Open season on open records

Concealed-weapon permits and legislative e-mail messages were targets for secrecy this year in statehouses, where shield laws also were on the agenda.

From the Summer 2006 issue of The News Media & The Law, page 27.

By Peter Saharko

Legislation to strengthen Ohio’s public records law appeared poised to pass into law earlier this year when the state’s powerful gun lobby launched an attack.

Before the bill passed the House, an amendment banning journalists’ access to concealed-gun permit records was added, surprising the bill’s sponsors and public records advocates, and making the bill’s future uncertain.

“Essentially the concealed-carry floor amendment was a dirty trick initiated by people in the House who are beholden to the gun lobby,”said Frank Deaner, executive director of the Ohio Newspaper Association.

The effort to ban access to gun records in Ohio mirrors what is going on in several state legislatures, part of what First Amendment advocates say is a coordinated national campaign by the National Rifle Association to make concealed-weapons records the only type of public license or permit to be secret.

In addition to hiding concealed-weapons records, several legislatures this year also proposed shrouding e-mail messages of public officials, while some states considered shield laws or rules to protect journalists from revealing confidential sources.

Shooting holes in records laws

Ohio’s concealed-weapons law gives journalists, but not the general public, access to the names, birth dates and counties of residence of permit holders. When the gun lobby failed to ban journalists’ access to the records in an unrelated weapons bill, it turned to a bill sponsored by Rep. Scott Oelslager (R-Canton) seeking mandatory public records training for public officials and to strengthen attorney fee provisions for prevailing plaintiffs in public records lawsuits. Legislators, by a slim margin, approved the provision banning journalists’ access to permit records, and Oelslager’s bill went on to pass the House.

The Senate president has promised to bring to a vote its version of the bill — which does not include the permit exemption — before the end of the legislative session, Oelslager said.

Adding to the provision’s uncertain future is the political climate in Ohio, where gubernatorial contenders are campaigning as strong pro-gun candidates. Both Republican Secretary of State Kenneth Blackwell and U.S. Rep. Ted Strickland, a Democrat, endorse exempting journalists from access to permit information.

If the Senate version of the records bill is passed as is, the issue of exempting journalists could become a negotiating tool as legislators work to resolve differences between the House and Senate versions.

A ban on journalists’ access would be the first of its kind in the state.

“When you look at the lists of licenses and permits of all types that are issued in the state of Ohio, there is no confidentiality for any of those, including hunting licenses,” Deaner said.

Deaner also thinks such records should be open to all, not just journalists.

“My organization had always lobbied that we think the information should be public across the board, not just for journalists . . . It’s not a journalists’ issue, it’s a community safety issue. There are mothers and fathers, husbands and wives who may be concerned about who in their neighborhood or who in their social circles may be carrying concealed weapons and that may affect their judgments on where they allow their children to go.”

Oelslager is concerned about his bill’s fate because the concealed-weapons records provision “diverts attention from the thrust of the bill.

“The governor has threatened to veto any bill that has something like that in it. We can have more discussion on the merits of media access [to concealed-carry records], that’s a separate issue. I don’t want this bill which has had so much work done and is such a strong records bill and gives strength and teeth to the open records bill, I don’t want that jeopardized based on that provision.”

Ohio is not alone in banning public access to the records of concealed-weapons permit holders.

“This is just horrible public policy,” said Barbara Petersen of the First Amendment Foundation in Florida, another state that codified the permit exemption this year. “It defies common sense — this bill had nothing to do with anybody’s right to own a gun or right to have a concealed-weapons permit.”

Florida Gov. Jeb Bush signed a measure to keep information secret about concealed-weapons permit holders as part of a package the NRA calls on its Web site the “Six Pack of Freedom” — six bills strongly supported by the Florida gun lobby.

Gun control advocates said the clampdown on records is part of a coordinated NRA campaign to protect the privacy of concealed-gun owners who may not want to draw attention to the fact that they are carrying hidden weapons.

“It prevents us from being able to show what gun violence prevention programs or legislation has a beneficial effect, and it affects us from being able to show in states where permits have been issued that it has affected the crime rates,” said Elizabeth Haile, staff attorney with the Brady Center to Prevent Gun Violence.

The NRA’s national headquarters could not be reached for comment after repeated efforts.

Kentuckians also lost access to the names of concealed-carry permit holders.

“We were told by the supporters of that legislation that we can thank the National Rifle Association,” said David Thompson, executive director of the Kentucky Press Association. “Certainly there is no other license issued by the state of Kentucky or probably by any other state government that you can’t get the records. . . . What is the difference between saying those records and those licenses are open versus concealed carry?”

First Amendment advocates find the trend troubling.

“It establishes state policy that the rights of gun owners trump those of non-gun owners,” said Charles Davis, a journalism professor at the University of Missouri-Columbia and co-chairman of the Society of Professional Journalists’ Freedom of Information Committee. Davis said the law shielding permits will prevent the public from knowing whether concealed-carry laws are good public policy. “It effectively says we’re never going to scrutinize this policy at all,” Davis said.

Kansas also banned access to the records this year, with the support of a Democratic legislator who has strongly supported public access to records in the past, said Doug Anstaett, executive director of the Kansas Press Association.

“Our logic in seeking an open records designation for concealed carry was that the public has a right to be involved in the process,” he said. “We think the vast majority who will not be carrying [concealed weapons] have the right to know who is.”

The provision passed without a public hearing. In a letter asking Gov. Kathleen Sebelius to veto the bill, Anstaett questioned not only its content, but the process of its passage. “We ask that you veto this measure because ordinary Kansans were not allowed to be a part of the debate about an important public policy question,” he wrote. “This blatant disregard for the people’s right to participate in the political process is enough on its own to send this legislation back for further consideration.”

Missouri, Utah, and Minnesota are among other states that have already exempted such records from public view.

Communicating secretly

E-mail messages sent and received by state legislators and other elected officials also have been a target for closure in some state legislatures.

At issue is whether the public should have access to e-mail messages, instant messages or other electronic communications.

“As we get to the point of having the ability to text message a legislator or a city councilman while they’re about to vote, it seems like we need to address this in 2006 technology terms,” Anstaett said.

In Kentucky, legislation was introduced that would give individual legislators discretion for whether their e-mail messages, correspondence and phone records are public. The bill, introduced late in the session, did not advance but its sponsor promises to reintroduce the bill next year, said David Thompson, executive director of the Kentucky Press Association.

“Obviously we will be there fighting it,” Thompson said. “Our governor is under indictment, the attorney general who is a Democrat has been investigating the Republican administration for its hiring practices. Much of the evidence the attorney general has gathered has been from e-mails.

“They are the public servants and we need to know what’s going on — it’s quite a bit different from being in a private business — they are the public servants,” Thompson said. “Yeah, they probably do get some stuff from time to time that the person sending it to him doesn’t want released but that’s what comes with being a public official.”

E-mail messages of public officials are grabbing the attention of a lot of lawmakers, according to Davis.

“On the one hand, they would like it to be a private communication channel. On the other hand, they are caught in the reformist, post-Abramoff climate in which they understand that they have to be fairly transparent in dealing with their constituents,” he said, referring to the influence-buying scandal centered around Washington lobbyist Jack Abramoff. “It’s hard to make yourself look transparent when you have a secret channel of communications.”

Legislation pending in Massachusetts would apply the open meetings law to meetings by e-mail, a bill Robert J. Ambrogi of the Massachusetts Newspaper Publishers Association said is unnecessary.

“This has now emerged as kind of a red herring because everybody who interpreted the law that’s currently on the books has said that it applies to e-mail,” Ambrogi said.

Utah press faced a multi-faceted attack on access to records in 2006, with no fewer than seven bills that would have created exemptions or limited public records. Joel Campbell, the Utah Press Association’s legislative monitor, said the state’s two largest newspapers spent more than $100,000 to lobby against the attack on public records.

Utah press advocates said they successfully lessened the impact of a bill that originally would have reversed the presumption of access to government records and made all communications to or from legislators private. In the end only the “internal communications that (are) part of the deliberative process between staff and elected officials” — including e-mail messages and other correspondence — were exempted from public access.

Another bill, popularly known as the “BlackBerry bill” named after the popular personal digital assistant/cell phone, originally exempted legislator or public employee telephone numbers or e-mail addresses from status as records. After passage, the law was amended to protect only mobile telephone numbers and e-mail addresses of government employees.

The initial bill was a response to the issuance of BlackBerry devices to all Utah legislators and a subsequent public records request by The Salt Lake Tribune for all the BlackBerry phone numbers of legislators, according to Campbell.

Another bill would have allowed the government to charge extra fees for electronic records, including information from databases, but the provision was removed, Campbell said.

Little action on shield laws

Connecticut became the 32nd state, in addition to the District of Columbia, to adopt a shield law this year.

The law provides a qualified privilege in the state’s courts for members of the news media — a definition that includes newspapers, magazines, book publishers, broadcasters, and even electronic media. The privilege requires the party seeking the information, whether in a civil or criminal case, to show that there are “reasonable grounds” to believe a crime has occurred or to sustain a cause of action. The party seeking the information must also prove by clear and convincing evidence that the information sought is “necessary” to the claim, not available from “any alternative source” and that there is “an overriding public interest in the disclosure,” according to the law.

Other than the passage of the Connecticut law and the defeat of a shield proposal in Washington State, there has been limited action on reporters privilege in other states.

A Missouri shield bill with strong guidelines protecting confidential sources never made it out of a legislative committee, according to Jean Maneke, counsel to the Missouri Press Association.

In Utah, advocates decided the time was not right for a major push on shield law legislation.

“Strategically we said we don’t want to have a shield law [battle] when we’re fighting public records bills,” Campbell said. “It was not a good time to have both of them together.”

Utah’s Constitution gives primary rulemaking authority on the rules of evidence to the state Supreme Court, a rule governing reporter’s privilege is still under consideration by the high court’s Advisory Committee on the Rules of Evidence, said Jeff Hunt, the lead media attorney for the association. A draft is expected by September.

“We’re going to get a rule, it’s just a question of what the scope is going to be,” Hunt said.

In Kansas, press advocates are considering revisiting the state shield law next session, said Anstaett.

Massachusetts news organizations are still waiting for action from the state legislature on a shield bill proposed last year. There are plans to push for the bill again next session.

The proposed Massachusetts reporters shield, based on federal legislation sponsored by Sen. Christopher Dodd, D-Conn., would offer an absolute privilege in civil cases and a qualified privilege in criminal cases and is still pending before the legislature, and if last minute action does not occur in the remaining weeks of the current session, it is expected to be reintroduced next year.

“The way the legislative process works in most places, it’s rare to get a bill through on the first round,” Ambrogi said.