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Many new records laws balance free-speech, security concerns

Analysis

By The Associated Press

05.21.02

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While some state leaders pushed to restrict public access to government records after Sept. 11, many of the laws passed since the attacks have turned out to be compromises supported by free-speech advocates.

"The security of people and buildings are a legitimate concern of government," said Mitchell Pearlman, executive director of Connecticut's Freedom of Information Commission. "On the other hand, it's fundamental to a democratic society to maximize the information people can get ahold of."

Following the terrorist attacks, governors, legislators and other officials in at least 20 states proposed tightening security by limiting access to information such as utility blueprints, threat assessments and emergency response plans.

Newspapers and free-speech advocates in several states opposed the measures as too broadly drawn and pushed to scale back the proposals.

Now, with new laws in nearly a dozen states, free-speech advocates and lawmakers say a middle ground has been found that protects sensitive information but doesn't unnecessarily freeze out the public.

One example occurred in Maryland, where the original plan would have given government officials the power to deny access to documents if they felt public safety would be jeopardized. Instead, the law defined which documents were to be kept private.

"Overall, the message is heartening," said Charles Davis, director of the Freedom of Information Center at the Missouri School of Journalism. "I thought things were going to be a whole lot worse immediately after Sept. 11."

Besides Maryland, free-speech advocates were successful in significantly altering open-government legislation in Washington state and Idaho.

Several other states went ahead with new restrictions: Virginia now allows broad exemptions for terrorism preparedness plans and lets public bodies meet privately to discuss public safety. Florida keeps secret the blueprints for government buildings. Louisiana made secret any information gathered in a criminal investigation of terrorism, as well as vulnerability assessments of facilities such as utilities and nuclear plants.

In states that didn't change their laws, records bills may well return next year. Many officials still feel some government information could be exploited by terrorists.

Idaho Attorney General Al Lance is among them — and he fought hard to limit access to some records this year.

"What you have in all honesty is a knee-jerk reaction by some members of the press and then, 'Let's cover up our heads and pretend it's only happening in New York, Washington and California,' " he said. The new warnings of potential attacks that came out over the weekend "underscore the necessity of at least talking about it," he said.

When Lance first proposed two pieces of legislation to limit what records could be made public — including the travel plans of elected officials — his ideas drew sharp criticism from free-speech advocates, the news media and some lawmakers.

"In the interest of protecting freedoms we're going to take away freedoms," argued state Rep. George Eskridge. "I can see a real opportunity for abuse."

A compromise kept secret threat assessments and evacuation plans if their release could threaten public safety. But it barred a change that would let government agencies close their records with a judge's approval.

Free-speech advocates, for the most part, agree that some information can pose a security risk. Their point, Davis said, is that laws must be carefully written to ensure that other information isn't inappropriately kept secret.

But he said the pressures for secrecy, like the worries of terrorism, continue. "I don't think by any means we've seen the last of post-Sept. 11 FOI legislation."

Writing the new laws can be tricky, as two lawmakers in Michigan found.

As part of an anti-terrorism package that won unanimous approval, courthouse records of search warrants were made private in an effort to keep the names of witnesses and victims from someone who might misuse them. But First Amendment experts say the law also prevents people whose homes are searched from finding out why and blocks the news media from seeing the records.

Now state Sens. Gary Peters and Bill Bullard say they're going to go back and fix the law they pushed to change.

"We will allow some protections during the course of an investigation," Peters said. "But we're balancing that with the need for the press to have access."

Examples of new state laws to limit public access to government documents:

  • Florida: Lawmakers shut public access to blueprints of government buildings and to information on pharmaceutical supplies stockpiled to respond to terrorist attacks. Dropped proposal to allow state law enforcement to temporarily block access to otherwise public records.

  • Idaho: Blocked access to documents on public facilities if disclosure "would jeopardize the safety of persons or the public safety." Dropped a proposal to let state agencies close records they considered sensitive, with court review.

  • Louisiana: Blocked access to information collected in terrorism investigations and vulnerability assessments of public facilities such as utilities.

  • Washington: Created new exemptions in the state's open-records law to block access to vulnerability assessment plans.

Related

Public records tougher to view since Sept. 11
Culture of secrecy that traditionally has pervaded federal government was magnified after last year's terrorist attacks, panelists say.  05.09.02

Newspaper editors join to battle threats to FOI
ASNE, APME meet to consider ways to deal with increasing tendency of governments to withhold information and to make previously available records secret.  06.12.02

Ohio anti-terrorism law blocks access to security records
'This is yet another one of those examples of the danger in how far you overreact and what you have done to the principles of open government,' says press association director.  08.27.02

State lawmakers draft more than 1,200 Sept. 11-related bills
Report outlines measures introduced nationwide that range from making terrorism a capital crime to requiring teachers to lead students in Pledge of Allegiance.  04.22.02

Newspaper editors worry about access to public records
Panel discusses concerns about war on terrorism's effect on records access at Freedom of Information Foundation of Texas conference.  09.23.02

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

New Michigan laws restrict access to search warrants
First Amendment advocates say measures, passed as part of anti-terrorism legislation, invite police abuse and curtail public scrutiny.  04.26.02

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

Louisiana lawmakers pass anti-terrorism bill
Legislature sends measure to governor despite complaints it would create veil of secrecy, infringe on residents' constitutional rights.  04.18.02

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

Secrecy foes continue push for government openness
Analysis Despite crackdown on information access since Sept. 11, FOI advocates are continuing to fight for public's right to know.  04.03.02

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