States scurry to pass antiterrorism measures as legislatures adjourn

From the Spring 2002 issue of The News Media & The Law, page 35.

Some state legislatures are scrambling to create exemptions in the open records laws to prohibit disclosures of critical infrastructure information and security plans as sessions are coming to a close.

Louisiana Gov. Mike Foster signed a broad antiterrorism measure on April 23 that would keep secret information and records relating to terrorism investigations in his state.

Among its provisions are exemptions from disclosure of all records containing security procedures and criminal intelligence information pertaining to terrorist-related activity. The measure also defines terrorism as a criminal act.

Other states, including Michigan, Florida, Idaho and Oklahoma, have passed similar measures.

Michigan Gov. John Engler signed an antiterrorism measure on April 9 that amended the state’s open records laws to exempt from disclosure certain building, public works, and public water supply designs relating to antiterrorism response plans.

The measure, H.B. 5349, would prohibit the disclosure of any records that relate to antiterrorism measures, unless the disclosure “would not impair a public body’s ability to protect the security or safety of persons or property or unless the public interest in disclosure outweighs the public interest in non-disclosure in the particular instance.”

The measure passed both houses with very little dissent. It passed unanimously in the House, and it passed in the Senate by a 368-35 vote.

In Florida, Gov. Jeb Bush signed H.B. 735, which would create an exemption for critical infrastructure information, on April 8 after the measure easily passed both chambers. The measure creates an exemption from public records requirements for building plans, blueprints, schematic drawings, and diagrams of specific facilities & structures owned or operated by an agency.

Idaho Gov. Dirk Kempthorne on March 4 signed a measure that would exempt from disclosure the records of buildings, facilities, infrastructures and systems held by a public agency when the disclosure of such information would jeopardize the safety of persons or the public safety (HB 560). The measure had passed unanimously in both houses.

Other states have proposed similar antiterrorism measures carving out exemptions in the states’ open records laws.

In Connecticut, a measure that would exempt from disclosure architectural drawings of utility plants, security plans and emergency procedures of public service companies or municipal utility companies passed unanimously by the Senate and is now being considered by the House.

In Kentucky, a measure is being considered by the House that would exempt from open records law hospital emergency plans, agency communications plans, airport security plans and security system plans (SB136). The measure passed in the Senate 24-14.

Similar bills were proposed in Maryland, but they were withdrawn in the Senate and tabled in the House. The measures would have authorized a denial of inspection of certain records relating to water and wastewater system plans, emergency response plans, communication and security systems (HB 916; SB 720).

A provision in Oklahoma that would keep secret all records pertaining to security measures and security plans was passed by the Senate, amended by the House and returned to the Senate for approval (SB 1472).

In the state of Washington, an antiterrorism measure, which would restrict from access any critical infrastructure designs or maps in the state, passed in the House with a 96-2 vote (HB 2411).

In Wisconsin, a measure that would close access to security plans for public utility companies filed with the state commission passed in the state Senate, but the measure was halted in the Assembly (SB 394). — MM