bridge provides a state-allowed cloak for keeping confidential talks regarding the town’s legal and negotiating strategy regarding reopening the bridge or, possibly, buying it back from the county.

Governmental agencies routinely cite “potential litigation” as reasons for closed-door confidential council or board meetings. It is, however, an all-too-easy threshold for ducking into meetings where the public’s business is discussed, and often decided, in private.

State law allows for the public to know those meetings are being held, but not the details of the closed-door discussions.

Any minutes of those meetings are typically and intentionally sparse.

It’s refreshing, but unusual, when a member of a council or board questions why such meetings are being held in private.

Establishing rules that would punish councilmembers for so-called “leaks” may not be as simple as it seems when considering the context of a member’s freedom of speech or his or her right to the belief that there is information the public should know.

Punishment or penalty could have a chilling effect on both.