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Study: State Confidentiality Laws Threaten to Muzzle Legitimate Whistleblowers

The spread of “confidentiality” laws throughout the states threatens to lock up government employees for potentially unconstitutional reasons, according to a new study by the Brechner Freedom of Information Project. The Brechner FOI Project is located at the University of Florida College of Journalism and Communications.

The paper, “Secrecy on Steroids: How Overzealous State Confidentiality Laws Expose Leakers and Whistleblowers to Retaliatory Prosecution,” was published May 16 in the University of Miami Law Review, co-authored by former Brechner FOI Project Director Frank D. LoMonte and UF law and journalism graduate Anne Marie Tamburro of the Foundation for Individual Rights and Expression, who worked on the research while enrolled at UF.

The authors argue that the “release a confidential record and go to jail” statute in Florida and other states is on questionable constitutional footing and should be narrowed to protect only documents that might realistically cause serious harm if released.

“There’s a widely documented problem with the federal government aggressively over-designating mundane documents as ‘classified,’ but our study is the first that looks at the extent of the ‘classification’ problem at the state level, where far more categories of documents are categorized as top-secret for no good reason, routine everyday documents that could harmlessly be shared with the public,” LoMonte said.

The study points out that, while “confidentiality” should logically be limited to the most highly sensitive documents that risk seriously harming people if released – such as bank account numbers or other identity-theft information – that is not how the Florida law works. Instead, due to an explosion of new freedom-of-information carve-outs in recent years, there are now at least 414 categories of information that Florida law treats as “confidential” – meaning that a state employee who releases it could be at risk of being criminally prosecuted. This includes such benign categories of documents as résumés submitted by applicants for university presidencies, marketing plans for the citrus industry, or the names of racehorses banned from Florida racetracks.

The authors point to a recent Texas case in which a journalistic blogger was arrested and charged with the crime of misusing confidential government information, just for asking questions of a police officer, to show that over-categorizing documents as “confidential” raises the risk of selective prosecution when information that portrays the government unfavorably is exposed.

Posted: May 23, 2024
Category: Brechner News
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