US law­mak­ers chip away at pub­lic’s ac­cess to records


LIT­TLE ROCK, Ark. — In Fe­bru­ary, Arkansas law­mak­ers marked the 50-year an­niver­sary of the 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 many 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 com­mon­sense 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, ac­cord­ing to a re­view by The Associated Press and nu­mer­ous state press as­so­ci­a­tions.

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.

Ne­braska law­mak­ers de­bated whether to keep se­cret the iden­tity of the sup­pli­ers of lethal-in­jec­tion drugs used in ex­e­cu­tions. The Cal­i­for­nia Leg­is­la­ture rushed through a mea­sure that shielded from the pub­lic the emer­gency ac­tion plans re­quired for po­ten­tially un­safe dams — an idea that arose af­ter nearly 200,000 peo­ple were forced to evac­u­ate fol­low­ing a spill­way fail­ure at the state’s se­cond-largest reser­voir. Texas again con­sid­ered a plan that would ef­fec­tively shut down its pub­lic records law to any re­questers who live out­side the na­tion’s se­cond most pop­u­lous state.

Push­ing back against open­ness

In some cases, the bills 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 beloved 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 he im­me­di­ately re­ported the crash and sought aid for the 66-yearold victim.

Iowa law­mak­ers suc­ceeded in pass­ing an­other an­ti­trans­parency 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 they con­tained pro­pri­etary in­for­ma­tion.

Florida has some of the na­tion’s strong­est open­records 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 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 the lim­its 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 up­com­ing Mis­sis­sippi State-Arkansas foot­ball game. The woman, who was shoot­ing 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, Repub­li­can Sen. Gary Stub­ble­field, said he pushed for that lan­guage af­ter a district armed some of its teach­ers and staff as vol­un­teer se­cu­rity 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?

Sup­port­ers of the ex­emp­tion for the Arkansas Capi­tol Po­lice said it was needed be­cause the news me­dia had writ­ten in 1998 about se­cret plans to al­low for­mer Gov. Mike Huck­abee to es­cape his of­fice by climbing a lad­der into an aban­doned el­e­va­tor shaft.

The dis­clo­sure caused the state to de­lay and mod­ify the es­cape route, which was com­pleted in 2001 and later shown to re­porters by the gover­nor’s staff. The new law gives the agency wide author­ity to keep se­cret any records re­lated to se­cu­rity at the Capi­tol and gover­nor’s man­sion. By the end of the ses­sion, some law­mak­ers be­lieved the 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.”


Gov. Asa Hutchinson speaks in May to a joint ses­sion of the Arkansas leg­is­la­ture as it wraps up work in its reg­u­lar ses­sion.


This 2017 il­lus­tra­tion by Jack Ohman with The Sacra­mento Bee shows a po­lit­i­cal can­di­date with redacted signs, cre­ated to ad­dress pub­lic records ac­cess is­sues.

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