Lawmakers weigh access against privacy, security concerns
From the Summer 2005 issue of The News Media & The Law, page 42.
By Amanda Groover, Jennifer Myers & Tom Sullivan
When Bangor, Maine, officials proposed luring a horse racetrack casino — a “racino” — to its city, Penn National Gaming Inc. announced that it would not start building until Maine legislators passed an open records exemption shielding the content of its gambling license applications from the public.
Hundreds of similar exemptions are proposed each year in state legislatures across the country.
But in Maine, a law passed in 2004 requires that bills proposing new freedom of information exemptions advance to a floor vote only after winning approval from two committees: the one with jurisdiction over the bill’s subject and the joint House-Senate Judiciary Committee, which oversees access issues.
In the first test of the new law mandating special review, the committee agreed to shroud some gambling license application information, but rewrote the proposed exemption so not all information is secret. Gov. John Baldacci, a Democrat, signed the “racino” bill March 31.
“We lost some and we won some,” said Jeff Ham, executive director of the Maine Press Association, “but I really think the bigger thing is that the legislature put the new process to work.”
Every summer the Reporters Committee compiles state legislative proposals that would affect freedom of information or First Amendment concerns of the news media. As always, the greatest number of proposals would have increased exemptions to state open records and meetings laws. In keeping with trends toward greater protection of personal privacy and national security — at the expense of transparency — many bills would cut back disclosures from once-public records.
Several new measures would have shielded telephone numbers and addresses of judges, law enforcement officers or high ranking officials. And several states considered strengthening reporter’s shield laws. One such bill in Minnesota would have levied sanctions against reporters who reveal their sources.
Alabama
The Legislature unanimously replaced the state’s 90-year-old open meetings law with a new law making clear when meetings must be open and when they may be closed, with specific notice requirements. The Alabama Press Association, attorney general and other groups began work on a bill in 2003 after the state Supreme Court ruled that a meeting could be closed if a quorum was not present.
The new law allows closure for discussions of real estate deals for economic development, security, ongoing litigation or the “general reputation and character” of an individual. It does not allow closure to discuss an employee’s job performance.
“The bill was a true compromise for all groups involved in drafting it,” said Felicia Mason, the association’s executive director. “I’m confident it will be a good, workable piece of legislation because everyone was a little bit unhappy with it.”
Violations of the law can result in court-ordered fines, and the new law also allows citizens to sue public officials for illegal closure. The previous law provided penalties for illegal closure, but no one was ever prosecuted. (SB 101)
The House passed a plan to create a commission to study how to simplify public records requests for Alabama residents. The resolution says the state lacks a uniform process for the public or news media to request records. The bill faces Senate approval. (HJR 90)
The House passed a bill to require disclosure of funding sources for any advertisement intended to influence public opinion about impending legislation. (HB 75)
The University of Alabama System, which has discussed salaries and contracts in secret, has decided to conduct open meetings in conjunction with the state’s new Open Meetings Act. Although board members felt meetings fell under a “good character” exemption, according to The Associated Press, they decided to open meetings before the new public meetings act takes effect Oct. 1.
Alaska
A bill regulating political advertising died in committee. The bill aimed to provide fast administrative remedies for political candidates or groups targeted by false advertising by allowing the Alaska Public Offices Commission to fine the speaker for proven false statements made with knowledge or reckless disregard for the truth. The print or broadcast medium that conveyed the statement would be liable under the same standard. (HB 21)
An ethics bill that would have clarified the source of Alaska’s open meetings guidelines made it through the Senate, but not the House, before the session ended. The bill stated that when the statutory open meetings guidelines conflict with the Uniform Rules of Procedure, the uniform rules prevail. (SB 187)
Arizona
A bill to create an Office of Public Access failed in the Senate. The office would have trained public officials on public records law and mediated access disputes. Arizona Newspaper Association Executive Director John Fearing said the bill may have been defeated because of its $180,000 price tag. The issue is expected to be discussed again next year. (SB 1499)
Another bill supported by the association would have required public agencies to obtain the consent of the records requester before taking a records dispute to court. The bill, killed in committee, would have barred agencies from initiating expensive lawsuits to discourage requesters who cannot afford legal expenses. (SB 1498)
Arkansas
Legislation aiming to change the state’s 38-year-old Freedom of Information Act was abandoned after the bill sponsor met with members of the Arkansas FOI Coalition. Proposals would have closed city economic development records from public inspection, allowed closed meetings for public bodies to discuss real estate transactions, defined a public meeting as “the majority of a quorum” of members and increased secrecy for city and county litigation, and labor matters. The coalition is composed of representatives from the governor’s and attorney general’s offices, members of the press and educators.
The General Assembly passed and Republican Gov. Mike Huckabee signed an exemption to the state open meetings law allowing the Arkansas Fire and Police Pension Review Board and the Arkansas Local Police and Fire Retirement Board to meet jointly in private on personnel matters. They already could hold such discussions separately behind closed doors. (HB 1212)
A bill to exempt judge and prosecutor home addresses from disclosure passed the House but failed in the Senate. (HB 2694)
A bill concerning copy costs for FOI requests (HB 1182) and one proposing allowing city attorneys into executive sessions died in committee. (HB 1139)
A House committee defeated a bill that would have allowed closure of student expulsion hearings by vote of a majority of a school district’s board members whether or not parents request that the hearing be open. Current law allows parents to make that call. The state FOI coalition said the proposed bill would take away students’ rights to have their grievances heard.
Another defeated bill aimed to prohibit investigations of environmental violations if they came from anonymous sources. It would have required complainants to list their name and address, which would be open under the state’s FOI law. (HB 2447)
California
A bill allowing public officials to bar disclosure of identifying information in voter registration records passed the Senate and was in an Assembly committee in July. (SB 506)
Legislation to limit the use of the California Anti-SLAPP law by a former plaintiff who finds himself a defendant in a “SLAPP-back” action passed the Assembly and was in a Senate committee in July. (AB 1158)
Also in Assembly committee was a Senate-passed bill to allow the California Gambling Commission to close sessions to discuss matters made confidential by law or a Tribal-State Gaming Compact. (SB 919)
A bill to allow journalists greater media access to prison inmates passed the Assembly and was in Senate committee. (AB 698)
A bill to exempt a broad range of “critical infrastructure information” from public access never made it to committee. It would have allowed a private entity to require nondisclosure for information it provided to state or local agencies relating to the protection of critical infrastructure. (AB 1775)
Colorado
After state legislators and local governments struggled for more than two years to operate under secrecy provisions passed in response to Sept. 11, Colorado legislators passed a law curbing secrecy by requiring some previously restricted records to be available unless releasing them threatens health and security. (SB 131)
The Assembly also overwhelmingly passed a law requiring state university foundations to open certain financial records. The new law does not require release of donor names. (HB 1041)
Colorado’s sex offender registry also became more accessible with a new law requiring that people wishing to see the list not be asked to provide a reason for their request. (HB 1035)
Republican Gov. Bill Owens vetoed a bill that would have allowed Colorado counties to discontinue identifying their employees by name in financial public notices. (SB 69)
Connecticut
After former Republican Gov. John Rowland cut staffing and other resources for the state’s Freedom of Information Commission, the legislature restored funding to its previous level and increased its funding in the next budget. The money will “enable [it] to get back in the game,” Commission Executive Director Mitchell Pearlman said. (HB 6671)
The General Assembly considered, but failed to pass, a reporter’s shield law. As drafted, the bill would have protected professional journalists from being held in contempt of court for refusing to reveal unpublished news or sources unless the information sought was highly material, critical, and not obtainable from another source. Hearings on the proposal were held in March and Pearlman said the bill may have had sufficient support from legislators to pass, but the state’s news organizations could not agree on the legislation. (HB 5385)
Legislators attempted to exempt their own e-mails from the state’s open records law with a last-day-of-session amendment to a measure clarifying which items on the border of being excluded were still public. Republican Gov. M. Jodi Rell vetoed the bill, calling it in a statement “a blatant attempt to sidestep the spirit of Connecticut’s FOIA provisions, and . . . utterly unacceptable.” (HB 6774)
A constitutional amendment designed to increase court openness failed. The resolution proposing the amendment called for court practices and procedures — including accountability and openness — to be determined by statute. (SJ 42)
A measure that would have allowed the public to observe many juvenile court proceedings failed a second year in a row. (HB 6812) Another bill that has died twice would have forced disclosure of autopsy reports of people who died in police custody. (SB 1127)
Other bills would have required posting of public agencies’ meeting agendas at both the town clerk’s office and the agency’s place of business (HB 5287); removed a requirement that a notice of meeting adjournment be placed on the door of the place where the meeting was held within 24 hours (HB 5286); mandated the taping of executive sessions of public agencies (HB 6736); and exempted responses to procurement requests until negotiations are complete. (HB 6666)
Delaware
Sen. Karen Peterson (D-Stanton) proposed including the General Assembly as a public body under the state’s Freedom of Information Act, opening meetings and providing access to committee-created documents. However, the chairman of the Senate Executive Committee refused to bring the bill to a vote, effectively killing it. (SB 94)
Meetings of public bodies in the executive branch will become more accessible thanks to a bill signed by Gov. Ruth Ann Minner, a Democrat, requiring those state agencies to post their meeting notices and minutes on a single Web site. (SB 131)
Public meetings could be held with only one member of a public body physically present and all others participating only by phone, e-mail or electronic bulletin board under a bill assigned to committee. All of the members of the public body would have to be identified and able to communicate with each other at the same time, and members of the public attending the meeting at the location publicly noted would have to be able to see or hear all communication between the members. The bill never came to a vote in the Senate, but remains alive for next session. (SB 33)
District of Columbia
In May the District of Columbia Council conformed the city’s open records fee schedule to that of the federal Freedom of Information Act.
Florida
In November Florida voters passed a medical malpractice amendment to the state Constitution giving patients the right to know about adverse medical incidents. The amendment gave patients access to any record relating to an adverse incident by a health care provider. They may see a final report of the incident, but cannot use the records in litigation against medical providers.(SB 938)
Legislators enacted 13 new exemptions to the state’s open government laws.
A public record exemption was created for “reports of hurricane loss data and associated exposure data,” including the type, age, location, and insurance amount of all properties insured against hurricanes for the purpose of creating a hurricane loss projection model.(HB 1939) Exemptions also were created for pending or open investigation information held by the Office of Financial Regulation (HB 627) and investigation information held by the Independent Education Commission until 10 days after an investigation is closed. (S/HB 1091)
Other open record exemptions protect records identifying a deceased child’s siblings (S/HB 185), potential trade, manufacturing, or patentable secrets (S/HB 449); claims filed with the Florida Self-Insurer Guaranty Association until they are settled (S/HB 729); records held by a guardian ad litem that are kept private in the best interest of a child (SB 1098); the Social Security number, driver’s license and Florida identification numbers found on a voter registration record (HB 1591); Voluntary Pre-Kindergarten Education Program records (HB 1695); complaints filed with municipal ethics commissions (S/SB 1922); and information that could identify a minor seeking a waiver of parental notification abortion requirements (S/SB 798).
New open meetings exemptions allow the Funeral, Cemetery and Consumer Services Board to meet privately to create licensing examination questions (S/HB 1469), and the Domestic Security Oversight Council to close portions of its meetings if active criminal intelligence information is discussed (HB 1801).
The Legislature also renewed seven expiring exemptions.
Georgia
The 2005 session “was a very active time for public records legislation,” said Hollie Manheimer, executive director of the Georgia First Amendment Foundation.
Gov. Sonny Perdue, a Democrat, signed into law a measure shielding the identities of donors to public colleges and universities from the public. The new law does not protect donors who do at least $10,000 worth of business with an institution within three years of the donation. (HB 3 )
Perdue also signed a law blocking disclosure of addresses and phone numbers of public officials and employees. The law previously shielded Social Security numbers, medical records and all information about law enforcement and school employees. (HB 437)
A defeated bill would have allowed nearly 900 state economic development agencies to keep secret all negotiations with companies considering moving to Georgia. Under current law, agencies can withhold trade secrets of companies they work with and often use code names to shield them from public view. The First Amendment Foundation is preparing for this bill to resurface in 2006 as Georgia bids on the NASCAR Hall of Fame. (HB 218) The proposal attracted so much media attention that a bill was filed that would require all journalists to register as lobbyists, although the sponsoring senator said he offered the bill as a joke. (SB 279)
The Senate passed a measure, not considered in the House, to open up crime statistics and police logs of private university police departments to the public. Records of campus police at private schools are not covered by the Georgia Open Records Act, the state Court of Appeals ruled in February. (SB 153)
The House passed a proposal requiring all open records requests to be in writing, allowing agencies to ignore verbal requests for information. (HB 684)
Hawaii
A law was passed allowing two members of a board to discuss official business between themselves, if they do not constitute a quorum and if no voting commitments are made or sought. It also provides that government actions are voidable if conducted in violation of open meetings laws. (HB551)
Another new law makes confidential personal information contained in final opinions or orders if the information is deemed “private.” The law also makes secret the Social Security numbers of individuals contracting with state government. (HB 553)
Two bills failed that would have given the Office of Information Practices enforcement authority in addition to its current duties of ensuring compliance with open meetings and public records laws and legally advising the public and to agencies on access issues. The House Judiciary Committee Chairwoman told The Honolulu Advertiser that she opposed the bill because it was not “thought out” and did not include specific penalty provisions. (SB 1551)
House and Senate attorneys advised state legislators in May that business letters and other office correspondence are personal and not required to be released to the public, even if printed on office letterhead. Although the opinions are not law, legislators cannot be compelled to release office letters unless the Hawaii courts rule otherwise.
Idaho
The Idaho Press Club appealed to the Idaho Supreme Court in March seeking a declaratory judgment to determine if official state legislative committees can meet in secret “executive sessions,” said club president Betsy Russell. After legislators in 2003 held at least six closed committee meetings, the Press Club sued in 2004, but a judge dismissed the case. The Idaho Senate formally changed its rules in February 2005 to specify that committees could go into closed sessions for any reason with a two-thirds vote of the committee, provoking the new lawsuit before the state high court.
A bill that would have placed a gag order on all discussions held during closed executive sessions was withdrawn by the sponsor after discussions with the Idaho Press Club. (HB 212)
Another bill withdrawn by its sponsor would have allowed government agencies without full-time clerical staff to take 20 working days to grant or deny records requests, and an additional 30 working days to furnish the records. The current law requires grant or denial of a request within three working days and records provided within 10. (HB 61)
A bill to create a Bureau of Health Care Statistics contained a provision excluding all of its records from disclosure. It stayed under subcommittee review until the close of the session. (HB 148)
Illinois
Illinois passed a bill clarifying that the electronic statewide voter registration list is a public document, but may be viewed only at the Springfield elections office. The list may not be printed, duplicated or transmitted, and cannot be viewed during the 27 days before an election. (HB 1971)
Two bills are being held for a vote until October. One would establish criteria for what constitutes a public meeting when members meet electronically. (HB 1038) The other would clarify that settlements by public bodies are open records, a matter that may already have been settled in the courts. (SB 588)
The Illinois Health Care Consumer’s Right-to-Know bill was signed by Gov. Rod Blagojevich, a Democrat, requiring the Department of Public Health to publish average charges for 30 outpatient procedures. The new law builds on existing law requiring the same of in-house procedures. (HB 2343)
A new law makes it a misdemeanor for adults to knowingly sell or rent violent or sexually explicit video games to minors. (HB 4023) The video game industry immediately sued in federal court to block the law, which takes effect Jan. 1.
Indiana
Republican Gov. Mitch Daniels signed a bill overhauling the state’s economic development corporation that says that the corporation is subject to open government laws. (HEA 1003)
Three bills aimed at strengthening the state’s open meetings and records policy were supported by the Hoosier State Press Association but died. One would have allowed action against violators of open records laws (SB 328). Another said that serial meetings between officials in lieu of a quorum violate the law. (SB 310) A House proposal would have required officials to be physically present at a meeting in order to be part of a quorum. (HB 1221)
A provision that would have made information about ambulance runs more publicly available was removed before the bill was enacted because the sponsor was concerned it might violate the federal Health Insurance Portability and Accountability Act. (SEA 293)
Two bills were passed protecting the addresses and telephone numbers of individuals reporting criminal behavior (HEA 1073) and Social Security numbers found in state records. (SEA 503)
The press association requested clarifying a bill that says that disciplinary hearings against state licensed professionals are open to the public. The bill awaits the governor’s signature. (SEA 139)
Iowa
Two new laws promoting greater access to information went into effect July 1. One allows courts to remove government officials from office if they violate the open meetings or public records statutes two times with resulting damage. (HF 772)
The other addressed disparate and sometimes extraordinarily high fees for copying and examining public records by prohibiting agencies from including in the fees regular operation costs like employee benefits, electricity, maintenance or insurance. (SF 403)
A House bill died that would have prohibited “walking quorums,” where officials rotate in and out of a meeting to avoid a quorum in order to quell open meeting requirements. (HF 372)
Kansas
Gov. Kathleen Sebelius, a Democrat, signed into law a wide-ranging measure requiring disclosure of public employees’ actual compensation contracts and other employment-related agreements. The legislation came in the wake of a court ruling in September that the University of Kansas must release information about its athletic director’s compensation package.
The bill also requires the district attorneys of each county in the state to annually report to the state attorney general all complaints of violations of Kansas’ open records and open meetings laws and how they were resolved. The attorney general will produce a yearly report listing complaints against each agency.
The new law also creates a specific definition of “clearly unwarranted invasion of personal privacy,” to tighten what opponents said was an overly broad exemption to open record laws. It also requires professors at state universities to disclose their consulting contracts and extends the life of more than 240 exemptions to the Kansas Open Records Act for five more years. (SB 78)
The Kansas Press Association sought a constitutional amendment establishing a “right of access to public documents and deliberations of public bodies,” with a vote in November 2006. But the legislators “felt like they had enough on their plate,” Kansas Press Association Executive Director Doug Anstaett said, predicting that the House resolution, which never left committee, will return next session. (HCR 5006)
An attempt to open records of entities receiving more than 50 percent of their annual expenditures from taxes doing business with the state, ended up applying only to nonprofits, Anstaett said. The bill passed the Senate, but not the House. (SB 80)
Kentucky
The Legislature passed a measure requiring the state attorney general to distribute open records law information to a wide array of public officials and employees who are required to sign for the information. (HB 77)
Republican Gov. Ernie Fletcher signed a bill allowing an exemption to the state’s open records and open meetings laws to discuss homeland security records. The new law also allows information about historic works donated to public universities, museums, and depositories to be exempted from the open records law at the donor’s request. (HB 59)
A bill allowing public officials to have one meeting per year outside of their regular jurisdiction died in committee. It would have allowed any agency to meet for one or two consecutive days anywhere in Kentucky, so long as no actions were taken. (HB 418)
A Senate bill that would have removed a requirement that county ordinances be published before they are enacted died in committee. (SB 101)
Louisiana
The Legislature passed a bill banning document scanners from court clerks’ offices. The bill is meant to counter a ruling by the state Court of Appeal (2nd. Cir.), which said in reversing a lower court that individuals can bring document scanners into court offices. The Louisiana Press Association opposed the bill, which the sponsor said was to maintain revenue from copying fees. (HEA 193)
The House considered a bill to allow fees for online records as well as for paper copies. (HB 70)
It also considered a bill to exempting law enforcement officers’ personnel files from the state’s public records laws, a measure which was deferred. (HB 175)
Two bills were signed by Gov. Kathleen Blanco, a Democrat, in late July. One allows local school boards to make their own rules for public comments. (HB 252) The other allows domestic violence complaints against law enforcement officers to be removed from their files if the complaint was anonymous and was unsubstantiated after a year. (HEA 453)
Maine
A measure creating a Freedom of Access Advisory Committee was signed into law by Gov. John Baldacci, a Democrat, but the bill was significantly weakened before it went to the governor. The original proposal called for a permanent committee to meet quarterly to oversee the public records exception review process, to submit legislation and to conduct hearings. It also called for a public access ombudsman. In the enacted version, the committee may meet only three times a year and only advises a review committee. (LD 301)
A failed bill would have given judges discretion to award attorney fees to the prevailing party if the court determined the law was violated in bad faith or that a request for access was “frivolous, vexatious, or without merit.” (LD 466)
A new exemption to the open records law prevents mandatory disclosure of personal contact information of public employees except for elected officials. (LD 467)
Maryland
Anyone may now sue public bodies that are not complying with the state’s open meetings law, under a new bill that passed over the veto of Gov. Robert Ehrlich, a Republican, in January. Previously, only people “affected adversely” were able to sue. Ehrlich said in his veto message that he was concerned about frivolous lawsuits. (2004 session – SB 87)
Another new law requires the state’s Open Meeting Compliance Board to study and make recommendations about the “executive function exclusion,” which allows public bodies to close meetings to discuss administering existing laws. The exclusion can be problematic when the creation of new laws is discussed secretly. (HB 295)
Cameras would have been allowed in criminal trials under a bill that was returned to committee when it appeared unlikely to pass. Access would have been subject to the approval of the presiding judge and all parties, and each witness would have been allowed to prevent the coverage of his or her testimony. (SB 550)
A bill that would have penalized anyone who filmed, videotaped, photographed, audiotaped or otherwise recorded a crime did not win committee endorsement. (HB 1233)
Bloggers would have been protected under the state’s shield law under a bill that died. (HB 1140)
Massachusetts
Backed by the Massachusetts Newspaper Publishers Association, Rep. Arthur Broadhurst (D-Methuen) proposed six bills to stiffen penalties for open meeting law violations. Under two of the bills, knowingly and intentionally excluding someone from an open meeting would be a misdemeanor punishable by a fine of up to $1,000 for a first offense. (HB 3620, HB 3517) The other four bills would allow a court to impose a civil fine of $1,000 on the public body and a $500 fine on each participating member for each meeting found to be held illegally. Those four bills would also allow attorney fees to be assessed against a public body if a complaint triggers the opening of meetings. (HB 3621, HB 3619, HB 3519, HB 3518) Public hearings were held on all six bills July 11.
The Newspaper Publishers Association is considering submitting a more comprehensive version of the bills, Executive Director Robert Ambrogi said.
A separate bill would make university, college and hospital police officers’ records open to the public. (HB 3449) A public hearing was held June 29.
Another bill would make records of the legislature and the judiciary public. (SB1770) Other proposals include bills to exempt records of a new witness protection commission (HB 29) and attorney-client privileged material (HB 758) from the state’s public records law, and another that would make conviction information a public record available online. (HB 891)
Other bills would specifically state that taping a public meeting is not a crime (HB 625) and that a meeting notice must include the agenda if there is one by the time the notice is posted. (SB 1771)
Another bill would criminalize the distribution or possession of a transcript of an “essentially verbatim description” of grand jury testimony. Media organizations, led by the Reporters Committee for Freedom of the Press, are objecting to this bill. (SB 1331)
Another proposal would require private nonprofit corporations receiving more than 75 percent of their funding or more than $5,000 from the government to abide by open meetings and records laws. (HB 3463)
A working committee of media throughout the state is currently working on a shield law proposal and hopes to get it sponsored and bring it before the Legislature in September, said Charles Kravetz, news director of New England Cable News. Kravetz said the proposed bill includes an absolute privilege for sources and a qualified one for notes and out-takes.
Journalists would be barred from reporting the names and addresses of minors whose picture they also publish or show without consent of the child’s guardian. If such information was published without permission, the guardian could seek civil damages. (SB 994)
Michigan
A bill to prohibit school officials from censoring school publications except for obscene or defamatory content or content likely to cause “clear and present” danger died in committee. (SB 153)
Minnesota
A new Minnesota law gives the media greater access to polling places. The law was passed in response to 2004 legislation that required the press to get permission from local officials before going to a polling site and allowed the media only 15 minutes at a polling place. The new law eliminates both requirements, but preserves the mandate that the media refrain from interfering with the voting process. (SF 0370)
A bill died in committee that would have allowed confidential sources to collect punitive damages in cases where the press violates the promise to keep the source a secret. The bill followed publication of a book by Dan Cohen, the Minnesota plaintiff in the 1991 Supreme Court decision Cohen v. Cowles, who describes his experience as a confidential source whose identity was disclosed by the media. (HF 2460)
Several amendments to the Data Practices Act passed. Financial and proprietary information retained by the State Board of Investment is now exempt from disclosure in a measure that limits copying fees for 100 or fewer pages to 25 cents per page and raises exemplary damages fines against government entities found to violate the public records law to $5,000. (HF 225)
Minnesota’s Omnibus Crime Bill initially established a Minnesota Sex Offender Review Board exempt from open meetings laws but the provision was removed from the bill before it passed. (HF 1, SF 2273)
Mississippi
The Mississippi Center for Freedom of Information and the Mississippi Press Association are disappointed in the failure of one bill and the passage of another this session. A bill clarifying state open records law to include initial police reports, booking records and other police information died in committee. (HB 1741) Gov. Haley Barbour, a Republican, signed into law an exemption to the Open Meetings Act allowing the DeSoto County convention board to close meetings to discuss potential events at the DeSoto Civic Center. (SB 2837)
Missouri
Republican Gov. Matt Blunt signed a bill allowing sheriffs’ offices to post pictures of convicted sex offenders on their Web sites. (SB 73)
A bill was passed to shroud complaints filed with the state Department of Insurance in order to protect patient privacy. (HB 388)
Blunt told the press he would rather not have signed a bill prohibiting the phone numbers and addresses of public officials from being posted on the Internet without their consent, but the bill also contained important child safety measures. Blunt urged government officials to ignore the law, and urged legislators to repeal it during a special September session. Missouri Press Association Director Doug Crews had sent a letter to Blunt urging him to veto the bill because it was overbroad. (SB 420)
A bill to allow any government body to refuse “vexatious” records requests died in committee. (HB 391)
Cases involving child abuse, neglect and foster care were opened to the public for the first time on July 1. Courts will remain closed when a juvenile testifies. The change complies with legislation passed last year. (HB 1453 of 2004)
Montana
A new law requires the state Supreme Court to open its administrative proceedings. The court, however, already had adopted an internal rule to open those proceedings before the bill’s passage. (SB 470)
A bill creating criminal and civil penalties for violating state public records laws died in committee. It would have criminalized the intentional withholding of public records as a misdemeanor subject to a fine of at least $1,000 for the first offense. It would also have required records custodians to pay their own court costs in public records lawsuits. After heavy opposition, the bill’s sponsor asked the committee to kill the bill and replace it with a resolution authorizing further study. (HB 794)
Another bill killed in committee would have opened court documents containing information on public hazards such as deceptive financial practices, hazardous substances and injurious products. (HB 58)
A Senate bill that failed would have discouraged discussion of child abuse cases, providing for instant waiver of confidentiality if a person responsible for the child’s welfare makes any statements about the case to the media or to politicians. (SB 49)
Another bill that failed to pass would have increased from $1,000 to $4,000 the fine for knowingly making false misrepresentations about a candidate’s voting record or any other matter relevant to a candidate’s campaign. (HB 488)
Nebraska
The Nebraska Press Association supported a new law that allows greater access to electronic records (LB 525) and another that opens certain state records pertaining to government funds used to provide business incentives. (LB 312)
A bill that failed to pass would have allowed public meetings by audio and video conferencing. (LB 391)
Another failed bill that would have changed state open meetings requirements was opposed by the press association, which said it was too broad and subjected the law to future exemptions. (LB 591)
Another bill that failed to pass exempted government job applicants’ reference letters and school transcripts from public record. It also would have prevented the names of candidates for public positions from being disclosed until they are offered an interview. (LB 685)
A bill died in committee that would have exempted from public record certain county documents used to determine property values. (HB 581)
A bill that would have restricted activities near polling places failed.(LB 512)
Nevada
A new law supported by the Nevada Press Association strengthens the state’s public meetings requirements, opening discussions of the competency of top government officers including a state university president, a school district superintendent, a county manager and a city manager.
The law also requires that the name of the person being discussed in a closed personnel meeting be included on the agenda. The law allows the person being discussed to attend the meeting, have an attorney present, testify and open the meeting should they desire. (SB 267)
Another new law requires more information about convicted sex offenders to be published on the state’s Web site, including the offender’s address, physical description and criminal history. (SB 341)
Under another new law, agencies must tape record meetings or transcribe them, regardless of whether the meeting is open or closed. (SB 421)
An open meetings exemption was passed to permit public bodies to close meetings where examinations are created, revised or graded, or where an examination score is disputed. (SB 415)
Another new open government exemption makes confidential a person’s name, address or telephone number in paperwork submitted to a recreational facility. (AB 31)
A separate new exemption allows judges and peace officers to obtain a court order requiring the county assessor to keep identifying information about them confidential. (AB 142)
A bill that would have exempted local government discussions of terrorism from open meetings requirements was killed in the Assembly. The press association opposed the measure, arguing that the closed-door meetings were not necessary and subject to abuse. (SB 115)
A bill exempting certain prison and parole hearings from open meetings requirements passed unanimously in the Senate but was stalled in a House committee at the end of the session. (SB 423)
Another bill killed in committee would have required repeat open meetings violations by public boards to be posted on the Internet and would have imposed civil penalties and attorney’s costs for certain repeat violations. (SB 416)
A bill repealing certain provisions of Nevada’s “campaign truth squad” law died in the Assembly. The press association was concerned that the law would be used to prosecute writers of op-eds or letters to the editor. (AB 546)
New Hampshire
Meetings by just one legislative chamber’s members of a conference committee will still not be subject to open meeting laws under a concurrent resolution adopted in April. Rep. Daniel Hughes (R-New Castle) had sued last year after members from a conference committee discussing an education bill met privately and separately by chamber to work out a deal. A trial court ruled that the meetings violated the state’s constitution and Right-to-Know law, but the Supreme Court reversed. New rules enacted by both houses require public meetings anytime more than half of the members of the committee meet and the group includes at least one person from each house (HCR 11)
The House is working this summer on a bill changing the state’s Right-to-Know Law to include technological advances since the law’s passage. Communication by telephone, e-mail or other electronic means could now count as the meeting of a public body, as long a quorum participated in discussion of matters under its control. Any communication outside of the meeting by a quorum of the public body, including e-mail exchanges, would have to be disclosed at the next meeting. Under the proposal, standards would also be set for retrieving records maintained in electronic form. (HB 626)
New Jersey
No major pieces of legislation affecting the news media passed, but several bills were proposed.
One would have set uniform costs for copying public documents under the Open Public Records Act, with letter-sized paper costing 10 cents per page. The bill remains in committee in the Assembly. (A 4140)
Another bill would have exempted a municipal clerk from liability for failing to turn over an open record if he “exercise[s] due diligence . . . by documenting at least two attempts to collect the requested record within seven days of receiving the request.” The municipal official holding the record would then be considered responsible for turning it over. (A 4063)
A bill called for complete audio and video recordings of every Senate and Assembly session to be available as live feeds and in online archives. (A 3497)
New Mexico
A bill doubling the fine for violating the state’s open meetings act and allowing civil penalties against public officials who willfully defy the law was stuck in committee at the end of the legislative session. (HB 708) A bill requiring newspapers to print free obituaries passed the House but got no hearing in the Senate, where its constitutionality was questioned. (HB 253)
Gov. Bill Richardson, a Democrat, told the National Freedom of Information Coalition that he would support efforts to open the Legislature’s conference committee meetings to the public. He also said he supports reporter’s shield laws.
New York
Agencies must provide records sought under the state’s open records law within 20 days or explain why and commit to a date when they will be disclosed under a bill signed into law by Gov. George Pataki, a Republican. No response within 20 business days will be considered a denial that can be appealed, ending situations where requests can be ignored for years. An earlier version of the bill would have brought the legislature under the open records law. (A 6714)
Another bill would have expanded options a court can take when the state’s open meetings law is violated. Instead of only being able to invalidate an action or do nothing, the court would also be able to stay it and send it back for reconsideration, or impose a fine on the public body of up to $500. The bill is in a Senate committee. State Commission on Open Government Executive Director Robert Freeman said the issue could advance in a future session. (A 1258)
The Assembly sent a bill to the Senate that would have made it easier for record requesters to recover attorney fees and court costs from public agencies. It would have removed the requirement that reimbursement is available only if disclosure is of “clearly significant interest to the general public,” and replaced it with a requirement that the plaintiff “substantially prevail.” The bill would also allow recovery of costs if the agency disclosed the records before the judge made a decision. (A 1675)
Another bill that did not advance would have required agencies to give the public access to records over the Internet. (A 6036)
North Carolina
A bill requiring the state Commerce Department to release records relating to economic development negotiations and incentives within 15 days of being completed is a step in the right direction, though not the total openness the North Carolina Press Association would prefer.
“Not everything we’d like I’m sure, but it will go some distance,” said Amanda Martin, general counsel for the press association. (SB 393/HB 507)
A House-passed bill would prohibit copying of photographs, video or audio recordings of an autopsy but would allow a written report of an autopsy to be public.(HB 1543)
The Senate passed a bill, which awaits a House vote, that allows for public records that are being used in trial preparation to be closed. Once the trial has been completed, the public records must again be open to inspection. (SB 856)
A House bill would limit the disclosure of Social Security numbers by not including them on citations. (HB 1447/ SB 793)
A bill passed in the Senate and awaiting a House vote will allow donors to public agencies to keep their names, Social Security numbers and other information private. (SB 932)
A bill giving state department heads the right to close public employee information that might affect the “health, safety, or security” of the employee is stalled in the House, after being sent back to committee. (HB 714/715)
The state attorney general helped write the “Identity Theft Protection Act,” which would shield Social Security numbers and financial information in commerce transactions. The measure awaits a full House vote. (SB1048/HB 1248)
North Dakota
The Legislative Assembly substantially changed the state’s open records and open meetings laws with a new law that sets copy and search fees; mandates free access to electronically stored records that do not have to be retrieved from a backup system; requires all public entities to have official newspapers; and extends from 30 days to 90 days the time during which a person can request an opinion about an alleged open meetings violations. Republican Gov. John Hoeven signed the bill into law April 14. (HB 1286)
Another new law exempts records about population distributions of threatened and endangered species, but does not, as it did when introduced, exempt information about applicants for hunting, trapping, fishing and boating licenses (HB 1100). Another new law provides greater openness during sexual offender commitment proceedings. (HB 1289)
A bill which opponents had said would substantially damage the state’s open records laws was defeated in the House, 89-1. It would have redefined “meetings” to exclude gatherings of governing bodies with other public officials or gatherings to examine a location as long as no official decisions were made or votes held. (HB 1297)
Ohio
A wide-ranging public records reform bill by Rep. Scott Oelslager (R-Canton) would require mandatory biennial public records training for all elected officials, allow judges to impose fines for “egregious violation” of the state’s open records law, and provide for court award of attorney fees to requesters who win lawsuits. In addition, public offices would have to notify requesters of redactions and explain why any records are withheld in whole or in part, and would have to adopt a public records policy distributed to all employees. The bill remains in committee in the House. (HB 9)
A House bill would bar disclosure of records showing who holds concealed weapons licenses. Its sponsor had earlier threatened to attach it to Oelslager’s bill. Republican Gov. Bob Taft has pledged to veto any legislation that removed journalists’ access. (HB 91)
Another bill would exempt preliminary autopsy notes, photographs of the deceased person and suicide notes from disclosure. (HB 235)
The reach of a law making personal information about police officers confidential would be extended to cover probation and parole officers.(HB 141)
Another would allow journalists to obtain addresses and phone numbers of people filing claims with the Bureau of Workers’ Compensation and the Industrial Commission. (SB 7)
Oklahoma
Gov. Brad Henry, a Democrat, signed into law a significantly improved version of a bill that originally created an exemption for almost all state homeland security records. In its final form the bill still weakens the state’s open records law, allowing all records maintained or generated by the office that involve the federal Department of Homeland Security to be withheld. But the law declares that certain information is open, including records involving the expenditure of public funds and the office’s financial administration. The bill also allows the Office of Homeland Security not to release records that include “confidential private business information or an individual’s private records.” (SB 28)
A new law effective Nov. 1 allows all public bodies in the state to hold meetings by video conference. All members of public body will have to be visible to each other and the public, a quorum of the body will have to be present in person, and the rooms from which all members are participating must be open to the public and listed on the meeting notice. (HB 1860)
Henry also signed a bill requiring court orders that keep material from the public record to contain a “statement that the court has determined it is necessary in the interests of justice” to exclude those materials and to specifically identify what is being left out. (SB 967) He also signed a bill that closes records of court-appointed special advocates. (SB 564)
Though both houses passed legislation that would have improved public records access by setting fixed time limits for responding to a request, the bill died in conference committee, after some open records advocates feared setting time limits would encourage slower responses. The legislation would have required agencies to provide requested records within 30 days or give a reason for the delay. Records would then have to be produced within the next 30 days or the agency would have to notify the person seeking that information that the records do not exist. (HB 1329)
In other legislation, a bill passed the House but not the Senate to no longer require public educational institutions to release certain directory information, including names, addresses and telephone numbers. The institutions could choose what information to release. (HB 1800)
Bills were also introduced that would have exempted public bodies’ retreats from open meetings laws as long as no official votes were taken (SB 48), created a presumption that law enforcement records should be open to the public 10 years after the last records were entered in a case (SB 856), and exempted from open records laws certain information submitted by a person seeking economic advice from a municipality. (HB 1244)
Oregon
A bill was passed to open Department of Human Services child abuse records in cases where a child is killed or seriously hurt. The Oregon Newspaper Publishers Association sought the legislation in response to allegations of state mishandling of child abuse cases, said J. LeRoy Yorgason, the association’s executive director. (SB 947)
The association worked to narrow the scope of a bill designed to prevent prisoners from knowing contact information of witnesses in their trials. In its original draft, the bill would have limited the press and the public’s ability to access important witness information, but the enacted version of the bill limits access only to criminal defendants. (SB 978)
A law opening the disciplinary records of teachers convicted of sexual abuse went into effect June 29. (SB 755)
A new law to prevent public agencies from entering secret legal settlements will go into effect January 1. (SB 324)
A bill to exempt audio recordings of 911 calls from disclosure died in committee. (HB 3341)
Pennsylvania
Records involving sensitive issues were the focus of two bills signed into law by Gov. Ed Rendell, a Democrat, in late November. The names, addresses and telephone numbers of prospective foster parents and those accepted into the program will no longer be considered public records. (HB 2308) All records of the state’s new Address Confidentiality Program, which provides domestic violence, sexual assault and stalking victims with substitute addresses, will also be exempt from the state’s Right-to-Know law. (HB 1262)
Several bills passed one house, but not the other. One of the House-passed bills would have prevented agencies from releasing information that would indicate vulnerabilities to terrorists, but used extremely broad language. (HB 854) Two other House-passed bills would have exempted records relating to investments by the State Employees’ Retirement Board (HB 126) and the Public School Employees Retirement Board. (HB 546)
A Senate bill was proposed to make it easier for records seekers to appeal denials of their requests. Under the legislation, if the agency does not respond to exceptions filed by a record requester within 30 days of the date the exceptions are mailed, the request would be deemed denied and a judicial appeal could be sought. The bill, which has not yet won committee approval, would also expand the definition of “requester.” (SB 306)
Other acts under consideration would ban the release of autopsy audiovisual records except for specific circumstances (HB 214); limit the fees a municipality may charge for labor for providing records (HB 173); make confidential data given to a council to study long-term care (HB 222); shroud all information about buildings mapped as part of a statewide first responder information system (HB 46); and require agencies to disclose settlement agreements. (HB 1255)
Rhode Island
Two bills to change the state’s open records law were proposed with the support of Access/RI, a freedom of information coalition, but neither advanced. One would change the privacy exemption so that information is withheld when there is a “clearly unwarranted invasion of personal privacy,” the standard in the federal Freedom of Information Act that allows information to be withheld if the intrusion on privacy outweighs the public’s interest in disclosure. It also would allow attorney fees to be awarded when records are released to a requester as a result of the filing of a lawsuit, even when the case does not go to trial. (H 5701)
The other bill similarly would provide for the award of attorney fees. It would also require public bodies to provide copies of documents within three business days, absent “good cause” for a delay. In addition, it would increase the possible fine for willful violators of the act from $1,000 to $15,000 and require training in the law for anyone with the authority to authorize or deny access to records. (H 5702)
The Senate passed and referred to the House a bill that would require libraries funding the majority of their budgets with state aid to comply with open records laws. (SB 242)
The initial version of new rules adopted by the House would have banned anyone who was not “a recognized employee of a news organization actually working for and on behalf of said news organization at the time” from making audio or video recordings of House sessions or committee meetings without the explicit permission of the House speaker. The final rule only prevents members of the House from using video or photographic equipment and explicitly exempts “properly credentialed representatives of the news media.” (H 5164)
South Carolina
A bill requiring public records requests to be in writing, and shielding disciplinary actions against public employees was in committee in late July. (HB 3570)
A bill that died in committee would have allowed citizens filing complaints against a veterinarian to attend a closed-door disciplinary hearing (HB 3615) Another dead bill would have opened disciplinary hearings to the public. (SB 499)
A Senate proposal to exempt financial information disclosed in family court is in committee. (SB 150)
Gov. Mark Sanford, a Republican, signed a bill authorizing the state grand jury to investigate some environmental crimes. It empowers the attorney general to force companies to open their records and testify if necessary. (SB 22/HB 3189)
South Dakota
The South Dakota Newspaper Association and other groups successfully reduced the scope of a bill restricting public access to vital records in an effort to address concerns about identity theft and homeland security before it was signed into law by Republican Gov. Mike Rounds in February. The original bill restricted access to vital records to the individual himself, close relatives or an authorized representative. The final law only restricts the release of certified copies of those records and allows anyone to apply for “informational copies” containing the same information presented in a slightly different form. (SB 41)
“The point we made was, ‘Look, these records are at the cornerstone, the foundation of public records in our state, as well as across the country, and, you know, if you’re concerned about folks creating problems with identity theft there are a million other ways they can get at that, and restricting access to these fundamental records isn’t going to change that anyway,'” said South Dakota Newspaper Association general manager and chief lobbyist David Bordewyk.
Tennessee
Gov. Phil Bredesen, a Democrat, signed into law a measure making autopsy records confidential. (HB 316/SB 7)
All records involved with filling personnel vacancies on public bodies must be open, according to a new law designed to keep information about people applying for school board positions open to the public. (HB 1968/SB 868)
Another law says colleges and universities do not have to report alleged sexual assaults to local law enforcement agencies and assault statistics are closed to the public. (SB 811/HB 1542)
Texas
A new law requires all elected or appointed public officials who are members of a governmental body to take open records and open meetings classes provided by the attorney general’s office within 90 days after assuming a state post. (SB 286)
Another law requires the disclosure of investments of public money (SB 121), while another law allows public bodies to recess open meetings and continue them the next business day without posting notice, so long as that is not intended to circumvent the open meetings law. (SB 690)
Republican Lt. Gov. David Dewhurst led a campaign to require recorded votes on bills in the Legislature. Currently, a recorded vote is optional and members may choose to have a voice vote instead. A proposed constitutional amendment (HJR 13) was left pending in committee and its enabling legislation (SB 1140) passed the Senate but failed to make headway in the House. Dewhurst also proposed creating a C-SPAN-like television channel to cover the Texas Legislature.
An attempt to exempt meetings of public bodies with less than a quorum from open meetings laws was left pending in committee. It would have allowed members to meet and discuss policy matters over which they had control so long as they did not take any action or share what they had discussed with members who were not present until they had a meeting with a quorum. (HB 305)
A House bill would have removed the requirement that the Department of Public Safety disclose names of people licensed to carry concealed handguns but the Senate did not act on it. (HB 318) Another bill would have limited the number of free pages a person could request from a single agency to 50 pages per month. (HB 2264)
A shield law was proposed but withdrawn after it was weakened. Its sponsors attempted to bring it back, but it never made it out of committee. The amendment reduced the offer of protection to only information, documents and items reporters obtained legally and eliminated any protection for events they witnessed. (SB 604)
Utah
Several amendments to the Utah Government Records Access and Management Act will help the government provide records more efficiently and with less expense, said Jeff Hunt, operator of the Utah Freedom of Information Hotline, sponsored by the Salt Lake City law firm Parr Waddoups. One will allow requesters to make their own copies if they need more than 50 pages and if an agency provides reasonable safeguards against loss. It also provides for electronic copies in lieu of paper. The new law also allows agencies to make records available as they are copied instead of furnishing all requested records at the same time. (SB 44)
The legislature also created the Government Records Access and Management Task Force of 12 legislators who will work through November to study some specific access issues including electronic records, identity theft and whether agencies can sell public records commercially. (HB 75)
A bill that failed would have required recording all open government meetings and retaining them for 180 days. (SB 143)
Vermont
A bill passed unanimously by the Senate would require an agency to pay the legal fees of successful open records litigants when it “knowingly or unreasonably withheld” them. Journalists had pushed for reimbursement of legal fees for requesters who prevailed. The House has not yet taken up the bill, which will be reconsidered when the legislature reconvenes in January, Vermont Press Association Executive Director Michael Donoghue said. Ideally, the a