From the Summer 2002 issue of The News Media & The Law, page 53.
Each year, the Reporters Committee for Freedom of the Press monitors state legislation that affects journalists’ ability to gather and report news. Through interviews with officials at state press associations, media lawyers and legislators, a list is compiled of new laws — and bills that were considered — that could affect the rights of journalists to gather information from a variety of sources.
This past year, two of the most restrictive states in the country for Freedom of Information legislation — Pennsylvania and New Jersey — made significant improvements to their laws. But as soon as the New Jersey law went into effect, the governor ordered many records held secret.
Pennsylvania eased the restrictions from its 1957 Right to Know Act when Gov. Mark Schweiker in late June signed a new law that greatly improves access to public records. Under the original Right to Know Law, Pennsylvania agencies could refuse or ignore records requests without the risk of penalties.
Now, the bill imposes 10-day deadlines for responding to requests, assesses penalties for lateness and requires written explanations when requests are denied. However, some critics say the law does not go far enough because the definition of public records was not expanded.
New Jersey’s new Right to Know Act went into effect in July, substantially improving the Garden State’s former right-to-know law, deemed by many FOI advocates and media lawyers as one of the worst in the country. The previous law provided for access to government records only if a requester could prove that they were “required by law to be made, maintained or kept on file” by a public agency. Under the new law’s concise definition of a public record, a requester will have access to all records unless a government agency can show that the requested information falls into one of the exemptions created in the law.
In mid-July, Gov. James E. McGreevy signed an executive order exempting hundreds of public records. McGreevy’s order made exemptions proposed by state agencies immediately effective and directed the state attorney general to create regulations that determine what records will be classified as confidential due to security concerns.
He also created a blanket rule that prohibits state agencies from disclosing an individual’s home address, home telephone number, and Social Security number when releasing government documents.
Many states have introduced or enacted antiterrorism legislation after September 11 that clearly jeopardizes the media’s and public’s ability to access government records.
Some states continued to address autopsy records, banning disclosure to protect survivors from disclosures about the deceased, a reaction to pleas by the widow of race-car driver Dale Earnhardt in court and before the Florida Legislature to keep secret Earnhardt’s autopsy photos.
This state legislative update was compiled by the Reporters Committee’s summer interns: Legal interns M. Franco Salvoza and Jennifer L. Williston and journalism intern Christine Lagorio.
The four-month 2002 legislative session yielded rare talk and little legislation affecting the media. Open meetings and records regulations were briefly discussed in committee, but no legislation resulted from talks.
Because the session fell on an election year and was mostly consumed by budget negotiations, the press was unaffected by new laws said Felicia Mason, the state press association’s executive director.
“While the press association did a lot of work on bills, none were passed or even got out of committee,” Mason said, noting that legislators were busy with financial measures until the session’s end in mid April.
Gov. Tony Knowles signed a bill on June 6 creating an exemption in public records for information relating to security, safety plans or evaluation of security systems and infrastructure in the state. (S.B. 238)
However, the bill covered only disclosures that risk circumvention of the law and information that would interfere with the implementation of the security plan or could reasonably be expected to endanger an individual’s life or the public welfare.
Knowles also signed several bills requiring government agencies to publish progress reports and maintain accountability.
On June 26, he signed a bill requiring that the state’s Department of Education furnish an annual report titled “Alaska’s Public Schools: A Report Card to the Public.” (H.B. 352) The annual report is designed to assess student performance and monitor progress of any school improvement plans.
The state also enacted a law requiring disclosure of certain public records by the state judiciary. (S.B. 172) By March 15 of every year, the courts need to file an administrative report showing the time periods between “initial receipt and final disposition of cases,” travel expenses and per diems.
Arizona’s right-to-know law improved dramatically when the governor permitted a bill requiring public agencies to respond promptly to requests for public records to become law without her signature. (S.B. 1415) Sen. Dean Martin (R-Phoenix), who sponsored the bill, and the Arizona Newspaper Association fought to ensure that the word “promptly” was added to the bill.
Furthermore, the bill permits those requests to be sent to public agencies by mail. John Fearing, executive director of the ANA, called passage of the bill “a major improvement.”
For next year’s legislative session, Fearing says that the ANA will pursue a sponsor for legislation that will allow a remedy other than filing suit when public records are requested and denied.
The Arkansas Legislature’s last regular session ended April 2001 and a special session in 2002 did not address media issues. In 2001, the Legislature amended and modernized its Freedom of Information Act. (Act 1259; Act 1336 and Act 1653) While Arkansas continues to have a strong FOI law, the Department of Energy Management is working on plans to change the law to restrict access to documents, such as emergency contingency plans that it believes could be used to threaten public safety if accessed by the wrong people.
The media’s major focus in California is on the possible passage of a state constitutional amendment that would guarantee citizens a fundamental right of access to government information and meetings.
The amendment would allow a few exemptions and provides for withholding information about an individual’s personal life unless he is seeking or holding a position of public trust. The amendment would also require government officials to state a clear and understandable reason why requested information falls into one of the amendment’s exceptions and should not be made available to the public.
If enacted, the amendment, which is similar to constitutional provisions in Florida, Montana, Louisiana and New Hampshire that guarantee public access to the government, would greatly reduce the burden on reporters and the public to prove that requested information should be released.
The measure was approved unanimously by the Senate on June 28 by a 32-0 vote, but it did not get the required approval of two-thirds of members of the Assembly by the deadline for placement on the state ballot for the Nov. 5 general election. If the amendment is approved before the end of legislative session on Aug. 31, it will appear before voters on the next statewide ballot, which is scheduled for March 2004. (S.C.A. 7)
Legislators have also proposed legislation limiting access to meetings where security issues are discussed, (A.B. 2645), and making it a crime for public officials to disclose information discussed in a closed meeting. (A.B. 1945) If passed, A.B. 2645 would allow an agency to meet with law enforcement or a “private security consultant” to discuss matters that pose “a threat to the safety and delivery of essential public services, including drinking water, wastewater treatment, and electric service.”
The latter bill was amended to allow a legislative body to seek injunctive relief or refer the matter to a grand jury when any official discloses information discussed in a closed meeting.
The bill was passed by the Assembly after it was amended and was in Senate committee in mid-July.
In early June, Gov. Bill Owens vetoed a bill that would have limited public access to divorce records and conflicted with the state’s Open Records Act. The bill would have sealed certain records regarding cases of divorce, child custody, invalidation of marriage and parental responsibility. (S.B. 49)
“If these records are unavailable to the public, we will have no effective means to determine how the judicial branch in general and individual judges in particular handle dissolution of marriage, child custody and child support matters,” Owens said.
Colorado enacted an antiterrorism bill allowing records of security arrangements to be confidential. Formerly, they could be discussed at open meetings. (H.B. 1315)
Owens also signed into law a bill that requires public agencies to record both open meetings and executive sessions. (H.B. 1342) The bill was a response to an administrative decision by a few public agencies to discontinue to record open sessions.
Under the bill, the tape has to be held for 90 days, and if there is a reason to believe something was covered in session that wasn’t supposed to be covered, a judge could do an in camera review of the documents and make it public.
The Colorado Press Association lost a four-year battle against a bill that would have made it more difficult to access a list of concealed weapons permits holders. (H.B. 1147)
The bill, signed by Owens and sponsored by Rep. Mark Cloer (R-El Paso County), would allow law enforcement officials to reveal their identities if they had notified the registered individuals by name or in person. Last year, Owens vetoed a concealed gun permit bill.
The press association was also unsuccessful in keeping the Legislature from enacting a law that allows university regents and college officials to meet in executive sessions to consider proposals for buildings, candidates for honorary degrees and other honorary awards. (S.B. 144) The press association said these kinds of decisions should not be made in closed sessions.
Greg Romberg, lobbyist for the Colorado Press Association, said the bill had been somewhat misconstrued as a bill putting privacy interests over those of openness. (H.B. 1146) However, sponsors of the bill, including Sens. Gordon and Chlouber, designed it to ultimately be a disclosure statute.
The bill was a “good way for the Legislature to reaffirm its support for open records,” added Romberg.
The Colorado Press Association plans next year to promote bills requiring information to be available on the Internet while still being available in other ways.
The Connecticut General Assembly strengthened the state’s Freedom of Information law this term, reversing past trends, by giving the public better access to autopsy and teachers’ records.
“If it’s a tug-of-war, I think we pulled it a little bit on our side this year,” said Mitchell Pearlman, executive director of the Connecticut Freedom of Information Commission.
New laws make autopsy records of people who die while in state custody public. They include prison inmates, the mentally retarded and children under the supervision of the Department of Children and Families or the court.
Other enacted legislation makes available records of teachers accused of misconduct. The commission’s push to extend public access to school records by making all written teacher evaluations public was unsuccessful, however.
Teachers argued that making those public could unfairly open them to criticism from parents of failing children. (H.B. 5680)
In June, lawmakers passed a bill requiring hospitals and outpatient surgical centers to make public reports of accidents that kill or seriously injure patients within 24 hours. Beginning in October, reports of cases of suspected physical or sexual abuse of patients will be available to the public after being held for six months for health department investigation. (H.B. 5715)
The lawmakers also enacted new security legislation governing the flow of information about the state’s infrastructure. (H.B. 5627)
Initially introduced to exempt from disclosure certain security records of a municipality, the bill was amended to set guidelines to provide for greater openness to specific records, bucking the national trend of tighter controls on information since September 11.
But another bill signed by the governor deems the state’s water security records automatically exempt from the state’s FOI law. (H.B. 5153)
Gov. Ruth Ann Minner signed a bill in mid-May that closed off access to autopsy photos. (S.B. 332) The bill exempts from public disclosure any photographs, video recordings or audio recordings of an autopsy examination in the possession of the Office of the Chief Medical Examiner. The denial of a Florida newspaper’s request for autopsy photos of Dale Earnhardt created an impetus for the approval of the bill in Delaware.
DISTRICT OF COLUMBIA
The District Council of Washington, D.C., has met infrequently this past year and did not address any legislation regarding right-to-know laws or Freedom of Information, according to the Maryland/D.C./Delaware Press Association.
However, Mayor Anthony Williams did sign on June 4 the Omnibus Anti-Terrorism Act of 2002, which expanded the city’s power to respond to terrorist attacks by enabling police to get search warrants over the telephone, raising penalties for bomb threats and giving emergency workers the ability in certain circumstances to administer controlled substances.
The Florida Legislature enacted 23 bills that affect the media and the public’s right of access to records. Of those, 17 created new exemptions or redefined or reenacted existing exemptions to Florida’s expansive Sunshine Laws.
Many of the bills were enacted in response to the events of September 11. Some legislators pushed measures to protect the public safety and some used the attacks to justify new restrictions on access to documents that have typically been available to the public.
For example, one new law closes state and local government meetings when discussion of security system plans occurs and exempts any security system plans such as building plans, blueprints and diagrams depicting the internal layout and structural elements of a building, arena, stadium or water treatment facility from the Public Records Law.
The bill allows the public to seek a court order granting access to the information upon a showing of good cause. (H.B. 735)
Two acts created exemptions for personal information including Social Security numbers, (H.B. 1673), and bank account and credit card numbers. (HB 1675)
An exemption was enacted for specific business information received under tax refund programs for defense contractors, such as the amount of sales, income, excise or property tax paid during the past five years, wage information and an employee’s personal identifying information. Under the law the information is exempt for the duration of the tax refund agreement or 10 years, whichever is earlier. (H.B. 777)
The Legislature unanimously revised requirements for reporting campaign contributions. Communication media was redefined to include the Internet communication that had previously not been accounted for under the law.
The law requires anyone who sponsors or funds election advertisements in communication media to provide regular reports of all contributions and expenses. (S.B. 1842)
The Legislature enacted a bill establishing a study commission to evaluate, recommend changes and develop policy guidelines for public access to court records. The new law prohibits county recorders from placing military discharge records, death certificates, and any family law, probate, or guardianship files, records and papers on the Internet. If a record is already available on the Internet, it is to be removed at the request of the subject of the record. (H.B. 1679)
Under S.B. 140, approved by the governor in May, anyone who knowingly uses information obtained from public records to facilitate the commission of a crime will be charged with a first-degree misdemeanor or third-degree felony in addition to the underlying offense.
Legislators also proposed an amendment to the state constitution that, if approved by voters in November, will require a two-thirds vote in each chamber before legislators can pass an exemption to the public’s constitutional right of access. (S.J.R. 1284)
A majority of the bills proposed by the Georgia General Assembly have attempted to restrict public access to information.
The Senate passed a homeland security bill in response to September 11 concerns that would require state agencies to develop security plans to address the threat of terrorism and would restrict access to security plans and vulnerability assessments. It has been favorably reported by the House Committee on State Planning and Community Affairs. It is not clear that the restrictive provisions in this bill are necessary as the Georgia Code already requires records that “would endanger life or safety” to be kept confidential. (S.B. 365)
An autopsy photos bill, which has already passed the Senate, prevents public access to autopsy photos without approval of the deceased’s next of kin. (S.B. 355) The bill allows photo use by law enforcement or for medical purposes and stipulates that the court has the ultimate power to provide access to the photos by balancing privacy interests with the public interest.
Police officials pushed for a bill, which passed the House, that would limit access to crime scene photos. The bill would limit access and inquiries as new cases arise by requiring a written release from the deceased’s family to disclose the photos. (H.B. 631)
A bill signed into law May 1 restricts access to the state auditor’s records, which have been available to the public. Access now will be granted only when the auditor determines there is no “material risk” in releasing the information. (H.B. 1285)
A promising bill in the House would increase access to income tax information, (H.B. 1328), allowing citizens to find out who qualifies for special tax breaks. In previous years, information about five corporations that received $98 million in tax breaks was kept secret.
The Hawaii State Legislature considered a handful of bills regarding access issues, but none of these have been signed into law yet by Gov. Benjamin J. Cayetano, the state’s Office of Information Practices reported.
One bill required the Department of Health to disclose to adult residential care home operators the prior criminal history of certain prospective residents under certain circumstances. (H.B. 1749)
The Legislature approved several bills favoring privacy. One provides that juror qualification forms should not be disclosed except to litigants in redacted form and in accordance with other laws. (H.B. 2304) Another bill allows a cave owner to require the Department of Land and Natural Resources to keep information about cave locations and resource information confidential. (S.B. 2898)
In addition, a bill establishing a state birth defects program and registry includes protections for privacy. (S.B. 2763) Criminal penalties were created for those who steal the identity of another or obtain identity documents under false pretenses. (H.B. 2438)
The Office of Information Practices testified against a bill giving the state’s insurance commissioner discretion to decide whether to publicly release information filed by a captive insurance company that was not already a government record. (S.B. 3040) The office also requested that a bill giving the insurance commissioner power to regulate health insurance rates have a provision requiring disclosure, but the request was not adopted. (H.B. 1761)
Cayetano vetoed a bill clarifying the confidential nature of auditor records in the education area. (H.B. 2231)
The Idaho Legislature was immersed in more than 30 terrorism- and security-related bills that Attorney General Al Lance proposed in the wake of September 11 as a massive security package. The various proposals ranged from making officials’ travel plans secret to exempting floor plans of public buildings from the state Open Records Act. (H.B. 547)
Quick action by the state press club and state labor unions thwarted most of the security legislation, to the point where only one significant bill amending the Open Records Law passed. (H.B. 547; H.B. 560)
“There was talk of many, many, many exemptions to open records, but the immediate outcry really stopped them,” said Betsy Russell, president of the state’s press club.
The press club worked with officials to design the compromise bill, which created new regulations within the Open Records Law for floor plans and building evacuation routes, rather than exempting them from the public safety balancing test altogether. Legislators and openness advocates alike worked against the restrictive legislation package.
“In the interest of protecting freedoms we’re going to take away freedoms,” state Rep. George Eskridge (R-Dover) told the Associated Press. “I can see a real opportunity for abuse.”
Many of the proposals were criminal law changes, but the attorney general backed away from most of his proposals and allowed them to be tabled by the legislature upon harsh criticism.
A House bill sought to remove from the open meetings law the requirement that minutes of a closed meeting be written and instead require verbatim minutes of closed session meetings to be tape recorded or documented.
But a lengthy disagreement with the Senate resulted in an overhauled bill, requiring more closed-meeting regulations. However, Gov. George Ryan did not sign the measure. (H.B. 3098) Supporters plan to reintroduce the legislation in the 2003 session.
“The Illinois Press Association intends to see it through to passage this spring,” said Beth Bennett, government affairs manager for the Illinois Press Association.
Media access to vehicle-record information was sustained by adding phrasing to an enacted bill saying the secretary of state “shall not disclose or otherwise make available to any person or entity . . . unless the information is disclosed . . . for the purpose of newsgathering.” (S.B. 610)
A House bill, drafted by the Illinois Press Association, updated the state’s definition of the “news media” to include print and electronic format newspapers, periodicals, news services and television networks. State-by-state definitions of media terms like “journalist” are used to determine who qualifies for fee waivers for records requests. (H.B. 1209)
The major issue regarding the state’s access law in the 2002 session concerned the veto of a bill that would have exempted the Legislature entirely from the act creating access to public records. (H.B. 1038) Gov. Frank O’Bannon vetoed the bill, which had been passed by large majorities during the previous legislative session, and the Legislature threatened to override the veto.
“Thankfully, sentiments cooled,” said David Stamps, executive director of the Hoosier State Press Association. “This was by far the Mount Everest of our bills.”
Stamps also reported that the press was “fortunate” that no antiterrorism bills affecting access to public records had even been introduced. In the next session, he anticipates that a bill determining whether constituent e-mail and correspondence will be considered a public record will be examined.
Several exemptions to Iowa’s open records law were passed or proposed.
On March 29, Gov. Tom Vilsack signed a bill creating a public records exemption for any information concerning school security procedures or emergency preparedness that could be reasonably expected to jeopardize student, staff or visitor safety if disclosed. (H.F. 2151)
An exemption enacted on April 5 allows airports, municipalities, municipal utilities or rural water districts to withhold records if their disclosure could be expected to jeopardize public safety. It also closes any public meetings to discuss these records. (S.F. 2277)
The two laws have five-year sunset provisions added as amendments.
Another new law makes medical examiner records confidential, releasable only to law enforcement agencies and the deceased’s next of kin. (S.F. 2453) The Iowa Newspaper Association sought to clarify that specific information surrounding a crime or incident, related to a death, could not be made confidential, but that language was not adopted. Instead, medical examiners will release the cause and manner of death “unless disclosure would jeopardize an investigation or pose a clear and present danger to public safety,” and requesters should contact law enforcement officials to obtain any additional information.
A bill that would have kept the identity of people making telephone calls to emergency 911 services confidential died in committee. (H.F. 2171)
Following the trend of other states, Kansas lawmakers enacted a bill that exempts all records dealing with security measures for utilities and communications operations from the state’s Open Records Act. (S. 112)
A bill to create a new shield law to establish a reporter’s privilege not to reveal any confidential sources obtained in newsgathering, died in committee. (H. 2798)
A bill that would have created greater availability of criminal records died in committee. (H. 2742)
Although Kentucky’s short 2002 legislative session was flooded with legislation that sought to seal a variety of court records and decrease public access to information in light of homeland security, the state’s press association successfully put up a dam blocking the most harmful bills.
Executive Director David Thompson said a proposed homeland security bill with several privacy clauses was defeated, as were more than five bills that would have closed access to documents in the judicial system.
Of financial concern to newspapers was legislation attempting to exempt public agencies from placing public notices in newspapers, which would have limited weekly papers’ revenue to the point where small newspapers could have been shut down.
“We got that defeated but are expecting to see more legislation on trying to reduce the number of public notices agencies are required to post, which makes the information not as readily available to the public,” Thompson said.
Gov. M.J. Foster in July signed into law sweeping antiterrorism legislation that was passed by the Legislature in a special session in April.
While the bill defines and sets penalties for the crime of terrorism and aiding others in terrorism, it also exempts from disclosure under the state’s public records law information collected in terrorism investigations and vulnerability assessments of facilities.
This broad provision is likely to hinder the public’s access to information in criminal investigations and it greatly expands police power.
Legislators opposed to the bill attempted unsuccessfully to pass a sunset provision. (Act 128)
The Maine Legislature amended its Freedom of Access Law to protect security plans. When the bill was initially proposed, it was extremely restrictive. Following revisions sparked by criticism from the press, the enacted version of the bill added narrower provisions, limiting access to security and risk assessment plans. (P.L. 675)
The media were concerned with a bill to create a new legislative office to review and evaluate state government programs because of an ambiguous provision concerning the public’s access to reports generated by the office. That provision was clarified to ensure that all work papers used when investigating a state agency would be available to the public at the end of an investigation, even if a report was not issued. (P.L. 702)
The Legislature repealed a 10-day preelection blackout period on complaints concerning campaign finance irregularities. (P.L. 535)
Another law amended the Maine Technology Institute’s statute to clarify that the agency is subject to Freedom of Access Law, despite its efforts to be exempt. (P.L. 562)
The Maryland/D.C./Delaware Press Association fought the state administration’s efforts to close records under an antiterrorism bill sponsored by a number of state senators, but Gov. Parris Glendening signed the bill, which authorizes a custodian to deny specific public records under specific circumstances. The state press association was successful in getting the bill narrowed from a more general closing of records. (S.B. 240)
Glendening also signed into law a bill improving compliance requirements in the state’s Public Information Act. (H.B. 1024) It requires a custodian of public records to consider whether to designate specified public records as immediately available upon request and to maintain a list of those public records.
It waives the requirement for persons and governmental agencies to submit a written application to review specified public records and sets out requirements for dealing with requesters.
However, Glendening also signed a bill authorizing the Maryland Port Association to deny inspection of part of a public record that contains commercial contracts and proprietary information. (S.B. 84)
A public records law dating back to 1897 was used to keep secret the documents used in preparation of the 2002 state budget.
Although the state’s open records law states that all documents maintained by state, county and local governments must be open to the public, it has been interpreted by legislators — a reading confirmed by the House counsel — as not applying to the legislature.
Thus, the state’s $22.8 billion budget passed nearly five months behind schedule, with records of spending negotiations never released.
Several pending bills could prove harmful to press access to government records. One bill provides confidentiality for public bodies negotiating contracts, even in meetings formerly considered open, under the theory that public knowledge of an agency’s strategy could weaken it. (H.1504)
Another would seal off information about applicants from government positions “unless such applicant has been selected for a public interview by the governmental body.” (H. 1669)
William Plante, executive director of the Massachusetts Newspaper Publisher’s Association, noted that under this legislation “the public would not only be denied the identities and qualifications of other candidates, but will be incapable of assessing the merits of other applicants.”
Another new bill is causing media concern. It would overhaul Department of Public Health regulations regarding public records and other matters. It seeks to close birth and death certificates, an action media groups and genealogists have fought. (H. 5158)
Two bills that prohibit the use of public records to further crimes, (H.B. 5143), and enact sentencing guidelines for these actions have passed out of committee and await action in the Michigan House. (H.B. 5144)
The Senate passed a measure that exempted social security numbers from the Freedom of Information Act and a similar bill is awaiting action in the House Civil Law Committee. (S.B. 81) A measure that exempts specific police internal affairs documents passed in the House and awaits action in the Senate Judiciary Committee. (H.B. 5314)
A bill that makes search warrant affidavits and tabulation information public 56 days after they have been issued unless sealed by a judge awaits the governor’s signature. (S.B. 1358)
In an attempt to pass a bill to finance a new baseball stadium for the Minnesota Twins, the House proposed an amendment to generate revenue by imposing a circulation tax on newspapers.
The first proposals to finance the stadium included a media rental fee for use of the stadium’s press facilities.
Once that proposal was rejected, the House Tax Committee included the circulation tax in a financing proposal after being criticized in a daily metro paper for not supporting stadium legislation. Emphasizing the millions of dollars in free publicity generated by the media’s coverage of sports, media lobbyists successfully eliminated the provision and the bill was signed late in May without the circulation tax.
The Minnesota Press Association endorsed legislation that would treat drivers license and motor vehicle registration data similarly by allowing continued access to databases containing the information if access was “related to the operation of a motor vehicle or public safety.” (S.F. 2448; H.F. 2649)
This legislation will be helpful to news organizations as access to the databases are crucial to reporting.
Mark Anfinson, attorney for the Minnesota Press Association, said the association was successful in working with the Legislature to make changes to antiterrorism legislation.
The antiterrorism legislation that passed did not contain any changes to the open meetings law and had very limited data privacy changes.
Freedom of Information legislation has been at the forefront of lawmakers’ agendas in Mississippi this session, as two bills to strengthen Mississippi’s Open Meetings law were debated at length in the state Legislature.
One House and one Senate bill would allow judges to set up to a $100 penalty and charge attorneys’ fees against officials who “willingly and knowingly” do not comply with the open meetings law. (S.B. 2965; H.B. 635)
A bill signed by Gov. Bob Holden on July 1 allows the closure of meetings and records regarding four categories of specific terrorism readiness issues, which, in effect, create four new exemptions to the state’s existing sunshine law. (S.B. 712)
Those four exemptions include: security issues of public utilities; records identifying the security systems of computers; access to computer records; and information such as credit card numbers used to protect the security of electronic transactions between a public body and a person or business doing business with a public body.
From a practical standpoint, the bill ensures that responses to requests regarding this information must simply follow existing procedures in the state’s Sunshine Law.
When seeking to close information in response to a request, the government agency has to affirmatively state in writing that the disclosure of the information would impair security, and the public interest in keeping the information from being released outweighs the interest in disclosure.
Careful drafting of the bill, however, ensures that important financial information relating to government spending of public funds remains open to the public.
Bills closing hospital records and records for public utilities, an annual fight, were unsuccessful this year as well, said Doug Crews, executive director of the Missouri Press Association.
Meeting only in odd-numbered years, the Montana Legislature has been adjourned for months, but the break may be sandwiched by open records legislation rising from the boiling issue of whether e-mails of public officials are public records.
Lee Newspapers and the Associated Press have requested and defended their rights to e-mail messages from the governor and select staff since a law enacted in 2001 made the correspondence public. Representatives from the state Freedom of Information Hotline say Republican legislators may seek to restructure the law in the 2003 session. (H.B. 112)
In April, Gov. Mike Johanns signed a bill that made it illegal to obtain personal identification documents without the individual’s consent or with the intent of deceiving or harming the individual. It exempted from Nebraska’s open records law records that include personal information like Social Security numbers, credit card and other financial account numbers and computer passwords. (L.B. 276)
The governor also signed a bill that would require the state Department of Health and Human Services to disclose to the public, upon request, a summary of its findings and information in cases involving child fatalities or near fatalities.
The information about specific child fatalities would be released on a discretionary basis only after a suspect is convicted or acquitted once the department consults with the designated county attorney to determine if the request should be granted. (L.B. 642)
The Nevada Legislature only meets in biennially on odd years, so it was not in session in 2002.
The state’s legislature, the New Hampshire General Court, meets only January through May and was “mercifully inactive” on Freedom of Information and open records issues, according to Dave Solomon, president of the New Hampshire Press Association.
Since restrictive amendments to the Drivers Privacy Act were enacted in 2000, media have been cautious in dealing with access-related legislation. This session, the state apparently faced less privacy and security legislation than other states concerned about terrorism since September 11.
Next session, debate is expected to ensue over the same motor vehicle driver privacy amendments, which have recently been interpreted as making drivers’ and accident records in police control secret, not just records passed on to the Department of Motor Vehicles.
New Jersey’s new Right to Know Act went into effect on July 8.
The law substantially improved the state’s former right-to-know law, which was deemed by many FOI advocates and media lawyers as one of the worst in the country.
The old law provided for access to government records only if requesters could prove the records were “required by law to be made, maintained or kept on file” by a public agency.
Under the new law’s concise definition of a public record, a requester will have access to all records unless a government agency can show that the requested information falls into one of the exemptions created in the law.
Notable exemptions to the law include autopsy photographs; trade secrets; emergency or security information procedures that would jeopardize public safety if released; Social Security numbers, drivers license numbers and unlisted telephone numbers; individual student records; criminal investigatory records that are not required to be kept by law but held by law enforcement agencies in relation to a criminal investigation; records made confidential by executive order; and any correspondence held by a legislator or document prepared for use by a legislator.
The legislative correspondence exemption, a last-minute amendment, was characterized by the New Jersey Press Association as a blemish on the law.
The new law also makes obtaining records more efficient.
Each public agency must designate a custodian to respond to requests within seven business days. Records will be available in both paper and electronic form, if the agency retains the records electronically.
Anyone knowingly and willfully violating the law will be subject to fines, and a requester who successfully obtains access to information through the courts can recoup “reasonable” attorneys’ fees.
The state’s common law right of access will be retained.
Thus, a requester may still be able to obtain access to information despite its classification under the new law if he can persuade the court that the need for access is more important than the need for confidentiality. (A. 1309)
In mid-July, Gov. James E. McGreevy signed an executive order that jeopardizes the new law by exempting hundreds of public records. McGreevy’s order made exemptions proposed by state agencies immediately effective and directed the state attorney general to create regulations to determine what records will be classified as confidential due to security concerns.
He also created a blanket rule that prohibits state agencies from disclosing an individual’s home address, home telephone number and Social Security number when releasing government documents.
The New Mexico Foundation for Open Government’s annual attempt to pass a bill that would make all legislative conference committees open to the public was narrowly defeated in the Senate after the voting requirements for passing the bill were changed. (H.C.R. 1; S.C.R. 1)
Conference committees are composed of three appointed members of each house whose goal is to resolve discrepancies in competing bills.
The House passed the bill 45-19, but when the bill appeared on the Senate floor, the Legislative Council Service presented a new interpretation of the joint rule that requires the bill to be approved by two-thirds of all senators. The bill was one vote short of passing, with a vote of 27-13. The foundation plans to try again next year as the business community is planning to provide more support for open conference committees.
A bill supported by Common Cause and the Foundation for Open Government that called for mandatory electronic filing of campaign contributions reports failed after conflicting versions left the House and Senate committees. However, $70,000 was appropriated in the state’s budget to start the updating of computer software necessary to complete the project. (S.B. 321)
The state that bore the brunt of the September 11 terrorist attacks considered a package of antiterrorism bills, two of which would affect the state Freedom of Information Law.
The two bills are still under consideration.
One bill sponsored by Rep. Nicholas Spano (R-Yonkers), passed by the Senate and championed by Gov. George Pataki, restricts public access to any information the state collected in efforts to stop terrorists and gives the government the ability to shield a broad category of sensitive information from the public. (S.B. 6806)
The other makes available “records concerning employee classifications, rate of wages and supplements and number of hours worked by the employees of contractors performing public contracts or building services.” (S.B. 6861)
Another bill introduced but not yet passed was written to “exempt certain agency information relating to electric, natural gas, steam or telecommunications systems or infrastructure from public access.” (S.B. 9841)
However, an exception was added to the Public Records Law, which Robert J. Freeman at the New York Commission on Open Government called “sensible.”
In October 2001, Public Officers Law 87 section 2, paragraph (i) was amended to permit agencies to withhold information that would “jeopardize” its ability to protect information from electronic hackers.
Freeman added that the exception had been passed prior to the September 11 terrorist attacks.
Other proposed changes include a bill introduced but not enacted that broadens the power of judges to maintain juror confidentiality to protect them from harm and intimidation. (S.B. 103)
The North Carolina General Assembly restored access to court records after the state’s Supreme Court, in a 1999 ruling, said the public has a constitutional right of access to court proceedings. The bill reaffirmed that court records are open but established categories and a procedure for closing court proceedings. Both the press and public may intervene when a judge considers closing a proceeding by filing a motion for access, paying a $20 fee and serving all parties with the motion.
The trial court must schedule a hearing and then issue a written ruling containing its findings and conclusions. This ruling can than be appealed immediately. (H.B. 1284)
A bill that would require all closed meetings to be recorded and then released to the public once the purpose for closing the meeting no longer exists was narrowly defeated in the House. (H.B. 514)
A bill to close autopsy photos was not heard in a legislative committee, while a bill to limit the attorney-client privilege exemption in the open meetings law was defeated in a House committee. (H.B. 1255)
The North Dakota Legislature, which meets biennially, will convene again in January 2003.
Legislation in the last session tweaked the open meetings/open records law, but Jack McDonald, counsel for the North Dakota Newspaper Association, expects more access-restricting legislation could pop up this year.
“I think there will be some post 9-11 legislation, but maybe not as bad as some other states had, since we are so far removed from that date now,” McDonald said.
A new Ohio law created offenses for terrorism or supporting terrorism. It makes “infrastructure records” exempt from the open records and open meetings laws. (S.B. 184)
Gov. Bob Taft signed a bill affecting media access by stipulating when the Ohio Department of Insurance and Division of Financial Institutions can share confidential documents or otherwise disclose information. (S.B. 138)
Taft also signed a bill giving pharmacy discounts to Ohio senior citizens that contains language allowing disclosure of records at the discretion of the director of the Department of Aging. (H.B. 4)
He signed a sex offender registration bill that would add information on juveniles guilty of sex offenses to the county sheriff’s public files and making them available for inspection. (S.B. 3)
With support of the Ohio Newspaper Association, the governor vetoed the “legislative immunity” language in a bill seeking to shield logs of consumer complaints calls to the Public Utilities Commission. (H.B. 94)
Firefighters’ records classified as “personal/familial” would be exempt under a bill, passed by the Senate, which provides for background checks on firefighters and EMT’s. (S.B. 258)
A bill exempts specified “residential and familial” information, such as Social Security numbers and bank account references, of a member of a fire department from Public Records laws. However, it specifically allows access to a home address. (H.B. 413)
A bill requires a complete transcript of all legislative committees, but this bill was referred to a House committee. (H.B. 379) Its companion bill requires that meetings with one or more members of assemblies be publicized and open to the public in addition to the transcript. (H.B. 380)
A bill with an uncertain fate would authorize a county recorder to allow persons to make copies with their own equipment or permit the recorder to assess alternative charges. (H.B. 250)
A bill pending hearings in late July would require the State Medical Board to create physician profiles that are publicly accessible. (S.B. 39)
Campaign finance bills include one that would require campaign finance statements from groups publishing issue advertising. (H.B. 96)
Early in the session, Gov. Frank Keating signed a law dubbed the “Oklahoma Anti-Terrorism Act,” establishing more specific penalties for terrorism-related crimes or intent to commit a crime. (S.B. 822)
“This is a start to establish broad antiterrorism laws,” he said.
In mid-July, however, threats that security legislation can pose to openness had not materialized.
The governor vetoed a bill authorizing a study of workplace security of state employees, saying that because records of these studies would be public under the state’s Open Records Law, disclosure could pose risks to the employees. The governor said no exemption could or should exist. (H.B. 2053)
The governor also vetoed a House bill authorizing video conferencing for school boards. Keating said he objected to the bill because it would have allowed a local board to make decisions about state funds and broader operating systems.
The vetoed bill also included the teleconferencing measure that could have restricted media access to decision making. (H.B. 2656)
The Oregon Legislature meets biennially in odd years, so it was not in session in 2002.
Pennsylvania’s most significant change took place in June when Gov. Mark Schweiker improved the state’s notoriously ineffective open records laws by signing H.B. 2100, which amended the Right to Know Act enacted in 1957.
It improved access to public documents by setting deadlines on government responses to records inquiries, limiting copying fees, requiring explanations with specificity when requests are denied and opening records stored on computers. However, the bill did not expand the definition of public records. (H.B. 2100)
Another bill would create public access to the procurement of information regarding bids for government contracts, with some exceptions for the financial information of bidders and potential clients. (H.B. 2674)
A selection of bills would enable access to certain kinds of documents.
The Tourism Agency Open Records Act would require tourism agencies to make “any account, voucher or contract” open for public inspection and copying and provide for a right of action. (S.B. 55) Another bill would provide for the inclusion of digitized versions of public records regarding political subdivisions other than cities and counties of the first class. (S.B. 1204)
Another establishes a procurement procedure for certain contracts for legal services between commonwealth agencies and private attorneys. (H.B. 1158)
Another bill would establish, implement and administer a statewide registry for compiling and disseminating information concerning “outstanding violations of municipal codes and ordinances relating to housing.” (H.B. 1943)
On the restrictive side, Pennsylvania legislators introduced an amendment to the state constitution providing for the right of privacy, (S.B. 1408), and amended the Administration Code of 1929 to provide for the privacy of information possessed or compiled by state agencies regarding benefits or qualifying for social programs. (H.B. 634)
The Rhode Island General Assembly considered several bills to restrict access to information.
Gov. Lincoln Almond signed into law a bill that treats documents from water resource supply management agencies and water resources boards as confidential. The new law is problematic because it specifies what records are accessible but does not specifically designate what records are confidential, thus limiting access in instances where it may not be necessary. (02-H 7211)
A bill that would amend the definition of public records and require a balancing test when deciding if a record should be published died in committee. (02-H 7433; 02-S 2549)
Next year, the Rhode Island Press Association plans to propose legislation to strengthen the state’s Access to Public Records Law by opening autopsy reports in criminal cases and giving the Secretary of State’s office the duty to educate citizens and officials on the access law.
South Carolina’s 2002 legislative session was filled with debates about bills concerning the media although little legislation was passed. South Carolina passed homeland security legislation, which was signed into law by Gov. Jim Hodges on July 2.
The bill places additional limits and restrictions on the state’s Freedom of Information Act, such as exempting security plans from public disclosure. Overall, the South Carolina Press Association said the version of the bill that ultimately passed was relatively benign compared to the initial bill and several proposed amendments. (H. 4416)
Approximately 40 bills, including two that were part of a package sponsored by the South Carolina Press Association, were introduced that dealt directly with the Freedom of Information Act.
A bill that would have changed the number of final candidates for a public position that is required to be disclosed under the Freedom of Information Act from three to one was recommitted after being passed out favorably in the Senate Judiciary Subcommittee. (S. 442)
An exemption to the Freedom of Information Act for autopsy photographs passed and awaits the governor’s signature. (H. 3668)
Reported possibilities of abuse in the Department of Commerce triggered the introduction of several bills calling for greater openness and accountability from that department, but none passed. Other bills would have removed the exemption on documents relating to attracting business, (S. 815; S. 843), and prohibited private meetings concerning attracting business. (S. 862)
A stream of legislation with the potential to restrict access flooded the last session of the South Dakota Legislature. But the state newspaper association’s general manager, David Bordewyk, said his group and other openness advocates successfully “stemmed the tide and kept access” during a period of seemingly harmful proposals.
Although no progress was made toward openness, bills that would harm news organizations financially were kept from passing. A bill defeated in committee would have prohibited newspapers from charging fees for obituaries, basically requiring them to publish free content. (H.B. 1099)
The Senate passed a bill to bar press access to booking photos. (S.B. 101) It died in the House after media organizations lobbied against it.
“We think the public would be well-served by having that information available right away, to having access to the photo, even when they only have closed-circuit trials,” Bordewyk said.
Perhaps the most restrictive privacy legislation proposed was a Senate bill making certain information about judges and Supreme Court justices private, if they requested it to be struck from public records.
This would have included property ownership accounts and phone numbers, and would have limited access to both online and document forms of the information. (H.B.1070)
Bordewyk said that measure was killed almost immediately on the House floor.
“Rightly so, legislators weren’t willing to give that sweeping confidentiality to any given body,” he said.
“The legislature has shown a distressing penchant this session for unnecessary secrecy,” according to the Tennessee Press in an April article originally published in the Commercial Appeal in Memphis.
Written to reinforce federal homeland security concerns, the Terrorism Prevention and Response Act of 2002 states: “Any materials, including but not limited to books, records, notes, memoranda, audio tapes, video tapes, or computer records, generated and prepared by or in connection with any security measures adopted by the General Assembly, are not public records and shall not be subject to” the state Freedom of Information law.
Luckily, said Frank Gibson, Tennessee sunshine chair for the Society of Professional Journalists, the originally extensive antiterrorism package was whittled down by the end of session. Its final version included no changes to the Tennessee Open Records Law and only two retreats from open meetings.
Although the House bill had many supporters, skepticism surfaced when its sponsor withdrew his support after realizing the implications of a broad provision giving city and county governments broad powers to close meetings.
According to the Clarksville Leaf-Chronicle, that part of that bill would have allowed “any governing body” to meet in private if that body says public safety and security may be jeopardized if their discussion is made. That amendment was tabled. (Pub. Ch. 849)
The enacted provisions allow for public utilities to keep their building plans out of the public eye if they would “expose vulnerabilities” and also keeps government building disaster and evacuation plans secret.
Harsher amendments to the same bill, like the installation of a private, largely confidential, surveillance system for the entire legislature, failed in committee. (Pub. Ch. 849)
The state Legislature, which meets biennially, was not in session this year. One of the last bills passed in the 2001 session created an exemption to the open records act for information on certain convictions after an allotted time period had lapsed, either five or 10 years, but Gov. Rick Perry vetoed the bill on June 17, 2001. (H.B. 1450)
The session concluded in May 2001.
The 2002 regular session of the Utah Legislature was split in half by the Salt Lake City Olympics.
Beginning just after September 11, the session was flooded with security and privacy legislation.
Media representatives from the state say these themes consistently pop up every year, but that there has been a trend toward open records erosion in Utah over the past decade.
A new law aimed at security reclassifies once public records about explosives as “protected” under the open records act. (S.B. 61)
Another antiterrorism bill that was enacted on July 1 exempts some information about security plans from the open records law.
Completely exempting the records from the law is dangerous, because no one can contest their status in the future, said Joel Campbell, legislative monitor for the Utah Press Association. (H.B. 283)
“Why can’t you leave it in the context of the law instead of totally exempting it from the law?” said Campbell, who is also a journalism professor at Brigham Young University.
“It’s amazing that the attorney general supported this, too, because now there is no right of appeal and these records are forever locked away.”
A Senate bill adds to legislative secrecy, which already allows lawmakers to anonymously propose legislation, by allowing legislative audits to be closed and the name of the requestor of the service to be undisclosed. (S.B. 93)
There is a continuing effort to close records for privacy reasons.
The state Information Technology Commission recommended one bill, upon urging from the state privacy officer, that would consolidate records on citizens of Utah and make them private. It would have included information filed through voter registration or vehicle licensing, but officials compromised with openness advocates to reverse some of the restrictive proposals.
The compromise made the records already held by the government public. (S.B. 34)
Public officials were given the right to opt out of being listed for ownership of property, in an effort by lawmakers to protect law enforcement and legal professionals from criminals being able to access their property records. (S.B.143)
An opt-out form is now available under the compromise bill, but provisions exist so that informed searchers, like journalists, can find property ownership information by reverse-searching, not by owner.
An automobile dealer aiming to better inform his clients on vehicle history sponsored a bill seeking to make accident information on drivers’ records public information. (S.B. 151)
Supported by the state press association, the bill would have amended the state’s equivalent to the Drivers Protection Privacy Act.
Another new law allows for the expungement of a juvenile record if the petitioner is over 18 years of age and has no adult criminal record. (H.B. 35)
Next session, some legislators are proposing a bill aimed at restricting commercial use of mailing lists. But Campbell says “commercial” is a “thorny thing to define,” and questions whether a reporter working for a corporate newspaper is gathering information for “commercial use” and would be unintentionally restricted by the legislation.
One apparent victory for freedom of information advocates was the enactment of a law providing for the taping of public meetings and storage of those tapes as public records.
However, it makes the written minutes of meetings the official public record. (S.B. 128)
Since overhauling the state’s public records law four years ago, the Vermont Legislature has rarely discussed freedom of information legislation, and this session was no exception. Instead, legislators were consumed with a budget deficit.
The Virginia General Assembly reauthorized its Freedom of Information office, which exists to improve processing of requests made under the recently renovated Virginia law, with unanimous approval from the House and Senate. (S.B. 208; H.B. 173)
The assembly added six new exemptions to its FOI Act and broadened nine others to add confidentiality to protect records or meetings relating to antiterrorism plans.
An antiterrorism bill creating exemptions for plans related to preventing terrorism became effective April 14. (H.B. 700)
Several bills approved by Gov. Mark Warner opened records, including a bill that creates public access for reports from consultants hired by a mayor or public body. (H.B. 235)
A bill that took effect on July 1 requires public bodies in the executive branch to post minutes of their meetings within 10 days. (H.B. 587)
Another bill signed into law includes a full disclosure for purchasers of political advertising. (H.B. 558)
However, other bills closed records or maintained secrecy.
One bill signed by the governor created an exemption for any complaints related to zoning enforcement, (H.B. 395), while others were enacted to prevent and slow the disclosure of Social Security numbers. (S.B. 153; H.B. 564; H.B. 1209) Another signed bill preserves the confidentiality of pretrial and community-based probation records, (H.B. 724), while another created an exemption from the FOI Act for information regarding participants in the Prescription Monitoring Program, which requires reports to the Department of Health Professions for recipients of certain drugs. (S.B. 425)
A bill sponsored by Sen. John C. Watkins (R-Midlothian) ended the confusion about public access to complaints against doctors. (S.B. 59) Unfounded complaints will be confidential, but the state Board of Medicine’s Internet site (www.vahealthproviders.com) will post disciplinary actions.
The Virginia Coalition for Open Government has expressed concern over a bill sponsored by Del. Harry “Bob” Purkey (R-Virginia Beach) and sent to the FOI Advisory Council for a year of study. (H.B. 900)
The bill enables the government to seek a protective order for requests that are unreasonable, a concept that goes to the requesters intent for seeking records.
The state Legislature modified Washington’s laws to aid antiterrorist activities and prevent public disclosure of information regarding security.
One bill signed by Gov. Gary Locke on April 3 created exemptions for disclosure of public information for domestic security purposes. (S.B. 6439)
The bill covers “portion