First Amendment topicsAbout the First Amendment
2003 FOI update: The states

By Charles Davis

The 2002 and 2003 state legislative seasons have been driven by worries that terrorists could use even routine information to plan attacks or escape capture. While budget crises in most states have kept lawmakers focused on fiscal matters, it is clear that FOI at the state level is under tremendous strain. Open-government advocates have warned that a sweeping approach to anti-terrorism measures would block a key element of democratic society — public scrutiny of government.

Since Sept. 11, 2001, at least 20 states have proposed legislation that addresses the issue of open records, according to statistics provided by the National Conference of State Legislatures. The laws would keep secret a wide range of documents ranging from evacuation plans and emergency response plans to security measures and/or emergency health procedures. Also hidden are state security plans and manuals.

Some proposals focus on limiting access to birth and death records to prevent terrorists from seeking fake identification papers. Others concentrate on architectural and engineering drawings of public buildings to shield their vulnerability from terrorists. Some would close the doors on talks about water supplies and sewer systems, while others would limit information about ongoing criminal investigations, evacuation plans and bioterrorism-response assessments.

Across the country, there is discussion at the local level about what should be included in the public record. Some states are looking to control counties that have made public too much information on the Internet.

  • In Ohio, the Legislature has proposed bills to keep information private about Social Security numbers and other financial data in reaction to the Hamilton County (Cincinnati) court making nearly all documents available online.
  • Under a new Massachusetts law, state agencies can conceal blueprints and drawings related to state and local building structures and withhold security plans and any other information with details that could threaten state or local public facilities or public projects.
  • Many measures, however, have failed.

  • A New Hampshire bill that did not pass would have altered the state's right-to-know law by excluding the public from discussions related to preparations for response to terrorist acts.
  • In Indiana, the House voted to uphold the governor's veto of a bill that would have allowed legislators and the Legislative Services Agency to decide which records would be open and which would be secret. The proposals alarmed journalists and advocates of open government who believe that many of the plans were too general and were an impulsive reaction that would have been detrimental to efforts to keep the public informed.
  • Even as some states have tried to restrict access to public records, others have backed away or have enacted laws that actually sustain the concept of freedom of information. Idaho's initial plan would have allowed state government to secure records with approval from a judge. Maryland's original bill was more restrictive, but ultimately defined only records that should be kept confidential. New Jersey now authorizes more openness in government and has created a Government Records Council that is charged with disseminating information about the Open Public Records Act and acting to settle conflicts that stem from the new law.

    Future legislation may scrutinize public records, but today states perhaps have found a middle ground to keep government open.

    Many states also are in the throes of adopting formal rules for publishing court records on the Internet. The Conference of Chief Justices and the Conference of State Court Administrators recently promulgated a Model Policy on Public Access to Court Records. In addition, the Judicial Conference of the United States issued a report on access to federal court records.

    In Florida, the state Senate passed a bill 26-8 in March 2003 setting up a judicial records commission, which would include First Amendment proponents, clerks of court and attorneys. The commission would make recommendations to the Legislature, which would make the final decision on which records would not be posted on the Internet.

    In Massachusetts, in two years court records could be made available for viewing online by anyone who desires to see them, but the Supreme Judicial Court has said it wants to establish some boundaries.

    A $75 million project to launch a Web site by the Massachusetts Trial Court in 2005 would make records of civil and criminal convictions, financial statements, divorce papers, probations, sentences and fines available to anyone with access to the Internet.

    A sampling of access developments across the nation:

    Attorney General Bill Lockyer would not oppose a version of the California First Amendment Coalition-backed constitutional amendment that concisely states a presumption for open government.

    The current version of the Senate Constitutional Amendment (SCA 1) introduced in January simply replicates the final amended version of SCA 7, the 2002 effort to place on the ballot for voter approval a constitutional right of the citizenry to open government. SCA 7 failed in the Assembly in August when the Republican Caucus would not supply the needed votes for a rule waiver permitting it to be heard in committee.

    But it was clear the Assembly Democrats, influenced by opposition from private industry more than from public agencies, were not keen to have to vote on the bill either, since they were told by their political advisers that such an amendment might expose their caucus information to the Republicans. Instead, they engineered an attempted quick-fix consolation prize in the form of a bill that was vetoed in any event. (See the amendment text.)

    Three new bills reducing access to public information on anti-terrorism grounds took effect this month, but Democratic Gov. Gray Davis says he is not satisfied. The bills, effective Jan. 1, stemming directly from "9/11" anxieties, are as follows:

  • SB 1643 expands the Brown Act's current authorization to conduct "emergency" meetings. While emergency meetings previously could be held on an hour's telephone notice to local news media, SB 1643 shortens the media alert time, when necessary, to "at or near the time that the presiding officer or designee notifies the members of the legislative body of the emergency meeting." It also permits, for the first time, a closed session at "dire emergency" meetings, namely those called in response to threats of terrorist activity.

  • AB 2645 expands the scope of closed sessions under Government Code Section 54957 in the Brown Act. Previously local councils, board and commissions could cite that authority to hold closed sessions with the attorney general, district attorney, sheriff, or chief of police, or their respective deputies, on matters posing a threat to the security of public buildings or a threat to the public's right of access to public services or public facilities. AB 2645 now permits these closed sessions to hear reports from these officials, or a security consultant or security operations manager "on a threat to the safety and delivery of essential public services, including water, drinking water, wastewater treatment, natural gas service, and electric services."

  • AB 2072 amends the Bagley-Keene Act, which requires open and noticed meetings of state boards, commissions and similar bodies, by adding to Government Code Section 11126 the following language permitting a state body to hold a closed session, if approved by two-thirds of the members present:

    "to consider matters posing a threat or potential threat of criminal activity against the personnel, property, buildings, facilities, or equipment, including electronic data, owned or controlled by the state body, where disclosure of these considerations could compromise or impede the safety or security of the personnel, property, buildings, facilities, or equipment, including electronic data, owned or controlled by the state body. After meeting in closed session the state body shall reconvene in open session prior to adjournment and report the general nature of the matters considered and whether any action was taken in closed session."

    But the Davis administration has said it is not satisfied with the scope of AB 2072 because it focuses exclusively on threats to agency assets, as distinguished from threats to the public generally or to private businesses (refineries, etc.) that are subject to a given agency's regulation. The administration also wants express protection for vulnerability assessments under the California Public Records Act.

    Another new measure would seal police reports filed in court by prosecutors, and allow access only after victim and witness data had been purged. California prosecutors have for years commonly attached police crime reports to criminal complaints filed in court as a convenient reference for the court. In some counties, the courts have departed from this custom on privacy grounds by various means, such as causing the police reports to be lodged in separate files or by taking them under seal.

    The California Judicial Council's Administrative Office of the Courts informed all superior court presiding judges late in November that no legal authority existed for denying access to this information, which can often be very helpful to reporters in fleshing out the comparatively slight information offered by police and sheriffs' departments earlier in a case.

    The Legislature has strengthened some of the state's freedom-of-information laws, giving the public better access to autopsy reports, protective orders and teacher-misconduct records.

    Lawmakers expanded access to autopsy reports and protective orders and clarified the public status of teacher-misconduct records, according to Mitchell Pearlman, executive director of the state Freedom of Information Commission.

    Pearlman, quoted in an Associated Press article, said getting lawmakers to expand public information laws had been difficult in the past. "If it's a tug-of-war, I think we pulled it a little bit on our side this year," Pearlman told the Journal Inquirer of Manchester. "But it's an unending struggle. A lot of what we did was compromise."

    Pearlman said one of the biggest improvements was a change providing public access to autopsies of people who died while in state custody. That would cover prison inmates, the mentally retarded and children under the supervision of the Department of Children and Families or the court system.

    The Freedom of Information Commission is proposing a set of guidelines that would require the same access to those electronic records that's now required of all public documents. Since it was first proposed in November, the issue has generated more interest that any other in the commission's 28-year history. Under the proposal, town and state officials would be required to save and provide access to most communications that take place on government voice mails and e-mails. Many public officials are concerned that if the guidelines were enacted they would place an unreasonable administrative and financial burden on town governments and state agencies.

    Another change recognizes a legal position that the Freedom of Information Commission and state courts already have taken: that reports of teacher misconduct are subject to public scrutiny.

    The Associated Press reported in February 2003 that “there's a lot of interest building in a proposal to open up government e-mail and voice mail to the public.”

    A local newsman has won a battle to have officials of six New Castle County school districts open their meetings to the public, although his victory could turn out to be an empty one. Jim Parks, the editor of a northern Delaware news Web site called, complained to the attorney general's office in January 2001 after school officials barred him from attending their monthly breakfast meeting at the Hilton-Christiana near Newark.

    Parks argued the session should be public, subject to the state's open-meeting laws, and the attorney general's office sided with him in an opinion it issued in February 2003. It determined that the school officials constituted a public body under the state's Freedom of Information Act. The opinion directed the school officials to post public notices of future meetings, admit the public to them and keep minutes. "The joint board is a 'public body' for purposes of FOIA and subject to all of the requirements of the open meeting laws," the opinion said.

    The attorney general's office determined the school officials should hold open meetings because: they had become an institutionalized public body set up by the school boards; all the members were government officials or employees; they performed functions traditionally associated with school boards; and the costs of the conference room and breakfast were paid from public funds.

    Barbara Petersen of the Florida First Amendment Foundation reports that on the first day of Florida's 2003 legislative session, March 4, the organization already had 44 open government bills on its tracking list:

    “Of those, 17 are Open Government Sunset Review Bills, current exemptions that will sunset this year if not reviewed and reenacted by the Legislature. There are about 15 new exemptions proposed, 10 of which are truly objectionable. For example, HB 123 and its companion, SB 1666, would close access to the cell-phone numbers, pager numbers, and e-mail addresses — and all associated billing records — of law enforcement officers and a laundry list of state and local government employees.

    “The obnoxious public-utility exemption has been refiled this year, as has the exemption for reports detailing catastrophic mistakes made by pharmacists. Perhaps most alarming, however, is the number of shell bills on the list — there are currently 12 shell bills relating specifically to public record exemptions, as well as another dozen or so ambiguous ‘security’ shell bills. (A shell bill acts as a place holder, and contains a simple statement of intent, like, ‘It is the intent to the Legislature to amend Florida's Public Records Law,’ or ‘It is the intent of the Legislature to enact laws relating to seaport security.’”

    Earnhardt litigation: A judge upheld a Florida law restricting public access to autopsy photos that was being challenged by several of the state's newspapers. The law was passed in March 2001 after the death of race-car driver Dale Earnhardt. Attorneys for the Orlando Sentinel and its sister paper in Fort Lauderdale, the South Florida Sun-Sentinel, argued that the law was unconstitutional and should be struck down, partly because it was too broad.

    The law was upheld last June by Volusia County Circuit Judge Joseph Will in a challenge made by the student-run newspaper that covers the University of Florida. Will denied the Independent Florida Alligator access to Earnhardt's autopsy photos. That case was appealed to the 5th District Court of Appeal in Daytona Beach. It is not clear when the appeals court, which heard the case in May, will issue its decision. The court could also hand the matter to the Florida Supreme Court.

    Stirling Morita reports:

    “In December, Linda Lingle, the first Republican governor elected in 40 years, vowed to make state government more open. Before going into politics as a Maui County councilwoman, she founded a small newspaper on Molokai.

    “In March 2003, a bill to exempt county councils from the Hawaii open-meetings law apparently died in the state Legislature. The Honolulu City Council asked for the bill, contending it restricted it too much, while civic groups opposed the measure, saying it created too much of a loophole in the law.”

    In March 2002, Republican Gov. Dirk Kempthorne signed into law a compromise bill to protect government records of buildings and infrastructure, including threat assessments and evacuation plans, when releasing them would endanger public safety.

    The measure, HB 560, was negotiated between media groups, lawmakers, the Idaho Attorney General's office and the American Civil Liberties Union. It replaced an earlier proposal, HB 457, which would have added a new exemption to the Idaho public records law for threat assessments and evacuation plans. HB 560 instead fine-tunes an existing exemption in the law to cover those records, which Attorney General Al Lance said terrorists might seek while planning their attacks.

    The signing of the compromise bill closes a debate that began with Lance proposing seven new exemptions to the public records law in the wake of the Sept. 11 terrorist attacks. In the end, he proposed only two bills to the Legislature. One, HB 459, was killed in a Senate committee, after it was criticized as a ''catch-all" exemption that would have allowed state agencies to seek a judge's approval to deny access to public records, even when they're open by law.

    According to Illinois Press Association Government Affairs Manager Beth Bennett, a priority for 2003 will be the inclusion of attorney's fees as part of Freedom of Information Act court decisions that find governmental bodies violated the law. Because FOIA battles can be lengthy and expensive, government officials have been known to drag out cases in the hopes of tiring plaintiffs. IPA members want government officials to be required to pay plaintiff's attorney's fees if the courts rule that the officials violated the act.

    Illinois advocates also hope newly elected Illinois Attorney General Lisa Madigan will consider the creation of an "access counselor" position in her office. Modeled after a similar post in Indiana, the counselor would address access questions and reduce the number of disagreements that enter the court system. IPA members agreed that the access counselor issue should be pursued via Madigan, who has named a number of IPA members to her FOIA transition team.

    The press association also hopes to see the re-introduction of a verbatim-record rule for minutes kept of closed sessions. The IPA staff believed it had successfully worded legislation last year that would have required government officials to keep verbatim minutes (such as a tape recording) of closed sessions for future review by a judge if Open Meeting Act allegations were filed against a governmental body. Only the judge would be permitted to hear the tape.

    After the bill passed both houses of the General Assembly, however, problems with the compromise language prompted former Gov. George Ryan to veto the measure. Liability concerns raised by the Illinois Municipal League kept lawmakers from taking any action to override Ryan's veto.

    The Indiana General Assembly wants to shield information from Hoosiers in the name of privacy and homeland security. During the past two years, the General Assembly has tried — unsuccessfully — to limit access to legislators' records and to electronic records, which include legislative e-mail. This year, for instance, family historians are upset that legislators are trying to restrict their access to birth and death records — important tools for genealogists.

    House Bill 1540, sponsored by Rep. Peggy Welch, D-Bloomington, would make birth and death records, now public at the county level, secret except to the news media. Professional genealogists would get access, but only under rules established by the Indiana Department of Health.

    Steve Key, a lobbyist for the Hoosier State Press Association, said this legislation would prevent neighborhood associations or environmental groups from looking at death records to determine if there's a high incidence of cancer or any other disease in their communities.

    Key said he was also worried about another bill, House Bill 1476, which would limit the public's access to information about discipline of public employees. Sponsored by Rep. Clyde Kersey, D-Terre Haute, the bill was approved 69-29 in the House. It would allow the public to learn about a public employee's discipline only if the disclosure was approved by a governing body. But that means a reprimand by a school superintendent or the mayor would be secret. Pushed by the Indiana State Teachers Association, this issue has been considered at least two other times in the legislature.

    State security and terrorism preparedness would also become secret under House Bill 1935, sponsored by Rep. Dennie Oxley, D-Milltown. Oxley said he didn't want plans to fall into the wrong hands, compromising Hoosiers' safety.

    Lawmakers aren't just trying to shut down records. There's legislation pending that would make it easier for the public to hold their elected and appointed officials accountable — by limiting what can be talked about in a secret executive session and requiring governing bodies to provide notice of their public meetings by e-mail.

    House Bill 1876 would nullify damage done when the Indiana Court of Appeals ruled in 2001 that governing bodies could make decisions in private and could be required to only take a final vote in public. But the bill stalled before the House Appointments and Claims committee.

    FOI advocate Kathleen Richardson reports:

    Iowa has joined the states that have closed or are attempting to close veterans’ records maintained by county recorders. Legislation has been introduced in the Iowa Legislature (Senate File 94, House File 126) that would close such records.

    Journalists and other access advocates have been upset by increased secrecy at the Statehouse this session. The governor and legislative leaders came under fire for holding a closed-door retreat in early February to discuss the state's financial problems, and Senate leaders have begun meeting in "working groups" that are closed to the press and public.

    The Polk County Board of Supervisors came under fire in January for overhauling county government by eliminating the county manager's office without discussing the move in public meeting. (The board technically didn't violate the state open-meeting law because the closed-door discussions involved newly elected board members who hadn't been sworn in yet.) In addition, the dismissed county manager took county documents (her appointment book and calendar) with her when she left office and she has declined requests to return them. She is suing the county over her firing.

    Other developments:

    The good:

    • The Iowa Supreme Court supported two Waterloo journalists who refused to buckle to demands by their opponents in an open meetings lawsuit that they reveal confidential sources of information.
    • The Buena Vista County clerk of court agreed to release documents and pay attorney’s fees after The Des Moines Register sued to obtain court records.
    • Iowa journalists and representatives of the three state university fund-raising foundations have made progress toward increased public access to the foundations’ records and meetings.
    • The Iowa judiciary moved this year to put more and more court information online.
    • The Iowa Attorney General’s Office began producing monthly newsletters to educate Iowa citizens and government officials about the state access laws.

    The bad:

    • A judge in Cedar Rapids denied the Cedar Rapids Gazette’s request for copies of emergency calls made to police in connection with a stabbing death — even though there were indications the caller, who requested an ambulance, was told to hang up and dial 911.
    • Both vehicle and boating accident reports required to be submitted to the state remain shrouded in secrecy.

    The ugly:

    • The Legislature earlier this year amended the open records law to make it more difficult to obtain medical examiner records.
    • The Des Moines Register sued the public county hospital after executives refused to release memos and e-mails exchanged by hospital managers about their decision to evict a clinic for the poor — a decision that was never discussed in public.
    • City councils in Olin and Spirit Lake adopted policies that restricted public comment at meetings.
    • City councils routinely violate the open meetings law by going into closed session to discuss all real estate transactions and then refusing to release tape recordings of the meetings even after the transactions are completed, newspaper editors reported.
    • One central Iowa county attorney refuses to release the names of juveniles charged with crimes, even though the Iowa Legislature specifically acted in the mid-1970s to ensure that complaints against juvenile offenders be made public. The police chief in a southeast Iowa community refuses to release the names of crime victims.

    In addition to longstanding, chronic problems of openness, the 2002 Iowa Legislature joined lawmakers around the nation in reacting to the fear of terrorism by adding “homeland security” exceptions to open-records and -meetings laws.

    While significant strides have been made in the past two years in public records training for Iowa officials, a special public-records ombudsman named in 2001 resigned this summer and there are no immediate plans to replace him.

    The House Ethics and Elections Committee endorsed HB-2149 in February. The bill would require advisory committees and task forces created by incoming governors to have open meetings. The committee's endorsement sends the bill to the House floor for debate.

    The measure was inspired by criticism of a review of state government initiated by Democratic Gov. Kathleen Sebelius after her election last November. Five teams that Sebelius appointed held 18 closed meetings before she took office in January. The bill originally applied to any task force or advisory committee created at the state or local level by an official or someone who has just been elected. But a subcommittee recommended limiting the bill's provisions to groups appointed by an incoming governor.

    The state legislative auditor has filed suit seeking e-mails from the Louisiana Public Service Commission, saying that all communication between public servants is public information. But an attorney for the utility regulatory panel says that giving Legislative Auditor Dan Kyle access to all e-mails would, in some cases, violate attorney-client privilege.

    Kyle filed the suit in state district court, seeking access to all e-mails between the commissioners and their employees. When Kyle's auditors tried to peruse the e-mail system, PSC attorney Eve Gonzalez told them their access would be limited, according to the lawsuit.

    More than a third of police departments turned down requests for routine records in the first statewide test of how local government agencies comply with Maine's Freedom of Access law.

    Scores of volunteers participating in an audit by the Maine Freedom of Information Coalition fanned out across all 16 counties, visiting 74 police departments, 157 municipal offices and 79 school districts. Letters also were mailed to nearly 500 municipalities.

    Surveyors fared worst at police departments, with only two-thirds of the audited departments allowing access to the latest daily incident report, or police log. Some auditors reported being intimidated, and two reported that cruisers followed them after they completed their task.

    School officials obtained advance knowledge of what was supposed to be a surprise audit. Even so, only two-thirds of the auditors were allowed to view the superintendents' contracts.

    Municipal offices were the most cooperative, but the audit results were skewed because the requested document — the latest expense report for the highest elected official — was rarely kept on file.

    The audit was conducted by the Maine Freedom of Information Coalition, made up of media, public interest, academic, government and private organizations with an interest in protecting access to public information.

    After a draconian initial proposal, the administration of Democratic Gov. Parris Glendening eventually backed down and scaled back a proposal to limit access to public records that was prompted by terrorism fears after the Sept. 11 attacks.

    The amended legislation was based on similar proposals in Virginia and Florida and came after negotiations with news organizations, including The Washington Post, and local government officials. Under Glendening's original legislation, government officials would have had virtually complete discretion to deny access to public records if they determined "that inspection of the information would constitute a risk to the public or to public safety."

    Instead, the legislation now requires government officials to show why they should not release the public records, and it attempts to find a better balance between public security and the principles of open government.

    The types of accusations and lawsuits that once targeted the University of Michigan's policies in publicizing information about presidential searches are now being pointed at the University of Minnesota, according to a recent story on University Wire.

    Several Minnesota newspapers have sued the University of Minnesota, stating that it violated the state's Open Meetings Law during a presidential search last fall. The search committee concluded by promoting then-interim president Robert Bruininks to the top job in November.

    The plaintiffs filed the lawsuit in December, and Hennepin County District Court Judge Pamela Alexander heard arguments in her courtroom in March 2003.

    At the beginning of November, the University of Minnesota Board of Regents voted not to follow the Open Meetings Law, keeping search meetings private until the selection of a president.

    According to Minnesota's Data Practices Act, if a body is interviewing candidates for a public-employee position, those candidates immediately become finalists and therefore their names must be publicized. In addition, Minnesota's Open Meetings Law states such interviews must be open to the public.

    But the University of Minnesota has said that it has constitutional autonomy from the state legislature regarding the internal matters and operations of the school.

    Report by Jeanni Atkins, executive director, Mississippi Center for FOI:

    “After six years, the Administrative Procedures Act was passed and signed by the governor. The APA requires state agencies to allow public comment on proposed state rules and regulations, standardizes rule-making procedures, makes all state agency rules and regulations accessible to business and private citizens, and protects the rights of businesses and private citizens in dealing with state agencies.

    “House Bill 454, the Open Meetings Enforcement bill, has passed the full Judiciary Committee. The amended bill places liability on all members of the public body violating the law. The language now reads: ‘If a court finds that a public body has willfully and knowingly violated the provisions of this chapter, that public body shall be liable civilly in a sum not to exceed one hundred dollars ($100.00), plus all reasonable expenses incurred by such person or persons bringing the lawsuit.’ A similar bill was killed in the conference committee in 2002.”

    Records audit: Letters requesting total legal fees budgeted/expenditures, including outside counsel, were sent to 290 mayors and 75 county school districts; 34 out of 75 school districts supplied information in some form and 137 mayors responded to the request. Breakdown of the response from mayors: 137 provided the actual total amount of legal expenditures; only 40 supplied the amount budgeted; 77 gave the amount paid for the city attorney's retainer; 23 provided the amount spent on outside legal counsel; 21 provided the amount spent on the public defender/prosecutor; 28 provided the amount paid to judges. We learned that cities generally pay litigation insurance, so few had any information on how much cities spent on litigation. Five did provide litigation expenditures. Only 15 cities required a public-records form.

    One surprising finding was that the vast majority supplied the information without any charge. Only nine cities and one school district charged for the information; charges ranged from $.87 to $61.

    Phone calls began immediately after the letter had been received. Mayors, attorneys, city clerks, business managers and a few school superintendents called. There were more than 120 calls. Some callers were openly hostile. The tone of many other calls indicated suspicion, even fear that something was wrong and they might be in trouble. The standard FOI request letter made people think the request was from an attorney, which perhaps contributed to apprehension. Several said they had never gotten this kind of a request before.

    Almost without exception, callers wanted to know why the information was being requested and how it would be used and the identity of the person submitting the request beyond just the name. One attorney said his school board was very upset when they got the letter, and he had to be a calming influence.

    Those who responded with information on legal expenditures, however, were eager to be helpful and cooperative. Some made several calls to be sure they correctly understood what information was needed. Letters providing the information also were cordial, offering to provide additional information if needed.

    The Board of Regents violated Nevada's Open Meeting Law when a confidential report was discussed at a September 2000 meeting without being listed on the agenda, the Supreme Court was told in February.

    In appealing a lower court ruling for the regents, Senior Deputy Attorney General Tina Leiss argued that the discussion of the contents of the report on a botched March 2000 drug raid at UNLV by campus police constituted a violation.

    The posted Campus Environment Committee agenda item was a discussion of laws relating to the release of public documents. But during the meeting, Regent Doug Hill discussed the UNLV report at length, she said. Brooke Nielsen, attorney for the regents, argued that no violation occurred. Although one regent commented on the report, it was recommended for posting on a future agenda for further discussion, she said. A ruling in the case is pending.

    In July New Jersey’s revamped public records law took effect, the result of years of hard work by open government advocates in the Garden State. It's the first overhaul in 38 years of New Jersey's statute governing public access to government records, a move hailed by supporters as a chance for the public to actually see the its own business.

    Unlike earlier laws, this new statute details exactly what is a public record and what is not. Before, those curious about a government action in most cases had to rely on the officials who created a record to decide if it could be released. The old law covered only a limited range of documents.

    Another first for New Jersey is a time limit for responding to public records requests. Governments must respond within seven days, although an agency can ask for more time if the request involves a complicated search or a large number of records.

    The law does not require a fee; costs can be covered for copying large volumes or oversized items like maps.

    Another first for the open records law: civil penalties against local officials who refuse to comply in a reasonable manner. A state commission will be set up to arbitrate disputes without lawsuits.

    The law took effect only after an about-face by Democratic Gov. James E. McGreevey. In early July, citing terrorism concerns, he signed an executive order listing 483 exemptions to the new law, which had just taken effect and which gives the public and the media unprecedented access to government records. McGreevey later narrowed that list of exemptions to 75 and committed his administration to openness and accessibility.

    Republican Gov. George Pataki’s administration quietly ordered state agencies to restrict information available on the Internet and limit its release through New York's Freedom of Information Law to prevent terrorists from using the material, which includes maps of electrical grids and reservoirs as well as building floor plans.

    The new policy, laid out in a confidential memorandum to agency heads from the state's director of public security, James K. Kallstrom, is one of the most far-reaching and restrictive in the nation, according to research librarians and advocates for open government. Kallstrom, a former high-ranking official of the Federal Bureau of Investigation, said the order was aimed at preventing details about potential targets, like bridges and nuclear power plants, from falling into the hands of terrorist groups.

    Some state agencies had removed material in the immediate aftermath of the World Trade Center attack. But in the memorandum Kallstrom issued, he said the Pataki administration was concerned "that there is a disconcerting amount of potentially compromising information still publicly accessible."

    The agency commissioners were not only instructed to review again what might be accessible but were also asked to classify as "sensitive" and make exempt "information related to systems, structures, individuals and services essential to the security, government or economy of the state." He directed agency heads to remove things like data about electrical power, gas and oil storage, transportation, banking and finance, water supply, emergency services and the continuity of government operations.

    Recently, the state of Oregon amended its FOI laws to provide for homeland security-driven exemptions. These exemptions concern the review or approval of programs about the security of generation, storage or conveyance of electricity, gas in liquefied or gaseous forms, hazardous substances in liquid form, petroleum products, sewage or water.

    Additionally, certain communications within a public body or between public bodies of an advisory nature are exempt from disclosure if they relate to other than purely factual materials and are prior to any final agency action. This exemption applies only if the government entity can demonstrate, with specificity, that the public interest in encouraging frank communication between public officials and employees clearly outweighs the public interest in disclosure.

    Republican Gov. Mark Schweiker has signed an open-records reform bill that media advocates say is an improvement but does not release any new records to public scrutiny. The new law essentially makes currently available records more easily available by encouraging state and local governments to share them in computerized form.

    It also requires government officials to reply within a mandatory time frame and explain any denied request in writing, citing legal reasons, and it sets up a lower-cost appeals system for members of the public.

    Under the law, any agency or local government would be fined up to $300 for refusing to provide a public record, and as much as $300 a day if they failed to comply with a court order allowing access to the record.

    The bill became law after a more than 10-year battle by public-interest groups and the newspaper association, which has pressed legislators to address the issue.

    The Pennsylvania Newspaper Association has created a useful guide to the new law.

    Those who want to open confidential state records should learn why laws were passed to protect the information involved, a veteran lobbyist told members of a task force on open government in Pierre, according to a recent story in the Sioux Falls Argus-Leader.

    "You have to go back and see why these things are in there," Bill Dougherty of Sioux Falls said, referring to sections of law that limit public access to government documents or files. "You can't just arbitrarily go out and repeal something."

    In most cases, such a review would show that the lawmakers had a strong reason for protecting a record, he said.

    Dougherty represents the South Dakota Petroleum Marketers on the task force, created by Attorney General-elect Larry Long. Long had promised during the fall campaign to put together a group to review access to state and local government records and meetings.

    The group spent its first meeting sharing concerns about instances in which records ought to be open or closed and how citizens would know whether the public had a right to obtain a document.

    Several of the task force members agreed that the state's open-records laws, compiled in a 3-inch-thick binder by the attorney general's office, should be simpler and clearer.

    One of the media representatives on the task force, Associated Press Bureau Chief Tena Haraldson, suggested the records laws and exceptions to the law be gathered into one section of the state code so provisions can be more easily found. She also recommended the task force look at appropriate penalties or remedies for violations of the open-meetings law.

    Frosty Landon, executive director of the Virginia Coalition for Open Government, reports:

    “During the recent General Assembly session, at least eight new exemptions got tacked onto the state's Freedom of Information Act, boosting FOIA's total for record exemptions to 87 and its open-meeting exceptions to 31. These are preliminary numbers, subject to possible veto actions by the governor. Also, at least seven of the existing exemptions were expanded to allow more secrecy, particularly in the name of security or privacy.

    “Unfortunately, FOIA got trumped by legislation creating a new commission to oversee, in secret, extension of prison terms for violent sexual predators (only three or four other agencies, plus petit and grand juries, got similar FOIA free rides in the past).

    “Fortunately, most of the state's new exemptions, as amended, tend to be agency-specific, narrow in scope and similar to ones previously adopted. Except for a couple of bills written by the FOI Advisory Council, new amendments were NOT narrowly written at the outset — and thus had to be fixed by FOIA lobbyists.

    “A number of truly bad bills died quiet deaths, including one to muzzle participants in a closed meeting, another to seal search warrants easily, a third to keep Virginia news media from reporting presidential election results until polls close on the West Coast.

    “Most of the state's presumptions for openness survived legislative attack, but a bitter fight broke out when privacy advocates tried to shut down Internet access to any public record (land records, mostly), having a Social Security number, mother's maiden name, birth dates, children's names, scanned signatures or financial account number. As introduced, the legislation would have made most-wanted-criminal Web sites unlawful — and the state legislators' own Web pages would have been shut down whenever they included children's names.

    “As amended, the bill exempted state agencies and educational and genealogical records and limited online access to remaining records to a fee-based subscription system requiring users to provide a notarized or otherwise sworn application establishing identity. The system will be in place 18 months, pending completion of a study of new electronic access rules for court records. At the last minute, a state senator usually identified with open-government initiatives tacked on a floor amendment, approved 21-19, requiring a subscriber to reveal "purpose of access" (a test that's not found in the state's FOI Act).

    “Not just bad laws got written: Minimum penalties for a knowing violation of FOIA got increased ($250 hereafter; $100 in the past); a media right-of-access got spelled out for polling places; tough new disclosure rules got adopted for disciplining of bad doctors; and future governors were told to withhold only "strictly" personal records from state archives.”

    A public opinion survey in Washington state shows a correlation between fear of privacy invasion and support for access to government records (even after accounting for demographic variables). The more fear, the less support.

    Some of the other findings:

    • First Amendment education is related to support for access and community involvement.
    • People are wary of press access to government records but strongly support their own access to the same records when it is explained how they apply to their lives.
    • Support varies by type of record (for example, more support for open criminal records than public utility records).

    The study was conducted by a Washington State University grad student, assisted by Professor Susan Dente Ross, and partly funded by the Washington Coalition for Open Government. An academic paper on the results will be presented at the American Association for Public Opinion Research May 15-18 in Nashville.

    See the news release. See the questions with results.

    During her election campaign, Wisconsin Attorney General-elect Peg Lautenschlager promoted changing state law to clarify the state's murky open meetings laws. Time will tell whether lawmakers make that happen. A legislative committee is already discussing a bill that seeks to clear up the ambiguity created by a 1996 Wisconsin Supreme Court decision.

    In the Woznicki v. Erickson case, the court ruled that public officials or employees must be notified before public documents about them are released, giving them a chance to file a lawsuit to try to block the release of the records to protect their privacy and reputations.

    Rulings since then have broadened record-keepers' discretion in what to release or withhold, adding to the confusion.

    State Rep. Mark Gundrum, R-New Berlin, co-chairman of a committee discussing the legislation, said in December he was "very close" to finding middle ground that all parties would accept.

    The committee was close to passing a so-called Woznicki fix until the Wisconsin Manufacturers & Commerce organization said the open records law should not apply to private-sector employees who work for the government.

    Though she plays no role on the legislative side, Lautenschlager would be asked for public opinions on the interpretation of open records law. While her opinion wouldn't be legally binding, it would carry special weight if a fight for open records landed in court.

    Charles Davis is director of the FOI Center at the University of Missouri.

    Analysis/Commentary summary page
    View the latest analysis and commentary throughout the First Amendment Center Online.

    print this   Print

    Last system update: Thursday, August 21, 2008 | 20:56:03
    About this site
    About the First Amendment
    About the First Amendment Center
    First Amendment programs
    State of the First Amendment

    First Reports
    Supreme Court
    First Amendment publications
    First Amendment Center history
    Freedom Sings™
    First Amendment

    Congressional Research Service reports
    Guest editorials
    FOI material
    The First Amendment

    Lesson plans
    Contact us
    Privacy statement
    Related links