Proposed public notice law threatens open government

Public notice laws have been part of our government structure since the first session of the first U.S. Congress. In 1789 the new Congress declared that all legislative actions and executive decisions would be published in at least three public newspapers so that all citizens would know what government was doing. The Maine legislature is now considering a bill that would eliminate publishing public notices in newspapers at all. LD 1878, An Act to Generate Savings by Changing Public Notice Requirements, proposes instead that the government post notices of its activities on the Internet, that this will incur no additional costs, and that it will save the state paying for the publishing of notices in newspapers.
    The principle of public notice is to do more than simply provide information to the public. It is a system of actually putting the information that is deemed paramount to active civil government in the way of, in the face of, as many citizens as possible. We have additional ways of getting government information. Open meetings laws and Freedom of Access to Information are among them. These avenues allow citizens to inquire about government records and observe government in action.
These means of finding out about government might be thought of as “pull” communication. They require citizens to go get — that is, pull out of government — whatever it is that citizens want to know.
Public notice is, instead, a “push” communication. It forces government to distribute to citizens information about what it is doing. We have decided that some kinds of government information are so important, and affect citizens so immediately, that we should not be required to seek the information, but instead it should be brought to our attention.
Maine prides itself on its public activists and responsive government. Active citizens cannot be thoughtfully engaged in government decisions, however, if they are not privy to government activity around those decisions. Public notice about government bids and purchases, sales and acquisitions, hearings and testimony, has served as the straightforward, equitable means of providing necessary information that then spurs active public engagement.
Part of what makes the system of public notices work is that it forces government to detail and set out what it is about to propose or do; it must publish this information in a form that is easily available to any and all citizens; and it must publish this information in a timely way. If these criteria are not met, then government agents cannot move forward with the proposals or activities.
The use of public notice costs government something – costs Mainers something – which for centuries we have understood was in our best interests as an open government state. These costs meant that public notice would not be taken lightly and that there was some accountability in how it was handled. An independent agent who was part of the local community was responsible for publishing these notices. If the rules about publication were not met, the contract was cancelled, the job lost and the public hampered by delay or legal tribulation. Newspapers who met a very strict standard set by federal and state authority became that independent agent. LD 1878 proposes to change all that.
What is proposed in LD 1878 is for government to post its notices on the Internet. Where, when and under what conditions has not yet been decided. What LD 1878 does assert, however, is that this system – self posting on the Internet – will cost the state nothing and will save tax dollars, about $1.5 million per biennium, in newspaper publishing costs. How this system would be put in place and supported over the course of any biennium at no cost to the state is not detailed in the bill offered during hearings on May 11. Nor is there any information about what kinds of posting standards or penalties for non-compliance would be put in place.
All who use the Internet and World Wide Web have experienced that digital media are neither fixed nor easily accessible. Everyone knows someone who has had digital files “lost” or computing equipment damaged just when time was of the essence. Computing is far from trouble free as a communication medium. Nor is it cost free.
LD 1878 proposes to save Maine tax dollars by reducing the expense of this push communication – public notice. It proposes that those outside of government offices will have to go looking for what was previously delivered to our doors as regularly and as easily accessible as our morning newspapers. LD 1878 also, however, proposes costs without enumerating them, that taxpayers may find outweigh the itemized savings. Newspapers are a business and there are costs to running a business. Outsourcing, as this might be seen, brings some collateral benefits. Public notice appear in newspapers, a third party but very public entity, that is neither the government agency nor the activist citizens.
Newspapers are independent of government. As an entity independent from government, they serve reasonably well as an independent witness to government activities and mandates. LD 1878 proposes that government offices produce and post their own notices with no oversight by an independent third-party.
Newspapers are accountable when publication is supposed to occur and does not. Community members and government expect reliability and transparency in their business dealings, and newspapers will and should lose contracts when these parameters are not met. LD 1878 provides no recourse for poor performance – no standards for accomplishment, nor assessment of performance.
Newspapers provide a fixed and easily accessible format – no equipment, no special place or screen, nothing more than grade school education to master the turning of a page and the eyes across that page – throughout time and geography. The text is not about to migrate or disappear; ink on paper is difficult to hack without leaving obvious traces, and ink on a tangible surface is nearly universal among known civilizations. LD 1878 provides no procedure or format specificity for producing and posting of notices. LD 1878 provides no structure for standardized equipment or procedure for upgrades, technicians, maintenance, review, emergencies or error.
Newspapers traditionally provide dependable and accountable distribution – subscriber households and geographic penetration are known and documented. Newspapers traditionally keep organized records of their production and distribution which can be verified and reviewed. LD 1878 proposes no means of measuring distribution, no mechanism for acceptable rates of penetration, no designation of “community” for legal notice expectations. LD 1878 waves at, but does not clasp or grasp, real standards for archiving public notice text, context and reach.
When the legislature meets to review the proposed changes that LD 1878 offers I hope each member will consider the large and the small effects of this short bill. The major element at stake is the very principle of open government. Public notice, a push communication form, was instituted to force government information out of bureaucratic control by delivering it to everyone, not just posting it for stumbling upon. I also hope each member will query the committee for actual costs of such a proposed system. A system will be required that includes computing system startup, upkeep and maintenance, software, hardware, technicians, system oversight, system archiving, emergency response personnel and backup systems. The adage penny wise and pound foolish may quickly come to mind at the end of these kinds of considerations.
 Shannon E. Martin, of Bangor, is a professor of communication and Journalism at the University of Maine and co-author of “Newspapers of Record in a Digital Age” (Praeger, 1998). She is also a member of the Maine Press Association’s board of directors.