Is This the Demise of Open Government?

AAN attorney looks at threats to open records laws

Is it a passing mood or a frightening new world?

Several reports — including an alert from the Society for Professional Journalists — sound as if you can hear the clanging of giant doors shutting on access to public records in all 50 states, though some seem to be clanging more loudly than others:

• This month, Florida Gov. Jeb Bush reportedly signed 11 bills aimed at security issues, including closing records about security plans and drug stockpiles.

• Tampa Bay Online reported in November that the Florida legislature decided NOT to pass a bill that would allow the police to make any public record secret. (Whew!)

• According to the Associated Press, the Massachusetts Water Resource Authority announced that it would not release descriptions of its water delivery, sewer infrastructure, or emergency response plans.

• U.S. Attorney General John Ashcroft announced that agencies legitimately turning down FOIA requests will have the DOJ’s support.

Is that cataclysmic or even newsworthy? Florida aside, most reports of new legislation speak in terms of bills proposed or drafted rather than legislation enacted and signed into law.

While you watch your general assembly for bills actually headed for legislation rather than publicity grabs, here are some practical suggestions — based on my experience with access to records laws in a handful of jurisdictions.

In Maryland, West Virginia and New York, for example, the open records laws allowing a custodian of the records to deny access also require the custodian to explain the denial. In addition to a citation to the exemption authorizing refusal to disclose a record, the custodian is required to explain why the exemption applies to the particular record.

In Maryland, the “reasons for the denial” are required within 10 days of the request; in West Virginia, within five days. In New York, the head of the agency “must fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought” when a denial is appealed to the head of the agency.

In Washington, D.C., not only is the custodian of the record required to explain “the specific reasons for the denial, including citations to the particular exemption(s),” but is also required to name “the public official(s) or employee(s) responsible for the decision to deny the request…”.

Isn’t all that information worth a news story? Consider reporting your FOIA requests, especially the denials.

In a speech I heard recently, Tom Blanton from National Security Archive insisted that newspapers are not covering FOIA matters as news and they should be. I had thought I was the only person in the world with that view.

Now that I know I have good company, I am emboldened to say that access to records matters are not your private business concerns. Tell your readers when you’ve been denied access to records (and meetings) and why; if you have an explanation, then editorialize. According to a December article in “Presstime”, the Newspaper Association of America’s monthly magazine, the American people don’t care about access to government information. If you don’t tell them about access, how is anyone to know or care?

And finally, why don’t you ask whether anyone has requested infrastructure information in the last year? In the District of Columbia, for example, each “public body shall maintain a file of all letters of denial of requests for public records. This file shall be made available to any person on request for purposes of inspection and/or copying.”

So ask. Who wanted to see the builder’s plan for the subway? Who asked for a tour of the water treatment facility? The Water Authority may have the right idea in refusing access to their plans, or, they might be over-reacting. When you run across a story like that, why not ask the agency: How many requests have you received in the last year for those maps and who wanted to see them? You never know what you’ll find out if you don’t ask.

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