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States seek to restrict public access in wake of terrorist attacks

By The Associated Press,
freedomforum.org staff

12.12.01

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In the aftermath of the Sept. 11 attacks, several state Legislatures have considered or passed measures restricting access to government records or facilities.

But Americans don't seem to care much about threats to their right to access government information, wrote Joe Adams in a December 2001 Presstime article.

"State lawmakers are closing public records at an alarming pace, often without even a shrug from those with the most to lose — ordinary citizens," Adams wrote.

These are gloomy times for sunshine-law advocates, he said. "In state after state, lawmakers use privacy concerns as a blanket license to shutter records long thought to be safe from exemption," Adams wrote. "In Florida alone this year, lawmakers devised at least 134 bills to close access to documents."

Here are some of the public-access measures being considered by lawmakers and other officials across the nation:

Florida

Gov. Jeb Bush on Dec. 10 signed 11 bills aimed at increasing security in the wake of the attacks, including measures that close public records dealing with security plans and drug stockpiles.

The bills were passed during the special legislative session that ended last week. The session was called to balance the state's budget, but lawmakers used the opportunity to respond to the Sept. 11 attacks.

The four measures that relate to public records — Senate Bills 16C, 18C, 20C and 22C — prohibit public access to records on security plans of hospitals or any property owned by the state, to information on pharmaceutical supplies stockpiled to respond to terrorist attacks, and to records requests made by law enforcement agencies as part of an investigation.

Other bills signed Dec. 10 create seven regional domestic security task forces and a state counterterrorism intelligence center and database, increase punishment for terrorists, tighten regulation over crop dusters and impose penalties for using biological poisons to contaminate food and water supplies.

A new wiretap law will allow police to maintain surveillance of suspected terrorists in the state without having to go to a new judge for approval when suspects change jurisdiction.

"We have a delicate balance here Ö to protect the civil liberties of Americans as well as to deal with the fact that we're in a new realm now where people in our midst who hate our way of life have attacked our basic freedoms," Bush said.

Civil liberties advocates had warned that some measures could erode freedoms, but the package that passed didn't include highly debated bills that would have given police sweeping powers to detain people who are material witnesses to suspected terrorist acts. Lawmakers also rejected a proposal that would have allowed police to block access to any public records for up to 21 days if they could convince a judge that releasing the documents could hinder an investigation.

Massachusetts

Calling it "a reasonable exception to a very broad law," a Holliston, Mass., lawmaker has proposed legislation restricting public access to potentially sensitive documents, such as blueprints for the state's bridges, tunnels and airports.

State Rep. Paul Loscocco, R-Holliston, said the bill would close a loophole in the state's Freedom of Information Act by allowing state agencies to withhold records that could jeopardize the public's "safety or security."

Under current state law, Loscocco said, a would-be terrorist could easily obtain copies of detailed blueprints for the Central Artery, or the exact specifications for "facial recognition" software at Logan Airport. Such documents are public records because they are subject to state contracts, he said.

"Anybody could get that information without having to provide any identification whatsoever," he told the MetroWest Daily News of Framingham. "Even if somebody thought it was a security risk, there is basically no recourse."

Loscocco said the bill strikes a "reasonable balance" between protecting the public's safety and preserving access to public records.

But William L. Plante Jr., executive director of the Massachusetts Newspaper Publishers Association, said he is concerned that any limit on the Freedom of Information Act would invite abuse.

"How do you protect the public without jeopardizing the public's right to information? That is always the question," Plante said.

The House Committee on Rules is now considering the bill.

Meanwhile, several state agencies have begun restricting access to internal records that were easily available before Sept. 11.

The agencies include the Massachusetts Bay Transportation Area, the Massachusetts Highway Department and the Massachusetts Water Resources Authority.

The MWRA confirmed to the The Boston Herald that it will no longer release documents detailing its water-delivery and sewer infrastructure, or emergency response plans.

"The rules of engagement changed on 9-11," Jon Carlisle, spokesman for the state Transportation and Construction office, told the Herald. "Subways have been identified as a point of vulnerability."

The MBTA said it will conduct background checks of people requesting certain information, such as tunnel blueprints. The highway department said it might ask for an explanation from people requesting information.

Such restrictions could pose challenges under the state's public-records law. But Secretary of State William Galvin, who enforces public-records laws, said he supports restricting access to certain technical information.

"Why would anyone want to see an access shaft to a water line? It's not a tourist attraction," he said.

Several federal agencies have already taken steps to withdraw public records after the terrorist attacks on the World Trade Center and Pentagon. The Environmental Protection Agency, for example, is trying to restrict public access to information about dangerous chemicals previously available on the Internet.

The MWRA is implementing the new policy in response to recommendations from the FBI and the EPA, said Fred Laskey, the agency's executive director.

"We're hoping people requesting documents are reasonable," Laskey said. "We will try to give a sense of what we are doing without giving a roadmap to point to our areas of vulnerability."

Assessments of design and infrastructure vulnerabilities currently have to be made public under federal and state laws, according to Pam Krider of the American Water Works Association.

Krider said her organization is currently working with Congress and federal regulators to create a new screening process designed to balance openness with public safety.

But consumer advocates said the new regulations could hinder ratepayers' ability to scrutinize public utilities.

Idaho

Attorney General Al Lance is recommending that the state have broader authority to tap private communications and keep more government information secret to protect against potential acts of terrorism.

Lance's recommendations stem from a report, requested by Gov. Dirk Kempthorne after the Sept. 11 terrorist attacks, which suggests 34 changes to Idaho laws.

Top Idaho lawmakers were uneasy about the potential changes but unwilling to talk about them publicly. An American Civil Liberties Union attorney said some of the proposals were frightening.

The Kempthorne administration initially would not disclose the report but released it after a request was filed under the state's open-records law. Spokesman Mark Snider said Kempthorne has no timetable for acting on the recommendation.

"The governor requested this information, and he is reviewing it," Snider said.

Some of the proposals are not directed at government. One would outlaw profiteering during a crisis and another would prohibit soldiers and sailors from being evicted while on active state duty.

But other recommendations increase the power of state government to probe its citizens or keep certain kinds of information secret.

The suggestions include:

  • Authorizing the governor to exempt records or documents from public disclosure "when necessary for the security or safety of the state."
  • Allowing county prosecutors or the attorney general to authorize wiretaps 48 hours before obtaining court authorization when there is "a danger of death or serious physical injury, threat to national security or conspiracy characteristic of organized crime."
  • Allowing public employees to question people who request public documents, a practice now prohibited.
  • Exempting from public disclosure blueprints of state buildings, evacuation plans of state officials and documents indicating future whereabouts and travel plans of elected state officials.
  • Increasing response time for public records requests from three to five days, with an allowable extension of up to 15 days.

Deputy Attorneys General William von Tagen and Michael Henderson prepared the report.

Marty Durand, legislative counsel for the ACLU of Idaho, said some of the suggestions would erode personal freedoms.

She was particularly concerned about wiretaps authorized by prosecutors, the prospect of government employees quizzing the public about their intentions regarding public documents and the potential power of the governor's office to close records by executive order.

Iowa

Iowa officials are finding it tougher than expected to strike a balance between open state government and tightened security at the state Capitol.

Republican legislative leaders want the Capitol locked after business hours, issuing electronic access cards to people who work there. Background checks would be run on those getting the cards. During business hours, those without cards would be run through metal detectors, and they wouldn't have access to the building after hours.

"I want all of this in place by the time the session starts" in January, said Senate President Mary Kramer, R-West Des Moines.

Under the proposal sketched by GOP leaders, staffers would be issued cards, as would journalists. Lobbyists are a far more complicated issue. There are 614 lobbyists registered with the House and Senate, and Kramer said it isn't likely all would get the special cards.

"It would depend on how much time they spend here," she said. Marty Ryan, a lobbyist for the Iowa Civil Liberties Union, said there's one group of people left out — the general public. "When the Legislature is in session, they need to make sure the doors are open, or otherwise you are conducting the people's business behind closed doors," Ryan said.

"That shuts out the access to government, the First Amendment right to petition the government for change."

But Kramer said it's a far more complex issue.

"The last thing I want is for people to feel shut out of the people's house," Kramer said. "The second to last thing I want is for people not to feel safe here."

She said staffers deserve a secure workplace.

"We have staff here at all hours of the day and night," Kramer said.

When the Legislature is in session, the Capitol is a bustling place, with lawmakers sometimes debating late into the night. Lobbyists, journalists and representatives of special interest groups mill about the building and tourists often fill the galleries, day and night.

Lawmakers make many crucial decisions during early morning coffee sessions and late evening chats, Ryan said. The public and lobbyists not lucky enough to be on the list for access cards would be shut out of that, he said.

Building access is just one security issue. Building managers already have decided to lock the Capitol mailroom, giving keys to those who might get mail. There are suggestions that mail sorting be moved out of the building.

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 Departmentís 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

The more we know, the more secure we are
Ombudsman It defies reason that we'd rush to limit information that has no real bearing on national security or military operations.  12.07.01

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

Open-government advocates wary of states' records proposals
Civil libertarians worry efforts to increase security may hinder public's ability to monitor government.  02.06.02

Florida newspapers unite to stress need for open government
More than two dozen papers run editorials as part of effort to keep Legislature from blocking public access to information.  03.11.02

Prospects grim for open access to state's public records
Analysis Sept. 11 attacks prompt governor to call for new exemption; newspaper advocate hopes to hold the line on current law.  01.19.02

Open-records advocates knock state agency for restricting access
Critics say Public Service Commission's informal policy may violate West Virginia's FOIA; agency official acknowledges that it stretches the law's limits.  09.12.02

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