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03/12/06
AP Enterprise: States steadily restricting government information
available to public
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.
By ROBERT TANNER
AP National Writer
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 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."
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.
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AP researcher John Parsons contributed to this story.
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On the Net:
http:www.sunshineweek.org
___
Tomorrow: Federal agencies have lagged in their responses
to public requests for information.
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