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FOI Columns
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May-June, 2002
Proposed FOI exemptions at state agency level require healthy skepticism
By Charles Davis


How much deference do we pay our elected and appointed officials in a time of crisis and uncertainty? In a representative democracy still reeling from the aftershock of Sept. 11, this is much more than an academic question.

When faced with issues of homeland security, some public officials would rather take matters into their own hands. Trust us, they say: we'll do what's right, protect you and keep our hands out of the cookie jar in the process. No need for the public, or the press, to muddle things up by scrutinizing the process.

In statehouses across the country, the theme of security has often been accompanied by new legislation aimed at increasing government's control over information relating to virtually anything that could be labeled"security." Lawmakers in Florida may set the record for exemptions to the state's public records law in a single session, but they are far from alone. Idaho, Maryland, Washington, New Jersey, Kentucky, Ohio ... The list of states clamping down on information grows longer every day.

That's a troubling development. Equally, if not more troubling, is the docile reaction from reporters and newspaper editorial boards, who seem reluctant to enter the fray by looking with a healthy dose of journalistic skepticism at such efforts. When public officials, draped in the patriotic fervor of Sept. 11, propose new exemptions to FOI law, it is crucial for reporters to place the laws in the context of legislative history and of political reality. A look at one bill - in my home state of Missouri - illustrates the need for more reporting on this rash of new exemptions.

A bill sponsored by a state representative is moving at lightning speed through the Missouri legislature, and despite its checkered past and dubious future, little has been said against it. The bill is like many other FOI bills pending in statehouses across the country. It would bar the release of any information furnished to the Public Service Commission by a municipal utility, unless the material is specifically required by law to be open to the public, is ordered open by the commission, or is made public by the commission during a hearing or proceeding. The bill also would empower municipal utilities to file a motion for a protective order, not with the courts, but with the PSC within three business days after receiving a request for information that the utility considers "proprietary,""highly confidential," or, finally,"critical to security."

First, note that the bill essentially turns the state's public records law on its head by replacing the law's presumption of openness with a presumption of closure. Under the current law, all records of government agencies subject to the act are open unless they fall under certain tightly worded exemptions. This bill's radical response to what has been a hallmark of the public records law since its inception is to ask the public,"What business is it of yours?" Then, after a huddle with the PSC, which to date has not given its blessing to the bill, the utilities might just provide the information. Then again, they might not. It depends upon whether the PSC deems the records "highly confidential."

Notice also that security is the last of three stated reasons for denial of access under the bill. The other two -closure for records deemed "proprietary"or "highly confidential" - get more to the heart of the utilities' Christmas shopping list.

Are there utility records that might need to be protected in a post-Sept. 11 Missouri? Certainly. Portions of vulnerability assessments, construction plans, emergency response plans and other such records might very well meet some asyet-undefined legal standard for closure. If the legislative and judicial branches can develop tools to discern voluntary manslaughter from involuntary manslaughter, can they not define security interests as well?

This bill, sadly enough, addresses such concerns as an afterthought to proprietary interests. What proprietary interests, you might ask? After all, public utilities are just that:taxpayer-funded, financially accountable public entities. This is where knowing your legislative history comes in. When last we heard a pitch for secrecy from our municipal utilities, the argument was that impending deregulation would doom them to competing with private companies that do not have to disclose their records. Thankfully, California's deregulated power markets have given our legislature pause, but the logic behind the latest call for secrecy falls against the immutable fact that publicly owned utilities cannot have the privileges of private companies.

Unless they can change their funding sources, municipal utilities are always going to be, in part or in whole, taxpayer funded. The public must have the right to know how any government agency spends its money.

The utilities seeking this flawed exemption are right about one thing:The state must address some pressing security issues in the wake of Sept. 11. Everything else about this bill begs for greater journalistic scrutiny, for tough questions about how the attacks of Sept. 11 make it necessary to put public records within the discretion of the state PSC. I'm hoping those questions are being asked, and that they are asked in statehouses across the country. Readers and viewers deserve nothing less.

Charles Davis is executive director of the Freedom of Information Center, an assistant professor at the Missouri School of Journalism and a member of IRE's First Amendment Committee.