By Andrew DeMillo & Ryan J. Foley
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-year-old victim.
Iowa lawmakers succeeded in passing another anti-transparency 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 open-records 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.”