Open & Shut: a statewide public records audit

Open-government concept under strain

The Associated Press
MacDonnell says some exemptions might make sense, but many others "don't make sense and are too broad."

Arizona law plainly says that public records "shall be open to inspection by any person at all times during office hours."

But the idea of open government is coming under increasing pressure as more and more officials are simply defying the law and interest groups are winning legislative exemptions from disclosure.

And as more Americans worry about privacy, personal safety, terrorism and the Internet, balancing the right to privacy with the public's right to know has become trickier than ever.

Despite the clear directions in Arizona's Public Records Law, a statewide audit organized by Associated Press Managing Editors of Arizona found that many police agencies refused to hand over basic information on crimes. Auditors who visited school district offices often had to cite the law to get documents.

Public officials who deny requests for records that might prove too revealing about their agencies, or that might contain personal information, are taking the posture, "So, sue me. We know you won't," says Philip J. MacDonnell, a public records advocate who serves as counsel to the Arizona Newspapers Association.

"Very few people have the wherewithal to hire a lawyer and spend $20,000 to $30,000 litigating against a public body for two or three years," he said. "That makes access to the government out of the reach of almost everyone."

Meanwhile, more groups are persuading the Legislature to allow certain kinds of records to be sealed on grounds that their release could cause more harm than public good.

Some exemptions might make sense, such as health records and child-protective measures, but many others "don't make sense and are too broad," MacDonnell says.

He points to exemptions granted for an array of professions and occupations that are among the 100 exceptions sprinkled among Arizona's laws.

For instance, one provision prevents the public from learning whether a nurse is the subject of a complaint, investigation or treatment for substance abuse. Another prevents the public from learning whether an accountant is being investigated by the profession's regulatory board.

And still another, for unexplained reasons, keeps confidential the home addresses and telephone numbers of athletic trainers licensed by the state.

In cases such as the nursing or accountant complaints, the public can clearly benefit from the open information and can use it to make informed consumer or health choices. But the amount of information that's available, particularly about individuals, gives privacy advocates pause.

In Arizona and across the country, lawmakers are struggling to stop identity theft, prevent disclosure of an individual's medical records and keep personal financial details private.

These efforts are occurring even as citizens unwittingly contribute volumes of private information to ever-growing dossiers that catalog their visits to Internet sites, travel preferences and grocery purchases that record personal information via savings cards.

Just this month, the public outcry against a plan by Qwest, the phone company, to share private customer information to its subsidiaries prompted the Arizona Corporation Commission to step in and order the company to reverse course.

How the public's right to privacy will be balanced with the need for openness and accountability of government is more difficult to predict than at any time since passage of the federal Freedom of Information Act 35 years ago, said Anders Gyllenhaal, executive editor of the News & Observer in Raleigh, N.C., and chairman of an industry committee on freedom of information.

After the Sept. 11 attacks on the World Trade Center and the Pentagon, U.S. Attorney General John Ashcroft instructed federal agencies to resist requests for public documents made under the Freedom of Information Act if they could find "a sound legal basis" for doing so.

Ashcroft assured agency heads they would have the backing of his office in any disputes.

Federal agencies have removed information from their Internet sites that once was readily available, for fear terrorists would use it. The Environmental Protection Agency alone deleted information about hazardous materials from 15,000 Web sites nationwide - a move that makes it much more difficult for neighborhood activists or environmental advocates to monitor how close toxins are being used to neighborhoods and schools.

"Some of the proposals that are coming out of government are to make it more difficult to access public records," said Paul Gattone of Tucson, an attorney with the Southern Arizona People's Law Center. "I don't think we want a government in this country that operates in secret. It's almost like the development of a police state."

Some states are moving to protect those citizens' rights to information. After audits showed poor compliance with public records laws, California, Iowa, Indiana and Virginia enacted laws or launched administrative measures to improve public access.

On Jan. 1, a California law took effect requiring state and local public governmental agencies to help people define and obtain records they seek.

Indiana recently created a state position of public access counselor to help citizens acquire public records and, if forced to file a lawsuit, to recover court costs upon winning.

Still, it took a veto by Indiana's governor to block a measure that would have exempted the entire Legislature from public-records laws and kept public employees' e-mail confidential.

Iowa refers access complaints to its ombudsman. The state's attorney general has placed heightened emphasis on sunshine laws, and more than 900 participants statewide registered for a seminar on public records and open meetings.

Patrick Shannahan, Arizona's ombudsman-citizens' aide, said he has encountered only a few public-records problems in his office's more than five years of existence, and the issues almost always have arisen as part of a broader complaint.

Anyone denied access to records is welcome to seek help from his office, Shannahan said, but the ombudsman has no authority to force any official to comply.

In exploring ways to strengthen the Public Records Law, MacDonnell and the newspapers association point to another set of Arizona statutes, the Open Meetings Law, as a model for reform.

If a public body meets illegally in closed-door session, a lawsuit is but one of the remedies. The law also provides for complaints to be filed with the county attorney or state attorney general, who may conduct an investigation, issue subpoenas and pursue penalties including the offender's possible removal from office.

The office of Arizona Attorney General Janet Napolitano handles about 20 inquiries a month on open-meeting issues, and about one-third result in complaints, spokeswoman Pati Urias said.

"We regularly work with public agencies and bodies and assist them in understanding compliance," she said.

Napolitano would support laws giving her agency jurisdiction over public-records enforcement - on the condition that the statutes also provide resources to enforce the law, Urias said.

* Contact Jon Kamman at jon.kamman@arizonarepublic.
com or (602) 444-4816; C.T. Revere at ctrevere@tucsoncitizen.com or 573-4561