NEW LAWS RESTRICT E-RECORDS FROM PRESS

By: Todd Shields Newspapers Battle For Open Access To Records


Last fall, a public schools superintendent in Fishers, Ind.,
abruptly resigned after just 11 weeks on the job. It turned out
he had used a school computer to visit sexually explicit sites.
Indiana newspapers reported the transgression.

The Indianapolis Star followed with a February story
surveying Internet usage by school superintendents statewide. It
found they used school computers for such nonscholastic tasks as
shopping for cars and seeking jobs. The Page One piece named
names, too.

Days later, a legislator proposed shielding public officials' e-
mail messages from public disclosure. The Star, seeking to
test public opinion on the matter -- many Americans view personal
messages, even on the job, as private -- asked legislative
leaders to divulge their e-mail messages about the proposal.

Thus began one of the most startling backfires in what newspaper
executives call a nationwide struggle over electronic records.
The battle -- being fought in Congress, state legislatures,
government agencies, and the courts -- comes at a time when the
computer and the Internet promise a cornucopia of information to
researchers and journalists.

But open access comes with costs. The public is understandably
squeamish over the prospect that shopping habits, health records,
and credit records can be sorted, matched, and swapped by
government agencies, including police departments; information
brokers; and insurance companies. A recent poll found 65% of the
public asserting that the news media unnecessarily invade
citizens' privacy. A highly vocal privacy movement advertises the
dangers of database abuse. And politicians are listening.

The result: widespread efforts to pull the cloak over an array of
records that were long considered public when they existed mainly
on paper.

"There's this idea: 'Paper good, Internet bad,'" says Lucy
Dalglish, executive director of the Reporters Committee for
Freedom of the Press (RCFP), which tracks access issues. "There's
this belief that once it's freely available and people might find
it useful, all of a sudden, it's invasive. ... All of a sudden,
this stuff is transmogrified from being public information into
something that might harm somebody."

Covering up private parts

Each year now brings a tide of proposals, in state capitals and
in Washington, to restrict access to publicly compiled data and
documents. Already this year, at least 13 bills with the word
"privacy" in their title have been introduced in Congress,
according to the Thomas database maintained by the Library of
Congress. At least nine state legislatures are considering
public-access laws this year.

Some of the state proposals aim at widening the availability of
records, but others contemplate closing records long considered
public. Some newspaper executives are convinced that privacy
advocates are carrying the day, to the detriment of news
gatherers and the public in whose name they work.

"Access to records is evaporating," Richard A. Oppel, editor of
the Austin (Texas) American-Statesman, told a panel
at the American Society of Newspaper Editors (ASNE) convention in
early April. "The freedom-of-information movement is losing
ground."

The controversy in Indiana provides a stunning example. Two weeks
after the Star's survey on Web use, state Rep. Jeff Thompson, R-
Danville, amended an unrelated bill so as to make public
officials' e-mail and Internet files private. The idea caught on
-- and spread. By late April, legislators in Indianapolis had not
only voted by overwhelming majorities to close lawmakers' e-mail
and Internet files but also expanded the measure into a flat
declaration that the Legislature is not covered by Indiana's
public-records law.

Thompson, in an interview, says the Star's actions played
no role in his decision to introduce the e-mail measure. As a
high-school teacher of chemistry, physics, and math, he
increasingly finds himself, he explains, communicating with the
parents of his students via e-mail -- so much so that e-mail is
supplanting the traditional telephone call. With the two methods
serving the same function, Thompson says, it makes sense to
protect the contents of both. Otherwise, he asks, "Should we also
tap the phone?"

He acknowledges "a whole slew of tricky questions" including
these: "When does an e-mail act like a phone call? And when does
an e-mail act like a letter or document?" Thompson cites one
certainty, however: "Once you end up disclosing things of a
personal nature, then you've got an unhappy public."

Many Indiana journalists believe the Legislature viewed the
Star's articles and requests for e-mail as threatening.
The nine key legislators who were asked for e-mail files by the
Star refused to turn over any of them. Gov. Frank
O'Bannon, a Democrat -- and a newspaper publisher -- relinquished
his when asked by the paper.

"What we were looking for was reaction to this [e-mail] bill,"
says Terry Eberle, the Star's editor. "Were the people for it?"
So far, letters to the editor indicate a roughly 10-to-1 ratio of
public disapproval of closing legislators' records, Eberle says.

Yet the Legislature has stampeded to approve restrictions,
enlarging Thompson's privacy measure and passing it
overwhelmingly. That has transformed the issue, Eberle says.
"It's not an issue against The Indianapolis Star or the
news media per se," he says. "It's an issue that they're closing
all their books to the citizens of the state."

Eberle rejects Thompson's cornerstone analogy regarding e-mail.
"It's not a phone call," Eberle says. "It's a written message.
... More and more people are doing business with government by e-
mail. To do checks and balances, we need access to e-mails," he
adds. "I see [the privacy measure] as a large step back."

Accidents will happen

The wholesale erosion of public access marks Indiana as a special
case. But other government initiatives, too, are moving toward
closing records vital to goodreporting. Consider:

* In Florida, the Legislature notably rushed to approval -- and
Republican Gov. Jeb Bush signed -- a bill to close autopsy
results to the public. The measure, prompted by the death of
stock-car king Dale Earnhardt, marks a sharp reversal in the
openness that has become the norm in Florida. It also could spawn
copycat closure laws. Indiana legislators, for instance, paused
on their way to exempting themselves from the open-records law to
vote separately to close autopsy results.

* Federal courts are considering whether to leave open
electronically filed documents, which may soon constitute the
majority of court documents. Newspapers say the records need to
be open, just as paper documents are open to all who enter a
courthouse. Many privacy advocates disagree, saying easy access
could open the door to identity thieves and leave court users
vulnerable to embarrassment as neighbors and others download
intimate details laid out in proceedings surrounding divorces,
crimes, and bankruptcy filings. Those arguing for openness say
the answer to many objections lies in enforcing existing laws
against identify theft and misuse of Social Security numbers.

* Pennsylvania's Department of Transportation (DOT) in late 1999
altered its interpretation of state and federal regulations and
stopped handing out some detailed information about traffic
accidents, saying information about drivers was embedded in the
database and should not be divulged. The Philadelphia Daily
News in 1997 had made broad use of accident information in a
series describing poor traffic enforcement in that city. Had the
new restrictions been in place, reporter Bob Warner later wrote,
"Key elements of that reporting would have been impossible,
including an examination of the leading causes of Philadelphia
crashes."

The restrictive disclosure persists despite lobbying in the
capital, Harrisburg, by the Pennsylvania Newspaper Association
and despite appeals by newspaper editors. "The data is [now]
essentially worthless," says Rose Ciotta,
assistant director of computer-assisted reporting and analysis at
The Philadelphia Inquirer. "We can't give our readers any
detail about traffic accidents -- like where in their towns most
accidents occur, or who is involved in drunk-driving accidents,
or what were the causes of fatalities."

The state's DOT spokesman, Rich Kirkpatrick, says the agency is
trying to strike a balance between state mandates to protect
drivers' information and the need to keep the public informed.
"We do make some of the database available," he says. "It's not
as much as the news media wants."

* The federal Drivers Privacy Protection Act, passed in 1994 and
strengthened by amendment five years later, is having a
widespread if little-publicized effect. Now, states may not share
driver information unless the driver specifically approves.
(Before the amendment passed, states could share information if
drivers did not forbid the practice.) The law, aimed partly at
marketers and partly at stalkers, has another effect: Computer-
assisted reporting teams face great difficulty in performing the
classic match of driver records to, say, school-bus crashes.

Less-complex reporting faces new barriers, too. "You see the car
parked outside the mayor's office at 2 in the morning? You're
never going to find out who it is," says Fred H. Cate, a
University of Indiana law professor who studies information law
and digital networks.

Ill treatment

One far-reaching measure has received plenty of publicity, but
virtually none regarding its potential to impede reporting at
nearly every newspaper.

Last month, the federal Department of Health and Human Services
(HHS) approved landmark privacy provisions meant to curb
unauthorized sharing of patients' medical data. The regulations,
scheduled to take effect in 2003, forbid sharing of patient
information without prior consent from the patient.

The rule aims to fend off troublesome distribution of
confidential medical information to employers, drug marketers,
and others. But it also would make impossible a routine query
about the condition of accident victims or of those surviving,
say, a disaster such as the Oklahoma City bombing. Those handing
out such information face possible criminal penalties, as would
journalists who print the resulting stories.

The prospect alarmed two state newspaper associations, the Allied
Daily Newspapers of Washington Inc. and the Washington Newspaper
Publishers Association. They filed an 18-page objection to the
privacy rule, saying it reads like an "Official Secrets Act" for
health information.

The comments, endorsed by 37 state press associations and the
RCFP, contend the privacy rule will impinge upon far more than
daily spot news. The Orange County (Calif.)
Register's examination of fertility clinics, which won the
1996 Pulitzer Prize for investigative journalism, would have been
barred under the rules because it relied partly on a list of egg
donors, the press associations asserted.

Similarly, the new rule could bar much of the kind of reporting
underlying The Seattle Times' examination this March of
deaths in an experimental cancer treatment program. The five-part
series, "Uninformed Consent," relied in part upon public records
as well as upon death certificates -- documents that could be
off-limits, as the proposed confidentiality strictures would
continue after a person's death.

In addition, the regulations provide no protection to whistle-
blowers. That means criminal prosecution could await the likes of
a doctor quoted by name and others, who told Times
reporters of conflicts of interest and treatment-caused deaths at
the cancer center. The rule "cuts off essential information that
newspapers need ... to hold the health system accountable," the
press associations said in their comments. "In doing so, it casts
an unconstitutional chill on press reporting."

HHS Secretary Tommy G. Thompson said that even as he moves ahead
with the rules, he would examine them to see whether they need
revision. Newspaper organizations hope for recognition of their
concerns, but say they've had no indication from HHS that their
voice has been heard amid the din raised by the 52,000 comments
filed about the rule. An HHS spokesman did not return a telephone
call from E&P seeking comment.

A resounding yawn

The ignorance, or perhaps indifference, about the burden the
regulations would impose upon journalism dismays, but does not
surprise, those fighting against erosion of access. "The privacy
movement has cast almost a spell over the subject," says Anders
Gyllenhaal, executive editor of The News & Observer in
Raleigh, N.C. As chairman of a freedom-of-information committee
formed by ASNE, Gyllenhaal is leading a two-year project that
examines challenges to freedom of information in the electronic
age.

The FOI project teamed with the Freedom Forum's First Amendment
Center to conduct a poll that found weak public support for
unhindered access by the press. Most of those surveyed (56%) said
it's acceptable if privacy laws make it harder for the media to
investigate wrongdoing. In addition, 60% said laws guaranteeing
privacy should be strengthened, even if it means Americans may
lose access to some records. (The telephone poll of 1,005 adults
had a margin of error of 3%.) Its findings confirm the magnitude
of the task facing those seeking to turn the privacy tide.

"We're really at a key juncture right now in determining how many
of the public records are going to be pulled back" from public
view, Gyllenhaal says. He urges newspapers to point out that,
while there are valid privacy concerns, "there are a lot of
things being lumped in that have a public-service side to them.

"We have to do a better job of working this ourselves. The whole
FOI effort is an endless campaign. You have to confront the records thing
constantly in your daily work. You have to be willing to go to
court where appropriate. The public has never had a deep
appreciation for this whole question. It's not easily expressed
or sold."

That's well known to Dennis Hetzel, editor and publisher of the
York (Pa.) Daily Record and a participant in
efforts to expand Pennsylvania's circa-1957 right-to-know law.
"The public is a lot more concerned with their [own] privacy and
safety than whether we can get the minutes from the township in
24 hours," Hetzel says. "It just doesn't register."



Todd Shields (tshields@editorandpublisher.com) is the Washington editor for E&P.



Copyright 2001, Editor & Publisher.