2001 FOI update: State and local developments

By Frosty Landon

Access to public records was tested in at least eight more states in 2000: Colorado, Kansas, Iowa, Maryland, Minnesota, New Mexico, Oklahoma and parts of California. That brings to at least 21 the number of states where compliance audits have been conducted, dating from the first one in Indiana in 1997-98.

The Internet continued to raise concerns that putting public records online, including those involving the courts, might make them TOO public. In Indiana, it required a governor's veto to block an attempt by the legislature to keep government e-mails secret. In Massachusetts, Iowa and Washington, lawmakers also are trying to make e-mail files of public officials private. So far, their proposals have met with little success. In other states, however, legislatures are emphasizing that e-mail and Internet files are public records with legislative proposals clarifying that.

For a mid-year perspective on what's happened in 2001 on the Freedom of Information front, check out Greg McDonald's recent report. For a comprehensive report on the 22 state audits plus several local and regional surveys, visit the Freedom of Information Center's Web site at the University of Missouri.

Legislation was introduced in a number of states to keep things private on the Internet. Financial records, medical files, Social Security numbers, home addresses, a mother's maiden name — all such information was seen as increasing chances of identity theft if placed online.

In Virginia, public access to online court filings was blocked for a year, awaiting recommendations from a joint legislative subcommittee established to protect confidentiality of "highly personal information." At the same time, marriage records were kept open, except for Social Security numbers. Montana's attorney general ruled that marriage license information had to be kept secret until after a wedding occurred.

Various states continue to wrestle with whether electronic access to government information should be supported primarily through state allocations or from fees charged for access. Archivists warned that electronic data can disappear in a decade, and preserving it is a big and expensive challenge for local and state governments, not just for the federal government.

More states, including Nebraska, tightened open-records laws by requiring that copies on paper, microfiche or disk can be obtained at no more than the actual cost of reproduction. Virginia established a full-time FOI office in mid-year, California's governor vetoed that state's FOI-ombudsman proposal, Iowa gave at least tentative approval to a full-time FOI officer and Missouri and Pennsylvania began studying the

concept. The District of Columbia also heard proposals to set up such an office. In Kansas, a new law requires appointment of local FOI officers with investigative authority and oversight to enforce a fine for "knowingly violating" FOIA. An alternate proposal would have created an FOI officer in the secretary of state's office to resolve records disputes. In Illinois a bill died in the Senate that would have allowed people denied access to records to appeal directly to the attorney general's office. Massachusetts considered a freedom of information commission to investigate all complaints of public records law violations.

New Jersey formed an open-government coalition after several years of study and Pennsylvania hopes to establish one in the next few months. Relatively new coalitions also were in place in Kansas, Alabama and Mississippi.

A number of communities adopted new restrictions on public comment at public meetings. A survey by the Michigan Municipal League found that 25 of 43 communities imposed some type of time limits on citizen input. Some localities restrict comments to agenda items. Others allow comment only at the end of a meeting.

Several states voted to give individuals the choice of "opting in" before information could be accessible to the public, rather than "opting out" of having information automatically released. Some states, such as Ohio, Missouri and Michigan, also passed laws prohibiting the state from selling lists of personal information from drivers' records.

Some of the open-government developments in the past year, as reported from the states:

For further information and a state-by-state wrap-up of FOI and privacy developments, see the Reporters Committee for Freedom of Information web site at http://www.rcfp.org/news/mag/v.cgi?24-3/leg-stbystat.

Frosty Landon is executive director of the Virginia Coalition for Open Government.