Yet Problems Persist Across The Nation—

Connecticut Ranks High

For Public Records Access

By Ron Word

Associated Press

States overall are doing a poor job of ensuring their citizens have access to public records and residents find some roadblocks even in the states considered to be the most open, a new study shows.

Many states have not updated their laws to reflect computerization of records and many have no laws on how soon an agency must release records. Some states place restrictions on the number of records that can be requested and some will seal an entire record rather than simply blackout confidential material it contains, said Bill Chamberlin, director of the Marion Brechner Citizen Access Project at the University of Florida.

“Most states have not paid a lot of attention to what they can do to make it easy for citizens to obtain records,” Chamberlin said. He and 11 experts on access examined public records laws in all 50 states.

Virginia, North Carolina, Michigan, Connecticut, Louisiana, Minnesota, Florida, Missouri, and Rhode Island, plus the District of Columbia, were at the top of the list in providing access to public records, based on preliminary data from the study, Chamberlin said.

States providing the worst access were New Hampshire, North Dakota, Tennessee, Nevada, Alaska, Ohio, Wyoming, Pennsylvania, Arizona, South Dakota, and Montana.

Jack McDonald, an attorney representing North Dakota newspapers and broadcasters, said the state got low ratings on the court process involving open records complaints, something the state law aims to avoid.

“Under our law, everything’s designed to stay out of court,” McDonald said. Complaints about access are made through the attorney general’s office, which can move them along quickly, he said.

“Most of these studies, they don’t recognize what we’ve got in North Dakota through the attorney general’s office,” McDonald said.

Even the states receiving the highest scores were far from giving their residents total access, Chamberlain said.

The study rated states based on 30 different categories, including the definition of a record, fees for copying, procedures involved in requesting records, computer records, the entities covered under the state’s records laws, constitutional provisions and laws providing for appeals, remedies, and punishment in records cases.

No state was found to emphasize openness in all categories, Chamberlin said.

In Virginia, officials received high marks for having a full-time ombudsman to deal with public records issues.

“It does function as a facilitator in compliance of the law,” said Frosty Landon, executive director of the Virginia Coalition of Open Government.

“Virginia may have strong ratings, but it doesn’t mean we don’t have any loopholes,” Landon said, adding while the state has approved rules embracing new technologies, it still has to deal “pesky issues like security and privacy.”

Landon said he works to keep exemptions to public records “as narrow as possible” to make sure they “are not knee-jerked into the law books.”

Another state with consistent high marks is Florida.

Joe Adams, an editorial writer at The Florida Times-Union and author of The Florida Public Records Handbook, lauded the study and Florida’s high marks.

“It’s good to know, since we continually have challenges in the post 9/11 age,” Adams said.

New laws passed since the terrorists attacks exempt release of information on surveillance techniques, procedures, and plans or policies on mobilization, deployment or tactical operations involved in responding to emergencies, but they have not drawn objections from open government advocates.

The problem has been more pronounced at the federal level, where records and documents have been removed from government websites, Adams said.

While Florida, Virginia, and North Carolina carry the presumption that records generated by the government are open to the public, others such as Pennsylvania presume the records are closed unless otherwise specified.

Pennsylvania was ranked toward the bottom of the list in providing access to its public records. “That’s no surprise to us living here,” said Teri Henning, media law counselor at the Pennsylvania Newspaper Association. “The law has a number of defects.”

The state’s public records law, she said, has changed very little since it was drafted in 1957.

“The definition of a public record is incredibly narrow. Only records that fit into the narrow definition of public records are public records and the burden of proof is on the requester,’’ Henning said. “Changing the law and changing the definition of a public record is high on our agenda.”

Another state at the bottom of the Chamberlin’s access list is Montana, which puzzled Mike Meloy, an attorney in Helena for the Montana Freedom of Information Hotline.

“We have a constitutional provision that guarantees access unless the demands of privacy exceeds the demands of public disclosure,” Meloy said. “Because we have a constitutional provision that handles most cases, Montana statutes are really brief and broad.”

Chamberlin said Montana scored toward the bottom of the rankings because documents are kept from the public if any part of them is confidential and there is no procedure to simply blackout the sensitive information. Also, the state law does not prescribe a length of time in which a state government agency must respond to a public records request.

Meloy said he disagrees with the survey results.

“I’ve always thought Montana had the most progressive policy of most of the states in the union,” he said.