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States steadily close public access to information
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By Robert Tanner, AP National Writer
Monday, March 17, 2008 | No comments posted.
Editor’s Note — This is the first installment in a two-story package tied to Sunshine Week, organized by media organizations and other groups to combat government secrecy and bring attention to the public’s right to know.
Some things your government doesn’t have to tell you about:
* The safety plan at your child’s school, if you live in Iowa.
* Medication errors at your grandparent’s nursing home in North Carolina.
* Disciplinary actions against Indiana state employees.
States have steadily limited the public’s access to government information since the Sept. 11, 2001, terrorist attacks, a new Associated Press analysis of laws in all 50 states has found. Legislatures have passed more than 1,000 laws changing access to information, approving more than twice as many measures that restrict information as laws that open government books.
The horror of the attacks spurred a wholesale re-examination of information that could put the country in danger, and the state actions roughly mirror those on the federal level. Federal agencies responded by shutting down Web sites, pulling telephone directories and rethinking everything from dam blueprints to historical records.
In statehouse battles, the issue has pitted advocates of government openness — including journalists and civil liberties groups — against lawmakers and others who worry that public information could be misused, whether it’s by terrorists or by computer hackers hoping to use your credit cards. Security concerns typically won out.
The AP discovered a clear trend from the Sept. 11 attacks through legislative work that ended last year: States passed 616 laws that restricted access — to government records, databases, meetings and more — and 284 laws that loosened access. Another 123 laws had either a neutral or mixed effect, the AP found.
“What these open government laws do is break down that wall of government secrecy so that everybody knows what’s going on,” said Lucy Dalglish, executive director of the Reporter Committee for Freedom of the Press. “A democracy can only function if we have information. You can only have oversight of government if you have information.”
Associated Press reporters in every state, often with help from their local press associations, tracked the government access bills introduced since the World Trade Center towers and Pentagon were hit by hijacked planes.
In every state, reporters tallied bills that were proposed each year, and then examined the laws that passed. They assessed the impact of each new measure and rated it as loosening existing limits on public access to government information, restricting the limits, or neutral.
While fear of another terrorist attack drove many new proposals, it wasn’t the only motivator. Concerns about identity theft, medical privacy and the vulnerability of computerized records have sparked many pieces of legislation, too.
Lawmakers say they are recalibrating the balance between information that could be used against society and what society at large needs to know.
“Since Sept. 11, we’re looking at information like plans for our nuclear plants, the records of our bridges and transportation systems. All of the critical information that is out there that we don’t necessarily want to put in the hands of a terrorist,” said New York state Sen. Nick Spano, a Republican who had proposed tightening legislation soon after the attacks.
“It’s a very difficult balance between the public’s right to know and the public’s right to security,” Spano said. A different security measure ultimately became law, limiting access to information about infrastructure from airports to cellular phone systems. Last year, Spano authored a law that strengthened public access by setting a strict deadline for state agencies to respond to requests for information.
The give and take of a legislature usually forces changes to such bills — like a measure proposed last year in Oklahoma, where freshman state Sen. Charles Wyrick, a Democrat, sought to completely exempt the state’s new Department of Homeland Security from the Open Meetings Act and Open Records Act.
“I don’t know why all of a sudden the holy grail of security and safety is now closing records,” Mark Thomas, head of the Oklahoma Press Association, said after the bill was introduced. “It seems to me we would be more secure if we knew what was going on around us. ... Apparently there are those in government who want to close all these records and say, ‘We’ll keep you safe, trust us.’”
Negotiations brought a compromise. The law that passed allowed the department to keep communications between the agency and the federal government confidential, along with security plans for private businesses.
“We had to fight that out, and basically it ended up being an equal distribution of unhappiness,” Thomas said.
Still, the numerical data shows which side got more out of negotiations overall: The AP analysis of 1,023 new laws dealing with public access to government information found that more than 60 percent closed access. Just over a quarter created new avenues of access. The rest had a neutral effect, often through technical changes to existing laws.
Those laws emerged from just over 3,500 bills. Often, several legislators interested in a topic will each introduce a bill knowing that only one is likely to pass. In some states, the same legislation is introduced in both House and Senate chambers to speed action and build support.
Across more than four years, 36 states passed more restrictive laws than laws that loosened access; seven states passed more laws that eased barriers to access; seven states passed equal numbers. The analysis did not attempt to quantify the impact of larger, sweeping laws versus smaller modifications.
The AP analysis also did not study legislation prior to the Sept. 11 attacks, though observers say the changes have been obvious.
“What we see nationwide is states really backing away from their open access laws,” said Fred H. Cate, an Indiana University law professor who studies privacy and technology. Security threats are real — but some lawmakers are just “taking advantage of the public security tide,” he said.
The law in Iowa requires that schools draft emergency response plans, but bars them from the public. In Indiana, legislators agreed to keep disciplinary actions against state employees secret — except when they are suspended, demoted or discharged.
In North Carolina, new advisory committees set up to examine medication errors in nursing homes keep their meetings and records confidential, though the medication error rates found in separate home inspections that exceed a higher, federal standard can be accessed through the federal government.
North Carolina, like other places, also took steps to open access, requiring local and state governments to more quickly provide details about government incentive packages to lure business.
Elsewhere, Oregon opened records on child abuse in cases involving a child who is killed or seriously hurt; South Carolina lawmakers required the governor to open his cabinet meetings; California voters approved an amendment to the state constitution requiring that the state’s laws on open meetings and open records be broadly interpreted. After the amendment passed, Gov. Arnold Schwarzenegger made public his appointment calendar and those of two of his top aides.
Lately, privacy worries are starting to trump security fears.
“The great trend out there — that sweeps across any record — is privacy,” said Charles Davis at the Freedom of Information Center in Missouri. “There’s a push by government that every time Joe Citizen’s name is mentioned in a government document, it’s an inherent threat to Joe Citizen’s privacy if that document is released.”
Just this month, Minnesota Gov. Tim Pawlenty announced a new government-wide effort to target identity theft, barring access to driver’s licenses, phone records and Social Security numbers. No longer, the governor said, should there be a presumption that government information is public. “That’s backwards,” he said.
Open government advocates disagree. The way they see it, if Pawlenty is successful, information that used to be public in Minnesota will soon be unnecessarily locked away.
Tomorrow: Federal agencies have lagged in their responses to public requests for information.
— AP researcher John Parsons contributed to this story.
———
On the Net:
http://www.sunshineweek.org
Some things your government doesn’t have to tell you about:
* The safety plan at your child’s school, if you live in Iowa.
* Medication errors at your grandparent’s nursing home in North Carolina.
* Disciplinary actions against Indiana state employees.
States have steadily limited the public’s access to government information since the Sept. 11, 2001, terrorist attacks, a new Associated Press analysis of laws in all 50 states has found. Legislatures have passed more than 1,000 laws changing access to information, approving more than twice as many measures that restrict information as laws that open government books.
The horror of the attacks spurred a wholesale re-examination of information that could put the country in danger, and the state actions roughly mirror those on the federal level. Federal agencies responded by shutting down Web sites, pulling telephone directories and rethinking everything from dam blueprints to historical records.
In statehouse battles, the issue has pitted advocates of government openness — including journalists and civil liberties groups — against lawmakers and others who worry that public information could be misused, whether it’s by terrorists or by computer hackers hoping to use your credit cards. Security concerns typically won out.
The AP discovered a clear trend from the Sept. 11 attacks through legislative work that ended last year: States passed 616 laws that restricted access — to government records, databases, meetings and more — and 284 laws that loosened access. Another 123 laws had either a neutral or mixed effect, the AP found.
“What these open government laws do is break down that wall of government secrecy so that everybody knows what’s going on,” said Lucy Dalglish, executive director of the Reporter Committee for Freedom of the Press. “A democracy can only function if we have information. You can only have oversight of government if you have information.”
Associated Press reporters in every state, often with help from their local press associations, tracked the government access bills introduced since the World Trade Center towers and Pentagon were hit by hijacked planes.
In every state, reporters tallied bills that were proposed each year, and then examined the laws that passed. They assessed the impact of each new measure and rated it as loosening existing limits on public access to government information, restricting the limits, or neutral.
While fear of another terrorist attack drove many new proposals, it wasn’t the only motivator. Concerns about identity theft, medical privacy and the vulnerability of computerized records have sparked many pieces of legislation, too.
Lawmakers say they are recalibrating the balance between information that could be used against society and what society at large needs to know.
“Since Sept. 11, we’re looking at information like plans for our nuclear plants, the records of our bridges and transportation systems. All of the critical information that is out there that we don’t necessarily want to put in the hands of a terrorist,” said New York state Sen. Nick Spano, a Republican who had proposed tightening legislation soon after the attacks.
“It’s a very difficult balance between the public’s right to know and the public’s right to security,” Spano said. A different security measure ultimately became law, limiting access to information about infrastructure from airports to cellular phone systems. Last year, Spano authored a law that strengthened public access by setting a strict deadline for state agencies to respond to requests for information.
The give and take of a legislature usually forces changes to such bills — like a measure proposed last year in Oklahoma, where freshman state Sen. Charles Wyrick, a Democrat, sought to completely exempt the state’s new Department of Homeland Security from the Open Meetings Act and Open Records Act.
“I don’t know why all of a sudden the holy grail of security and safety is now closing records,” Mark Thomas, head of the Oklahoma Press Association, said after the bill was introduced. “It seems to me we would be more secure if we knew what was going on around us. ... Apparently there are those in government who want to close all these records and say, ‘We’ll keep you safe, trust us.’”
Negotiations brought a compromise. The law that passed allowed the department to keep communications between the agency and the federal government confidential, along with security plans for private businesses.
“We had to fight that out, and basically it ended up being an equal distribution of unhappiness,” Thomas said.
Still, the numerical data shows which side got more out of negotiations overall: The AP analysis of 1,023 new laws dealing with public access to government information found that more than 60 percent closed access. Just over a quarter created new avenues of access. The rest had a neutral effect, often through technical changes to existing laws.
Those laws emerged from just over 3,500 bills. Often, several legislators interested in a topic will each introduce a bill knowing that only one is likely to pass. In some states, the same legislation is introduced in both House and Senate chambers to speed action and build support.
Across more than four years, 36 states passed more restrictive laws than laws that loosened access; seven states passed more laws that eased barriers to access; seven states passed equal numbers. The analysis did not attempt to quantify the impact of larger, sweeping laws versus smaller modifications.
The AP analysis also did not study legislation prior to the Sept. 11 attacks, though observers say the changes have been obvious.
“What we see nationwide is states really backing away from their open access laws,” said Fred H. Cate, an Indiana University law professor who studies privacy and technology. Security threats are real — but some lawmakers are just “taking advantage of the public security tide,” he said.
The law in Iowa requires that schools draft emergency response plans, but bars them from the public. In Indiana, legislators agreed to keep disciplinary actions against state employees secret — except when they are suspended, demoted or discharged.
In North Carolina, new advisory committees set up to examine medication errors in nursing homes keep their meetings and records confidential, though the medication error rates found in separate home inspections that exceed a higher, federal standard can be accessed through the federal government.
North Carolina, like other places, also took steps to open access, requiring local and state governments to more quickly provide details about government incentive packages to lure business.
Elsewhere, Oregon opened records on child abuse in cases involving a child who is killed or seriously hurt; South Carolina lawmakers required the governor to open his cabinet meetings; California voters approved an amendment to the state constitution requiring that the state’s laws on open meetings and open records be broadly interpreted. After the amendment passed, Gov. Arnold Schwarzenegger made public his appointment calendar and those of two of his top aides.
Lately, privacy worries are starting to trump security fears.
“The great trend out there — that sweeps across any record — is privacy,” said Charles Davis at the Freedom of Information Center in Missouri. “There’s a push by government that every time Joe Citizen’s name is mentioned in a government document, it’s an inherent threat to Joe Citizen’s privacy if that document is released.”
Just this month, Minnesota Gov. Tim Pawlenty announced a new government-wide effort to target identity theft, barring access to driver’s licenses, phone records and Social Security numbers. No longer, the governor said, should there be a presumption that government information is public. “That’s backwards,” he said.
Open government advocates disagree. The way they see it, if Pawlenty is successful, information that used to be public in Minnesota will soon be unnecessarily locked away.
Tomorrow: Federal agencies have lagged in their responses to public requests for information.
— AP researcher John Parsons contributed to this story.
———
On the Net:
http://www.sunshineweek.org
Q&A with AP CEO
Tom Curley, The Associated Press’ president and chief executive officer, has been an outspoken advocate against government secrecy.
Q: Sunshine Week 2005 was declared a success in initiating a national dialogue in the United States and shedding light on the public’s right to open government. How does 2006 compare with 2005, and how do you view last year in terms of freedom of information?
A: Last year’s effort was impressive. Participation was far higher than expected. Editors’ efforts to show how freedom-of-information laws benefit the public were thoughtful and specific. Many focused on everyday issues that impacted local lives. Most important, the dial moved. Polls showed support for freedom of information rose.
———
Q: The first national Sunshine Week helped to energize congressional efforts to introduce strengthened Freedom of Information Act laws. Do you think President Bush’s executive order for federal agencies to improve their compliance will play any role in that legislative process?
A: We must understand we are engaged in a long-term battle. Freedoms must be won anew by each generation. Crosscurrents in public and government thinking linger from the attacks on the United States in 2001. Signs of progress include the executive order to improve compliance, media industry engagement in open-records issues and at least some increased support. Unfortunately, an absurdly high amount of government information is being classified.
———
Q: As a result of an Associated Press lawsuit, the Pentagon this month released documents containing the names of detainees at the U.S. military prison at Guantanamo Bay. Why did the AP pursue this case?
A: Legal support for public trials dates back at least to 1188. The public has a right to know about the people being held, whether or not they are a threat, the nature of their alleged crime, whether their government is providing appropriate justice. Military and civilian codes provide rights to fair trials, including notice of charges and humane treatment of incarcerated. The nature of the charge doesn’t diminish the rights of the accused or provide additional powers to the state.
———
Q: Should journalists have access privileges for government records that do not extend to the public? For instance, in Ohio, ordinary citizens do not have access to lists of people who receive permits to carry concealed weapons, but according to the law, the media does.
A: That law in Ohio, and laws in other states, resulted from odd compromises late in the legislative process. We’re much better off when our rights match the public’s rights.
———
Q: Is there enough of a direct dialogue between the public’s intermediary — the media — and the government’s gatekeepers of information?
A: We’ve done a much better job recently shining the spotlight on access. The high-profile cases where journalists have been thrown in jail or threatened with jail put the issue on the front page. The courts’ attitudes are unmistakably chilly. We’ve got a lot of work to get the public behind us.
———
Q: Do the media have clear guidelines, that the public should be aware of, for when it should bring to light a government access problem or when to work behind the scenes with federal, state or local authorities to resolve a complex issue?
A: We routinely hold information until we can be sure of its accuracy, value or context. I don’t think we’ve explained to the public how hard we work to be sure. Of course, each mistake undermines our credibility. The guidelines on when to publish or when to wait should be clear within each organization and communicated when appropriate to the public. We must fight the accuracy battle each day with every word we write.
———
Q: How does new technology affect the media’s relationship with the U.S. military in the resolution of freedom of information disputes?
A: News circles the globe in an instant, and the military and media are tested as never before to get the facts right from the beginning. We have the capacity to put a story on the air before we know what the story is. Restraint should be exercised for the sake of accuracy and context. Nonetheless, most problems arise for all the old and wrong reasons: An official wants to put the best spin on a situation or someone puts being first with a story ahead of first being right. Our complaints with the military tend to be more specific — a particular official ignoring long-established procedures or overreaching.
———
Q: Prosecutors and defense lawyers have used the power of subpoena to demand reporters’ notes in a couple of recent high-profile legal cases, including the jailing of New York Times reporter Judith Miller and the Wen Ho Lee case — which involves an AP reporter — in which the defense has asked journalists to reveal their sources. Are these aberrations that are confined to an unusual set of legal circumstances, or do those cases represent a judicial trend to limit the use of government sources?
A: The trend is unmistakable and chilling. We must do our part by limiting when we go off the record, and we must fight to get access to information the public needs. Government by secrecy doesn’t make for enduring democracy. Judges will be more sensitive to the public’s access when they see the potential for public harm from secrecy.
———
Q: Has the role of the press as a watchdog of government for the public taken a beating in the current political climate in America?
A: History shows that there are pullbacks in times of war, and that’s understandable. We should stick to our principles and make the case to the public.
———
Q: Are efforts by the media to become more transparent so the public better understands the journalistic process actually working?
A: Research by the Pew Charitable Trust and the Freedom Forum show impressive upticks. That should inspire all of us to seize the moment.
———
Q: The right of a citizen to privacy is increasingly being pitted against the public’s right to know. How does that affect the media’s relationship with the public?
A: A citizen’s privacy rights should be understood and respected. The rules are nearly always clear about when information crosses the line from private to public. When it’s not clear, editors are very careful to debate when and what to publish. Our battle is keeping the public’s business from being conducted behind closed doors.
———
Q: The Associated Press daily faces government hostility to its newsgathering efforts globally. How are its FOI efforts in the U.S. helping to cope with that?
A: We work in a lot of places where media are feared more than guns. Interestingly, our efforts in the U.S. are seen as a sign of strength. We’ve heard from journalists in many countries that they have been encouraged to ask the tough questions or to report when information is being concealed. We face a difficult era. The Rose, Orange and Tulip Revolutions in former Soviet republics appear to have spooked unelected regimes to intensify efforts at repression. The courage of journalists — AP and others — working in these places should inspire all of us.
Tom Curley, The Associated Press’ president and chief executive officer, has been an outspoken advocate against government secrecy.
Q: Sunshine Week 2005 was declared a success in initiating a national dialogue in the United States and shedding light on the public’s right to open government. How does 2006 compare with 2005, and how do you view last year in terms of freedom of information?
A: Last year’s effort was impressive. Participation was far higher than expected. Editors’ efforts to show how freedom-of-information laws benefit the public were thoughtful and specific. Many focused on everyday issues that impacted local lives. Most important, the dial moved. Polls showed support for freedom of information rose.
———
Q: The first national Sunshine Week helped to energize congressional efforts to introduce strengthened Freedom of Information Act laws. Do you think President Bush’s executive order for federal agencies to improve their compliance will play any role in that legislative process?
A: We must understand we are engaged in a long-term battle. Freedoms must be won anew by each generation. Crosscurrents in public and government thinking linger from the attacks on the United States in 2001. Signs of progress include the executive order to improve compliance, media industry engagement in open-records issues and at least some increased support. Unfortunately, an absurdly high amount of government information is being classified.
———
Q: As a result of an Associated Press lawsuit, the Pentagon this month released documents containing the names of detainees at the U.S. military prison at Guantanamo Bay. Why did the AP pursue this case?
A: Legal support for public trials dates back at least to 1188. The public has a right to know about the people being held, whether or not they are a threat, the nature of their alleged crime, whether their government is providing appropriate justice. Military and civilian codes provide rights to fair trials, including notice of charges and humane treatment of incarcerated. The nature of the charge doesn’t diminish the rights of the accused or provide additional powers to the state.
———
Q: Should journalists have access privileges for government records that do not extend to the public? For instance, in Ohio, ordinary citizens do not have access to lists of people who receive permits to carry concealed weapons, but according to the law, the media does.
A: That law in Ohio, and laws in other states, resulted from odd compromises late in the legislative process. We’re much better off when our rights match the public’s rights.
———
Q: Is there enough of a direct dialogue between the public’s intermediary — the media — and the government’s gatekeepers of information?
A: We’ve done a much better job recently shining the spotlight on access. The high-profile cases where journalists have been thrown in jail or threatened with jail put the issue on the front page. The courts’ attitudes are unmistakably chilly. We’ve got a lot of work to get the public behind us.
———
Q: Do the media have clear guidelines, that the public should be aware of, for when it should bring to light a government access problem or when to work behind the scenes with federal, state or local authorities to resolve a complex issue?
A: We routinely hold information until we can be sure of its accuracy, value or context. I don’t think we’ve explained to the public how hard we work to be sure. Of course, each mistake undermines our credibility. The guidelines on when to publish or when to wait should be clear within each organization and communicated when appropriate to the public. We must fight the accuracy battle each day with every word we write.
———
Q: How does new technology affect the media’s relationship with the U.S. military in the resolution of freedom of information disputes?
A: News circles the globe in an instant, and the military and media are tested as never before to get the facts right from the beginning. We have the capacity to put a story on the air before we know what the story is. Restraint should be exercised for the sake of accuracy and context. Nonetheless, most problems arise for all the old and wrong reasons: An official wants to put the best spin on a situation or someone puts being first with a story ahead of first being right. Our complaints with the military tend to be more specific — a particular official ignoring long-established procedures or overreaching.
———
Q: Prosecutors and defense lawyers have used the power of subpoena to demand reporters’ notes in a couple of recent high-profile legal cases, including the jailing of New York Times reporter Judith Miller and the Wen Ho Lee case — which involves an AP reporter — in which the defense has asked journalists to reveal their sources. Are these aberrations that are confined to an unusual set of legal circumstances, or do those cases represent a judicial trend to limit the use of government sources?
A: The trend is unmistakable and chilling. We must do our part by limiting when we go off the record, and we must fight to get access to information the public needs. Government by secrecy doesn’t make for enduring democracy. Judges will be more sensitive to the public’s access when they see the potential for public harm from secrecy.
———
Q: Has the role of the press as a watchdog of government for the public taken a beating in the current political climate in America?
A: History shows that there are pullbacks in times of war, and that’s understandable. We should stick to our principles and make the case to the public.
———
Q: Are efforts by the media to become more transparent so the public better understands the journalistic process actually working?
A: Research by the Pew Charitable Trust and the Freedom Forum show impressive upticks. That should inspire all of us to seize the moment.
———
Q: The right of a citizen to privacy is increasingly being pitted against the public’s right to know. How does that affect the media’s relationship with the public?
A: A citizen’s privacy rights should be understood and respected. The rules are nearly always clear about when information crosses the line from private to public. When it’s not clear, editors are very careful to debate when and what to publish. Our battle is keeping the public’s business from being conducted behind closed doors.
———
Q: The Associated Press daily faces government hostility to its newsgathering efforts globally. How are its FOI efforts in the U.S. helping to cope with that?
A: We work in a lot of places where media are feared more than guns. Interestingly, our efforts in the U.S. are seen as a sign of strength. We’ve heard from journalists in many countries that they have been encouraged to ask the tough questions or to report when information is being concealed. We face a difficult era. The Rose, Orange and Tulip Revolutions in former Soviet republics appear to have spooked unelected regimes to intensify efforts at repression. The courage of journalists — AP and others — working in these places should inspire all of us.
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