Leg­is­la­tors across U.S. shield more pub­lic files

Arkansas Democrat-Gazette - - FRONT PAGE - AN­DREW DEMILLO AND RYAN J. FO­LEY

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.


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.


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.”


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.


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