Freedom of information, access issues in all 50 states

AP News
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Posted: Mar 13, 2015 12:23 PM

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MISSOURI

Officials in Ferguson, Missouri, were inundated with thousands of open-records requests following the fatal shooting of 18-year-old Michael Brown by a city police officer, creating a massive challenge for the town near St. Louis.

Ferguson City Attorney Stephanie Karr says she often worked from morning until midnight, seven days a week, trying to keep up with requests from media, bloggers, activists groups and residents. She says some of the requests were part of an organized effort to be disruptive — but she still responded.

The Missouri attorney general's office received several complaints from media outlets that Ferguson was charging excessive fees for records requests. Karr says the city charged nothing in the first few weeks after the shooting, and now charges only what is appropriate under state law.

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MONTANA

Lawmakers are considering a broad rewrite of Montana's open record laws that would prohibit state and local agencies from destroying public records until they can be saved electronically. House Bill 123 cleared the House last month.

Sponsor Donald Jones, a Republican, says the measure would ensure that government officials electronically preserve records for future reference.

The bill also requires that notes or minutes be kept when public bodies or commissions meet in private executive sessions. Those notes would not automatically be made public, but could be released under court order.

The governor's budget office says the bill would make it more complex to maintain records and prove costly for state agencies.

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NEBRASKA

Nebraska is seeing a growing push by school boards and the University of Nebraska to hide the identities of candidates who apply for administrative jobs.

The issue has surfaced in the Legislature several times, most recently with a bill that would have allowed school boards to discuss finalists for superintendent jobs in private.

Last year, opponents managed to beat back a bill that would have kept secret the application information of finalists for University of Nebraska president, vice president and chancellor.

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NEVADA

Cost and confusion can be obstacles to obtaining public records in Nevada, where officials sometimes quote high fees for research, redaction and copying.

Nevada Press Association chief Barry Smith says he thinks some officials use a provision letting them charge fees for time spent producing a document as a moneymaker — or a barrier to access.

Wes Henderson, at the Nevada Association of Cities and Municipalities, denies government officials try to gouge people on freedom of information requests. State lawmakers are considering a measure to let agencies charge a per-page fee for electronic documents, plus additional fees for a request requiring more than 30 minutes of effort.

The state has open record laws, but officials say it might be unique in the U.S. for not defining what a public record actually is.

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NEW HAMPSHIRE

Lawmakers in New Hampshire this session debated a bill to increase the costs for obtaining public records. The legislation would have allowed public bodies to charge for time spent responding to requests under the state's Right to Know law.

Advocates say it would have provided a modest way to compensate public agencies that must have employees spend time fulfilling requests for documents. The bill's opponents said it would have made it harder to access public information.

Under existing law, public bodies can charge for the cost of making copies. The bill would have kept the first hour free of charge and capped the hourly charge at the minimum wage rate.

It was tabled in mid-March by the House, but could be revived next session.

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NEW JERSEY

More than a decade after lawmakers passed what they promised would be stronger open records policies, New Jersey residents and journalists complain about a lack of transparency from Gov. Chris Christie's administration, slow responses from state agencies and an even longer and more drawn out appeals process.

The state's Open Public Records Act is supposed to make any document not covered by a list of 24 exemptions easily accessible by anyone who requests it. But those who have faced long delays or been forced to go to court say it's not that simple.

Ed Barocas, legal counsel for the ACLU of New Jersey, says state agencies seem to take a default position of releasing as little information as possible.

Democratic state Sen. Loretta Weinberg says that she is working on updates to the open records law that she hopes to introduce this month. She says lawmakers are considering dedicating money to set up a website for municipalities to set up online depositories for public records.

Putting information online should save considerable time and energy for both government agencies and the public, she says.

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NEW MEXICO

Access to public records in New Mexico varies by county and town, and few records are available online.

Court documents, police reports and other records can be obtained only in person in many New Mexico counties. Officials charge by the page and sometimes will only mail them.

Some police agencies and county courts will email documents when requested, but it largely depends on the department or official tasked with giving out information.

Susan Boe, executive director of the New Mexico Foundation of Open Government, says the inconsistency makes it hard for reporters to do their jobs but also hampers efforts at transparency.

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NEW YORK

Authorities overseeing New York's Freedom of Information Law say the public deserves "and urgently needs" more and clearer information about what the police are doing.

In a new report, they are calling on the governor and Legislature this year to remove secrecy that surrounds some activities in police departments across the state.

The Committee on Open Government said the law currently provides the public with far less access to information about the police than virtually any other public agency, even though officers interact with the public daily "in a more visceral and tangible way than any other public employees."

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NORTH CAROLINA

As a candidate, North Carolina Gov. Pat McCrory repeatedly preached transparency. But now that he is in office, those seeking access to public records are often met with months-long delays and demands for payment.

McCrory's staff has interpreted a one-sentence clause in North Carolina's public records law as providing broad authority to assess a "special service charge" on any records requests they say take too much staff time to process. Invoices totaling hundreds of dollars have also been assessed for requests for digital copies of emails that have routinely been produced by past administrations without charge.

The fees appear to run contrary to the primary principle expressed in North Carolina's public records law, which says government documents "are the property of the people" and that copies should be provided "as promptly as possible" at "free or at minimal cost."

Agencies can charge under the law for expenses related to the actual cost of duplication, such as the cost of sheets of paper or a CD. Lawyers representing some of the state's largest newspapers and broadcasters have advised their clients that the demands for payment for staff processing time are "unjustified, improper and in violation of the law."

But even when media organizations agree to pay the fees under protest, there is no guarantee they will get the records in a timely manner. AP has unresolved public records requests with the McCrory administration going back to September 2013.

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NORTH DAKOTA

North Dakota is said to have some of the most transparent open meetings and records laws in the country, but some legislators believe the rules need more teeth.

A bill proposed in the state House of Representatives would have imposed a $500 civil penalty on a member of a state governing body who violated the laws more than once. It was prompted by numerous open meetings violations by the state Board of Higher Education.

The proposal was rejected by the House, but supporters believe the timing was wrong. They say they will continue to push for consequences for those who violate the law.

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OHIO

Questions are being raised about access to public records in Ohio when private companies or proprietary software is used to manage the records.

Last year, the state attorney general determined that a county recorder did not have the authority to charge a monthly subscription fee to individuals to view records maintained online by a private company.

But in 2013, the Ohio Supreme Court upheld a southern Ohio county's determination that providing map records to a real estate appraiser carried a $2,000 price tag because proprietary software was needed to produce them.

Dennis Hetzel, executive director of the Ohio Newspaper Association, says public access to information should be negotiated whenever government entities negotiate contracts with private vendors.

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OKLAHOMA

Oklahoma's Open Records law requires prompt and reasonable compliance with requests from the public, but the act does not define exactly what "prompt and reasonable" means.

While some state agencies comply with requests within hours, others have taken months to respond.

Records requests submitted to the governor's office and several state agencies over last April's botched execution of an Oklahoma inmate have yet to be filled.

Gov. Mary Fallin's spokesman, Alex Weintz, says the office takes the law seriously, but also says some requests require tens of thousands of documents to be read to make sure sensitive and protected material isn't released.

Mark Thomas of the Oklahoma Press Association says agencies should be prompt, but those requesting the records should be patient, especially for labor-intensive requests.

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OREGON

News organizations in Oregon report that government bodies increasingly charge high fees for access to public records, despite requests to waive them in the public interest.

Oregon's public records law gives public bodies the power to recoup their costs for pulling together, copying and redacting public records of confidential information. If the public body wants to hire a lawyer to review the redactions, the costs quickly rise.

After a three-year court battle for access to concealed weapons permits, The Mail Tribune newspaper in Medford faced a demand for $18,000 from the local sheriff. By then, a teacher had lost her lawsuit seeking permission to bring her gun to class, so the newspaper dropped its request.

The Oregonian newspaper in Portland asked the Oregon Department of Energy for databases on business energy tax credits and loans granted to solar energy projects from 2003 to 2013. The department responded that would cost $9,830 for staff time and legal review. The newspaper scaled back its request to a database costing about $500.

Attorney General Ellen Rosenblum said she is organizing a task force to propose updates to the public records laws, because she is concerned: "it often takes too long and costs too much to obtain records that shine light on the workings of government," she said.

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PENNSYLVANIA

Pennsylvania's open records law has been hailed as a success since a major update six years ago, but some argue it's time to modify it again. At least seven proposals to amend the Right-to-Know Law are pending in the Legislature.

Pennsylvania had ranked among the worst states when it came to giving people access to government records and information before the changes.

But that was before the legislative overhaul that took full effect in 2009, establishing an open records office and creating a presumption that most government documents are public.

Now the experience of the past six years, and particularly a large and growing body of court rulings, are generating concerns that there are growing limits on what the public can obtain.

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RHODE ISLAND

Attorney General Peter Kilmartin has distinguished himself from his predecessors by cracking down on violations of the state's open government laws, filing more public records lawsuits than previous attorney generals.

But ACLU Rhode Island Executive Director Steven Brown says there is more to be done, citing an audit last year by a nonprofit group that identified more than 50 potential violations of the state's Access to Public Records Act. The group filed 14 complaints with Kilmartin's office in December.

Brown says some agencies have violated the laws multiple times but have received warnings rather than being prosecuted.

Kilmartin says his office has a "strong track record" of upholding the laws, noting that his office spearheaded the changes to the open records law in 2012.

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SOUTH CAROLINA

Advocates for open government say South Carolina's public records law is being eroded by court decisions, loopholes and government attempts to ignore it.

Again this year, some are trying to strengthen the law and respond to state Supreme Court decisions that appeared to eliminate requirements for county councils and other boards to post agendas of their plans before meetings and for coroners to release autopsy reports.

The session started with lawmakers calling for changes. Two months after lawmakers returned to Columbia, the bills have made some progress, but are currently stuck in committees.

South Carolina Press Association Executive Director Bill Rogers says legislators won't be interested in passing them unless the public demands it.

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SOUTH DAKOTA

The fees that individuals must pay in an effort to obtain government records in South Dakota vary widely across the state. People requesting records sometimes are asked to bear the costs of research time for government attorneys who determine whether a record is public under state law.

David Bordewyk, general manager of the South Dakota Newspaper Association, says individuals have been asked to pay up to $75 an hour for the research time. He says it is reasonable to expect people to pay for the cost of printing or making digital copies of records, but not for staff time.

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TENNESSEE

A citizen-versus-city battle is being waged in Chattanooga by a proponent of open government who is challenging the process of granting financial incentives to private companies seeking to build or expand operations in the city.

Helen Burns Sharp says she has spent about $100,000 of her own money in fighting the approval of tax increment financing of $9 million — plus interest — for developers who want to build a road in a golf course subdivision.

She sued the City Council, the County Commission and Chattanooga's Industrial Development Board, claiming they approved the deal without holding public hearings.

A judge nullified the deal in 2014, but Sharp filed another lawsuit after the development board re-approved the deal without a vote from the council or commission.

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TEXAS

The Legislature is considering giving state agencies and other governmental entities the option of ignoring out-of-state open records requests.

The bill is sponsored by first-term Republican Rep. Mike Schofield, a former legal adviser to former Gov. Rick Perry. It's too early to tell if the bill will pass.

If it does, Texas would join seven other states that have imposed limits on non-resident open-records requests. The restrictions have held up in court.

In 2013, the U.S. Supreme Court ruled unanimously in a case involving a Virginia law that states do not violate the Constitution when their public records laws bar non-residents from obtaining government records.

Such prohibitions affect out-of-state media outlets seeking information about potential candidates for higher office, such as president or Congress.

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UTAH

Four years ago, Utah lawmakers encountered a backlash when they passed a law that shielded legislator's voicemails, text messages and instant messages.

They bowed to the intense public outcry and took the unusual step of repealing the law. Since then, legislators in the conservative state have been taking steps to demonstrate to residents they want to make public records more transparent and open.

A state government records ombudsman was created in 2012. A new state open records portal launched this year provides one-stop shopping for records from the state's executive committee. This year, a lawmaker has proposed a bill that would allow a state records committee that hear appeals to grant fee waivers during the review process.

But residents and reporters still run into problems with some agencies that try to overcharge.

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VERMONT

A special legislative committee spent four years combing through Vermont's law books trying to find and catalog the more than 250 exemptions to the state's Public Records Act scattered throughout the statutes.

During that research, lawmakers made a startling discovery.

An untold number of public records exemptions — reasons government agencies can use to deny access to documents — had never gone before the government operations committees in the House and Senate that normally review them.

Instead, they had been included in rules issued by executive branch agencies.

A bill recently sent to Gov. Peter Shumlin would send word to the government operations committees when such exemptions are sought as part of executive-branch rules.

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VIRGINIA

Virginia law allows reasonable charges not to exceed the actual cost of accessing, duplicating, supplying or searching for requested public records. However, agencies cannot charge extraneous fees or expenses to recoup the general costs associated with creating or maintaining records.

Sometimes, there is no cost to obtain public records. Other requests might be met with a request for thousands of dollars.

To get electronic copies of Gov. Terry McAuliffe's daily calendar for nearly 10 months, officials told the AP earlier this year that it would need to pay about $500 upfront. That's because McAuliffe's counsel said staff would have had to search, review and possibly redact certain calendar entries.

In another instance, the University of Virginia Medical Center requested nearly $860 upfront for about 1,700 documents in response to a request from the AP for emails discussing possible Medicaid expansion.

An advisory council is in the middle of a three-year study of Virginia's freedom of information laws, in the hope of making them less restrictive.

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WASHINGTON

The Seattle Police Department has launched a YouTube channel to distribute video collected by officers' body cameras.

The department says the idea for the channel sprung from a "hackathon" Seattle police held with computer experts in December. The goal was to reduce the amount of time it takes to release videos to the public by addressing redaction and privacy requirements.

Videos released through the department's new YouTube channel are intentionally blurred to protect privacy and without audio. People can request more clear versions of the video through public records requests.

Seattle police have said they hope greater distribution of video of their work will help restore public trust in a department that is under federal oversight following a Justice Department report that found officers routinely used excessive force.

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WEST VIRGINIA

Two threats to government transparency loom large in West Virginia: One deals with a recent court decision allowing agencies to charge hourly fees for locating documents; and the other deals with bills introduced in the Legislature with built-in exemptions from the state's Freedom of Information Act.

Last April, the Supreme Court ruled that government agencies can charge an hourly fee for locating documents under the act.

Among the bills this Legislative session with built-in exemptions are those addressing regulation of above-ground chemical storage tanks and concealed handgun carry permits.

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WISCONSIN

Freedom of information advocates in Wisconsin say the state's law leaves too much room for slow response times for those filling requests.

Bill Lueders, president of the Wisconsin Freedom of Information Council, says some requesters wait months for documents. The state statute says those receiving requests are to fill them as soon as practicable, but that term leaves room for interpretation, Lueders says.

During his campaign, state Attorney General Brad Schimel said he would work to protect freedom of information. Schimel did not immediately respond to emails and phone calls asking whether he would amend the statute.

Lueders says unless Schimel provides guidance to those filling requests about the maximum wait time permissible or a court rules in favor of someone seeking documents, a more definite standard is unlikely.

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WYOMING

Wyoming has a legal provision that keeps the public in the dark about sexual assault charges. State lawmakers are concerned about protecting the reputations of suspects arrested in such cases and have resisted pressure from prosecutors to change the law.

In Wyoming, a person's name is made public after they are arrested on any charge but sexual assault. The identity of sexual assault defendants remains secret until after a circuit court judge decides there is enough evidence to proceed to trial in district court.

Efforts in the Legislature to change the law have failed.