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David Cuillier is an assistant professor of journalism at the University of Arizona.
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Patriots and traitors

Opinion

Accessing records

Freedom of information, feted this week, increasingly restricted
Opinion by David Cuillier
Special to the Arizona Daily Star
Tucson, Arizona | Published: 03.11.2007
Rick Trevaskis uses public records a lot, and for that we can all be thankful.
As a private investigator for Metro Detective Agency in Tucson, Trevaskis routinely uses criminal records to help companies and citizens. When a cable TV installation business asked him to check the backgrounds of newly hired installers he discovered one was a level-3 sex offender — the most dangerous category and considered the most likely to rape again. He also uses public information to find people on the run from the law and to uncover insurance fraud.
"(Public records) help us put the bad people away," Trevaskis said.
Public records help all of us every day. They allow us to monitor crime in our neighborhoods, investigate the proposed Wal-Mart down the street, discover our family histories, find loved ones, learn about political candidates and hold officials accountable.
Because of public records, journalists are able to expose government wrongdoing and societal ills. For example, documents helped The Washington Post uncover the dismal conditions for wounded soldiers at Walter Reed Army Medical Center in Washington, D.C., last month, leading to congressional outrage, resignations, and improved treatment for our combat veterans. According to a study by the Society of Professional Journalists, one-third of all news stories are based on information obtained from public records or meetings.
All of this is worth celebrating, particularly today, which is the start of national "Sunshine Week." While the week of recognition for freedom of information was started by journalists, I believe the cause goes beyond reporters' ability to cover meetings or access documents. Freedom of information is for all citizens.
However, the not-so-bright fact is that,the flow of public records is drying up. And that concerns a lot of people — not just journalists.
Increased secrecy
Court rulings and statutes during the past 10 years have closed myriad public records, making it increasingly difficult to hold government accountable.
Many records are restricted in the name of protecting privacy. A study by Investigative Reporters and Editors showed that from 1998 to 2002 the use of privacy exemptions to deny federal public records requests in the United States increased more than 600 percent, from 55,000 denials to 380,000.
When I examined nationwide government compliance with public records laws since 1990, I found that law-enforcement records are withheld illegally three-quarters of the time.
Often it's because government officials are unfamiliar with the law, or they choose to err on the side of secrecy. Sometimes they know the law but knowingly keep the document secret to keep it out of the hands of someone they don't trust. Often, secrecy is shrouded in the well-intentioned act of protecting someone's privacy.
No doubt, privacy is highly valued today, particularly with the advent of the Internet, identity theft and electronic surveillance. Penalties for identity theft should be strengthened.
Instead, officials often think that making records secret will solve the problem. It's a seemingly easy solution, if you believe a thief is going to walk into City Hall and fill out a public records request in search of Social Security numbers. The reality, according to studies, is that rarely happens. Social Security numbers are usually blacked out from public records. It's much easier to commit identity theft by stealing checkbooks, mail or purses than to request public records.
The problem is that the closure of public records is hurting society.
Because driver's license information is unavailable, journalists no longer can identify school-bus drivers who have drunken-driving records, or examine whether departments of motor vehicles fail to revoke licenses for repeat offenders, once common investigations in the 1980s and 1990s.
Health-privacy laws rightly protect personal medical records, but they have gone so far as to prevent anyone from knowing who is seriously hurt in a car accident. If your friend is unconscious or dying in the hospital, health officials would not be allowed to tell you.
Concern over identity theft has been making it difficult for genealogists, says Barbara Baldwin Salyer, a Tucson professional genealogist since 1976 and past president of the Arizona State Genealogical Society.
In Arizona, you can get a death certificate of only direct relatives, so that means if you are trying to find out about uncles or other family members you may be out of luck. Social Security numbers aren't listed on older death certificates and they can be blotted out on new ones. Meanwhile, Baldwin Salyer says, the identity thieves are still able to wreak havoc by getting Social Security numbers elsewhere. Secrecy is not the solution to preventing identity theft.
Often, privacy laws are taken to the extreme. In 2002 the National Zoo in Washington, D.C., refused to release medical records about Ryma the giraffe, claiming that the disclosure of such information would violate the animal's right to privacy, as well as veterinarian-patient confidentiality.
The privacy parade marches through Arizona as well. Last week, the Legislature passed Senate Bill 1286, which would make secret the identity of all crime victims. On the surface, that sounds good, as few people want to see victims traumatized by prying snoopsters.
The drawback is that we no longer could check to see if the system is working for victims. Many journalists, myself included, have talked to crime victims who eagerly described problems in the judicial system or how they were treated. Ironically, by hiding victims' identity, we as a society allow them to be further victimized.
We need to balance the right to privacy with the public good that can come from disclosure. Blanket laws that close information valuable to the public don't help our communities. We are not safer in the dark.
Secrecy dangerous, costly
Another often-cited reason for secrecy is national security. Since 2001, the number of documents classified annually by the federal government has nearly doubled, to 16 million in 2005. It costs about $6.5 billion a year to classify documents.
Not only is secrecy costly, but it is also dangerous. Shortly before Sept. 11, 2001, I was a newspaper editor in Washington state and we had just published a story revealing the existence of a dam above a small town that was about to give way, potentially wiping out Main Street. We found out about it by looking at federal dam inspection data available online.
The publicity garnered funding to fix the dam, and the town residents were safer and grateful. That's how this information can help when it is public and posted online.
Shortly after the terrorist attacks, however, the federal government removed the dam safety data from its public Web site, saying it would enable terrorists to identify targets. Closing these records only keeps law-abiding people ignorant of the dangers in their communities, so they can't address the problems, increasing the risk of disaster.
The withholding of "critical infrastructure information" makes sense in many situations, such as the blueprints of nuclear power plants. But sometimes information is kept secret to avoid embarrassment or scrutiny.
Last week I got a call from a reporter investigating the dangers of a natural gas pipeline running through his community, where a pipeline had exploded several years ago, killing several children. He wanted to find out where the pipeline ran and its safety history. Not only was his request denied but he is being sued by the agency for asking for the information.
Secrecy in the name of national security goes further. Last week Sen. Jon Kyl, R-Ariz., proposed an amendment to the espionage law that would criminalize the publication of information "concerning efforts by the United States to identify, investigate, or prevent terrorist activity."
This type of legislation could chill legitimate discussion about terrorism and national security. Nobody wants information leaked that would harm Americans, but such legislation provides too much room for abuse.
We have reached a critical juncture. We can choose to let fear and paranoia chew away at what we stand for, or we can hold true to what makes this country great. We can't stand still.
Founding Father's hope
Like anything that is important, democracy isn't easy and it takes some work. It's messy and flawed in ways that make me grit my teeth, but I still believe it is one of the best forms of government in the world.
I've found in my research that people who care about their communities also care about freedom of information. People who are less engaged in their government tend to be less supportive of openness. It doesn't matter if you are liberal or conservative, rich or poor, educated or illiterate.
Open government isn't about politics. It's about civic engagement, education and self-governance, and something our Founding Fathers hoped we would value. If we allow access to information to be shuttered out of fear, then we will become no better than the countries we fight to liberate.
It is no coincidence that Sunshine Week is timed to fall on the March 16 birthday of James Madison, the fourth U.S. president and "Father of the Constitution." His words still have meaning today:
"A popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both."
Contact David Cuillier at cuillier@email.arizona.edu.