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2001 FOI update: State and local developments

By Frosty Landon
03.16.01

Access to public records was tested in at least eight more states in 2000: Colorado, Kansas, Iowa, Maryland, Minnesota, New Mexico, Oklahoma and parts of California. That brings to at least 21 the number of states where compliance audits have been conducted, dating from the first one in Indiana in 1997-98.

The Internet continued to raise concerns that putting public records online, including those involving the courts, might make them TOO public. In Indiana, it required a governor's veto to block an attempt by the legislature to keep government e-mails secret. In Massachusetts, Iowa and Washington, lawmakers also are trying to make e-mail files of public officials private. So far, their proposals have met with little success. In other states, however, legislatures are emphasizing that e-mail and Internet files are public records with legislative proposals clarifying that.

For a mid-year perspective on what's happened in 2001 on the Freedom of Information front, check out Greg McDonald's recent report. For a comprehensive report on the 22 state audits plus several local and regional surveys, visit the Freedom of Information Center's Web site at the University of Missouri.

Legislation was introduced in a number of states to keep things private on the Internet. Financial records, medical files, Social Security numbers, home addresses, a mother's maiden name — all such information was seen as increasing chances of identity theft if placed online.

In Virginia, public access to online court filings was blocked for a year, awaiting recommendations from a joint legislative subcommittee established to protect confidentiality of "highly personal information." At the same time, marriage records were kept open, except for Social Security numbers. Montana's attorney general ruled that marriage license information had to be kept secret until after a wedding occurred.

Various states continue to wrestle with whether electronic access to government information should be supported primarily through state allocations or from fees charged for access. Archivists warned that electronic data can disappear in a decade, and preserving it is a big and expensive challenge for local and state governments, not just for the federal government.

More states, including Nebraska, tightened open-records laws by requiring that copies on paper, microfiche or disk can be obtained at no more than the actual cost of reproduction. Virginia established a full-time FOI office in mid-year, California's governor vetoed that state's FOI-ombudsman proposal, Iowa gave at least tentative approval to a full-time FOI officer and Missouri and Pennsylvania began studying the concept. The District of Columbia also heard proposals to set up such an office. In Kansas, a new law requires appointment of local FOI officers with investigative authority and oversight to enforce a fine for "knowingly violating" FOIA. An alternate proposal would have created an FOI officer in the secretary of state's officeto resolve records disputes. In Illinois a bill died in the Senate that would have allowed people denied access to records to appeal directly to the attorney general's office. Massachusetts considered a freedom of information commission to investigate all complaints of public records law violations.

New Jersey formed an open-government coalition after several years of study and Pennsylvania hopes to establish one in the next few months. Relatively new coalitions also were in place in Kansas, Alabama and Mississippi.

A number of communities adopted new restrictions on public comment at public meetings. A survey by the Michigan Municipal League found that 25 of 43 communities imposed some type of time limits on citizen input. Some localities restrict comments to agenda items. Others allow comment only at the end of a meeting.

Several states voted to give individuals the choice of "opting in" before information could be accessible to the public, rather than "opting out" of having information automatically released. Some states, such as Ohio, Missouri and Michigan, also passed laws prohibiting the state from selling lists of personal information from drivers' records.

Some of the open-government developments in the past year, as reported from the states:

Alaska
Public access to information contained in motor vehicle records is now closed under a new law requiring written consent by the person who is the subject of the information before the department of motor vehicles releases personal information.

Arizona
Newspapers created a database of more than 200,000 public notices — 91% of all such notices in the state.

Arkansas
A commission met for 18 months to revamp the state FOI Act to make it more applicable to electronic records. The final report of the commission is available at http://www.dis.state.ar.us/bd_c/ersc/ersc _home.htm. Legislative action is expected by early April. Some journalists are unhappy with some of the provisions, especially the definition of "custodian" and an extended response time to certain requests.

A commission met for 18 months to revamp the state FOI Act to make it more applicable to electronic records. http://www.oit.state.ar.us/legislation.htm

California
Citing cost concerns, Gov. Gray Davis vetoed a key measure to tighten the California Public Records Act. It would have allowed the attorney general to provide a prompt, free and authoritative review of records access turndowns. At the time, the state had never been more awash in cash. See http://www.spj.org.

Earlier, Davis vetoed for the second year in a row a bill to increase media access in state prisons. SPJ created a Web-based directory of prison access policies in California and elsewhere. The URL is http://www.spj.org/foia/prisons/access/inde x.htm.

An official survey was promised into how well Davis Administration officials comply with the state's sunshine law. But Davis' own office set a bad example when it told one newspaper to put its information request in writing and come back in 10 days. The request was for a clearly public record.

The California First Amendment Coalition and the California Newspaper Publishers Association will assist in drafting a questionnaire to all state agencies, asking them to record for a set 60-day period all CPRA requests received by any means, as well as the responses. Since agencies can be expected to be on their best behavior in an overt test period, CFAC hopes to provide a reality check by assembling performance data from the past, at least as to written requests.

State entities must provide, via the Internet, meeting notices and minutes for a minimum of 10 days.

A compliance audit by the CFAC and the Society of Professional Journalists documented local agencies initially rejecting or ignoring legitimate public records requests 77 percent of the time. The audit determined that sheriff departments were the worst offenders, denying lawful requests for clearly public information 80 percent of the time. Under the supervision of their journalism professors, university students sought the records at more than 130 local government agencies in the San Francisco Bay Area and in Los Angeles, Orange and San Bernardino counties. See http://www.cfac.org/Audit%20Content.html.

The Stockton Record tested access at 25 agencies in San Joaquin, Calaveras, Stanislaus, Amador and Sacramento counties. Each reporter or editor followed the same procedure for posing roughly the same four requests to each agency, making a written record of every step in the process as well as of the final outcome. The most-guarded information reporters encountered were the salaries of police officers and sheriff's deputies. The end result was that public officials flunked the open-records test 47 percent of the time.

The good news was that one city was found that unhesitatingly provided even mysterious strangers with copies of public records. Ripon, a 10,000-population municipality in southern San Joaquin County, was the only entity to pass the audit with flying colors.

Colorado
The Denver Post asked a court to unseal autopsies of Columbine victims. Family members of victims pleaded that the documents remain sealed. An editor said the reports could help establish consistencies, or inconsistencies, about the worst school shooting in the nation's history.

Gov. Bill Owens vetoed a bill that would have required identifying information about concealed weapon permit holders to be kept confidential.

A task force will study privacy issues in information policy and technology and will recommend legislation and administrative policies governing collection, retention and use of information by public and private entities.

A bill that would have required public bodies to keep minutes of executive sessions died in a House committee. Currently, it is only necessary to record the topic of discussion.

Connecticut
Economic development entities receiving public funds were made accountable to the public through the Freedom of Information Act. But a student information database was exempted from the Act under a law dealing with under-performing schools.

Delaware
Legislation was introduced to limit closed-meeting discussions involving litigation. Sponsors sought to drop a potential-litigation loophole. The bill also proposed better prior notice requirements for public meetings, access to completed criminal-investigation reports, and fines for deliberate FOI violations.

District of Columbia
Preliminary approval was given to a tougher Freedom of Information Act, including fines for deliberate violations. The changes extend openness requirements to electronic records and make records of government contractors subject to the act. In testimony in behalf of SPJ before a District government committee, attorney Bob Becker urged creation of an autonomous office to issue advisory FOI opinions, train public officials and recommend improvements in disclosure practices.

Florida
A new law requires the county recorder in each county to provide a current index of all documents recorded in the official records of the county on a publicly available web site.

There's more than one way to conduct a sunshine law compliance audit. At the Brechner Center, a doctoral student did a study on access to crime records.

Georgia
Gov. Roy Barnes proposed legislation to block public access to personal information. Earlier, the Georgia House voted to keep confidential the home phone numbers and Social Security numbers of thousands of Georgia public employees.

The governor vetoed a bill that would have required newspapers to maintain records concerning the identity of persons buying political ads.

Hawaii
A failed bill would have mandated that detailed information about criminal sex offenders be made available on the Internet.

Idaho
A new law requires the state board of education to monitor Idaho Public Television content for material that may be controversial in nature and ensures that no programs are broadcast that would promote, support or encourage violation of Idaho criminal statutes.

Illinois
The state Supreme Court issued rules severely limiting what police and prosecutors could say about pending criminal cases (this in a state where sheriffs in a third of the counties had refused to disclose a clearly public record when the AP and 14 newspapers did a compliance audit). Editor and Publisher called it a chilling message to prosecutors: Keep the cops silent or risk losing your law license. The ruling proved so controversial that even 10 local prosecutors went into federal court asking it to overturn the new rules.

A bill to amend the open records act was proposed by Attorney General Jim Ryan after a press audit found that many local governments were not complying with the state's open records law. The bill, which passed the House but died in a Senate committee, would have allowed an individual to appeal a denial of a FOIA request to the attorney general, who would be given powers of investigation. Additionally, the bill stated that any person denied access to inspect or copy any public record by the head of a public body could file suit, in which the prevailing party (including the government) would be awarded attorney fees and litigation costs.

Indiana
Gov. Frank O'Bannon vetoed an attempt by the state legislature to exempt itself from open-record laws. See http://www.indystar.com/print/citystate/tue/articles/session05.html.

Rep. Jeff Thompson, a Danville Republican, introduced the amendment two weeks after The Indianapolis Star published a report that examined the Web-surfing habits of central Indiana school superintendents. The complete text of House Bill 1083 is online at http:/ /www.state.in.us/serv/lsa_billinfo?year=2001&request=getBill&docno=1083.

Iowa
Legislative leaders approved a proposal by the state ombudsman to hire a full-time person to specialize in disputes about access to records and meetings of governmental agencies and to provide training for public employees. That person could begin work July 1, 2001, if the proposal makes its way through the legislature.

The ombudsman/citizens aide, William Angrick, linked the appointment directly to the problems uncovered in an audit by 13 newspapers in the state. See http://www.desmoinesregister.com/extras/foi.

Citizens seeking crime statistics, routine police reports, nursing home records and other public information about their government routinely are turned away by local officials, many of whom are unaware of the state's open-records law, the audit found. Newspaper employees presented themselves as Iowa citizens, not as journalists, as a way to test how citizens are treated when they ask for information from their government.

Some of the government workers were helpful. But many, especially in law enforcement, were evasive or even intimidating, the joint investigation found.

  • The good news was that public and official reaction to the newspaper series was heartening: The Attorney General's office conducted 66 training sessions for more than 900 law enforcement officials (the worst offenders in the audit), created a special place on the office web site for information about the open-records law and (perhaps most importantly) promised to become more sensitive and responsive to complaints about access violations.

  • The state ombudsman/citizens' aide received approval for funding to add a staff member to specialize in open meetings and open records issues. That office, too, is taking access complaints and questions more seriously.

  • The state auditor's office instructed county auditors to supply all elected officials with information about Iowa access laws (and most are complying by ordering copies of the Iowa Freedom of Information Council's open meetings, open records handbook).

On the other hand, there has been an outbreak of "privacy" task forces, set up by the governor and state legislators, to examine state law and policy regarding personally identifiable information. In addition, the state bureau of vital statistics has made several runs at attempting to close all birth and death records. The traditional FOI forces have found allies in that fight in the genealogists and funeral home directors. These efforts seem to be motivated more by vague unease than any documented instances of abuse or even threat of abuse.

Kansas
Nineteen newspapers in Kansas conducted an access-to-records audit last fall (some public officials referred to it as a "media sting operation.") The results were primarily positive: 84 percent of the requests were granted.

But sheriff's offices, as in most other such audits, led the way in obstruction: Only 61 of 105 requests were granted at these departments. See http://www.wichitaeagle.com/news/ regional/access/index.htm.

A new law strengthens the state's Open Records Act by providing for local freedom of information officers with investigative authority and oversight. The law provides for a $500 penalty for "knowingly violating" open records laws and states that all exceptions to open records disclosure will expire on July 1, 2005, unless the legislature votes to retain them.

A failed measure would have created a freedom of information officer in the secretary of state's office to resolve records disputes.

University of Kansas journalism students found that all but 10 of the state's 304 public school districts complied with a new requirement that every public agency designate a freedom of information officer. That person's job, in part, is to help resolve disputes over public records requests. Se e more details.

Kentucky
All colleges are required to maintain a daily log recording all crimes occurring on campus and to make the log available for public inspection under a new law.

Electronic filing of campaign finance reports is mandatory under a new law, as is greater public disclosure of those records.

A legislative proposal would create the Governor's Office of Technology and make the office responsible for maintaining privacy and confidentiality in agency records.

Louisiana
News organizations fought a federal judge's decision to seal trial materials from the prosecution of ex-Gov. Edwin Edwards. The Society of Professional Journalists said concerns about prejudicial publicity were greatly diminished once verdicts had been released.

Maryland
Twenty Maryland newspapers sent reporters representing (but not misrepresenting) themselves as private citizens to see six documents from each of the state's 23 counties and Baltimore City. On average the auditors got what they wanted about half of the time. Worst were arrest logs maintained by local police, with 26 percent compliance, and best was nursing home inspection reports, with 74 percent compliance. See http://newsnet.umd.edu/pubrecords/.

Although the governor greeted the audit with a yawn, the speaker of the lower house of the legislature, the attorney general and the associations of municipal and county government responded promptly and professionally (though not all accepted the audit conclusions as valid). The attorney general's office has published a handbook on compliance in layman's language and worked with the government and media groups on four training sessions around the state. They were well attended and well received.

A committee named by the chief judge of the Maryland Court of Appeals proposed some draconian rules governing access to electronic court records and introducing some new restrictions on access to paper files. After sharp protests, particularly from media groups and private investigators, the committee shelved its report and the chief judge announced he would appoint a new, broader based committee to study the issue further.

The Maryland Court of Appeals ruled 4-3 that the governor's phone logs from his office (but not his residence) were disclosable public records. It explicitly rejected an executive privilege argument. The court also held unanimously that trial courts cannot seal settlement agreements in civil cases that are filed with the court unless the step is explicitly authorized by statute or an appellate court decision.

In mid-summer the attorney general posted all opinions of the state's Open Meetings Compliance Board. The advisory board considers complaints of violations of the open meetings law. See http://www.oag.state.md.us/Opinions /Open2000/00index.htm.

In Montgomery County, which has tougher open-government rules than state law mandates, the County Council called for a referendum to limit record access and permit more closed-door meetings. The city attorney presented the plan with no public debate, no public notice and no charter-commission review. Officials backed off when the action was reported.

A similar proposal to close certain information in arrest records, with an exemption for journalistic use, was withdrawn.

Massachusetts
A freedom of information commission was proposed to investigate all complaints of public records law violations.

A newspaper survey of 37 cities and towns across the Boston region has found that nearly three out of four local officials flout state laws designed to allow unfettered access to public records. Bureacrats flat out refused to hand over more than a third of all the requested documents, which detail everything from how officials spend taxpayers' money to crime trends within the community. Roughly 40 percent of the officials insisted on knowing the reporter's identity or the reason for the request before providing the files. Police in several departments ordered reporters to produce a driver's license before giving out the log. State law prohibits such demands because they serve only to discourage or intimidate citizens from obtaining public information, said Secretary of State William F. Galvin, whose office is charged with enforcing the state's public records statutes.

Michigan
Alleged privacy concerns outweighed open government in the courts and the legislature. An appellate court held that un-redacted motor vehicle accident reports were exempt from disclosure. Another decision cited privacy concerns in support of the nondisclosure of concealed weapons permits issued to state legislators.

The governor just signed into law a statute that exempts from disclosure the addresses and phone numbers of crime victims. However, after media objections, the portion of the bill that allowed police agencies to refuse disclosure of victims' names was dropped.

Among the favorable appellate decisions was one that declared a portion of a collective bargain agreement invalid where it purported to require the public body to refuse disclosure of discipline matters.

Minnesota
Officials at nearly 60 percent of Minnesota's jails broke the law late last winter. They refused to let the public look at the names of the people they lock behind bars. They weren't alone. A survey coordinated by the Minnesota Society of Professional Journalists found dozens of school districts that flat-out refused to say how much money their superintendents make and a few City Hall officials who wouldn't let the public view city council meeting minutes. See http://www.pioneerplanet.com/reprints/ 0417foipage.htm.

Meetings and records of nonprofit corporations formed by public bodies are open to the public under a new law.

An administrative order from the Commissioner of Public Safety directs that data about licensed drivers and motor vehicle owners collected by the state will, as of August 1, no longer be publicly accessible. The action nullifies the legislature's previous decision to maintain public access to DMV data.

Mississippi
Two long-standing freedom of information issues have made their appearance in the 2001 Mississippi legislative session. The first is opening up legislative conference committees; the second is adding enforcement provisions to the state Open Meeting Laws.

Conference committees are exempt from Open Meetings Law. A provision for special retirement benefits for legislators that had been slipped into a general state retirement bill during conference last year triggered such strong public backlash that legislators went into special session over the summer to remove the provision. Newspapers across the state used the uproar to draw attention to the fact that conference committees meetings are closed, which enables last minute additions, like the legislative retirement benefit, to be added without public discussion.

There were several bills introduced to add some enforcement provisions to the Open Meetings Law, but none made it through the first legislative deadline. Senator Hob Bryan proposed that Mississippi Press Association and Mississippi Center for Freedom of Information representatives meet with him and other members of the Senate Judiciary Committee this summer to discuss adding enforcement provisions to Open Meetings Law.

The Mississippi Supreme Court agreed to broadcast appellate court arguments over the Internet and to support filing of motions and briefs on the Internet. This move to open up the workings of the court appears to be in response to the strident campaigns of Supreme Court candidates this fall, some of which played on the general public's lack of understanding of what appellate courts do. The Chief Justice also said he was influenced by the television broadcasting of the Florida Supreme Court arguments on the presidential elections this past November.

Missouri
The Missouri Press Association has endorsed the creation of a public counsel's office to support compliance with the state's Sunshine Law. See http://digicol.missouri.edu/dcwww?-show:client/mizzou/missourian/j2000/q3/m09/t29/pa/s0 10/002_001.dcs.

Legislation was introduced for the second year to allow for stiffer penalties in cases of "purposeful" violations of the Sunshine Law. This bill would allow for fines up to $5,000. See http://www.house.state.mo.us/bills01/ bills01/sb019.htm.

One legislative proposal would have allowed birth parents to request that the birth records of their child be kept confidential. Additionally, every health care facility that provides birthing services would have to inform birth parents of their rights to request the nondisclosure of birth information and records. Some limited exceptions to confidentiality would have been granted.

A new law, signed by the governor on July 12, creates an "opt-in" policy for release of individual motor vehicle records, where records are released only if the individual expressly consents. The bill would maintain a news media exemption, passed in 1997, allowing press access to the records.

Proving that audits can be done at a micro-level as well, the Missouri School of Journalism's Columbia Missourian released the results of a countywide audit. The results? First requests were denied 75 percent of the time. http://www.digmo.org/features/audit/

Montana
Last year, the Montana Supreme Court struck down a state Revenue Department policy that held confidential some coal tax records that formerly were public. The high court unanimously agreed with news organizations that the practice violates Montana citizens' constitutional right to know. One justice wrote in a concurring opinion that the department had given corporations a privacy right that was intended only for people. The coal tax records had been closed by the Department of Revenue in 1993. A lawsuit challenging that decision was filed that same year by news organizations.

The high court also ruled in November that the public is entitled to know the details of the state's settlement of a lawsuit over the murder of Tamara Pengra. Mrs. Pengra was kidnapped and killed in 1995, in Helena. The crime was committed by Russell VanKirk, who was on probation, despite his criminal record of kidnapping, assault and rape. He is now serving 110 years in prison.

The Pengras sued the state, alleging it was negligent in supervising VanKirk. Shortly before the trial, the two sides settled. The family asked the amount paid by the state be kept secret. District Judge Dorothy McCarter ruled in January that the settlement amount should be public. But she ordered the settlement sealed pending the high court opinion.

The Montana legislature is poised to make state government e-mails public documents. HB 112 would include e-mails under the state's open records act. The bill has passed both houses, but amendments attached by the Senate must be approved by the House.

The Senate has given preliminary approval to a bill implementing the 1999 version of the Drivers Privacy Protection Act. SB 293 openly states that it seeks to protect personal privacy for citizens by going further than the federal act, making photographs, Social Security numbers and any medical/disability information (such as the use of prescriptive lenses) "highly restricted personal information" available only to government and law enforcement agencies. The bill also restricts access to a driver's name, address, phone number and license number in accordance with the federal law.

An amendment proposed by the Associated Press and approved by the Senate would allow photos to be distributed to the media for law enforcement purposes. Another amendment proposed by the Montana chapter of the Society of Professional Journalists and approved by the Senate includes "research for journalistic articles" as a legitimate purpose for accessing personal information. However, the bill prohibits the publication of personal information, as does the federal law.

New Hampshire
A new law establishes a committee to study the future impact of communication and information technology on the Right-To-Know Law.

New Jersey
After years of talk, media, legal and community organizations in New Jersey have formed the New Jersey Foundation for Open Government. The purpose of the organization is to educate the public and public officials and employees about access to government records and meetings. NJ FOG is primarily educational, but calls for establishing the most open government possible. The inaugural meeting was held January 14 at the N.J. Citizen Action office in Highland Park.

Among the founders are the New Jersey chapters of Citizen Action, Society of Professional Journalists and ACLU and the NJ Broadcasters Association, with Common Cause and League of Women Voters also participating but as yet not formal members. Other members include VOICES, an umbrella group of community organizations; United Taxpayers; Glenda's House, a local group; the Highland Park Observers, and interested individuals.

The broadcasters association and SPJ are providing start-up funds, and the NJ Press Association also has agreed to join. Outreach is continuing, and the initial meetings are focusing on organizational issues, such as conforming the by-laws to IRS regulations for non-profit organizations.

In the meantime, most of the participants also have been involved, collectively and individually outside FOG, in the latest struggle to overhaul the state's antiquated access statutes.

The 2001 legislature had been heading toward landmark FOI reform, then hit a logjam and the bill got carried over to 2002. The bill would give citizens who are denied access to records a new option of taking their case to a Government Records Council, which would hear it free of charge. The council would attempt to resolve the dispute informally through mediation. It also would have the power to fine a custodian who "willfully" withheld a record that was clearly public. http://www.nj.com/news/l edger/index.ssf?/jersey/ledger/13237b1.html

New York
A recent lawsuit deals with a situation in which a government agency prepares records in the performance of its statutory duties, discloses the records under the FOI law, and then says that the records are copyrighted and cannot be used for commercial purposes without payment of a royalty. A county sued the recipient of the records for copyright infringement in federal court and won — initially. Thereafter, the recipient moved to reargue based on an opinion prepared by the FOI office in an unrelated matter involving a different agency.

Robert Freeman of the FOI office advised that records disclosed under the FOIL may be used as the applicant sees fit, and that copyright protection is supposed to deal with (1) creativity and (2) the ability of creative people to make a profit or protect their works from others who might profit. Since the government agency prepared the record because the law required it to do so (not due to its creativity) and because government is not in it for the money, Freeman's advice was that the record was not subject to copyright protection. The court agreed and reversed itself.

The case is now before the US Court of Appeals. To Freeman's knowledge, this is the first case in the United States dealing with the ability of a government agency to impose copyright restrictions on records that it prepares and discloses under an access law.

A bill in legislative committee would create a Commission on Personal Privacy to study privacy initiatives.

New Mexico
In a records audit sponsored by the New Mexico Press Association, The Associated Press and the New Mexico Foundation for Open Government, requests were denied about one- third of the time for unlawful reasons. Law enforcement agencies were the worst. There has been some lukewarm response, reported Bob Johnson of FOG. The result was a kind of delayed statewide shock. The attorney general drafted a bill, based on a Texas law, to require each public body to post conspicuously at its administrative office the rights of the public to see public record, the procedure for getting it and the responsibility of the public body to provide it. The AG asked FOG to arrange for sponsors and shepherd the bill through the 2001 session of the legislature. It passed both houses unanimously and was signed by the governor.

FOG and The Albuquerque Journal joined in a lawsuit against the City of Rio Rancho over settlement with the parents of a man whom the police had been warned spoke of committing "suicide by cop." When the police arrived at his house, he appeared holding a ceramic cross. The police decided the cross was a handgun and shot him at least six times, killing him. The parents sued the city in federal court and arrived at a settlement. The city and the Self-Insurers Fund, an arm of the Municipal League, denied requests for a copy of the settlement, contending it was made confidential by a federal court protective order.

A state district judge ruled that the settlement was a public record, that the city had effective possession of it and that there was "no existing or legally effective" court order prohibiting the city from releasing it. The settlement disclosed that the city paid the dead man's parents $140,000 to settle the lawsuit. To settle with FOG and the Journal, the city forked over more than $35,000 in attorney fees and court costs. And the Self-Insurers Fund agreed to advise its members — the state's municipalities — that settlements by public bodies may become public upon request.

San Juan County and the City of Portales made a couple of settlements public when FOG pointed out the ruling. Bill Dixon, our attorney in the case, said the ruling and the fund's statement meant "any confidentiality order or agreement will be subject to dissolution upon the making of a valid Inspection of Public Records request."

The Santa Fe New Mexican, the Journal and FOG joined in a lawsuit against the Santa Fe Schools Board, which had paid an associate superintendent $20,000 to resign and give up his right to sue the district. The district court had accepted a protective order when the district and the associate superintendent's lawyers went to court after the settlement. After hearing arguments, the judge vacated the confidentiality provision of the settlement order.

The district paid the plaintiffs' attorneys fees and costs of $11,225 and agreed to adopt a new policy that forbids citing court orders for refusing inspection of settlements involving public funds. San Juan County and the City of Portales released settlements when FOG cited the results of those cases.

In another case, a district judge in Southern New Mexico ruled that juvenile arrest records are public, the same as those of adults, under the state's Arrest Record Information Act. The district attorney had brought on the case by arguing that juveniles arrests were not public until a petition was filed in district court and that juveniles could be held for 48 hours until that was done.

After the judge ruled, he argued that he could keep their names confidential for 15 days under the IPRA. When FOG went back to court with co-plaintiffs — KOTS-AM in Deming, the Las Cruces Sun-News and the Deming Headlight newspaper — the district attorney and his chief assistant immediately asked for a settlement conference rather than go to trial again. They agreed to release juvenile names and addresses immediately when a juvenile is arrested and taken into custody and that the Luna County Sheriff must release page one of the Offense/Incident Reports, including a synopsis reflecting whether a crime was committed and whether suspects were arrested. The plaintiffs accepted that settlement offer on a six-month trial basis, and the judge agreed.

Johnson reported that four and a half months later, the deal is working. Even the Municipal League acknowledged that what FOG and the media plaintiffs did was educational, and its executive director said he couldn't think of any specific examples why a government body should the right to keep terms of a settlement secret.

North Carolina
Statewide candidates and legislative candidates must file their campaign finance reports electronically under a new law.

Ohio
An Ohio citizen who requests an auto accident report or a financial statement from a government office will likely return home frustrated and disappointed, according to a new study by the Citizens League Research Institute (CLRI). Testers found that even if the agency complies, citizens often times are overcharged for photocopies they request. "City halls did best among the 128 offices surveyed," said CLRI research director Richard Marountas. "Police departments, on the other hand, had the hardest time meeting the requirements of Ohio's Sunshine Laws." Under Ohio law, almost all records created by state and local agencies are public and should be available for inspection by citizens, not just reporters, to help voters monitor the activities of government and its officials.

Oklahoma
Oklahoma completed a statewide survey on compliance with its Open Records law.

The survey was a joint project of The Daily Oklahoman, the Tulsa World, the Oklahoma Press Association and FOI Oklahoma Inc. Reporters and interns from the World and The Oklahoman went to all 77 counties and requested sheriffs' jail blotters and police radio logs, employment contracts for school superintendents and high school football coaches and agendas for city council etings. The survey examined accessibility, cost and whether requesters were asked why they wanted the records. In addition, the Oklahoma Press Association sent out 1,454 requests on June 20 to school districts, cities and towns and state agencies. The third phase of the survey was conducted by a private citizen hired by FOI Oklahoma to drive to 41 towns and request similar material.

While most of the cities and schools met most of the legal requirements, the worst offenders were the law enforcement agencies; the survey found one in four agencies did not comply with requests for public documents.

Oregon
The Radio-Television News Directors Association asked lawmakers to reject a House-passed bill that would exempt audio recordings of 911 calls from the state's public records law.

Pennsylvania
Gov. Tom Ridge acknowledged in a budget address the need to update the state's archaic open-records law. Unfortunately, the governor's interest extended only to amending current law to add stiffer penalties and include modern ways of copying. He is opposed to creating an administrative appeal office, changing the definition of public record and public agency and switching the burden from the public proving a document is public to the agency proving a document is not public. The proposed Office of Access to Public Records would provide a means of redress independent of court for citizens who encounter problems obtaining public information.

The Pennsylvania Newspaper Association is working with other organizations including Common Cause and local government groups to draft new open-records legislation. Sen. Greenleaf (R- Montgomery County) will be re-introducing a bill in the coming weeks. See http://www.pnpa.com/legislative/index.htm.

The press association is hosting a Freedom Workshop on March 26 to discuss creation of an open government coalition in Pennsylvania. Nancy Monson, executive director of the National FOI Coalition, will facilitate.

Rhode Island
Rhode Island was ranked last in the county in use of the Internet to help people do business with government online. The ranking grew out of a study by Brown University researchers. See http://www.insidepolitics.org/egovtreport00 .html.

South Carolina
Public bodies with web sites would be required to post notice of regular, called, special or rescheduled meetings on the sites, to post all meeting minutes within five days after they are adopted and to keep the minutes on the site for the next 30 days.

Tennessee
A new law specifies that public higher education institutions shall make available, upon request by a citizen of Tennessee, the titles of sponsored research or service projects and the amounts and sources of funding for such projects.

Texas
Texas was ranked first in the county in use of the Internet to help people do business with government online. The ranking grew out of a study by Brown University researchers. See http://www.insidepolitics.org/egovtreport00.html Texas Supreme Court issued its first interpretation of the recent changes the state legislature made in the state's open-records law. The court ruled documents privileged or confidential under the Texas Rules of Civil Procedure or Texas Rules of Evidence also meet the test for being kept confidential under the new public information law. See http://tm0.com/sbct.cgi?s=112 064755&i=306504&d=1073763.

Vermont
A new law provides for address confidentiality for victims of domestic violence, sexual assault and stalking. The law also prohibits address disclosure in criminal and civil proceedings and some public records.

Virginia
A new law created the Virginia Freedom of Information Advisory Council to advise and train government officials. Government officials and members of the public may request from the advisory counsel's office non-binding advisory opinions on whether particular records should be public under the records law. The opinions will not have the force of law but are intended to identify what rights citizens have to government information and proceedings.

In January the FOI Advisory Council issued a far-reaching opinion, perhaps the first such in the country, that found government postings to a list server or e-mail discussion group (involving other government officials) constitute a meeting under the Virginia FOI statute. In Virginia, any electronic meeting is illegal for local government and tightly restricted for state entities. One-to-one e-mails are permissible (except for 3-member public bodies), but are subject to public-record disclosure rules in the state. See http://www.opengovva.org/foiac.

A unanimous state Supreme Court, "in view of the undisputed tradition of openness to criminal proceedings," ordered a circuit court clerk to release audiotapes of criminal trials. Henrico County Clerk Yvonne Smith, an elected official, had refused to allow a reporter to listen to a recording of a 1999 trial.

The Wise County Circuit Court Clerk's Office went online with circuit court law, chancery and criminal orders, permitting lawyers, paralegals and the public to review imaged documents by case number or litigant names. Clerk Jack Kennedy established subscription fees of $10 a month for genealogy reviews, and $39 a month for "everything." See http://www.courtbar.org.

The clerk also arranged for teleconferencing equipment to link inmates at two nearby "supermax" prisons with the local courthouse and, seven hours away, the attorney general's office.

The state's Internet-services contractor began offering a free Web tracking system for up to 20 General Assembly bills and created a new portal page that offers an intuitive search engine, enabling citizens to link to government services without knowing agency structures. See http://www.vipnet.org/vip net/myvahomepage/cgi-bin/myvahomepage.cgi.

Washington
The Seattle public schools were ordered to pay $66,000 in attorney fees for withholding documents from the Seattle newspapers involving a former high-school teacher who had committed suicide. The case involved charges of inappropriate contacts between the teacher and his pupils. The teacher's widow wanted the record kept confidential.

The legislature is considering a crackdown on identity theft. See http://news.theolympian.co m/legislature2001/20010130/178900.shtml.

An effort is under way to tighten the state's probable-litigation loophole in its Open Meetings Act. Officials in closed meetings would still be allowed to discuss standing legal cases or if there was a reasonable threat of a lawsuit. See http://news.theolympian.com/Legislature2001 /1384.

Wisconsin
The governor issued an Executive Order that created the Governor's Task Force on Privacy. According to the Wisconsin Newspaper Association, the task force has come up with a proposal to clarify a problem created by a state Supreme Court case, which required custodians of records to notify subjects of open records requests and gave them the right to sue to block release. The task force has proposed a "procedural fix," which includes a much narrower interpretation of when notification is necessary and stricter time limits on compliance with FOIA requests.

For further information and a state-by-state wrap-up of FOI and privacy developments, see the Reporters Committee for Freedom of Information web site at http://www.rcfp.org/news/mag/v.cgi?24-3 /leg-stbystat.

Frosty Landon is executive director of the Virginia Coalition for Open Government.


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