Just as protecting civil liberties often entails defending unpopular causes, ensuring the greatest possible access to public information can mean opposing what seem, at first, to be perfectly sensible restrictions. Two examples of this can be found in bills now before the Wisconsin Legislature.
The first, AB-448, would prohibit the copying of autopsy photos; the second, SB-8, would seal off “security system plans” for public utilities, including nuclear power plants. Both enjoy significant legislative support; both are opposed by the Wisconsin Newspaper Association, Wisconsin Broadcasters Association and Wisconsin Freedom of Information Council.
What’s not to like about a bill that would prevent journalists and other sickos from obtaining photos of dead people? Why would anyone object to a bill that makes it harder for terrorists to learn about measures in place to protect against terrorist attack?
As with other records issues, the concern is with the precedent that’s set, and the potential for misuse. Under current law, a records custodian who receives a request must apply what is known as the balancing test; a record can be withheld only if the potential harm from its release outweighs the public’s right to know. These decisions are subject to legal challenge and court review.
The proposed laws would replace this standard with blanket bans on whole categories of records. And that’s a problem because there are instances where the balance should fall in favor of openness.
Indeed, both bills have already been modified to accommodate legitimate uses that the drafters, in their rush to impose secrecy, originally overlooked. The autopsy photo bill was amended to allow continued access “for use in medical, health or forensic education activities.” These photos, it turns out, are key to training coroners, medical students and the folks who may one day inspire “CSI Wisconsin.”
The security plan bill, meanwhile, was so broadly worded, says Randy Radtke of the Wisconsin Newspaper Association, that utilities could have kept “almost anything” from being released. Radtke applauds Rep. Scott Jensen (R-Waukesha), chair of the Assembly’s Committee on Energy and Utilities, with helping narrow the bill’s focus to make it less subject to abuse.
But open-records advocates are still opposed, because without the balancing test rule there is no avenue for court review. Says Radtke, “We feel the bill is unnecessary and the balancing test should still be used in each and every case.”
Both of these bills are, in essence, solutions in search of problems. No one can identify a single instance in which the Wisconsin print or broadcast media have published an autopsy photo. But members of the media can imagine cases where they might.
Consider: A suspect dies in police custody and the cops and coroner insist it was of natural causes. The autopsy photos, however, show massive external injuries. Should there really be a law against using them to prove that public officials are not telling the truth?
Records defenders also worry about “mission creep” when it comes to such laws. The autopsy photo bill is supposed to allow continued public access, just not copies. But it’s not hard to imagine custodians using it to deny access altogether, or concluding that if photos cannot be copied, neither can other coroner’s records.
Similarly, for the bill regarding utility security plans, no one has documented a single case where someone has used the open records law to acquire sensitive security records. But there are plenty of cases in which utilities have sought to shield records that the public, arguably, has a right to see.
A few years back, in my work as a newspaper reporter, I made a request for records filed under seal with the state Public Service Commission regarding a controversial proposed power plant. The two utilities involved objected, claiming these records contained “trade secrets.” When major portions were released anyway, they showed that while the utilities were publicly claiming the plant was needed “to serve…Wisconsin homes and businesses,” their plan was to sell most of the power to out-of-state customers.
And what if a breakdown in plant safety or security becomes a legitimate public issue? Last year, the company that runs a Wisconsin nuclear power plant was fined $60,000 for failing to take appropriate action when a worker was found smelling of alcohol. Will this sort of incident now be harder to uncover? If so, who will be hurt most: terrorists, or the rest of us?
Blanket bans on access to public information are a bad idea. The balancing test, though imperfect, at least provides an additional layer of review. And that’s needed because secrecy can be more dangerous than trusting, rightly or wrongly, that citizens will make appropriate use of information to which they are entitled.
Your Right to Know is a monthly column produced by the Wisconsin Freedom of Information Council, a media group devoted to protecting public access to meetings and records. Bill Lueders is the council’s vice president and news editor of Isthmus newspaper in Madison.