- The Washington Times - Wednesday, December 31, 2003

Howard Deans fellow Democrats are now in a feeding frenzy over the former governors efforts to shield details of past energy policy meetings. Mr. Dean, in turn, calls the criticism “laughable.” It seems his only response to the understandable calls for openness regarding public records is to attack.

Though not surprising, this concealment and response to criticism is not new: Mr. Dean followed a similar pattern of concealment when his efforts to seal his official statehouse records for more than a decade were made public and became a campaign issue.

But this is far more than a campaign issue. An informed citizenry is essential to our democratic system, and it is difficult for citizens to make an educated decision when calculated steps are taken to hide public documents. Such an effort is now underway in Vermont, where the states attorney general (and a former Dean appointee) announced that he will continue Mr. Deans efforts to keep sealed more than 100 boxes of what should be public records.

This is not a new effort, and Mr. Dean has taken some unique approaches at obfuscation. The announcement by the state is only his latest attempt to hide his gubernatorial records from public view. Rather than make the documents public, or work with state officials to ease access, Mr. Dean has made every effort to ensure they are hidden until after the next two presidential elections.

First, Mr. Dean tried a truly novel approach in Democratic primary circles: He compared himself to George W. Bush. He cloaked himself in the everyone-else-is-doing-it mantle, and claimed that when then-Gov. Bush left office in Texas, he attempted to shield his gubernatorial records for several decades.

But if Mr. Dean was suggesting equivalence in the way the Bush and Dean records have been treated, he should check again the two men, and their handling of their records, are as different as Texas and Vermont.

While Mr. Dean has failed to make available 145 missing boxes of records 53 percent of all the papers from his gubernatorial period, according to press reports the files of then-Gov. Bush have long been available for public inspection.

Unlike Mr. Dean, Mr. Bush never attempted to seal them. I know. I was the Texas attorney general at the time. I issued an official ruling on the documents, and Mr. Bush and his team fully cooperated with my decision.

Simply put, President Bushs records as governor are public documents. My ruling as attorney general held that the files were in fact the property of the state of Texas and subject to Texas law a decision Mr. Bush supported.

Within two months of the ruling, the state archives received the files, organized and indexed by the professional archivists at the George H. W. Bush Presidential Library (itself a federal institution and subject to disclosure rules). The papers remain to this day at the Texas State Library and Archives Commission open to the public.

When this absurd comparison was refuted even by members of his own party Mr. Dean turned to the courts for protection, saying that he had no control over the records and that a court should review each and every document before releasing the files. Yet, when a lawsuit threatened to open the files, he suddenly was not so confident in the role of the bench, and changed course yet again.

And just last week, former Vermont Attorney General William Sorrell declared that he and the state would combat attempts to open the records through the courts, continuing the efforts to block public scrutiny. As Mr. Deans fellow presidential aspirant, Sen. Joe Lieberman, said of Mr. Deans efforts to seal the records, “Thats not the way to build public trust.”

Mr. Dean should unseal his gubernatorial records immediately. Any concerns about executive privilege or privacy can be reasonably reviewed by an independent tribunal or court to determine whether the claim is valid, or simply a further attempt to withhold information. Mr. Dean has no reasonable grounds to keep his records secret for the next 10 years, let alone the 24-year period it has been reported that he initially asked for. The arrangement prevents the media and, more importantly, the citizens of Vermont, from accessing essential state documents documents that belong to them.

Certainly there are a handful of necessary exceptions, for example, reasonable and verified claims of executive privilege, national and homeland security and documents that would release the private data of non-governmental third parties. But to hide for a decade documents from a public officials tenure in the statehouse for nothing but political reasons conflicts with the public interest.

Attempting to change the subject, or farming out the obstruction to state appointees, doesnt change the facts. But I do hope Mr. Dean will change his mind.

Sen. John Cornyn, Texas Republican, previously served as attorney general of Texas and was a justice of the states supreme court.

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