From the Summer 2003 issue of The News Media & The Law, page 50.
Every summer the Reporters Committee looks at state legislative efforts that could affect journalists’ First Amendment rights or inhibit or improve their abilities to gather information under Freedom of Information and sunshine laws.
This year states are still trying to close down information in the name of “security,” reasoning that terrorists might exploit weaknesses and vulnerabilities that they know about, and rarely considering that, if the public does not know about these same vulnerabilities, it will not seek out improvements.
Several states considered or passed bills to make records concerning veterans secret.
This legislative update was compiled by Reporters Committee legal interns Emily Harwood and Katrina Hull, and journalism intern Lolita Guevarra.
The most significant legislation signed into law this year was the Alabama Homeland Security Act of 2003, said Felicia Mason, executive director of the Alabama Press Association. The Act creates a State Department of Homeland Security and calls for the appointment of a department director, deputy director, possible assistant directors, and a Homeland Security Task Force. Alabama was the first state in the nation to create this type of agency. (2003-276)
At one point, the legislation contained itemized exemptions to the state’s public records laws, Mason said. The final version of the bill contains no new exemptions; disclosure of information is subject to existing state and federal laws.
An effort to extensively rewrite the state’s open meeting law remained in a House committee until the end of the session. Under the current law, government entities can only hold an executive session to discuss “the character or good name of a man or woman.” The bill would allow closure of meetings for other purposes, including discussion of litigation. Minutes of executive sessions, however, would be public records. The measure would have also applied meeting and quorum requirements to committees of a governmental body, not just the body itself. The law would have also defined a “meeting” as a “gathering of a quorum of three or more members,” either in person or via electronic communication. (HB 501)
The Associated Press reported in February that Gov. Bob Riley began a period of enhanced government openness in Alabama. His press secretary sent a memo to Cabinet members, saying that agency heads need not seek the approval of Riley’s legal staff before releasing public records, unless there is a legal question. For a short time during the term of Gov. Don Siegelman, all media requests for records were sent to the governor’s legal advisor.
Alaska lawmakers passed a resolution adding public safety to the list of reasons they can exclude members of the public from legislative meetings. The exclusion, which took effect May 8, allows for private discussions when public knowledge would adversely affect the security of the state, nation or government. (H.C.R. 7)
Alaska’s open meetings law still does not apply to the legislature. A resolution seeking to amend the Alaska constitution to bring state lawmakers under the open meetings law failed to advance from committee. (H.J.R. 11)
A new law restricting commercial e-mail took effect July 30. It prohibits sending e-mail that contains sexually explicit material from an Alaska computer to an address the sender knows is held by an Alaska resident unless the subject line contains “ADV: ADLT.” (H.B. 82)
A resolution encouraging federal agencies to destroy records of those who lawfully purchased firearms passed the House and the Senate. (S.J.R. 5)
The governor signed into law additional restrictions on disclosure of medical records to address new federal health privacy rules. (HB 2041)
Judges, prosecutors, police officers and victims of domestic violence may, under a new law, have personal information in court records sealed upon request. These four categories of people may not conceal their identities, but they may withhold such information as their home address and home phone number from the public record. (HB 2108)
The governor approved a pilot program in Maricopa County to allow access to dependency guardianship and termination of parental rights proceedings to the public. (SB 1304)
A new law enacted to address concerns over the possibilities of “terrorism” prohibits public disclosure of information about drinking water systems. (SB 1167)
A bill that would have prohibited government agencies from posting an individual’s social security number, date of birth and driver license number on the Internet was withdrawn. (SB 1324)
In an attempt to keep juror names confidential, the state supreme court issued a rule that would allow jurors to remain anonymous when asked to confirm their verdict in front of the court. However, jurors’ names still will be listed in case files. (Juror confidentiality rule of the Arizona State Supreme Court)
The Arkansas General Assembly addressed several freedom of information-related issues during the 2003 session.
Both houses overwhelmingly supported legislation making confidential the military discharge records on file with county recorders, and Gov. Mike Huckabee signed it into law (Act 275). Although the press can no longer view the records as a whole, it can still access the most important pieces of information, said Dennis Schick, executive director of the Arkansas Press Association. The legislation was amended to require disclosure of certain information such as name, rank, unit and date of military service, and awards and medals conferred upon the veteran.
The state’s new Homeland Security Information Act closes records that are “developed by any emergency service agency for the purpose of preventing, investigating, or responding to a catastrophe or use of weapons of mass destruction.” The records may be opened to the public if the head of an emergency service agency determines that disclosure is in the public’s best interest. (Act 1366)
The governor also signed into law a bill closing water system security records. It sunsets in 2005. The law’s primary purpose is to protect the security of public water systems such as reservoirs and pipelines (Act 763). Another new law allows water distribution boards to meet in executive session. (Act 1210)
Names, addresses, and other information about sex offenders will be public record in Arkansas beginning in September and must be available online by January. (Act 330)
A bill passed by the legislature and signed by the governor exempts home addresses of non-elected municipal and county employees from the state’s Freedom of Information Act. (Act 213)
A bill that was delivered to the governor amends the state FOI Act to deny access to public records to any incarcerated felon, although a felon’s attorney may access Department of Corrections records. (Act 1214)
An act transmitted to the governor’s office creates the Fair Mortgage Lending Act, which establishes licensing standards for mortgage brokers. Records under the act are generally open, but several exemptions exist, including those related to investigation or inspection of books and records, personnel and medical files that if disclosed would constitute a “clearly unwarranted invasion of privacy,” and financial records obtained through examinations. (Act 554)
Legislation expanding laws against cable theft to include penalties for theft of other communication services, including Internet and telephone services, passed both houses and is awaiting the governor’s signature. (Act 1806)
The Senate defeated a bill to close advertising and promotion sales tax-collection records to the public. (SB 978)
A proposal creating criminal liability for individuals who knowingly or purposefully violate the FOI Act was recommended for study by the Interim Committee on State Agencies. (SB 168)
A measure to amend the FOI Act to exclude the addresses of non-elected city and county employees was withdrawn by its author. (HB 1273)
The Fair Care and Treatment Act sought to establish a Patient’s Recovery Fund, or a liability insurance pool for personal injury claims by or on behalf of nursing home patients. Under the proposal, names of patients who have personal injury claims, business activities and records of the board and administrators of the pool would have been confidential, but the bill died in committee. (HB 1414)
A bill to exempt investigations by regulatory boards, commissions and agencies from the FOI Act was withdrawn by its author. (SB 860)
The Arkansas State Criminal Records Act died in Committee. It would have made the Arkansas State Police responsible for disseminating criminal history information. People seeking access could have been charged up to $20. (HB 1488)
A number of bills failed that would have expanded or protected access to information. These included a proposal subjecting any organization authorized to appoint or nominate two or more members of a state board or commission to the state’s FOI laws (HB 2371); another granting freedom of expression rights to college, university, and technical school students (HB 2378); another making a misdemeanor of any knowing and intentional FOI Act violation. (SB 168)
The governor vetoed a bill to develop records retention guidelines for state agencies. (HB 2681)
Additionally, legislation establishing a label and opt-out requirement for e-mail and a “do not spam” database died in a Senate committee. (SB 385)
The media’s biggest push in California is to strengthen the state’s foundation for open government. A proposal that cleared the Senate on June 30 would amend the state constitution to make access to government a constitutional right. If approved by the voters, the amendment could take the sting out of secrecy initiatives and lead courts to broadly construe existing law in the favor of access, said Tom Newton, general counsel for the California Newspaper Publishers Association. The Assembly Governmental Organization Committee approved the bill on July 16, but referred it to another Assembly committee where it was awaiting action in late July. A similar proposal cleared the Senate last year, but did not receive a hearing in the Assembly. Lawmakers have until Sept. 12 to send the proposed amendment to the voters. (S.C.A. 1)
Media advocates are relieved that Gov. Gray Davis has backed off a proposal to repeal a portion of the Ralph M. Brown Act that requires local governmental agencies to post agendas 72 hours before a meeting and stick to the agenda. The posting requirement prevents governmental bodies from taking surprise action on issues not on an agenda.
The Assembly also passed legislation that would exempt information about buildings’ safety from public disclosure. Language was removed from the bill that would have allowed for closed sessions to consider matters that pose a threat of criminal or terrorist activity. The bill would make secret public agencies’ plans to lessen the threat of terrorism and information about facility security. It applies to refineries, power plants and virtually all private buildings. The bill was awaiting action in a Senate committee in late July. (A.B. 1209)
Also pending before the Assembly in late July was a bill ensuring that journalists would be able to continue using a special motion to strike lawsuits that arise from protected speech. Corporate defendants are accused of abusing the law, known as an “anti-SLAPP” rule, that makes it easier to throw out lawsuits when freedom of speech is involved. SLAPP stands for “strategic lawsuit against public participation.” The bill is an attempt to curb corporate abuse of the special motion and add language that expressly gives the media the right to use the special motion. The bill passed the Senate in late May. (S.B. 515)
Peace officers’ personnel records held by any governmental agency would be exempt from public disclosure under a proposal that was awaiting action in the Senate in late July. (A.B. 1198) Another proposal that passed the Senate and was awaiting action in the Assembly would create the position of State Chief Information Officer and the Information Technology Board. The bill also contained seven exemptions from the Public Record Act, including making state agency reports of damage, theft, modification, or destruction of information to the Department of Finance confidential. (S.B. 403) Two other proposals that would have limited information that is available to the public on police reports submitted to the court failed to advance from their committees. (S.B. 58; A.B. 1346)
California also limited access to vital records data such as births, deaths and marriages and created a tiered system for different levels of access. The records are exempt from disclosure under the California Public Records Act. Under the new law, members of the public and media may “view” an edited version of the records, but only after certifying under penalty of perjury that they will not use the information to commit a crime. (S.B. 1614)
A law that took effect in January calls for a report on how to protect a public safety official’s home information and broadens the subject matter meriting closed legislative sessions to include threats to drinking water, natural gas and electrical services. (A.B. 2238) Another new law makes it unlawful for anyone attending an executive session that was lawfully convened to divulge information obtained at the meeting. (A.B. 1945)
Finally, during the 2002 session Gov. Davis vetoed legislation that would have allowed requesters to seek an opinion from the state attorney general on the validity of their records requests if they were denied by a state agency. The proposal was backed by news media organizations, who said it would streamline the request procedures. It was the third time he vetoed the proposal. (A.B. 822)
The governor signed into law a bill exempting from public disclosure certain records from the Office of Preparedness, Security, and Fire Safety in the Department of Public Safety. Such records include details of security arrangements or investigations. (HB 1335)
Another new law amends an existing statute that makes communicable disease reports and similar records confidential. Under the new law, information can be released to the FBI, federal law enforcement agencies, or prosecutors if necessary to investigate or prosecute bioterrorism. (HB 1026)
A new law requires public officers of state agencies who have public records in their custody to consult with the Department of Personnel and the state Attorney General to determine whether the records are of legal, administrative or historic value. If the records hold none of the values, the records will be destroyed. (SB 33)
Very little legislation affecting newsgathering passed this year in the Connecticut General Assembly, said Colleen Murphy, associate general counsel for the Freedom of Information Commission. Proposals that could have been most damaging failed, she said.
A Senate bill would have exempted voice mail messages from transcription under the FOI Act (SB 828). In early July, it had passed the Senate and was on the House calendar. The FOI Commission has been studying the issue of classifying e-mail and voice mail as public records and had issued a draft declaratory ruling giving guidance on how government agencies should deal with these types of communication. This bill was introduced after the Commission’s draft ruling was issued, Murphy said.
Legislation affecting geographical system data was discussed in a public hearing but received no further attention. As written, the proposal would have exempted from the FOI Act data concerning private residences and buildings. (HB 5014, 5039)
Some bills containing unfavorable FOI exemptions became law this year. A bill exempting building plans for single-family residences from the FOI Act was signed by the governor. After a certificate of occupancy is issued, owners of the plans can request them from a building official. Otherwise, the plans will remain on file as public record. Originally, the measure would have applied to any building plan, Murphy said. (Pub. Act 03-205)
State marshal audit records are now exempt from the FOI Act under a law signed in July. The previous law called for audit records to be public. (Pub. Act 03-224)
According to a report prepared by the Connecticut FOI Commission, only one favorable piece of legislation was signed into law. This provision established an address confidentiality program to provide substitute mailing address for victims of family violence, sexual assault, or stalking. Although the bill added an FOI exemption, the Commission supported the measure in its final form because it addressed a legitimate safety concern. (Pub. Act 03-200)
Under a new law, businesses wanting to keep their disputes off the public record can consent to mediation in Delaware’s Court of Chancery, and the mediation will be considered confidential and not part of the public record. (S.B. 58)
A bill signed July 15 should increase the public’s access to environmental information. The new law says all nonconfidential information about chronic violators of environmental regulations should be made available to the public. (S.B. 60)
District of Columbia
The only First Amendment action that took place in the District of Columbia this year was a hearing regarding how the police department handled protests in September during meetings of the International Monetary Fund at the World Bank. Bob Becker, the Society of Professional Journalists’ District of Columbia Project Sunshine Chair, said that the District may adopt regulatory remedial measures. Various media organizations, including The Reporters Committee for Freedom of the Press, have asked the police department to reconsider how to better treat journalists covering protests. During the IMF protests, journalists with press credentials were still arrested by police officers. Media organizations want to make sure that police officers acknowledge a journalist’s press rights in covering protests.
Last November, an overwhelming percentage of Floridians approved an amendment to the state constitution that would require any exemption to the public records law to be passed by a two-thirds majority. Whether this “super-majority” is required for lawmakers to renew an exemption prior to its expiration is still up in the air, and will probably be discussed again during next year’s legislative session, said Barbara Petersen, president of the First Amendment Foundation.
The 2003 legislative session saw the introduction of many bills with potential effects on newsgathering. More than 40 bills were filed that could have restricted access to information, but only a handful of them were passed by the legislature, Petersen said. Of those passed, most of them were not seen as detrimental to First Amendment or newsgathering issues, she added. A number of bills simply added very narrow changes to existing legislation.
The worst bill signed this year, Petersen said, was passed during the legislature’s first special session. It prohibits a person from using exempt or confidential information found in a police report for commercial purposes. Although the legislation contains an exemption for the media, it could still have a chilling effect on the press, she added. The bill contains a provision allowing police enforcement. Therefore, people are less likely to provide the information, even to those who are legally entitled to receive it, for fear that they could be criminally liable for doing so, she said. (SB 32-A)
Also in the first special session, the legislature passed a bill increasing fees for criminal history records from $15 to $24 per copy. The fee applies to anyone requesting the record, including government agencies, Petersen said. (SB 10-A)
A second special session began in June, 2003. Although the stated purpose of the session was to deal with medical malpractice issues, a number of the bills concerned exemptions to public records, but none of them passed both chambers, Petersen said. Another special session was scheduled for July.
The state enacted legislation completely exempting photographs and other images of sexual abuse victims. The exemption applies regardless of whether the victim is identified, and it applies to pictures of any part of the body. (Chapter No. 2003-157)
Another bill enacted exempts data contained in the state’s putative father registry. This includes information about the putative father and the mother, such as name, address and date of birth. (Chapter No. 2003-56) The registry is an alternative to Florida’s “Scarlet Letter Law,” which required women wishing to place a child for adoption to list the names of all potential fathers of the child in a newspaper advertisement. That law was repealed in May 2003.
A proposal that would change laws against cable theft to include penalties for theft of other communication services, including Internet and telephone services, was signed by the governor. The measure includes penalties for any publication that promotes the sale of a device that could be used to illegally access electronic technology. (Chapter No. 2003-186)
The governor also signed the Citizen’s Right to Honest Government Act, which, among other provisions, makes it a third degree felony for a public servant to conceal, cover up, destroy, or falsify official documents that are public records. (Chapter No. 2003-158)
The state enacted a measure limiting disclosure of a patron’s confidential library records, only for the purposes of collecting fines or gathering overdue materials, to the patron himself, an agency collecting fines for the library, law enforcement officials, or judicial officials. If the patron is under age 16, the information may only be disclosed to the patron’s parents or guardians. (Chapter Nos. 2003-13, 2003-126)
Also, a new law requires the state Board of Pharmacy to adopt guidelines for disposal of patient records maintained in a pharmacy. All guidelines are to be consistent with duties to preserve confidential records. (Chapter No. 2003-166)
A law limiting disclosures about public employees in substance abuse programs now exempts only information personally identifying participants. (Chapter Nos. 2003-101, 2003-102, 2003-109)
New legislation reenacts FOI exemptions for investigatory records relating to worker’s compensation compliance, but allows a department to disclose information to help in the performance of official duties. (Chapter No. 2003-106)
A measure narrows public records exemptions for information about certain public housing applicants. Bank account, credit card and telephone numbers are no longer covered, but medical history records and information related to health or property insurance are still deemed confidential. (Chapter No. 2003-100)
A new law slightly expands the exemption for applicant information in the Florida Kidcare Program. Any identifying information held by the Agency for Health Care Administration, the Department of Children and Family Services, the Department of Health, or the Florida Health Kids Corporation now fits within the exemption. (Chapter No. 2003-104)
A slight amendment to public records and public meetings exemptions for the Agency for Health Care Administration’s State Provider and Subscriber Assistance Program eliminates the exemption for information related to a subscriber’s spouse, relative or guardian. Information concerning a subscriber or managed health care entity involved in a grievance procedure may be released upon request. (Chapter No. 2003-105)
A law now creates a public records exemption for personally identifying information regarding a person’s health held by government entities, for determining eligibility for paratransit services. The law allows disclosure in case of emergency, with written consent of the individual, or upon a showing of good cause. (Chapter No. 2003-110)
An amendment to laws regulating autopsy records gives the deceased’s surviving relative authority to designate an agent to obtain the records. (Chapter No. 2003-184)
The Department of Environmental Protection must now publish notices on its Internet site in a searchable database that is free for the general public. (Chapter No. 2003-145)
A law makes certain information held by the Department of Children and Family Services, the Department of Health and the fire inspector regarding foster home applicants and licensees exempt five years after the home is no longer licensed as long as the foster parent does not become an adoptive parent. (Chapter No. 2003-83)
Legislation reenacts, with minor changes, a law stipulating that when the Accidental Release Prevention Program under the federal Clean Air Act allows a “stationary source” to exclude trade secret information from its risk management plan, the owner or operator must provide such information to the State Hazardous Materials Emergency Response Commission upon request, and prove that such information, when held by the Department of Community Affairs, is exempt from public disclosure. It also exempts trade secret information held by DCA in the process of conducting an inspection, audit or investigation pursuant to the federal Clean Air Act until a determination has been made by the Administrator of the Environmental Protection Agency that such information is no longer entitled to trade secret protection. (HB 2003-103)
Gov. Sonny Purdue signed a bill that provides a sweeping terrorism-related exemption to Georgia’s open records and meetings law. The law that took effect June 4 closes meetings when security-related documents are discussed. The documents, which also are made confidential under the law, include security plans and vulnerability assessments for any public utility, building or function; plans for preventing attacks; documents revealing the existence, nature and location of security devices; and “any plan, blue print or other material” that, if made public, would compromise security. The Georgia First Amendment Foundation says the law threatens to become a catch-all for total nondisclosure of public records. (S.B. 113)
A second new law allows the State Road and Tollway Authority to accept private proposals for transportation projects and keep the proposals confidential until an agreement to perform the project has been signed. The law denies the public the opportunity to comment during the proposal process. (S.B. 257)
The governor also signed a bill that closes 911 system records to the public to prevent the disclosure of confidential sources and investigations. The law reverses the Decatur County Superior Court’s affirmation that 911 system records are open to the public. (H.B. 246)
The governor vetoed a bill in late July that would have required contracts and subcontracts entered into by the Hawaii Tourism Authority to be made public. (SB 41)
A bill under House review in late July, which likely will be introduced in the next session, would allow any state agency to provide access to government records by remote electronic means and to charge for the service based on a contractual agreement with a user. (SB 427)
Efforts by state media associations helped block the passage of numerous proposals to add exemptions to Idaho’s open records and public meetings laws, according to the Idaho Newspaper Association’s legislative wrap-up. A lobbying coalition representing the Idaho Newspaper Association, Idaho Allied Daily Newspapers and the Idaho Press Club attempted unsuccessfully to have legislation introduced that would bring political caucus meetings under the state’s open meetings law. The coalition did, however, successfully prevent legislation that would have jeopardized disclosure of official e-mail exchanges now required under the open records law.
The state enacted a bill that makes confidential records of state “peer review” procedures affecting a physician or surgeon. Peer review reports do not include records pertaining to patient care. (IC 39-1392)
A new law exempts records of the department of juvenile corrections’ custody review board, including names, addresses and written statements of victims and family members. The new measure also allows the board to hold executive sessions. (IC 9-340b)
Another new law requires publication of proposed highway district commissioner salaries as a separate line item in the district’s budget. (IC 40-1314)
As was the case in many states this year, Idaho enacted legislation dealing with access to veteran discharge records. The governor signed a bill that authorizes a veteran or his representative to request removal of discharge records from the county clerk’s office. If a veteran chooses to have the forms recorded, the forms are considered public records, although personal identifying information can be redacted. A veteran’s name, however, cannot be redacted from the records. (IC 65-301)
The governor also signed a bill requiring county sheriffs to publish the name, address, photograph, and offense of any person classified as a violent sexual predator, within seven days of registration within the county. (IC 18-8324)
Public officials would be required to keep an audio or video recording of closed meetings or when a public body is in “executive session” under a bill awaiting signature in late July by Gov. Rod Blagojevich. When an action is filed to enforce open meeting laws, a judge can privately view or listen to any portion of the closed meeting. (S.B. 1586)
Another proposal would amend Illinois’ Freedom of Information Act to award attorneys fees and costs to individuals or groups who “substantially prevail” in suits brought under the act. The bill was awaiting signature in late July. (S.B. 690) A new law adds language to the act that exempts from public disclosure requests made by the news media to access or disseminate information to the public. (H.B. 539)
Several changes to the state’s open meeting law that were awaiting the governor’s signature included requiring a public body that meets in two locations to note the location on the agenda; requiring a majority of a quorum of the members of the public body to be physically present at a location; not allowing a member to attend by electronic means more than half of the meetings held in a year; and requiring 48-hour notice by any member who plans to attend a meeting electronically. (S.B. 699) A new law will allow counties to provide electronic access to public records through the Internet and establish a fee to cover expenses. (H.B. 300)
A new law allows for closed meetings to consider security procedures that prevent public danger. (H.B. 105) Another new law exempts from public copying and inspection architects’ plans and engineers’ technical submissions of specified utility, transportation, public and government facilities. (S.B. 1034) A bill that was awaiting signature in late July would exempt from inspection and copying some construction documents, vulnerability assessments, security measures, response procedures, and maps showing the location of utilities. (H.B. 954)
A new exemption to the open meetings act permits a public body to discuss its legal counsel’s appointment, performance, compensation or dismissal during a closed meeting. (S.B. 1204) Another new law removes from the public record the names, addresses and other personal information of participants in park, forest preserve or conservation district programs. (H.B. 1425)
A new law makes written reprimands of public employees secret. A final disciplinary action of suspension, demotion or discharge of a public employee is public, but anything less is not required to be disclosed. (SB 169)
One new law covers various public record matters. The measure makes the voter registration list a public record. The law also gives public agencies the authority to decide whether the “public disclosure of a record or a part of a record has reasonable likelihood of threatening public safety and exposing vulnerability to terrorist attacks.” It also gives state agencies discretion for releasing an individual’s phone number, address and social security number. (HB 1935)
A bill that did not pass would have closed birth and death records except to the news media. (HB 1540) Another would have concealed the results of a public employee’s conduct investigation unless elected public bodies did the investigating. (HB 1476)
The confidentiality of a state employee’s personnel records was one of the most important issues that arose during this year’s legislative session. One bill, as originally written, would have made confidential all personnel information pertaining to state employees. The Iowa Newspaper Association proposed an amendment containing three provisions: 1) to make records of disciplinary action public after the action had been decided, 2) to override privacy when the information was deemed to be in the public interest, and 3) to clarify that an employee’s name, job title, qualifications, compensation, or information of overriding public interest did not constitute “personal information.” Ultimately, the bill passed, but the section on personnel records was omitted. According to Bill Monroe, INA executive director, public employee unions are willing to consider the INA amendment as part of future legislation. (HF 534)
The governor signed into law a bill eliminating a requirement that state-chartered banks provide public access to a list of the bank’s officers, directors and shareholders. The lists generally include names, addresses and number of shares held by each party. (HF 215)
Some new laws limit access to information. Veteran discharge records that are maintained by county recorders are now confidential. (SF 94)
The State Archives and Records Act creates a state records commission to oversee the organization and availability of public records. (HF 648)
The Senate did not advance a bill that would have eliminated or at least seriously altered Kansas’ criminal defamation law. Kansas is one of the few states that has a criminal defamation statute. That law makes it a misdemeanor to knowingly spread false information about a person, punishable by up to a year in jail or a $2,500 fine. (S.B. 3)
Gov. Kathleen Sebelius signed into law in April a bill that allows energy companies to recover terrorism-related expenses and makes information about what the utilities are spending the money on confidential. When an electric or gas utility company requests a rate increase from state regulators, the regulators are required to keep confidential information about the amount of recovery requested and the amount of recovery allowed. Any increase in rates for security costs is also unidentifiable on a customer’s utility bill. (H.B. 2374)
A bill signed into law April 24 requires school districts to provide superintendents’ salary information to newspapers. (S.B. 82)
A new law lists several types of legislative documents to which the public has an automatic right. For documents not listed, the individual must apply to the head of the Legislative Research Commission, which must respond in accordance with the Open Records Law. (SB 213)
Two bills died that would have called for automatic destruction of court records in two situations. First, if a criminal charge was dismissed, then its record would be purged. (HB 485) Second, an emergency protective order would be expunged if the court found no evidence of violence. (HB 466)
A bill that would have provided for local elected officials to be trained in how to meet the requirements of the Open Meetings Records Law died, but its sponsors say they hope to revive it next session. (HB 513)
The Louisiana Press Association tackled a number of freedom of information-related proposals this year. It was able to defeat or tighten the language of several measures.
The LPA launched an “intensive effort” against a measure allowing local governments to pool resources with private sources and other government entities to form non-profit economic development corporations. The bill passed the House and was deferred in a Senate committee by its authors after a presentation by the LPA. According to the legislation, these organizations would, generally, be subject to state open meetings, public records, and public bid laws, but they would not be subject to “laws which govern the operation of public bodies.” According to the LPA’s legislative update, this proposal “raised serious questions about access to their records and meetings.” (HB 1700)
As was the case in many states this year, Louisiana’s legislature discussed several security-related proposals. Several received overwhelming support, but the LPA was successful in narrowing the language of many of them.
The governor signed into law an exemption from disclosure for records containing information about security procedures, criminal intelligence information (if it pertains to terrorist-related activity), or threat or vulnerability assessments created, obtained, or collected in the prevention of terrorist activity. Originally, all records “pertaining to” security procedures would have been exempt from public records laws. The LPA worked to amend the bill to apply only to records “containing” this type of information. (Act 413)
Legislation that exempts certain pipeline security procedures from public records laws was also enacted. The LPA was able to tighten the language of this bill, but did not formally oppose it. (Act 658)
Another new law makes confidential all security and safety plans for ports and privately owned or operated facilities, vessels and fleets as “security sensitive information.” Additionally, information related to such plans or related vulnerability assessments is exempt from the public records requirement. An amendment encouraged by the LPA requires disclosure of the names of consultants bidding on security projects and their fees. (Act 667)
The state legislature also dealt with many issues related to law enforcement. Legislation exempting release of records collected and maintained by the Louisiana Bureau of Criminal Identification and Information was signed by the governor. The new measure does not apply to the state’s sex offender registry. (Act 1197)
The state also amended the state’s juvenile crime victim nondisclosure law to allow publication of such information, when necessary, in conjunction with the Amber Alert system. (Act 5)
The LPA testified against a bill that would have allowed the Jefferson Parish Economic and Post District to develop marketing strategies and strategic plans that would be exempt from public records laws. The legislation would have also permitted executive sessions related to such information (HB 1340). The governor signed a similar bill. According to the LPA’s legislative update, the original bill would have exempted “information provided by private companies in connection with economic development efforts.” LPA objected to this language, which was removed from the final version of the bill. (Act 887)
Several new laws curb openness. One reduces from 15 to 10 years the time that the Department of Public Safety and Corrections is required to keep the records of adult offenders after their sentences are completed (Act 322). Another exempts fire and police test records from the Public Records Act and allows executive sessions to discuss the exams. (Act 336)
The state will now keep secret the identities of executioners (Act 283); it will allow a $20 fee to access accident reports in Orleans parish (Act 508); it now exempts military discharge records filed with parish clerks. (Act 316)
A new law allows the Office of Motor Vehicles to collect and report the gender and age of people who move from parish to parish or from state to state. (Act 66)
Another law requires confidentiality for medical records, insurance applications, health records and similar information found in public employee personnel files. (Act 342)
Gov. John Baldacci signed into law a bill designed to ensure law enforcement agencies follow Maine’s Freedom of Access law. It requires administrators from each municipal, county and state law enforcement agency to certify their agency has a written public record request policy. It also requires a person from each agency be trained to deal with Freedom of Access requests. The law follows a statewide audit last year that showed one-third of state police departments failed to comply with public record requests. (L.D. 249)
The open-records audit also inspired a second new law that creates a 16-member panel to examine compliance by police, town, city and school officials with the Freedom of Access law. The panel consists of legislators, media representatives, the attorney general and members of the public. The panel is required to issue a report by Dec. 15. (L.D. 1079)
The governor signed a law under which the Howard County School Board may no longer close its meetings under an exclusion to the state’s open meetings law for “executive functions,” purely administrative actions that have nothing to do with interpreting law or making policy. The measure follows a lawsuit brought by a parent who contends that the board routinely held closed meetings that violated the State Open Meetings Law. The law is effective for two years starting in October. During that time, the county board may only close its meetings only for reasons delineated in the exemptions to the open meeting law.(HB 243)
Another new law allows a custodian of public records relating to public security to withhold information on any building owned or operated by the state or any of its political subdivisions. (SB 733)
The governor also approved a bill that modified the stalking law to require that people accused of stalking know that their actions could harm another person. The modification leaves the law open to include news media. Journalists would be considered stalkers when it can be proven that the journalist acted in a “malicious course of conduct that includes approaching or pursuing another where the person know[s] or reasonably should have known that certain conduct would place another in reasonable fear of serious bodily injury, death or of certain offenses being committed under certain circumstances.” (HB 593)
A bill died that would have repealed a provision prohibiting the expungement of an individual’s record if the individual has been convicted of specified crimes or is a defendant in a pending criminal proceeding. The amendment would have allowed the court to order the expungement of all police records and court records about the charge if the court found the defendant entitled to the expungement. (HB 372)
Although many states have given up on the issue, Massachusetts is continuing to “fight the good fight” to preserve a tradition of state openness that goes back to the 17th century, said William Plante, executive director of the Massachusetts Newspaper Publisher’s Association. The organization has fought against the closure of vital records for a long time, and the issue is once again before the legislature.
The MNPA and state genealogists are closely monitoring SB 405, which was in a Senate committee as of late July. If passed, it would establish a registry of vital records and statistics. The MNPA and genealogists want to see specific language included in the bill that would protect a public citizen’s right to vital statistics that are included in personal records and a genealogist’s right to pursue genealogical interests through such records, Plante said.
Other bills also address access to vital records and personal information. One measure would exempt birth records filed after December 31, 1913, or marriage and death records filed after Dec. 31, 1953, from public inspection. A public hearing was held on the bill, but the legislature took no further action (HB 1661). A bill increasing access to records of children born out of wedlock was introduced in the House and referred to a committee. The law currently limits access to these records. The proposal has seen no further activity. (HB 1085)
The MNPA also supports a bill that would amend the state’s public records laws. Under an existing exemption, personnel and medical records as well as “any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy,” are not public records. The proposed legislation would erase this language and replace it with an exemption for “disclosure of files or information of a personal nature which disclosure would constitute a clearly unwarranted invasion of personal privacy.” In early July the bill had received a favorable report. (SB 1693)
A second bill also seeks to amend the public records definitions; instead of exempting any data that, if disclosed, may invade privacy, SB 1694 exempts data that would invade privacy.
A proposal resurfaced this year that would keep confidential the names of applicants for government positions until they had been selected for a public interview. The bill received a favorable report in committee. (HB 3445)
Additional legislation is still awaiting passage or failure in the general assembly. These proposals include the Massachusetts Emergency Health Powers Act, which requires health care providers to report any cases of people harboring illnesses that could cause public health emergencies. The act also applies to pharmacists and veterinarians. Reports or records generated from the act would be protected health records. (SB 597)
A bill would subject juvenile offender records to the same disclosure requirements as adult records; however, the bill does exempt confidential and privileged information, including information and communications entered at indictment. (SB 1089)
A bill would exempt from public record correspondence from the Office of Campaign and Political Finance to any candidate, political committee or ballot question committee until the candidate or committee’s deadline for response had expired.(SB 1671)
In a measure requiring the attorney general to maintain a database listing all civil judgments and settlements of cases involving alleged child sexual abuse, the database would not be public. (SB 150)
Bills would close home addresses and phone numbers of physicians kept by government agencies, so long as a business address was available (SB 1086); a catalog of biological agents listed in a biohazard registry (SB 511); information in an environmental illness registry (SB 695); in a tobacco company reporting measure, the identity and quantity of toxic elements — unless disclosure could help reduce public health risks. (SB552)
Another bill would make confidential a person’s home address and digital image as contained in the registry of motor vehicles (HB 218). A separate measure would establish confidential voter registration for public safety personnel. (HB 691)
Bills would make public information from legal action taken to remedy an alleged public hazard or financial fraud (SB 1021); and would increase disclosure of criminal history information concerning sexual assault upon children or obscenity. (HB 175)
A measure would require state agencies to prepare a written report of their appropriations accessible to the public. (HB 836)
A bill would change processing of open records requests, requiring that all parties having custody of public records permit access and copying, subject to a reasonable fee. Any claims that the record is not public must be supported by an index that identifies and describes it. (HB 1940)
Michigan lawmakers are considering several new exemptions to the Freedom of Information Act, including credit unions’ financial records (S.B. 496, H.B. 4694); records of a career development committee involving technical, scientific and proprietary information (S.B. 309, H.B. 4421); home addresses of state employees who are foster parents (H.B. 4673); and audio recordings or autopsy photos (H.B. 4216). The Michigan Legislature meets year round, and all the proposals remained in committee in late July. A new law that took effect June 26 exempts from the FOI Act the identities of individuals who report grain dealers that break the law. (H.B. 4310)
A health-care information protection and privacy act that would require major steps to protect medical records remained in a Senate committee in late July. (S.B. 51) A bill that would prohibit photographing or displaying photographs of deceased accident victims was awaiting the governor’s signature in late July. (H.B. 4249) Media advocates also are working to ensure a public disclosure requirement is added to a bill affecting the state agency that investigates child abuse and neglect. The proposal, which exempts information gathered by the agency from the FOI Act, only provides for discretionary disclosure about child abuse investigations. The legislation has passed the House and was awaiting action in a Senate committee in late July. (H.B. 4096)
Many proposed bills include language specifying that the state’s open record and meeting laws do apply. A proposal awaiting the governor’s signature in late July would allow counties to make grants to nonprofit corporations for economic development only at open meetings. ( S.B. 239) Proposals to require the state’s catastrophic claim association to comply with the FOI Act and open meetings law were introduced in House and Senate committees. No action had been taken on any of the proposals as of late July. (S.B. 209-210; H.B. 4490-4491)
Several proposals for new programs and associations also would be subject to open meeting and record laws. These include bills to create the Detroit-Area Regional Transportation Authority (S.B. 100, H.B. 4072); a child care loan guarantee program (S.B. 90); municipal land banks (S.B. 85); a legislative ethics committee and a state ethics board (S.B. 58, H.B. 4084); a governor’s commission on patient safety (H.B. 4272); an Innovative Recycling Technologies Board (H.B. 4152); a commission on state land use (H.B. 4147); and a Michigan Government Efficiency task force. (H.B. 4031) The Detroit transportation authority and patient safety commission proposals cleared the House and were awaiting action in Senate committees in late July. The other proposals remain in committee.
A final group of proposals the Michigan Press Association is following promote open government and increased disclosure. The Senate sent a proposal to the House in June to require public charter school directors to disclose information about operation and management (S.B. 393). Proposals in Senate committees as of late July would increase penalties for violating the state’s Whistleblowers Protection Act (S.B. 127); require pharmaceutical companies to disclose financial information about their sales techniques (S.B. 41); and require disclosure of who is paying for campaign-related phone calls (S.B. 3). The House passed a bill on June 24 that would make search warrants public information after 56 days. (H.B. 4715) On June 10, the House passed a bill that would eliminate confidentiality of child protection records if the child died while under the care of the state. (H.B. 4586) Both bills were awaiting action in Senate committees in late July. Proposals in House committees as of late July include a bill that would require pharmacists to post a list of the 50 most commonly prescribed drugs (H.B. 4674), and one that would exempt media from increased penalties for privacy offenses. (H.B. 4033)
A new law prohibits state agencies from using 900 numbers or any other phone system that would require the public to pay to access information. (Public Act 12 of 2003)
A new law effective in late March expanded Michigan’s cable theft laws to include digital and electric transmission. The law also makes it unlawful to possess or publish information on how to use illegal communication devices. Under the law, news organizations could be criminally liable if they published a story about someone stealing cable or unlawfully downloading songs or movies from the Internet. (Michigan Penal Code §§ 750.219(a), 750.540(c),(h))
A new law authorizes the Office of Information Policy and Analysis to issue advisory opinions on the open meeting law. (SF 316)
The governor also signed into law a bill simplifying and reducing the cost for individuals and small businesses to enforce an advisory opinion on whether specific government data are public. Now, if an individual must go to court to enforce an advisory opinion that a local government chooses to ignore, the court will be required to award prevailing citizens their attorney’s fees.(SF317)
A Senate bill that did not pass would have clarified in writing that journalists are allowed into polling places only with a city clerk’s authorization and that they must follow certain rules.. Without a city clerk’s authorization, a journalist would not be allowed within 100 feet of the polling place. (SF 767)
Freedom of information advocates had good luck in the 2003 legislative session, said Carolyn Wilson, executive director of the Mississippi Press Association. Gov. Ronnie Musgrove signed a handful of important bills this year.
Under the new laws, anybody who intentionally violates the state Open Meetings Law can be fined $100 plus possible legal expenses. (HB 454)
Another law extends the Open Meetings Law to videoconferences and teleconferences of city councils, boards of supervisors and other public bodies (HB 583).
Governor Bill Holden vetoed a bill that would have opened court proceedings in child abuse and neglect cases, but not adoption proceedings or when a child or victim is testifying. It also would have opened most court records of child abuse and neglect after a required status conference between parents and caseworkers within 72 hours after a child is taken into state custody. (H.B. 679)
Access to military discharge records decreases under a new law. The law, meant to curb identity theft, prohibits county recorders from providing military discharge records without proper authorization and also prohibits the use or reproduction of military discharge records for any commercial purpose. (S.B. 61)
A proposal that failed to advance from a Senate committee would have permitted local law enforcement, and public health and safety agencies to close meetings and records related to how the agency would respond to events that are “terrorist, criminal, or hostile in nature.” The proposal reemerged as an amendment to a crime bill that died on the last day of the session. (S.B. 411)
For the second year in a row, a bill failed that would have made it a felony to take pictures of animal facilities, including farms, in or on private property. (S.B. 657)
Two proposals that likely would have increased access to information also failed. A bill to increase the maximum fine for violating Missouri’s open meetings and records law from $500 to $2,500 received a favorable committee vote but was not debated in the full Senate. (S.B. 414) Another proposal would have created a State Board of Public Records to monitor compliance with open meetings and records law. It would have given the board power to subpoena all records. (S.B. 158)
The governor signed a new law restricting what information health care providers can release regarding patients in their facilities or using their services. (HB 647)
A new law eliminates the requirement that district court and supreme court clerks compile and make available certain information relating to sentencing in criminal cases.
However, that information can be obtained through the Montana Department of Justice crime control division. (SB 3)
A new law allows a county attorney to ask a judge to rule on what criminal justice information should be released to the public after a criminal case is closed. Requesting parties must pay their own attorneys fees. (SB 141)
It was a good year for freedom of information, said Allen Beermann, executive director of the Nebraska Press Association. Bills opposed by members of the Nebraska media were either killed or delayed.
One proposal would have allowed withholding of all student information, including routine directory information, in public schools. The bill was modified to do nothing more than what the federal law already does, said Alan Peterson, attorney and lobbyist for Media of Nebraska. At the beginning of a school year, parents can ask that their child’s “directory information” not go in directories or other public announcements; this is the only chance for a parent to give input, Peterson continued. The bill was placed on the general file to be read next year. (LB 236)
Another bill monitored by Media of Nebraska would have exempted inheritance tax proceedings from public records. It will be carried over to the 2004 legislative session. (LB 25)
The NPA also opposed other legislation, including a measure to authorize charges of up to $15 for search, retrieval, and copying of criminal justice records. It was indefinitely postponed (LB 179). A bill increasing the rates of Department of Motor Vehicle records was placed in the general file for reintroduction next year (LB 560). Media of Nebraska worked to have language added to the bill requiring the fees to be at cost, Peterson said.
Gov. Mike Johanns signed several bills dealing with disclosure. Among them were measures allowing state agencies and other public entities to provide their reports to the legislature electronically (LB 113), and another authorizing grants to political subdivisions to help improve electronic access to public records. (LB 257)
The Address Confidentiality Act allows abuse victims to use a substitute mailing address with state and local agencies, allowing these agencies to fulfill public records requests while protecting a victim who does not want a home address disclosed. (LB 228)
Under a new law, the Tax Equalization and Review Commission is exempt from record-keeping requirements for the hundreds of hearings it holds, but Media of Nebraska successfully lobbied against changes that would have closed the meetings. (LB 291)
Company-specific information, such as new investment, employment and the average wage of employees, can be disclosed but only after a company is three years old under the state’s new Employment and Investment Growth Act. (LB 608)
A bill did not pass that would have made confidential information maintained by a pharmacy about a subscribing medical practitioner. (LB 764)
A new anti-terrorism law allows the governor to declare certain records confidential if they were prepared to prevent or respond to a terrorist attack and their release would substantially threaten the public’s safety. The law covers records that reveal the susceptibility of fire and law enforcement stations; the critical infrastructure for storing and transmitting energy; details of a specific emergency response plan; response agency procedures for reacting to attack; special equipment used in emergency operations; and the security of radio-transmission frequencies used by response agencies. Reports on any records declared confidential must be submitted to legislators along with the reason they are confidential. The law also creates a state commission on homeland security that can hold closed meetings to receive security briefings and discuss emergency-response procedures and security deficiencies. (A.B. 441)
Several new laws increase access to information. Nevada’s open meetings law now applies to disciplinary hearings of state professional and licensing boards and prohibits the boards from approving confidential agreements to settle disciplinary matters unless the agreement is to seek drug or alcohol treatment. (S.B. 250) Starting Oct. 1, child abuse and neglect cases will be open to the public, unless the judge determines a closed hearing is in the best interests of the child. (A.B. 132)
Nevada lawmakers took no action on a bill to prohibit confidential settlement of lawsuits in state courts that conceal public hazards, such as defective products. (S.B. 251)
A bill that would remove divorce affidavits from public access passed the House and remains in the Senate for next year’s session. (HB 384)
A House bill under Senate review establishes a commission to study the Right-To-Know law, including the issue of electronic communications. It also would remove certain caucuses from the law. (HB 606)
A new law makes all agreements between a private landowner and a fishing game license owner confidential as an exemption to the Right-to-Know law. (HB 736)
A bill retained in the House for next year’s session would make tax abatement sessions public. If passed, it will exempt from public disclosure correspondence between lawyers and public officials dealing with tax abatement cases. (HB 622).
In August 2002, only one month after Gov. James McGreevy signed Executive Order 21 exempting more than 400 types of records from New Jersey’s new Right to Know Act, McGreevy signed Executive Order 26. The new order reduced the number of exemptions to fewer than 80.
The state’s Domestic Security Preparedness Task Force in late July was drafting additional language for Executive Order 21 that would allow agencies to withhold records if release of the information would interfere with the state’s ability to protect citizens from terrorism. The task force is very close to completing the project, said Mark Fleming, deputy chief counsel to the governor. The New Jersey Press Association is happy with the proposed content of the forthcoming order, said John O’Brien, executive director of the NJPA.
The NJPA is fighting a proposal that would make the home addresses of law enforcement officers private. It argues there should be no special considerations for a police officer; if a member of the general public were arrested, his information would be of public record. The same rule should apply to the police, O’Brien said. If the bill passes, neighborhood residents would not know where their police officers resided or how far away they were from the communities where they work. Additionally, establishing one public records exemption may pave the way for others, he said. Following its introduction, t