The Times West Virginian

Headline News

March 16, 2014

Tensions rise over access to government

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

Derrick Thompson called 911 in the coastal Maine city of Biddeford 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.

In a state averaging 25 murders a year, the case was clearly of public interest and the police officers were doing the public’s business. But answering questions about their handling of the call took a lawsuit, an appeal and 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 academics say such situations reflect increasing difficulty getting access to information from statehouses and city halls across the country, as officials broadly interpret exemptions in laws requiring openness.

Tensions between government officials, journalists and watchdog groups are a constant in American life. But while it can be difficult to measure change, observers are troubled by what they see as declining transparency that some say may be abetted 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, changes in technology and opaque laws on campaign finance.

“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, who studies citizen and press access to public information.

While the federal government’s resistance to openness draws regular attention, state and local officials have also moved to limit access to information and proceedings, he and others say.

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 included hundreds of exemptions and others that make critical budget decisions out of view of the public.

At the same time, researchers say journalists are finding it more difficult to obtain information from government through Freedom of Information requests. And, 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 and imposing other controls limiting their ability to report on government.

“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. It means that reporters can’t tell the story that they want to be able to tell them about their government.”

Those findings are echoed in the anecdotal experience of newsroom leaders surveyed recently by the Associated Press Media Editors. Of the 37 who responded, two-thirds said that over the last five years the governments they cover had become less cooperative in providing access to records, meetings and officials.

“I think after 9/11 and the constant concerns about identity theft and that sort of thing, that there’s been more reluctance on the part of public officials to give access to information that’s clearly public,” said Alan Miller, managing editor/news at The Columbus Dispatch, the daily newspaper in Ohio’s capital.

Miller pointed to his paper’s efforts last year to get data on city inspections of rental housing. After a December 2011 fire in a rental home killed three people, Columbus officials pledged to reform code enforcement. But they rejected the paper’s request for records of their efforts. When reporters continued the push for the information, the city eventually turned over data that led to a seven-month probe exposing the city’s worst landlords that prompted the city to follow through on its enforcement promise.

Other journalists report similar tensions over access to government information and proceedings.

—University of Arkansas at Fayetteville officials discovered in mid-2012 that its fundraising division had overspent its budget by more than $3 million. But 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 of the people responsible and was exempt from public records law. They released the report after a lawsuit by the Arkansas Democrat-Gazette in February 2013, but said they were doing so only because the two people involved had consented.

In past years, the university had generally cooperated with information requests, said Sonny Albarado, the newspaper’s projects editor. But when the newspaper asked for updated budget information, officials repeatedly said that they didn’t have the record requested, only to later learn otherwise, he said.

A university spokesman, Mark Rushing, said the school’s chancellor told about 200 people on campus about the shortfall before the first article was published, proving there was no intent to keep it secret.

“I think the university’s perspective is that this is the kind of thing, as painful as it is, as large as it is, as unacceptable as it is, it’s something we can often take care of and handle,” said Rushing, the school’s director of strategic communications.

—Editors at Idaho’s 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, without the majority that required doing so in a public forum.

“The biggest struggle was getting a list of the work group 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 Portland 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 with the murders.

“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 and eventual trial.

“I happen to believe that the public does have a right to know what we’re doing, but I also believe 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 who runs the office’s criminal division and argued the case.

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 and making shooting sounds. 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.”

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 about the policy decision.”

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.

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, editors and open government advocates say.

In Tennessee, Gov. Bill Haslam’s first executive act in 2011 eliminated requirements that he and top aides disclose outside income. In Maine, Gov. Paul LePage exempted a new business advisory council from the freedom of information law, citing a need for “candid conversations.” In Arkansas, legislators 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 on a bus that crashed.

“I just see the access being chipped away at,” said Albarado, the Arkansas editor. “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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