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Press advocates keep close eye on efforts to limit records access

By The Associated Press,
freedomforum.org

01.25.02

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As the U.S.-led war on terrorism continues abroad, several states are considering measures to limit access to public records for the sake of increased homeland security.

  • In Washington, top editors from the state's largest newspapers have denounced proposed new anti-terrorism exemptions to the state's public-records law, calling them unnecessary and overly broad invasions of the public's right to know.

    Gov. Gary Locke and Attorney General Christine Gregoire are pushing the changes as part of a package of bills prompted by the Sept. 11 terrorist attacks.

    State law makes all public records open unless specifically closed. House Bill 2411 would exempt records dealing with preventing or responding to terrorism if disclosing the information could threaten public safety. Among other records, it covers disaster recovery plans, law enforcement records shared by federal officials with state and local law enforcement, and inventories of goods or materials that could be potentially dangerous or were assembled to plan for terrorist acts.

    Critics say the exemption is too broad and could hamper legitimate attempts to find out how well the state is prepared for terrorism and other disasters.

    "Ignorance is not freedom," Ken Bunting, executive editor of the Seattle Post-Intelligencer, told a joint hearing of the House Local Government Committee and the House Select Committee on Community Security yesterday. "Often the public would be better off to know how safe they are."

    Gregoire contends the changes are necessary to protect terrorism-response plans from falling into the wrong hands and to reassure federal law enforcement agencies that information they share with the state will not become public.

    "We must balance the need for open government with our duty to protect human life and safety," said Gregoire. She said such concerns prompted Defense Department officials to prevent her from taking notes or carrying away documents during a briefing shortly after Sept. 11.

    But newspaper officials argued that such information is already protected by federal regulations and an existing exemption for law enforcement records that has been strengthened by a Washington Supreme Court ruling.

    "It is essentially up to law enforcement to decide what is and is not a public record," said Alex MacLeod, managing editor of The Seattle Times. "The ability of the public to monitor law enforcement is entirely dependent on law enforcement's willingness for that to occur."

    But state officials say federal officials want the reassurance of a specific exemption.

    "The practical effect of it is the federal government will not share information," said Ronal Serpas, chief of the Washington State Patrol.

    A telephone call to an FBI spokeswoman in Seattle was not immediately returned.

    While newspaper officials oppose expanding exemptions to the public-records law in general, their chief concerns are about creating broad new loopholes. For example, one new exemption would protect "disaster recovery plans, risk assessments, tests, or the results of those tests."

    Because that exemption doesn't specifically mention terrorism, it could prevent legitimate inquiries about response plans for disease outbreaks, floods or volcanic eruptions, said David Zeeck, executive editor of The News Tribune of Tacoma.

    "That's information that your constituents want to know, and we want to provide them," Zeeck said.

    Administration officials and lawmakers on the committees said they were willing to consider narrowing the exemptions.

    "We're fairly confident that Mother Earth isn't going to take advantage of an earthquake plan, but there are elements that would take advantage of a terrorism plan," said Glen Woodbury, director of the state Emergency Management Division.

    The committees did not vote on the bill yesterday.

  • In Maryland, open-government advocates say they will closely examine Gov. Parris Glendening's bill to seal off access to public records that might be useful to terrorists.

    Tom Marquardt, chairman of the Freedom of Information Committee of the Maryland-Delaware-D.C. Press Association, said Jan. 22 most news organizations "will acknowledge that greater security means tighter restrictions on records."

    But he said the threat of terrorism should not be used to seal documents "that represent absolutely no harm to the public."

    Marquardt and David Rocah of the American Civil Liberties Union said they would have to examine the legislation to determine if it is something they can accept.

    "It would raise concerns about the ability of citizens to monitor what their government is doing," Rocah said.

    Glendening said he was worried after the Sept. 11 attacks "that everyone would be dropping bills in that would put legislators in a difficult position."

    It would be very difficult for lawmakers to vote against unnecessary measures because their votes might be used against them in the elections this fall, the governor said.

    "I am concerned about civil liberties, the balance between the need for civil liberties on one hand and security on the other," Glendening said.

    The governor said that is why he, House Speaker Casper Taylor and Senate President Thomas V. Mike Miller set up a work group to develop a set of bills that they will jointly support.

    "We want to guarantee basic freedoms, including freedom of the press," the governor said.

    Mike Morrill, Glendening's communications director, said the bill on public records adds public safety as one of the reasons that can be used by officials to deny access to documents. Denials could be appealed to the courts, and judges could overrule officials and order the documents released, he said.

    Morrill said the legislation would be limited to information that might be used to plant a bomb or chemical agent or cause mass panic.

    He said examples of documents that could be suppressed would include specific plans for increased security patrols around state government buildings or structural evaluations of the Chesapeake Bay Bridge.

    He said information like the number of officers and cost of patrols or the existence of structural studies would continue to be public.

    "We're not interested in creating a blanket for bureaucrats to protect information," Morrill said.

    Glendening said he will listen to complaints about the bills and will work with critics to try to alleviate their fears.

  • In Michigan, a state House committee on Jan. 23 unanimously approved a bill that could exempt a government's emergency-response plans from the Michigan Freedom of Information Act.

    Under House Bill 5349, a local, county or state government could withhold its emergency-response plans and security procedures from the public if officials think such a decision is in the public's best interest.

    The House Oversight and Operations Committee approved the bill. It now goes to the full House.

    Representatives of the Michigan Press Association and Michigan Association of Broadcasters said they are concerned government officials could use the bill to shield important information from the public.

    "Anytime we open up FOIA, it turns into a giant snowball of things that people want to keep secret," said Karole White, president of the broadcasters association. "I'm concerned about what emergency information they will release and won't release. It's not clear right now."

    Rep. Marc Shulman, a Republican from West Bloomfield who introduced the bill, told the committee that the legislation balances the public's right to know with the heightened security after the Sept. 11 attacks.

    "There's no attempt to take away open and accountable government," he said. "It exempts from FOIA certain critical information. ... There is no constitutional problem."

    A number of committee members said they will amend the bill to clarify their intent to keep the public safe while keeping them informed of emergency-response plans.

  • In Minnesota, balancing public safety with citizens' right to know will become a more difficult task as lawmakers head back to the Capitol next week.

    Already, state officials have begun drafting laws that would close meetings where elected officials deal with emergency management. They also would restrict access to information about the adequacy of health emergency plans.

    Public Safety Commissioner Charlie Weaver and others say some changes to privacy laws are simply prudent.

    If, for instance, a local police officer hears information about potential terrorist activity during a routine investigation, the officer should be able to share that with the FBI without making the entire investigation public, Weaver said.

    "The governor was really clear with me in all these proposals that we are not going to be overly broad. We are going to be very careful and cautious in proposing these changes. They don't need to trample civil liberties for the sake of public safety," Weaver said.

    The Minnesota Newspaper Association — the media's major lobbyist — is watching the process warily, urging officials to be very specific and as limited as possible in the changes and to tape record any meetings closed to public scrutiny.

    The Minnesota Health Department has drafted a proposal that would make government emergency-preparedness and emergency-response plans private data.

    A similar issue has been raised in terms of meetings with public officials.

    "When city councils or county commissioners are discussing their emergency-operations plan, do they need to be public meetings, or can they be private?" asked Rep. Rich Stanek, R-Maple Grove, chair of the House Judiciary Finance Committee and himself a police inspector. He and others have also suggested more tightly guarding information about the location of hazardous materials facilities.

    Mark Anfinson, a lawyer and lobbyist representing the Minnesota Newspaper Association, said he can understand that closing some meetings for security reasons is sensible, but he has concerns about restricting information too much.

    For instance, the public should have access to information about how well they are being protected and how much money is spent for protection, he said.

    Gary Hill, co-chair of a committee that deals with public information at the Minnesota chapter of the Society of Professional Journalists, also is concerned that local officials might too broadly restrict public access to information.

    "These things certainly can be taken to the extreme," said Hill, who is also director of investigations for KSTP-TV News.

    Sen. Don Betzold, who chairs a Senate subcommittee that deals with data practices, said a new anti-terrorism policy should not spell wholesale changes in laws about access to government information.

    "As we've had more time to look and reflect on things, the reaction might be that we can make some changes but we should not make fundamental changes," he said.

    Related

    States seek to restrict public access in wake of terrorist attacks
    'State lawmakers are closing public records at an alarming pace, often without even a shrug from those with the most to lose — ordinary citizens,' journalist says.  12.12.01

    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

    Maryland governor signs anti-terrorism bills
    ACLU had opposed measure limiting access to some public records but says it worked with governor's staff to resolve those objections.  04.10.02

    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-government advocates criticize Oklahoma records bill
    Meanwhile, lawmakers in Missouri, Maryland consider proposals to restrict access to public records.  03.04.02

    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

    Heightened security may lead to censored records in Kentucky
    Governorís office is drafting amendment to state Open Records Act that would allow agencies to withhold certain kinds of information.  11.05.01

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