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Access ‘threats’ a concern for news operations By Kim Greene Since September 11, patriotism has been reborn with a sense of poignance and urgency unfamiliar to many born after World War II. Shocked and numbed in the aftermath of those heinous events, and desperate for a sense of security and optimism for our future, Americans lined up to support our government’s vehement condemnation of those acts and promises to rid the world of such unthinkable “evil.” As the months have worn on, however, the gap between concept and implementation has become evident. People are raising questions about the methods and means used by our government to address the continuing threat of terrorism. Civil libertarians decry the proposal to use military tribunals rather than civil courts and detentions which appear to be based on racial profiling. No matter how you feel about those issues, there are related
concerns which strike right at the heart of any news operation. Access
to information is also becoming a casualty in this war on terrorism.
We all understand, of course, that The friction between adherents to the right of access to government information and those who would clamp down on that access is evident almost everywhere. On the national front, bills have been introduced (HR 2435 and S. 1456) to amend the Freedom of Information Act (“FOIA”) by creating a new exemption. That exemption would protect from public disclosure information shared by private entities with the government regarding critical infrastructure. Under these bills, critical infrastructure includes any industry
sector that provides a continual flow of goods and services essential
to the defense or economic security of the United States, the
functioning of government, or the health, welfare or safety of the
public. The information that would be protected relates to facilities
or services so vital to the nation or its economy that their
disruption, incapacity, or destruction would have a debilitating
impact on the defense, security, long term economic prosperity, or
health or safety of the United States. Although this applies mainly to
computer systems, it can also mean physical infrastructures The House bill has not moved; however, the Senate bill is scheduled for consideration in early 2002 and may be attached to a bioterrorism prevention bill. Groups interested in public access, especially groups working in the environmental arena, have expressed opposition to the measure. Many newspapers are noticing that the federal government has contracted what Rowland Thompson of Allied Daily Newspapers of Washington has dubbed the “Glomar flu” since September 11. “Glomar” responses to FOIA requests are an agency’s refusal even to confirm or deny the existence of records responsive to a FOIA request. This can be justified only when confirming or denying the existence of responsive records would, in and of itself, reveal exempt information. Evidently, federal agencies are citing “Glomar” more frequently and even for some fairly innocuous records requests since September 11. Within Kentucky the picture is similar but (we think, at this point) somewhat better. On October 30, 2001 Denis Fleming, general counsel to Governor Patton, issued a memorandum to “all general counsels, all state agencies” regarding open records requests and state security issues. The memo urged “a heightened sense of awareness” to requests for inspection or copying of records “involving state or national security matters.” While the memo reminds the state agencies that the General Assembly’s declared policy is to allow free and open examination of public records and that exceptions provided in the Act are to be strictly construed, it states: “We believe it prudent to carefully examine requests which could jeopardize the safety of state facilities or personnel and to apply appropriate exceptions, if warranted, to the request until such time as either the Attorney General or the General Assembly chooses to address this matter.” At least one local government has used this memo to justify denying a request for records related to a disaster preparedness drill. At about the same time, Crit Luellen stated publicly that the governor’s office was examining possible amendments to Kentucky’s Open Records Act to deal with “security” issues. Concerned that any proposal could have the effect of gutting the Open Records Act and the legislature’s intent to make government accessible to people, the KPA and various news organizations voiced their concerns to the Patton administration. On November 30, 2001 Denis Fleming announced that the Patton administration had decided that a security exemption was not necessary in Kentucky. He agreed that approaches other states have taken are too broad and could allow too many records to be exempted from disclosure. Fleming went on to say that the Patton administration also would not seek other amendments to the Open Records Act, specifically rejecting an amendment to the privacy exemption which would specify autopsy photographs. He said, “We stand by the existing exceptions.” Unfortunately, two Kentucky legislators think differently. Both Representative Brent Yonts and Senator Ray Jones, II, have introduced bills which would make “autopsy reports, photographs and associated records” unavailable to the public. This bill would be a dramatic change in the current state of the law. Representative Yonts is considering KPA’s request that he drop the bill, BR 975. KPA also plans to urge Senator Jones (BR 425) to do the same. Senator Dick Adams has prefiled legislation, BR 1181, which would lengthen the period of time a public agency has to respond to an open records request. Right now, KRS 61.972(5) states that even if a public record is in active use, in storage or otherwise not available, the official custodian must notify the requester and designate a time for inspection of the records, which can’t exceed three days from the request unless a detailed explanation is given for the cause of further delay. Senator Adams would change that to seven days. BR 1235 relates to access to records in the court file. This bill, sponsored by Representative Jimmie Lee, is a resurrection of a bill that fizzled in a prior session. It creates the crime of video voyeurism. Section 3 of the bill says that the court on its own motion or on the motion of the Commonwealth’s Attorney may order that photographs, film, videotapes or other images introduced into evidence in the case of someone charged with video voyeurism must be sealed. The bill goes on to require that those videotapes and photographs would be destroyed at the conclusion of the case. Of course, the tradition of open court proceedings and records is entrenched in our society. It is always a concern, then, when someone seeks to shut off that access. The telephone solicitation bill is making a reappearance this session. This version (BR 214 sponsored by Representative Buddy Buckingham) places detailed and fairly onerous restrictions on telephone solicitations and the bill eliminates the previous exception for a person soliciting the sale of a newspaper subscription. Representative Keith Hall has introduced BR 1142, which would
redefine”eavesdropping” and would destroy the rule of one-party
consent. Kentucky has long recognized that a party to a conversation
legally can record that conversation The only time that one party consent would apply would be if the communication is being “overheard, recorded, amplified, or transmitted for law enforcement purposes.” The KPA is tracking these bills and will lobby against them. That effort can only be effective if member newspapers participate. That can take many forms, from contacting the bill sponsor or your local representative to editorializing. For more information about the bills and KPA’s objections to them, contact KPA or your Hotline attorneys.
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