Press associations and freedom of information advocates were ready to fight as the 2002 state legislative sessions started this spring. In that panicky post-Sept. 11 environment, legislators were prepared to do almost anything to prove constituents would be protected in the event of a terrorist attack – including gutting open records and meetings laws.
“What we saw was a lot of worry coming into the legislative session post-Sept. 11 because there was such an emphasis on law enforcement and homeland security and keeping secrets,” said Charles Davis, executive director of the Freedom of Information Center at the University of Missouri and co-chair of SPJ’s Freedom of Information Committee. Journalists bit their nails, wondering if states would argue that secrecy meant security.
But with budget crises overshadowing other issues and level heads prevailing where there was time to talk about access to public documents and meetings, most state FOI laws remained untainted by terrorism hysteria. Open government advocates say some state measures – such as keeping architectural plans, evacuation strategies, maps and anti-terrorism planning meetings secret – are reasonable exceptions journalists and the public can live with. The impact of the proposed legislation could have been much greater. “So far, we dodged a major bullet,” Davis said.
At the beginning of the 2002 session, enhancing security measures by any means necessary was at the top of state legislative agendas across the country.
“Hundreds of bills were introduced; most of them were extremely broad in their initial phase,” said Frosty Landon, executive director for the Virginian Coalition for Open Government. Some proposed statutes called for exemptions for materials that would “endanger the public” without clearly defining what records could be held under the law.
Other drafted legislation also worried open government advocates.
“The first thing I noticed was several states that came up with exemptions for open meetings,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press and an editor of “Homefront Confidential,” a RFCP white paper detailing how the war on terrorism has affected access to information. According to “Homefront Confidential,” Florida and Kentucky legislators proposed statutes that would close meetings at which security plans or secure records were discussed. A proposed bill in Oklahoma, which included wiretapping allowances and harsher punishments for terrorist acts among other measures, would permit closed executive sessions when terrorism response plans were discussed.
The most dangerous exemptions proposed dealt with keeping vulnerability assessments away from the public, according to Rebecca Daugherty, director of the Freedom of Information Service Center at RFCP. If the public knows where weaknesses exist, legislators worry that terrorists would be able to access the information just as easily and plot accordingly. But there is a problem if the public is kept in the dark. “If the public doesn’t know what’s wrong, it can’t make any changes,” Daugherty said.
States attempted to strike a balance between security and the public’s right to know what the government is doing. “If there is a need for secrecy, it better be something that is damned important. Lives better be at sake,” Davis said.
At the same time, open government advocates admit that some information may be dangerous if it is accessible to everyone. “The security plans could be used by anybody with criminal intent,” said Landon. “That’s a legitimate concern.”
In the midst of more important budget issues or disagreements about the scope of the legislation, bills in some states, like Wisconsin, Idaho, Washington and Rhode Island, were withdrawn or died in committee. In Massachusetts and Ohio, bills never made it out of the planning stages or were tabled until the next session.
In the handful of states that did press forward with exemptions to access laws, press associations or FOI advocates stepped in to ensure that the government weighed the public’s right to access records against the government’s desire to abate the threat of terrorism.
“This is a pretty new area for us,” Dalglish said. “It’s the government’s duty to push the envelope. They’re obviously going to see what they can get away with.” She said it is up to the public and the media to push back.
In New York, State Committee on Open Government chairman Robert Freeman said he spoke up about an FOI amendment supported by the governor that would have given the state broad powers to withhold documents related to terrorist activity. The law already allows materials to be withheld if revealing it “would endanger the life or safety of any person,” which Freeman said already could cover the records the governor wanted to exempt with the new amendment.
In Virginia, where new exemptions passed this session, advocates said they were able to be a part of drafting the bill with the state’s Freedom of Information Advisory Council, ensuring that it was fair. “Instead of a very broad, huge new loophole, we got it narrowed,” Landon said.
Florida, which produced a wave of terrorism-related legislation, added 15 new FOI exemptions. But that isn’t a bad thing, according to Sandra Chance, director of the Brechner Center for Freedom of Information in Gainesville, Fla.
“Fifteen is not a huge number of new exemptions for us, and considering the importance of balancing security, dealing with terrorism and protecting against identity theft with public access to information, it could have been a lot worse,” she said. “The majority of the most troubling proposals did not pass as the legislators’ intense emotional reactions to Sept. 11 gave way to more reasonable responses and a renewed commitment to balancing security concerns with a strong tradition of open government.”
Some other new measures that made it to the books:
Connecticut: New act will keep secret “records of public service companies, a certified telecommunications provider or a municipal utility that may impact the safety of the public or the employees of such companies.” Exemptions include security and emergency plans.
Idaho: A new amendment, which took affect in July, exempts things such as evacuation routes, building plans and vulnerability assessments when giving out records would “present a threat to public safety.”
Maryland: Approved legislation allows the custodian of a public record to deny access if he thinks inspection may be “contrary to the public interest.” Exempted documents could include anything that would reveal emergency response plans, blueprints, where hazardous materials are stored, or surveillance techniques, among other things.
Missouri: A new statute exempts from disclosure existing or future security or structural plans for buildings owned or leased by the government.
Washington: New legislation exempts information on infrastructure, security of computer and telecommunications networks, and security test results that identify system vulnerabilities.
Amanda Lehmert worked as a summer Pulliam/Kilgore intern at SPJ’s national headquarters. She is a senior at Emerson College.