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and Mass Communication in Toronto, Canada, August 2004.
If you have questions about this paper, please contact the author
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In the interest of security:
The Impact of 9-11 on State access-to-information Laws
by
J. Suzanne Horsley
Roy H. Park Doctoral Fellow
School of Journalism and Mass Communication
The University of North Carolina at Chapel Hill
Contact Information:
CB# 3365, Carroll Hall
Chapel Hill, NC 27599-3365
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T2
ABSTRACT
In the Interest of Security:
The Impact of 9-11 on State Access-to-Information Laws
This paper examines the legislation regarding access-to-information laws
that has been passed by the states since the terrorist attacks on September
11, 2001. It categorizes the changes that have been made to determine the
implications of these legislative moves for the media and the public. Every
state and the District of Columbia proposed legislation during the last two
years that would affect public information laws. Forty of the states and
the District of Columbia succeeded in passing new laws in attempts to
thwart terrorist access to critical information. The resulting sixty-two
new laws in this study were categorized as follows: records exemptions to
ensure safety and security, closed meetings to ensure safety and security,
provisions for allowing media access, and calls for further study on ways
to protect government information. The stipulations in each state's laws
were examined to discover the prevailing records or meetings that the
public can no longer access. Contemporary newspaper reports about the new
laws that quoted government officials, lawmakers, and open-access advocates
were also examined in an effort to discover the implications of these new
restrictions to government information. While there are many concerns about
the speed and breadth of the new legislation, there was a mixed response to
what the changes mean for American citizens and reporters.
in the interest of security:
The Impact of 9-11 on State access-to-information Laws
The world as Americans knew it changed on the morning of September 11,
2001, when terrorists commandeered four commercial airliners during flight
and flew them into the twin towers of the World Trade Center, the side of
the Pentagon, and a field in rural Pennsylvania. It had been 60 years and
three generations since the United States was last invaded by foreign
forces in an act of war. Not surprisingly, the country reacted quickly to
protect itself from further attack. One form of protection was manifested
in the federal Homeland Security Act of 2002, which created the Department
of Homeland Security[1] just over one year after the terrorist attacks.
Another form was in amendments to the 1966 Freedom of Information Act, [2]
which imposed new restrictions on the release of sensitive federal
government information.
Subsequently, many of the states passed their own anti-terrorism
legislation, oftentimes creating their own departments of homeland security
and passing laws preventing disclosure of vital infrastructure information,
criminalizing the illegal release of government secrets by government
employees, and closing previously open meetings of public officials.[3]
This effort to limit terrorists' access to sensitive information has had a
secondary effect: limiting the media and citizens' access to public records.[4]
The purpose of this paper is to examine how the states' response to
domestic terrorism has affected state access laws. This is an important
topic because there are real concerns about the impact of anti-terrorism
measures on the constitutional protections to freedom of speech and the
statutory rights to access government information. As Idaho Rep. George
Eskridge stated during deliberations over changes in his state's public
records laws, "In the interest of protecting freedoms we're going to take
away freedoms…. I can see a real opportunity for abuse."[5]
Literature Review
A body of scholarly research has been developing since 2001 that addresses
the trend in government to restrict access to public records in the spirit
of national security. Most of the research has focused on the effects of
federal legislation on the Freedom of Information Act, rather than on state
legislation regarding access-to-information laws. Many of the published
books and articles in legal journals present concerns about information
access issues but do not specifically address the recent changes in state
laws. Current research in this area focuses on the pros and cons of open
government, weakness in fulfillment of records requests, the media's role
in reporting on the government, and the impact of anti-terrorism measures
on public access to information.
Recent State Public Access Legislation
Since the terrorist attacks on September 11, 2001, states have amended
public records laws in ways that are similar to the changes in the federal
Freedom of Information Act.[6] The Reporters Committee for Freedom of the
Press released a study on the second anniversary of the terrorist attacks
outlining state legislation that would restrict public records access. The
study listed legislation that had been introduced since September 11, 2001,
for all fifty states plus the District of Columbia.[7] The study found,
"Legislators have continued to introduce bills narrowing open records and
meetings laws in the hopes that secrecy would lead to security, even though
no one had shown that open government in any way exacerbated the events of
September 11."[8] The bills exempted much previously open information from
public disclosure, including "evacuation plans, emergency response plans,
security measures or emergency health procedures in case of a terrorist
attack, as well as the security plans and manuals themselves."[9]
The Ebb and Flow of State Records Access
Public access to state government records is a statutory right that has
only evolved in the last few decades. To some extent, nearly every state
has created access laws similar to the federal Freedom of Information Act,
which became law in 1966.[10] Law professor James T. O'Reilly explained,
"The news media success with the adoption of a federal Freedom of
Information Act led to equivalent legislation being adopted in nearly every
state, some in the format of a complete statutory access package, and some
as mere paragraph or page-long sections that were left to judicial
interpretation."[11] Some state laws do not limit who can access the
information, while others, such as Virginia's, limit access to its
citizens. As with the federal law, most states are not concerned with the
requestor's motive for wanting the information.[12]
O'Reilly speculated that easily accessible government information that is
posted on the Internet as well as the use of public information by the
media may have helped the terrorists plan the September 11 attacks. Even
without direct evidence of this, the consequences have been clear. The
federal government quickly removed information from Web sites that might
assist terrorist plots and created new statutory exemptions to FOIA.[13]
During the same time period, state legislatures were rushing to write and
pass bills to restrict disclosure of information that may aid terrorists.
O'Reilly acknowledged the delicate balance between the public's need to
know and the threat of terrorism. Information about chemical hazards, for
example, can be important for Americans to be aware of; however, for a
knowledgeable criminal, it can also read like a guide on committing
terrorism.[14] He predicted that government will err on the side of
security rather than full access and create more exemptions to disclosure
in the future.[15]
Michele Bush Kimball explored the fundamental need for open access to
information in a democracy, stating, "When citizens experience difficulty
while attempting to access public records, it interferes with their rights
to oversee government function."[16] She referred to the philosopher
Alexander Meiklejohn's argument that a nation is best served by informed
citizens who can make better decisions at the polls. Voters who are kept in
the dark on government policy will not have the knowledge they need to
insist on change in government when they use their ballot leverage.[17]
Audits of public records laws in twenty-four states revealed that
custodians of government records were not complying with state laws,[18]
which Kimball found to be "detrimental to the citizenry's rights to oversee
its government."[19] When taking into consideration the current environment
of fear of terrorism and the states' efforts to restrict access to
information, it is not difficult to surmise that a system that is already
in noncompliance will be worsened by having more legal means on hand to
deny requested information.
The Media's Rights During Dangerous Times
Since September 11, the United States government and its military have
prevented disclosure of information that has been historically open to the
press. One prime example is the treatment of information related to
individuals detained as part of the investigation into the terrorist
attacks, which has been described as "an unprecedented veil of
secrecy."[20] Trials of immigration detainees are being conducted in secret
and are not listed on a public docket, while the press, the public, and
family members are barred from the courtroom.[21]
The scholarly disagreement about the right of the media to obtain
information juxtaposed with the need to keep it out of the wrong hands does
not have a simple conclusion. The debate often extends to the very role of
the media. Some have argued that the media help terrorists by providing a
vehicle for their views, building fear, and eliciting sympathy for their
causes.[22] Conversely, others have argued that the media provide less
sympathy for terrorists and more information for the public. Because the
media tend to devote more attention to violence than to philosophy, the
representation of the terrorists is inevitably negative.[23]
Former Pentagon correspondent C. Robert Zelnick went a step further to
argue that the media and the government have a mutual relationship during
times of conflict that "is at times symbiotic, at times antagonistic…each
has its own role to play, and while each is ultimately a guardian of
national freedom and democratic values, their separate missions sometimes
put them at cross-purposes."[24] Zelnick also stated that the press rarely
hinders national security efforts and that governmental restriction is
usually motivated by a need to control image rather than by true threats to
the nation.[25]
Overall, the literature is pessimistic in its determination of the impact
of anti-terrorism legislation on public access laws. As some scholars have
pointed out, too much emphasis on preventing the relatively small threat of
terrorism has a foreseeable impact on day-to-day crises, such as natural
disasters or leadership issues that are much more likely to affect the
average citizen.[26] These are the very instances where access to public
records can be of the most benefit.
Research Questions and Method
This paper addresses the following research questions:
1) What changes have been made in state access-to-information laws since
September 11, 2001?
2) What are the possible implications of these changes for the media and
the public?
This study examines new public access-to-information laws adopted by states
and the District of Columbia since September 11, 2001. The author developed
categories of laws based on provisions found in the new legislation. This
allowed for development of categories of similar laws while also exposing
the variations in laws.
The legislation analyzed in this paper originated from a September 2003
study by the Reporter's Committee on Freedom of the Press.[27] This study
listed proposed and enacted anti-terrorism legislation from all fifty
states and the District of Columbia during the 2002 and 2003 legislatures
that concerned public information laws. This report provided a listing of
proposed and enacted state legislation and did not analytically categorize
the changes made to access laws.[28] For the purposes of this paper, only
enacted laws were considered. Nine states proposed but did not pass
anti-terrorism legislation during this time frame that would have affected
public access laws.[29] Alabama was included in the Reporter's Committee
report but was excluded from this study because the enrolled legislation
did not include new measures related to access to information.[30] The
remaining forty states and the District of Columbia passed legislation that
was germane to this paper. A total of sixty-two new laws were ultimately
included in this study. The fifteen other laws were excluded because they
were primarily related to privacy issues, such as wiretapping practices and
intra-agency medical records dissemination.[31]
The analysis of the states' new anti-terrorism legislation will answer the
first research question, "What changes have been made in state
access-to-information laws since September 11, 2001?" Newspaper reports
containing contemporary commentary about the changing legislation by
government officials and open-government advocates will answer the second
research question, "What are the possible implications of these changes for
the media and the public?"
Changes to State Access-to-Information Laws
During the 2002 and 2003 sessions, forty states and the District of
Columbia passed legislation that affects media and public access to
government information. Many of the new laws are narrowly tailored to deny
access to information which, if released publicly, could potentially aid
terrorists. However, some of the laws are open to broad interpretation as
to what records or meetings are exempt from public access. Additionally,
some of the laws leave the determination of what records are exempt to the
custodian of the records, rather than listing the non-public records
specifically in the law. The author created four main categories of
legislation from the research: records exemptions to ensure safety and
security, closed meetings to ensure safety and security, provisions for
media access, and calls for further study on future exemptions. Appendix 1
lists all states that passed legislation in each category, and Appendix 2
provides examples of the exemptions and other measures. The four categories
are discussed below.
Records Exemptions to Ensure Safety and Security
Bills adding exemptions to the states' public records laws made up the
largest category of enrolled legislation. Thirty-three states and the
District of Columbia passed legislation that exempted certain records from
public disclosure.[32] Of these states, seven gave the custodian of a
public record the power to determine if public release of the record would
harm safety or security by aiding terrorists.[33] The records in question
included specific information such as school security procedures,[34]
public infrastructure plans,[35] vulnerability assessments,[36]
blueprints,[37] and security information,[38] but some state laws, such as
Indiana's,[39] were much broader in allowing the custodian to decide what
should be kept secret. Many states, such as Iowa and Indiana, use a
standard of reasonable likelihood for custodians to determine if release of
information would jeopardize public safety.[40]
A majority of the laws that added exemptions were narrowly drawn, leaving
less discretion to the custodian. For example, Arizona prohibited
disclosure of information about drinking water systems,[41] the District of
Columbia exempted terrorism response plans and vulnerability
assessments,[42] Florida restricted trade secrets submitted by businesses
that are monitored for air pollution,[43] and Illinois prohibited release
of computer geographic system information.[44]
Most legislation prohibiting public records disclosure resembled that of
North Carolina, which exempted:
plans to prevent or respond to terrorist activity, to the extent such
records set forth vulnerability and risk assessments, potential targets,
specific tactics, or specific security or emergency procedures, the
disclosure of which would jeopardize the safety of governmental personnel
or the general public or the security of any governmental facility,
building, structure, or information storage system.[45]
The language of this bill leaves the responsibility to the custodian of the
information to decide if it warrants secrecy or can be disclosed to the public.
Closed Meetings to Ensure Safety and Security
Bills that closed government meetings to the public (including media) in
the interest of protection from terrorism comprised the second-largest
group of new laws. Thirteen states passed laws closing meetings that were
previously open to the public.[46] The governmental entities affected
included legislative meetings about public safety,[47] meetings of water
distribution boards,[48] agencies that discuss security procedures,[49]
transportation officials meetings,[50] and homeland security agencies.[51]
Texas required that all closed meetings must be tape-recorded.[52]
California led the states with four laws related to the closing of
meetings.[53] Unlike the other states, California made provisions for the
criminalization of the release of confidential information from closed
meetings by government employees. The bill provides that "A person may not
disclose confidential information that has been acquired by being present
in a closed session…unless the legislative body authorizes disclosure of
that confidential information."[54] Unauthorized release of information can
result in disciplinary action or a referral to a grand jury for indictment
on a misdemeanor.[55]
Provisions for Media Access
While most states were deciding what records and meetings were off limits
to the public, and therefore the media, three states made provisions to
grant access to the media for certain information. Illinois allowed the
media to have access to the computerized geographic information systems
data that was previously exempted from public disclosure.[56] In Texas'
Homeland Security Act, legislators added a clause to a list of confidential
topics that allowed government officials to provide access "at cost, to
bona fide local news media, for the purpose of monitoring emergency
communications of public interest, the communications terminals used in the
entity's trunked communications system that have encryption codes
installed."[57]
The legislation that showed the most intent to cooperate with the media
appeared in Oregon's law concerning the closure of meetings that pertained
to security matters. An exemption stated, "Representatives of the news
media shall be allowed to attend executive sessions…but the governing body
may require that specified information subject of the executive session be
undisclosed."[58] The intent of this bill has been interpreted as allowing
reporters to "challenge in court any inappropriate use of the executive
session exemption" by witnessing in person what is discussed in closed
sessions of government meetings.[59]
Calls for Further Study on Security of Information
The fourth category of laws contained statutes from three states whose
legislators voted to conduct more study before considering changes in the
law. Kentucky created a Task Force on Homeland Security to investigate ways
to secure records related to terrorism.[60] As has been noted in this
paper, records of interest to terrorists, according to the lawmakers, can
encompass numerous documents including blueprints of public buildings,
utilities maps, vulnerability assessments, and emergency response
plans.[61] Connecticut called for a water safety study and a plan to
protect water sources from contamination.[62] As noted above, one way other
states have chosen to protect this vital resource is by prohibiting
disclosure of documents related to water supplies.[63]
A different form of limitation to public information arose in California's
provision for a study on how to protect public safety officials' personal
contact information. An amendment to the Public Safety Officials Home
Protection Act states, "The task force shall prepare a report of its
findings that, among other things, includes a comprehensive plan on how to
protect a public safety official's home information, definitions of those
comprising public safety officials [sic], and other information or
proposals that may be necessary to carry out this act."[64] The existing
law prohibited state agencies from posting personal contact information for
elected or appointed officials on the Internet without their permission.
The amendment broadens the provision to make it illegal for anyone to post
home information while extending protection to public safety officials and
their immediate families.[65] The intent of this law is to protect
government and public safety officials who may be targets of criminals or
terrorists.
Summary of Access-to-Information Legislation
With few exceptions,[66] most of the new state legislation has comparable
goals and means of limiting public disclosure of government information in
the interest of protection from terrorism. The areas that received the most
protection included public water supplies, architectural and engineering
plans for public buildings, security plans, emergency response plans,
vulnerability assessments, and public utility plans. It is interesting to
note that in 2001, all of the information restricted by the new laws was
open to the public, and much of this information was readily available on
government Web sites as well as in government offices. Members of the media
and citizens who previously accessed this information for perfectly
legitimate purposes no longer can do so in the restricted states.
Implications of Legislation
Debate over the implications of new legislation restricting public access
to government information is divided: There are those who believe the
legislation helps prevent terrorism, and there are those who only see it as
an assault on the rights of the media and the public to scrutinize the
government. Despite the debate, legislation passed around the country
"represent[s] the biggest rollback of open-government laws since they were
passed in the 1960s and '70s," according to a USA Today report.[67]
Many argue that the measures are necessary to prevent terrorists from
gaining information they need to plot future attacks. Doug Friez, the
homeland security coordinator for North Dakota, said, "This is information
that could be used by someone with illegitimate intent to do harm. It
probably isn't necessary for it to be a matter of public record where the
key to the smallpox vaccine is."[68] Washington state's Senior Assistant
Attorney General Elaine Rose echoed the concern of many government
officials, saying, "We're simply trying to protect those documents we think
shouldn't be out there so somebody who wanted to do an evil deed wouldn't
have a blueprint for it."[69] Louisiana Rep. Hunt Downer, who authored the
bill that was passed to protect his state's ports, said that having open
records is "like giving your war plan to the bad guys."[70] Maryland Gov.
Parris N. Glendening recognized the need for balance between openness and
protection, saying, "We want to guarantee freedom of the press but at the
same time guarantee security."[71]
Many critics of the sweeping changes in access-to-information laws state
that this is just the beginning of limits on information. Paul McMasters,
ombudsman for the Freedom Forum, explained, "We're just seeing the first
wave. Everybody's going to see the potential for closing down meetings and
for closing access to a variety of records."[72] The executive director for
the First Amendment Foundation, Barbara Peterson, concurred that there is
an alarming trend, adding, "To protect security of citizens does not mean
you have to close everything."[73] Florida Rep. John Carassas explained the
value of access to information: "The public records law is intended to be a
check on the entire system…. If we chip away at it every year, it's really
not the open government that we want."[74] Maryland Rep. Roy P. Dyson
further questioned the practicality of the restrictions, pointing out that
terrorists didn't need blueprints to know where to hit the World Trade
Center towers with the hijacked airliners.[75]
Rebecca Daughtery, from the Reporters Committee for Freedom of the Press,
summed up concerns by stating, "The public has incredibly strong interest
in knowing what the government is doing to protect the public."[76] Because
many states have prohibited release of threat assessments, evacuation
routes, and emergency response plans, citizens have no way of knowing what
the plans entail or if they would even work. "How are we expected to know
if an evacuation plan is adequate if they don't tell us what it is?"
questioned Joe Cook, executive director of the American Civil Liberties
Union of Louisiana.[77]
Access to government information is a vital part of both a citizen's role
in a democracy and a reporter's role as watchdog of the government. As more
and more information is kept secret in the name of national security,
public knowledge of government efforts to protect citizens, changes in
governmental policy, and even awareness of future limitations on statutory
rights will be further inhibited. While many argue that the new laws are
too broad and ultimately make secret much information that is not
beneficial to terrorists,[78] the bottom line is the desire to maintain
government accountability. "The fact of the matter," said McMasters, "is
that access to information for all but the most sensitive of information is
a good thing. It creates pressure on those in charge to fix things."[79]
Discussion and Conclusions
In answering the first research question, "What changes have been made in
state access-to-information laws since September 11, 2001?," this paper has
shown that many of the recent exemptions to public records and open
meetings affect areas of government that the public is acutely interested
in: certain public health reports, gas and electric power for their homes,
security plans for their children's school, and emergency response plans
for their communities. These and many other governmental services listed in
the new legislation are essentially invisible to the public on a daily
basis, but become glaringly obvious when something goes wrong. The American
public wants to know how the government is protecting these services and
may not be comfortable with their elected officials handling these issues
in secrecy. The fact that all 50 states and the District of Columbia
introduced bills, and that all but nine states succeeded in passing
restrictions to records and meetings laws in just two years, suggests that
the country is experiencing a national trend toward increasing governmental
secrecy.
While the answer to the second question, "What are the possible
implications of these changes for the media and the public?," is not as
clear, it may become more apparent as legislatures continue to pass laws
and the media begin to challenge them. In 2003, the Manchester (Conn.)
Journal Inquirer challenged state officials' refusal to provide information
on smallpox vaccination plans, which the officials said was exempt under
the new Connecticut law.[80] Undoubtedly, more challenges will crop up
around the country as reporters are denied access to information about
anti-terrorism efforts, as well as less benign but important subjects that
affect Americans' daily lives.
Appendix 1. Categories of anti-terrorism legislation affecting state public
information laws.
Records exemptions to ensure safety and security
Closed meetings to ensure safety and security
Provisions for the media
Call for further study
35 states; 51 bills
13 states; 17 bills
3 states; 3 bills
3 states; 3 bills
Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware,
District of Columbia, Florida, Georgia, Idaho, Illinois, Indiana, Iowa,
Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Nevada, New
Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Tennessee,
Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wyoming.
Alaska, Arkansas, California, Georgia, Illinois, Iowa, Nevada, New
Hampshire, North Carolina, Ohio, Oklahoma, Texas, Virginia
Illinois,
Oregon,
Texas
California, Connecticut, Kentucky
N.B. Number of bills does not total 62 because some bills included multiple
measures that were counted in different categories.
Appendix 2. Examples of anti-terrorism legislation affecting state public
information laws.
Records exemptions to ensure safety and security
Closed meetings to ensure safety and security
Provisions for the media
Call for further study
• Public building blueprints
• Construction documents and permit records
• Plans for large public facilities, i.e. bus stations, sports stadiums,
convention centers, ports
• Telecommunication network records
• Security plans and training manuals
• Emergency response procedures
• Building safety and fire safety plans
• Vulnerability assessments
• Business trade secrets related to emergency planning that are released to
government agencies
• Security plans for public utilities (water, wastewater, electric, gas,
pipelines)
• Maps showing location of utilities
• Computerized GIS data
• School safety plans
• Terrorism investigations
• Participants listed in Biological Agents Registry
• Certain public health reports
• Explosives Information
• Some National Guard Operations
• Any information that could aid terrorists
• Legislative meetings
• Meetings of water distribution boards
• Discussions of security personnel issues
• Discussions of threats of criminal activity against state property or
personnel
• Meetings to discuss response to terrorist activity
• Meetings to discuss public safety and security plans
• Meetings discussing utilities and public transportation
• Meetings to discuss emergency response procedures
• Any meetings discussing information that can aid terrorists
• Criminalized disclosure of information from a closed meeting
• Allowing media access to computerized GIS data that was exempted
• Allowing media to attend closed sessions related to security matters, but
cannot publish any information
• Allowing media to monitor emergency communications
• Task force to study ways to increase security of records related to terrorism
• Assessment plan to evaluate susceptibility of water to contamination
• Report on how to protect public safety officials' personal contact and
residence information
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