2004 FOI update: The states

Tuesday, March 16, 2004

Across the nation this past year, advocates for open government have worked to hold back efforts to restrict access in the name of security and privacy. Those battles have played out from statehouses to courthouses. The following report summarizes the results in 20 states.

Public-records audits were held in at least six states, as volunteers fanned out to request public information. The participants and scope of these projects ranged from a group of Alabama’s news organizations making 662 public-records requests at all levels of the state government to New York City Council members looking at 83 of their own government agencies.

In the statehouses, Kansas is gearing up for a major review of every single exemption to the state’s Freedom of Information law, while the Missouri Legislature overrode a governor’s veto on a bill that would prohibit release of the names of concealed weapons permit holders. California also has a new law fresh out of the governor’s office that would allow public bodies to hold secret security-related meetings.

In the courthouses, the Maryland Court of Appeals recommended that courts start making entire case files available electronically. The Texas judiciary agreed to allow attorneys to file civil court actions through the state’s Web site. But perhaps the most interesting ruling came when a Georgia court ruled that police records at private universities must be public.

A public-records survey was conducted by the Alabama Center for Open Government and news organizations, including the National Freedom of Information Coalition and the University of Alabama chapter of the Society of Professional Journalists.

Volunteers, including students and journalists, made 662 public records requests in 67 counties, 189 cities and towns, 91 school districts, and 12 colleges and universities. Surveyors asked for a range of documents, including minutes from city-council and county-commission meetings, incident reports, jail logs, performance evaluations of school superintendents, and daily campus crime logs.

Law enforcement organizations were found to be the least compliant; 52% of sheriff’s departments and 37% of police departments rejected public-records requests, despite a 1999 opinion from the Alabama attorney general’s office requiring the front page of an incident report to be made public. Only 87% of campus police organizations made university crime logs public, even though federal law requires it.

While some police and sheriff’s departments cited privacy concerns, Edward Mullins, the center’s co-chairman, said he believed they lacked proper training in how to handle requests for public records. He pointed out that the Alabama Association of County Commissions runs a training program for its members — county commissions were the most compliant in the survey providing minutes 92% of the time — but no such training program exists for law enforcement agencies.

Surveyors also encountered problems getting documents from school districts, reporting that only 30% of those surveyed provided the superintendent performance evaluations. Only 76% of the school districts kept such evaluations on file.

Gov. Arnold Schwarzenegger signed a bill on Jan. 21, 2004, that clarified which types of terrorist-related information were exempt from public disclosure and also allowed government organizations to hold secret meetings to consider potential terrorist activity.

A.B. 1209, proposed by Assemblyman George Nakano, D-Torrance, deleted an ambiguous provision exempting “documents that assess a public agency’s vulnerability to terrorist attack,” according to a Senate Committee on Governmental Organization report. The bill exempted the following from public disclosure: vulnerability assessments that identify potential targets of terrorist attacks; plans detailing how public agencies will “mitigate the potential of terrorist or other criminal attacks”; and any information related to facility security that “could be used to aid a potential terrorist or other criminal attack.”

But what drew the most concern from the California First Amendment Coalition, the California Newspaper Publishers Association and other FOI advocates was a committee amendment giving state government organizations the ability to “meet in closed session to discuss criminal or terrorist activities that pose a threat to the public as long as the issues are under the jurisdiction of the state body.”

The Bagley-Keene Open Meeting Act was passed unanimously in the State Assembly and with only one dissenting vote in the Senate. The emergency bill went into effect immediately.

“Since it contains secrecy provisions having nothing to do with terrorism-related reports and plans, it leaves indeterminate both the scope of what can be withheld and the duration for withholding it in the public interest,” CFAC said in its newsletter.

Despite this setback, CFAC is looking forward to the upcoming legislative session. In particular, Sen. Gloria Romero, D-Los Angeles, is offering a bill that would give journalists special access to prisoners instead of requiring them to arrange interviews on the same limited basis as a prisoner’s family and friends.

Even more important is a sunshine amendment to the state’s constitution that passed unanimously in the California Assembly and Senate in January. This amendment will now be on the November ballot, where it only needs a majority of public support to go into effect.

“Come November,” said CFAC president Dick Rogers, “voters will have a chance to say clearly that they want government to operate in the sunshine. It has been too easy for meetings to be held in secret and for records to be filed away from public view. Now Californians have a chance to reverse the pattern.”

After a two-and-a-half hour debate in January 2004, the Delaware Senate tabled a bill with an amendment allowing the names of law enforcement officers to be publicly released in a database of criminal justice information.

“Nobody wants to put police officers in harm’s way,” Sen. Colin Bonini, R-Dover South, told the Wilmington News Journal. “But the bottom line is, there’s important information there. How do we get to it if we pass this law?”

The original bill, H.B. 319, would restrict the dissemination of police, parole, and probation officer names and their identification numbers to law enforcement agencies. Further, it would remove this information from requirements of the state Freedom of Information Act.

H.B. 319 came about after Delaware’s Supreme Court ordered that some information in the criminal-justice database be released to the public. Six years ago, The News Journal demanded that the Delaware Justice Information System provide the officer names and other information from a decade of criminal cases. The newspaper sought the information to analyze Delaware’s justice system.

House Speaker Terry Spence, R-Stratford, who sponsored the bill, and several law enforcement officials including Attorney General M. Jane Brady, feared the ruling would open the door to people with grudges against law enforcement officers. State Prosecutor Steven Wood told The News Journal, “This applies to scribes, it applies to scholars, and it also applies to scoundrels.”

Senate Majority Leader Harris B. McDowell III, D-Wilmington North, sponsored the amendment, which would allow the names and identification numbers of the officers to be released if they were already part of the public record in court filings or judicial proceedings. These records do not identify undercover officers participating in the case. “We have protected the officers thoroughly,” he told The News Journal.

McDowell’s amendment passed by a vote of 14-7 and it was tabled for a future Senate vote on the entire bill. But opposition remains to the amendment.

Former state trooper and a co-sponsor of the original bill, Sen. James T. Vaughn, D-Clayton, hinted that he might seek to have the amendment removed, but did not specify when that would be. Even without the amendment, the bill must return for a full vote on the House Floor due to an earlier technical amendment.

Florida voters overwhelmingly approved an amendment to the state’s constitution that will make it more difficult for legislators to pass new exemptions to the state’s public-records and sunshine laws. The new amendment requires a two-thirds vote in the Legislature in order to pass new exemptions, rather than a simple majority.

In other FOI news, suspended Escambia County Commissioner W.D. Childers was sentenced to the maximum of 60 days in jail for violating the Florida Sunshine Law. After serving all but two weeks of his sentence, he was released on an appeals bond. Childers was once president of the state Senate and for a long time one of the most powerful politicians in county history.

The Florida Supreme Court dealt access three significant blows this past year.

First, the court ruled that personal e-mails contained in city computers fall outside the definition of public records because they are not connected to official city business. A local newspaper unsuccessfully challenged the city’s policy of allowing employees to determine which e-mails were public and which were private.

In a separate case, the court refused to hear a case challenging a decision that held that government employees can determine which telephone records are private. The lower court had ruled that personal calls fall outside the current definition of public records.

Finally, the court refused to hear the appeal of campus newspaper Florida Independent Alligator in its challenge of the constitutionality of the Dale Earnhardt Family Protection Act, removing autopsy photographs from the state’s public records.

For the first time in 30 years, a committee of the Florida Senate met in a closed-door session authorized under a new Sunshine Law exemption, which allows meetings to be closed where issues involve “security, espionage, sabotage, attack and other acts of terrorism.”

A statewide open-records audit, released in February, found that government agencies failed to comply with the state’s open-records law 43% of the time. The audit was organized by the Sarasota Herald-Tribune, the Florida First Amendment Foundation and the Florida Press Association, with reporters from 30 state newspapers serving as surveyors.

The audit involved 234 local agencies in 62 counties.

In January 2004, Superior Court Judge, L.A. McConnell Jr. ordered Mercer University to comply with the state’s Open Records Act and make the private university’s police records public. Mercer employs sworn police officers who are allowed to carry firearms, must be certified with the Georgia Peace Officer Standards and Training Council and have the power to arrest people.

An Atlanta law firm, Barrett and Farahany, filed suit against Mercer after learning that the campus police officers have the same authority as state or local police officers. The law firm was handling the case of a former Mercer student who had been raped on campus. Before the ruling, Mercer refused to make public incident reports relating to sexual assault cases on campus, claiming that the Open Records Act did not apply to private universities.

“The public has a fundamental right of access to the police reports and investigations to ascertain whether the public’s business is being conducted in accordance with state and federal law,” Barrett and Farahany wrote in a brief before the court.

McConnell ruled that Mercer’s sworn police officers serve a public function and so must comply with the public laws and wrote in his ruling, “The court finds that the public’s interest in safety and the transparency of public affairs outweighs Mercer’s interest in protecting the privacy of the university and its students.”

He did, however, differentiate between sworn police officers and private security officers, who do not have the same powers or qualifications Mercer’s officers have.

In August 2003, Gov. Rod Blagojevich signed S.B. 690, which allows a circuit court judge to award legal fees to plaintiffs in FOIA cases when the court finds that a public body withheld necessary information illegally.

Before that, according to Illinois Press Association Executive Director David L. Bennett, plaintiffs had to “prove that the record was highly significant to the general public and that the public body lacked a reasonable basis for the denial. The effect was that people stopped suing because going to court was not a viable option. You had to know you had an iron-clad case.”

Sen. John Cullerton, D-Chicago, and Rep. Barbara Flynn Currie, D-Chicago, sponsored S.B. 690, which was passed unanimously in both the House and Senate.

With Sen. Barack Obama, D-Chicago, Currie also sponsored S.B. 1586, known as the Verbatim Record Bill. The Illinois Press Association had been pushing the proposal for 10 years. This law requires a public body to keep either a video or audio recording of any meeting that takes place behind closed doors. These recordings are available only during lawsuits brought to enforce the Illinois Open Meetings Act and are not available for public inspection or any other administrative proceeding.

Judges are the only people who can review the recordings; theyt can do so privately in their chambers. A judge can redact any information he or she feels is covered by attorney-client privilege. Public bodies can destroy the recordings after 18 months.

The Verbatim Record Bill passed the House 72-20 and the Senate 44-9.

Illinois is the first state to have such a law, which Bennett said would greatly benefit the public. “All public officials will have to watch what they do,” he said. “They are going to have to think about how they behave when they go behind closed doors.”

In June, Blagojevich signed into law a bill amending the Freedom of Information Act. Previously, “valuable formulae, computer geographic systems, designs, drawings and research data produced by any public body when disclosure could reasonably be expected to produce private gain or public loss” was exempt from the act, meaning that no one could have access to that information.

H.B. 539, also sponsored by Currie and Cullerton, changed the law to allow news organizations the right to obtain such information, when “the only purpose of the request is to access and disseminate information regarding the health, safety, welfare, or legal rights of the general public.”

H.B. 539 passed unanimously in the House and Senate.

The Kansas Legislature formed a special committee in November 2003 to undertake a massive examination of exemptions to the state’s Open Records Act. The act itself has 45 exemptions. Several other laws, however, exempt certain documents from the public view, for a total of 360 exemptions.

An audit in 2000 showing widespread non-compliance with the state’s Open Records Act prompted a legislative review and revised legislation that in effect set a 2005 expiration date on all the exemptions to the law.

“The new review will examine all of the exemptions and could prove to be a long and exhaustive process,” OMB Watch reported. “The media has publicized its intention to fight any changes that would inhibit public access to records. State lawmakers and academics have expressed concern that 9/11 will be used as an excuse to restrict important information that should be public.”

In May 2003, Gov. John Baldacci signed into law a bill requiring the administrator of any law enforcement agency to adopt a written policy on freedom-of-access procedures and designate someone to be trained on responding to such requests.

The law came after a November 2002 audit conducted by the Maine Freedom of Information Coalition found that one-third of the state’s law enforcement agencies did not comply with the state Freedom of Access Law. Auditors traveled to 310 law enforcement offices and asked to see daily incident reports or police logs.

The audit further reported that of the two-thirds of the agencies that did comply, “46.9% required auditors to produce identification, 32.7% required auditors to identify who they worked for and 40.8% required justification for access. In 6% of the visits, auditors were not permitted to view records because they were not members of the media, but ‘just’ the public.”

“There was clearly no uniform response to what should be an ordinary request for public information,” Judy Meyer, Maine Freedom of Information Coalition vice president, said of the audit. “To have training and a written policy would guarantee that someone in the department at least reads the law once a year.”

Meyer said she thought the new law was a victory in response to the 2002 audit. “They saw evidence of a problem. They were bothered by it. And they fixed it.”

Last June, Baldacci also signed a resolution to set up a committee to study compliance with Maine’s Freedom of Access Laws. This 12-member committee included appointees from media organizations, a member of the state’s House and Senate, the state attorney general and government organizations including the Maine School Management Association, the Maine Municipal Association and the Maine Chiefs of Police Association.

The committee filed a report containing various recommendations regarding Maine’s Freedom of Access Law, and the state’s Joint Committee on the Judiciary has them under consideration.

After four years of deliberation and study, the Maryland Court of Appeals approved a recommendation to make complete court case files available electronically beginning in February 2004.

The effort to create a new electronic-records policy began with an ad hoc committee appointed by then-Chief Judge Robert M. Bell in March 2000. At that time, only case docket sheets — which contain basic information about parties and the events of the case — were available electronically through a database maintained by the Judicial Information System. However, the actual case files — which contain all court filings such as motions, briefs, orders, depositions and rulings — were not available electronically, although they are public documents and are available to interested citizens who go to the courthouse to view them.

After considering a number of benefits that would be gained by making these records available electronically — ranging from promoting government accountability to “avoiding undue burden to the ongoing business of the judiciary” — the committee voted 16-2 that access to court records should be the same whether the record is in paper or electronic form.

Juvenile case records, as well as records that are sealed by court order because of privacy concerns or trade secrets, are the only exceptions to this policy, and users of the information will be warned that use of the records for identity theft, stalking or harassment is punishable by law.

The committee set up pilot programs dealing with electronic case files, and the recommendations were designed for other jurisdictions to follow.

In legislative action, a Senate bill, S.B. 87, introduced after a circuit court judge dismissed a lawsuit brought against the Howard County School Board, would reword the state Open Meetings Act to allow “any” person to sue a public body that violates the Open Meetings Act. S.B. 87 was passed 43-1 by the Senate; in the House, a similar measure has cleared the second floor reading without any significant amendments.

An Ellicot City attorney, Allen Dyer sued the board alleging it held a series of closed meetings in which it discussed providing a per diem to board members at out-of-town conferences and a $16,000 annuity for the past superintendent.

Howard County District Judge James Dudley dismissed the case because he interpreted the law’s definition of a person who is adversely affected by the body’s noncompliance to mean a person who suffered some form of property damage, according to the Baltimore Sun. The Maryland-Delaware-D.C. Press Association joined Dyer in appealing the ruling to the Maryland Court of Appeals.

In April, Gov. Ronnie Musgrave signed two key open-meetings bills into law.

H.B. 454 puts teeth in the state’s 28-year-old Open Meetings Law by allowing the courts to fine a government body $100 if it “has willfully and knowingly violated” the law. In addition to the fine, the court may require the defendants to pay legal fees and any other expenses the plaintiff incurred in bringing the suit. Mississippi’s open-records law already has a similar fine.

The other new law, H.B. 583, provides that government teleconferences or videoconferences will be made public. As long as it is not an emergency meeting, the public will be given 30 days notice about the meeting and a chance to attend at a physical location. The law also requires that the public body keep minutes and a recording of the teleconference on file for three years, regardless of whether it is an emergency meeting.

A November audit conducted by the Associated Press and other state news organizations found that only one-third of Mississippi’s 152 school districts complied with freedom-of-information requests. The auditors asked to see the superintendent’s name, salary and years of experience as well as the same information for the district’s highest paid teacher and each high school football coach.

Mississippi’s American Federation of Teachers President Maryann Graczyk told the Associated Press that the findings were unacceptable, and “the taxpaying citizens of any school district should have complete access to every bit of information about the school.”

The AP conducted the audit to compare teachers’ and coaches’ salaries. Similar audits were done in Texas and Georgia. But in Mississippi, districts did not provide enough information for the wire service to publish an article on the issue.

State officials maintain a system that they say accurately keeps track of a teacher’s base salary. But after three years, the system is having problems with non-teaching supplemental information — the extra money coaches make in addition to their teaching pay — because not every district reports its numbers.

Michael D’Aquilla, the state official who runs the system, told the AP, “It’s taking an effort to ensure what we have is accurate and correct.”

The biggest problem faced by state officials is that they have no means to force a local school district to comply with the law. The state’s superintendent of education, Henry Johnson, told the AP, “If there is no absolute statutory provision for us to intervene, there are some local school officials who will say, ‘thanks for the advice, but I gotta do it my way.’”

After overriding Gov. Bob Holden’s veto last July, the Missouri Legislature passed a law permitting concealed-weapons licenses and exempting the names of license holders from the state’s open-records law.

The law, which went into effect Oct. 11, makes it a misdemeanor for sheriffs to disclose this information. The new law has drawn a wide range reaction from both sides of the gun-control issue.

“It’s simple,” Lois Tolley, a gun-control advocate with the Brady Campaign, told the Associated Press. “The proponents of concealed carry do not want to have news stories that a permit holder pulled a gun and shot someone.”

But NRA spokesperson Kelly Hobbs told the AP, “There is no need for the public to know who has a permit. Research has shown that the principal reason right-to-carry laws deter crime is that criminals do not know who is armed.”

State Rep. Larry Crawford, R-Centertown, who sponsored H.B. 359, told the AP he inserted the records-closure provision because he has “concerns that publicizing who has a license could lead to those people being targeted for theft of their guns.”

Similar laws exist in Colorado, Minnesota and New Mexico. Measures to close such records in Tennessee and Texas were defeated.

An audit conducted by the Columbia Mo. Daily Tribune found mixed results dealing with the availability and ease of obtaining electronic public records. On the whole, just 30% of the agencies questioned made the public information available electronically.

The audit revealed a major difference in the cost to obtain such records, compared to the paper records. Residential property records from the Boone County assessor’s office cost $15 for a CD-ROM, but those same records from Linn County are available only on paper at a cost of $5,370.

Boone County has 10 times the population of Linn County and a healthier tax base, County Assessor Tom Schauwecker told the Tribune. “We’re probably pricing it below what it costs, but it’s yours anyway,” he said.

Linn County Assessor David Long said such information is available electronically in Linn County, but that it is not set up to handle individual requests. For the same information provided by Boone County, Long said that he would have to print out a four- to five-page record for every one of the county’s 11,000 residential properties. “You’re talking about shutting down our system.”

Last April, the Montana Legislature abandoned a bill that would have allowed public bodies to conceal certain “sensitive” information from public view.

S.B. 142 was originally intended to protect public works from possible terrorist attacks, but members of the Senate feared that it would create an atmosphere of excessive secrecy. State Sen. Walt McNutt, R-Sidney, told OMB Watch that the bill would have made it too easy for public bodies to abuse their power outside public view.

A spokeswoman for the governor’s office told OMB Watch that one of the factors behind dropping the bill was that Montana media outlets had been making good choices in determining what types of information should be public. She said that the “government can work with the news media to ensure that information posing a threat is not disclosed.”

A public-records audit in November found that one-third of the sheriff’s departments denied requests for information. Sheriff’s departments in 11 of the state’s 56 counties provided information on the first request.

People from 35 state media organizations fanned out over the state to conduct the audit. They were looking for incident reports, which record every call made to the department in a 24-hour period.

While getting the information was easy in some localities — in Gallatin County, a special table is set up to allow the public to review the incident reports — other jurisdictions made it difficult to get the information.

“I’m not giving out that information without a court order,” Daniels County Sheriff Jim Kramer told the Billings Gazette. “Since 9/11, we just don’t release that information.”

Cost was also a part of the problem, as the Helena Independent Record discovered. The Lewis and Clark County Sheriff’s Office charges $5 per page for the incident reports, totaling up to $625 for the 125 to 150 incidents each day.

New Jersey
New Jersey’s new Open Records Council scored its first victory in March 2003 when a three-judge appeals court upheld the council’s decision to release a taped 911 call that was used in a murder investigation. The council, which is made up of unpaid citizens, can order government agencies to release certain records. Only Connecticut has a similar council.

Since its creation in July 2002, the council has ordered the release of minutes from planning board meetings, bills for legal and engineering work, and faculty research on why students fail their classes, according to the Star-Ledger. The council also forced the Paterson Police Department to refund a $150 fee it charged a citizen for a police log.

But its greatest challenge came when the East Brunswick Home News Tribune filed a complaint with the council demanding the South Brunswick Township release a 911 call made by a 19-year-old who was later charged with murdering his parents. William Lamb, the county prosecutor, refused to release the tape because he planned on using it as evidence in the upcoming trial. A judge refused to block the tape’s release, so Lamb brought the measure to the appeals court.

In a precedent-setting action, the council sent its own lawyer, Deputy Attorney General Barbara Conklin, to argue the case on appeal. Guy Baehr, with the Journalism Resources Institute at Rutgers University, told the Star-Ledger, “To me, this was the most important precedent. If you win in the Government Records Council, you have them on your side in the legal battle.”

In another development, a draft report from the New Jersey Privacy Study Commission is recommending that home address information be made exempt from the state’s Open Public Records Act.

In making this recommendation, the commission argued that records custodians cannot tell if a person making an information request has been convicted of a felony and that the information requested may not identify whether or not a person is a crime victim. This presents the possibility that criminals might gain access to information about their victims.

New York
An investigation conducted by two New York City Council members found that city offices are largely non-compliant with the state’s sunshine law.

The City Council Investigative Division sent a letter to the agencies asking to see a list of all employees at the agency, including their titles and most recent salaries. The letter also reminded the agencies that they had to respond to the request within five business days under the state’s Freedom of Information Law.

Twenty-one agencies failed to respond to the first request for information, and when a second request was sent out, 17 agencies failed to respond. Even New York City Mayor Michael Bloomberg’s office failed to reply after three separate requests. In all, only 37 of the 83 agencies fully responded according to investigators.

Council Member Eric Gioia, D-Queens, who coordinated the request along with Council Member David Yassky, D-Brooklyn, was shocked by the audit, writing in a statement, “These deeply troubling findings demonstrate a widespread contempt for the public’s right to know. I’ve always thought sunshine is the best disinfectant, and it seems like our City needs to get a tan.”

Auditors’ follow-up plans include a bill that would levy a maximum fine of $1,000 or six months in jail for government employees who conceal or destroy public records. Gioia also plans to introduce a bill that would require all agencies to undergo training on how to handle Freedom of Information Law requests.

But one type of information open-records advocates will not be able to request is “critical infrastructure” information.

Robert Freeman, executive director of the New York State Committee on Open Government, reports that new provisions of the FOI law require that information relating to homeland security submitted by a private entity to a public agency may be withheld from the public.

When a request for such information is made, the private entity that provided the information must be contacted, according to Freeman. At this point, a private company can explain why it feels the information should be withheld from the public through an exception in the FOI law. If any party involved disagrees with the final decision, the matter moves to court.

“Unlike the federal Homeland Security Act, under which records remain secret forever, the New York law preserves the presumption of access and the requirement that the agency, or perhaps a private entity, prove to a court’s satisfaction that the harmful effects of disclosure described in the exceptions to rights of access would indeed arise,” he explained.

North Carolina
Following a June 2003 meeting of representatives of news and other organizations, Chip Wilson, the state’s sunshine chair for the Society of Professional Journalists, announced that a North Carolina Open Government Coalition will be formed.

Wilson reported that Frank Barrows of The Charlotte Observer and Melanie Sill of The (Raleigh) News & Observer would assemble a steering committee.

Members of the League of Municipalities and the County Commissioners Association also attended the initial meeting, with the League expressing concerns that “we stretched FOI laws too far,” according to Wilson, “but he did say he wanted dialogue to continue and to join us for some educational efforts.”

Rhode Island
Quasi-public agencies — such as those managing Rhode Island’s landfills, sewage treatment plants, bus systems and airports — have severe compliance problems with the state’s Open Meetings Law, according to a recent audit.

The audit, conducted by Brown University’s Taubman Center for Public Policy, concluded that most of the 23 quasi-public agencies rarely or never made records of their 2002 meetings public. State law requires that all public agencies file meeting minutes with the Secretary of State’s office within 35 days of a meeting.

Six of the agencies did not submit any meetings minutes at all during 2002.

The study was done after a number of quasi-public agencies were involved in financial abuses and inappropriate personnel practices. “Given a history of scandal behind quasi-publics,” the study reported. “Monitoring their behavior will be paramount.”

Secretary of State Matt Brown proposed requiring the quasi-public agencies to file their minutes electronically by July 2004. He told The Providence Journal, “There is a reason these laws are in place. The public has a right to know what’s going on.”

Texas attorneys will be able to file civil documents electronically in four counties following the formation in January 2004 of a partnership between ProDoc Inc. and Texas Online, the state’s official Web site.

This arrangement will allow registered attorneys to file their documents 24 hours a day seven days a week. Attorneys will also have greater deadline flexibility. Paper documents must be filed in a courthouse by 5 p.m., but with the ProDoc service, they can file as late as 11:59 p.m.

Bexer, El Paso, Fort Bend, and Upton counties currently use the service, and the remaining Texas counties are expected to have the service running sometime this spring.

Normal public viewing procedures will apply to the electronic documents filed through the arrangement. In other words, the county clerk is obliged to let anyone view the documents in any format for free, unless a court rules they are confidential, such as the result of a mental health investigation.

The documents will either be available electronically through Texas Online or through the court clerk’s office.

The Virginia General Assembly took the unique step during the 2004 legislative session of attempting to write itself out of the state’s Freedom of Information Act. House majority leader, Morgan Griffith, R-Salem, introduced HB1357, which would remove the legislature from FOIA and conferring authority on the Joint Rules Committee of both houses to set access rules for the legislative branch.

Though many state legislatures have been exempt since the inception of their state’s public-access laws, no examples could be found of a state legislature removing itself after years of inclusion.

Griffith’s proposal to exempt the legislature from the state law was the subject of intense debate during the past few weeks. Virginia’s FOIA was enacted by a fractious legislature in 1968, but only after a compromise that the bill would not directly apply to the legislature. That changed in 1977, when the legislature specifically included the term “legislative body” in its definition of those covered by the act. Since then, committee meetings, floor sessions and other legislative gatherings have been presumed open, though exceptions were also made to exclude notice and minutes-taking requirements.

What prompted HB1357 this year was an opinion by Attorney General Jerry Kilgore that said party political caucuses must be open to the public when they discuss public business (though they could be closed when discussing purely party matters) because they were, in essence, meetings of a subdivision of the General Assembly.

Griffith insisted that his bill was simply an attempt to validate the autonomy of the legislature. He claimed applying FOIA to the legislature put that branch of government at the mercy of the executive branch (who has to sign any bill) and the judicial branch (who would interpret actions brought under the act). He said he had no intention of closing the General Assembly’s meetings.

But that is precisely what open-government advocates and newspapers across the state feared would happen under a system subject to the rules committee, which is dominated each year by the party in power. Opponents of the bill wanted the measure either killed, amended in some way or, preferably, referred to the Freedom of Information Advisory Council, an ombudsman-type office in the Division of Legislative Services, for further study.

The measure narrowly passed the House, largely along party lines. A Senate committee, however, adopted a substitute measure. The substitute again extended FOIA to the legislature, but it specifically stated which meetings were open, and also set out a specific exemption for political caucuses.

As of press time, the substitute passed the Senate, and the House accepted the change.

Meanwhile, after National Freedom of Information Day last year, Governor Mark Warner signed the Sensitive Records Protection Act and an exemption to FOIA for critical infrastructure and vulnerability assessments.

“Under the guise of increasing communication about vulnerabilities, these bills actually promote secrecy and inhibit information sharing, preventing the public from accessing information which could protect them,” according to OMB Watch’s newsletter.

The Sensitive Records Protection Act applies to “portions of engineering and architectural drawings, operational, procedural, tactical planning or training manuals, or staff meeting minutes or other records that reveal critical structural components, security equipment and systems, ventilation systems, fire protection equipment, mandatory building emergency equipment or systems, elevators, electrical systems, telecommunications equipment and systems, other utility equipment and systems of any building; surveillance techniques, personnel deployments, alarm or security systems or technologies, or operational and transportation plans or protocols; or vulnerability assessments submitted to or in the possession of a public body, the disclosure of which would jeopardize the security of any facility, building or structure or the safety of persons using such facility, building or structure.”

Under the new law, it is a misdemeanor for a public body to release these records to the general public on the basis that the information could be used against the state in a potential act of terrorism. Only requests accompanied by a judicial order or needed by a government representative in the normal course of duty are exempt from this restriction.

The critical infrastructure exemption prevents public access to any documents whose disclosure “would jeopardize the safety of any person or the security of any public or private facility, building, structure, or information gathering system.”

These two bills, among the first state versions of the federal Homeland Security Act signed into law, “are alarming because they infringe upon the rights of citizens to gain access to unclassified information,” according to OMB Watch.

Meanwhile, in an important court case, the Virginia Supreme Court ruled on March 5, 2004, that emails among members of a government body do not constitute meetings under the state’s open-meetings law. Reversing an earlier ruling by a Fredericksburg trial judge, the justices held that an electronic discussion among Fredericksburg council members did not happen simultaneously and thus was more like an exchange of ordinary letters or faxes.

— Contributed by Megan Rhyne, Virginia Coalition for Open Government

Utah’s Chapter of the Society of Professional Journalists took Freedom of Information on the road this year. The chapter sponsored four Saturday seminars around the state explaining both FOI laws as well as the Utah Government Records Access Management Act. Chapter representatives met with journalists at small and large papers as well as student journalists.

Presentations were made in Ogden, Salt Lake, Moab and St. George. The FOI seminar also will be presented again on March 26, 2004, at the Utah Press Association Convention.

The Utah SPJ chapter also produced a CD containing all relevant information about open records and open meetings in Utah. Those CDs were distributed to participants at the FOI seminars, as well as to all the members of the Utah legislature at the beginning of the recent legislative session. Judges also will receive the CDs.

The SPJ chapter opposed three bills this session of the state legislature concerning reporter access to the floor of the house during debate, broad changes to the open-records law, and the closing of county government meetings involving “commercial information” related to real estate.

SPJ took the Utah Board of Regents to task this year for refusing to release the names of College and University presidential job applicants. Following the SPJ request, the board now announces at least the top three finalists.

— Contributed by Allison Barlow Hess, Freedom of Information Chair, Utah

An audit conducted by the Marshfield News-Herald recorded significant compliance delays with public information requests from 20 government entities in three counties.

The News-Herald simply identified itself as a news organization and asked to see personnel information, such as the names, job titles and salaries of public employees. It also asked to see the costs of fringe benefits, such as employee health insurance.

The audit found that only five of the entities complied within a week. Fourteen agencies took between two and four weeks to comply, while it took the last one nearly a month to comply with the request.

When the News-Herald published the audit’s results in December, it reported that the main reason for the delay was that some officials felt it was necessary to notify all employees before releasing the information. Wisconsin law does not require such notice; instead it requires that requests for information should be acted upon “as soon as practicable and without delay.”

This report was compiled from newspaper articles, wire service reports and other sources by Mac McLean, a member of the Washington Pro Chapter of the Society of Professional Journalists. He is the deputy bureau chief at the Capitol Pulse, a media organization that covers congressional hearings. Contributors from individual states are noted after those states in the round-up.