2002 FOI update: State and local developments
Note: Others contributed material as noted.
Ever since the Sept. 11 terrorist attacks, governors and state legislators, driven by worries that terrorists could use the information to plan attacks or escape capture, have clamped down on the public’s access to government documents and meetings. Open-government advocates warned that such a sweeping approach would block a key element of democratic society – public scrutiny of government.
Since Sept. 11, federal, state and local officials have either restricted public inspection of government records by executive order or proposed new laws to severely limit access. The National Conference of State Legislatures said at least 301 such proposals had been filed as of March 1, 2002. Florida closed public records about security plans and drug stockpiles back in December, with new proposals under debate or just being drafted there and in Idaho, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Tennessee, Virginia and Washington state.
Some proposals focus on limiting access to birth and death records to prevent terrorists from seeking fake identification papers. Others concentrate on architectural and engineering drawings of public buildings to shield their vulnerability from terrorists. Some would close the doors on talks about water supplies and sewer systems, while others would limit information about ongoing criminal investigations, evacuation plans and bio-terrorism response assessments.
“We’re just seeing the first wave. Everybody’s going to see the potential for closing down meetings and for closing access to a variety of records,” said Paul McMasters, ombudsman at the Freedom Forum. “The fact of the matter is, none of the people on those planes on Sept. 11 had filed (a government) request to get the information that they needed to do the kind of damage they did.”
There needs to be a balance between a knee-jerk rush to secrecy and an equally knee-jerk response to keep all records public, said Charles Davis, director of the Freedom of Information Center at the Missouri School of Journalism.
Here is a sampling of access developments at the state level:
Police records and lists compiled to determine whether a crime has been committed are exempt under the state’s Open Records Law, a unanimous state court held. Thanks to the efforts of several public-minded legislators, the California First Amendment Coalition and the California Newspaper Publishers Association, a constitutional amendment guaranteeing access to government has been introduced in the state Senate. Common Cause joined the California League of Women Voters, San Francisco Board of Supervisors, San Diego Democratic Central Committee, California Chicano News Media Association and Los Angeles Press Club as organizations expressing early support for the legislation.
An audit to test public-record access at state agencies revealed widespread noncompliance in a state that has had a full-time FOI Commission for more than a quarter of a century.
From a letter by Tim Franklin, editor of the Orlando Sentinel, about the Florida Society of Newspaper Editors’ “Sunshine Sunday” project: “There are ominous clouds forming around the state’s Sunshine laws. Nearly 100 bills have been introduced in the legislature to weaken, or completely gut, the laws that have made the taxpayer-supported work of Florida government officials’ public records. FSNE now believes it is important to take the issue directly to the state’s citizens, so that our readers understand the stakes for them in the debate under way in Tallahassee. We are, therefore, asking for you to participate in ‘Sunshine Sunday’ on March 10. We’re asking every newspaper in the state to write an editorial that day about the state’s rich history of open government, and the consequences to citizens of shutting off access to information.”
In May, a circuit court judge in Honolulu rejected a bid by the Hawaii chapter of the Society of Professional Journalists to declare that the University of Hawaii Board of Regents violated the sunshine law when setting the new president’s salary. Judge Virginia Lea Crandall ruled that the hiring process of a new president (Evan Dobelle) included setting the salary. Because of that, the board could meet behind closed doors on the matter. The judge also said one notice of the executive session for the selection of the president was sufficient. She also said later sessions were a continuation of the first properly noticed session.
The news media and the attorney general’s office reached one compromise earlier this month but were unable to resolve differences on another proposal being considered by the Legislature for restricting access to public records. A committee advanced both bills for full House consideration. One measure allows closure of records on “buildings, facilities, infrastructures and systems held by or in the custody of any public agency” when disclosure “would jeopardize the safety of persons or the public safety.”
Another bill, opposed by the news media, would close any public records if a state agency convinces a judge there is “clear and convincing evidence that the release of the document would constitute a threat to the public safety or to the health or safety of an individual.” Roy Eiguren, a Boise lawyer representing the Idaho Allied Daily Newspapers, said agency decisions about when to seek a disclosure exemption would be far too subjective, possibly dependent on some vague profile of the type of person requesting the information.
Idaho Attorney General Al Lance is pursuing a measure that would let judges close public records if state agencies believe they contain information that would jeopardize public safety. Another proposal would keep the plans for evacuating public officials during an emergency under wraps. The Idaho House passed legislation to let judges shut down government records that had been open to the public by law. A third of the House’s members opposed the bill, saying it was unnecessary and open to abuse.
Idaho’s public records law already has more than 60 exemptions allowing specific types of records to be kept secret from the public. Attorney General Lance proposed HB 459 as part of a package of anti-terrorism bills in the wake of the Sept. 11 terrorist attacks.
The U.S. Court of Appeals for the Seventh Circuit has ruled that Lake Land Community College in Mattoon must release the details of a 1999 settlement with a former administrator. The case stems from the 1997 firing of a former vice president at the college, who sued the college for wrongful termination. The case was later settled out of court, and all parties refused to release the details of the settlement through numerous FOI requests.
This ruling means that a settlement agreement recorded in court files is a public record, and subject to FOI. A bill sponsored by the local state representative to legislate out-of-court settlements was passed by the General Assembly. However, HB 3078 was vetoed by the governor. In his comments, the governor stated that the “release of settlement agreements may effectively deter governmental entities from settling any litigation. Furthermore, this legislation may lead to higher settlements if governmental entities are compelled to disclose the amount of settlements.”
The Illinois Supreme Court has expanded Illinois’ Reporter’s Privilege Act to include photographs taken by newspaper employees that never appear in the publication. This development involved the murder of a former Decatur Herald & Review staff person who disappeared on her way home from work. Her dismembered body was found two days later in a lake about 50 miles south of where her car was found. Her ex-husband and his parents have been charged. The trial is scheduled to begin April 8.
The past few months have been quite active in the Illinois General Assembly concerning open records and open meetings issues. With the events of Sept. 11, there is a new push by local government groups and some legislators to limit the amount of discussion and details concerning security, architectural and constructions plans for public buildings (and in some cases private buildings housing public bodies), businesses, or organizations who feel they could be a potential terrorist target and require more protection from their local law enforcement agencies. Two bills of this nature are currently making their way through the Illinois General Assembly, House Bill 3682 and House Bill 4411.
The Illinois Press Association worked with the sponsors of both bills and reached agreement to support HB 3682 after the objectionable language was removed. IPA is working with the sponsors of HB 4411 to develop agreeable language that all parties involved feel protects their concerns, while at the same time, not greatly adding unnecessary new language to the Illinois Open Meetings Act.
The continuation of the IPA’s attempt to pass legislation to strengthen the Open Meetings Act has been met with opposition. HB 3098, as introduced, would have required the verbatim record of all public bodies once they went into executive session. This only required that a tape recorder be used. This bill passed the democratically controlled House with overwhelming support, only to meet opposition in the Republican controlled Senate. The Chairman and members of the Senate Executive committee crafted a compromise proposal that required the head of the public body to “certify” that to the best of his or her knowledge and “understanding” they did not violate the Act. At the request and numerous contacts by municipal officials, the Governor vetoed this proposal, stating that “I cannot sign a law that would burden local government officials from interpreting such a complicated law.”
— Contributed by Kevin M. Smith, Illinois Press Association
City government here seems favorably disposed to incorporating an adequate value statement about the importance of open government within its pending comprehensive plan. The Metropolitan Development Commission hopefully will reinforce the appropriateness of a clearly articulated and affirmative statement within the “value statements” section of the plan document. The planning staff really dug in its heels to resist this because the planners just don’t seem to want enlightened participation by the neighborhoods and other citizen-based groups.
Another “encouraging” example is that, after five years since I submitted an initial written records request, the city finally responded in substance to my most recent request for file information concerning the scope and format of the upcoming comprehensive plan for Marion County. The previous two requests had been denied by the city lawyers.
Last year our remonstrators’ group (Citizens for a Better Broad Ripple) was forced to sue the city, in part because it had omitted an intra-agency review memorandum from a public rezoning file, and refused to grant us a rehearing. The judge subsequently granted the city’s motion to dismiss — it was a pro se action, and by that time, most of the petitioners had withdrawn from the case because the offending project was dead in the water.
— Contributed by Clarke Kahlo, Indianapolis
Voters can contact the county and have their Social Security numbers removed before the record release, but at least one longtime Democrat has started an e-mail campaign to alert the public to the release of records.
Last May, Gov. Frank O’Bannon vetoed the Legislature’s attempt to exempt itself from the sunshine law. A concerted lobbying effort by free-press advocates may have persuaded the governor to strike down the proposed legislation.
An informal group made up of about a dozen people and organizations, including the Iowa Newspaper Association and the Iowa Freedom of Information Council, is raising money to sue university foundations. The group wants Iowa’s state university foundations to open their records. The universities said the foundations have raised hundreds of millions of dollars from private donors and are neither created by nor overseen by the state’s Board of Regents.
When the state of Iowa debuts its court information online-access system, it plans to make most of its data available for free, but it will charge $25 a month for users seeking more detailed information. The charge will apply to various court-judgment data, as well as liens filed with the court and trial-court scheduling.
The Iowa attorney general’s office declared that “draft” copies of its advisories on public records law can be sealed from public view. The state FOI ombudsman — hired last summer at least partly in response to an audit of access-law compliance by Iowa newspapers — has been conducting a series of educational workshops for government officials, including law enforcement officials.
The Iowa Attorney General’s Office has begun a monthly “Sunshine Advisory” to educate the public and government officials on the nuts and bolts of the state open meetings and records laws — but has decided that the drafts of the advisories are not public records.
A flurry of access-related legislation has been introduced in the Iowa Legislature already this session. Proposed legislation would:
- Close nursing-home inspection records until the state inspection is complete (the records are now open throughout the process).
- Make 911 calls confidential.
- Create a critical asset-protection plan that would list state infrastructure, facilities and symbolic landmarks, and then provide that the information is kept secret.
A continuing issue is the inconsistent fees charged for public records by government entities throughout the state. News organizations in several cities have successfully challenged attempts by government bodies to charge unreasonable fees for records. Court records went online in early ’02.
Reporters and editors from 14 Kansas newspapers canvassed 33 sheriff’s departments and school district offices April 9, seeking copies of accident reports or the salary of the principal at each district’s largest high school. They also checked whether each office could provide public-records information brochures upon request, as required by law. See audit results.
Public agencies would have more reasons to withhold records and conduct secret meetings under a bill approved by a Senate committee. The bill’s lead sponsor said it was intended to keep “sensitive security information” about airports, hospitals, utilities and government installations from terrorists. If enacted, the legislation would allow government bodies, such as a city council, to discuss security issues in a closed session. Access to government records could be denied for the same reason. The Senate president said a city council and its police officials, if anticipating a crime, “should be able to sit down together and plan a response without the newspapers coming in and letting the bad guys know what’s going on.”
Four areas of activity the past year:
- Louisiana’s Legislature attempted to pass laws to restrict public access to e-mails of public officials, to allow legislative committees to meet between sessions via videoconferencing, and to exempt 911 phone records. The Legislature did pass laws requiring all public bodies to set aside time for public comment and one to consolidate all FOI exemptions in one law. The Public Affairs Research Council, active in lobbying for access, is conducting a study of the issue.
- New Orleans School Board lost a civil suit to a school board activist on grounds of delay in responding to her public records requests. The board is appealing the award, but the superintendent fired the board attorney who claims he told her to ignore or obstruct public records requests.
- The University of Louisiana at Monroe is involved in a suit to force a Web site provider to provide names behind site critical of the administration. The suit is in its initial stages in U.S. District Court.
- Louisiana Coalition for Open Government received a startup grant of $10,000. The coalition met on Flag Day and began a series of information seminars with the attorney general.
Like many states, Maine has legislation under consideration that would limit public access to some records for security reasons. But the legislation that has been introduced is far narrower in scope than first suggested by the attorney general’s office. Instead of broad language that would have covered such things as blueprints of public buildings, the proposal borrows from existing law that allows law enforcement agencies to keep security plans secret “that are not generally known” by the public.
The Maine Supreme Court ruled last spring that Maine’s FOI laws generally apply to the Penobscot and Passamaquoddy Indian Nations. The tribes appealed the decision to the United States Supreme Court, which declined to hear the appeal in November.
— Contributed by Mal Leary, Maine Freedom of Information
Gov. Parris N. Glendening submitted legislation that would allow a government official to deny access to records relating to public security if the official “determines that inspection of the information would constitute a risk to the public or to public safety.” Reversing a proposal that would have restricted access to court files, a judicial advisory panel drafted a plan to keep the records open to the public — while urging officials to plan for a future when more records are available by computer from remote locations.
The state attorney general declared that the state open-records law requires the full disclosure of information in voter records, other than names and addresses made confidential by law.
Violators of the Open Meetings Law could face fines if a judge determines penalties were justified under a measure passed by the state Senate. Mississippi is one of only eight states with no provision to enforce its open-meetings law, according to the Mississippi Center for Freedom of Information at the University of Mississippi.
People now can sue and win, but those who have violated the open meetings law cannot be fined. The bill would allow a judge to determine what attorneys’ fees or expenses would be awarded, if any.
The bill’s author said: “The judge has the discretion to decide if what’s going on … was just a slip-up where nobody really meant to do anything wrong and no great harm was done or whether this is a circumstance where there is a public body that just ain’t going to do right and needs to be told to do right.”
When it comes to the public’s right to know, a statewide survey suggests a number of sheriffs’ departments are either ignorant of the law or have chosen to ignore it.
Testifying for the first time since he was hired last fall, homeland security adviser Tim Daniel said he supported a bill adding a new exemption to Missouri’s open-records law to keep terrorists from learning about the security plans of public buildings and facilities.
The bill would exempt from public view security plans for buildings owned or leased by the government. It also would close meetings to discuss security plans, the cost of such measures and the building schematics.
Fears of terrorist attacks from abroad and domestic violence at home have generated legislation to close municipal utility and hospital records, as well as some home addresses that are included in voter-registration rolls.
A coalition of media organizations successfully negotiated for investigative records into a drunk-driving accident that killed House Majority Leader Paul Sliter (R-Somers) and led to a guilty plea to negligent homicide by Shane Hedges, the chief policy adviser to Gov. Judy Martz.
The records supported the prosecutor’s decision not to bring additional charges in the case, but also indicated that Martz administration officials came very close to obstructing investigators in an initial attempt to deflect blame from Hedges.
Another coalition of Montana media sued the state Public Service Commission to gain access to MPC’s so-called “energy portfolio” of suppliers and prices of electricity for Montana consumers for 2002. In February 2002, Montana Power voluntarily released large volumes of information on their energy contracts.
The Montana Standard newspaper of Butte continued a court fight to see records and police videotape of a Beaverhead County commissioner’s arrest for DUI in February 2001.
In November 2001, District Judge Kenneth Neill ordered that pre-trial proceedings remain open in the sexual-molestation case against a Great Falls man alleged to have butchered a boy’s body and fed portions to unsuspecting neighbors.
The Montana Department of Livestock denied records pertaining to the hazing of Yellowstone Park bison. The department said the fact that the two environmental groups had filed a federal lawsuit against the agency created a different public records environment. As a result, the agency is requiring the groups to seek records through the legal “discovery” process.
Bills are pending in the Legislature to react to the events of Sept. 11. One bill, on what the public is entitled to know about security preparations and problems, was overbroad initially, but amended to a very tight focus that does not appear troubling at this time.
On the public-records front, the state supreme court appears to have taken a turn away from its historically strong support for open records. In a case brought by The Keene Sentinel, the court threw out its standard that no court files can be sealed without a strong reason, which must be outlined in the court file itself, in favor of a more generic explanation in the public portion of the file to allow fact-based challenges of the decision to seal.
In a case involving a search warrant, the court ruled that no information about the search, the justification for the search, or the results of the search need be disclosed to the public — although all are court records, rather than police investigative records — if police and prosecutors simply say the investigation of that case is continuing. Another case involved access to computerized public information, as opposed to computerized public records.
The state right-to-know law has not been updated since 1986, and the advent of the Internet, relational databases and similar technology has changed the ground on which computerized information sits. The law now refers to public records stored on computers; it makes no reference to computerized information, and says that, if a public record does not exist, the public agency is not required to create one to satisfy the right-to-know law.
Access advocates saw an opportunity to update things, using a case brought by a legal-aid attorney. A friend-of-the-court brief was filed by the Sentinel, with support from virtually every daily newspaper in New Hampshire, plus The Boston Globe, the Eagle-Tribune of Lawrence, Mass., New Hampshire Press Association, Associated Press and the Reporters Committee for Freedom of the Press. However, the Supreme Court did not take the opportunity to set a firm standard on access to computerized information, and instead remanded the case to a Superior Court for a fuller exploration of the issues.
The first overhaul in 38 years of New Jersey’s statute governing public access to government records was approved Jan. 8, after more than two years of lobbying by a broad coalition of press and civic groups. Acting Gov. Donald DiFrancesco signed the measure, which he described as a major improvement but still imperfect, in his last half-hour in office.
The new law stipulates that all government files and papers are to be considered public records unless a state or federal law, executive order or court rule seals them. Most must be provided within seven business days. It allows penalties up to $5,000 against local officials who refuse to comply in a reasonable manner and sets up a five-person “Government Records Council” to educate the public and officials about the law, offer free mediation of disputes and write decisions on specific cases.
The law maintains access to courts and specifically retains all common law rights to access. The New Jersey Press Association, which had long supported the legislation, withdrew its backing just before the bill was passed unanimously by the legislature. The association felt some last-minute provisions exempting some legislative documents from the law was too high a price to pay for the bill. However, the Society of Professional Journalists and other members of the New Jersey Foundation for Open Government, a year-old coalition of civic and journalistic groups, including Common Cause, the ACLU and the League of Women Voters, maintained their strong support.
The New Mexico Foundation for Open Government won district court lawsuits in Rio Rancho, Santa Fe and Albuquerque establishing that court settlements involving public funds and requested under the Inspection of Public Records Act are considered public record.
It also conducted a records audit with Associated Press and New Mexico Press Association that showed public records were denied about one-third of the time, police agencies being the worst. In one instance (Eddy County Sheriff’s Office) an auditor was taken into an interrogation room to find out why he wanted the record.
The foundation also obtained passage of a bill to require public agencies to post conspicuously the right of the public to obtain public record and the responsibility of the agency to provide it.
The public is entitled to view records from Rudolph Giuliani’s administration without the former mayor’s having a say in the process. Robert Freeman, director of the state’s Committee on Open Government, ruled that a controversial city agreement governing Giuliani’s records contains sections that are “inconsistent with the Freedom of Information Law and the interpretation of that statute.”
The Associated Press had asked Freeman to review the agreement and issue an advisory opinion. Under terms of the agreement signed Dec. 24 — just days before Giuliani left office — records related to his administration were handed over to the Rudolph W. Giuliani Center for Urban Affairs, a new organization run by colleagues of the ex-mayor.
Also, a decision by the U.S. Court of Appeals held that records created by a unit of local government (county tax maps) may be copyrighted, and that the county can sue a commercial entity for copyright infringement. Yet when records are disclosed under FOIL, they belong to the recipient, who may do with them as he or she sees fit and without restriction. A key element of copyright protection relates to the notion of creativity. If a government agency creates records because it is required to do so by law, or as part of its official duties, creativity should not be an issue. As Bob Freeman noted, the more freely and inexpensively government records are made available, the greater the benefit to the taxpayer.
Trustees of the village of Asharokan passed a zip-your-lips law imposing a $1,000 fine on officials who disclose details of closed-door executive sessions. The Pataki administration quietly ordered state agencies to restrict information available on the Internet and limit its release through New York’s Freedom of Information Law to prevent terrorists from using the material, which includes maps of electrical grids and reservoirs as well as building floor plans.
The new policy, laid out in a confidential memorandum to agency heads from the state’s director of public security is one of the most far-reaching and restrictive in the nation, according to research librarians and advocates for open government.
State legislators gave a little and took away a lot during the previous year.
The bright spot was legislation that ensures the right of the press and the public to protest the closing of trial proceedings and documents in civil cases. The new law overturned a North Carolina Supreme Court decision in 1999 that severely restricted that right.
During the same session, however, state legislators decided to give public hospitals the right to keep private any contract that might involve “competitive” secrets. It is up to the hospital to decide what the meaning of competitive is — even in matters where public dollars and resources are spent.
Also approved was legislation giving local school boards the right to keep secret all discussions involving a school district’s response to violence, such as evacuation plans and the handling of a Columbine-style disaster. The North Carolina Press Association protested in the face of “overwhelming support” for the measure, said John Bussian, a media lawyer and NCPA lobbyist.
Sept. 11 had its impact on the state as well. Legislators approved a measure giving public officials the right to keep secret information about local water systems that could be used in any kind of outside threat.
Attorney General Wayne Stenehjem has issued a number of recent open-meetings and open-records opinions that support open government, including one that concerned a public meeting “at the North End of Myrtle Street in Grace City, N.D.”
North Dakota has a unique statute (Section 44-04-21.1, North Dakota Century Code) that allows the public to request attorney general opinions on alleged freedom of information violations.
Recent opinions have held that public agencies can only charge actual costs (such as 3 or 4 cents per page) for copies of public records, and not a 25-cent flat fee per page; that a reasonable time to produce public records is usually measured in hours or one or two days, but not weeks and months; that meetings of a joint enterprise between various public entities such as cities and counties are public meetings; and that a city council meeting to discuss the buyout of a police officer’s contract had to be an open meeting.
In the Grace City case, the tiny town (population 108) had failed to name an official newspaper to publish its legal notices. So, the attorney general said it had to hold a public meeting to do so. It had to hold this meeting quickly, and since no meeting rooms were available, it posted a notice around town that the city council would meet at the north end of Myrtle Street to name an official newspaper. The attorney general said the meeting notice and location were sufficient public notice.
— Contributed by Jack McDonald, counsel, North Dakota Newspaper Association; North Dakota FOI Chair
The House is considering a new open-records law, HB 2100. The Pennsylvania Press Association is supporting this legislation with the understanding that this is not the final version. The sponsor, Rep. Maher, plans on introducing additional amendments in future legislative sessions.
Government agencies and public bodies would have 10 days to respond to requests for records under the state’s Freedom of Information Act under a bill that cleared a House Judiciary subcommittee. Current law allows up to 15 days to acknowledge the request and say whether it will be honored.
Legislation was introduced to make police mug shots available to the public. (Some states, such as Louisiana and Rhode Island, forbid the release of mug shots.) It passed the state Senate easily but was killed in a House committee after the governor sent his press secretary to testify against it.
The two biggest problems in Tennessee’s Legislature right now are the half dozen or so records-law amendments for “homeland security” and one sunshine-law amendment. That amendment would give all “governing bodies” — state and local — an exemption from the 1974 open-meetings law if they needed to meet in executive session to deal with matters of “public safety and health” and if meeting in public might jeopardize those efforts.
Although the legislative sponsor abandoned his bill to promulgate this exemption, and the governor says he doesn’t want to be the one responsible for the first legislated exemption in the law’s 28-year history, the state’s county executives are expected to push it at some point.
Other records exemptions: utilities, who want to close anything that might disclose weaknesses or vulnerabilities of their systems; local governments, to protect their anti-terrorism plans. (Law enforcement disaster plans were exempted the year after Columbine shootings.)
Another major problem is brewing in federal court in Chattanooga where a police union is claiming that the Tennessee public records law is unconstitutional because it does not comport with the Sixth Circuit Court of Appeals case (Kallstrom v. City of Columbus, Ohio). That decision gave Columbus police officers a 14th Amendment right of privacy for their personnel files.
Access advocates are trying to find some help for a Chattanooga TV station that was denied mug shots of six city cops under investigation in the death of a prisoner in their custody. If the station loses, a line of federal privacy cases will be introduced to state press laws.
Long-suffering journalist Vanessa Leggett was freed after spending more than five months in federal detention for refusing to betray sources to whom she had promised confidentiality. Leggett won her freedom after her lawyer was granted a motion he filed for her immediate release. He argued that Leggett could not legally be detained after a grand jury was set to conclude its investigation.
A district judge ordered the Dallas school district to pay $219,052 in attorneys fees to residents who won a lawsuit that found school board members violated the Texas Open Meetings Act. The judge ruled that the board violated the act by meeting behind closed doors to discuss redistricting and that the meeting had not been properly posted.
On Jan. 10, the Texas Supreme Court declined to hear the city of San Antonio’s appeal of a lower court’s ruling that found it must make police use-of-force records public.
City officials in Arlington filed a lawsuit challenging a recent attorney general’s opinion that said city-related e-mails to council members’ private computers should be public. The city claimed that it did not own the computer to which the e-mails were sent and that releasing the messages may violate privacy concerns.
The stacks of the Texas State Library and Archives groan with boxes of carefully preserved papers dating back to James Pinckney Henderson, the first governor, who served from 1846 to 1847. But anyone trawling for insights into the most recent former governor, George W. Bush, or his ties to Enron in the years he ran Texas, would have to travel 118 miles east to College Station. Even then, it might be months, maybe years, before many of the records are available. The papers, sitting in 1,800 boxes, are at the center of a tug-of-war between Mr. Bush and the director of the Texas state archives.
By placing the records at his father’s presidential library at Texas A&M University, Mr. Bush is putting them in the hands of a federal institution that is not ordinarily bound by the state’s tough Public Information Act. That law, among other things, assures anyone who requests state records a reply within 10 days. Officials at the Bush library say the best they can do, given staffing and other priorities, is 90 days, and some requests have taken longer.
Despite a serious budget crunch, the legislature unanimously reauthorized the Freedom of Information Advisory Council. The full-time office was set up as an experiment two years ago to encourage FOI Act compliance, providing continuous FOI training, informal and impartial FOI opinions, and year-round work on FOIA issues. Gov. Mark Warner signed the enabling legislation Feb. 27 (SB 208, HB 173).
In the General Assembly, eight new FOIA exemptions gained final or tentative approval; 10 others were likely to be broadened to permit added confidentiality. Three involve records or meetings dealing with specific anti-terrorist plans. A Code amendment also was approved to encourage public disclosure of anthrax-type dangers.
Still in dispute:
- An FOIA exemption sought by the speaker of the House to allow confidential reports of lawyers’ in-session court continuances (HB 733); the Senate is balking.
- Full disclosure of purchasers of political advertising (HB 558).
- A confidential database to track purchasers of OxyContin and similar drugs (SB 425).
- Broadband-access services by local governments (SB 245).
- Uniform health standards to trigger online posting of restaurant inspections (HB 425).
- A rule to block aggregating of public data by/for the Worker’s Compensation Board (SB 669).
- A far-reaching effort to privatize school construction and other projects with less public disclosure and less competitive bidding (SB 681).
Lt. Gov. Tim Kaine’s proposal for televised General Assembly floor sessions was killed by House Rules, 10-7. Speaker Wilkins led the opposition. But in the state Senate, Sen. Bo Trumbo led efforts to write rules that will get Senate sessions televised and/or Webcast within the next year or so (SR13).
Attorney General Kilgore’s proposals for quick online posting of draft and official minutes gained unanimous approval in House and Senate; conferee action is posted (HB 587, SB 416).
- Several measures to try to stop disclosure of Social Security numbers (SB 153, HB 564, HB 1209, HB 652).
- Clear-cut language aimed at the Virginia Supreme Court to clarify that commonwealth’s attorneys and all other constitutional offices are subject to FOIA rules (HB 729).
- An FOIA amendment requiring immediate and full disclosure of non-exempt sections of a consultant’s report prior to any official action or whenever it’s been disclosed or distributed, whichever occurs first (HB 235).
- Two more years to experiment with relaxed FOIA rules for teleconferencing by University of Virginia Board of Visitors and videoconferencing by other designated state entities (SB 38).
- Opt-out confidentiality of e-mail addresses when citizens sign up for e-mail notifications of city news and official public proceedings (SB 308). Thus, if a citizen gives his or her e-mail address to city hall or other public body, the address will be a public record unless the person requests otherwise.
- A one-year study to establish guidelines for access to online court information (HJ 89).
- A bill to end the confusion about public access to complaints against doctors. This won unanimous backing from the Legislature. Unfounded complaints will be confidential, but the Board of Medicine’s rules dictate that its Internet site will signal whenever a disciplinary action is to begin or has occurred (SB 59). (See more information.)
- Del. Bob Purkey’s scary HB 900 was sent to the FOI Advisory Council for a year of study. This bill would allow the government to haul record requesters into court on a slippery charge of “harassment” and then slap them with government attorney costs. The measure grew out of a mishandled, long-running dispute between an animal-rights group and backers of a proposed Virginia Beach dolphin tank.
The state House moved to strengthen existing laws against terrorism and create new ones, approving a package of anti-terrorism bills. Lawmakers voted to make terrorism a felony, increase law enforcement’s power to electronically survey communications, and establish a task force to address money-laundering practices.
A statewide coalition, called the Washington Coalition for Open Government, had its first daylong organizational meeting Feb. 1. The group met with Ralph Langer, who represented the National Freedom of Information Coalition, and drew up its organizational plans. Members of the group took on a variety of assignments to report back on at its March meeting. The group will include representatives from print and broadcast news, the legal community, the state librarian, environment, labor, and rights activists concerned with access issues and open government, said Kristopher Passey, WCOG developmental chair and convener of the first meeting.
“We have identified a three-pronged mission consisting of education, advocacy and rights enforcement that is designed to bring all of the voices to the table concerned with protecting and, where necessary, expanding access to and openness of state and local governments,” Passey said.
A statewide audit of local governments’ compliance with public-records law found widespread violations last year, and it is possible that the aftershocks of the Sept. 11 terrorist attacks will lessen access to public records even more. “If the best we can do is hold the line and not allow any further degradation of the public-records law, we’ll be doing well,” said Diana Kramer, executive director of the Washington Newspaper Publishers Association.
The root of the problems exposed by the audit, one lawmaker said, lies not in the law itself but in local officials’ ignorance. Under the current law, there is no state agency that enforces the public-records law. Those denied access to records must go to court to get them.
For the audit, reporters and others fanned out across the state, posing as ordinary citizens seeking public information on sex offenders, crime reports, home values, school-superintendent contracts and restaurant inspections in all 39 Washington counties. In dozens of cases, agencies refused to give out information to which any member of the public was entitled.
In response to a citizen posting on the Internet police names, home addresses, home phone numbers, birth date and Social Security numbers, the Legislature in spring 2002 was considering a law (SB 6700) requiring anyone who posts such information to include the same information about themselves and to be prepared to be sued if police officers are hurt because of the information made public. The issue also is being considered in court on appeal from a 1998 court case, Sheehan v. King County.
An exemption was added to the state Public Records Act in spring 2001 making private the home addresses and phone numbers of public employees and volunteers, which had never been given out anyway. Other exemptions added to the law include making secret personally identifying information (except for name and address) of people who have hunting or fishing licenses, and the fishing logs for commercial fishing boats to prevent disclosure of their prime fishing holes.
Even before Sept. 11, the Washington state Legislature in the spring of 2001 approved an exemption to the state Public Records Act making secret any records containing specific and unique vulnerability assessments or specific and unique response plans, either of which is intended to prevent or mitigate criminal terrorist acts, if disclosure would have a substantial likelihood of threatening public safety.
A state Supreme Court decision, Guillen v. Pierce County, No. 68535-5, 2001 WL 1045031 (Wash. Sept. 13, 2001), and a succeeding opinion by the state attorney general, affirmed that traffic-accident reports filled out by police officers are public. However, still unresolved is whether some information in the reports, such as names and addresses, may be redacted. See more information.
A statewide audit by Associated Press newspapers showed widespread misunderstanding of FOI laws. Nearly 50% of the state’s sheriffs ignored written requests for information. Project representatives seeking documents didn’t get them in 40% of the cases, with about one-fourth of the requests rejected, the others ignored. One county superintendent, who did comply, complained about the attitude of the project representative seeking the information.
A series of state Supreme Court decisions has produced such confusion about the release of documents that newspapers and broadcasters have reported difficulties obtaining everything from police reports to death certificates. Documents like police reports, employee termination records, housing inspection reports and death certificates — often easily obtainable several years ago — can now be withheld while people named in the records are notified and given a chance to intervene.
The change was brought about by Woznicki v. Erickson in 1996, when the state Supreme Court ruled that people have a right to be notified before certain documents naming them are released. But the court didn’t specify which documents were involved.
Under Wisconsin’s open-records law, records keepers must weigh whether the public’s interest in releasing documents outweighs any concerns about privacy or reputation. Now record keepers also must decide if people mentioned in the documents should be notified.
The Legislature is working through a bill that would officially define electronic records as public and set forth requirements for their release as well as the procedures for doing so. The law essentially would expand the present open-records law to cover electronic records with a very few new exemptions.
A district court ruled that the Laramie County sheriff can release the names of those who are arrested or jailed. The sheriff and the county attorney chose not to appeal.
On Feb. 8, 2002, the Wyoming Supreme Court ruled in favor of the Wyoming Tribune-Eagle in a two-year legal battle over the release the a report on suicides and attempted suicides at the Laramie County jail. The ruling is important because it sets legal precedent for redaction. It also obliterates the argument by officials that they are the best judges of what should or should not be released: The court ruled that the document itself needs to be reviewed by the courts to make that determination.
Frosty Landon is executive director of the Virginia Coalition for Open Government.