- The Washington Times - Sunday, March 12, 2006

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 September 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.

Trend lines

The AP discovered a clear trend from the September 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.

“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 Reporters 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.”

AP 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 the Pentagon were hit by hijacked planes.

Reporters tallied bills that were proposed each year, and then examined the laws that passed. They assessed the effect 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 September 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,” Mr. Spano said. A different security measure ultimately became law, limiting access to information about infrastructure from airports to cell-phone systems. Last year, Mr. Spano authored a law that strengthened public access by setting a strict deadline for state agencies to respond to requests for information.

Give and take

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,” Mr. Thomas said.

Still, the numerical data shows which side got more out of negotiations overall: The 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 more than 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 effect of larger, sweeping laws versus smaller modifications.

Curtailing access

The analysis also did not study legislation prior to the September 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 provide more quickly 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, a Republican, 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 governmentwide 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,” the Republican said.

Open-government advocates disagree. The way they see it, if Mr. Pawlenty is successful, information that used to be public in Minnesota will soon be unnecessarily locked away.

Copyright © 2019 The Washington Times, LLC. Click here for reprint permission.

The Washington Times Comment Policy

The Washington Times welcomes your comments on Spot.im, our third-party provider. Please read our Comment Policy before commenting.


Click to Read More and View Comments

Click to Hide