Earlier this year, citing security concerns, Florida's legislature passed a bill exempting blueprints and schematic drawings of privately owned recreation facilities and entertainment complexes from the state's public record. That bill was similar to another passed in 2002, which exempted the plans for public facilities from disclosure. Previously such information, by virtue of being submitted to local government agencies, had to be made available upon request to any citizen.
Indeed, lawmakers moved quickly during special legislative sessions following the terrorist attacks of September 11, 2001, to propose dozens of exemptions to the state's well-respected open-government laws (often referred to as "sunshine laws"). Only a handful of secrecy measures, however, have been enacted into law. Among them: hospital security plans and the location of pharmaceutical stockpiles. "Not one security exemption has passed that we opposed," says Barbara Petersen, president of the Florida First Amendment Foundation.
Around the country, the desire to protect against public information being used to plot terrorist strikes has prompted a wave of revisions to freedom of information statutes. More than half the states have added security-based exemptions to their open-records or open-meetings acts. While open-government groups acknowledge that the potential for danger in the post-9/11 world justifies some additional exclusions to the public record, they have contested many of the proposed changes. The exemptions, they argue, often overreach and can lead, ironically, to citizens' inability to know what their governments are doing to protect them.
EXPANDING EXEMPTIONS
The federal Freedom of Information Act became law in 1966; shortly afterward, most states followed with their own versions. The statutes put the burden on government to prove why a record or meeting should be closed, rather than on citizens to prove why it should be open. Since their inception, FOI laws have included generally agreed-upon exceptions. Some of the most common are protection of trade secrets, some personnel information and law enforcement records.Florida was an FOI pioneer, passing its first public records law in 1909. An amendment to the state constitution in 1992 guaranteed access to the public records of all three branches of government. Despite 900 exemptions, Florida's statutes are highly regarded because exemptions are narrowly tailored (separate processes are required to exempt similar types of documents in different agencies) and legislators must propose them in single-issue bills, identified as relating to the open-records or open-meeting law.
That's in stark contrast to the way some states have gone about adding security-related exemptions to their FOI laws since 9/11. Like Florida, many states have sought to deny access to blueprints and diagrams of government infrastructure. Frequently, however, new exemptions have been tucked into omnibus homeland security acts and applied to broad categories of information, such as emergency preparedness plans.
Critics charge that in an attempt to be proactive, measures proscribing access were applied too widely and too quickly. "A lot of these were knee-jerk reactions," says Jane Kirtley, a professor of media ethics and law at the University of Minnesota. "There were some successes, but the net sum was a loss of public access." Other open-government advocates say the changes are based on a flawed presumption that sealing off information will prevent terrorists from learning about government vulnerabilities. "There's no evidence that the [9/11] terrorists used FOI information to plan their attacks," says Grant Penrod, a legal fellow at the Reporters' Committee for Freedom of the Press.
State officials, however, maintain that the changes were necessary. The fact that information previously was in the public domain shouldn't keep governments from reconsidering their FOI laws in light of altered circumstances, notes Pat Gleason, general counsel in the Florida Attorney General's office.
Iowa also moved swiftly to amend its open-records and open-meetings laws. In 2002, legislators passed a bill making protection plans for the state's critical assets and emergency plans for schools and water utilities confidential. The list of critical assets isn't codified in law; it varies between 60 and 150 key pieces of infrastructure--such as airports, power plants and government buildings--depending on the threat level. Those who are interested can view the list, but not make copies of it, at the state's Division of Emergency Management office.
Ellen Gordon, Iowa's homeland security adviser, believes the state took the right approach to adding exemptions. "We were careful to make sure we only exempted what we needed to," she says, adding that lawmakers wanted to strike a balance between preserving open records and protecting sensitive information.
Despite such good intentions, some people think the state may have gone overboard. "A lot of these provisions were an alarmist reaction to 9/11," says Kathleen Richardson, executive secretary of the Iowa Freedom of Information Council. In fact, legislators will reconsider some of their FOI changes in 2007, when the exemptions for school and water utility emergency plans sunset. The majority of states, though, haven't built sunset clauses into their security exemptions.
During its past two legislative sessions, West Virginia doubled the number of exemptions in its FOI law, which had had only eight such categories since its passage in 1977. One of the changes exempts "security or disaster-recovery plans, risk assessments, tests or the results of those tests." Terry Wimmer, a journalism professor at West Virginia University, fears that exemption will keep important information from the public about preparations for mining disasters.
While acknowledging that some documents should not be disclosed, Charles Davis, executive director of the Freedom of Information Center at the University of Missouri, notes that exemptions can strip the public of its oversight role. "It undermines public confidence in homeland security," he says. "If you don't know what they're doing, you can't know they're doing anything."
Representative Ray Allen kept this balance in mind as he drafted the changes to Texas' open-government laws, which were rolled into the state's omnibus Homeland Security Act and passed in 2003. The bill stemmed from the need to protect risk assessments--particularly for high-profile structures such as nuclear power plants--from would-be terrorists.
The challenge, Allen says, was to craft the bill in a way that both protects "bonafide, sensitive information" while not closing off access to information that governments find embarrassing or would just rather not disclose. Texas accomplished that task, he notes, by bringing together a variety of stakeholders to provide input on the bill's language.
Katherine Garner, executive director of the Freedom of Information Foundation of Texas, agrees that the variety of voices improved the bill's final draft. She is especially pleased about the law making the state the final arbiter on what is subject to closure, eliminating potential confusion between the state and localities. "I know it could have been a lot worse," Garner says. "Information is flowing."
Since the bill's passage, the state has yet to encounter serious challenges to the new rules or evidence of abuse. Shortly after its enactment, a German public interest group made FOI requests related to research being done at a state university on pathogens used in biological warfare. The new exemptions required the documents be kept confidential. "Texas has an interest in not releasing that information to a foreign organization," Allen says. "That need is crystal clear.
Allen does not rule out the possibility of revisiting the exemptions in the future, however. One unresolved debate centers on a common open-government argument: how the government discloses to citizens that it has plans to protect them--including the costs of those plans- -without releasing details that would expose vulnerabilities. "The public has a right to know how we're investing their tax dollars," he says. "That's a legitimate public policy debate, even when it relates to homeland security."
CORPORATE COVER
Meanwhile, states are bracing for the impact a controversial provision of the federal Homeland Security Act of 2002 may have on information flow. The Critical Infrastructure Information Act allows private companies to voluntarily submit information about the security of critical infrastructure to the federal Department of Homeland Security. That information, which would typically become public by virtue of being given to the government, is exempt from FOI requirements.That exemption has spurred concern that companies will submit reams of documents to the federal government with the purpose of keeping potentially damaging information, such as non-compliance with environmental regulations, out of the public eye. Without public pressure, notes the University of Minnesota's Kirtley, many of those problems may go unfixed.
It's too soon to know exactly what the federal exemption will mean to state FOI laws. States will be watching for a freedom of information request challenging the exemption, the Homeland Security Department's response and the lawsuit that's likely to follow.
For now, the state security-exemption trend seems to be slowing--most states considered bills in the 2002 and 2003 legislative sessions-- although future terrorist threats could prompt another round. And while many citizens may agree that some additional exemptions for security reasons were sensible, they continue to voice support for more open government.
California's voters will go to the polls to consider enshrining their FOI laws in the state constitution this November. Florida, meanwhile, passed a constitutional amendment in 2002 that requires a two-thirds supermajority to add new exemptions. In the legislative session that followed in 2003, dozens of exemption bills were filed; only four passed. All in all, "the burden is where it should be," says Barbara Petersen of the Florida First Amendment Foundation. "I think we strike the right balance."
