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States clamp down on public access to info

By The Associated Press
03.12.06

  • Sunshine Week '06 at a glance
  • Editor's note: This is the first installment in a package tied to Sunshine Week, organized by news-media organizations and other groups to combat government secrecy and bring attention to the public's right to know.

    Some things your government doesn't have to tell you about:

    • The safety plan at your child's school, if you live in Iowa.
    • Medication errors at your grandparent's nursing home in North Carolina.
    • Disciplinary actions against Indiana state employees.

    States have steadily limited the public's access to government information since the Sept. 11, 2001, terrorist attacks, a new Associated Press analysis of laws in all 50 states has found. Legislatures have passed more than 1,000 laws changing access to information, approving more than twice as many measures that restrict information as laws that open government books.

    The horror of the attacks spurred a wholesale re-examination of information that could put the country in danger, and the state actions roughly mirror those on the federal level. Federal agencies responded by shutting down Web sites, pulling telephone directories and rethinking everything from dam blueprints to historical records.

    In statehouse battles, the issue has pitted advocates of government openness — including journalists and civil liberties groups — against lawmakers and others who worry that public information could be misused, whether it's by terrorists or by computer hackers hoping to use your credit cards. Security concerns typically won out.

    The AP discovered a clear trend from the Sept. 11 attacks through legislative work that ended last year: States passed 616 laws that restricted access — to government records, databases, meetings and more — and 284 laws that loosened access. Another 123 laws had either a neutral or mixed effect, the AP found.

    "What these open-government laws do is break down that wall of government secrecy so that everybody knows what's going on," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "A democracy can only function if we have information. You can only have oversight of government if you have information."

    Terrorism not only motivating factor
    Associated Press reporters in every state, often with help from their local press associations, tracked the government-access bills introduced since the World Trade Center towers and Pentagon were hit by hijacked planes.

    In every state, reporters tallied bills that were proposed each year, and then examined the laws that passed. They assessed the impact of each new measure and rated it as loosening existing limits on public access to government information, restricting the limits, or neutral.

    While fear of another terrorist attack drove many new proposals, it wasn't the only motivator. Concerns about identity theft, medical privacy and the vulnerability of computerized records have sparked many pieces of legislation, too.

    Lawmakers say they are recalibrating the balance between information that could be used against society and what society at large needs to know.

    "Since Sept. 11, we're looking at information like plans for our nuclear plants, the records of our bridges and transportation systems. All of the critical information that is out there that we don't necessarily want to put in the hands of a terrorist," said New York state Sen. Nick Spano, a Republican who had proposed tightening legislation soon after the attacks.

    "It's a very difficult balance between the public's right to know and the public's right to security," Spano said. A different security measure ultimately became law, limiting access to information about infrastructure from airports to cellular phone systems. Last year, Spano authored a law that strengthened public access by setting a strict deadline for state agencies to respond to requests for information.

    In Okla. case, 'equal distribution of unhappiness'
    The give and take of a legislature usually forces changes to such bills — like a measure proposed last year in Oklahoma, where freshman state Sen. Charles Wyrick, a Democrat, sought to completely exempt the state's new Department of Homeland Security from the Open Meetings Act and Open Records Act.

    "I don't know why all of a sudden the holy grail of security and safety is now closing records," Mark Thomas, head of the Oklahoma Press Association, said after the bill was introduced. "It seems to me we would be more secure if we knew what was going on around us. ... Apparently there are those in government who want to close all these records and say, 'We'll keep you safe, trust us.'"

    Negotiations brought a compromise. The law that passed allowed the department to keep communications between the agency and the federal government confidential, along with security plans for private businesses.

    "We had to fight that out, and basically it ended up being an equal distribution of unhappiness," Thomas said.

    Still, the numerical data shows which side got more out of negotiations overall: The AP analysis of 1,023 new laws dealing with public access to government information found that more than 60% closed access. Just over a quarter created new avenues of access. The rest had a neutral effect, often through technical changes to existing laws.

    Those laws emerged from just over 3,500 bills. Often, several legislators interested in a topic will each introduce a bill knowing that only one is likely to pass. In some states, the same legislation is introduced in both House and Senate chambers to speed action and build support.

    Across more than four years, 36 states passed more restrictive laws than measures that loosened access; seven states passed more laws that eased barriers to access; seven states passed equal numbers. The analysis did not attempt to quantify the impact of larger, sweeping laws versus smaller modifications.

    In Minnesota, lawmakers introduced 192 bills dealing with records and meetings laws in the last four years, passing 19 of them. Nine restricted access, five loosened it and five were neutral.

    Many of the Minnesota bills had little to do with terrorism, dealing instead with things like government appraisals of private land and access to financial data collected by the state investment board.

    The only new law that dealt directly with terrorism was passed in 2004, when the Legislature permitted closed meetings when public entities were receiving security briefings. But that law also stipulated that all financial decisions related to security be made public at an open meeting.

    Privacy fears also drive new restrictions
    AP's national analysis also did not study legislation prior to the Sept. 11 attacks, though observers say the changes have been obvious.

    "What we see nationwide is states really backing away from their open-access laws," said Fred H. Cate, an Indiana University law professor who studies privacy and technology. Security threats are real — but some lawmakers are just "taking advantage of the public security tide," he said.

    A law in Iowa requires that schools draft emergency response plans, but bars them from the public. In Indiana, legislators agreed to keep disciplinary actions against state employees secret — except when they are suspended, demoted or discharged.

    In North Carolina, new advisory committees set up to examine medication errors in nursing homes keep their meetings and records confidential, though the medication error rates found in separate home inspections that exceed a higher, federal standard can be accessed through the federal government.

    North Carolina, like other places, also took steps to open access, requiring local and state governments to more quickly provide details about government incentive packages to lure business.

    Elsewhere, Oregon opened records on child abuse in cases involving a child who is killed or seriously hurt; South Carolina lawmakers required the governor to open his cabinet meetings; California voters approved an amendment to the state constitution requiring that the state's laws on open meetings and open records be broadly interpreted. After the amendment passed, Gov. Arnold Schwarzenegger made public his appointment calendar and those of two of his top aides.

    Lately, privacy worries are starting to trump security fears.

    "The great trend out there — that sweeps across any record — is privacy," said Charles Davis at the Freedom of Information Center in Missouri. "There's a push by government that every time Joe Citizen's name is mentioned in a government document, it's an inherent threat to Joe Citizen's privacy if that document is released."

    Just this month, Minnesota Gov. Tim Pawlenty announced a new government-wide effort to target identity theft, barring access to driver's licenses, phone records and Social Security numbers. No longer, the governor said, should there be a presumption that government information is public.

    Open-government advocates disagree. The way they see it, if Pawlenty is successful, information that used to be public in Minnesota will soon be unnecessarily locked away.

    By the numbers:

    • Bills proposed: 3,505.
    • New laws passed: 1,023.
    • Laws that restricted public access to government information: 616.
    • Laws that loosened access: 284.
    • Laws that were neutral or mixed: 123.
    • State with the most new laws: California, 122 new laws — 66 restricted access and 56 loosened access.
    • States with the fewest new laws: Both Kentucky and Wisconsin each had only one new law — both restricted access.

    Related

    For Sunshine Week and every week: our FOI material

    Sunshine Week, highlighted by National FOI Day, celebrates open government. See compilation of resources on Freedom of Information Act issues. 02.02.06

    Agencies missing FOIA deadlines, AP finds

    Public waiting longer for documents as federal response time lags.
  • Sunshine Week '06 at a glance
  • 03.13.06


    Polls find concern about official secrecy
    But Americans somewhat conflicted over when information should be kept from public. 03.15.06

    Defense Dept. to fund university study on altering FOIA
    Open-government advocates say project at Texas law school, which will examine ways of rewriting law to prevent terrorists from getting sensitive information, is troubling. 07.08.06

    Report faults states for failure to release child-abuse data
    Child-advocacy groups say confidentiality is being placed above disclosure to a degree that thwarts needed reforms. 04.29.08

    AP CEO discusses Sunshine Week 2006
    Tom Curley in Q&A about press efforts to make government more open, accountable to public. 03.14.06

    Sunshine Week '06 at a glance

    News summary page
    View the latest news stories throughout the First Amendment Center Online.



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