IT WOULD BE A mistake to read the Supreme Court's refusal to hide the details of an ethics investigation of Gov. Mark Sanford as a sweeping victory for openness in government. But it also would be a mistake to overlook the potential it has to render ethics investigations just a little less secret than they always have been.
The utility of the court's ruling is limited because it merely addresses those investigations where the target has waived his right to confidentiality. Most people don't do that, and so the public never really can judge how well the State Ethics Commission does its job overall - or how well it does its job in most individual cases. In fact, the public still will never even know of the existence of those ethics complaints (by far the majority) where the commission decides no action is warranted. That won't change until the Legislature decides to change it - which it should do.
Moreover, the court pinned its decision to the governor's politically deceptive, self-congratulatory letter waiving his confidentiality. Mr. Sanford, the court said, used sweeping language that clearly meant he did not want any of the secrecy protections that the Ethics Commission had assured his attorneys he would get if he took that step. By his language alone, the court said, the governor authorized the public to see everything he is allowed to see - which by logical extension also should allow the public into any hearing in the matter.
But the court didn't stop there. The unanimous opinion essentially told the commission it couldn't continue to keep more secrets than state law authorizes.
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At issue is the agency's long-standing practice of telling targets of investigations that if they waive their confidentiality, the commission will only acknowledge the existence of an investigation. That's what Mr. Sanford's lawyers were told before the governor wrote - and released to the public - a letter declaring that he wanted to "go the extra mile" and "take the unilateral step of waiving confidentiality" so the public could judge his actions based upon "the whole" of the record.
The limited definition of "openness" is based on a regulation the commission wrote that said its "internal and investigatory papers including work product shall not be made part of the public record." That's all well and good, the court said, until it runs into the state law that opens "investigations, inquiries, hearings, and accompanying documents" to public review when officials waive their confidentiality. As the court explained, citing well-established precedent, "Although regulations authorized by the Legislature generally have the force of law, a regulation may not alter or add to the terms of a statute."
The court ruling left it to the commission to decide how much of the case against Mr. Sanford is made public, and when, but the justices left little doubt that the process should be as open as possible. The commission should act accordingly. It also should take heed to the whole of the opinion, and start applying the law in all cases in favor of sunlight.
The Legislature likewise should take heed. The unfortunate fact is that lawmakers who do not pay nearly as much attention as they should to the laws they write tend to pay even less attention to the regulations that agencies write. This ruling should serve as a reminder of how easily the legislative will can be undone if no one is watching closely.