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Open-government advocates wary of states' records proposals

By The Associated Press

02.06.02

Governors and state legislators are weighing whether to clamp down on the public's access to government documents and meetings, driven by worries that terrorists could use the information to plan attacks or escape capture.

But those proposals have dismayed open-government advocates and the news media, who warn a sweeping approach would block a key element of democratic society — public scrutiny of government.

Florida closed public records about security plans and drug stockpiles back in December, with new proposals under debate or just being drafted there and in Idaho, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Tennessee and Washington state.

Some would close the doors on talks about water supplies and sewer systems, while others would limit information about ongoing criminal investigations, evacuation plans and bioterrorism response assessments.

"Gee whiz, do we need to be so open with all this stuff?" said Missouri state Rep. Randall Relford. After a request from municipal attorneys, Relford authored a measure that would let local governments meet in secret when discussing terrorist prevention plans for water, sewer and electric utilities.

Elsewhere:

• Washington Gov. Gary Locke and Attorney General Christine Gregoire are seeking to close public records dealing with preventing or responding to terrorism. Gregoire's office said more documents must be kept secret so the FBI can share information with local law enforcement without fear it will be made public.

• In Florida, lawmakers are considering limiting public release of information about crop dusters; cellular phone and pager records of law enforcement officers; and state investigations into outbreaks of food-borne illnesses.

• Massachusetts legislators are considering a measure that would allow state agencies to withhold records that could jeopardize the public's "safety or security," such as blueprints for the state's bridges, tunnels and airports.

• Maryland Gov. Parris Glendening has proposed sealing access to public records that might be useful to terrorists.

• In Michigan, lawmakers are considering a plan to bar from public release government emergency-response plans.

• Minnesota officials are debating a plan that would let all levels of government close hearings where security measures are discussed and would let state and local law enforcement keep records secret to protect communication with federal agencies like the FBI.

• In Tennessee, officials are mulling a proposal that would bar releasing emergency-response plans and would allow local governments to meet in secret to review such plans or to respond to an actual emergency.

• In Idaho, Attorney General Al Lance is pursuing a measure that would let judges close public records if state agencies believe they contain information that would jeopardize public safety. Another proposal would keep the plans for evacuating public officials during an emergency under wraps.

For all, Sept. 11 is the inspiration.

States have to protect themselves from "the devious methods and manners that the enemies of democracy are now looking at," Lance said.

But civil liberties lawyers and newspaper editors have criticized the ideas at legislative hearings.

"We're just seeing the first wave. Everybody's going to see the potential for closing down meetings and for closing access to a variety of records," said Paul McMasters, First Amendment ombudsman at the Freedom Forum.

"The fact of the matter is, none of the people on those planes on Sept. 11 had filed (a government) request to get the information that they needed to do the kind of damage they did."

Still, McMasters said some of government's worries are legitimate.

There needs to be a balance between a knee-jerk rush to secrecy and an equally knee-jerk response to keep all records public, said Charles Davis, director of the Freedom of Information Center at the Missouri School of Journalism.

The key is to carefully write laws that narrowly define what should be kept secret, he said. "They are not records deemed by only record keepers to threaten public health and safety. That's broad enough to drive a truck through."

Even aside from the impact of terrorism, access to public records is a perennial topic in state legislatures, with some lawmakers seeking to make more information available and some seeking to limit it.

New Jersey, a focus of the investigation into last year's anthrax attacks, moved ahead last month with a long-discussed plan to open more information to the public.

Some of the new, Sept. 11-driven proposals — like those in Idaho and Washington state — have drawn pointed criticism, while others are moving through the legislative process with little fanfare.

Lance, a Republican, said the public's rights in Idaho would be protected by allowing a judge to decide when a government agency's desire for secrecy is valid.

"The people's right to know is very important," said Relford, the Missouri Democrat. "There's a balance, and we've got to look for that middle ground."