Can 'sunshine laws' sometimes shed too much light?

The decision to withhold Earnhardt autopsy photos is the latest in a trend toward limiting media access.

In the mistrustful age of Watergate, Vietnam, and Love Canal, journalists enjoyed wide support and scored impressive victories in their quest for open access to information.

But 30 years and many "sunshine laws" later, the pendulum is swinging toward privacy. Today, it's not just defensive bureaucrats and cautious general counsels, but also ordinary Americans who seem to favor a little secrecy.

From the still-unreleased autopsy photos of the late Dale Earnhardt to the Justice Department's rejection of requests for tape-recorded interviews with Timothy McVeigh, media access is being denied in a growing number of high-profile cases - with full public approval.

The trend worries open-access advocates, who say the public benefits mightily when reporters use sunshine laws to uncover stories about lackluster bridge inspections, stolen military rifles, or doctors benefiting from Medicaid fraud. Many Americans, these experts worry, take today's unprecedented government openness for granted.

But others say the rise of exploitative websites and go-for-the-throat reporting have convinced much of the public that protecting privacy is paramount.

"Privacy now has political capital that it didn't have five years ago," says Charles Davis, a professor at the University of Missouri's Freedom of Information Center in Columbia. "Thanks to the computer, which is both a blessing and a curse, we can compile and store information and link it in ways we never could before. That creates real opportunity for democratizing information - and also real opportunity for legislators to exploit fear."

The Earnhardt case

The controversy over the Earnhardt autopsy photos illustrate the point. The Orlando Sentinel wanted access to the photos, to see if the NASCAR star might have died from a broken seatbelt in the Daytona 500 crash. Although the newspaper pledged not to publish the photos, the Earnhardt family worried the images might get out on the Internet. A judge agreed to block access, and on March 29, Gov. Jeb Bush sealed the matter by signing the Dale Earnhardt Family Protection Act, amid wide public support.

This heightened sensitivity to the notion that the public doesn't need to know everything is also reflected in current actions of state legislatures. More than 200 bills having to do with freedom of information are now being considered across the nation, and the general trend is toward limiting access.

Last month, for example, North Carolina's General Assembly rejected two sunshine bills. One, opposed by 100 county managers in the state, would have been the first in the country to air out the last vestige of the proverbial smoky backroom, by forcing boards and committees all over the state to tape-record closed-door caucuses.

"There's no need for everyone to know all the 'he saids' and 'she saids,'" says Kay Blanchard, the clerk of Harnett County. "What you do need to know is the bottom line."

Ms. Blanchard says she will happily provide minutes, agendas, and memos about issues such as the county's plans to expand its control of the region's water and sewer lines.

Similarly, Harnett County manager Neil Emory says visitors are welcome to rifle through his thick files, glance in desk drawers, even peruse his chock-full log of e-mails. "None of this belongs to me. It belongs to the people out there, the citizens," Mr. Emory says. But, like other local officials, he questions the wisdom of putting all meetings on the public record.

Open-records backlash

To some, the rejection of the North Carolina bills represents a common-sense limit to the reach of sunshine laws.

"There may have been an overreaching of the open-meetings and open-records laws that has caused all this recent backlash," says Ron Aycock, general counsel for the North Carolina County Commissioners Association in Raleigh. "In the Earnhardt case, especially, it had a very human reaction: People were saying, 'Hasn't the family suffered enough?' "

But to many media experts, the trend threatens to water down hard-won sunshine laws, as legislatures encounter ways its members could be embarrassed by the divulging of too much information.

Indeed, the push toward blocking some of government's close-to-the-vest deals comes as sunshine-law audits by regional and national newspaper groups show it can still be tough to get hold of a police report or the details of a new shopping

mall development, especially in rural stretches of the country.

Here in the tobacco-and-textile townships of Harnett County, the Daily Record keeps close tabs on the information flow and regularly uses open-government laws to publish the county's Medicaid rolls.

"Most public servants are not out for themselves," says Bart Adams, publisher of the Daily Record in Dunn, N.C., a Harnett County township. "But most public servants don't like it when people look over their shoulders."

The tape-recording bill, he says, could have set a useful precedent nationwide for government transparency.

But even some reporters say that open access carries some disadvantages. Indeed, reporters in Florida, the state with the "toughest of the tough" sunshine laws, say that having everything out in the open can, conversely, stifle opinions and debate.

As a former education beat reporter at the Orlando Sentinel, Mike Barry received copies of all e-mails from parents to the school district.

"It's a bit of a double-edged sword," says Mr. Barry, who now works another beat at the Sentinel. "Reporters initially get a lot of tips, but once people realize their e-mail is being monitored by the press, they tend to be more cautious and your tips dry up."

(c) Copyright 2001. The Christian Science Monitor

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