From the Winter 2002 issue of The News Media & The Law, page 28.
By Mimi Moon
Months after Sept. 11, security remains a high priority for most state legislatures, prompting many to consider legislation restricting access to records and meetings.
“Everybody is scrambling to do something that they believe somehow shows they are tough about fighting terrorism,” said Harry Hammitt, editor and publisher of Access Reports, a newsletter on open government. “They immediately think there’s too much information out there.”
Maryland Gov. Parris Glendening apparently thought so when he proposed legislation that would give a custodian of records broad power to deny access solely on the basis of a threat to public security. His proposal, introduced into the state House and Senate in identical formats, faced immediate criticism.
But some states could not quickly address security issues after Sept. 11 because their legislatures had either adjourned for the year or were drawing to a close. In a new year, many states are drafting anti-access legislation — even though some of the subject matter is already covered by those states’ current freedom of information laws — as a way to respond to the terrorist attacks.
In New York, for example, a state Senate bill quietly introduced in mid-January called for the addition of another exemption to the state’s FOI laws. It would prohibit the disclosure of maps, architectural drawings, operational plans or procedures or other detailed information relating to utilities.
But the law already provides exemptions when disclosure would threaten people’s lives and safety, said David Treacy, assistant director of the Committee for Open Government based in Albany, N.Y.
Treacy added that the law also fails to provide a standard that would explain why the disclosure is dangerous to the public. New York’s law provides that all records are presumptively open unless an exemption prohibits disclosure. Treacy said the new bill fails to provide a reason for non-disclosure.
The Sept. 11 attacks gave many agencies and groups that had sought closure of certain records or meetings fuel to encourage lawmakers to make changes to openness in government.
The Florida Legislature convened in emergency sessions right after Sept. 11 and passed anti-access legislation in sessions that were supposed to deal with a budget crisis that arose from a drastic plummet of tourism dollars.
Missouri public hospitals and municipal utility companies, some of which have been trying for years to convince state lawmakers to pass legislation to close some of their records, renewed their efforts, said Doug Crews, executive director of the Missouri Press Association. Meeting with lawmakers and public interest groups, officials used phrases like “highly confidential” and “critical to security” perhaps to use to their advantage a climate of anger against terrorists.
But lawmakers have been skeptical, Crews said.
“Legislators are taking a closer look at this and not taking a knee-jerk reaction in Missouri,” Crews said. “All we can do is try to play a role in it and try to strike a balance in the law. That’s as good as it gets.”
Not all state action has been focused on closing public records.
In fact, California, New Jersey and South Carolina attempted to broaden public access in recent months. In California, an amendment to the state’s open records act proposes to shift the burden of proof from the requestor of the records to the custodian of the records. In other words, the requestor would no longer have to prove that there is a public interest in disclosure, but the custodian would have to prove that there is a public interest in withholding that information.
New Jersey’s new law, which goes into effect this summer, requires government agencies to release records on demand unless they are specifically exempt under the law. It also imposes fines for custodians who refuse to comply.
In South Carolina, bills have been proposed to limit the rates government agencies charge for records. The current high rates, bill sponsors say, make access to public records difficult or impracticable.
Other priorities in the political agenda consumed the minds of some states’ legislators, who have not made any attempts or proposals to carve dents into FOI laws or to bolster them. For example, Mississippi’s main focus has been on how to deal with the budget crisis.
“We have a severe budget problem,” said Lynn Evans, executive director of the Mississippi Center for Freedom of Information. “That’s why we aren’t having the problems other states are having. Right now they just want to keep things from getting too bad.”
The following is a list of measures proposed or passed since Sept. 11 that could affect public records or public meetings. For the states that are missing, no measures that could be related to terrorism were identified by late January.
Gov. Gray Davis issued an executive order directing the Department of Health and Human Services to suspend releasing birth and death records to private companies for 45 days. Individuals and family members will still be able to obtain these records for their own use.
A state constitutional amendment to the California Open Records Act was proposed that would shift the burden of proof on disclosure questions to agencies. An agency would have to prove that it is in the public’s interest to withhold the records it chooses to withhold. Currently, a requestor must show there is a public interest in disclosure.
Gov. Jeb Bush signed 11 bills on Dec. 10, including four public records measures that would close public records dealing with security plans of hospitals or any property owned by the state, to information on pharmaceutical supplies stockpiled, to respond to terrorist attacks, and to records requests made by law enforcement agencies as part of an investigation.
Legislators rejected a proposal to allow police officials to block access to any public records for up to 21 days if they convince a judge that disclosure would hinder an investigation.
The governor signed emergency orders in September and October that allowed the Florida Department of Law Enforcement to create task forces and an antiterrorism database and intelligence center.
Florida senators voted to give Senate President John McKay broad power to close meetings and keep records of votes secret. The Rules Committee by a 14-1 vote agreed that “at the sole discretion of the President of the Senate, after consultation with appropriate law enforcement, public health, emergency management and/or security authorities, those portions of meetings of a select committee, committee or subcommittee, concerning measures to address security, espionage, sabotage, attack or other acts of terrorism” can be closed. The senators also agreed to seal the records from the closed meetings, including any votes on bills or amendments.
The House Select Committee on Security moved to delay a proposal that would allow the Department of Law Enforcement to suspend public records laws because of investigations into terrorism. The plan would have allowed the department to seal for at least seven days public records that are critical to an investigation of terrorism.
Members of the Gainesville/Alachua County Regional Airport Authority in Florida said they may hold future meetings on airport security behind closed doors, invoking a paragraph in the state FOI law that exempts “information relating to security systems” from the state’s open-records requirements. The motion was not voted on since it already existed in the law.
Attorney General Al Lance recommended that the Legislature authorize the governor to exempt records or documents from public disclosure “when necessary for the security or safety of the state.” Lance also suggested that the state allow public employees to question people who request public documents, that it exempt blueprints of state buildings, evacuation plans and travel plans of elected state officials from disclosure, and that it increase response time for public records requests from three to five days, with an allowable extension of up to 15 days.
Legislators are also considering bills that would bar public access to evacuation plans and building blueprints when there is a threat to public safety, keep the whereabouts of elected officials secret and let courts decide whether the release of government information poses a threat to public safety.
In Indiana, the Legislature decided not to override Gov. Frank O’Bannon’s veto on House Bill 1083, a bill which would have exempted all Indiana legislators from the state’s open records laws.
Republican legislative leaders outlined a proposal that would require staffers and journalists to use electronic access cards to have access to the building during business hours. To get a card, a person would have to undergo a background check. Those without cards would have to pass through metal detectors during business hours and would not have access to the building after hours.
Gov. Paul Patton’s administration considered giving public agencies the power to withhold certain kinds of information on the grounds of security. The issue was later dropped. The concern was whether some kinds of information — security of power plants, for example, or vulnerabilities of state government computer systems — should be restricted.
Gov. Parris Glendening introduced bills in the House and Senate to restrict public access, including one that would allow a custodian to deny disclosure of anything that would endanger public security.
In Massachusetts, a state lawmaker proposed legislation restricting public access to potentially sensitive documents, such as blueprints for the state’s bridges, tunnels and airports. These documents are open under current state law because they are subject to state contracts.
Agencies have begun restricting access to internal records that were available before Sept. 11. The Massachusetts Water Resources Authority no longer releases documents detailing its water and sewer infrastructure or emergency response plans. The Massachusetts Bay Transportation Area started conducting background checks of people requesting certain information, such as tunnel blueprints.
The Senate is considering SB 854, introduced to exempt from the state’s sunshine laws records that relate directly or indirectly to terrorism.
The House is considering HB1098 to exempt from the Missouri Sunshine Law meetings and records discussing domestic terrorism or developing response plans to it.
The Legislature expanded access to records. The overhaul would require government agencies to release records on demand, except where disclosure is not banned by existing law. The measure does not appear to be related to the events of Sept. 11.
A bill, S-6077, was introduced in the Senate to exempt from FOI laws “technical and structural records,” such as maps and infrastructure information.
The House approved a bill on Nov. 13 that allows the creation of a confidential, centralized registry of biological agents. The bill now goes to the Senate. If it is approved, laboratories and others in possession of certain viruses, toxins or bacteria would be required to tell the state Department of Health and Human Services what they have. The law also would require a report on the amount of the substances held and security measures to protect them. It would exempt the registry from the state’s open-records law. The list could be released to authorities if a biological agent is found to be a threat to the public.
State officials discussed the need for a joint homeland security task force overseeing all state security programs to guard against terrorism.
The state Senate Government Organization Committee proposed an amendment to create a state Homeland Security Commission, which would be exempt from state open meetings and FOI laws.
Bills were raised to amend the state FOI Act so that government agencies would have to charge a commercial rate for making photocopies of government documents. This would reduce the cost of copies since agencies now charge more than the commercial rate for them.
Legislation was introduced that would reduce the time a public body has to respond to requests to review records from 15 days to three days.
Legislation proposed in Tennessee would block access to certain public records and would allow ”any governing body” in state, city or county government to meet in private if public safety and security could be jeopardized by opening the meeting to the public.
Names, dates, and places of birth and death have been removed from the Texas Department of Health Web site due to privacy and identity fraud concerns. Since the information is public, the records can still be accessed in person. A 1999 law required the indices that contained birth and death information from 1964 to 1999 be posted on a Web site so long as it did not help adoptees identify their parents.
Attorney General John Cornyn suggested that state lawmakers study whether Texas needs a security exemption to its open government laws that would prohibit the release of information if it is considered harmful to national security or the defense of foreign relations.
Private energy producers and utility operators told government officials that they favor exemptions to the Texas Open Records Act to keep terrorists from learning the vulnerabilities of critical infrastructure. Members of the Governor’s Task Force on Homeland Security agreed to study the requests that would restrict descriptions of “worst-case” emergency scenarios at various facilities such as petroleum storage batteries, pipelines, refineries and water treatment plants.
County officials wanted to meet in private to discuss a response to terrorism but could not justify it under the state’s current FOI Act, so they proposed changes to the law. The proposal would allow government bodies to meet privately with staff and law enforcement officials to discuss responding to terrorist threats. It allows governments to withhold plans to prevent and respond to those threats. The plan also allows the withholding of engineering and architectural drawings of government buildings, planning and training manuals, surveillance techniques, personnel deployments and details about alarm and security systems. Under the current FOI Act, only the plans of certain government buildings, such as courts, jails, prisons and police stations, are exempt.
Gov. Gary Locke and Attorney General Christine Gregoire proposed antiterrorism legislation, which included an early draft of proposed changes to the state’s open records law. As proposed, the legislation would have exempted state and local governments from their legal obligation to disclose public documents and records when that disclosure “could advance a terrorist act.” Under the proposal, the records exempted from disclosure would not be subject to redaction without a court order.
Bills were introduced in mid-October in the House and Senate to create a Homeland Security Commission. The bills passed through the House and neared passage in the Senate but were stopped in committees. Both houses agreed that commission meetings could be held in secret and that even votes on bills and amendments would be exempt from open records and open meetings laws. But they could not agree on other language in the bills in the time for passage.
Compiled with the help of reports made by the California First Amendment Coalition, Florida First Amendment Foundation, the Freedom Forum, the Missouri Press Association, the New York Committee on Open Government and the Virginia Coalition for Open Government.