Artificial intelligence and government secrecy

Done right, AI could help state and local governments become more open and transparent about how they are making decisions and using tax dollars.

Photo by Wesley Tingey on Unsplash

An idea about how to save democracy is coming from the tech world: artificial intelligence can streamline government and help states and localities overcome losses from the Trump administration's slashing and burning of federal dollars. Though there are clearly ways to use technology to enhance the work of state and local governments, governments should require that any new tech systems will also increase transparency and make it easier for people to secure public information to ensure their governments are accountable.

At a minimum, this compels state and local governments to take major steps to digitize their data and records, something that many smaller state and local governments and local court systems have failed to do, often, they say, because they cannot afford it. And when they do begin to digitize their information, they will need to organize it so that AI systems can fully survey the data to answer queries accurately and completely. This can be a big step toward restoring public trust and encouraging civic engagement.

But state and local governments erect barriers to public information that are far bigger than sifting through piles of paper records. No amount of technology can overcome intentional secrecy, mostly created or allowed by government officials. Much of it has come about due to the rise in outsourcing of government functions to private companies. For the past 30-plus years, state and local government officials have acquiesced to a secrecy system that shields how your tax dollars are spent and allows information blockades that are hard to overcome. It is a system that has been largely devised by the private sector and protected by state and local governments.

They include:

Non-disclosure agreements: NDAs have become a common tool used by industries seeking publicly financed subsidies to buy land, build some type of behemoth such as an energy- and water-sucking data center, and keep the public in the dark until it is too late to object. Eric Bonds and Viktor Newby at the University of Mary Washington in Virginia found that at least 25 localities in Virginia where data centers were on the local government docket had agreed to NDAs. Many times, the government agreed to give the private company advance notice of information requests and the opportunity to halt public disclosure.

Virginia is far from unique. A study by Good Jobs First, a non-profit that researches corporate subsidies from the public, found that Amazon has received more than $11 billion in state/local subsidies since 2000. Many were hatched in secret with the use of NDAs and the complicity of state and local officials.

And it gets worse. Not only are the details of these agreements secret, but often the actual existence of a non-disclosure agreement signed by state or local government officials can be kept from the public, as was the case in an ongoing battle in Tucson, Ariz., over a data center.

Trade secrets: State and local governments sometimes allow companies they are contracting with to invoke the trade secret exemption to public disclosure. Like NDAs, this exemption is aimed at protecting corporate details that, if disclosed, could aid a company’s competitors. But, as U.S. District Judge William Alsup of California’s Northern District has noted, these can be wildly abused. He wrote in a 2019 case that companies frequently cite a need to keep information secret, even information that “contain[s] standard fare blather and even publicly available information.”

Consider also that a water company is West Virginia blacked out names of public officials and the 800 number of the state public utilities regulator as part of its own assessment of details the government must keep secret, labeling it “Highly Sensitive Confidential Information.” And take a look at the efforts by Canada-based New Flyer of America to keep secret data that would show whether it was complying with promises to create a certain type of job with benefits and specific pay rates – promises it made as part of a multimillion dollar publicly funded contract with the Los Angeles public transit agency.

The trade secret exemption “absolutely eviscerates the public records law,” said Madeline Janis, executive director of Jobs to Move America, as she was bringing what was eventually a successful challenge to New Flyer’s bid for secrecy. “Companies claim that everything is a trade secret, everything is proprietary. If communities and workers can’t get the information, how do the public and the public agencies know if the contractors are keeping their promises?”

Add to that the fact that government officials aren’t equipped to challenge the trade secrets claim themselves. They aren’t experts in the particular industry they might be overseeing. So, they leave it to industry to identify what it claims are trade secrets. In nearly every state’s open records laws and in federal law, the trade secrets exemption to public disclosure is basically a blank check for taxpayer-funded secrecy.

Real estate deals are another area in which governments could do more to be transparent. Instead, they allow companies to hide behind limited liability companies (LLCs) to ensure that the identities of people or companies involved in real estate deals remain secret, sometimes even after they are finalized. (In many states there is no requirement that LLCs and similar corporate entities buying property disclose to the public or state regulators who the real owners are). In one instance in Midlothian, Texas, local officials signed NDAs with a company known as Sharka that later turned out to be Google, which was seeking to build a data center. Google, worth $2.4 trillion today and $921 billion at the time, obtained what one official later said was a decade’s worth of tax giveaways.

Others methods, such as routinely slow-walking public records requests and refusing to give information to out-of-state residents—endorsed by a unanimous U.S. Supreme Court in 2013 in McBurney v. Young—also impede the public's ability to figure out how state and local governments are spending their tax dollars.

As I wrote in my recent book “Backroom Deals in Our Backyards: How Government Secrecy Harms Our Communities and the Local Heroes Fighting Back,” these information blockades mean “[r]esidents are left without crucial information as the deals unfold, and after the deals are done. The terms of secret arrangements are devised, or aided and abetted—or all three—by the governments that are supposed to serve and protect the people who pay their salaries. These state and local governments are spending public money without oversight by members of the public, who lack information that would allow them to question payouts, settlements, tax breaks, reduced-price real estate, and other benefits.

“These secret agreements inhibit government transparency. Without basic information, the public cannot track how public funds are used and is otherwise unable to monitor the work of their governments.”

I penned those words well before gaping wounds were inflicted on states by the Trump administration and the Republican-led Congress.

Many people struggle to absorb the onslaught of destruction emanating from the Trump administration and its congressional enablers. Every day, it seems some civil right or a health policy or income and food security programs—the legacies of The New Deal and the Great Society—are being cavalierly tossed aside and broken apart. Tax breaks have been cemented for the fabulously rich. The president is using his office to enrich himself with cryptocurrency, perfume, and other schemes. A publicly funded secretive army with essentially no transparency or public accountability is being built at Immigration and Customs Enforcement. Due process seems like a relic of the past. It can’t happen here? Think again.

So, this is a message to people who are saying, “What can I do now?” as we watch the dissolution of the federal government and new pressures on the states. Insist that your state and local governments become more open and transparent about how they are going about making decisions that use your tax dollars, deal with the loss of federal funds, and impact your community. It’s a first step toward learning what information you are legally entitled to. Then you can learn to use various tools to get that information. And then you can use that knowledge to get organized to fight what can eventually ripple into a nationwide effort to promote transparency—a key way to work to protect and preserve democracy.

Miranda S. Spivack, a former Washington Post reporter and editor, is the author of “Backroom Deals in Our Backyards: How Government Secrecy Harms Our Communities - and the Local Heroes Fighting Back.”

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