Legislators across U.S. shield more public files
In February, Arkansas lawmakers marked the 50th anniversary of the state’s Freedom of Information Act with a resolution calling it “a shining example of open government” that had ensured access to vital public records for generations.
They spent the following weeks debating and, in several cases, approving new exemptions to the law in what critics called an unprecedented attack on the public’s right to know.
When they were finished, universities could keep secret all information related to their police forces, including their size and the names and salaries of officers. Public schools could shield a host of facts related to security, including the identities of teachers carrying concealed weapons and emergency response plans. And state Capitol police could withhold anything they believed could be “detrimental to public safety” if made public.
While hailed by lawmakers as common-sense steps to thwart would-be terrorists or mass shooters, the new laws left grandmother
Annie Bryant worried that she and other parents could now be kept in the dark about how schools protect kids.
“I don’t want to be overly aggressive to the point that we block out avenues and end up robbing parents, robbing students of information about their safety,” said Bryant, who lives in Pine Bluff and spoke out against the school security secrecy during a legislative hearing.
Lawmakers across the country introduced and debated dozens of bills during this year’s legislative sessions that would close or limit public access to a wide range of government records and meetings, a review by The Associated Press and numerous state press associations found.
Most of those proposals did not become law, but freedom-of-information advocates in some states said they were struck by the number of bills they believed would harm the public interest, and they are bracing for more fights next year.
Another trend that has alarmed open-government advocates is the practice of agencies suing those who seek access to public records.
The lawsuits generally ask judges to rule that the records being sought do not have to be divulged. They name the requesters as defendants but do not seek damage awards.
Freedom-of-information advocates say it has become a new way for governments to hide information, delay disclosure and intimidate critics.
State open-records laws generally allow requesters who believe they are wrongly denied documents to file lawsuits seeking to force their release. If they succeed, government agencies can be ordered to pay their legal fees and court costs.
Suing the requesters flips the script: Even if agencies are ultimately required to make the records public, they typically will not have to pay the other side’s legal bills.
“You can lose even when you win,” said Mike Deshotels, an education watchdog who was sued by the Louisiana Department of Education after filing requests for school district enrollment data last year. “I’m stuck with my legal fees just for defending my right to try to get these records.”
Deshotels, a 72-year-old retired teachers’ union official who writes the Louisiana Educator blog, had spent $3,000 fighting the lawsuit by the time a judge ruled that the requested records should be released.
The data ultimately helped show a widening achievement gap among the state’s poorest students, undercutting claims of progress by education reformers, Deshotels said.
HIT OR MISS
In some cases, legislatures’ efforts to roll back access to public information hit resistance only after reporters caught on and began writing about them.
In Iowa, the House passed a bill to shield the audio of many 911 calls by declaring them confidential “medical records” after the AP used the open-records law to expose a series of gun-related accidents involving minors in one rural county. The plan died in the Senate after it was detailed in news reports, and media and civil-rights groups raised objections.
Days later, the potential impact of the bill became clear when a popular state celebrity, farmer Chris Soules of The Bachelor fame, was charged with leaving the scene of a deadly accident. A 911 call that would have remained confidential under the bill painted a far more sympathetic picture of Soules’ actions, showing that he immediately reported the crash and sought aid for the 66-year-old victim.
Iowa lawmakers succeeded in passing another anti-transparency bill, approving unprecedented secrecy for the state’s $1 billion gambling industry by closing access to the detailed annual financial statements of the state’s 19 licensed casinos.
Those records had been public for decades. The change came in response to lobbying from casinos, which had objected to a request from an out-of-state competitor for the records by claiming that they contained proprietary information.
Florida has some of the nation’s strongest open-records and open-meetings laws, but that did not stop lawmakers from trying to tinker with them.
This year, they passed 19 new exemptions to the Sunshine Law, the second most in at least two decades. The details of how public universities investigate cyberattacks and prepare for emergencies are now confidential. The identities of people who witness murders, use medical marijuana, or get injured or killed at workplaces must also be withheld.
“I think the sheer number of new exemptions that were created was a bit alarming. It was almost a record. That’s never good,” said Barbara Petersen, president of the First Amendment Foundation in Tallahassee, who has tracked transparency legislation in Florida since the 1990s.
One of the worst for the public’s right to know, Petersen said, is a bill requiring records of criminal charges that result in acquittal or dismissal to be automatically sealed.
She asked Gov. Rick Scott to veto the measure, arguing that it would harm public safety by depriving employers of relevant information about onetime suspects who avoided convictions for any number of reasons. Scott ended up signing the bill, which supporters say will protect the wrongly accused from employment and reputational repercussions.
Still, many other bills that concerned Petersen were defeated, including measures that would have kept secret the names of applicants for top university jobs and allowed members of government boards to have more private meetings.
PUBLIC SAFETY CONCERNS
Lawmakers supporting new limits on open records say other concerns such as security, privacy and business interests can outweigh the public’s right to information in specific cases.
They say they proposed the changes after hearing complaints about information sought by specific requesters and general concerns about the cost and time of fulfilling the requests. Criticism of journalists seeking the records or citizens filing repeat requests sometimes came up in debate.
Kansas lawmakers proposed a bill that would keep the state database of fired police officers secret after Wichita television station KWCH exposed how some cities were hiring officers with checkered pasts, including a chief facing a federal investigation after being fired three times.
The bill, which was backed by the state’s law enforcement training agency, stalled after the station’s news director warned lawmakers it would make government “less open, less transparent” around the critical issues of police misconduct and public trust.
In Arkansas, a request for seemingly innocuous information became the catalyst for the sweeping bill passed earlier this year that exempts all “records or other information” held by universities that, if released, could potentially harm public safety.
A photographer filed a request in 2015 for the names of officers assigned to work a security detail for the coming Mississippi State-Arkansas football game. The woman, who was photographing the game for AP, wanted to learn whether she might cross paths with an officer she had accused of rape.
University of Arkansas officials were unaware of the motive behind the request and were focused on preventing a terrorist attack at the stadium. The new law they backed specifically shields information related to the number of security personnel on campuses, any personal information about them, and all of their emergency plans, procedures and studies.
The bill also included a similar exemption for public schools. The sponsor, Sen. Gary Stubblefield, R-Branch, said he pushed for that language after a district armed some of its teachers and staff members as volunteer secu- rity guards, saying he wanted to keep their identities secret for safety reasons.
“I’m not against FOI. I believe strongly in transparency, I really do, but common sense just tells you there are some things that you cannot release, especially in the day in which we live,” Stubblefield said. “Because there are actually people out there who are just looking for something, an edge where they can get in and do some damage. And I just don’t think we ought to give it to them.”
GOING TOO FAR?
By the end of Arkansas’ legislative session, some lawmakers believed proposed changes were going too far.
The Legislature voted to create a new task force to study the exemptions, including whether any should be deleted or added.
The House voted 33-32 to block legislation that would allow the government to declare a public records request “unduly burdensome” and give 15 business days to comply instead of the current three. A measure that would have allowed universities to keep secret wide categories of records related to potential legal action failed.
Tom Larimer, executive director of the Arkansas Press Association, said lawmakers did more damage to freedom of information than in any other session since 2004.
“We’ve always had a certain number of legislators who have had no use for the Freedom of Information Act and have no serious concerns about transparency in government,” he said. “But it just seemed like there were more of them this time, and they were more willing to side with those who are perpetually on the side of weakening the FOI.”
In Michigan, the state House voted 108-0 earlier this year in favor of a bill that would make it illegal for government agencies to sue those who request public records.
The proposal came in response to a county’s lawsuit against a local newspaper that had sought the personnel files of two employees running for sheriff. A judge dismissed the lawsuit, saying the county had to approve or deny the request.
The documents, ultimately released days before the election, showed that one of the candidates had been disciplined for carrying on an affair while on-duty in 2011. That candidate lost.
The Michigan bill’s sponsor, Republican Rep. Klint Kesto, called the lawsuit tactic “a backdoor channel to delay and put pressure on the requester” that circumvents the state’s Freedom of Information Act.
“Government shouldn’t file a lawsuit and go on offense. Either approve the request or deny it,” he said. “This shouldn’t be happening anywhere in the country.”
As his bill remains pending in a state Senate committee, Michigan State University filed a lawsuit May 1 against ESPN after the network requested police reports related to a sexual assault investigation involving football players.
The University of Kentucky prevailed in January when a judge blocked the release of records sought by its student newspaper detailing the investigation of a professor who resigned after being accused of groping students.
The judge agreed with the university that the records would violate the privacy rights of students who were victims even if their names were redacted.
While that ruling is on appeal, Western Kentucky University filed a similar lawsuit against its student paper, the College Heights Herald, which sought records related to allegations of sexual harassment and assault involving employees.
Several other state universities released similar documents to the newspaper, and the state attorney general has ruled that they are public records.
In April, the Portland, Ore., school district filed a lawsuit against parent Kim Sordyl, who is seeking records about employees on leave for alleged misconduct after the disclosure that one psychologist had been off for three years.
Sordyl said she believes the information will expose costly missteps by district human resources officials and lawyers, and the district attorney has already ordered the records to be released.
“They are going to great lengths to protect themselves and their own mismanagement. This is retaliation,” said Sordyl, who has hired an attorney. “Most people would give up.”
A district spokesman said the lawsuit, which also names a journalist who requested similar information, amounts to an appeal “in an area of public records law that we believe lacks clarity.”
“When this information is released prematurely, the district’s position is that the employees’ right to due process is jeopardized,” spokesman Dave Northfield said.
Florida legislators this year passed 19 exemptions to the state’s open-records and open-meetings laws.