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Heightened security may lead to censored records in Kentucky

By The Associated Press

11.05.01

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FRANKFORT, Ky. — The price of heightened security in Kentucky may soon include the censorship of some public records and other information. The censor would be state government.

Officials in Gov. Paul Patton’s administration are drafting an amendment to the Open Records Act that, if enacted, would allow public agencies to withhold certain kinds of information on the grounds of security.

Some officials also speak of releasing public records selectively — imposing a “need to know” standard that does not exist in the law to date.

Information about utility companies and installations — gas, electric, water and telephone, all with their networks of lines and pipelines — likely would be high on the list for a security exemption.

Before Sept. 11, nearly every kind of utility information was readily available from the Public Service Commission. Maps of the transmission networks could be downloaded from the commission’s Web site.

The commission historically took “a very, very dim view of anything being filed under seal,” said John Selent, a Louisville attorney who handles telecommunications cases before the PSC.

But now, any kind of infrastructure is viewed by some in the administration as fodder for terrorism, and the current Open Records Act is viewed as worrisome. Tom Dorman, the PSC’s executive director, said it puts his agency in a pickle.

Some utility companies have informed the commission of steps they are taking to increase security of their networks and installations. The companies naturally want to recoup their costs, which means passing the bill on to their customers, but the commission first must find that the expenditure was reasonable.

“We have to have a record to make that determination. And if you have a record, it’s subject to the Open Records Act,” Dorman said. “There probably ought to be some limits on that. What’s the value of security if the world knows it?”

In addition, the commission has reams of information about utility plants, Dorman said. Utility lawyers and accountants sometimes pore over it for days, but it never was of interest to anyone else. Nowadays, he’s not so sure, Dorman said, adding: “We’re going to be more vigilant about who’s making the request and for what purpose.”

The administration’s chief information officer, Aldona Valicenti, expressed a similar desire — not necessarily to withhold information but to “meter some of that access: Give us a reason why you need it.”

However, that runs headlong into a tenet of the Open Records Act: A public record is a public record, regardless of who asks to inspect it. The petitioner need not give a reason to the public agency that holds it. In fact, it is none of the agency’s business.

Valicenti, overseer of a system that has been periodically vandalized by computer hackers, views that with some suspicion.

E-mails and other internal communications, regardless of subject matter, are public records under the law and must be offered for inspection upon request. Internal discussions of the system’s vulnerabilities are not exempt. “If there is no security exemption, we have no security,” Valicenti said.

Related

Ashcroft urges caution in release of public records
Bush administration changes policy, says agencies that legitimately turn down requests made under FOIA will have Justice Department’s backing.  10.17.01

Iowa official to lawmakers: Re-examine open records law
'We don't want to sacrifice our ideals of open government, especially in times of crisis,' freedom-of-information advocate tells newspaper.  10.18.01

Press advocates keep close eye on efforts to limit records access
Several states are considering measures to restrict public access to information for sake of increased security.  01.25.02

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