TRANSPARENCY TUESDAY: Taking stock of where legislatures broadened -- and narrowed -- public access laws in 2013
Summertime means most state legislatures have called it quits for the year, which means it's timely to assess where the public's right of access to meetings and records has advanced and where it has declined.
Here are a few examples of newly enacted changes in state open-government laws that journalists should be aware of. Even if these changes don't directly apply to your state, legislative ideas are prone to propagate. So if there's a setback for transparency in one state, chances are a comparable proposal is headed your way.
Police investigative records: Legislators in Vermont largely patched a dangerous gap in the state's open-records law that enabled police to keep investigative records sealed permanently -- even after the conclusion of a case, when secrecy had ceased to serve any discernible purpose. The ability of police to withhold documents on the grounds of an "open investigation" remains one of the most widely abuse loopholes in all of open-government law. Statutes that were intended to protect the confidentiality of undercover informants and other insider investigative details that might actually interfere with cracking a case are instead routinely used to obstruct public accountability even when the trail of an unsolved crime has been cold for decades.
Concealed gun permits: Five states (New York, Tennessee, Arkansas, Louisiana, Mississippi) enacted laws closing public access to databases showing the names and addresses of those issued permits for concealed weapons. The wave of legislation followed a New York newspaper's controversial decision to publish an interactive map displaying the addresses of all concealed-carry permitholders in two suburban counties.
Illegally closed meetings: Responding to a scandal at the University of Maryland in which trustees belatedly 'fessed up to illegally meeting behind closed doors to endorse Maryland's move to the Big 10 athletic conference, Maryland legislators made violating the state's open-meetings law a little more embarrassing. HB 331 requires a body that is found to have unlawfully excluded the public from its meetings to openly acknowledge the violation at its next public meeting. (What the law still fails to do is provide meaningful penalties -- like removal from office -- for anyone who knowingly participates in an unlawfully closed meeting.)
Records of homicides: To head off the release of crime-scene photos from the December 2012 Newtown school massacre, Connecticut enacted a law that retroactively takes photos of homicide scenes off the public record, as well as any portion of 911 audio recordings where a murder victim's body is described. The law actually was tamed from a broader proposal that would have exempted all 911 audiotapes from public disclosure.
Private college police: One of the best developments for transparency -- one that states everywhere should emulate -- came in North Carolina, where private-college police will have to release more detailed information about how they respond to crimes, including the circumstances of any arrests they make. The law was prompted by a college broadcaster's open-records lawsuit against Elon University, which spotlighted a shortcoming in FOI laws nationally that enable private colleges to exercise state arrest authority without public accountability.
The biggest story for openness in government often is what legislatures are prevented from doing, and in 2013, no development was bigger than California's timely turnaround that rescued the Public Records Act from the cliff's edge. A public outcry persuaded Gov. Jerry Brown to veto a killer provision that would have let local governments simply refuse to comply with requests for public records on the grounds of cost, essentially making compliance with the law voluntary.
All journalists should be watchful of bills amending state open-meetings and open-records laws, even ones that seem harmless. Innocuous bills can morph into sweetheart exemptions that take even more of the public's business out of public view. One easy way to keep track of proposals affecting open-government laws is by setting a keyword alert using the Sunlight Foundation's free service, Scout, which generates updates on federal or state legislation (or both) whenever a bill is acted on.Tagged: legislation, public records, state legislation, transparency, Transparency Tuesday