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A matter of balance: Secrecy doesn't guarantee security
Inside the First Amendment

By Ken Paulson
Executive director, First Amendment Center

Public records are becoming a lot less public.

Buffeted by security and privacy concerns, many of America’s public-records laws are being rolled back.

Of course, in the wake of Sept. 11, some restrictions on access to government information are understandable. Before the terrorist attacks, few of us gave much thought to the public availability of information about the nation’s infrastructure and water supplies.

The Nuclear Regulatory Commission — an agency which has long received high marks for keeping the public informed — shut down its Web site at the request of the Department of Defense. Much of that information is now back online, but some of the content may not be re-posted due to concerns about public safety. Few quarrel with that approach.

Yet using the terrorist attacks as justification for this new wave of efforts to close public records would be too easy — and misleading. In truth, we may be seeing a more fundamental shift in the way Americans view access to public information.

In a survey done by the First Amendment Center before the terrorist attacks, Americans were asked whether they were more concerned about the media having too much freedom or the government imposing too much censorship. Forty-one percent said their concern was with the media, while 36% said they were more concerned about government censorship. Concerns about security and privacy have only grown since then.

In a report issued this month, the Reporters Committee for Freedom of the Press detailed new efforts to restrict public information. Among developments cited:

  • Attorney General John Ashcroft issued a memo to federal agencies that in effect revoked a policy of openness established by former Attorney General Janet Reno. The memo promised Justice Department support when agencies deny access on the basis of privacy or national security claims.
  • Hundreds of bills have been introduced in state legislatures to exempt specific government records from public scrutiny.
  • In Florida alone, more than 100 bills restricting access to public records were introduced, attempting to create 60 new exemptions to either public-records or public-meetings laws.

To be clear, many of the measures introduced in Florida and other states have nothing to do with the war on terrorism. One proposal would prevent the public from knowing the names of the biggest users and abusers of public water. Another bill would delay public access to reports filed by doctors when they make fatal errors. Another proposed law would close meetings in which government agencies discuss public contracts.

In response to the torrent of legislation in Florida, 25 of the state’s newspapers banded together on “Sunshine Sunday” to editorialize about this unsettling trend.

Sample sentiments from the Bradenton Herald: “The sponsors of many of those bills are shamefully exploiting the Sept. 11 terrorist attacks to impose vast new restrictions in the name of Homeland Security, mocking the spirit and letter of the law that requires all exemptions to be as narrowly drawn as possible. … Secrecy-loving politicians busily gutting the open-records law are not just punishing investigative reporters; they are denying you, the average citizen, access to the records that you pay for with your taxes and to which you are entitled by the Constitution.”

The newspapers’ editorial campaign seemed to have little effect. The very next day, Florida’s legislators moved aggressively ahead.

There’s no question that our society views public information in a dramatically different way after Sept. 11. There are legitimate concerns about whether public records may contain details that could abet a terrorist act.

Yet if we’re not comfortable with a public document which details an airport’s security plan, how comfortable are we with no information at all and just an assertion by government officials to the effect of “Security plan? Sure, we’ve got one.”?

Steven Garfinkel, former director of the U.S. Information Security Oversight Office, has a special perspective on the balancing of security concerns and public information.

Garfinkel recently was honored by the American Library Association for his exemplary work as a government official with a real commitment to open government. In accepting his award, Garfinkel offered these thoughts:

“The American government stands apart, far apart, from any other government, either now or in the past, in the quality and quantity of information it shares with its citizens and the world. This openness is a defining statement about the kind of democracy we are. It is a defining statement about America.”

Over his three decades of service, Garfinkel found ways to preserve national security while respecting the value of freedom of information in a free society. We still need to strike that balance.


Most public-records bills die at end of Florida legislative session

Lawmakers pass 10 measures blocking access to records but also endorse legislation that could make it more difficult to close records in future. 03.25.02

Louisiana lawmakers pass anti-terrorism bill
Legislature sends measure to governor despite complaints it would create veil of secrecy, infringe on residents' constitutional rights. 04.18.02

State lawmakers draft more than 1,200 Sept. 11-related bills
Report outlines measures introduced nationwide that range from making terrorism a capital crime to requiring teachers to lead students in Pledge of Allegiance. 04.22.02

Bill to amend N.Y. FOI law draws criticism
Open-government advocates say measure limiting access to terrorism-related information could give agencies carte blanche to restrict material. 05.09.02

Public records tougher to view since Sept. 11
Culture of secrecy that traditionally has pervaded federal government was magnified after last year's terrorist attacks, panelists say. 05.09.02

Researchers stymied by clampdown on government records
Some scientists say post-Sept. 11 records restrictions have eliminated access to information vital to their studies. 10.15.02

Secrecy foes continue push for government openness
Despite crackdown on information access since Sept. 11, FOI advocates are continuing to fight for public's right to know. 04.03.02

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