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Home > Publications > Quill > Parting the Clouds


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Monday, August 25, 2008
Parting the Clouds

Sun shining on states after new legislation

Breanne Coats

Although the sun is not completely shining on all the records FOI advocates would like to see open, it has not been all rain clouds this year. Many states have had successes in not only opening up more records but in protecting reporters’ rights to confidential sources. Below is a brief recap of some of the larger developments.

Open records laws

Pennsylvania

Pennsylvania residents have had the same open-records law for 50 years, but in 2009 they are due to receive some major improvements.

Gov. Edward Rendell signed a bill in February that will give Pennsylvanians a new and more up-to-date open-records law. State Senate Majority Leader Dominic Pileggi was the prime sponsor of the bill.

Pileggi said that before this legislation, there was a sense that the governmental process was being kept deliberately sealed from residents.

“I thought, and still believe, that it is critically important that average citizens have confidence in their government at the state level and local level,” he said.

Pileggi said he believes this is a historic piece of Pennsylvania legislation that will fundamentally change the way residents can interact with elected officials.

He said the new bill will change the presumption of openness, because under the former legislation, there was no presumption. He said records are assumed to be open unless they fall under an exemption.

Another notable change, according to Pileggi, is the streamlining of the process. The response time to requests was shortened, and a standard photocopy fee was put into place. Also, the legislation should allow for more records to be available free of charge on the Internet.

While the law will apply to requests made as soon as January, various parts of the law are already in the implementation process. Pileggi said training sessions are being offered to record holders that the public can also attend.

Tennessee

Tennessee’s open-records statute has undergone significant changes for the first time in 25 years. Gov. Phil Bredesen signed the open-records legislation into law June 19.

The Tennessee Coalition for Open Government had proposed the changes. The coalition is made up of different freedom of information groups including media organizations.

The coalition’s executive director and former SPJ President Frank Gibson said the new law helps solve problems that needed immediate attention but did not solve all of the problems Tennessee has with its open-records law.

The new law states that records must be received within seven days of a request, or the agency must give a specific reason for the denial or an explanation about why more time is needed. No deadlines were included in the law previously.

Open government advocates fought against a provision that would have required public officials to be notified if they were the subject of a request. The provision was left out of the final version.

This piece of legislature was what created the Office of Open Records Counsel, which Bredesen had earlier endorsed and funded in his proposed budgets.

The advisory committee is made up of residents, media and government representatives. The counsel is supposed to respond to questions from the press, the public and local government officials; issue and post written advisory opinions; mediate open-records disputes; and report to the governor and the Legislature about various open-government issues.

The Better Government Association and National Freedom of Information Coalition ranked Tennessee as one of the worst states when it came to FOI responsiveness in 2007. With these new changes, Tennessee moved from the bottom of the pack to the middle.

“Tennessee was far behind when we started,” Gibson said. “There is still work to be done.”

Mississippi

Law enforcement agencies’ incident reports may seem like a basic open record, but not in Mississippi. In fact, organizations have had to continuously fight to access this information.

However, after five years of lobbying, the Mississippi Center for Freedom of Information, the Mississippi Press Association and Common Cause finally helped push legislation that will turn these incident reports into public records. H.B. 474 was unanimously passed by the Legislature, and the law became effective July 1.

Basic information required to be disclosed includes the narrative of the incident if prepared, the name and identification of the person arrested and charged, the nature of the alleged offense and the property involved. All or part of any investigative report may be disclosed at the discretion of the law enforcement agency.

“So far it’s encouraging in terms of compliance,” said Jeanni Atkins, Mississippi Center for Freedom of Information executive director. “We’re in the early stages. We’re expecting we will run into some problems. Some law enforcement officials have said they will require a written request and will invoke the 14-day response time limit.”

Atkins said her organization is trying to inform different law enforcement offices about the changes. She said it’s important that these incident reports are open because they allow residents to keep track of crimes in their communities. She said that before incident reports were open, they had problems even determining whether a crime had been committed.

Atkins said a collaboration by different publications which resulted in an eight-day series this year, titled “Mississippi: The Secret State,” played an important part in getting this legislation through. She recommends doing such stories early in the legislative session so they have time to make an impact. She also said there were more supportive legislators in office this year than in the past.

Mississippi also passed an ethics reform bill that, among its many goals, is designed to improve the enforcement of public records and open-meetings laws. Atkins said this ethics board can make rulings on whether records should be disclosed and whether an agency has violated the Open Meetings Act and can engage in negotiations to resolve a complaint. She said such boards have had success in negotiations in other states without resorting to a lawsuit.

“This really is a major step forward in improving access to government information,” Atkins said.

Shield laws/rules

First Amendment advocates and journalists around the nation have also been working tirelessly on protecting journalists and their sources — and not just on the national level. Journalists in Utah, Maine and Hawaii now have stronger state legislation that protects their sources and information.

It appears every state takes a different path in obtaining a shield law or rule. And those looking to implement or improve their own state’s shield law can learn from the experiences of those who have done it before them. Hawaii was the 36th state to adapt a shield law, and the process of obtaining it was neither traditional nor easy.

Pale kaua, a Hawaiian term ancient warriors used to refer to their battle shields, is also the term Gerald Kato is using to help describe Hawaii’s new shield law.

Before the bill was signed into law, Kato wrote that Hawaii’s journalists wanted to have their own “pale kaua to use in the modern-day battles of a free press.”

This new shield law protects not only traditional journalists but nontraditional journalists such as bloggers.

“It’s one of the better laws in the country,” Kato said. “This is a big step forward for Hawaii.”

Gov. Linda Lingle signed the legislation into law July 2. Before that, Hawaii had no shield law protection for its journalists.

Kato described the steps it took to make Hawaii the 36th state with a shield law. He said the process involved organizing media organizations and individuals, forming a committee, holding various meetings, being able to compromise and investing a lot of time and effort. Kato and others from the media formed a coalition that would represent the media community when it came to tasks such as sitting down with law enforcement agencies to work out a compromise with the shield law bill.

“At some points it did not seem like we were going to have an agreement,” Kato said.

However, when time was running out to get the billed passed this year, both sides were able to work out a draft they could agree on. Kato said they had to go through the legislation line by line.

Kato said Hawaii was fortunate to have a politician, rather than the usual entourage of journalists and other open government advocates, who pushed and organized for this bill. Kato said State Rep. Blake Oshiro used his interest in shield laws to become the driving force behind the legislation.

Kato also said that attorney Jeffrey Portnoy, who worked pro bono throughout the process of reaching a compromise between the state attorney general and Oshiro, was an important player in getting the shield law passed.

The law included a sunset clause and will expire in three years.

Kato said they will be back to the Legislature at that time to make sure, once again, that Hawaiian journalists have their own pale kaua.

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