Media groups fend off terror laws in some states

From the Spring 2003 issue of The News Media & The Law, page 16.

By Gil Shochat

Dozens of state legislatures have considered, and many have passed, exemptions to their freedom of information laws in response to terrorism concerns. The enacted bans on disclosure have increased government secrecy and made it harder for both the media and the public to access information.

Public advocates have defeated this legislation in several states by effectively using the media to get their message out and lobbying capably in state legislatures.

Notable battles against legislation were waged by the New York Newspaper Publishers Association and by the Montana Newspaper Association.

When Montana attorney John Shontz was in law school, he probably didn’t think that a Soviet law book he bought for a legal course would come in useful later at his job as a lobbyist for the Montana Newspaper Association.

Over the winter, Shontz was lobbying to defeat a proposed law that would have allowed the state government to keep confidential any information that could be used to target Montana’s public works.

Throughout much of his lobbying efforts, Shontz walked around the capitol with his Soviet law book displayed prominently.

“Legislators came up to me asking me about the book and I talked to them about government secrecy. It is not the American way,” Shontz said. “The 1977 Soviet constitution had a great number of individual rights and protections written into it, but these were trumped by the government’s right to secrecy and the [Communist] Party’s right to control the government. With the more conservative legislators, these discussions of Soviet constitutional law were a wake-up call.”

The proposed legislation in Montana was dropped. The bill proposed withholding information if disclosure might threaten public safety, the safety of an elected official, or privacy rights. (Senate Bill 142)

Sen. Walt McNutt (R-Sidney) said he withdrew the bill because he “decided it wasn’t such a good idea to shield information from the public.”

Shontz and the state newspaper association’s lobbying efforts were largely responsible for defeating the bill, according to Montana journalist Ian Marquand, who is the Freedom of Information chairman for the Society of Professional Journalists.

Getting the message out to the editorial boards of state newspapers and educating local newspapers on the proposed legislation was an important factor in defeating the proposed legislation in both Montana and New York.

Diane Kennedy, the head of the New York Newspaper Publishers Association, argued that freedom of information laws already on the books were sufficient to keep information from terrorists.

According to Kennedy, educating newspaper editors, who then published editorials endorsing the Newspapers Publishers Association’s position, “made all the difference” in defeating the New York bill that would have exempted from disclosure information relating to critical infrastructure, such as electric lines, natural gas, steam or telecommunications systems.

“Under the cloak of high-sounding rhetoric about the need to protect the state from terrorism, the bill’s real aim is to protect state government from public oversight by further limiting access to state records . . . it’s a bad bill, and if anything like it ever reaches Gov. Pataki’s desk he must veto it,” wrote the Binghamton Press & Sun-Bulletin in an editorial. Similar editorials appeared across the state in Spring 2002.

While Kennedy says she believes that New York’s Governor Pataki is a friend of openness in government, “Pataki was less than pleased that [New York’s] newspapers pounded on him on this issue,” she said.

In Montana, the media attention on the bill “absolutely helped” sink it, Shontz said. Editorials told readers how to reach their senators to give them their opinions of the bill.

The print media were very much alive on this issue and were engaged in a discussion on the bill, Shontz said.

As in Montana and New York, open records advocates in Washington state also lobbied heavily to limit a secrecy bill proposed in early 2002. This, along with sustained media attention, did not defeat, but helped narrow, the security exemptions.

“Originally, the Attorney General proposed very broad legislation,” said Diana Kramer, president of the Washington Newspaper Publishers Association. “People had to prove that the information they sought couldn’t be used by terrorists. How do you prove a negative?”

The legislation that eventually passed exempted a fairly limited amount of information. Originally the state wanted to make secret “how many doses of vaccine are there in the state and are there enough for my family. This information was kept open. [However] where these vaccines are stored — the public doesn’t need to know that,” is how Kramer described the kinds of limited wording that her organization lobbied hard to get.

She said it took “many meetings” over four “very intense” months for her group to make state officials aware of, and responsive to, its concerns.

They argued that keeping secret all this information “wouldn’t make us more secure. There is no evidence that FOI information was used by terrorists,”she added.

She also acknowledged the “tremendous strength” shown by reporters and editors across the state in both covering and supporting her group on the openness issue.