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First Amendment Under Attack from Anti-Terrorist Measures
The Constitution Project's Liberty and Security Initiative, launched soon after the terrorist attacks of September 11, recently released a report detailing the effects that policies adopted in response to the terrorist threat have on the First Amendment. The report, and its various signatories, clearly recognize and support the federal government's objective to protect Americans from terrorist threats, attacks, and activities. However, the Initiative members also acknowledge the vital importance of the fundamental rights and values protected by the First Amendment. Unfortunately, the report finds that those values have been infringed upon by several anti-terrorist measures.
Four areas where anti-terrorist policies have not respected these values:
(1) Excessive secrecy of the Bush administration and federal agencies;
(2) The government's policies to preclude disclosure of information about detainees and immigration hearings;
(3) The weakening of the Freedom of Information Act (FOIA); and
D(4) The changes in the FBI surveillance guidelines.
The Initiative proposes several specific recommendations for the executive and legislative branches of the federal government to achieve a better balance between protecting national security and preserving First Amendment guarantees.
The First Amendment is vital to hold our government accountable. Openness in governmental decisions and activities must exist or else citizens will not know what their leaders are doing, and they will have no way to judge them or to initiate the robust policy debates so necessary to a free society. The report also takes the position that openness is an important weapon against terrorism.
It also reminds the world that the United States tolerates criticism, which in other countries might be punishable.
U. S. Supreme Court rules public safety outweighs privacy
Posting sex offenders' personal information on government Web sites is not an additional punishment for convicts who have served their time, the U.S. Supreme Court ruled in March.
Though the majority opinion didn't use the term "privacy," its reasoning mirrored that of lower courts holding that sex offenders have a diminished expectation of informational privacy outweighed by the public interest in knowing where they live.
The Justices also spoke approvingly of government using the Internet to disseminate public records containing personal information.
That's a marked departure from the Court's previous disapproval of using computers to remove the practical obscurity created by the time and travel needed to collect criminal records on paper. It's unclear, however, whether the change in attitude will apply to records regarding anyone other than social outcasts such as convicted sex offenders.
Thirty-four states (including Oklahoma), the District of Columbia and perhaps hundreds of local law enforcement agencies post the names, home addresses and sometimes photos of convicted sex offenders on government Web sites for the rest of the public to see. Conducted under the auspices of each state's Megan's Law, the dissemination of this information is intended to alert neighbors to the presence of sex offenders in their communities so that they may protect themselves against possible repeat offenders.
In a number of states, convicted sex offenders challenged the Megan's Laws as unconstitutional ex post facto laws and/or as violations of the Fourteenth Amendment. Some also contended that distributing their personal information to the public invaded their privacy. The Supreme Court heard challenges to the statutes in Alaska and Connecticut, both of which made their registries.
Writing for the six-member majority in the Alaska case, Justice Anthony Kennedy rejected the contention that Megan's Laws resemble shaming punishments of the colonial period. The stigma results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public he said. our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment. The fact that Alaska posts offender information on the Internet does not alter this conclusion.
It must be acknowledged that notice of a criminal conviction subjects the offender to public shame, the humiliation increasing in proportion to the extent of the publicity. And the geographic reach of the Internet is greater than anything which could have been designed in colonial times. These facts do not render Internet notification punitive. The purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate the offender. Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.
Visiting the state's online registry of sex offenders is more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality Kennedy said. the Internet makes the document search more efficient, cost effective, and convenient for Alaska's citizenry
(Smith v. Doe, 123 S. Ct. 1140 (2003); Conn. Dep't of Pub. Safety v. Doe,
123 S. Ct. 1160 (2003))
Joey Senat, FOI Board Member and Assistant Professor,
OSU School of Journalism and Broadcasting
2003 legislative session full of FOI issues
Dozens of bills introduced in the Oklahoma Legislature regarding the closure of records and meetings were shelved or killed after opposition from FOI proponents. It was one of the busiest sessions for FOI issues in several years. This article will not address what might have passed - we would do well just to learn what passed, and be watchful and wary about how it will be interpreted and applied at the local level.The hard part of legislative summaries is we typically remember the agony of defeat much longer than we remember the thrill of victory. This session had plenty of both. It is even more difficult to define victory and defeat in the ever-changing world of law-making. For example, a major bill passed this year amending the open meeting and open records act under the auspices of Homeland Security. Some will read the bill and say it is a terrible defeat for FOI, but those who worked on the legislation will say "you should have seen what it said before!"
The great equalizer is those who feel defeated can talk to their legislators this summer and fall, and get down to the capitol next February and try to set things right.
To make this summary easier to write (since the deadline has passed three times) we're going to simply list House and Senate Bill numbers in order and summarize each piece of legislation. You can review the actual bill language by looking at the web site of the Legislative Service Bureau - www.lsb.state.ok.us
HB 1030 - Local Career Tech Videoconferencing authority - By Rep. Piatt and Sen. Robinson. The bill gives new authority to local career tech boards to videoconference under certain conditions, including a majority of the board being at the meeting site, and the public must be allowed access to the official and site where the videoconference is taking place. Could be abused but could also have some advantages for the media.
HB 1058 - Adds "print and electronic media" to Whistleblower Act - By Rep. Ellis and Sen. Corn; Whistleblowers can contact the media about government wrongdoing and not be guilty of a crime for not going through other channels first. A very helpful bill for the media, and also highly supported and lobbied by the Oklahoma Public Employee's Association.
HB 1146 - Requires state environmental agencies and public utilities to keep confidential their water and wastewater vulnerability assessments - By Rep. Balkman and Sen. Reynolds; Language was deleted that stated that "information relating to" vulnerability assessments could be confidential, which improved the bill slightly.
HB 1270 - Allows the Board of Embalmers and Funeral Directors to keep examinations for licenses to embalm to be confidential. However, test scores and the list of who has passed and/or failed is an open record. Also lets the Board meet by teleconference. - By Rep. Hilliard and Sen. Shurden.
HB 1271 - Attorney General Drew Edmondson fought for and won a complete exemption from the Open Records Act, closing the name and address registry of the Telemarketer Restriction Act. This is a financial issue for the AG's office; they can't sell the list if people can look at it free. Therefore, closing the list to keep the price high was necessary. Before purchasing the list, buyers are also required to sign an agreement they will not share or sell the list. Both of these are dangerous concepts in the realm of open records; close it to keep the price high and then require a signed statement that you won't share the record you just purchased. By Rep. Newport and Sen. Leftwich.
HB 1646 - Allows schools to give information to other schools without violating the student confidentiality laws - By Rep. Ferguson and Sen. Wilcoxson.
SB 395 - Adds to the list of executive sessions allowed for homeland security reasons, and allows closure of certain records for those same reasons - By Sen. Dunlap and Rep. Winchester. A careful reading of the bill is required to get the full extent of the legislation. The bill, in basic terms, allows public bodies to go into executive session, or close records, about investigations of a plan to engage in an act of terrorism, or investigations of an act of terrorism, defensive plans for acts of terrorism, response plans for acts of terrorism, information technology infrastructure if specific information is to be discussed. The bill clearly is the most sweeping change to the open meeting and open records act this year. Attempts were made to remove all language using catch-all phrases such as "relating to" from the bill. Although the bill is much better than the original proposal by the author, there will be areas of conflict about the application of this legislation.
Federal Law affects states - Homeland Security Act: Sensitive but Unclassified" Provisions
A relatively unnoticed subtitle in the Homeland Security Act of 2002 further threatens government openness. Title VIII, Subtitle I establishes procedures for sharing "homeland security" information among federal, state and local authorities. The President is required to "prescribe and implement procedures" for safeguarding "sensitive but unclassified" information and allowed to set limits on the use and reuse of such information given to states and localities.These provisions were passed within the Homeland Security Act without any debate or discussion by Congress.
These procedures could easily be established without any public input or Congressional oversight. The provisions could also expand the OMB efforts into a system of secrecy that creates a new category of information beyond classified and the exemptions under the Freedom of Information Act. To follow this debate check the OMB watch website www.ombwatch.org
Around the nation….
ALEC-backed Attacks on E-Gov'tLegislation backed by the American Legislative Exchange Council that would stifle public access to taxpayer-funded information and services in the name of protecting commercial profits is rapidly moving through the state legislature in Ohio and is under consideration in other states.
The bill, introduced in the Ohio House of Representatives as H.B. 145, would prohibit Ohio state agencies from using electronic services if two or more commercial entities were selling the same information or service. The bill would give companies the right to sue the state agency for competing with the for-profit company if the state agency and multiple commercial entities were providing the basic government service.
In an editorial published on April 24, 2003, the Cleveland Plain Dealer called this bill a "clumsy attempt to benefit private companies that peddle public information."
This and similar bills under consideration in Massachusetts, South Carolina and Rhode Island would force government to avoid competing with the private sector. It puts private interests over the public interest and forces the public to pay companies for public information for which taxpayers have already paid. For further information and a chance to write state legislators considering the non-competition bill, read the OMB Watch analysis.
The Department of Homeland Security
(DHS) recently announced its proposed rule for the handling of Critical Infrastructure Information (CII). The rule is required by the CII provision in the Homeland Security Act of 2002 and the development of the legislation was very controversial. The legislation allows corporations that voluntarily submit information on infrastructure vulnerabilities secrecy, civil immunity, preemption of state and local disclosure laws, and protection from whistleblowers. The proposed rule contains all of the highly criticized provisions, as well as some very troubling additions that broaden the overall scope of the rule.
OMB Watch has prepared a detailed analysis of the proposed rule and submitted comments for the June 16, 2003 deadline. The analysis delves into the three main inadequacies of the proposed rule: Scope of the CII program, Use of information, and Procedures for managing CII.
If the final rule mirrors the proposed rule, then it would pose significant threats to an open and good government.
In Oklahoma….
The press release for HB 1146 stated, "Sensitive analyses of municipal infrastructures in Oklahoma will be blocked from the prying eyes of potential terrorists seeking to disrupt society and injure or kill U.S. citizens."
According to Lloyd Davis, former president of the Oklahoma Chapter of the American Public Works Association, the EPA requires Oklahoma to provide a vulnerability assessment of critical assets in its water systems. Previously that information was available for public viewing under the state Open Records Act. 1146 requires confidentiality. SB 395 addresses public records or lack of them.
The Maytag repairman -- the loneliest man in the world -- and I have a lot in common these days.
-Helen Barrett Helen Barrett is assignment editor at the Alva Review-Courier, and because of her tenacity for open records and meetings, is a member of the FOI board. She is a one-woman crusade for open government. Hardly a week goes by that she doesn't come into conflict with authorities. She's developed a reputation, even among local attorneys, as the person to ask about the legality of meetings, agendas, etc. This is a reprint of her personal column in the Alva newspaper. So far I've managed to upset members of the city council, the hospital board, the airport board, the police department, the sheriff's department, the county economic development council, the local industrial authority, the city attorney and the county commissioners.Small town attorneys seem to know little about the Open Meeting /Open Records Act except that an agenda must be published, and there has to be some sort of number put on executive sessions. They also seem to have an aversion to being shown specific provisions of the Act that contradict the advice they've given to their clients.
Trying to enlighten small town public bodies and their attorneys on provisions of The Act are about as difficult and as successful as teaching a herd of pigs to sing in three-part harmony.
Early in my journalism career, I discovered people in local government had an attitude problem. They wrongly believed the information concerning their department belonged solely to them.
A couple of letters and meetings between the police chief, his dispatchers, the fire chief, the head of the ambulance department, the city manager and the then city attorney, now Assistant Attorney General Tom Gruber, helped them realize if the newspaper asked for a record, they should probably comply.
The former sheriff still lived by the rules of the Old West. What he and his men did was nobody's business, especially not the newspaper's and even more importantly not a woman's.
Persistence and a workshop by the Attorney General attended by some of his employees helped dispel that belief. It took time, cajoling and patience but he finally began to realize we were working for the same cause -- the citizens of our county and justice.
The hospital wanted to administer the open records portion at their discretion. Under the guise of protecting patient confidentiality, they refused to give us admission and discharge information on wreck victims or anyone else. They are the one public body that most vocally resists our efforts to print their salaries.
Letters were exchanged along with intense conversations. The hospital is city owned, thus a public body. If they were going to allow patients' names to be posted on a bulletin board in the lobby and allow phone calls to go through to the rooms, they were going to provide us the same information.
It took a copy of both the Open Records Act and a booklet on hospitals' relationship to the media to get things changed. Eventually they rewrote their policy handbook to address our disagreements. Now, they have someone available at all times to answer our questions about accident victims and give us a statement of their condition.
From its inception, the Alva Airport Board believed themselves a fiefdom of their own making. For the first several years, they were nudged, gently reprimanded when a minor violation of the Act occurred.
A new chairman cooperated and began enforcing the law in making up the agendas and sticking to them. He canceled an executive session when reminded that the proper number was missing on the agenda.
The changes went over like an atomic bomb. "Have we come to that?" one member questioned when told the subject could not be discussed as "old business" because it wasn't on the agenda. He argued unsuccessfully that the subject had been discussed under current business four or five months prior and had been tabled and he wanted to talk about it now.
It didn't happen. From there things deteriorated. It was fairly obvious secret discussions were held by certain members of the board. The final straw came when three of the four board members attended an "informal" economic development recruiting dinner involving a client wanting to purchase land for a business expansion.
That land just happened to be airport land. The company just happened to make aircraft replacement parts.
The three board members just happened to tell the owners which end of the runway would be best for their location. They even accompanied the delegates to view the plot.
To further incriminate themselves, they talked about their "illegal" meeting at the next authorized board meeting and moved to approve the land requested by the company as indicated at the previous meeting.
As soon as the meeting ended, I drafted a letter to the local office of the Woods County District Attorney outlining the events and informing him that we were filing an official complaint.
The assistant district attorney contacted us asking if we wished to prosecute or to have the judiciary meet with them and sternly reprimand the offenders.
We opted for the stiff hand slap. For every argument raised by the board members, the district attorney said, "In my opinion, you were wrong. Don't make us defend you in court."
After the lengthy instructional meeting by the district attorney and his assistant, this board began getting the faint idea that maybe they should be more careful. At the district attorney's strong suggestion, they hired an attorney to attend their meetings to help keep them legal. They were warned that since they not only handled private funds but state and federal as well, they were in great jeopardy of violating a number of laws. A repeat complaint would not be handled so lightly.
A county economic development board with 19 members continually had trouble getting a quorum together. Meetings were slashed from monthly to quarterly but the problem remained. After seeking advice from their local attorney, who happens to also be a member of a state board, they decided to lower the number required for a quorum and to allow voting by proxy as is done in corporations.
After a quick call to the OPA attorneys to confirm our position, we printed a story saying this was impossible because the Open Meetings Act defined a quorum to be a majority of members present. We also pointed out that voting must be by members present.
Until last fall, city council meetings had been conducted just barely within the legal limits.
Agendas were vague and sometimes incorrect. On occasion, business was conducted without having appeared on the agenda at all. Several letters went to the city attorney's office reminding them of the law and how they violated it, not exactly a vote for a reporter's popularity.
Public comment was allowed at any and all points during the council meetings without ever appearing on the agenda. Job reduction issues created a heated atmosphere at the meetings. It became my assignment to cover their meetings temporarily. The first night a long meeting with heated debate was anticipated. However, nowhere on the agenda was public comment listed -- not at the beginning, the end nor anywhere in between.
A council member came to the office and said, "We're going to be in for a long night tonight. About 100 people are planning on coming to speak."
"They can't," I told him.
That night after a brief conference with the city attorney, who by now doesn't really like to hear the words "Open Meeting/Open Records," the mayor announced there would be no public comment since it was not included on the agenda. Murmurs grew louder from the audience. Some protested that they'd always been able to speak before and they intended to be heard.
A look shot my direction and the city attorney explained that as a public body they had to adhere to the agenda. The meeting ended quickly. Citizens approached me after the meeting saying public comments had always been allowed at meetings before. My reply was simple, "I've never covered these meetings before."
Leaving the meeting, citizens would yell to other council members, "Don't have too many of you together there or you'll find yourselves in the paper for an illegal meeting."
Deciding some public explanation was needed, I wrote a three-series article titled "It's Your Law" explaining why the Open Meetings Open Record Act actually was a benefit to the citizenry. I addressed specific topics where I had experienced violations. After each installment, city council members, board members, and officials would call me and ask if something was allowed before the meetings.
Some newer members of boards actually thanked me for helping them better understand their role. Perceived violations were called to my attention by other citizens. On those occasions, a simple call to the agenda maker usually corrected the problem.
At a meeting of the county industrial authority, a board member tried to sneak in an item under new business. I sat there shaking my head in silence when one of the members asked if that could be done legally. I told them no, not under the circumstances. It would have to wait until the next regular meeting.
Some officials thank me for helping them do things legally. Others groan and grit their teeth when I walk into a meeting.
Questions like accepting anonymous donations, foundations set up by public bodies and other issues have been referred to our congressmen for a ruling by the Attorney General's office.
The hospital board recently formed a non-profit foundation so they could accept funds "anonymously" and disperse them at will. Mental red flags went off when the entire hospital board and their attorney (the aforementioned city attorney) stayed after the hospital board's regularly scheduled meeting to have their "foundation" meeting.
This issue is currently under investigation by David McCullough of Mike Minnis & Associates. His decision will determine our further action.
Currently the district attorney's office again is processing another of our complaints against the county commissioners.
After leaving the district attorney's office from checking on an alleged election day violation, I looked down the hall and saw all three county commissioners sitting around the table in their office nearly eight hours after their legal meeting adjourned.
I walked down to get a closer look. Opening the door I asked, "Are we having an illegal meeting here?"
"Yeah, come on in," was the reply.
One of these commissioners is the son of a former commissioner who spent time in prison for the previous commissioners' scandal in the '70s.
I stood there for a few minutes listening as the chairman discussed purchasing an ice machine and other equipment for the three districts. Aside from them being assembled together illegally, they were illegally conducting business, something I suspect they do on a regular basis.
Recently when informing one board member that we believed their actions violated the law, the reply was, "I'm sure you may be right, but I don't like it."
Educating public bodies is painfully slow and difficult. Sometimes, it's just painful -- and a bit lonely.
"Why can't they?" he asked.
"Because there's no place on the agenda for public comment," I said.
"But we've always had public comment and it's never been on the agenda," he replied.