State Sunshine Laws Under Attack
By Greg McDonald, Senior Writer
All over the country, state legislators are trying to limit public access not only to their own records and deliberations, but to other forms of public information as well. And nowhere is this trend more apparent than in Florida, which historically has been in the forefront of open records statutes, commonly known as sunshine laws.
To hear some state legislators talk, nothing is more sacred than privacy - especially their own.
In Indiana, members of the legislature were so intent on shielding their emails from the prying eyes of the media they passed legislation this spring - later vetoed - exempting themselves from open records statutes, known as sunshine laws.
In Iowa, several lawmakers are working to prevent the public release of concealed weapons permits and applications.
In Wyoming, lawmakers have already succeeded in shutting off public access to concealed gun records. Now state officials are working behind closed doors on a more restrictive open records law that would greatly limit access to police investigation files.
In Kentucky and New Mexico, government officials are trying to block access to meetings and information by concealing agendas and content. Some public agencies in Kentucky are demanding to know the reason for inspecting records and are basing the release of information on whether they deem the explanation acceptable.
In North Carolina, the legislature has repeatedly rejected bills that would force local governments to end the practice of holding closed-door meetings on public matters.
And in Maine and Colorado, legislators are still making decisions over public issues in private, despite constituent complaints and threats of lawsuits charging violations of open meetings laws. In fact, all over the country the people's representatives are busy trying to limit public access in every way they can not only to their own records and deliberations, but to other forms of government information as well. Hundreds of bills aimed at weakening open records laws have been introduced this year. While many of them are harmless, lawmakers are increasingly using growing concerns about personal privacy as a catalyst for putting traditionally-accepted forms of public information out of public reach. Nowhere are they acting more committed to rolling back sunshine laws than in Florida, where lawmakers introduced 134 bills this year limiting public access.
Last month, for example, Republican Gov. Jeb Bush touched off a heated debate over how far the state could go in limiting access to public records by signing into law a bill prohibiting the release of autopsy photos. His action, following a plea by stock-car driver Dale Earnhardt's wife and NASCAR officials, has led to two lawsuits by first amendment advocates claiming the new statute violates the state's constitutional guarantee of public access to government information.
The law's passage slowed two newspaper investigations into whether Earnhardt was wearing a protective head restraint at the time of his tragic death in this year's Daytona 500 race. The restraint information was considered by the papers to be crucial in determining how Earnhardt died.
Although the autopsy measure appeared to have the backing of Floridians concerned the Earnhardt photos would be published or posted on the Internet, most of the 134 bills introduced this year imposing exceptions on state open records laws did not. Only 31 of the bills passed before the legislature adjourned earlier this month, and nearly all of them closed off or limited access to information that had long been available to the public, according to the Florida First Amendment Foundation (FAF).
The foundation, however, was instrumental in killing one of the more controversial measures. It would have barred the release of adverse incident reports doctors are required to file with the state detailing everything from wrongly prescribed medicines to surgical errors resulting in death. The medical report exemption was never brought up for a final vote. "These (reports) are required by law to be filed (with state health authorities). This is a situation where the doctor realizes the doctor has made a mistake... And they wanted to keep that covered up," said FAF Executive Director Barbara Petersen.
But open records advocates were not able to stop an equally controversial bill expected to shut off access to nursing home accident and death reports.
The situation in Florida may be an extreme example of what's happening around the country. But more and more legislators are challenging existing laws meant to protect the public's right to know what government is up to. Some lawmakers are moving to further remove themselves from public scrutiny by using personal privacy issues as an excuse for their actions.
In Indiana, Gov. Frank O'Bannon has just vetoed a bill that would have exempted state legislators from open records laws. Although a provision dealing with computer emails was dropped from the final version, it still would have given lawmakers the power to decide on their own which legislative records should be released and which ones should be kept secret.
The bill was introduced as an angry reaction by some lawmakers to a request from a television reporter for access to their emails. In his veto message, O'Bannon chastised the bill's sponsors for overreacting to the media request even though he agreed with complaints that it may have been "needlessly invasive." Nonetheless, the governor insisted "the legislature's records should be open to the public, with a few carefully crafted exceptions" designed primarily to facilitate the "making of sound public policy."
Next door in Illinois, bills aimed at strengthening public access to information and reinstating a legislative code of ethics, which was struck down in a court decision last year, are now stalled in a subcommittee for further study.
Although legislative leaders claim they are not intentionally holding up the bills, Dave Bennett, the executive director of the Illinois Press Association, says lawmakers have a habit of dragging their feet indefinitely on legislation they hate. in Springfield.
The apparent proliferation this year of public access bills - that seem designed to accomplish the opposite of what their titles suggest - can in part be explained by Internet-driven public concerns over personal privacy and by recent court rulings giving lawmakers more leeway in deciding what to keep private.
For example, the Tennessee Supreme Court's refusal recently to hear a television station's challenge to closed-door meetings by lawmakers left intact a lower court ruling that the state's open records law does not apply to the legislature.
Such rulings are chilling to advocates of open government.
"We do see a lot of decisions and bills each year based on making things more confidential," says Rebecca Dougherty, who heads the Freedom of Information Service Center at the Washington, D.C.-based Reporters Committee For Freedom of the Press.
"I think the whole (personal) privacy issue is largely out of control...The public certainly wants its government to be transparent and held accountable. But if you start closing off access, then what kind of government do you have?" adds Dougherty.
Petersen, who served recently on the governor's task force on privacy, concedes that some of the bills passed by the Florida Legislature this year dealing with individual medical and financial privacy issues probably are necessary. But most others, she says, go too far.
"What they're doing is stretching the privacy issue out of shape to cover almost anything they don't want the public to see," she says. "They're not thinking...What they should be doing is making distinctions between an individual's personal right to privacy and the public's right to access government records."