The right to bare arms data

Around the country, as news outlets publish gun permit information, lawmakers are leaping to respond by sealing it from public view.

From the Spring 2009 issue of The News Media & The Law, page 15.

It’s tough to call it a trend, exactly, when lawmakers in various states have long set their sights on sealing concealed-weapon permit data. But their efforts seem to be paying off more than ever: Since the beginning of 2008, at least seven states have considered legislation yanking permit-holder information from public files. Only one such battle looks to have yielded a complete win — for now — for open governance.

Newspapers from Oregon to Virginia, meanwhile, have inserted themselves or been thrust into the center of fiercely polarized debates over privacy, personal safety and the constitution. It was the Medford Mail Tribune’s 2007 request for the Jackson County, Ore., sheriff’s roster of local permit-holders that touched off a statewide rift between law enforcement and transparency advocates. It culminated in a legislative measure generally sealing the permits.

On the other side of the country, Ginger Stanley of the Virginia Press Association says lawmakers moved to seal their state database after the Roanoke Times published it, in its entirety, on the paper’s Web site. The weekly Arkansas Times posted that state’s database earlier this year; media lobbyist Tres Williams said the reaction was swift.

“Unfortunately, the newspaper published that list of Arkansas licenses during the Legislative session,” he said. “We almost immediately saw a bill” sealing the permit data.

In fact, Stanley said most legislative bids to scuttle away some piece of the public record can be traced back, she said, to a newspaper’s use of it, and a lawmaker’s piqued outrage. But that’s no reason for a media outlet to be weak-kneed in its reporting on controversy or to shy from in-depth coverage of public safety — for which permit databases are key.

These days, fewer than 20 states openly provide access to those records.

Even as gun groups have notched wins on the issue in a smattering of statehouses, they’ve also had to scale back their requests and settle for compromise bills that transparency advocates found at least palatable. In West Virginia, a state where the Second Amendment carries great weight, the open government side has twice fought back bids to shield permit information.

Lobbyist Philip Reale, who represented the West Virginia Press Association in its opposition to the measure, said his side found critical support in the sheriff of the state’s biggest county, Kanawha. The sheriff testified before lawmakers that, contrary to the gun-advocates’ arguments, in 20 years of policing he’d never heard of a suspect using the permit information to commit a crime.

“I think it’ll come back” in the next legislative session, Reale said. But for now, “this is a good victory.”

Parsing the fight

At heart, the debate over concealed-weapon permit data pits a personal privacy argument against the broader public interest in monitoring government. Proponents on both sides have pointed to safety interests: In state after state, gun rights advocates have warned that permit-holders might be targeted for home burglaries or even violent attack if their names and addresses are kept public.

But that risk is speculative, transparency advocates reply. In decades of keeping the databases available, sheriffs have struggled to point to actual cases where crimes against permit-holders can be traced back to the public record.

What has happened is that time and again journalists and watchdogs have been able to inform the public when permitting — a process run by a government agency — faltered, at great risk to the community.

“A permit is an exercise of state power and discretion, and is a privilege, not a right,” said Charles Davis, executive director of the National Freedom of Information Coalition. “Thus the granting of a permit and its recipient should be a matter of public record. How else can we scrutinize the permit process?”

Movements pop up in statehouses

In many states, if not most, the roster of permit holders’ names and addresses was public from the very inception of the concealed weapons program. But what gun groups have done, transparency advocates say, is to upend that presumption of openness by framing the issue as a thumb in the eye of Second Amendment rights.

“I think it was a Freedom of Information Act issue and a personal privacy issue,” Williams, who is director of communications for the Arkansas Press Association, said of the fight over the database that unfolded this year. “It was not a gun issue, but that’s what it turned into” — and an emotional one, at that.

“People threatened to kill me, they threatened to harm my family, and they threatened to harm my business,” said Max Brantley, editor of the Arkansas Times. “It’s a bad situation where gun rights trump law.”

Lawmakers in Little Rock were so incensed after the Times posted the database that they first tried to explicitly ban future publication of it. No criminal penalties were spelled out, and the sponsor backed off that provision after Williams pointed out it could be an unconstitutional prior restraint.

Even so, transparency advocates had an uphill battle to fight. The governor signed a bill sealing much of the data this spring. “We felt like it was going to be very difficult, once it sort of turned into the larger gun issue, for us to prevail,” Williams said. The final version of the bill “was about as good as we could do, and better than other states had managed.”

So the database question in Arkansas came up and was resolved months later with a new law.

But in Tennessee, open government advocates have been fighting for years to keep permit data public. This legislative session, lawmakers in Nashville also toyed with the idea of outlawing publication of information from a gun permit file, according to Frank Gibson of the state’s Coalition for Open Government. When the attorney general weighed in with an opinion saying the proposed misdemeanor penalties for publication might run afoul of the constitution, the idea was dropped.

But beyond that, Gibson said in late April, “We don’t have a lot of hope for stopping” the measure, which would bar the release of gun permit data unless it comes up in a court proceeding.

And what a loss: Gibson pointed to local news reports in recent years that have plumbed the database to illuminate public safety issues. For instance, news stories reported that domestic violence perpetrators kept their concealed weapon permits because of a communications failure in the county-court reporting system; and that convicted felons were obtaining and renewing permits during an 18-month period in which the state lost access to the FBI’s criminal database.

Two years ago, Gibson said, The Tennessean newspaper posted the permit database on its Web site and quickly pulled it down, the wave of public outrage over it having been so strong.

But nobody seemed to notice at first in December when the Memphis Commercial Appeal did the same thing. It wasn’t until one particular shooting made the news, and a reader posted a comment on the paper’s Web site asking if the alleged perpetrator had a concealed weapons permit, and a newspaper staffer wrote back pointing the reader to the posted database, that the whole issue flared up again.

Soon after, no fewer than 14 different bills were proposed to seal the gun permit data. “We proposed a csompromise to restrict use of the database but keep individual records open” and allow access to the full roster in certain cases, Gibson said. “Only we had no takers. Neither the Senate sponsor nor the House sponsor would agree to that.”

Often in these fights, for all the rhetoric and debate over the rights and responsibilities of newspapers to publish public records, the legislative outcome has come down, naturally, to politics. In Tennessee, Gibson said the gun advocates pushed the bill through a different committee than the one that had considered it before, hoping to find a friendlier reception this time.

And in West Virginia, having one key legislative ally proved pivotal for transparency advocates: Reale worked closely with the chairwoman of the House judiciary committee to craft a bill bringing reciprocity in recognition of other states’ gun permits, which the gun lobby badly wanted, but barring a provision sealing the database.

It worked this time around, Reale said — the gun groups faced letting the database issue drop in favor of something they wanted more. But he said the public was never quite enlisted to rally around the Second Amendment argument, as happened in other states: “It didn’t take place here,” he said, “but it likely will.”

One lesson learned, Williams said, is that a paper might want to wait until the legislative session ends before wading into the fray by posting an entire permit database rather than merely using it for reporting.

“I think newspapers, if they have the right to publish the list,” he said, “they can do whatever they want. I would just say be prepared to pay the consequences. I know of only two instances where a metro newspaper published a list” — and in both cases the database issue was soon before lawmakers.

Reaching for compromise

To Stanley of the Virginia Press Association, there is a strong public interest in keeping permit information available to journalists and other watchdogs. The issue first came up in Virginia a couple years ago when the Roanoke Times posted the database on the paper’s Web site.

“That created quite a stir,” she recalled, “and although they took it down in less than 24 hours, it still infuriated the citizens in the Roanoke Valley area.”

So a state delegate, Dave Nutter, brought it up with the state Freedom of Information Advisory Council, a statewide advisory coalition, and a task force was put together to study public access to the database. Stanley’s group participated.

Her hope was to at least keep permit information available in local courthouses, if the state police was barred from releasing its complete roster. With the attorney general having released an opinion saying the state police could choose to withhold the roster, she said, it was clear the courthouse compromise was the best likely outcome.

The governor recently signed that very compromise into law: the database is sealed, but regional permits are available in the local courthouses.

Since then, Stanley said she has fielded phone calls from South Carolina and Tennessee, among other places, and offered her success story in blocking an outright ban.

Stanley said the gun permit records represent key information for public safety.

Considering “this whole issue concerning guns and ammunition, and the availability and how easy it is to get guns — especially in our state,” she said, “I think the public needs to be able to see this type of information.”

— Reported by staff.