Critics decry limited access to government

Statehouses and city halls are claiming secrecy privileges inappropriately and more frequently, many watchdogs say.

THE ASSOCIATED PRESSMarch 16, 2014 

It was a chilling crime, and even with a quick arrest, disturbing questions lingered.

Derrick Thompson called 911 in the coastal city of Biddeford, Maine, to report that he was being threatened. Police checked out the complaint, decided it was a civil matter and left the scene. Three minutes later, the teenager and his girlfriend were shot dead.

Police officers do the public's business, but answering questions about their handling of the call took a lawsuit and an appeal 11 months after state prosecutors turned down the Portland Press Herald's request for 911 transcripts.

The faceoff was eventually settled in the newspaper's favor by Maine's top court. But editors, advocates and academic leaders say such situations reflect increasing difficulty getting access to information, as officials broadly interpret exemptions in "sunshine laws" requiring openness.

Tensions between government officials, journalists and watchdog groups are a constant in American life. Although it can bedifficult to measure change, observers are troubled by what they see as declining transparency betted by public apathy. Government's swing away from openness began with post-Sept. 11 security worries, they say, and has been fueled more recently by officials' concerns about individual privacy.

"There's a clear trend toward increased secrecy in this country. I see it in my survey research of journalists and I also see it just on the ground, in what's happening at state capitals and the federal government," said David Cuillier, director of the University of Arizona School of Journalism.

That is reflected in a 2012 report by the Center for Public Integrity and partner organizations that gave more than half of state governments grades of D or F for transparency and accountability. Investigators' findings included states whose open records laws include hundreds of exemptions.

FREEDOM OF INFORMATION?

At the same time, researchers say journalists are finding it more difficult to obtain information from government through Freedom of Information requests. In a survey of more than 450 state and local reporters to be released this week, an overwhelming majority said that public information officers for agencies they cover are increasingly restricting access to officials.

"The problem is pervasive," said Carolyn Carlson, a professor of communication at Kennesaw State University, outside Atlanta, who conducted the survey. "I think it's a problem for reporters as well as for the public."

Journalists have reported tensions over access to government information and proceedings.

• University of Arkansas officials discovered in mid-2012 that its fundraising division had overspent its budget by more than $3 million. Over the next five months, they never told anybody outside the university.

School officials acknowledged the shortfall only when the journal Arkansas Business revealed it in a story. But they would not release auditors' detailed findings, claiming the report amounted to a personnel performance review. They released the report after a lawsuit by the Arkansas Democrat-Gazette in February 2013.

• Editors at the Twin Falls Times-News said they wondered for years why most City Council meetings were brief, with quick votes and little discussion about even the most complicated matters. The answer came when an official who had just attended a forum on open government wondered aloud about the "working groups" of council members and others that hashed over most issues privately.

"The biggest struggle was getting a list of the work groups because they weren't keeping the list. Not even the mayor knew how many there were," said Kimberlee Kruesi, the newspaper's city government reporter.

The council eventually voted to limit the size of work groups and open some of their meetings.

• In the Maine case, the Press Herald sued to obtain transcripts of Thompson's initial call to police; another by his mother after she, her son and his girlfriend were shot; and a third from their landlord, who was charged in the killings.

"Two cops show up and three minutes later the kid and his girlfriend are dead, so what's the obvious question? Did the cops know he was being threatened? Did the dispatcher tell them?" said Cliff Schechtman, the newspaper's executive editor. "The reason we fought for this is it's our obligation to tell the community how well the first responders do their job."

The state attorney general's office, which prosecutes murder cases in Maine, argued that the transcripts were intelligence and investigative information whose release might interfere with the case.

"I happen to ... believe that we have to make sure that judicial proceedings are fair and that the prosecution doesn't dump all its information in the media and try it in the press," said Bill Stokes, the deputy attorney general.

In a unanimous ruling last November, the state's top court's sided with the newspaper. When the transcripts were released, the paper reported that in the initial 911 call, Thompson told a police dispatcher his landlord was making "death threats," pointing his finger at him as if it were a gun. The man charged also called 911.

"I told him that I gonna kill you," the transcript showed he said to a dispatcher. "And the police say, no (inaudible) way."

MANY EXEMPTIONS

The state-level tensions between journalists and officials over openness coincide with similar but more widely known friction over access to federal government information, said Ginger McCall, director of the Open Government Project at the Electronic Privacy Information Center, a civil liberties group.

McCall said federal agencies regularly cite supposed exemptions to public records requests despite the Obama administration's stated dedication to openness. She pointed to her organization's pursuit of data on radiation emissions from full body scanners used to screen air travelers.

Much of the request, filed in 2010, was turned down by agencies arguing it was part of the "deliberative process" of government decision-making. A district court judge upheld much of that stance, but the group appealed and reached a settlement last year that led to information being released.

"I think it's just a general reluctance to accept accountability for the policy decisions that are made within the government," McCall said. "You know, it's difficult for there to be any public outrage if the public doesn't know."

John Wonderlich, policy director at the Sunlight Foundation, a nonprofit group that pushes for open government, said officials have become increasingly skilled at "co-opting the language of openness" without following through.

"It's so easy to make a plan (for openness) ... and then to call that progress, while at the same time refusing to release certain documents that there's been a history of releasing, and that's certainly been our experience at the federal level," he said.

RECORD KEEPING

Meanwhile, at the state level, some laws on openness have failed to keep up with changes in technology, said Emily Shaw, who oversees state and local policy for Sunlight. Laws on the books to require the retention of paper records have not been updated to deal with email, she said.

And incremental but deliberate changes in state and local policy are decreasing transparency, many editors and open government advocates say.

In Tennessee, Republican Gov. Bill Haslam's first executive act in 2011 eliminated requirements that he and top aides disclose their outside income. In Maine, GOP Gov. Paul LePage exempted a new business advisory council from the freedom of information law, citing a need for "candid conversations."

In Arkansas, legislators from both parties have added exceptions to the public records law, including one disallowing release of the names of juveniles involved in traffic accidents, after lawyers called students who were in a bus crash.

"I just see the access being chipped away at," said Sonny Albarado, an editor at the Arkansas Democrat-Gazette. "As a journalist and as a citizen who believes in openness, it just means that, OK, we're letting the emotional impact of a single incident effect a much broader philosophy of being open about what your government is doing and the records that it keeps."

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