Open-records laws a question of balance
While some state leaders pushed to drastically 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 came 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 documents 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 which came out over the weekend “underscore the necessity of at least talking about it.”
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 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 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.”