On the states’ side

From the Fall 2008 issue of The News Media & The Law, page 18.

It was not the Sept. 11 terrorist attacks that crippled Florida’s economy and sent state lawmakers into multiple special legislative sessions in the fall of 2001, but the grounding of air travel, the anticipated blow to tourism and the revelation that 13 of the 19 hijackers had Florida driver’s licenses indeed hastened a run back to Tallahassee.

Just about as swiftly, though, the scope of the special sessions ballooned from their original fiscal focus. In a process duplicated in state capitals across the country, lawmakers moved to assuage a pervasive concern about government’s adequacy to the task of rooting out terrorism by poking new holes in public records laws, sealing particularly the law enforcement process off from public view. In Florida, even with its stalwart commitment to transparency in government, proposed bills ran the gamut from the sensible to the absurd, according to open-government advocates and news accounts at the time.

One bill would have kept public records under wraps for up to three weeks in a terrorism case. Another would have made certain arrests secret. One lawmaker suggested the entire body of public-records laws be suspended in a declared emergency.

Barbara Petersen, president of the First Amendment Foundation in Tallahassee, distinctly remembers one particularly exasperating legislative proposal: Seal the FAA registration numbers for crop-dusters.

Those very numbers are prominently painted on the fuselages of the low-flying airplanes. “All we had to do was drive around (and look at them),” she said recently. “We didn’t need a public records request.”

To be sure, Petersen said, there were more legitimate bills. Seven years later, a scant few of them have been passed and remain on the books. But in Florida, as in many states, despite the initial post-9/11 trend of lawmakers hunkering down and working to seal parts of government from public view, she and others said the states have lightened up. Even in the face of the continuing example of secrecy set by the federal government, transparency advocates said, local lawmakers have generally moved toward openness.

It is important to note that the federal government deals directly with foreign policy and national security; the states, not tasked with such matters, can logically afford to keep more of their business open to the public. But President Bush’s impact on the states was marked almost immediately by Sept. 11, and the ensuing pressure — externally and internally — on local governments to sacrifice transparency in the name of security. Even so, as the years have passed, and the federal government has found more and better ways to shutter itself off from the public, the states have largely regained their footing in openness.

“States for the most part were more rational” in their responses to Sept. 11, according to National Freedom of Information Coalition director and University of Missouri professor Charles Davis. “Overall, I thought it was a great testament to the legislative body at the state level.”

To the mats in the Sunshine State

Florida Gov. Jeb Bush called two back-to-back legislative sessions that tumultuous autumn — one in October and the other toward the end of November.

That transparency could take a hit in the fearful post-9/11 political environment was readily apparent. The Society of Professional Journalists warned in an Oct. 25, 2001 alert to reporters, “Lawmakers are poised to do damage to that state’s landmark freedom of information laws.” The St. Petersburg Times pleaded for cooler heads to prevail: “Florida has many security problems, but open records are not among them.”

Transparency helps the public make crucial assessments of the state’s preparedness to avert or cope with a terrorist attack, the newspaper noted.

Petersen documented the legislative moves in her report, “Florida’s Response to 9/11: The Impact on Open Government.” Within days of the attacks, she wrote, emergency officials had proposed new restrictions on state public records; the Department of Highway Safety and Motor Vehicles had sealed driving records wholesale. One focus of debate at the October session was over an existing exemption to the public records law banning the release of security system plans — for public or private buildings — and whether it was broad enough. Nothing passed into law then, but when lawmakers returned weeks later, Petersen wrote, several bills were brought up for votes and narrowed versions of them did eventually become law.

One exempted from public disclosure the terrorism-response plans of hospitals.

Another made secret where the state stored its emergency supply of pharmaceutical drugs, and in what quantities.

Still, a host of other bills — including proposals to seal the work cell phone and pager numbers of police officers, along with the crop-duster amendment and the automatically delayed release of terrorism case records — eventually died.

Seven years later, Petersen said, for all the politically heady post-9/11 atmosphere, the body of the state’s public records law really doesn’t look all that much different than it did on Sept. 10. While one battle, over a secret court order sealing the hijackers’ state driving records, remains unresolved in court, it seems the arguments of open-government advocates, along with the ultimately steady commitment to transparency on the state’s part, largely prevailed.

“At one point I was told I would personally be responsible for the next terrorist attack on the state of Florida. Passion, stress — everything was just flying high, and people were truly afraid,” Petersen said. But for the pillar of the open records law to lean on, “it might have been a different story.”

And around the country

For the prominence of that law and the state’s unique link to the hijackers, Florida provides a stark case story. But lawmakers nationwide faced similar dilemmas and debates in those early months of heightened security consciousness.

In virtually every state, bills were proposed to retract public information or make it more difficult to obtain. Looking at the state of these laws now, the results were mixed.

For instance, in 2002, California enacted a law limiting access to meetings where threats were discussed and preventing public officials from revealing information discussed in closed meetings. The governor of Minnesota signed a similar law in 2004. State lawmakers in Georgia and Washington, months after the terrorist attacks, tried to exempt from disclosure any vulnerability assessments of public buildings; those bills failed. But comparable laws in Vermont and Virginia passed.

And in New York, where terrorism concerns ran at least as high as anywhere else in the country, Gov. George Pataki and the Legislature proposed cutbacks in access to information under the state’s Freedom of Information Law. Mirroring proposals that were floating around in Florida, one bill in New York would have shut off access to any documents obtained or compiled in a terrorism investigation.

That bill, along with another yanking information about critical infrastructure including gas lines, never passed.

“Relatively soon after 9/11, there was an effort to include an amendment to our FOIL which, in my opinion, would have emasculated” it, Robert Freeman, the director of the New York Committee on Open Government, said. “Working in conjunction with the New York Newspaper Publishers Association, we were able to stop the bill in its tracks. And from that moment on I believe it was clear to the then Pataki administration that the news media was on alert and that any efforts to emasculate the law would be rebuffed.”

Indeed, in many cases, as time went by, ideas sputtered that had at first seemed reasonable, even crucial, to lawmakers. Many proposed exemptions were narrowed and commitments to transparency reaffirmed: Californians, in a 2004 referendum vote, amended the state constitution to guarantee public access to government meetings and records.

Or take Texas, which passed an extensive homeland security package after Sept. 11. Because the Legislature meets every other year, it was not in session in 2002. By 2003, when lawmakers next convened, Paul Watler, a media lawyer with the law firm Jackson Walker, said there were no far-reaching proposals to close off information because much of the panic has subsided.

The balancing act

Of course, any given state at any given time will be more transparent in one area but yet sealed off in another, and how its laws develop over time are rarely uniform in one direction. But it seems instructive that as the federal government has in many ways upheld, even solidified, the steps it took to shutter itself after Sept. 11, the states have, generally, seen fit to remain at the drawing board until a balance could be found between security and openness.

“It’s pretty interesting because the state and local governments have done a better job” in disclosing information the past seven years, Davis said. They made “more progress in terms of affirmative disclosure — governments taking information and sharing it as broadly as possible.”