The right to know vs. the need for public safety
By Elizabeth Benjamin

Albany Times Union [NY]
16 June 2003

Lawmakers on all levels try to strike balance between freedom of information flow and security

The ability to access government information has been under siege since the attacks of Sept. 11, 2001, as local, state and federal officials struggle to strike a balance between security and the public's right to know.

Through federal legislation like the USA Patriot Act and the Homeland Security Act, the Bush administration has succeeded in significantly curtailing the amount of information available to the public.

State lawmakers nationwide have tried to follow suit with varying degrees of success, according to Rebecca Daugherty, director of the FOI Service Center at the Reporters Committee for Freedom of the Press in Arlington, Va.

"There's been a huge rush to try to prevent terrorists' access to information, which came with the need that government and corporations have identified to share information so government can be aware of what's wrong," Daugherty said.

So far, New York's 1978 Freedom of Information Law has remained intact despite efforts by some legislators and Republican Gov. George Pataki to pass bills that open government advocates say would weaken it in the name of protecting citizens.

The post-Sept. 11 push to limit the kinds of Freedom of Information requests honored by the state began in earnest in May 2002 when the Pataki administration championed a bill that would have exempted from public release records that "are obtained or compiled in monitoring, investigating or preparing for suspected or potential terrorist activity."

The bill had a sponsor in the Republican-controlled Senate. But the Democrat-dominated Assembly declared it dead on arrival, arguing the existing law allows records to be withheld if their release would be dangerous.

The bill did not pass last year and has not been reintroduced. Some see this as a sign state leaders are now taking a more measured approach to security than the mad dash that occurred after 9/11.

"Based on the kinds of calls I'm getting now from legislators and others, there is some sensitivity regarding the Freedom of Information Law," said Robert Freeman, executive director of the state Committee on Open Government. "After Sept. 11, we had a series of knee-jerk reactions. My feeling is people have become more thoughtful now."

Several lawmakers with bills pending that some believe could chip away at the FOI Law have undertaken negotiations to amend them.

State Sen. Michael Balboni, R-Nassau, and Assemblyman Michael Gianaris, D-Queens, are working to change their bill, the Chemical Security Act of 2003, to address public disclosure concerns raised by activists and plant owners. The act would require chemical plants to conduct vulnerability assessments and create emergency plans and share them with the state.

The plant owners say those documents contain information that would be dangerous in the wrong hands. Opponents don't want language included in the act that would preclude the public's right to seek information from the state on oversight and safety at the plants.

"Overall, these plants should be evaluated for the vulnerabilities, and that is what the public should know," Balboni said. "But as to a specific plant and specific ways it is vulnerable, that's dangerous information."

Balboni, chairman of the Senate Committee on Veterans, Homeland Security and Military Affairs, said his rule of thumb for determining whether information should be made public is whether it could be used to plan an attack. Daugherty disagreed, citing the case of a plant in Washington, D.C., that was using potentially deadly chemicals to treat water. When that information became news, she said, public outcry forced a change in policy.

"Could terrorists have exploited that information? Possibly," Daugherty said. "But did the public need to know this plant that was sitting in the middle of a community could explode and cause injury and death? Sure they did. They needed to know more than anything else."

Some bills remain on the horizon that open government advocates consider a threat to the Freedom of Information Law, but they do not appear likely to be passed before the legislative session ends Thursday.

Assemblyman Ronald Canestrari, D-Cohoes, has introduced a bill that would exempt college classroom teaching material from disclosure under the FOI Law. But Canestrari, chairman of the Assembly Higher Education Committee, said the bill is intended to make a "statement about academic freedom" and he does not plan to push for its passage.

Two bills have been introduced that would allow local police departments and the state Thruway Authority to increase the fees for copying records requested under the FOI Law and to charge a search fee. The FOI Law says governments can charge up to 25 cents a page for copying records requested by the public, Freeman said.

A bill that would require all public records to be posted on the Internet has been introduced in the Assembly, although it currently has no Senate sponsor. The New York Public Interest Research Group supports the legislation, entitled the Electronic Access to Records Act, said NYPIRG Legislative Director Blair Horner.

"The FOI Law needs to be modernized," Horner said. "If there's substantial public interest in a record, it should be put on the Web."

Freeman said he agrees some documents should be available online, such as minutes of public meetings. But he notes that some public information -- like voter rolls, which include voters' names and addresses and other personal data -- perhaps deserves a higher level of protection.

"Lots of records are unquestionably public," Freeman said. "But whether it's wise to put them on the Internet is another matter. Once you've got a person's name and address, with a good search engine you could get connected to a lot of other data about them. It's something to think about before we act."

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