Information and democracy

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Information and democracy a study of the relationship between state information policies and democratic governance
Goodyear, Mary Lou
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Denver, CO
University of Colorado Denver
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x, 210 leaves : ; 29 cm.


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Freedom of information ( lcsh )
Democracy ( lcsh )
Democracy ( fast )
Freedom of information ( fast )
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )


Thesis (D.P.A.)--University of Colorado at Denver, 1993. Public administration
Includes bibliographical references.
General Note:
Submitted in partial fulfillment of the requirements for the degree, Doctor of Philosophy, Public Administration.
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School of Public Affairs
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by Mary Lou Goodyear.

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University of Colorado Denver
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Auraria Library
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INFORMATION AND DEMOCRACY: A STUDY OF THE RELATIONSHIP BETWEEN STATE INFORMATION POLICIES AND DEMOCRATIC GOVERNANCE by Mary Lou Goodyear B. S., Graceland College, 1974 M.A., University of Missouri-Columbia, 1976 M.S., University of Missouri-Columbia, 1982 A thesis submitted to the Faculty of the University of Colorado at Denver in partial fulfillment of the requirements for the degree of Doctor of Philosophy Public Administration 1993


This thesis for the Doctor of Philosophy degree by Mary Lou Goodyear has been approved for the Graduate School of Public Affairs >-\t;-'\3 Date


1993 by Mary Lou Goodyear All rights reserved.


Goodyear, Mary Lou (Ph.D., Public Administration) Information and Democracy: A Study of the Relationship between State Information Policies and Democratic Governance Thesis directed by E. Samuel Overman Information policy is a set of laws, policies, and judicial interpretations regulations, that affect decisions regarding the collection, storage, use, and dissemination of information. This thesis provides a policy perspective on the information policies of the fifty states and the District of Columbia. Overman and Cahill's (1990) information policy areas are used to analyze statelevel information policies. Five information policy areas are covered: access, openness, ownership, privacy, and security. An analysis of state response to electronic information is presented. The statutory law, including judicial and executive opinions, of each state are evaluated and ratings are produced for each state in each policy area. Analysis is provided within a distributive/restrictive framework. Correlational analysis is provided to the states' political and bureaucratic environments, using contrasting measures of democracy and bureaucracy. Comparisons are also made to Luttbeg's (1971) measures of state difference.


The following propositions are explored: (1) State information policy is reflected through the enactment of statutory law. Each state's information policies reflect choices made within the policy value framework. (2) The structure of a state's information policy will correlate to that state's political and bureaucratic environments. A state that shows a high measure of democracy will choose a more distributive information policy. A state that has a well-developed bureaucracy is expected to have a more restrictive policy. The first proposition is supported, and the author found that state information policy is well developed in the access, intellectual property, and security areas. Privacy is not well developed among the states. The second proposition is supported in part 1n. that high access ratings correlate with one measure of democracy, educational level of the state. Only one bureaucracy measure, the professionalism of state legislatures, correlated to measures of privacy. Ratings also correlate to Luttbeg's (1971) classification of the states. The thesis concludes with suggestions for further research. This abstract accurately represents the content of the candidate's thesis. ation. Signed E. Samuel Overman v


CONTENTS ix Figures Tables CHAPTER X 1. INTRODUCTION Information Policy Values Distributive and Restrictive Policy Democracy and Bureaucracy . Research Framework . Research Questions and Propositions 2. INFORMATION POLICY LITERATURE Information Policy Research Access and Openness . . . . Legalizing the Right to Know Privacy . . . . . . Legal Support for the Right of Privacy Intellectual Property Security Computer Crime Comparative State Analysis Conclusion 3. RESEARCH METHODOLOGY General Design . . . . . Data Collection . . . . . Data Analysis 1 4 10 14 17 20 23 28 32 34 39 43 51 56 57 63 70 73 73 75 76


4. ACCESS .. Openness: Open Meetings Statement of Public Policy Definition of Public Body Definition of a Meeting Notice Minutes Recourse Access to Meetings Secret Ballot . Requirement to Inform the PUblic Openness at Executive Sessions Conclusion Access: Open Records Statement of Public Policy Who May Have Access Definition of a Public Body Definition of a Public Record Access to Public Records Copying of Records Agency Response Recourse Conclusion Fair Information Practices Access Conclusion . . . Vll . . . . . . . . . 85 85 86 89 91 92 92 93 94 94 94 95 95 96 97 100 100 101 102 103 103 104 104 105 109


Correlational Analysis 111 5. PRIVACY 114 Constitutional and Statutory Provisions 114 Open Meetings and Open Records Exceptions 118 Personal Privacy Effective Government Conclusion Correlational Analysis 6. INTELLECTUAL PROPERTY Additional Trade Secret Protection Conclusion 7 SECURITY . Computer Crime Information Technology Correlational Analysis . 8. CONCLUSION .. The Condition of Information Policy The Nature of Information Policy Future Research . Future Applications: Information Policy Principles APPENDIX A. RATING SYSTEM B. DEMOCRACY AND BUREAUCRACY MEASURES C. LUTTBEG CLASSIFICATION BIBLIOGRAPHY viii 118 119 128 129 132 134 137 139 139 145 148 150 150 151 157 160 165 172 174 176


FIGURES Figure 2.1. State Political Cultures . ., . . . 69 lX


Table 1.1. 1.2. 3.1. 4 .1. 4.2. 4.3. TABLES State-level Information Policy Values Research Framework . . . State Law and Information Policy Values Open Meetings Open Records Fair Information Practices 4.4. Access Ratings 5.1. Personal Privacy 5.2. Closed Meetings -Effective Government 5.3. Closed Records -.Effective Government 5.4. 6.1. 7 .1. 7.2. 8.1. 8. 2. Privacy -Effective Government Trade Secret . . . . . Computer Crime Information Technology Correlational Analysis Comparative State Analysis X 6 18 77 87 98 106 110 115 120 123 127 135 140 146 153 156


CHAPTER 1 INTRODUCTION Infomation is a tem used often by each of us to represent what we know or do not know. The condition of knowing something, of having 11 infomation, 11 is a basic experience for us all. Infomation changes behavior; decisions are made and actions taken based on the infomation available at the time. This reality places infomation at the.base of societal action, making it a basic component of society, much like land, labor, and capital. For any such basic component of society, policies are developed to govern development and use. Just as policies are developed for health care, energy, food production, they are also developed for the production and use of infomation. However, public policy is rarely fomulated in a comprehensive way. For example, field we are aware that there are in the health care a multiplicity of policies that govern the delivery of health care through both private and public sector agencies. Together these policies constitute what we collectively call health care policy. In a similar vein, policies made concerning


information involve a number of issues, copyright, patent, libraries, and the collection of information by governmental These decisions. taken together constitute our policy concerning information. Information policy can be defined as the set of laws, regulations, policies, and judicial interpretations that affect decisions regarding the creation, collection, storage, use, and dissemination of information. Using this definition, it is recognized that there are a number of policies that concern information. These policies are considered at different times by different public policy makers and can conflict in their intent and practice. Therefore, the collective term "information policy" refers to the vast array of policies that concern information, not a coherent single policy. The actions of government in the formation of information policy are vitally important to each citizen. Since information a basic component of life, the information policies developed by governments will define the very foundation of the relationship between governments and citizens. This fact makes the study of information policy an important topic for public officials at all levels of government. The federal government is the high profile government in the United States, when compared to state and local 2


governments. It is the major focus of political debate, and the most studied level of government in academe. The same is true in the information policy area; federal information policy has been the subject of discussion for well over twenty years. Therefore, a body of literature relevant to the federal level has been produced, but does not adequately cover information policy at the state and local level. The greatest volume of public business is carried out by the states and local communities. These governments collect garbage, build roads, provide for health services, and educate children. In fact, most of the governmental services that typical citizens would consider to directly affect their lives are performed by state and local goverrunents. Therefore, the actions of these governments should be of paramount concern to constituents. Information policy at the state level is vitally important to the overall relationship between government and its citizens. This study of information policy at the state level will address a part of this relationship not previously explored. Another important aspect of information policy is the relationship between federal level information policy and state-level policy. The interrelationship between federal and state policies is a complex issue. Information policy issues are new to many states and the interrelationship 3


between those policies and federal legislation has yet to be clarified. At this point, the distinctions between the federal and state levels remain reasonably clear. Most information policy legislation at the federal level applies to federal agencies only, and state-level policy applies only to the state and local governments within that state. In the area of intellectual property, these distinctions exist according to the type of legislation involved. For example, copyright and patent law are addressed at the federal level, but trade secret law is a state issue. As state-level policies become more sophisticated, conflicts between levels of government are likely to increase. The interrelationship between federal and state policies will remain an important area of concern for the study of information policy. Information Policy Areas Information policies are diverse and complex nature, so it is helpful to have a structure with which to organize analysis of the policies. Overman and Cahill (1990) have provided such a framework, defining seven primary information policy areas. --Access is referred to as an individual's presumptive right. Freedom of information laws activate this value, providing citizens access to governmental records. 4


--Openness in government affords citizens an opportunity to witness and participate in decisions made by their governments. Sunshine legislation provides the basis of public policy in this area. --Privacy defines an individual's right to hold information about him/herself secure. Privacy rights are thought to be defined in the Bill of Rights. --Intellectual property, or the ownership of information, includes policies concerning copyright, patents, and trade secrets. --Usefulness, a measure of practical value, is related to the management of information. The need to control government's collection and use of information 1s controlled by legislation such as the Paperwork Reduction Act. --The cost and benefit or the economic value of information deals with the costs associated with the production, storage, and dissemination of information. --National security, and the secrecy necessary to guarantee it, is a highly visible information policy value at the federal level. Security classification policy is the pertinent issue in this area. Overman and Cahill (1990) used this framework of seven information policy areas to analyze information policy at the federal level, but they also relate to information 5


policy at the state level. These areas will be used to. describe and analyze the laws that comprise information policy at the state level. Table 1.1 illustrates how these information policy values are applied to state-level information policy. Table 1.1. State-level Information Policy Values Information Value Access Openness Privacy Intellectual Property Security State Statutory Policies Open records Open meetings Privacy Statutes Trade Secrets Computer Crime Access is the ability to obtain government records. It is reflected at the state level through open records laws. Openness 1s the ability to participate in the processes of government. It relates to laws concerning open meetings. As everyday life in the United States has grown in complexity, access to information has become increasingly important. A citizen's ability to function professionally and personally depends on the ability to obtain and use information. The use of information extends from the simple knowledge of food prices to the complexity of the tax code, each vitally important to survival in today's society. Thus, it would appear that the free flow of information has great utility, both social and economic, 6


in the lives of United States citizens today. The concepts of access and openness are reflected in open meetings, open records, and fair information practices laws of the states. Privacy is another information policy value relevant to information policy at the state level. Defined as an integral part of freedom, privacy is an important aspect of the ability to secure autonomy. The right of individuals to live their own lives without interference from the government or other individuals is a strongly supported concept within the Constitutional framework of democratic values (Hemphill 1977). Privacy is considered essential to democratic government "because it fosters and encourages the moral autonomy of the citizen, a central requirement of democracy" (Gavison 1984, 369). The right to limit dissemination of information is vital to privacy. States guarantee privacy through constitutional provisions and state statutes. Personal privacy also is protected through specific stipulations limiting disclosure of public records and limiting access to public meetings. Another aspect of privacy covered in this study is the degree of privacy needed by government officials to make effective decisions. Governments do business with private organizations on a daily basis through contracts, real estate transactions, and regulations. At times, decisions need to be made in private in order to ensure that a 7


government lS not disadvantaged in a competitive transaction. This aspect of privacy, privacy in service of effective government, is reflected in open meetings and open records laws. These laws provide for the closure of meetings and records enabling government to make such decisions in private. Ownership as an information policy area primarily relates to intellectual property rights. Government has a substantial interest 1n protecting free expression by guaranteeing that citizens can use ideas for their own benefit and for the benefit of others. At the same time, government has an interest in guaranteeing the people's welfare by encouraging intellectual and practical advancement which benefit them. In a capitalist economic system, this advancement is accomplished by allowing the ownership of expression. Citizens are allowed to own "intellectual property, just as they are allowed to own physical property. The ownership of such property allows those who create it to be rewarded with monetary gain. It is assumed that giving exclusive right to those who take such initiative is a legitimate way to reward these contributions. Creation of new intellectual property is promoted by the monetary gain rewarded to authors. Most intellectual property laws exist at the federal level as copyright and patent law, only trade secret law is 8


left for state legislation. Trade secret law has become increasingly important with the production of new forms of intellectual property, such as computer software. This study will cover the condition of trade secret law in the fifty states and the District of Columbia. Security is the most visible information policy at the federal level, where concern for the national defense interacts with information policy. Security issues at the state level focus on a different problem--that 1s protection of government data. As more and more governmental records are stored in automated form, controlling access to them has become a more important concern. Statutes dealing with computer crime provide the basis for protection of these records in .both governmental and private organizations. Computer crime statutes represent state-level information policy in the security area. The two remaining information policy values outlined by Overman and Cahill (1990) will not be covered in this thesis. Usefulness and cost and benefit relate to the management of information--production, storage, and dissemination. Several other studies have been completed concerning the management of information at the state-level which provide a good research base for this area. are discussed in Chapter 2. 9 These


Distributive and Restrictive Policy All public officials have a role in the development of information policy. Elected representatives debate and pass legislation which reflects policy choices. Executive branch officers implement information policies and make decisions concerning information technology to be used. Judges weigh issues in cases where conflict is produced through the implementation of each information policy. When governments attempt to make decisions concerning information policy, they deal with real life situations. Many of these situations pose choices between providing free access to information, or limiting access to information. Others deal with ownership issues, such as the right of one person or organization to have exclusive use of information. Access, openness, privacy, intellectual property and security values are at the heart of these choices. Besides. defining information policy values, Overman and Cahill (1990) offer a structure which classifies these values into two perspectives: distributive and restrictive. The distributive/restrictive dichotomy provides a way to analyze the balance of information policy in the states. The distributive perspective "views information as a public good to which the public has a right to access and use" (Overman and Cahill 1990, 811). In this view, information 10


1s seen as a democratic commodity, a good which provides a measure of freedom for each person. The individual's right to know and to be informed is seen as paramount. Statelevel policies that grant citizens access to public records and guarantee attendance at public meetings are examples of the distributive perspective. Another aspect of the distributive perspective is the part of privacy protection which allows individuals access to information about themselves. Both public and private organizations collect information about persons to use in making decisions. For example, governments collect information about income and property values in order to determine the appropriate collection of taxes. Companies collect information about income and financial obligations to determine a person's ability to repay a mortgage loan. A distributive perspective supports a person's right to see and correct any information about themselves held by such organizations. The distributive perspective addresses the dissemination of information throughout society. Equality of access to information is implied in the democratic roots of the distributive perspective. "views information as a The restrictive perspective market good with restrictions (Overman and Cahill 1990, 811). on collection and use" It includes all views that 11


seek to restrict or limit the free flow of information. In this perspective, information is seen as a valuable cornrnodi ty which needs protection and regulation. For example, it has been widely accepted that authors should retain exclusive rights to their work for a period of time. Companies are allowed to have exclusive use of a patented process in order to profit from the process they have invented. In addition, limiting access to personal information is seen as a desirable goal. Confidentiality of such information protects each person's privacy and supports individual freedom. The protection of personal information governmental files is an important aspect of a restrictive policy. The distributive/restrictive structure provides a framework within which policy decisions can be analyzed. Decisions regarding information policy can be placed on a continuum between the distributive or restrictive For example, open records laws, a representative of the access area, can be placed on the continuum between the distributive and restrictive poles. The discussion of personnel matters in public meetings is one area that could be examined when attempting to place an open meetings law on the continuum. Local officials can decide to take action on personnel matters in open meetings or they can 12


decide to provide for executive sessions to discuss issues concerning individuals. The first approach would fall on the distributive end of the continuum, while complete closure of the sessions falls on the other end. A compromise approach also can be taken--providing for specific agendas for executive sessions, the announcement of the decisions made, and the documentation of minutes to be released at a later date. This type of compromise would result in placement on the middle of the continuum. In like fashion, access, pr1vacy, intellectual property, and security laws can tend toward a great deal of disclosure {distributive) or toward limited access to information {restrictive) Open records laws can provide for limited access to records concerning individuals, or can provide for open access. Privacy laws can protect all aspects of personal information or none. Intellectual property laws can provide strong protection for copyrighted work, allowing little access by others, or they can provide for liberal copying and use by persons other than the author. Decisions made by public officials usually reflect a choice of distributive or restrictive views or compromises between the two. Overman and Cahill {1990) call such compromises policy "resolutions." These resolutions generally do not provide lasting solutions to information policy conflicts. Instead, they create a means of 13


determining a balance of policy between distributive and restrictive viewpoints. The accommodations chosen by the states will be illustrated in this dissertation. One additional concept is needed to complete the outline of this thesis. What factors might bring a certain state to formulate restrictive or distributive information policies? The relationship between a state's policy environment and its information policy can be explored using the concepts of democracy and bureaucracy. Democracy and Bureaucracy Public officials make policy choices within political environments which define the relationship between government and the governed. Two concepts relevant to this study of information policy are democracy and bureaucracy. Democracy is the basis of government in the United States. This democratic base rests on a belief in the freedom of the individual and a concern for any law or situation that limits that freedom. The political climate within the United States emphasizes democracy and the limiting of interference in private affairs. Large government, or bureaucracy, holds the potential for interference in people's private affairs. In a climate that values democracy, large government can be seen as a potential force for restricting information and limiting 14


the freedom of citizens. The civil liberty of democracy is threatened by public power as embodied in public bureaucracies (Morone 1990). The relationship between citizen and bureaucracy has changed as government as grown. In 1933, White declared: The distinction between citizen and official was slight, passage from one status to the other was easy. Now inexpert participation in whole blocks of administration has become impossible, the distinction between official and citizen is more definite and permanent, a bureaucracy has emerged out of the conditions of modern government . . The reconciliation of democratic institutions and the professionalized bureaucracy . is one of the major perplexities of the future. (White 1933, 340) This conflict between democracy and bureaucracy was not clearly recognized by the framers of the Constitution. Although administration was seen as an important issue, the designers of our system of government did not focus on bureaucratic aspects while writing the Constitution. The founding fathers had little to say about the nature or function of the executive branch of the new government. The Constitution is virtually silent on the subject and the debates in the Constitutional Convention are almost devoid of reference to an administrative apparatus. (Wilson 1976, 77-78) Article II of the Constitution deals with the executive branch of government, but discusses mostly the election of the president. It appears that the possibility of an extensive executive branch was not foremost in the thoughts of those drafting the Constitution (Rohr 1978, 239). The 15


Constitution did provide some independence for executive agencies by providing that Congress share the power of appointment with the president. Rohr argues that the executive departments, precisely because they are totally subjected to neither the president nor to Congress, are somewhat independent o:e both. This independence, based on the framers intent to "check" executive power, might possibly confer some textual legitimacy upon the bureaucratic claim to govern. (Rohr 1978, 240) While there may be a textual legitimacy of bureaucracy, there is no clear constitutional basis. As shown above, the Constitution does define a relationship between citizens and their government. This relationship was defined through a listing of the rights accorded each citizen in the Bill of Rights. Democracy and bureaucracy as used in this thesis are constructs that represent the environments of the states. Democracy as a construct is measured by the strength of voter participation and the level of educational attainment. These are commonly linked measures in political science literature, and they provide a way of analyzing the political environment of the state in relation to its information policy. Bureaucracy is a construct measured by the size of state government and its sophistication. The size of state government 1s measured by the proportion of state population to state expenditures, and number of 16


state employees. These are commonly used measures of the size of a state's government compared to its population. An index of how professional the state-legislature is serves as a measure of state political sophistication. These two measures attempt to address the bureaucratic environment of the state and provide a way to analyze that environments relationship to information policy. Research Framework Table 1.2 illustrates the relationship between information policy values, restrictive/distributive policies, and democratic/bureaucratic political environments. As discussed in the previous section, the states have different environments in relation to the constructs of democracy and bureaucracy. These environments can be placed along a continuum as shown in Table 1.2. The information policy areas of access, openness, privacy, ownership, arid security are placed within the distributive/restrictive policy framework. Each piece of legislation can be placed along the continuum between the restrictive and distributive poles. Our previous example concerning the discussion of personnel matters in public meetings illustrates how openness can be distributive or restrictive. Free discussion reflects a distributive 17


Table 1.2. Research Framework Environment: Bureaucratic Democratic Policy: Information Areas Access Openness Privacy Intellectual Property Security Restrictive Distributive 18


policy, while closed discussion reflects the restrictive choice. It is the premise of this dissertation that the environment of the state results in that state's information policy. A strong bureaucratic environment should be likely to result in a more restrictive information policy. For example, strong state government with a number of active public employees would likely encourage a policy of private discussion of personnel matters. At the other end of the continuum, a democratic environment is expected to result in a distributive policy. In a state where democracy is strong as measured by voter participation and educational level a strong preference for openness of meetings is more likely to be the result. This premise will be explored in the following way. The first step in examining this topic is to describe information policy in the fifty states and the District of Columbia (hereafter referred to just as the states) Public officials in each state have made information policy choices when they have enacted statutory law 1n the information policy area. These policies have never been described in any comprehensive way. The compilation of these laws using a policy framework provides the first measure of state-level information policy. This thesis will catalog these laws and evaluate them using the policy 19


values of access, openness, prl. vacy, intellectual property, and security as measures of their effectiveness. Each state will receive an evaluative measure on each of the information policy areas. Through this evaluation the choices made among these values will become apparent. The environment of each state has democratic and bureaucratic aspects. The framework of distributive and restrictive policy is utilized to compare a state's political environment with its information policy choices. Research Questions and Propositions The following research questions will be explored. -What are state information policies? -Are policies restrictive or distributive in nature? -How do policies relate to bureaucratic/democratic environments of the states? Data will be gathered and conclusions made concerning the following propositions. 1. State information. policy is reflected through the enactment of statutory law. Each state's policies reflects choices made within the distributive/restrictive structure. 2. The distributive/restrictive structure of a state's information policy will correlate to that state's political and bureaucratic environments. 20


a. A state that shows high measures of democracy will have chosen more distributive information policies. b. A state that has a well-developed bureaucracy is expected to have more restrictive policies. A state with a strong democratic environment is expected to have chosen more distributive information policies. This analysis explores the proposition that in states where citizens are active on their own behalf, access to information is considered important. Laws that support a distributive approach to government information should have received a higher priority than laws that reflect a restrictive posture. For example, in states where voter participation is high it is expected that the state's open meetings law would place emphasis on access issues. On the other hand, states with strong bureaucracies are expected to have chosen more restrictive policies. Strong bureaucracies should have a tendency to resist distributive policies. Bureaucracies are concerned with the use -of information for decision making and for managerial control. A strong bureaucracy should be more likely to recognize the value of information as a commodity and realize .its potential use. Effective bureaucracies build systems for the gathering, analysis, and use of information for their own decision making. The limiting of 21


access to information increases its value for control purposes. Those who have access to information can control those who do not. Recognizing this phenomenon, a strong bureaucracy may have a tendency to resist policies which distribute information. Bureaucracies may want to keep information, and therefore decision making, within the bureaucratic framework. For example, a more restrictive public records law would be expected in states with strong bureaucracies. The results of this analysis will show how the states have chosen to define their information policies. A basis of comparison between the states, the information policy values of access, openness, privacy, intellectual property, and security will assist in demonstrating the different choices states have made. The state's democratic and bureaucratic environment will be defined through the use of standard political and social measures. Classifications of the states produced within the literature of comparative state analyses will supplement these measures. Analysis will be performed to determine whether these environments have a relationship to information policies chosen in each state. The outcome of this study will contribute to the growth of knowledge concerning information policy and its relationship to political and social environments. 22


CHAPTER 2 INFORMATION POLICY LITERATURE The first step in studying information policy in the states must be an attempt to define what is meant by the word "information." Hernon supplies a simple, functional, definition which is functional for the study of information policy: "the content of a message or communication conveyed and assimilated by the person receiving that message" (Hernon 1989, 229). The parts of this definition, a message, content, and assimilation, provide an outline of different discipline definitions of information. The disciplines of business, cognitive sciences, computer science, economics, engineering, information science, and library science all offer perspectives. Within the technical disciplines of computer science and information science, information is defined as a sign or symbol (Farradane 1976; Pearson 1980; Wellisch 1972). The focus of information in this perspective is the way it moves and is moved through a system; content is less important. The cybernetics movement within the discipline of engineering extends this view, adding the concept of feedback and control. Wiener defines this area as the


science of control and communication (Wiener, 1965). The content of the message becomes important as self-regulation of mechanical systems is made possible through this type of exchange. Content, particularly its truth or falsehood, becomes even more important as cybernetic systems are applied to managerial control of human systems. Lawler and Rhode (1976) have established the viability of information control within human management systems. As the potential for information as a control mechanism became clear, its use for competitive advantage emerged as an additional area of study for the disciplines of business administration and economics. Machlup (1980) has written the most comprehensive analysis of the possible use of information as an economic resource. While some authors. have explored the important differences between information and other physical commodities, such as water and land (Cleveland 1985a), researchers and practitioners alike are exploring the explosive economic benefits when the free flow of information is restricted--thereby allowing ownership and sale. Individuals in the discipline of library science question the direction that ownership of information is taking society (Mosco 1988) Within this discipline, information is viewed as a shared resource which should be free and openly available to all. Access to these resources provides a standard value for the 24


library science profession (Gates 1976) As the number and variety of information resources necessary for informed daily living increases, the concept of access has been expanded from simply obtaining physical items of information to include the possession of information seeking and interpreting skills. The focus of so many disciplines, information clearly is an important concept in today's world. Braman argues that information should be defined "as a constitutive force in society" (Braman 1988, 9). This interpretation adds to the disciplinary perspectives noted above by providing a perspective on how information functions (Braman 1988, 16-46) This definition provides a larger framework within which other views can exist. For the policy context, information can be viewed as a basic component of society that influences how society is formed. This definition will be used in this dissertation. Given this definition of information, delineating the parameters of information policy is necessary. Many authors have attempted to provide a definitional framework for information policy. One of the most published researchers in the area, Peter Hernon, offers this definition of information policy: A set of laws, regulations, directives, statements, and judicial interpretations that direct and manage the lifecycle of information. That life cycle encompasses planning, and the 25


creation, production, collection, distribution and dissemination, and retrieval of information. (Hernon 1989, 229) Weingarten adds the dimension of encouragement discouragement, by defining information policy as the set of all public sector laws, regulations, and policies that encourage, discourage, or regulate the creation, use, storage, communication, and presentation of information. (Weingarten 1989, 79) or Braman's explanation includes the concept of exclusion of information. She defines information policy as that policy which has the effect of determining how society is constituted through controls placed on information creation, flows, and use. Operationally, information policy here is policy that applies to any stage of the information production chain, including decisions to exclude specific types of information, actors, or actions from portions or all of that chain. (Braman 1988, 10) Utilizing concepts from these authors, information policy can be defined as the set of laws, regulations, policies, and judicial interpretations that affect decisions regarding the creation, collection, storage, use, and dissemination of information. Studying information policy particularly difficult because of its decentralized nature. In the United States it is comprised by a 11 collection of laws, precedents, expectations and social norms which are generally autonomous and have emanated from diverse sources 11 (Trauth, quoted in Heim 1987, 28). There is no national information 26


policy despite years worth of discussion on the federal level about the need to develop one (McClure, Hernon, and Relyea 1989.) Indeed, it appears that the complex nature of information is partially to blame for the lack of a unified policy. The usual federal practice of compartmentalizing policy issues has not worked for the development of an information policy, and understandably so (Fascell and Schlundt 1983, 508). For example, should issues dealing with transborder data flows be the province of the Department of State, or the Department of Commerce, or the Office of Management and Budget? The issues are so complex that some authors in the field suggest that we abandon the attempt to define an overall policy (Judge 1988, 318). On the other hand, the continued absence of at least an informed unified information policy does appear to be a reason for concern (Burger 1986b, 3). Ad hoc legislation and reactive judicial decisions, both made in part by decision makers with little or no background in information policy, are true cause for alarm (Kirby 1987, 758). According to Hernon, an information policy should convey a sense of purpose; it should give guiding principles for the management of information. Within the United States, a national information policy should transcend "all levels of government within a nation," and represent "a central and cohesive body of doctrine." Its 27


purpose should be "to bring together those information resources not subject to legitimate protection that will meet the information needs of the public" (Hernon 1989, 230-231). It is logical to infer from these statements that information policy is a broad area unlike many others that deal with narrowly focused items. The nature of information as a constitutive force means that decisions concerning its policy may affect large portions of society and numerous other policy areas. Information is in many respects "all encompassing"; therefore, information policy plays a critical role in overall policy making. Each area can be affected by the information policy applied to it. Therefore, the importance of a coherent information policy is recognized, but the means for providingone appears to be beyond our grasp. Information Policy Research Information policy is a fairly recent topic of research. The lack of a large research base indicates its recent development as a discipline area (Eisenbeis 1989, 297). Well-known authors in the field, such as Hernon and McClure, admit that there "is a paucity of studies conveying empirical evidence" (McClure and Hernon 1987, 164) 28


Most of the writing done on information policy has focused on the federal level. This research has dealt with legislation at the federal level, the role of the federal government as a producer and distributor of information, and the management of information resources within the federal bureaucracy. Despite a good volume of work at the federal level, no comprehensive information policy exists, nor is there a program to create one. There is, however, general agreement that further research is needed. One of the gaps identified is research on state-level information policy (Vagianos and Lesser 1988) During the last twenty years, states actively pursued information policy through their legislative, judicial, and executive branches. Legislation was enacted concerning computer crime, open meetings-, open records, trade secrets, telecommunications, and the use of information-processing technology. Research on these pieces of legislation have appeared in. the legal literature. The majority of them simply describe legislative provisions enacted by state legislatures (Barber 1976; Bindelglass 1981; Brown 1976; Chapman 1986; Dabney 1987; de la Mora, 1983; Dilts, 1980; Etnyre, 1977; Force and Griffith 1982; Frederickson 1985; Gallaher 1974; Guy and McDonald 1976/77; Harrington 1988; Harvey 1980; Jennings, 1975; Johnson 1977; Klitzke 1980; Lawrence 1987; Long 1988; Marino 1974; McManus 1988; 29


Miller 1988; Paul and Kemp 1982; Pierce 1988; Quarles 1980; Rosenbluth 1981; Smith 1983; Spurgin 1987; Trop 1988; Watkins 1984a; Watkins 1984b; White 1982; Ziegler 1980). There are a few comparative articles providing legal analysis of legislation of several states (Adams 197 4; Iorio 1985; Keefe 1977; McClain 1978; Smith 1981). Guides to open records and meetings laws have been written by Braverman and Chetwynd, Braverman and Heppler, and Hobson, giving practical advice to lawyers in this area (Braverman and Chetwynd 1985; Braverman and Heppler 1981; Hobson 1971). Adams is the only author who includes an analysis of policy consideration with his listing of open meetings laws. His analysis is dated, but does give a rating of comprehensiveness of open meetings laws. The Adams article plus those noted above provide legal-based descriptive data concerning information policy at the state level. Vitello (1985) identified the need for a state information policy, but did not go further. More progress has been made in the area of management of information resources at the state level. The executive branch agencies of several states have initiated studies. Researchers in public administration and library science have explored issues of government's information technology capacity as well 'as the cost and benefit of those systems. 30


(Caudle and Marchand 1989; Caudle 1990; Davies and Hale 1986; Florida Legislature, Joint Committee on Information Technology Resources 1989; Levitan 1987; McGowan and Lombardo 1986; Norris 1984; Scoggins 1981; Stevens and LaPlante 1986; Virginia, Council of Information Management 1989). These studies offer a good descriptive database of the information processing capacity that exists at the state level. Since this research exists, this thesis did not cover that area. A review of this literature shows that there is research relating to the formation of information policy on the state level. However, these studies have three drawbacks: (1) they are uniquely descriptive; (2) they are piecemeal in their approach, focusing on only one piece of legislation; and (3) they are principally legalistic. The literature consists principally of descriptions of specific pieces of legislation from a legal point of view. Little analysis outside the legal discipline's perspective was found, and no comprehensive approaches to information policy were found. A compilation of state-level information policy which supplies analysis from a policy perspective is needed as the next step in providing a comprehensive picture of state-level information policy. 31


Access and Openness There is nothing more basic to the relationship between government and citizens than the right of access to information. The free flow of information is essential to the citizenry's ability to participate in democratic government. Citizens need to know what their government is doing, what its policies are, and they need to voice their agreement or disagreement with these policies. As James Madison noted, "A popular government without popular information or the means of acquiring it, 1s but a Prologue to a Farce or a Tragedy; or perhaps both" (Madison 1822, 103). Access to information is essential for the implementation of democratic governance. Relyea has characterized information as "the currency of democracy" (as quoted in Higgins 1988, 18). This currency provides the means by which people can participate knowledgeably and effectively in their governments. In the Constitution, access to information has been defined as a necessary component of democracy. Freedom of speech, as defined in the First Amendment of the Constitution, is the foundation on which access to information stands. The First Amendment is an important and controversial part of the Constitution. Scholars have provided conflicting interpretations of the amendment and its relationship to the issues of modern society. Debate 32


has centered on the extent of freedom guaranteed as it conflicts with the rights of others. Throughout this debate, the guarantee of free speech has been consistently related to the collection and distribution of information. Information policy issues have become a principle part of the First Amendment discussion. All branches of government have identified and defined specific rights implied by the First Amendment. Robertson and Aldrich (1981, 5-6) have identified fundamental values that are reflected in the First Amendment: (1) the right to speak freely and participate in public discussion of ideas, (2) the right of the citizenry to be informed about, and oversee, governmental policy, and (3) the right to obtain information needed to function effectively within society. Each of these values are reflected in state legislative policy. Participation of citizens in the functioning of government traditionally has been the basis of democracy. With the growth of government, it has become increasingly important for citizens to be active 1n governmental decision making. Open meetings and records laws provide the guarantee that citizens can participate with public officials in the decisions that are made. Access to the actions of government through open meetings and records legislation promotes greater 33


accountability. The opportunity to participate in public debate and decision making may build increased acceptance of, and confidence in, governmental actions. Providing information to citizens through governmental openness may encourage individuals to understand the workings of government and accept the necessary, but difficult, choices inherent in modern society ("Open" 1962). In addition, officials may be more likely to study the issues that come before them carefully and may be discouraged from making public decisions in a casual manner when their actions are subject to open review (Bensabat 1982). Citizen access has been augmented by the activity of the news media, which has been active in using open meetings and records laws to report on governmental activities. Legalizing the Right to .Know The public's right to know about governmental actions has been under debate since the nation was formed. The constitutional foundation is strong, and the pract:Lcal aspects of access have been delineated through statutory provisions and court findings. The traditions of democracy have provided a general philosophical underpinning for the concept of citizen access to information. The first major attempt to summarize the condition of openness in a legal sense was made by Harold Cross (Cross 1953) Cross served as counsel for the New York Herald 34


Tribune and lectured on laws affecting journalism at Columbia University (Fossey and Roston 1986). Writing for the Committee on Freedom of Information of the American Society of Newspaper Editors, he published The People's Right to Know in 1953. The book became a classic for both journalists and legal scholars interested in open meetings and records laws. One of the first issues considered by Cross was the question of access to public records provided by common law developed early in England. Cross summarizes: On account of the relatively few points of contact between the government and its subjects that require or were susceptible of records, the English courts were not often called on to enforce rights of individuals to inspect public records. There was little pressure for such rights by citizens or taxpayers as such. Accordingly, the courts declared the primary rule that there was no general common law right in all persons (as citizens, taxpayers, .electors or merely as persons) to inspect public records or documents. (Cross 1953, 25) English courts did allow access to public records when the information was to be used in pending litigation. This exception migrated to the United States and became the basis for some decisions in which access could be gained by a citizen with "an interest" in certain records (Cross 1953) Different decisions were made on the common law right throughout the early history of the country with some courts declaring a common right (Thomas v. Hoblitzelle, 85 No. 620 (1885) and Gleaves v. Terry, 93 Va. 491, 25 S.E. 35


552 (1896) as cited in Brown 1976, 519) and many others denying access (Cross 1953, 29). It appears that a general right of access was not generally accepted even as statutory law was passed in many states (Cross 1953, 29). In 1906 the Michigan Supreme Court, aided by a statute in the state, declared: I do not think that any common law ever obtained in this free government that would deny to the people thereof the right of free access to and public inspection of public records. They have an interest always in such records, and I know of no law, written or unwritten, that provides that, before an inspection or examination of a public record is made, the citizen who wishes to make it must show some special interest in such record. (Clement v. Graham, 78 Vt. 290 (1913) as cited in Cross 1953, 27) By 1953, Cross could declare with confidence that common law supports the right of access to records in which one had an interest, but that there was no general common law right in all persons to inspect public records (Cross 1953, 29, 55). When a general right of access was enacted, it was supported by statute (Henrick 1977, 1108). The concept of a constitutional right of access is the subject of extensive debate in legal literature. Constitutional scholars argue that the freedoms of speech and press lay the groundwork for the prevention of governmental interference. This right is then linked with the concept of access to information. In other words, expression cannot be free without a free flow of 36


information concerning government. Others recognize that the Constitution does not contain a specific provision for openness, but, through the Ninth Amendment, rights not enumerated in the Constitution are considered to lie with the people, including the right of access to information {"Access" 1952; Parks 1957; "Public's" 1974). Other scholars argue that no constitutional right of access exists {"Right" 1971; "Rights" 1974). The courts have often avoided the constitutional question even when pressed with the argument that statutory law is not inadequate {Houston Chronicle Public. Co. v City of Houston, 531 S.W.2d. 177 Tex Ct. App. (1975), writ of error denied per curiam, 536 S W.2d 599 Tex. (1976) as cited in Johnson 1977, 1188). The question of a common law right of access or a constitutional basis for access continues to be debated within legal circles. While these areas of law are explored, members of. federal and state legislatures have seen a need for statutory law in this area and have enacted legislation. All fifty states and the District of Columbia have both open meetings and open records laws. The first statutory provision for open meetings was enacted in California in 1883, a law that required the meetings of county boards of supervisors to be open. The Dakota Territory followed in 1887 with a law that covered 37


city councils; Utah followed in 1898 with a similar law. The state of Alabama was the first to pass a comprehensive law in 1915. The publication of Harold Cross' book in 1953 prompted legislative action, and by 1959 twenty states had enacted open meetings laws. Another explosion of legislative activity was seen in the 1970's as a result of Watergate, and by 1974 forty-six states had legislation. The number reached fifty by 1977 (Oakes 1987). It appears that statutory law concerning open records developed more slowly than that of open meetings. This was perhaps due to extensive common law litigation (Henrick 1977, 1107). Prior to 1940, only twelve states had statutes concerning public records. Most of these were simple in language and lacked interpretive definitions (Henrick 1977, 1107). Tpe Federal Records Act, passed in 1950, provided the impetus for states to act. By the time Cross finished his study in 1953, thirty-six states had some type of open records law. Since the 1950's, states have continued to enact legislation concerning records. The trend of these statutes and modifications to existing legislation has been to enhance access rights of citizens (Henrick 1977, 1137-1138). 38


Privacy The new "information society" is dramatically influencing the relationship between government and the private citizen. Governmental activities pervade personal lives in the .form of taxes, social security, social programs, licensing of the professions, and regulation of business, labor, and non-profit organizations. In order to fulfill their role concerning these activities, governments have become information-gathering and record-keeping organizations. Data on individuals and organizations are gathered to assist in administering governmental programs. Despite a reluctance to hand personal information over to governmental control, citizens have little choice but to provide the information requested. Governments also collect information on individuals from private institutions and organizations without the subject's knowledge. This type of data collection carries with it the possibiiity of misidentification, particularly when only one piece of data is used to match records. Data collection without review by the individual concerned allows for the possibility of inaccurate governmental records. Since governments decide the form in which the information is to be kept, who shall have access to it, and for what reasons, information policy concerning privacy of these records is an important issue (Hosch 1983). 39


Without privacy protection, citizens have little power over the personal information held in thousands of public and private data banks. Information policy is needed to regulate the collection, storage, and use of personal and corporate information. The right of citizens and executives of organizations to participate in decisions concern1ng governmental record keeping is an integral component of liberty. A continuing effort to protect privacy has existed for a number of years as citizens and government employees recognize the dangers to liberty. Prior to the advent of computerized record keeping, information needed for governmental decision making was kept in a decentralized system of paper records located in numerous governmental offices. Gaining access to the records was a local operation, often slow and cumbersome. This inefficiency of information storage and retrieval provided a measure of privacy, since there were considerable obstacles to seeking comprehensive information on one individual. The advent of computer and telecommunications technology fundamentally altered government's record-keeping capabilities and ended some of their automatic safeguards. Data can be accessed quickly and made accessible from many distant points. The enhanced access to information has resulted in correspondingly 40


diminished privacy protection (Hosch 1983; Murdock 1980; Rankin 1984). The literature published on the issue of privacy in the light of new technologies is extensive (Flaherty 1984; U.S. Department of Health, Education and Welfare 1973; U.S. Privacy Protection Study Commission 1977). While much of this literature includes speculation on the privacy problems this technology poses, there are few empirical evaluations available (Kraemer and King 1987, 98). While investigation has not been extensive, there appears to be agreement that the growth of information technology has outpaced the development of public policy and a legal framework to address privacy issues (Murdock 1980) Some public policy work has been done, resulting in models for privacy policy implementation. In 1973 the Department of Health, Education, and Welfare recommended a "Code of Fair Information Practice" _(U. S. Department of Health, Education and Welfare 1973) This code provides for basic protection of information privacy, and formed the basis for the federal Privacy Act of 1974. A more comprehensive set of principles was issued by the Organisation for Economic Co-Operation and Development (OECD 1980). The OECD is encouraging world governments to adopt the following principles: 1. There should be limits to the collection of personal data and any such data should be 41


obtained by lawful and fair means and, where appropriate, with the knowledge or consent of the data subject. 2. Personal data should be relevant to the purposes for which they are to be used, and, to the extent necessary for those purposes, should be accurate, complete and kept up-to-date. 3. The purposes for which personal data are collected should be specified not later than at the time of data collection and the subsequent use limited to the fulfillment of those purposes or such others as are not incompatible with those purposes and as are specified on each occasion of change of purpose. 4. Personal data should not be disclosed, made available or otherwise used for purposes other than those specified in accordance with Paragraph 4 except: a) with the consent of the data subject; or b) by the authority of law. 5. Personal data should be protected by reasonable security safeguards against such risks as loss or unauthorized access, destruction, use, modification or disclosure of data. 6. There should be a general policy of openness about developments, practices and policies with respect to personal data. Means should be readily available of establishing the existence and nature of personal data, and the main purposes of their use, as well as the identity and usual residence of the data controller. 7. An individual should have the right: a) to obtain from a data controller, or otherwise, confirmation of whether or not the data controller has data relating to him [or her] ; b) to have communicated to him [or her], data relating to him [or her] within a reasonable time, at a charge, if any that is not excessive, in a reasonable manner, and in a form that is readily intelligible to him [or her]; 42


c) to be given reasons if a request made under subparagraphs (a) and (b) is denied, and to be able to challenge such denial; and d) to challenge data relating to him [or her] and, if the challenge is successful, to have the data erased, rectified, completed or amended. (Organisation for Economic CoOperation and Development 1981, 10-11) These principles have the potential to become the basis of privacy legislation at all levels of government. Legal Support for the Right of Privacy Legal recognition of a right to privacy is of recent origin and remains a complex area of law. The lack of clear constitutional protection for this right has resulted in debate by legal scholars and a wide variety of court decisions concerning privacy. The difficulty of defining a right of privacy continues to challenge legal scholars in multi-dimensional ways. The legal concept of privacy was thought to be first proposed in the United States in 1890 with the publication of an article (Warren and Brandeis, 1890) indicting "yellow journalism" and endorsing a right to recover from an "invasion of privacy." Samuel Warren and Louis Brandeis wrote the piece in response to press coverage of the private social life of Mrs. Warren. The legal profession viewed the article as a remarkable construction, and it has been quoted widely J.n decisions concerning privacy. Warren and Brandeis were "principally concerned not with a broad 43


right to be let alone but rather with the right to protect oneself from having one's private affairs known to others and to keep secret intimate facts about oneself from the prying eyes or ears of other persons" (Freedman 1987, 3). Prosser further extended the legal concept of privacy by classifying invasions of privacy (Prosser 1960). He argued that there was no single right of privacy, but there were different and distinct elements of privacy, including a right to be free from public disclosure of private facts. While there is no explicit right of privacy in Constitution, scholars believe that it has some primacy as a fundamental right (Freedman 1987). This right has been inferred from analyses of the third, fourth, and fifth amendments (Hemphill ,1977, 1). The Third Amendment guarantees a degree of pr1vacy by limiting the right of government to use private residences for public purposes. In this case, the quartering of troops is prohibited without the consent of the owner. The Fourth Amendment extended this right to private residences by limiting the ability of others to search private places and seize private property: "The right of the people to be secure 1n their person, houses, papers, and effects, against unreasonable searches and seizures shall not be violated" (U. S. Constitution, Bill of Rights, Article IV). These constitutional provisions imply a right of privacy 44


within one's personal environment and has been extended to other aspects of personal life through laws governing eavesdropping, wiretapping, and various forms of electronic surveillance. The protection of each individual's private environment is a well-accepted constitutional concept. The Fifth Amendment protects privacy by requiring that no person "shall be compelled in any criminal case to be a witness against himself" (U.S. Constitution, Bill of Rights, Article V). This provision guarantees privacy of the thought and mind, adding strength to the third and fourth amendment guarantees of physical privacy. The coverage of this amendment has been extended to personal thought, on paper, by some courts of law (Hemphill 1977, 1) The Supreme Court has repeatedly recognized rights of privacy in numerous cases (Murdock 1980). In Griswold v. Connecticut, the Supreme Court defined an independent constitutional right of privacy 1n relation to personal conduct (381 U. S. 479 (1965)). In addition to the Constitutional basis discussed above, The Court has used the ninth and fourteenth amendments to guarantee privacy in making certain personal decisions (Hanus and Relyea 1976, 565). The Court expanded the right of privacy in a number of decisions between 1965 and 1973 when the landmark Roe v. Wade was decided (Hendricks 1990). In this decision, the 45


Court established a right of privacy broad enough to include the decision of a woman whether to terminate a pregnancy (410 U.S. 133 (1973)). The significance of the decision is explained by one scholar in the following manner: Noting that "a right of personal privacy or guarantee of certain areas or zones of privacy, does exist under the Constitution," the Court listed cases that implicated the right of privacy contained in the first, fourth, fifth, ninth, and fourteenth amendments, and in the penumbras of the Bill of Rights. The Court also held that this guarantee of personal privacy includes 00nly personal rights that can be deemed fundamental or implicit in the concept of ordered liberty," and that "the right has some extension to activities relating to marriage, procreation, contraception, family relationships and child rearing and education." The Court concluded that the right of privacy is "founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action (Clouse 1982, 540-541) However, the Court has not been so clear on the informational right to privacy. Three years after Roe v. Wade, the Court refused to extend privacy protection to bank records in United States v. Miller (425 U.S. 435 (1976)). A year later in Whalen v. Roe the Supreme Court had the opportunity to rule directly on an invasion of privacy by a state's plan to computerize information related to the use of certain prescription drugs. While the Court denied that privacy had been invaded, it did indicate that appropriate safeguards for this type of information are important. Within this decision, the Court 46


did acknowledge that 11the right of privacy encompasses two separate guarantees: the right to make personal decisions, and the right not to disclose private informationn (Whalen v. Roe 429 U.S. 589 (1977); Clouse 1982, 537). Most legal scholars agree that a right to privacy has been recognized by the Court, even though it has not always been strictly supported by judicial opinion (Albinger 1987, 626; Clouse 1982, 527; Murdock 1980; Trubow 1981). Privacy is a result of legal interpretation, and, therefore, continues to be a matter of interpretation. The state's role in defining a right to privacy has also been recognized by the Court (Katz v. United States, 389 U.S. 347, 350-51 (1967)) 1n trying to limit the protection provided by the Fourth Amendment. The extent of privacy accorded citizens in regard to information remains an unclear area of the law. It is not known what approach the Court may take in defining privacy and its relationship to personal information kept in numerous governmental and private databases. While the legal right of information privacy is not clearly articulated in the Constitution, the concept of privacy within information policy has been recognized. Statutory law has been enacted which helps define an informational privacy right at both the federal and state levels. 47


The inability of the Supreme Court to define privacy principles consistently has prompted Congress to pass several pieces of privacy protection legislation (Freedman 1987). The Fair Credit Reporting Act (19.70) limited access to financial information and gave individuals the right to review their credit reports. The Right to Financial Privacy (1978) limits federal access to banks records, but the law exempts the FBI and some other federal agencies and does not cover state and local governments. The Video Privacy Protection Act (1988) prevents retailers from disclosing video-rental records. Persons have received some measure of protection from computer matching in the Computer Matching and Privacy Protection Act (1988) Although limited in scope, this act requires that persons be given a chance to respond before the government can take adverse actions based on governmental information. The most comprehensive privacy legislation at the federal level is the Privacy Act (1974) As noted above, this act was based on the Code of Fair Information Practices, but legislative compromise with President Ford weakened its provisions. There are restrictions on federal agencies' collection, use, and disclosure of personal data. "To the greatest extent practical" they are to collect only "necessary" information. Federal agencies are required to maintain files with "such accuracy, relevance, timeliness 48


and completeness as lS reasonably necessary to assure fairness to the person. Individuals have the right to see and copy their records. Agencies must make their record systems known and maintain no secret systems. The law was weakened by the exclusion of intelligence and law enforcement systems as well as some broad record exclusions. Privacy at the federal level lS weakened by other aspects of the Privacy Act. Litigation concerning the act has often been decided in the government's favor and some inconsistency in court rulings has been noted. Enforcement of the act has been weak and inconsistent (Hendricks 1990). Given these issues and the exemptions included ln the original act, privacy protection at the federal level is generally considered to be weak (Hendricks et al. 1990). Therefore, state judicial or legislative protection becomes important in the effort to provide for a basic right of privacy. Privacy issues also relate to the effective conduct of the public's business. While logic might infer that conducting public business in the open is desirable, experience suggests that privacy may also be a necessary ingredient for effective action. Public "intrusion" into decision-making processes could limit the ability of officials to admit their ignorance and change their minds 49


on 1ssues (Bensabat 1982; Dewind 1988; Dilts, 1980). In an open forum, public officials can be intimidated and embarrassed, and in that atmosphere the candor which allows more wide-ranging debate sometimes withers. Civil servants should be free to deliberate frankly and to change their minds as evidence and information are presented on issues. Openness can place a particular pressure on those who hesitate to disagree publicly with policies they must administer, and it may also change the nature of the meetings. Elected representatives may treat meetings as an opportunity to gain public exposure to a constituency-making speeches for the benefit of an audience, as opposed to engaging in effective communication concerning public issues. Conducting public business in secret is sometimes required in order to ensure that the public gets a fair value. For this reason, decisions where advanced notice could affect the outcome -are often decided in secret. Records and discussions relating to collective bargaining negotiations, real estate transactions, legal strategy, and crime prevention are all examples of areas where limiting access to information may be in the best interests of the general public. Another issue 1n the maintenance of privacy is the status of government officials. Certainly discussions about personnel actions carry an important component of 50


privacy. Information used in such decisions can be of a highly personal nature. Requiring that such records or meetings be open to the public can discourage otherwise qualified applicants. In Chapter 5 information will be provided on how governments have chosen to deal with these Intellectual Property Intellectual property is recognized at both the federal and state levels through the existence of copyright, patent, and trade secret laws. The need for protection of an individual's right to her or his own creations is also recognized in the Constitution: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (U.S. Constitution, Article I, Section 8, Clause 8) This provision the basis on which the federal government enacts copyright and patent laws. This action promotes the growth of knowledge in many areas through the protection of intellectual and practical inventions. Intellectual property law has become increasingly important as the tools of business enterprise have become more complex. Capitalistic business in an era of advanced technology requires secrecy or protection if 51


competitive advantage is to be maintained. This constitutional provision has allowed policy makers to respond to these needs. Limiting access to information for intellectual property reasons, however, must be. balanced with the constitutional right of access. Allowing ownership of intellectual property limits the use of that property by others. Owners are allowed to restrict dissemination and use of that information as long as they maintain ownership. The "ownership" of information restricts its free flow and use by others. Therefore, the rights accorded under intellectual property must be balanced with the loss of access to that information by others. The needs of writers and inventors must be balanced against the right to have access to scientific and academic knowledge. Decisions concerning the extent of ownership allowed within intellectual property policy affect not only the economic viability of the country, but also the provision of democracy. Intellectual property is governed by laws in three areas: copyright, patent, and trade secret. Copyright protects expression of ideas in any form, such as literary, musical, dramatic, graphic, and ornamental works. The current copyright law defines those items protected as original works of authorship fixed in any tangible medium of expression, now known or later 52


developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. (17 u.s.c. 102(a) (1982)) Excluded are ideas which have not yet found expression; i.e., the idea must be fixed in a tangible medium of expression. In essence, the idea itself is not protected, but the expression of the idea. Originality is also required. It must be the author's own work although the degree of originality needed to qualify is often minimal. Substantial likeness to another work is often allowed. Works are protected for the author's life plus fifty years. Anonymous works and works for hire, work prepared as part of employment, are given protection for seventy-five years from the date of publication or 100 years from the date of creation. Copyright protection exists as soon as the work is fixed in a tangible medium and no registration is required, although registration may give procedural advantages in litigation (Ropski and Kline, 1986). Protection extends to the right to reproduce the item or any part of the item in any form. For example, copyright protection for a monograph extends to a movie version. Copyright law is exclusively determined at the federal level. An invention which performs some utility is protected through the federal patent law. Patents are given in three categories: utility, design, and plant. Utility patents 53


are g1ven to apparatus that performs some function, including processes, machines, article of manufacture, compositions of matter, or an improvement on any one of these (Ropski and Kline 1986). Abstract ideas are not patentable; a patent requires actual application. Design patents protect the ornamental appearance of an article of manufacture. Patents are given for new plants which can be asexually reproduced but, as a general rule, natural phenomena cannot be patented. An object must meet three tests patentable. First, it must be useful. in order to be To fulfill this requirement, a statement of purpose for the object is required at the time of registration. Second, the object must be novel. It must be different from prior inventions or represent an advance over prior knowledge. Third, the object must be non-obvious. The object must be different enough that the new application would not have been "obvious to one of ordinary skills in the art" (Ropski and Kline 1986, 410). Utility and plant patents are granted for seventeen years from the date of the patent issued, design for fourteen years. Patents cannot be renewed. Before a patent is issued, individuals and organizations can protect their patentable objects or inventions by using trade secret law. 54


Trade secret, the last category of intellectual property law, has become an increasingly important part of intellectual property protection, given the new technologies that are now utilized ln the workplace. Copyright and patent laws have been unable to adapt fast enough for the technological advances in the computer sciences. Most software is not patentable, and use of copyright for its protection has proven to be difficult (Branscomb 1988). The copyright distinction made between idea and expression has caused confusion when applied to software where the idea and expression are not separable (Chapman 1986). If only the expression is protected, then only exact copying of a piece of software is a violation of copyright law. Considering the time and effort put into the design of computer software, it is not economically viable to market such software if it can be appropriated by making only minor changes. Given this situation, more companies are turning to trade secret laws to protect new technologies. Today, only a small fraction of computer programs developed are registered with the Copyright Office (Chapman 1986) Trade secret law began as an element of common law, based on concepts of property, contract theory, breach of confidential relationships, and theory of unjust enrichment (Henderson 1987). It has been the exclusive domain of the 55


states. The first Restatement of Torts, published in 1939, included sections on trade secret concepts. These statements were expository in nature and depended on court interpretation for implementation. Many courts interpreted trade secret law in different ways, causing confusion and concern among those seeking protection. In particular, the definition was too narrow and the language allowed varying interpretations of the concept of misappropriation. Courts handed down decisions using various lengths of time concerning the statute of iimitations (Klitzke 1980). Before 1979, state statutory law was generally limited to imposing criminal liability for theft of trade secrets and limits on disclosure of trade secrets by governments (Klitzke 1980). In the late 1970's the Commissioners on Uniform State Laws decided to address the trade secret problem. The provisions of the Uniform Trade Secrets law are analyzed in Chapter 6. Security The collection, storage, information takes place in an changing information technology. and dissemination of environment of rapidly In the past, the means of gathering information was quite time consuming; the process was overwhelmingly slow because it was manual in nature. Recently, we have progressed to an entirely new level of 56


communication capability. The machines and methods used to produce, process, store, and transmit information have transformed a slow manual process into one that takes less than seconds. Modes of communication which have heretofore been separate are now converging, due to the flexibility of the new technology. Voice, music, text, and numerical data all can be combined by means of digital electronics which now been linked to electronic transmission via satellite. The combination of these technologies allows information to transcend distance and time. For those who have access to it, the ability to communicate information is instantaneous, no matter where the parties are located. Government response to these changes is an important aspect of information policy today. Statutes in the information policy area should address the implications of these new technologies. Records are now stored and accessed in electronic medium. Meetings are held via telecommunications technology. A measure of how well states have addressed these issues has been included in this dissertation. Computer Crime Since the computer was invented in the 1950's, it has become an integral and necessary part of modern communication. The speed, storage, and ease of retrieval have made computers a valuable tool in the processing of 57


information. Government agencies have improved services and efficiency by utilizing this technology for the creation and maintenance of governmental records. Unfortunately, the same attributes which make computers valuable for information processing also cause them to be a targets of illegitimate activities. Computer manipulation for criminal purposes has been growing since the early 1970's and has become a major concern to those responsible for the maintenance of computer systems. It is difficult to assess the extent of computer crime. Reliable estimates are not available; this is due principally to under reporting. It is estimated that only 1 per cent of computer-related crimes is detected, and only a small number of these is reported to authorities (Starkman 1986, 314). While the risk of detection is small, the gain from this type of crime can be substantial, far exceeding the "average take" of other types of criminal activities (Couch 1981). The low visibility of computer crime makes difficult. discovery by law Reporting depends on enforcement officials those responsible for computer systems. Unfortunately, many organizations that are victims of computer crime are reluctant to report such activities. Rewards for reporting computer crime appear to be small, and preparation for prosecution can be time consuming. Prosecution of the crime may draw attention to 58


the act, thereby informing others of criminal possibilities and perhaps causing embarrassment to the "victim." In addition, depending on the nature of the crime, prosecution will not likely result in effective restitution. Prosecution of computer crime requires an understanding of the intricacies of computers; law enforcement personnel, attorneys or judges need special training for effective performance in this area (Couch 1981) Evidence of computer crime is often difficult to gather, given the temporary nature of data on transactions and the complexity of computer systems. Assessing the value of data, programs, or services that are stolen can be difficult, making it hard to determine the level of criminal theft. All of these issues combined result in a difficult environment in which to catch computer criminals. Given these circumstances, easy access to computers and potential criminal gain combined with unlikely detection and prosecution make computer crime appealing. Computer crime, encompassing many different types, generally is defined as an act involving a computer that causes "someone to suffer or potentially suffer damage, and through these criminal acts the perpetrator receives or could receive a benefit" (Couch 1981, 1175). There are three general categories of computer crime: (1) Using the computer to commit a "normal" crime which includes use of 59


a computer to defraud or obtain money, property, or services under a false pretenses. Many of these cr1mes have equivalents in the existing criminal codes of the states. For example, embezzlement can be accomplished with paper or with computer records (2) The destruction, alternation, interception, or addition of data, programs, or hardware within a computer system. In this case the computer provides the environment in which the crime is committed. Computer hardware and software are expensive valuable property and are, therefore, just as likely to be the target of criminal activity as other assets. (3) The disruption of computer services, including a violation of computer security. systems. In the computer world, as 1n the rest of the world, time 1s money. The willful disruption of services can cost an organization millions of dollars, making this type of crime a logical choice when revenge is the motive. All these types of crime are the definitions of computer crime used in federal and state legislation. Most definitions of computer crime include factors concerning the intent with which a crime is committed. First, the person must knowingly or willfully gain access to the computer. This protects unintentional access being defined as a crime. Second, the person must have had a specific intent to use a computer for criminal activity. 60


Third, that intent must be focused on doing harm to the computer system or another person. These factors are most often included in computer crime legislation. When these definitions are reviewed, it becomes clear that computer crime parallels many activities already included within the criminal code. Criminal statutes concerning theft, embezzlement, and destruction of property could be used to prosecute many computer crimes. Given this fact, why are separate computer crime statutes needed? Befo"re computer crime laws were enacted, it was difficult to convict criminals using the existing criminal code. Definitional problems existed in many state statutes. In some states, property is defined as a tangible article--making it difficult for data stored in a computer and existing only in electronic circuits to qualify (Allred 1985). The requirements of theft, based 1n eighteenth-century law, provide for the transfer of property from its legitimate owner to the criminal; i.e. a physical transfer is necessary (Gonzalez 1983). Yet many computer thefts occur without damaging or removing the object of the theft from the original owner. Given these constraints, courts were forced to rule that criminal activity had not occurred when common sense indicated that it had (Gonzalez 1983). For these reasons, computer crime 61


legislation was needed to augment traditional criminal statutes. Of particular concern is a crime of theft of information from computer data banks. This is one of the least detected types of computer crime (Gonzalez 1983) When information is kept in paper format, access to the information requires physical proximity; with information kept in digital format, physical proximity 1s not necessary. Today's advanced telecommunications networks provide much easier access to information stored 1n electronic format. The privacy of information can be compromised through such access to both public and private organization computers. Computer crime laws are needed to help assure citizens' right of privacy. Computer crime dates back to the mid-1960's; the first federally prosecuted case was in Minneapolis in 1966. By the mid-1970's, an increasing frequency of cases commanded the attention of Senator Abraham Ribicoff and the U. S. Senate Government Affairs Committee. The committee produced two reports, and computer-related crime legislation was introduced 1n 1977 (BloomBecker 1985a) Federal legislation was not passed until 1984, when Title 18 of the United States Code was amended to deal with crime in relation to federal computers (BloomBecker 1984). This act includes the most common types of computer crime and 62


has a fairly broad definition of computer crime. It covers computers used by the federal government and financial institutions covered under the Fair Credit Reporting Act used in interstate commerce (BloornBecker 1984). In 1978, the first state computer crime act was passed in Florida after two racetrack insiders stole several million dollars through manipulation of the racetrack's computer system. By 1991, all the states except Vermont and the District of Columbia had computer crime statutes on the books. The provisions of the states computer crime laws are analyzed in Chapter 7. Comparative State Analysis Characteristics of states have been the subject of academic researchers for a long time. The most intensive debate has centered around the question of diversity. How are the states different? What might explain those differences? How is modern society affecting those differences? Researchers employing comparative state analyses have attempted to answer these questions, and their work is valuable in our analysis of the information policy of the states. The differences among states are most often thought to arise from differing historical circumstances that led to the settlement and formation of each one. For example, 63


Louisiana's distinctive character is due to a French Spanish colonial background. Hawaii's unique history, combining influences of Polynesian, Chinese, and Japanese cultures, affects its approach to governing. Political history, as well as cultural circumstances, also has an effect on the character of the states. The nine. years Texas spent as an independent republic still shows in the independent nature of its politics. The Civil War and its political aftermath is thought to have had a profound effect on the political nature of the South (Luttbeg 1992). Geographic forces can also be an element in such states as Alaska, where the rugged climate and physical isolation can be factors 1n state political nature. These unique historical and cultural settings help to shape state political systems and, thereby, their public policies. Questions of public policy are approached from different perspectives, dealt with in different ways. Decisions are made under different circumstances and by different people, and implemented with different concerns in mind. Given the fact that states differ in their histories, natural resources, geographies, economies, and ethnic cultures, we might expect widely different approaches to issues of public policy. increased mobilization of Yet, we are also aware of the today' s society and of the ability of today' s transportation systems to blur 64


geographic boundaries. The existence of a strong national government brings citizens of all states within national parameters. The impact of a strong national media in television, motion pictures, and record industries adds to the feeling of a national culture without significant state differences. Is a "nationalization" of. the states taking place? Are the historical differences among the states disappearing? There does appear to be a current process of "homogenization" of the states in progress. Differences are beginning to diminish, as Dye notes: Over time the states have become more similar in levels of economic development. Income differences among the states have diminished. As industry, people, and money moved from the Northeast and Midwest to the South, the historic disadvantage of the South gradually diminished. The political systems of the states are no longer as distinct as they were historically. (Dye 1991, 19) Some of the studies done by social scientists found that the states are becoming more alike (Hofferbert 1966; Sharkansky 1970) while others (Kemp 1978) have found that the trend toward homogeneity slowed in the 1970's. More recent studies have shown that many important policy differences between the states are not diminishing (Tucker 1982). Tucker has found that states remain significantly different on social measures such as per capita income, 65


urbanization, housing, illiteracy, educational level, and other such measures (Tucker 1984) The professionalism of state legislatures has also been studied. In 1967, the 'citizens Conference on State Legislatures ranked each state on legislative services. The process included considerations such as the extent of the services actually provided to members of the legislature, the size of legislative staff, .and the degree to which the services were used by the legislators. Grumm added to this measure four additional elements: (1) the compensation of legislators, (2) the expenditures for legislative staff, (3) the number of bills introduced, and (4) the length of regular and extra sessions. He developed a "professionalism index" from these calculations (Grumm 1971, 317). Grumm's study shows that states vary widely on this measure, from an index value of 2.294 for California to -2.355 for Wyoming. This measure shows that at the time this study was done there was much variation in state legislatures' level of sophistication. Luttbeg proposes three elements of difference among the states which he considers to be the most significant: (1) the wealth of the residents, (2) how metropolitan a state is, and (3) its political culture (Luttbeg 1971). The first item is measured by per capita income of the residents and by the Gini index which measures income 66


inequality. Dye shows that significant differences still exist on these measures (Dye 1991, 465). The shift of population in the United States from rural communities 1s significant with three out of every four citizens now living in a metropolitan area (Economics and Statistics Administration 1991, 27). The states differ significantly as to the number of their residents who live 1n metropolitan areas. The first states to industrialize remain the highest in percent of metropolitan population (Luttbeg 1992, 22). Luttbeg's third factor, political culture, was first discussed by Elazar (Elazar 1966) He defined political culture as "the particular pattern of orientation to political action in which each political system is imbedded" (Elazar 1984, 109) Elazar attempted to identify variations in attitudes toward shared political values as appropriate guides to political activity. He thought that such differences arose due to patterns of early migration and the dominance of different religious and ethnic groups. He labeled these political cultures moralistic, individualistic, and traditionalistic. The moralistic culture is based on the belief that government is one of the great activities of humanity, and is needed to create a good society. Government is measured by how well it serves the public good. Actions of 67


politicians should be of concern to everyone, and all citizens should participate 1.n public decisions. The individualistic culture views government as a utilitarian concept to be used to enhance the marketplace. This culture emphasizes the centrality of private concerns, placing a high value on limiting governmental intervention in private activities. Political activity is seen as "a specialized one, essentially the province of the professional, of minimum and passing concern to the lay public, and with no place for amateurs to place an active role" (Elazar 1984, 116). In the traditionalistic culture "government is seen as an action with a positive role in the community, but it tries to limit that role to securing the continued maintenance of the existing social order" (Elazar 1984, 118) Public policies and actions are determined by a political elite. Elazar has classified the states as belonging to a different political culture or a mixture of two (Figure 2.1) .. Luttbeg proposes that these factors combine and overlap within the states to create a pattern of differences. For example, the South tends to be traditionalistic, poor, and non-metropolitan. By combining these elements and other economic and social factors, he has developed a classification that represents the 68


Section M MI IM I IT TI T '1M New England VT ME NH CT MA RI Middle Atlantic NY DE PA MD NJ Near West MI OH3 WI IL3 IN Northwest MN IA MT NE ND KS SD WY co Far West UT OR CA ID NV WA Southwest MO TX AZ OK NM Upper South wv VA NC KY TN 0\ Lower South FL AL sc GA MS AR LA Pacific AK HI 3Illinois and Ohio have strong traces of M in .their northern counties and T in their southern counties. KEY: M: Moralistic dominant. IT: Individualistic dominant, strong Traditionalistic strain. MI: Moralistic dominant, strong Individualistic strain. TI: Traditionalistic dominant, strong Individualistic strain. IM: Individualistic dominant, strong Moralistic strain. T: Traditionalistic dominant. I: Individualistic dominant. TM: Traditionalistic dominant, strong Moralist strain. NOTE: The eight columns in the table should be viewed as segments on forced continuum that actually has elements of circularity. The specific placing of the individual states should be viewed considering the limits of the data. From Daniel J. Elazar. American Federalism: A View from the States. New York: Thomas Y. Crowell Company, 1984. Figure 2.1. State political cultures.


differences among the fifty states (Luttbeg, 1971). His categories are industrial, southern, sparsely populated, and frontier. Institutional innovations and public policies differ among these classification of states. In addition, he argues that one of the most consistent findings in comparative state analysis is that the southern states are different (Luttbeg, 1992). Conclusion This rev1ew has shown that information is an important, all encompassing concept in today's society. It is a component of society--utilized by each person and organization. The study of information has taken on great importance due to its importance in the social and economic life of the nation. Public pqlicy makers have recognized information as an important resource. They have attempted to define governments role in the production, storage, and dissemination of information. They have also recognized the importance of information to private sector organizations and individuals. The regulation of information processes has become a topic of concern for many public policy makers. This chapter has defined reviewed the current state governmental information policy. 70 information policy and of research concerning The literature review has


shown that research 1n information policy at the state level has not be done from a policy perspective. Studies tend to focus on one piece of legislation and include discussion of only one policy value. In fact, other studies have confirmed that disciplines hold certain policy perspectives (Goodyear, 1990). Research published in the legal literature tends to reflect intellectual property issues, while research in library science is focused on access issues. The influence of academic disciplines 1s seen in the segmentation of the literature. This dissertation adds to this literature by providing the first comprehensive policy analysis of the information policy of the states. The review of open meetings and open records laws shows that the states have a long history of legislative activity in the access and openness policy value areas. This history is reflected in the sophistication of the laws in existence. On the other hand, privacy has received much less attention in the states. Trade secret and computer crime laws have developed more recently. Comparative state analysis provides the background for analysis of state information policies. The differences noted between the states by Luttbeg and other scholars provide a means to find relationships between a state's political environment and its information policy. 71


These concepts provide a fertile environment in which to study state-level information policy. The analysis of individual pieces of legislation within. the information policy value framework will provide a measure of each state's choices. The relationship of these choices to the state's political environment will be explored. The methodology used to explore these relationships is the subject of the next chapter. 72


CHAPTER 3 RESEARCH METHODOLOGY The literature review shows that there is little description of information policy at the state level. Most of the descriptions that .do exist are written from a legal perspective, emphasizing specific aspects of the laws; the policy issues reflected in these laws have been given scant attention. No analysis has been done in relation to the major policy issues covered in this dissertation. This dissertation fills that gap by providing a review and analysis of information policy of the fifty states and the District of Columbia. Such a analysis will establish a research base for further work on state-level information policy. General Design There are four major components of the research design. First, a comprehensive search of the literature was done to assist in determining the existence of statutory laws and in the identification of legal decisions concerning those laws. Second, statutes-at-large of the states were searched to identify all items relating to the


policy values studied in this dissertation. Third, the data gathered were evaluated to determine state rankings on the policy values of access, openness, privacy, intellectual property, and security. Fourth, the resulting rankings were used to analyze the possible relationship between information policy and the existence of democracy and bureaucracy within the states. This research examines all information policy of the fifty states and the District of Columbia. Specific information policy topics were chosen for study using two criteria. First, laws were chosen which concern access to governmental information, privacy concerns of individuals and organizations, intellectual property, and security. In addition, a distinction was made between information policy at the federal level and state policy. Topics that are dealt with at the state level and for which there is statutory law at both the federal and state level were included in the study. From these criteria the following specific topics were identified: computer crime, open meetings, open records, privacy, and trade secrets. Open meetings and open records topics measure the degree of access provided within a state. A review of statutory laws that govern citizens' access to governmental records about themselves is included. General privacy guarantees are provided in three ways: provisions in state 74


constitutions, statutory laws, and court interpreted common law. Added to this are the exception clauses of open meetings and records laws that provide for the withholding of certain information for privacy reasons. Intellectual property is discussed through analysis of the trade secret laws. In the security area, computer crime laws are covered. In addition, a state's provision for electronic information is analyzed. Exploration of all these issues is included in this thesis. Data Collection Data were gathered in three ways. First, laws that fit into the above topics were identified by conducting a thorough literature search. Indexes in the disciplines of journalism, law, library science, public administration, and public policy were reviewed. This was done both manually and electronically to guarantee comprehensiveness. Second, statute compilations covering both statutory and constitutional law for the states were searched. Indexes were searched using a list of terms consisting of the topics and all their synonyms. A list of laws was gathered by manual searching. If a topic was not found in a particular state through this method, state law was double checked by searching the statute electronically via Westlaw. 75


Third, this list of laws was compared to two legal references to ensure completeness. Indexes to the compilation of uniform state laws were compared to the list. A comprehensive listing of legal articles on state laws was also checked (Nyberg 1991). These methods resulted in a comprehensive list of statutory laws for the fifty states and the District of Columbia. Statutory laws are affected by judicial interpretation applied to them. Opinions issued by executive branch agencies (mostly attorney general opinions) also have an effect on the implementation of the law. This applies to many of the laws reviewed in this study. Annotated statutes were reviewed for these relevant decisions, and the results were incorporated into the database built for analysis. The resulting database of laws constituted the data to be used for this study. Data Analysis Table 3.1 outlines how each statutory law relates to the information policy values used in the study. The information policy values of access, openness, privacy, intellectual property, and security are listed horizontally at the top of the table. The specific laws used are listed under the appropriate policy value. 76


Table 3 .1. State Law and Information Policy Values Values Access & 0Eenness Privacy Intellectual Security Open Meetings Personal Privacy Trade Secrets Computer Crime Statement of Constitutional Definition Statement of P. P. Public Policy (40 pts) Misappropriation Definition Breadth of Definition Statutory Criminal Criminal Notice Required (30 pts) Damages Penalties Recordation Common Law Injunction Recourse Recourse (20 pts) Attorney Fees (60 pts) Access to Meetings Closed Meetings (80 pts) Secret Ballot (30 pts) Open Meetings Notification Closed Records Closed Meetings Meetings Via (40 pts) (30 pts) Protection of Trade Tele-Secrets communications Open Records Effective Government (10 pts) (10 pts) Statement of Public Closed Meetings Policy (50 pts) Closed Records Open Records Who Has Access closed Records Protection of Trade Format Breadth of Definition (50 pts) Secrets Copying -..J Access Tools (10 pts) Computer Software -..J Copying (30 pts) Agency Response Recourse (40 pts) Fair Information Practices Openness Access Participation Collection Use Disclosure Necessary Accountability (20 pts) Total (100 pts) Personal Privacy (100 pts) (100 pts) (100 pts) Effective Government (100 pts)


For example, open meetings laws contain components of all four policy values: (1) Access. The openness of meetings to the media and general public is included in the access rating. (2) Privacy. Public meetings are closed to the general public by the holding of executive sessions for reasons relating to personal privacy and to ensure effective governmental decision. (3) Intellectual property. Governments collect information from businesses that includes trade secret information. Sometimes these items become topics of discussion in public meetings. Open meetings laws provide for executive sessions for such deliberations, thereby protecting the confidentiality of the trade secret. 4) Security. Communication can be accomplished under circumstances other than face to face meetings. Provisions which acknowledge meetings via telephone or teleconference are sometimes included in an open meetings law. Therefore, the existence of one open meetings statute affects a state's ratings in all information policy values. The first step in data analysis was the building of policy value ratings. The rating scheme was built in the following way. The comprehensive listing of laws which were collected in the data gathering phase were used as to form the basis of the scheme. These laws were reviewed for provisions to build a comprehensive listing of all the 78


possible elements of each law. Legal literature and model legislation proposed by professional organizations was also reviewed for any additions to this list. This process integrated the criteria of comprehensiveness into the rating scheme. The laws which included the most provisions were judged to be more comprehensive in coverage and, therefore, reflected more advanced public policy. Therefore, this listing of elements became the "idealn in the rating system. Each state is assigned points based on the comprehensiveness of their laws in each policy area. The next step was to determine which items on the comprehensive listing were most important to the effectiveness of the law. From the literature and court cases reviewed the author weighted the elements included in the listing. The strength of the provisions in each law was considered. Strength rested on several aspects in each law. The broadness of definitions is a common element considered when evaluating a law's strength. For example, definitions which included more public agencies were considered stronger than those that more narrowly defined organizations in the public sphere. The use of the word "must" instead of "may" defined a stronger provision in a law by forcing a certain action instead of providing far more judicial discretion. Time limits also give strength in a law when public agencies are held accountable within 79


a certain time frame. These elements were considered as weights were applied to the list. Points were then applied to this weighted list. Therefore, the criteria of comprehensiveness and strength were combined to develop a numerical rating system for the laws. Higher points were given for strong provisions. The more comprehensive the law the higher the points given to that law. Judicial interpretations were also taken into account, providing some of the strength and comprehensiveness not inherent in the legislation. For example, a state law which defined a meeting as the gathering of two or more members of the group received a higher rating than a law that defined a meeting as a quorum. Clearly, the first definition would cover all deliberations of that body, where the second might miss those discussions held by a minority. The rating scheme developed is delineated in detail in Appendix A. The following chapters, which report the data gathered, explain in detail each component used in the rating scheme. The scheme was reviewed by several experts in information policy and suggestions were incorporated into the scheme. This rating scheme was then applied to the legislation (and their accompanying legal interpretations) each of the states. Updates to the 80


laws included in the annotated statutes through 1990 were used for the study. Inter-rater reliability of the ratings were checked. Two examples of each type of law examined were chosen by random sample. These laws from the statutes at large, their updates, and the rating scheme as written in Appendix A were used to evaluate rater reliability. A law librarian was employed to rate these laws according to the rating scheme developed. Two one-point differences were found between the ratings done by the author and the law librarian. Given the complexity of some of the laws reviewed, complete accuracy cannot be guaranteed. However, this check of reliability did confirm the author's interpretation of a random sample of the laws. After rankings for individual laws were compiled, composite rankings on the policy values used were tabulated according to the system outlined in Table 3.1. The results provide a single numerical score for each state on each of the policy values considered. The next step ln data analysis used correlation analysis to determine analytical results. The state information policy rankings were compared to standard measures of democracy and bureaucracy. These measures are listed in Appendix B. Voter participation and educational level were used to measure democracy in the states. Voter 81


participation figures used represented the mean percentage of the voting-age population voting for president from 1981 to 1988 (Gray, Jacob and Albritton 1990, 89). Educational level was represented by the percent of those twenty-five years old or older completing high school (Economics and Statistics Administration 1991, 140). Bureaucracy was represented by state revenue, state expenditures, the number of state employees, and the Grumm index of the professionalism of state legislatures. State revenues and expenditures were represented in dollars per $1,000 of personal income (Economics and Statistics Administration 1991a, 47-48) The number of state employees provided in a ratio between the full-time equivalent employees with every 10, 000 of population in each state (Economics and Statistics Administration 1991, 309). The Grumm index of professionalism of state legislatures was used despite being somewhat out of date, since it is the only one available. Using these measures, rank correlations were calculated to compare the democracy and bureaucracy measures to those created to represent the information policy values property, and of access/openness, security. Due to privacy, intellectual the existence of the Uniform Trade Secrets law, state information policy in the area of intellectual property is almost identical. 82


Therefore, it was determined that the differences between states in this area were not great enough to warrant correlation analysis. In addition, analysis was done to test Luttbeg' s (1971) theory of comparative state analysis. These measures are listed in Appendix C. Access/openness, privacy, and security ratings were compared to wealth of residents, how metropolitan a state is, and its political culture. Per capita personal income in 1989 was used to represent wealth (Economics and Statistics Administration, 1991a, 442). The percent of the state's population living in metropolitan areas in 1990 was used for the second measure (Economics and Statistics Administration 1990, 28). Political culture was explored through assigning the states to the .Elazar's (1984) categories and testing for the distinctiveness for each group. Analysis of variance was used in this evaluation. Lastly, Luttbeg's (1971) classification of the states (industrial, southern, sparsely populated, and frontier) which combines the previous measures was classifications correlate rankings of the states. tested to the to see if information these policy This .methodology resulted in data that can be used to interpret state-level information policy. The propositions 83


in Chapter 1 will be explored using this data in the following chapters. 84


CHAPTER 4 ACCESS Openness: Open Meetings Even though open meetings laws exist in all fifty states and the District of Columbia, this fact does not translate into universal coverage for citizens of each state. The variations in coverage and definitions of these laws affect the citizens' ability to gain access to public proceedings in different ways. Each state has defined a right to access which is considered appropriate, making exceptions where secrecy is deemed to be of more importance. Each open meetings statute was evaluated using eleven criteria compiled by analysis of the statutes, and comparisons to the Federal Sunshine Act and model legislation proposed by Common Cause (Adams 1974), the Society of Professional Journalists (Adams 1974), and one published in the Harvard Law Review (Open Meeting Statutes 1962). Ten criteria, listed on Table 4.1, were used including (A) a statement of public policy, (B) definition of a public body, (C) definition of a meeting, (D) requirements for notice of a meeting, (E) provision for minutes, (F) recourse provided in case of violation of the


law, (G) access to meetings by the disabled and persons who could be discriminated against due to their race, gender, etc., (H) provision for secret ballot, (I) provision that governments must inform the public concerning the law, and (J and K) limitations on executive sessions--limits on taking final action and provisions for the announcement of the agenda. Table 4.1 shows the results of these rankings. Two states have constitutional provisions for open meetings as well as statutory provisions. Montana and North Dakota have been given the highest rating in this study, due to the guarantee in their Constitutions for open meetings. Montana's wording is general in nature. The public has the right to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law (Montana Const. art. II, 8). North Dakota's provision is more specific as to the opening of meetings. Statement of Public Policy An important part of any piece of legislation is the inclusion of a public policy statement clearly delineating a state's intention that meetings will be open. This type of statement sets within the legislation the presumption of openness, thereby shifting the burden of proof to those who wish to close Only five states do not provide 86


Table 4 .1. Open Meetings A B c D E F G H I J K T Montana 1 6 4 2 3 4 0 1 0 0 0 40* North Dakota 1 5 0 5 1 6 0 1 0 0 0 40* Illinois 1 8 5 4 3 6 0 1 0 1 1 30 Michigan 1 6 6 6 4 6 0 1 0 0 0 30 Nevada 1 7 2 6 4 7 1 1 0 0 1 30 New Hampshire 1 7 3 5 4 7 0 1 0 1 1 30 Arizona 1 6 2 5 4 7 0 1 1 1 1 29 Hawaii 1 6 4 7 4 6 0 1 0 0 0 29 Utah 1 7 5 5 3 5 0 1 0 1 1 29 California 1 6 4 6 2 6 1 1 0 0 1 28 Common Cause 1 6 5 4 3 7 0 1 0 0 1 28 Iowa 1 7 4 4 2 6 0 1 1 1 1 28 South Carolina 1 5 5 6 3 5 0 1 0 1 1 28 Kentucky 0 6 6 4 3 5 0 1 0 1 1 27 Nebraska 1 6 3 4 3 7 0 1 0 1 1 27 Oklahoma 1 6 5 6 1 6 0 1 0 1 0 27 Oregon 1 5 5 5 1 7 1 1 0 1 0 27 Texas 1 6 3 6 2 7 0 1 0 1 0 27 Vermont 1 5 3 5 3 7 0 1 0 1 1 27 Indiana 1 8 4 5 2 3 0 1 0 1 1 26 Rhode Island 1 4 3 6 3 5 1 1 1 0 1 26 Wisconsin 1 7 4 4 1 6 1 1 0 0 1 26 Connecticut 0 5 5 6 4 4 0 1 0 0 0 25 Delaware 1 6 4 6 1 4 0 1 0 1 1 25 Kansas 1 5 3 4 3 6 0 1 0 1 1 25 Louisiana 1 6 3 5 2 5 0 1 0 1 1 25 New York 1 6 3 4 2 6 1 1 0 0 1 25 North Carolina 1 4 5 5 2 5 0 1 0 1 1 25 Pennsylvania 1 5 4 5 1 6 0 1 0 1 1 25 South Dakota 0 6 4 4 3 5 1 0 0 1 1 25 Washington 1 5 2 6 0 8 0. 1 0 0 1 24 Florida 1 5 3 2 2 7 2 1 0 0 0 23 Minnesota 1 5 4 4 2 6 0 1 0 0 0 23 Missouri 1 5 3 4 1 6 1 1 0 0 1 23 New Mexico 1 3 3 2 4 7 0 1 0 1 1 23 Ohio 1 5 3 4 1 7 0 0 0 1 1 23 Virginia 1 4 4 3 1 6 0 1 1 1 1 23 West Virginia 1 6 3 3 2 6 0 1 0 1 0 23 Georgia 1 5 2 3 4 6 0 1 0 0 0 22 Maine 1 4 4 3 2 6 0 0 0 1 1 22 New Jersey 1 4 4 5 1 5 0 1 0 0 1 22 Maryland 1 5 3 3 2 5 0 1 0 0 1 21 Tennessee 1 7 4 1 1 5 0 1 0 0 0 20 Federal Sunshine Act 0 4 4 4 2 4 0 0 0 0 1 19 Harvard Law Review 0 4 3 6 0 5 0 0 0 1 0 19 Idaho 1 5 1 2 2 5 1 1 0 1 0 19 Mississippi 1 5 1 3 2 4 0 1 0 0 1 18


Table 4 .1. (contd.) A B c D E F G H I J K T Colorado 1 5 3 2 1 3 0 0 0 1 1 17 Massachusetts 1 3 2 3 2 3 0 1 1 0 1 17 Wyoming 1 5 3 3 0 5 0 0 0 0 0 17 Arkansas 1 6 2 2 0 4 0 0 0 1 0 16 Alaska 1 6 1 2 0 2 0 1 0 1 1 15 District of Columbia 0 4 1 0 1 4 0 0 0 1 0 11 Alabama 0 6 0 0 0 1 0 0 0 0 0 7 Society of 0 3 0 0 0 1 0 0 0 0 0 4 Professional Journalists KEY: A: Public Policy B: Body C: Meeting D: Notice E: Minutes F: Recourse G: Access to Meetings H: Secret Ballot I: Inform Public J: Final Action K: Announce Agenda T: Total 40 is given due to constitutional provisions. 88


a statement of public policy in their statutes. The wording in the Common Cause model legislation is typical. It is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy. Toward this end, this act shall be construed liberally (Adams 1974) These statements are important in their explicit direction to the courts concerning public policy. Since the courts interpret open meetings legislation, these statements become important determinants when vague areas of the law are challenged. Definition of Public Body Defining the term, "public body, is an important area of open meetings laws. Much of the litigation concerning open meetings has centered around answering the question of who is and who is not covered by these laws (Bensabat 1982; Dilts 1980). The most commonly used definition includes agencies of all state and local (county and city) governmental entities. These provisions apply to legislative bodies as well as to agencies. Many citizens would assume that general sessions of their state legislatures are open to the public. In the vast majority of instances such an assumption would be safe. In many states, open sessions are guaranteed by the state 89

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constitution. If open sessions are not provided for in the state constitution, open sessions for the state legislatures are often included in the open meetings law. Many states include provisions for closing legislative sessions. Most of these are general in nature, stating only "when secrecy is required." An additional access concern is the openness of committee sessions, since much of public debate and information gathering on legislative proposals takes place within the committee structure. Many states exclude committee sessions from the open meetings laws. Often the judicial branch of government is excluded from open meetings laws and covered by separate legislation. Usually, if it is included, only the administrative functions of the courts are referred to. Juvenile courts, parole and pardon boards, and grand jury proceedings are usually closed to the public. The application of open meetings laws to other public agencies, such as universities, utilities, and hospitals has been the subject of extensive litigation. For example, the application of open meetings law in higher education has been litigated in twenty-one states (Dilts 1980, 35). Quasi-governmental bodies may or may not be covered by open meetings statutes depending on the definition provided in the legislation, or a court's interpretation. As Table 4.1 90

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shows, there is little difference between statutes in their definitions of public bodies. Definition of a Meeting Probably the most litigated aspect of open meetings statutes is the definition of the word "meeting." Public business is discussed in a variety of informal ways as well as in formal meetings. Most statutes do not provide a detailed definition of "meeting"; therefore, much litigation has resulted from conflict over what constitutes a meeting. One proposed definition includes these three items: (1) a requirement that meetings take place for the purpose of conducting public business, (2) a definition of how many members of a particular body gathering together constitute a public meeting, and (3) a provision which excludes social meetings or chance encounters from the requirement of openness (Wright 1974, 1167). Statutes were analyzed on these elements as well as whether they dealt with teleconference and telephone meetings. All statutes, except North Dakota and Alabama, provide for some type of definition which includes (1) and (2) listed above. Most laws require only a quorum, although a minority defines a meeting as two members or more. A few states specifically address social gatherings in their laws. Table 7.1 in the chapter on information technology lists the eighteen states 91

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which make provision for meetings via telephone or teleconference. Notice Providing notice of meetings is one of the most necessary parts of open meetings legislation. All states except Alabama and the District of Columbia require that some sort of notice be given. Notice requirements vary a great deal from state to state. Provisions for posting meeting times and locations are common. Less common is the ability of a citizen or members of the media to be placed on a mailing list for notification of such meetings. Almost all the states provide for suspension of the rules or have specific rules for emergency meetings. This area is one of the greatest in variability among states. Minutes In order to enhance the concept of openness, many statutes specify that minutes of meetings covered by the law also be open. This gives opportunity for citizens unable to attend meetings to learn about governmental actions. All states except Alabama, Alaska, Arkansas, and Washington provide for minutes to be open to the public. Laws were rated higher if they required a relatively short time frame (under 10 days) for preparation of minutes. A few states specifically allow the recording of public 92

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meetings. It is probably the case that recording is usually allowed in many states without this provision. A specific statutory provision may not be a good indicator of the degree of restriction of this aspect of the law. Recourse Enforcement provisions are common in open meetings laws, as is court injunction or mandamus relief. Often courts are required to hear cases immediately. Criminal penalties, dismissal from office, or damages against public officials are less often used in open meetings laws. Some jurisdictions approach the issue not through individual action, but within the public context by providing that actions taken at meetings illegally closed to the public are, or can be declared, null and void. This remedy has not always been supported by the courts; some have allowed actions to stand even though discussions were held in executive session ("Open Meetings" 1962, 1213-1214). This remedy can be an effective deterrent to closing meetings, but can also create major difficulties when public commitments are made which cannot be kept (Fossey and Roston 1986). Generally, there are time limitations on appealing the implementation of actions taken at an illegally closed session. State statutes generally do well in providing for appropriate recourse. Table 4 .1 indicates 93

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that eight states have weak provisions, scoring at 3 or less. Access to Meetings In recent years public officials have become conscious of the need to provide access for the disabled. Seven states require that meetings be held in places where the disabled have access. Four states have added an additional element to these laws requiring that meetings cannot be held in places where discrimination is allowed by race, creed, or gender. Such a provision guarantees that artificial barriers do not limit attendance at public meetings. Secret Ballot The vast majority of states do not allow secret ballots at public meetings. Many outlaw secret ballots through specific language in the law. Others provide for a listing of the votes taken and how each member of the body voted in the official minutes, making votes public. Seven states do not give this protection for public access to the actions of individual members of public bodies. Requirement to Inform the Public Five states require that a state public official inform all public officials about the open meetings law. Providing this mechanism, usually through the secretary of 94

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state, could enhance a state's ability to implement its law. Informed public officials will probably be less likely to violate the law. Openness at Executive Sessions Open meetings laws also provide for secrecy when needed to protect individual privacy or for effective governmental decision making. These elements of the open meetings laws will be discussed in Chapter 5. While a provision for secrecy is necessary, that there be limits on that secrecy. it is also important Only eighteen states do not require that public bodies announce the subject of executive sessions before closing a meeting. Knowledge of the subject of the session alerts citizens to topics which they may want to be aware of in future months. A lesser number of states, twenty-nine, require that no final action can be taken in executive session. This language allows a person to have access to decisions after confidential debate. Conclusion Table 4.1 indicates that the laws of forty-two states rate at one-half or above the access points needed to be comprehensive. Twenty-two of those states rate at 25 or above and provide all the basic provisions needed to 95

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guarantee access. Generally, open meetings laws appear to be fairly comprehensive in all but a few states. Access: Open Records Open records laws exist in all fifty states and in the District of Columbia, but this does not guarantee access to all public records. Exceptions in the laws range from a few in some states to a great number in others. In addition, a state's open records law is not the sole determinant of whether a document may be made public. All states have a number of specific laws that govern access to certain types of information. These are numerous and deal with a variety of specific subjects from abortion to taxes. Most of these laws restrict access to records for reasons of privacy or trade secret issues. This makes it difficult to build a comprehensive picture of access to records in any state. Since these statutes often restrict access to laws covered_by the open records laws, conflicts can occur. Some open records statutes provide for this situation; others are silent, leaving the process to be sorted out by the courts. Records may also be deemed open, due to common law or civil discovery. Some courts have held that an open records exemption does not curtail access under these two alternatives {Braverman and Chetwynd 1985, 897). 96

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Another determinant of access is federal law. Access to records of state and local governments is determined by the open records laws of each state, since the federal Freedom of Information Act does not apply to state or local agencies (80 Stat 378 (1)). Access to federal records is not influenced by a state open record law, but federal and state law may provide alternative means of access to the same information held by both federal and state agencies. In addition, many state open records laws have exceptions for information that must be held private, due to federal law or regulation. Open records laws were evaluated using eight access criteria. These criteria were compiled by analysis of the statutes as well as comparisons with federal legislation and a model provided by William Randolph Henrick (Henrick 1977). Table 4.2 lists the results of the evaluation. Statement of Public Policy A statement of public fundamental rights of access policy articulating the for citizens is generally included 1n open records legislation. Seven statutes include a provision noting the necessity of balancing the right of access with an individual right of privacy. Including a public policy statement in a statute presumes access to public records and places the burden on an agency to prove that access should be denied. 97

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Table 4.2. Open Records A B c D E F G H T Montana 1 1 8 4 0 2 0 0 40 North Dakota 0 0 7 3 2 0 0 3 40 Illinois 1 3 7 7 5 2 2 4 31 Henrick Model 1 3 4 7 2 2 2 8 29 Wisconsin 1 2 6 7 3 2 2 6 29 South Carolina 1 3 5 7 2 2 2 5 27 Hawaii 1 3 4 7 5 1 1 4 26 Iowa 0 3 5 6 3 1 0 8 26 Michigan 1 3 4 7 1 2 2 6 26 Nebraska 1 3 5 7 0 2 1 7 26 Connecticut 1 3 5 7 0 4 2 3 25 Indiana 1 3 6 7 1 2 1 4 25 Kentucky 1 3 5 7 0 1 2 6 25 Oklahoma 1 2 5 7 1 2 1 6 25 Rhode Island 1 1 5 7 2 2 2 5 25 Utah 1 2 6 7 0 2 2 5 25 Delaware 1 1 6 7 2 1 1 5 24 New York 1 3 4 7 2 1 2 4 24 West Virginia 1 2 5 7 1 1 2 5 24 Colorado 1 3 2 6 1 2 2 6 23 Louisiana 0 2 6 7 0 2 2 4 23 Texas 1 2 5 6 0 4 0 5 23 California 1 3 3 7 0 2 2 4 22 Florida 1 3 5 7 0 1 0 5 22 Georgia 1 2 3 7 1 1 2 5 22 Kansas 1 2 4 7 1 1 2 4 22 Maine 1 2 4 7 0 2 2 4 22 Minnesota 0 2 0 7 0 4 1 B 22 Mississippi 0 2 4 7 0 1 2 6 22 Oregon 0 2 4 7 2 2 2 3 22 Arkansas 1 2 5 6 0 1 0 6 21 Maryland 1 2 2 6 0 4 2 4 21 Missouri 1 2 5 4 0 2 2 5 21 Alaska 0 3 3 6 0 4 1 3 20 North Carolina 1 3 4 6 0 1 1 3 19 Vermont 1 2 3 4 0 1 2 5 18 Virginia 1 1 4 7 1 2 2 0 18 Wyoming 0 2 0 7 2 1 1 5 18 Arizona 0 2 5 3 0 4 0 3 17 Massachusetts 1 2 2 3 0 2 2 5 17 New Jersey 1 1 5 3 1 1 0 4 16 Washington 0 1 0 3 5 1 2 4 16 New Hampshire 0 1 6 0 0 2 2 4 15 Tennessee 0 1 4 3 1 1 1 4 15 New Mexico 1 1 3 3 0 2 0 4 14 Nevada 1 2 3 3 0 2 0 2 13 Pennsylvania 0 1 4 3 1 1 0 3 13

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Table 4.2. (contd.) A B c D E F G H T District of Columbia 1 2 2 3 0 1 2 1 12 Ohio 0 2 3 3 0 1 0 2 11 South Dakota 0 2 0 7 0 1 0 0 10 Alabama 0 1 0 3 0 1 0 3 8 Idaho 0 1 3 0 0 0 0 0 4 KEY: A: Public Policy B: Who C: Public Body D: Public Record E: Access Tools F: Copying G: Agency Response H: Recourse T: Total 40 is given due to constitutional provisions. 99

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Who May Have Access Unlike common law access, in most open records laws the requester's status has no bearing on access. The language in most statues indicates that any person can be afforded access. In a few states, the word "citizen" is used in the statute, indicating that the requester must be a citizen of the state. Corporate entities, such as companies or citizens' groups, are considered individuals, and are, therefore, usually accorded access. The purpose for the request usually does not affect the status of a request. Using governmental records for commercial purpose is the only exception which is specifically addressed by a few states. The requester's purpose has been used in some states when determining if information falls within an exception (Allen 1975; Braverman and Chetwynd 1985, 905; Knuth 1987) Definition of a Public Body The fi"rst step 1n determining which records are covered by open records legislation is to find out whether the agency that produced or collected the information is one covered by the law. Laws were rated on how comprehensive these definitions are. Three criteria were used. First, most laws give very broad definitions that include not only state level, but also municipal and county government organizations. Second, most states include 100

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legislative and executive bodies, although 1n many instances the state legislature is exempted. The judicial branch of government 1s most often excepted. One of the most difficult areas is the status of quasi-governmental bodies. Third, the receipt or expenditure of public funds is the most common criterion used to determine the "publicness" of an organization. Coverage of the committees and sub-committees is specifically noted in a few open records. laws. The issue of defining a public agency has received the most court attention in the open records area. A wide variety of court decisions and attorney general opinions have been given on this topic with different results in each state (Keeling 1989; Wilson 1989) Generally, states which define public bodies by the criterion of public funding have been the most successful in court. Definition of a Public Record After a decision is made that an organization is subject to open records law, an additional question must be answered--Which records of that agency are subject to the law? The answer is found in the specific definition of "public record." This is perhaps the most critical part of an open records statute: a broad interpretation provides significantly more access than a limited one. 101

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As Table 4.2 shows, definitions a vast majority of states are broadly cast--a record is public if it is prepared, owned, retained, used or received by a governmental body. A few states define records more narrowly, linking the definition to the purpose of the record--a public record is one necessary for the discharge of duty or required by law. The physical form of a record can be an issue in determining its status. Thirty-three states provide that records may be in a variety of formats (Table 7.1). Many of these states specifically allow for automated formats, while others specify any format within the definition. In a few states, the issue of physical form is not addressed within the statute, but litigation has resulted in disclosure of all formats (Braverman and Chetwynd 1985, 911). Access to Public Records On the federal level, the Freedom of Information Act stipulates that indexes to records be made available. Most state open records laws do not have this provision. This oversight poses serious problems for the public's right to access, since knowledge that a record exists is a prerequisite to seeking disclosure. Twelve states require agencies to have rules and regulations that inform the public how to gain access. This provision provides, at least, the first step toward broader knowledge on the 102

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public's part about the records available. A few states require, in the open records law, that records must be physically protected while access is provided. This type of provision could result in the agency's refusal to provide a record with the reason that it could be damaged in the process. Copying of Records Most of the state statutes provide the right to copy records in public possession. Fee structures for this service vary widely and could be considered a significant deterrent to public access even when they represent a fair copying cost to the government. A small number of states provide for fees to be waived if the disclosure 1s in the public interest. Fourteen states specifically provide in their laws for printouts from automated format materials (Table 7.2). Agency Response Agency response 1s not dictated in any statute if the response is in favor of disclosure. All but thirteen states provide for specific responses if records are to be withheld. Agencies are required to give justifications for non-disclosed records. Twenty-seven states place a time limit on the agency's response. In many states, attorney general review is sought in such cases. In all states, the 103

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burden of proof is the responsibility of governmental agencies, either by specific language in the statute or by presumption from the statement of public policy. Recourse Most states specifically refer enforcement power to the courts. In four states, Connecticut, Hawaii, New York, and Utah, public records commissions or offices have been formed to advise on open record disputes. Many open records laws are enforced by criminal sanctions and civil fines against public employees. Attorney fees may also be awarded to a successful litigant. A few states provide for impeachment or removal from office for failure to uphold the open record statute. Conclusion Table 4.2 indicates that the status of open records laws in the states is generally very good. Thirty-two states rate at one-half or above the points needed to be comprehensive in our rating scheme. All but ten states have laws which provide for basic access by specifying who has access, defining of public body and public record, and providing for penalties. The states of Alabama, Idaho, Ohio, and South Dakota have very meager laws. 104

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Fair Information Practices The last aspect of information policy access pertains to laws guaranteeing access to one's own records held by governmental agencies. Fair Information Practices laws provide this type of guarantee. These laws have been based upon recommended Codes of Fair Information Practices and the federal Privacy Act. As noted above, the Organization operation and Development (OECD) and for Economic Cothe United State government have recommended a Code of Fair Information Practices. The federal Privacy Act was originally based on these codes. As Table 4. 3 shows, thirteen states have enacted provisions recommended codes. that contain elements of these The first element 1n fair information practices laws 1s the stipulation that there be no secret information systems is the first. As noted 1n Table 4.3, the federal government and ten states support openness of government personal information systems by outlawing secret systems. This important provision makes it possible for citizens to know that records concerning them do exist. Fair information practices could mean very little if an individual does not know the existence of the record. A second element is the right of persons to see and copy 105

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4.3. Fair Information Practices A B c D E F G H T California 2.5 2.5 2.5 2.5 2.5 2.5 2.5 2.5 20 Federal Privacy Act 2.5 2.5 2.5 2.5 2.5 2.5 2.5 2.5 20 Indiana 2.5 2.5 2.5 2.5 2.5 2.5 2.5 2.5 20 Minnesota 2.5 2.5 2.5 2.5 2.5 2.5 2.5 2.5 20 New York 2.5 2.5 2.5 2.5 2.5 2.5 2.5 2.5 20 Ohio 2.5 2.5 2.5 2.5 2.5 2.5 2.5 2.5 20 Virginia 2.5 2.5 2.5 2.5 2.5 2.5 2.5 2.5 20 Utah 2.5 2.5 2.5 0 2.5 2.5 2.5 2.5 17.5 Connecticut 2.5 2.5 2.5 2.5 0 2.5 2.5 0 15 Massachusetts 2.5 2.5 2.5 0 2.5 2.5 2.5 15 Iowa 2.5 2.5 2.5 2.5 0 0 2.5 0 12.5 Illinois 2.5 2.5 0 0 0 0 0 5 Kentucky 2.5 0 2.5 Texas 2.5 0 2.5 KEY: A: Open B: .Access C: Participation D: Collection E: Use F: Disclosure G: Necessary H: Accountability T: Total 106

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records about themselves. The federal Privacy Act and thirteen states grant this right. Third, a process by which individuals can correct or challenge information about them in a government record is included in the law of ten states. This principle is an essential corollary to the right to see and copy records. The right of access 1s largely illusory if an individual, discovering incorrect information, does not have recourse to correct it. The fourth principle, collection, limits the type of information an organization may gather, as well as the method of procurement (Brant et al. 1981). Only information that is relevant and necessary to the functions of the agency should be collected. Information should be obtained directly from the individual, if at all possible. In addition, information concerning the exercise of a person's First Amendment rights should not be collected. As Table 4.3 shows, nine states provide this protection for their residents. Limits on the internal uses of personal information comprises the "use" principle which helps to ensure that information is used only for the purpose it was acquired and not transferred to other public employees for use in making other policy decisions. Seven states have chosen to enact this provision. 107

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The sixth principle, limits on external disclosure, is intended to limit the sharing of personal data between agencies and between agencies and private organizations. Sometimes this provision is hampered by allowing disclosure if the intended purpose "compatible" with the original purpose of the information. Often common sense exceptions are included in the statutory laws, for example, exceptions for medical emergencies. Notifying the individual is often required in such circumstances. Nine states provide this protection. The information management principle can be explained this way: A record-keeping organization shall bear an affirmative responsibility for establishing reasonable and proper information management policies and practices which assure that its collection, maintenance, use, and dissemination of information about an individual is necessary and lawful and the information itself is current and accurate. (Brant et al. 1981, 54) This principle is implemented by a requirement to keep records that are necessary and lawful, preserve the accuracy, timeliness, and completeness of the records, and to provide safeguards for security. This principle also implies high standards of conduct for public employees who build and use record systems. Ten states provide for these high standards in their record keeping. According to the accountability provision, each agency is answerable for its policies. Since enforcement is 108

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difficult at best, given the number and complexity of governmental information systems, the accountability of the particular agencies is an important stipulation. Eight states have held this to be important. Fair Information Practices acts provide inclusive protection for personal information. They are comprehensive in nature, thereby creating protection of all record-keeping systems. California, Connecticut, Indiana, Iowa, Minnesota, New York, Ohio, Utah, and Virginia have comprehensive fair information practices acts. Illinois, Kentucky, Massachusetts, and Texas provide some elements of protection in this area through specific provisions. In general, this is a very underdeveloped area of law in the states. Access Conclusion Table 4.4 gives the overall access ratings for the states. These scores range from 80 (out of 100) at the top, to 15 at the bottom. A wide spread of scores is noted among the states, demonstrating a significant difference between them in the area of access. The spread of scores on Table 4. 4 shows that states generally have supported access issues, since twenty of the states received a score that is at least half of the total possible. These scores 109

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Table 4.4. Access Ratings Fair Open Open Information Meetings Records Practices Total Montana 40 40 0 80 North Dakota 40 40 0 80 Indiana 26 25 20 71 California 28 22 20 70 New York 25 24 20 69 Iowa 28 26 12.5 66.5 Illinios 30 31 5 66 Connecticut 25 25 15 65 Minnesota 23 22 20 65 Virginia 23 18 20 61 Hawaii 29 26 0 55 South Carolina 28 27 0 55 Wisconsin 26 29 0 55 Kentucky 27 25 2.5 54.5 Ohio 23 11 20 54 Nebraska 27 26 0 53 Texas 27 23 2.5 52.5 Oklahoma 27 25 0 52 Utah 29 25 17.5 51.5 Rhode Island 26 25 0 51 Delaware 25 24 0 49 Massachusetts 17 17 15 49 Oregon 27 22 0 49 Louisiana 25 23 0 48 Kansas 25 22 0 47 West Virginia 23 24 0 47 Arizona 29 17 0 46 Michigan 30 26 0 46 Florida 23 22 0 45 New Hampshire 30 15 0 45 Vermont 27 18 0 45 Georgia 22 22 0 44 Maine 22 22 0 44 Missouri 23 21 0 44 North Carolina 25 19 0 44 Nevada 30 13 0 43 Maryland 21 21 0 42 Colorado 17 23 0 40 Mississippi 18 22 0 40 Washington 24 16 0 40 New Jersey 22 16 0 38 Pennsylvania 25 13 0 38 Arkansas 16 21 0 37 New Mexico 23 14 0 37 Alaska 15 20 0 35 South Dakota 25 10 0 35 Tennessee 20 15 0 35 Wyoming 17 18 0 35 District of Columbia 11 12 0 23 Idaho 19 4 0 23 Alabama 7 8 0 15 110

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support a conclusion that states generally support a distributive perspective of information policy. Most of the elements evaluated in relation to open meetings and open records fall within the distributive perspective, while the only restrictive policy supported is that of executive sessions. The least supported area of access is that of Fair Information Practices law, but there is some evidence that this area of law is receiving more attention in recent months due to the leadership of the European Community Correlational Analysis These scores were compared to state political measures representing democracy and bureaucracy. Democracy in the states is represented by citizen involvement, and capacity to participate, in public affairs. The access rankings positively correlate to one measure of democracy-educational level of the state's residents (r 2 =.0858, at .037 significance level). This result lends some support for the proposition that in states with better educated populations, information policies have stressed access. Access rankings did not correlate with any other measure of democracy. The alternative explanation of bureaucracy is not supported by the data. The bureaucratic measures of state 111

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revenues, expenditures, number of employees, and the professionalism of the state legislatures do not correlate with the access rating. No relationship is found in these measures. As noted above, Luttbeg (1971} found four different classes of states when looking at various economic and social factors. Luttbeg uses personal income, metropolitan population, and culture to build his classification of states. These individual measures did not correlate to the access rating, but the access ratings were correlated positively with Luttbeg' s general classifications (r2=. 0759, significance level .53}. Industrial states had the highest access ratings; sparsely populated states had the next highest. Southern and frontier states correlated to lower access ratings. It appears that differences are not significant enough among states to be distinguished on the specific measures, but that the overall classification is supported. Access rankings also show some correlation to Elazar's political culture classifications yielding a correlation of r2=. 0845, significance level 041. This indicates that Elazar's (1984) traditional states have the lowest access rankings, moralistic states have the highest. This result 1s to be expected since moralistic states encourage participation of governmental affairs, while 112

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traditionalistic states are more likely to leave government to the professional politicians. Therefore, there is some evidence that strong access is accompanied by strong democracy measures, but that access rankings do not correlate with a strong bureaucracy, as defined by measures used in this dissertation. Previous studies in comparative state analysis shows that states with well-developed government, tend to have more sophisticated policy. This finding is supported here in that industrial and moralistic states have strong access ratings, while southern and frontier states have weaker access ratings and less well-developed state bureaucracies. 113

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CHAPTER 5 PRIVACY Developments concerning the right of privacy at the state level are numerous and, as with other information policy issues, somewhat confusing. General privacy provisions are constitutional and statutory. court-supported common law has provided protection at the state level. Table 5 .1 In addition, some privacy lists these provisions in the first column. States are given a rating of 40 for a constitutional provision, 30 for a statutory provision, and 20 for common law protection. Constitutional and Statutory Provisions Perhaps the strongest support for privacy a state can provide its citizens is a constitutional provision which accords them this right. Eleven states have such a provision. A few state constitutions declare a right of privacy in a separate clause. For example, the Alaska constitution states, "The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section" (Alaska Const. art. I, 22). Other states have included the broader concept of privacy

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Table 5.1. Personal Privacy Constitution Statute/ Open Open Court Meetings Records Total Pennsylvania 40 25 30 95 South Carolina 40 25 30 95 Wisconsin 30 25 30 85 New Hampshire 20 30 30 80 Kansas 20 25 30 75 Kentucky 20 25 30 75 Utah 20 25 30 75 West Virg.inia 20 25 30 75 Alaska 40 30 0 70 Arizona 40 0 30 70 Hawaii 40 0 30 70 Illinois 40 0 30 70 Montana 40 30 0 70 Washington 40 0 30 70 Louisiana 40 25 0 65 Massachusetts 30 30 0 60 Nebraska 30 30 0 60 New York 30 0 30 60 Rhode Island 30 25 0 55 Alabama 20 0 30 50 Connecticut 20 0 30 so District of Columbia 20 0 30 50 Iowa 20 0 30 50 Michigan 20 0 30 so Oregon 20 0 30 so Texas 20 0 30 so Vermont 20 0 30 50 Arkansas 20 25 0 45 Maine 20 25 0 45 Maryland 20 25 0 45 Mississippi 20 25 0 45 Nevada 20 25 0 45 Virginia 20 25 0 45 California 40 0 0 40 Florida 40 0 0 40 Oklahoma 30 0 0 30 Colorado 20 0 0 20 Delaware 20 0 0 20 Georgia. 20 0 0 20 Idaho 20 0 0 20 Indiana 20 0 0 20 Minnesota 20 0 0 20 Missouri 20 0 0 20 New Jersey 20 0 0 20 New Mexico 20 0 0 20 North Carolina 20 0 0 20 North Dakota 20 0 0 20 Ohio 20 0 0 20 South Dakota 20 0 0 20 Tennessee 20 0 0 20 Wyoming 20 0 0 20 115

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in constitutional provisions protecting against search and seizure. For example, the Arizona constitution states that "No person shall be disturbed in his [or her] private affairs, or his [or her] home invaded, without authority of law (Arizona Const. art. 2, 8). Privacy is listed as one of the "inalienable rights" in the California constitution (California Const. art. I, 1). A constitutional provision gives the residents of these states a strong basis on which to demand their informational privacy rights. Pennsylvania and South Carolina have reinforced this provision with strong legislative action. Others, such as Florida, have not provided more detailed protection for citizens. Six states have guaranteed privacy through statutory law. Some of these provisions are broad in nature, similar to the constitutional provisions. For example, Massachusetts statute states, "A person shall have a right against unreasonable, substantial or serious interference with his her] privacy. The -superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages (Mass. Stat. tit. 214.1B (1979)). Other states, such as Nebraska, have enacted a more restrictive statute, limiting the right of privacy to "exploitation of a person for advertising or commercial purposes, trespass or intrude upon a person's solitude, or placing a person before the public in a false 116

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light" (Neb. Stat. tit. 20, 201-211 (1987)) Even with a more narrowly defined statute, the citizens in these six states have a measure of privacy protection which extends beyond case-by-case privacy guarantees. With our rapidly changing society, it is difficult for a state legislature to anticipate all the needs for privacy protection. A general right of privacy guarantee gives the citizens of the state superior protection in this area. Of the other thirty-three states, all have some recognition of a right of privacy due to common law as interpreted by state courts (Dee 1982, 101). An appellate court in Georgia was, 1n 1905, the first to recognize a right of privacy without a statutory basis (Pavesich v. New England Life Insurance Co., 50 SE 68 (1905)). By recognizing a common law right of privacy, this decision / established an early pattern for other cases to follow. Since courts limit their decisions to the facts of the cases before them, court-acknowledged common law is not considered strong privacy protection. Many decisions provide only limited recognition of the privacy principles. Dependence on the courts for privacy protection is further limited by its "after-the-fact" nature. Once an invasion of privacy has taken place, injunctive relief does little to repay individuals for their loss. Prevention of privacy invasions is a more highly desirable public policy goal. 117

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Constitutional and statutory recognition of a right to privacy ensures coverage of all privacy areas. However, implementation of these provisions by state governments and the private sector can be haphazard. For a full implementation of privacy rights, it is best that states enact specific statutory law in the area of informational privacy. Fair Information Practices laws discussed in Chapter 4 are excellent examples of these types of laws. Open Meetings and Open Records Exceptions Open meetings and open records laws accent the above privacy provisions by providing for executive sessions and closing public records for privacy reasons. In addition, states have passed specific pieces of legislation limiting access to public records. These specific statutes will be discussed along with open meetings and open records law exemptions. The privacy elements have been divided into two areas: effective government and personal privacy. Personal Privacy The privacy of individuals is recognized within all but five state open meetings laws. As Privacy Table 5.1 shows, twenty states have enacted a general provision for the closing of public meetings when individual privacy may be threatened. Five of these states have specified that the individual in question can request an open meeting. 118

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This could be important when final action cannot be taken in executive session. Persons may prefer that the background information shared in an executive session be made public so that it may help explain any public action taken against them. Open records laws provide exemptions as listed in Table 5.1. for personal pr1vacy Almost half the states, twenty-two, make a general exemption for individual privacy as it pertains to records. These provide a high degree of privacy protection to individuals. The remainder of the states have chosen to enact specific laws where privacy is important. To encourage disclosure, many states provide for segregable portions of records to be disclosed even if other parts of the record are to be held secret. Effective Government State legislatures have attempted to balance access values with the need for secrecy in the effective functioning of government. Within open meetings laws, executive sessions can be authorized when premature publicity of the topic would be detrimental to the interest of the public at large by revealing information to individuals who might profit at the public's expense. Table 5.2 outlines the areas that fall into this category. 119

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Table 5.2. Closed Meetings -Effective Government A B c D E F G H I J T Illinois 5 5 5 5 5 5 5 35 Maryland 5 5 5 5 5 5 5 35 Rhode Island 5 5 5 5 5 5 5 35 Washington 5 5 5 5 5 5 5 35 New York 5 5 5 5 5 5 30 North Carolina 5 5 5 5 5 5 30 Oregon 5 5 5 5 5 5 30 California 5 5 5 5 5 25 Connecticut 5 5 5 5 5 25 Delaware 5 5 5 5 5 25 Federal Sunshine Act 5 5 5 5 5 25 Indiana 5 5 5 5 5 25 Louisiana 5 5 5 5 5 25 Massachusetts 5 5 5 5 5 25 Mississippi 5 5 5 5 5 25 Nebraska 5 5 5 5 5 25 Texas 5 5 5 5 5 25 Utah 5 5 5 5 5 25 Virginia 5 5 5 5 5 25 West Virginia 5 5 5 5 5 25 Wisconsin 5 5 5 5 5 25 Colorado 5 5 5 5 20 Common Cause 5 5 5 5 20 Hawaii 5 5 5 5 20 Idaho 5 5 5 20 Iowa 5 5 5 5 20 Kentucky 5 5 5 5 20 Minnesota 5 5 5 5 20 New Jersey 5 5 5 5 20 New Mexico 5 5 5 5 20 Ohio 5 5 5 5 20 Pennsylvania 5 5 5 5 20 South Carolina 5 5 5 5 20 Vermont 5 5 5 5 20 Arizona 5 5 5 15 Kansas 5 5 5 15 Maine 5 5 5 15 Michigan 5 5 5 15 Missouri 5 5 5 15 New Hampshire 5 5 5 15 Oklahoma 5 5 5 15 Wyoming 5 5 5 15 Florida 5 5 10 Georgia 5 5 10 South Dakota 5 5 10

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Table 5.2. (contd.) A B c D E F G H I J T Alaska 5 5 Harvard Law Review 5 5 Montana 5 5 Nevada 5 5 North Dakota 5 5 Tennessee 5 5 Alabama 0 Arkansas 0 District of Columbia 0 Society of Professional Journalists 0 KEY: A: Finance B: Real Estate C: Collect Barg D: Legal E: Security F: Training G: Inspections H: Criminal Invest I: Business Industry Contracts J: Internal Operations T: Total 121

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Discussions governmental of legal agencies, matters or real estate litigation against transactions, and collective bargaining are the most common exemptions. Other areas include governmental finances, security issues, business/industry contracts, and criminal investigations. Only one state allows exemptions for the discussion of internal agency operations. In the records area, as noted in privacy table 5.3, many states provide a general exemption for records needing to be closed in order for the public's business to be done effectively. In these states, the non-disclosure provision allows for the agency or court to weigh the benefits of disclosure against the benefits of non-disclosure. This provision gives a great deal of leeway to governmental bodies in deciding whether to disclose information. Concern for the effective functioning of government 1.s demonstrated in more detail for public records than for meetings. Table 5.3 lists more exemptions from disclosure for public records due to the greater number of specific provisions included in state statutory law. One of the most common is an exemption for public records which can be categorized as informal and temporary. These records may include drafts, notes, preliminary computations, as well as interagency or interagency memos. Although the intent was to give public employees the 122

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Table 5.3. Closed Records -Effective Government A B c D E F G H I J K T Alabama 50 50 Arizona 50 50 California 50 50 Connecticut 50 50 Hawaii 50 50 Henrick Model 50 50 Illinois 50 50 Maryland 50 50 Oregon 50 50 Wisconsin 50 50 Kentucky 5 5 5 5 5 5 5 5 40 Michigan 5 5 5 5 5 5 5 5 40 Utah 5 5 5 5 5 5 5 5 40 Vermont 5 5 5 5 5 5 5 5 40 Florida 5 5 5 5 5 5 5 35 Kansas 5 5 5 5 5 5 5 35 Minnesota 5 5 5 5 5 5 5 35 Oklahoma 5 5 5 5 5 5 5 35 Rhode Island 5 5 5 5 5 5 5 35 South Carolina 5 5 5 5 5 5 5 35 Virginia 5 5 5 5 5 5 5 35 Washington 5 5 5 5 5 5 5 35 New York 5 5 5 5 5 5 30 Texas 5 5 5 5 5 5 30 Arkansas 5 5 5 5 5 25 Massachusetts 5 5 5 5 5 25 Iowa 5 5 5 5 5 25 Louisiana 5 5 5 5 5 25 Colorado 5 5 5 5 20 Mississippi 5 5 5 5 20 Nebraska 5 5 5 5 20 Tennessee 5 5 5 5 20 West Virginia 5 5 5 5 20 Wyoming 5 5 5 5 20 Delaware 5 5 5 15 District of Columbia 5 5 5 15 Indiana 5 5 5 15 New Mexico 5 5 5 15 North Carolina 5 5 5 15 North Dakota 5 5 5 15 Georgia 5 5 10 Maine 5 5 10 Missouri 5 5 10 New Hampshire 5 5 10 South Dakota 5 5 10

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Table 5.3. (contd.) A B Alaska New Jersey Ohio Pennsylvania Idaho Montana Nevada KEY: A: General C: Real Estate E: Litigation G: Investigation I: Drafts/Notes c D E K: Anonymous Contributions 124 F G 5 5 5 5 H B: Finance I J K D: Collective Bargaining F: Security H: License and Exams J: Historic Sites T: Total T 5 5 5 5 0 0 0

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ability to communicate freely within the decision-making process without publicity the exemption's broad nature provides opportunity for secrecy beyond that. State courts have used two primary criteria in deciding court cases on this exemption: whether a record was used as the basis for a final decision, and whether information contained in the document is fact as opposed to opinion. Records used for final decisions or those containing factual information have often been subject to disclosure (Braverman and Chetwynd 1985). Common sense dictates that license and school examinations be withheld from the general public. This is a common exemption which generally applies to all licensing, public employment, and academic institutions. The third most popular exemption, records of investigations, covers a broad range, including those of law enforcement agencies, child abuse agencies, and welfare agencies. Exemptions for records dealing with real estate, finance, and litigation are also prevalent among the states. These two exemptions are common protections which enable public employees to conduct the public's business successfully when government is in a competitive position with private citizens. The other exemptions listed have less than majority support from the states. They all provide some measure of 125

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secrecy which may be necessary to make effective governmental decisions. Table 5.4 summarizes the provisions for privacy relating to effective government. Generally, privacy has more adequate protection in the exemptions to records laws than in meetings laws. Public records deal with a vast range of subjects and have been the focus of state legislative action for many years. The range of public business topics discussed by boards and commissions is more limited, requiring a less detailed approach to privacy exemption. While these provisions support a government's ability to make effective decisions, they may significantly damage the public's right to know about those decisions. Exemptions for the functioning of effective government is an area where access and privacy come into direct conflict. Resolving these issues is difficult, since good intent on the part of public representatives and employees in this area is the determinant of lawful behavior. generally decided to weigh 1n on the access equation. Further exploration is needed States have side of the to find a satisfactory solution to the access and privacy conflict. This is an important area of ethical determination for public managers. 126

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Table 5.4. Privacy -Effective Government Closed Closed Meetings Records Total Illinois 35 so 85 Maryland 35 50 85 Oregon 30 50 80 California 25 50 75 Wisconsin 25 50 75 Connecticut 20 so 70 Hawaii 20 so 70 Rhode Island 35 35 70 Washington 35 3S 70 Arizona 15 so 65 Utah 25 40 65 Kentucky 20 40 60 New York 30 30 60 Vermont 20 40 60 Virginia 25 35 60 Michigan 1S 40 55 Minnesota 20 35 55 South Carolina 20 35 55 Texas 25 30 55 Alabama 0 so so Kansas 15 35 50 Louisiana 25 25 so Massachusetts 25 25 50 Oklahoma 15 35 50 Florida 10 35 45 Iowa 20 25 4S Mississippi 25 20 45 Nebraska 25 20 4S North Carolina 30 15 45 West Virginia 25 20 4S Colorado 20 20 40 Delaware 25 15 40 Indiana 25 15 40 New Mexico 20 15 35 Wyoming 15 20 35 Arkansas 0 25 25 Maine 15 10 2S Missouri 1S 10 25 .New Hampshire 1S 10 2S New Jersey 20 5 25 Ohio 20 5 25 Pennsylvania 20 s 25 Tennessee 5 20 25 Georgia 10 10 20 Idaho 20 0 20 North Dakota 5 15 20 South Dakota 10 10 20 District of Columbia 0 15 15 Alaska 5 5 10 Montana 5 0 5 Nevada 5 0 5 127

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Conclusion Privacy is a major information policy issue which is in clear need of further development. Constitutional provisions are weak at the federal level and mostly nonexistent at the state level. Fewer than half of the states, twenty-three, provide any general protection of privacy through constitutional or statutory law (Table 5.1). The analysis of laws protecting privacy in public meetings and with public records shows a wide variation in the sophistication of the laws. Protection of privacy issues in public meetings and with public records are particularly lacking among the states. As Table 5.1, shows only twenty states provide for open meetings protection and only twenty-one provide protection of privacy in open records laws. In Chapter 4 we saw that states have chosen a distributive policy in relation to access. As Table 5.1 shows many states have not provided for privacy concerns in their open meetings and open records laws, thereby supporting the distributive perspective. The general lack of legislation in the privacy area results in a more distributive policy. However, it is impossible to know if more states had addressed privacy issues whether the choices made in legislation would have been more distributive or restrictive. 128

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Table 5.4 indicates that effective government privacy needs are not well recognized in the states. There is limited protection in public meetings and with records. It appears that the distributive perspective has outweighed concern with the privacy needed to make effective governmental decisions. For this reason, legislatures have chosen not to include many exemptions in their major access laws. This fact undoubtedly affects the conduct of public business. Both elected officials and public employees in many states make decisions in strong daylight. Correlational Analysis Personal privacy measures of democracy rankings were compared and bureaucracy. They to the did not correlate to any of the measures of democracy, but did correspond to one of the measures of bureaucracy. A significant positive correlation of r2=.1891, significance level of .002 was found with the Grurnm professionalism of legislatures index. No other correlations were found with bureaucracy measures. The states with the highest privacy rankings have privacy guarantees in their constitutions. Out of these ten states, six have fairly new constitutions. Of these six, all but one rank high on the Grurnm {1971) index. 129

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Privacy rankings also correlate positively to state personal income (r2=. 0776, significance level 048), and metropolitan population (r2= .1349, significance level 008) A correlation to Luttbeg' s (1971) classification of the states is also supported (r2=.0830, significance level of 042). This data supports the conclusion that privacy 1ssues are similar to access issues when it comes to Luttbeg's classification of the states. Industrial states are more likely to have addressed privacy issues, southern and frontier states least 'likely. It also appears that personal privacy is a relatively new public policy concern within the states. The relationship between the states and federal privacy guarantees is not clear--legal opinions have both supported and not supported the use of constitutional guarantees in relation to state governmental records. To be certain, states need their own privacy legislation. States which have less sophisticated governments are less likely to address the issue of personal privacy. Privacy provisions that relate to effective government show similar correlations. These ratings are positively related to the Grumm professional of state legislatures index at an r2= .1884, significance level of 002. In addition, states with higher levels of population residing in metropolitan areas also have higher ratings (r2=.1522, 130

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significance level .005). This data supports a conclusion that states that have more advanced governmental structures give attention to effective government provisions in privacy areas. States with more advanced legislatures also tend to be those with higher metropolitan populations. Effective government privacy ratings are also correlated to Luttbeg's classification (r2=.0855, significance level of .039) Effective government privacy ratings and access ratings correlate to Luttbeg's classifications in similar ways. The industrial states have the highest privacy ratings, sparsely populated next highest, followed by southern and frontier states with the poorest ratings. The lack of significant correlations to democracy measures is understandable, given that many states have not taken direct action to protect privacy. While the more industrial states have addressed effective government privacy issues, personal privacy issues have not been dealt with consistently. Information policy concerning personal privacy has not progressed far enough in the states to serve as a variable in analysis. importance of privacy issues in Given the increasing today's society, this situation poses a serious problem for the citizens of these states. 131

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CHAPTER 6 INTELLECTUAL PROPERTY Intellectual property is governed by copyright, patent, and trade secret laws. Since copyright and patent laws are exclusively federal, only trade secret is covered in this study. Trade secret laws at the state level have been greatly affected by the Uniform Trade Secret Act. At their 1979 annual conference, the Commissioners of Uniform State Laws adopted the Uniform Trade Secrets Act. The act has eight parts covering all aspects of trade secrets previously included in common law. The definition section in the first part of the act is important due to the inclusion of a broad definition of trade secrets based on the concept of 11information.11 Trade secret means information, including a formula, pattern, compilation, program, device, method, technique or process that, ( i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by improper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy (14 U.L.A. 537-40). The definition of trade secret was broadened by eliminating the common law provision that it must be used continually

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in the business operation, and eliminating a distinction made between trade secrets and business information. The use of the word "information" allows greater latitude in the interpretation of a trade secret. To protect trade secrets, organizations are required to define information of economic value in need of protection, and to make reasonable efforts to maintain its secrecy. Another significant definitional aspect of the act deals with misappropriation, defined as "the acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret is acquired by improper means" (14 U.L.A. 537-40). "Improper" includes "theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means" (14 U.L.A. 537-40). These definitions have proved extensive enough to satisfy most violations of what would normally be considered commercial ethics (Henderson 1987). There are two sections in the uniform act that deal with remedies: injunctive relief and damages. Injunctive relief is offered for the "period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation" (14 U.L.A. 537-40). This provision extends the temporal advantage over goodfaith competitors, balancing the harm done by 133

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misappropriation with the realization that most information that gives competitive advantage would probably not remain undiscovered by others forever. Damages may be awarded in addition to, or instead of, injunctive relief. Damages are suggested to compensate for the "actual loss" and "unjust enrichment" caused by the misappropriation and may carry an award twice as large for malicious misappropriation. In other sections, courts are instructed to preserve the secrecy of the trade secret during proceedings by ordering parties involved not to disclose an alleged trade secret without court approval. The act also provides for attorney fees to be paid in the instance of a bad faith action, and sets a three year statute of limitation. By 1991, thirty-nine states had adopted the Uniform Trade Secrets Act or similar (Table 6.1). Georgia, Nebraska, Ohio, Tennessee, and Texas have. enacted some trade secret legislation not as complete as the Uniform Act. Only seven states have no trade secret protection. Additional Trade Secret Protection In addition to adopting the Uniform Trade Secrets Act, many states have dealt with the disclosure of trade secrets by government employees. The government, in the process of fulfilling its regulatory role, is given much information considered to be in the category a trade secret by the 134

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Table 6.1. Trade Secret A B c D E F G H s T Illinois 10 10 15 15 15 15 15 5 80 100 Kansas 10 10 15 15 15 15 15 5 80 100 Arizona 10 15 15 15 15 15 5 80 90 California 10 15 15 15 15 15 5 80 90 Colorado 10 15 15 15 15 15 5 80 90 Connecticut 10 15 15 15 15 15 5 80 90 Delaware 10 15 15 15 15 15 5 80 90 District of Columbia 10 15 15 15 15 15 5 80 90 Florida 10 15 15 15 15 15 5 80 90 Indiana 10 15 15 15 15 15 5 80 90 Iowa 10 15 15 15 15 15 5 80 90 Kentucky 10 15 15 15 15 15 5 80 90 Louisiana 10 15 15 15 15 15 5 80 90 Maryland 10 15 15 15 15 15 5 80 90 Minnesota 10 15 15 15 15 15 5 80 90 Mississippi 10 15 15 15 15 15 5 80 90 New Hampshire 10 15 15 15 15 15 5 80 90 North Carolina 10 15 15 15 15 15 5 80 90 North Dakota 10 15 15 15 15 15 5 80 90 Oklahoma 10 15 15 15 15 15 5 80 90 Oregon 10 15 15 15 15 15 5 80 90 Rhode Island 10 15 15 15 15 15 5 80 90 Utah 10 15 15 15 15 15 5 80 90 Virginia 10 15 15 15 15 15 5 80 90 Washington 10 15 15 15 15 15 5 80 90 West Virginia 10 15 15 15 15 15 5 so 90 Wisconsin 10 15 15 15 15 15 5 80 90 Alabama 15 15 15 15 15 5 80 80 Alaska 15 15 15 15 15 5 80 80 Arkansas 15 15 15 15 15 5 80 80 Hawaii 15 15 15 15 15 5 80 80 Idaho 15 15 15 15 15 5 80 80 Maine 15 15 15 15 15 5 80 80 Montana 15 15 15 15 15 5 80 80 Nevada 15 15 15 15 15 5 80 80 New Jersey 15 15 15 15 15 5 80 80 New Mexico 15 15 15 15 15 5 80 80 Pennsylvania 15 15 15 15 15 5 80 80 South Dakota 15 15 15 15 15 5 80 80 Nebraska 10 15 15 0 15 15 0 60 70 Georgia 10 15 15 15 0 0 0 45 55 Tennessee 10 15 15 15 0 0 0 45 55 Texas 10 15 15 15 0 0 0 45 55 Ohio 15 15 0 0 0 0 30 30 South Carolina 10 10 0 0 0 0 0 0 0 20

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Table 6 .1. (contd.) A B c D E F G H s T Massachusetts 10 0 0 0 0 0 0 0 10 Michigan 10 0 0 0 0 0 0 0 10 Missouri 10 0 0 0 0 0 0 0 10 New York 10 0 0 0 0 0 0 0 10 Vermont 10 0 0 0 0 0 0 0 10 Wyoming 10 0 0 0 0 0 0 0 10 KEY: A: Open Meetings B: Open Records C: Definition D: Misappropriation E: Criminal F: Damages G: Injunction H: Attorney S: Sub-total T: Total 136

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originating organization. The protection of these secrets while in governmental hands is of vital importance to private organizations. Illinois, Kansas, and South Carolina provide for secrecy relating to trade secrets when their governments conduct public meetings. All but twelve states, as shown in Table 6.1, provide for this protection with their open records laws. Conclusion As noted above, trade secret law has become more critical to business enterprise due to the extensive use of new technologies. Despite the update of the federal copyright law in 1976, copyright protection has not been clarified for many of these new technologies, particularly computer software. The blurring of lines between computer hardware and software poses a challenge to the patent/copyright distinction. In this environment, the use of trade secret for protection is more prevalent. Business leaders are anxious for consistent laws in this area, so that conducting business across state lines is not disrupted by differences in the legal atmosphere. Due to leadership from the Commissioners of Uniform Laws, the status of trade secret law in the United States is fairly consistent. By following the commissioners lead, state legislatures have given the private sector a stable 137

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and consistent environment for intellectual property protection. The only significant difference among the states is created by the few states who have not passed the uniform act. By supporting the Uniform Trade Secret Law, the states has supported a restrictive approach in relation to business information. Because of the lack of significant variances between the states, correlations were not pursued with the measures of democracy and bureaucracy. 138

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CHAPTER 7 SECURITY Computer Crime Computer cr1me has been a concern since the mid-1960's when computers came into general use. .States have enacted laws, responding to the difficulties of using the regular criminal statutes to prosecute criminals who break into computer systems. All states, except Vermont and the District of Columbia have computer crime laws. These statutes have been analyzed using five criteria: statement of public policy, definitions, crimes defined, criminal penalties, and recourse offered. As Table 7.1 shows, forty-nine state statutes define computer crimes. The laws were considered comprehensive-if they covered all the diff.erent types of computer crime defined above as well as requiring proof of intent. A large number of states define computer crimes to include all types, only Alaska, Indiana, Massachusetts, and Washington are significantly deficient in this area. State laws are also well-formed in the area of criminal penalties. Most states define a criminal level for misdemeanors and felonies. Degrees depend on the seriousness of the crime; mere

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Table 7 .1. Computer Crime A B c D E T California 3 15 15 10 3 46 Georgia 3 15 15 10 3 46 Delaware 0 15 15 10 5 45 Arkansas 3 15 11.25 12.5 3 44.75 Florida 3 15 15 10 0 43 Idaho 3 15 15 10 0 43 West Virginia 3 15 15 10 0 43 Virginia 0 15 11.25 10 5 41.25 Alabama 0 15 15 10 0 40 Connecticut 0 15 15 10 0 40 Illinois 0 15 15 10 0 40 Iowa 0 15 15 10 0 40 Kansas 0 15 15 10 0 40 Kentucky 0 15 15 10 0 40 Louisiana 0 15 15 10 0 40 Maine 0 15 15 10 0 40 Michigan 0 15 15 10 0 40 Minnesota 0 15 15 10 0 40 Nebraska 0 15 15 10 0 40 New Jersey 0 15 15 10 0 40 New Mexico 0 15 15 10 0 40 New York 0 15 15 10 0 40 North Carolina 0 15 15 10 0 40 Oklahoma 0 15 15 10 0 40 Pennsylvania 0 15 15 10 0 40 Utah 0 15 15 10 0 40 Rhode Island 0 15 11.25 10 3 39.25 Mississippi 0 15 11.25 12.5 0 38.75 Wisconsin 0 15 11.25 10 2 38.25 South Dakota 0 10 15 10 3 38 Nevada 0 10 15 12.5 0 37.5 Colorado 0 15 11.25 10 0 36.25 Hawaii 0 15 11.25 10 0 36.25 New Hampshire 0 15 11.25 10 0 36.25 Oregon 0 15 11.25 10 0 36.25 South Carolina 0 15 11.25 10 0 36.25 Tennessee 0 15 11.25 10 0 36.25 Texas 0 15 11.25 10 0 36.25 Wyoming 0 15 11.25 10 0 36.25 Alaska 0 15 7.5 12.5 0 35 Missouri 0 10 15 10 0 35 Federal 0 10 11.25 10 0 31.25 Montana 0 10 11.25 10 0 31.25

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Table 7 .1. (contd.) A B c D E T Indiana 0 10 3.75 12.5 0 26.25 Massachusetts 0 10 3.75 12.5 0 26.25 Washington 0 10 3.75 12.5 0 26.25 Arizona 0 0 11.25 12.5 0 23.75 Maryland 0 10 11.25 2.5 0 23.75 North Dakota 0 0 11.25 10 0 21.25 Ohio 0 0 7.5 12.5 0 20 District of Columbia 0 0 0 0 0 0 Vermont 0 0 0 0 0 0 KEY: A: Public Policy B: Definition C: Crimes D: Penalties E: Recourse T: Total 141

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entrance into a system is defined as a misdemeanor, while felonies involve damage or theft. Penalties are also defined on the value of the services or i terns taken or damaged. Only Maryland's statute does not conform to this standard. Another common element 1n computer crime laws is a definitional section. Most sections define computer, computer network, computer system, computer program, computer software, computer services, property, and access. This section of the statutes is important in the current changing technical environment. Since most statutes define a computer as an electronic device, the scope of the laws may be limited as technological advances develop further optical, magnetic, and other forms of storage. Nine states have updated definitions which include magnetic, optical, electronic, and electrochemical storage devices. Two states have taken a different approach by avoiding the definitional framework of computers' physical characteristics and, instead, have defined computers according to their function. For example, Kentucky defines a computer as "a device that can perform substantial computation including numerous arithmetic or logic operations, without intervention by a human operator during the processing of a job" (Ky. Stat. tit. 434, 840(2)). Illinois broadens this by describing a computer as "a 142

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device that accepts, processes, stores, retrieves or outputs data, and includes but is not limited to auxiliary storage and telecommunications devices connected to computers" (Ill. Stat. tit. 16D, 2(a)). But there can be problems with too inclusive a definition; some are so broad that they include hand-held electronic calculators. South Carolina has specifically exempted such devices from coverage. A less common, but nevertheless important, component of computer crime laws includes provisions for restraining orders and civil actions. The laws in Arkansas, California, Georgia, Rhode Island, and South Dakota allow for victim organizations to sue for damages through civil actions. This provision provides additional teeth in penalties for computer crimes, perhaps costing the criminal much more than fines would in most criminal acts, and strengthening computer crime laws in a significant way (Allred 1985). In Wisconsin, the statute provides for the issuing of restraining orders. Also, any individual or corporate entity may sue for injunctive relief. This type of relief could be helpful when programs or data that have a continuing value are compromised. Delaware and Virginia include both restraining orders and civil actions in their statutes. 143

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A statement of public policy 1s certainly not a necessary component of a computer crime law, but adds additional protection in that it clearly states the legislative intent in enacting the law. Such intention can play an important part when courts interpret vague areas of the law. Only Arkansas, California, Florida, Georgia, Idaho, and West Virginia provide such a statement. California's is typical: It is the intent of the Legislature in enacting this section to expand the degree of protection afforded to individuals, businesses, and governmental agencies from tampering, interference, damage, ahd unauthorized access to lawfully created computer data and computer systems .... The Legislature further finds and declares that protection of the integrity of all types and forms of lawfully created computers, computer systems, and computer data is vital to the protection of the privacy of individuals as well as to the well-being of financial institutions, business concerns, governmental agencies, and others within this state that lawfully utilize those computers, computer systems, and data (Calif. Stat. tit. 502) Citizens of these states could be helped by such statements as they find themselves dealing with compromises to computer systems. Such statements of public policy become increasingly important as technology changes. If laws do not keep pace with technology, courts may be asked to interpret legislative intent. Laws that include a public policy statement provide a sound basis for the courts to extrapolate beyond the old technology referred to in the law. 144

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As Table 7.1 shows, California, Delaware, and Georgia have the strongest computer crime laws, covering most of the provisions discussed here. Florida, Idaho, South Dakota, Virginia, and West Virginia also have strong laws, with only public policy statements and some recourse provisions missing. The majority of the remainder of the states have quite adequate statutory law in this area. These laws reflect a considered attention by state legislatures to this important issue and a concern for the protection of computer systems in both the public and private sectors. This attention shows that public officials hope that their decisions concerning the availability of information be honored in the reality of the information processing environment. Information Technology An interesting aspect of the information policy of the states is how well each has accounted for new technologies in its laws. As pointed out in other parts of this study, the effect of new technologies on record keeping and communication has dramatically changed in the last twenty years. Have the states been able to adjust their policies to keep up with these changes 1n technologies? An information technology index has been compiled to analyze this issue. Table 7.2 shows the results of this index. 145

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Table 7.2. Information Technology Meetings Records Records Records Tele Format Printouts Software Total Kentucky 10 10 10 10 40 Oregon 10 10 10 10 40 Utah 10 10 10 10 40 Virginia 10 10 10 10 40 Wisconsin 10 10 10 10 40 California 10 10 10 0 30 Oklahoma 10 10 0 10 30 Rhode Island 10 10 10 0 30 South Carolina 10 10 10 0 30 Texas 10 0 10 10 30 Alaska 10 10 0 0 20 Arkansas 10 10 0 0 20 Colorado 0 10 10 0 20 Connecticut 0 10 10 0 20 Florida 0 10 0 10 20 Georgia 0 10 0 10 20 Illinois 10 10 0 0 20 Indiana 0 10 0 10 20 Iowa 10 10 0 0 20 Kansas 0 10 0 10 20 Louisiana 0 10 0 10 20 Maine 0 10 10 0 20 Michigan 10 10 0 0 20 Minnesota 0 10 0 10 20 New York 0 10 0 10 20 North Carolina 10 10 0 0 20 South Dakota 10 10 0 0 20 Wyoming 0 10 10 0 20 Arizona 0 0 10 0 10 Delaware 0 10 0 0 10 Hawaii 0 10 0 0 10 Maryland 0 10 0 0 10 Mississippi 0 10 0 0 10 Missouri 0 0 0 10 10 Montana 10 0 0 0 10 Nebraska 0 10 0 0 10 New Hampshire 0 0 10 0 10 North Dakota 0 0 0 10 10 West Virginia 0 10 0 0 10 Alabama 0 0 0 0 0 District of Columbia 0 0 0 0 0 Idaho 0 0 0 0 0 Massachusetts 0 0 0 0 0 Nevada 0 0 0 0 0 New Jersey 0 0 0 0 0 New Mexico 0 0 0 0 0 Ohio 0 0 0 0 0 Pennsylvania 0 0 0 0 0 Tennessee 0 0 0 0 0 Vermont 0 0 0 0 0 Washington 0 0 0 0 0 146

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States were rated on four criteria concerning meetings and records laws. The first criterion related to public meetings. With the advent of telecommunications devices, some meetings are now held without participants gathering to one physical place. Meetings via telecommunications are becoming more common 1n both the public and private sectors. In addition, the pace of today' s society has introduced more extensive use of the telephone. Telephones now can be found not just in offices and businesses, but in cars, on beaches, or wherever people may be. These changes in society have had an impact on governmental process. Each state was rated as to whether its open meetings law addressed the issue of holding meetings via some type of telecommunications equipment. Only eighteen states have dealt with this possibility in their laws. The other three criteria pertain to the maintenance of, and access to, public records. Many public records now exist in some type of electronic or optical form. Have open records laws kept pace with these changes? Generally, the answer is no. The majority of states, thirty-three, have recognized that public records exist in many forms and have provided for II all formats 11 within their definitions of public records.. A much fewer number have adjusted their laws specifically to include automated records by providing for citizen access to printouts as well as photocopies. 147

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Fourteen states give specific directions for providing printouts from computer databases. A larger number, fifteen, have decided that state-owned software should be protected from release through open records laws. Exemptions for such software are included ln their statutes. Many states have ignored the advent of new technologies in relation to their open meetings and records laws. Only Kentucky, Oregon, Virginia, Utah, and Wisconsin support all of the elements of the new technologies index. Another five states have dealt with half of the elements used to evaluate the laws. Correlational Analysis The new technology and computer crime ratings did not correlate with any measure of democracy or bureaucracy. It may be expected that states that have recognized the effect of new technologies would have stronger measures of bureaucracy. This proposition is not supported. It may be that the size of the state's government is not necessarily a determinant of the degree of its sophistication in the use of new technologies. For example, Kentucky is known for its advanced work in this area, but has a fairly low number of state employees. The factors that prompt a state 148

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to utilize new technologies and to account for them within its information policy needs further exploration. 149

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CHAPTER 8 CONCLUSION Information is a complex concept and policy concerning it, by necessity, is a difficult thing to analyze. This complexity often is not seen by those responsible for formulating information policy. This is as true at the state level as it is for the federal government. This study forms the first step in assessing the effect of the policy makers' actions. The conclusions presented here offer a definitional insight into information policy at the state level and into the distributive/restrictive balance of the information policy decisions made so far. It is hoped that these conclusions will be an instructive resource for those who are responsible for public choices in the states. The Condition of Information Policy The first proposition asks--Do the states have information policies? This study found that state level information policy does exist. Every state has some type of information policy reflected in statutory law, although three (Alabama, Idaho, South Dakota) have what might be

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termed an "underdeveloped" policy which addresses only the basic issues. All states have chosen to regulate attendance at public meetings and access to public records, showing a great deal of attention by state legislatures. While laws governing access show maturity, those governing privacy present a much less-developed character. Only twenty-three states have enacted privacy protection as separate legislation. Citizens in other states must depend on court-interpreted common law for overall privacy protection, although all these states dealt with privacy as exemptions to access within open meetings and open records legislation. Privacy is the most underdeveloped of the areas examined in this study. Most states have addressed intellectual property issues through the regulation of trade secrets. All but one have given attention to the development of new technologies by criminalizing unauthorized access to computers. Through our elected representatives, governmental use of information has been controlled to some extent in all states. The Nature of Information Policy The first proposition also suggests that a state's information policy will reflect choices made within the distributive/restrictive framework. As noted 1n the 151

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conclusion sections of Chapters 4 and 5 most states fall on the distributive end of the continuum. When legislators have considered the distributive/restrictive balance in the formation of open meetings and open records laws they have made a more distributive choice. The laws of the states do not often choose a restrictive approach. Chapter 5 shows that discussion concerning privacy issues have not received as much attention as discussion of access issues. This has resulted in a more information policy for_the states in general. and openness distributive The second proposition deals with the correlation between this distributive/restrictive mix and the state's political and bureaucratic environments. Table 8.1 presents the results of the correlation analysis. This proposition has two parts: 1) states with higher measures of democracy should be more likely to have a distributive policy and, 2) states with well-developed bureaucracies should be more likely to have restrictive policies. As Table 8.1, shows only one correlation was found between measures of democracy and the information policy ratings. This correlation is that the more educated states, those with higher high school graduation rates, have high access ratings. The proposition that the states that show high measures of democracy will have a more 152

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Table 8 .1. Correlational Analysis Democracy Bureaucracy A B c D E F Access .0707 .0858 -.0008 -.0043 -.0024 .0135 and (.062) (.037) (. 524) (.650) (.733) ( .420) Openness X Personal .0008 .0491 .0001 .0004 -.0009 .1891 Privacy (.533) ( .118) (. 942) (. 890) (. 492) ( .002) X Privacy -. 0015 .0034 -.0471 -.0084 -.0136 .1884 Effective (. 786) (.680) ( .130) (.157) (. 569) ( .002) Government X NOTE: First number equals r2 second number is significance level. KEY: A: Voter D: Expenditures B: Education E: Employees 153 C: Revenue F: Professionalism

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distributive information policy is supported by this finding. The proposition that states that have well developed bureaucracies can be expected to have more restrictive policies is generally not supported by the data. As Table 8.1 shows no correlations were found with state revenue, expenditures, and number of employees. Only the sophistication of the state legislature appears to be correlated to privacy ratings. This result may point to the conclusion that privacy becomes a concern as a state grows in policy sophistication. Therefore, the second part of the proposition is supported only in this one area. The conflict between distributive and restrictive policies is evident in the decisions made by the states. One value has not been chosen exclusively over the other, although policies are more distributive. In his book, The Knowledge Executive, Cleveland feared that sunshine would become "moonstruck" if legislators believed that "total openness is bound to produce the best policy of all'' (Cleveland 1985a, 55). Such a dramatic attention to openness was not found among the states. Most states have balanced the public's _right to know with the individual's right to privacy and some have recognized the need for privacy to operate government effectively. 154

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Table 8.2 presents the results of the correlational analysis with measures from comparative state analysis. All of the information policy measures, access/openness, personal privacy, and privacy/effective government correlate with Luttbeg' s classification of the states. Industrial states are shown to have the highest ratings on all three of these measures. Sparsely populated states rank the next highest, while southern and frontier states rank the lowest. These findings are supported by a positive significant correlation between access/openness and political culture. Moralistic states received the highest rating, and traditionalistic state received the lowest. This finding is consistent with Elazar's theory since moralistic states encourage participation in government affairs. Personal 1ncome is positively correlated with personal privacy ratings. In addition, the more metropolitan the state the higher the ratings on personal privacy and privacy/effective government. These findings are consistent with the literature of comparative state analysis which has consistently found that Luttbeg's industrial states have well-developed public policies. The analysis of intellectual property law shows that the existence of good model legislation can promote action within the states. Due to the Uniform Trade Secrets Act, 155

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8.2. Comparative State Analysis Personal Metropolitan Income Population Classification Access -.00005 .0057 and (. 960) (. 596) Openness Personal .0776 .1349 Privacy ( .048) (.008) X X Privacy .0162 .1522 Effective (.372) (.005) Government X Political Culture -.0845 (. 041) X .0295 ( .232) -.0025 (. 725) Luttbeg 0759 (.53) X .0830 (.042) .0855 (.039) X NOTE: First number equals r2 second number is significance level. 156

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laws are uniform ln the states. Given the strong role of the federal government in enacting copyright and patent law, legal uniformity has generally been achieved. It is too early to determine whether trade secret law will be effective in protecting intellectual property implemented in new technologies. This area of information policy will be particularly critical in the future and deserves further research attention. Computer crime legislation is well-developed within the states, because federal legislation has provided a good model for these statutes. Our measure of new technologies shows that most states have not kept pace with the effects of technology on information. Policies concerning records formats are generally weak; interpretation is left to the courts. The study was unable to link a state's advancement in this area to either democratic or bureaucratic measures. Future Research This study has provided a preliminary overview of the information policy of the states. Many questions remain concerning the nature of information policy at the state level. The following are recommended as the next logical steps to take in the exploration of these important issues. All public policy emerges from a complex interplay of political forces which come together at a point in time to 157

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reach an agreement. These forces may be more or less permanent fixtures in the political landscape; or they may be temporary structures that have met only long enough for a vote to be taken and a bill signed. The history of open meetings and open records laws leads us to believe that enactment of legislation relating to access can be swift and draw little opposition. It is assumed that access, having such common sense democratic appeal, is difficult to oppose. When the topic of a bill is not controversial, its passage is easy if pushed by a minority of political actors. This study shows that access laws are more welldeveloped than privacy laws. A fruitful area for further study would be an exploration of the political forces that brought about the access laws. A reading of the literature suggests that the media played a significant role. The vital importance of access to public decisions to the media has been emphasized in journalism literature. Further study is needed to determine exactly how information policy J..s shaped. Who are the advocates for access and for privacy? How do they affect public policy in relation to both public and private information? Another aspect of importance is the involvement of governmental bodies in determining information policy. What branch of government is determining policy? This 158

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study shows that access policies have principally been determined by the legislative branch, while the judicial branch has played a much larger role in determining privacy policies. This has been due principally to the inaction of the legislative bodies. Studies at the federal level have shown significant effects on information policy by the executive branch. Are there similar examples within the states? What involvement have the three branches of government had in the formation of information policy at the state level? Do different branches of government develop policies which differ on the distributive/restrictive scale? Studies focused on individual states are needed to answer these types of questions. Intellectual property and computer crime laws of the states have been influenced by an organized effort to deal with those issues. The nature of such efforts is an area of research which might yield interesting results. In which areas are states willing to go along with uniform law recommendations? In which areas do they prefer to maintain their individuality? When information policy is developed in a particular state, what effect does it have? difference in the lives of citizens? the rights accorded them by these 159 Do these laws make a How aware are they of laws? How often do

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citizens utilize their rights of access? Are they concerned about the privacy of the personal information held by governments and private organizations? How do they balance the need for governmental openness vs the desire for effective governmental decision making? All of these questions need to be answered before a clear picture of the necessity and importance of information policy can be painted. Finally, this study has not dealt with enforcement of information policy laws. How well are these laws enforced by state and local governments? How often are citizens denied their rights of access or privacy without resorting to recourse? It is the action of public officials that determines rights of access or privacy, not the existence of statutory law. As was demonstrated in the civil rights movement, the action of public officials ultimately determines a citizen's rights. Without knowing more about those actions, we cannot know the full extent of information policy in the states. Future Applications: Information Policy Principles A national information policy must be based on a set of principles that specifically acknowledges the value of information and its role in a democracy. Such principles should set forth the values which will serve as a catalyst 160

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in determining public policy at all levels. This study of information policy grows out of such a set of principles. The author proposes the following principles to guide further discussion in this area: 1. Information is a valuable resource that benefits all individuals and organizations. It should be considered as vital as any natural resource and should receive as much policy attention. 2. The ability of citizens to acquire information is essential to their self-fulfillment as individuals and is essential to democratic governance. A fundamental premise of democracy is the free flow of information. Therefore, governments should seek the minimum of limits on access to information. 3. While the ownership of information is seen as a prerequisite for the growth of knowledge, no entity should be allowed to exercise monopolistic control over information essential to society's well-being. 4. Governments have the responsibility to ensure that no citizen is denied access to information due to social or economic reasons. Governments should provide citizens with the resources to acquire the information they need and want. 161

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5. Governments have the responsibility to provide access to their own decision-making mechanisms by making information about their actions available to the public. This right of access must be balanced by the privacy concerns of individuals and the right of the people to have an effective government. 6. Each citizen has a right to hold personal data private. Personal data should be collected and stored with the knowledge and consent of the person. Each individual should have right of access to such data and the right to ensure the accuracy of such information. The OECD principles should be adopted by all governments in the United States and governments should regulate business use of personal data according to the same principles. 7. Public officials hold the responsibility for the effective functioning of governmental agencies. When public knowledge of governmental actions would be substantially detrimental to effective governmental decision making, secrecy is required. Such secrecy should be specifically enumerated in public law and limited by provisions that guarantee public disclosure after an appropriate time. 162

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These seven principles supply the basis for governmental information policy that could be enacted by all state governments. Changes in information technology have brought a profound transformation in society. The very nature of information has changed as computers and telecommunications technology is utilized to process, store and move information. The ability to process information quickly, to adjust decisions based on informational feedback, and the transportation of information over vast amounts of geography has profound implications for government. Relationships between individuals, as well as between individuals and organizations, are information known by each party about governed by the other. the The rights of these individuals can be challenged by misuse of information wi"thin these relationships. Information policy that places a priority on access assists in the democratic process, enabling each citizen to make informed choices. However, the free flow of information can also violate the privacy rights of individuals if such a priority is placed on access. Ultimately it is responsible government and responsible citizens who must decide the right use of information and the right balance between access and privacy. Only responsible judgement concerning the nature of a piece of information and the effects of making it 163

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public can give the citizenry truly effective information policy. It is these types of judgements which we must educate ourselves and our public servants to make. This study presents data that reveals information policy to be in its infancy at the state level. Additional study and action are needed to improve information policies and to prepare public servants to effectively implement these policies. 164

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APPENDIX A RATING SYSTEM Access and Openness I. OPEN MEETINGS Statement of public policy -Possible points 1 0 = not there, or 1 = is there, or Definition of public body -Possible points 8 1 = in Constitution (any) 1 = includes legislature 1 = includes executive 1 = includes judicial 1 = created by statute or expends/receives public funds 1 = includes advisory bodies 1 = includes political subdivisions (local) 1 = includes committees/subcommittees Definition of meeting -possible points 6 2 = purpose of public business, or 1 = more limited definition of purpose 2 = two or more members of the group, or 1 = quorum 1 = covers social/informal meetings 1 = deals with teleconference/telephone meetings Notice requirements -possible points 7 1 = notice required 1 = post notice 1 = notify individuals and media 1 = provides for emergency meetings 1 = requires agenda 1 = less than 14 days 2 = more than 14 days Minutes -possible points 4 1 = minutes are open notice required, notice required or 1 = time given for compilation long (over 10 days), or 2 = time given for compilation short (under 10 days) 1 = recording of meeting allowed

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Recourse -possible points 8 1 = recourse to courts 1 = actions may be declared null and void, or 2 = actions must be declared null and void 1 =time frame for appeal short (30 days or less), or 2 =time frame long (over 30 days), or 3 = no time limitations specified 1 = attorney fees and court costs can be awarded 1 = criminal penalties/damages Access 1 1 -possible points 2 = meeting place must be disabled access = meeting place must not discriminate creed, etc. Secret ballot -possible points 1 1 = not allowed by race, Notify public officials/public of law -possible points 1 1 = notification required No final action in executive sessions -possible points 1 1 = no final action 0 = final may be taken Agenda for executive sessions -possible points 1 1 = must announce agenda 0 = does not have to announce agenda Constitutional provision for Open Meetings = 40 Total possible points = 40 II. OPEN RECORDS Statement of public policy -possible points 1 0 = not there, or 1 = is there, or Who may have access? -possible points 3 2 = any person, or 1 = citizen 1 = includes organizations minus 1 = if purpose needed 166

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Definition of public body -possible points 8 1 = in Constitution (any) 1 = includes legislature 1 = includes executive 1 = includes judicial 1 = created by statute or expends/receives public funds 1 = includes advisory bodies 1 = includes political subdivisions (local) 1 = includes committee/subcommittees Definition of public record -possible points 7 4 = broad All materials in possession of public body, or prepared, owned, retained, used or received by public body, or 3 = restrictive Necessary for discharge of duty, required by law 3 = includes all formats Access Tools -possible points 5 2 = agency must have rules for use 1 = must physically protect records 2 = indexes or lists required Copying of records -possible points 6 3 = copying without fees, or 2 = copying with some fees and some exceptions, or 1 = copying with fees 3 = printouts provided without fees, or 2 = printouts provided with some fees and some exceptions, or 1 = printouts provided with fees Agency response -possible points 2 1 = agency is required to explain decision 1 = time limit on agency response Recourse = possible points 8 3 = to courts direct, or 1 = committee first 1 = attorney fees and court costs can be awarded 2 = criminal penalties/damages 2 = removal from office Constitutional provision for Open Records = 40 Total possible points = 40 167

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III. FAIR INFORMATION PRACTICES 2.5 =Openness -no secret systems 2.5 =Access -right to see and copy 2.5 = Participation -right to correct or challenge 2.5 =Collection -limits on what govt can collect 2.5 =Uselimits on use of information by government 2.5 = Disclosure -limits on disclosure 2.5 =Necessary -collection is necessary 2.5 =Accountability-agency responsibility/recourse/ relief Total possible points = 20 -SUMMARY OF ACCESS RATING: Open Meetings = 40 Open Records = 40 Fair Information Practices = 20 Total Access Points Possible = 100 Privacy PERSONAL PRIVACY I. GENERAL PRIVACY PROVISIONS Constitutional = 40, or Statute = 30, or Common law = 20 Total possible points = 40 II. CLOSED MEETINGS Exceptions for Personal Privacy -General exception for privacy 30 = exception but can request an open meeting, or 25 = exception Total possible points = 30 168

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III. CLOSED RECORDS Exceptions for Personal Privacy 30 = for General exception Total possible points = 30 Total for Personal Privacy = 100 EFFECTIVE GOVERNMENT I. CLOSED MEETINGS Exceptions for Effective Government Reasons -5 = 5 = 5 = 5 = 5 = 5 = 5 = 5 = 5 = 5 = Finances/Investments of public funds Real estate transactions/Property values Collective bargaining Litigation/Consult with an attorney Security measures/Crime prevention/Disturbances Training sessions Inspections Criminal misconduct/Investigations Businesses on relocation/contract management Internal operations of the body Total possible points = 50 II. CLOSED RECORDS Exceptions for Effective Government 50 = General exception for effective government, or 5 = Finances/Investments/Bids 5 = Real estates transactions/Property values 5 = Collective Bargaining 5 = Litigation/Legal consultations 5 = Security/Crime Prevention 5 = Investigatory files 5 = License and exams 5 = Drafts/notes containing opinions 5 = Anonymous Contributions 5 = Historic Sites 5 = Inter-agency/intra-agency communications Total possible points = 50 Total for Effective Government = 100 169

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Intellectual Property I. TRADE SECRET Uniform Trade Secret Act = 80, or 15 = Definition of trade secret 15 = Misappropriation/disclosure 15 = Criminal penalties 15 = Damages 15 = Injunctive relief 5 = Attorney's fees and court costs Total possible points = 80 Open Meetings exception for Trade Secrets = 10 points Open Records exception for Trade Secrets 10 points Total Intellectual Property Points = 100 Security I. COMPUTER CRIME Statement of public policy 10 Definition of computer/system property -15 15 = Definitions broad Includes computer, computer network/system, computer program/software, computer services, data, property 10 = Definitions restrictive Crimes defined -15 3 3.75 3.75 3.75 Criminal 2.5 10 2.5 = = = = Willfully gain access Cause destruction or alternation of data Defraud or obtain money/property/services under false pretenses Disruption of computer services penalties -15 = Misdemeanor = Felony = Degrees defined 170

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Recourse -5 2 = Restraining Orders 3 = Civil Actions Total possible points = 60 II. TECHNOLOGY Meetings 10 = Meetings via telecommunications Records 10 = Format for records 10 = Records Printouts 10 = Records software Total for Meetings = 10 Total for Records = 30 Total Technology Points Possible = 40 Total Security = 100 171

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APPENDIX B DEMOCRACY AND BUREAUCRACY MEASURES A B c D E F Alabama 47.8 63.2 161.12 144.50 176 0.104 Alaska 55.6 86.9 482.18 410.94 401 -0.188 Arizona 45.1 80.6 153.01 147.07 124 -0.100 Arkansas 49.4 67.6 145.35 136.08 169 -0.765 California 48.5 78.6 153.15 136.17 107 2.294 Colorado 55.1 83.2 129.28 111.82 156 -0.173 Connecticut 59.5 80.6 119.98 123.67 183 0.226 Delaware 53.2 80.7 186.18 171.08 294 0.317 District of Columbia 72.9 Florida 46.5 77.9 106.74 97.15 114 0.279 Georgia 40.4 71.1 126.88 118.22 157 0.248 Hawaii 43.7 82.2 210.56 186.53 401 1.010 Idaho 59.1 77.3 173.91 147.27 170 -1.545 Illinois 55.2 77.2 110.79 100.58 113 1.043 Indiana 54.6 78.0 129.81 118.00 151 -0.150 Iowa 60.8 83.4 152.98 143.64 197 -0.382 Kansas 55.6 82.2 123.89 113.49 191 -0.260 Kentucky 49.5 64.7 167.78 151.75 174 -0.218 Louisiana 52.9 70.9 178.33 166.40 183 0.273 Maine 63.5 76.9 163.45 153.30 182 -0.114 Maryland 50.3 80.7 123.64 114.53 182 0.219 Massachusetts 57.8 80.7 129.91 142.90 164 2.185 Michigan 56.0 77.0 144.69 142.79 139 1.538 Minnesota 67.2 85.5 171.24 147.74 143 0.203 Mississippi 51.6 67.7 173.89 157.41 169 -0.122 Missouri 56.0 75.9 111.16 99.05 138 0.202 Montana 63.7 83.6 196.13 176.95 199 -1.827 Nebraska 56.2 82.2 123.50 115.92 179 -0.107 Nevada 43.2 84.0 152.58 136.83 154 -0.697 New Mexico 53.9 82.2 85.66 87.86 148 -1.357 New Hampshire 54.3 79.4 122.99 116.63 135 1.455 New Jersey 49.3 74.6 235.60 207.79 248 -1.006 New York 49.6 76.7 169.86 156.34 158 2.145 North Dakota 45.4 71.3 145.05 135.11 159 -0.096 North Carolina62.1 81.1 202.20 196.01 224 -1.364 Ohio 56.7 77.6 159.68 141.32 120 0.599 Oklahoma 50.4 75.4 157.78 142.74 195 -0.101 Oregon 60.2 83.9 155.95 141.50 182 0.396 Pennsylvania 52.0 76.8 130.93 117.99 104 1. 715 Rhode Island 54.4 72.7 169.33 168.19 202 -0.065 South Dakota 39.8 69.8 182.75 165.20 211 0.325 South Carolina62.0 78.3 152.68 137.34 175 -0.821

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Tennessee 46.9 65.4 125.50 115.76. 147 -1.190 Texas 45.7 74.3 116.10 97.56 124 0.795 Utah 60.8 88.2 192.70 172.77 196 -1.366 Vermont 59.4 81.8 171.52 168.59 219 -1.203 Virginia 49.5 74.3 117.90 109.45 181 -0.613 Washington 56.3 88.2 178.54 161.49 185 0.142 West Virginia 49.2 68.0 193.51 183.75 180 -0.366 Wisconsin 62.7 81.1 167.24 142.61 134 0.837 Wyoming 51.8 85.6 275.98 238.40 227 -2.355 KEY: A: Voter Participation B: Educational Level C: Revenue D: Expenditures E: Employees F: Grumm Index 173

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APPENDIX C LUTTBEG CLASSIFICATION Personal Metropolitan Income Area Elazar1 Luttbeg2 Alabama 13625 67.4 6 2 Alaska 21656 41.1 4 1 Arizona 15802 79.0 8 2 Arkansas 12901 40.1 6 2 California 19929 95.7 2 4 Colorado 17553 81.5 1 3 Connecticut 24683 92.4 3 4 Delaware 18483 66.3 4 4 District of Columbia 23491 100.0 Florida 17647 90.8 6 2 Georgia 16053 65.0 6 2 Hawaii 18472 75.5 5 1 Idaho 13707 20.4 2 3 Illinois 18824 82.7 3 4 Indiana 15779 68.5 4 4 Iowa 15487 44.0 2 3 Kansas 16498 53.8 2 3 Kentucky 13743 46.5 6 2 Louisiana 12921 69.5 6 2 Maine 16248 35.9 1 4 Maryland 21013 92.8 4 4 Massachusetts 22174 90.4 3 4 Michigan 17444 80.1 1 4 Minnesota 17657 67.7 1 4 Mississippi 11724 30.1 7 2 Missouri 16292 66.2 5 2 Montana 14078 23.9 2 3 Nebraska 15446 48.5 3 3 Nevada 19269 82.9 4 1 New Mexico 20267 56.1 2 3 New Hampshire 23778 100.0 4 4 New Jersey 13140 48.4 6 2 New York 21073 91.1 3 4 North Dakota 15198 56.7 8 2 North Carolina 13563 40.3 1 3 Ohio 16373 79.0 3 4 Oklahoma 14154 59.4 6 2 Oregon 15919 68.5 1 3 Pennsylvania 17269 84.8 4 4 Rhode Island 17950 92.5 3 4 South Dakota 13634 60.6 7 2

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South Carolina 13685 29.5 2 3 Tennessee 14694 67.7 7 2 Texas 15702 81.6 6 2 Utah 13079 77.5 1 3 Vermont 16371 23.4 1 3 Virginia 18927 72.5 7 2 Washington 17647 81.7 2 4 West Virginia 12345 36.4 6 2 Wisconsin Wyoming NOTES: 1. 2. 16449 67.4 1 4 14508 29.6 3 3 The eight categories from Figure 2.1 were numbered, moralistic equals 1, traditionalistic equals 8. States were assigned numbers as follows: 4=industrial, 3=sparsely populated, 2=southern, 1=frontier. 175

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