"Closing the doors in the name of security"

["Stephen Irwin" <stepheni@xxxxxxxxxxxxxxxxxxxxxx>]

Monday, February 5, 2007

Closing the doors in the name of security 
By John Henderson & Aisling Swift
The Naples (FL) Daily News


When Naples City Council went into executive session last month to discuss
homeland security, it joined a number of municipalities nationwide that are
increasingly using that broad exemption to close their doors to the public.

The issue? Homeland security.

But the nearly hourlong discussion on Jan. 17 involved a fence surrounding
the Collier County Sheriff's Office's Special Operations facility located at
Naples Municipal Airport - a fence that was publicly discussed in detail
only a month before at a televised Naples Airport Authority meeting.

On Wednesday, council will hold another closed-door session to discuss the
same issue - "domestic security."

Naples Airport Authority lawyer Joseph McMackin doesn't see any need for
private talks because the fence is plainly visible to passers-by, while City
Attorney Bob Pritt contends the law mandates that any issue involving
homeland security be discussed behind closed doors.

"There are only a couple of narrow exemptions to the open meetings law, and
that happens to be one of them," Pritt said of homeland security. "It's a
serious matter, and unfortunately, it's one of the few exemptions.

"Certain types of facilities and perimeter security are important issues,"
Pritt said, adding that the federal government takes airport fences and
confidentiality seriously because it's part of homeland security.

He wouldn't disclose what was discussed, but several council members
confirmed it was the airport fence, with a minor discussion on stormwater
drainage. Pritt was angry when he learned council members revealed general
topics, adding, "If people are talking about homeland security information
and leaking it out, that's a problem."

McMackin said he can't see how a public discussion about the airport fence
would constitute a homeland security concern that requires a private
meeting.

"My view of it was that anybody can drive by and see the fence," McMackin
said. "(Pritt) believes the fence is part of the security plan for the
airport, and therefore, it is under the umbrella of homeland security. It is
part of the security system."

McMackin said he has never found a circumstance that would compel him to
recommend that the airport authority privately discuss an airport topic as
homeland security. Florida law has very strict requirements for when a
public body can meet in private, he said, and that usually relates to
pending legal matters.

Even Naples Airport Authority Executive Director Ted Soliday questioned the
need to meet behind closed doors. Soliday, who was asked to attend, said he
couldn't talk about what was said because council declared it homeland
security.

"I think this is not the type of meeting that (the airport authority) would
have," Soliday said. "We are an agency of the state. I was concerned about
that meeting from that standpoint."

A specific exemption must be cited by city officials for an executive
session to be held, according to Assistant State Attorney General Joslyn
Wilson. None was, only homeland security. But asked later what statute it
fell under, Pritt cited statute 286.0113. That statute says executive
sessions can be held to discuss security plans.

Wilson said the state Attorney General's Office hasn't addressed the issue
of closed sessions involving homeland security, and no litigation or legal
opinions have touched on it, so outlines on what steps need to be taken
don't exist.

"There really isn't much out there," Wilson said. "I think there's a
question, but the parameters of this exemption have not come up before the
appellate court. ... If the city wants to ask us, we'll take a look at it."

In the years since the Sept. 11, 2001, terrorist attacks, many states have
enacted laws allowing closed-door sessions to discuss homeland security.
Twenty-one states' laws specifically address security concerns or building
security, according to a search of statutes in an Open Government Guide by
The Reporters Committee for Freedom of the Press, a national organization
that advocates for journalists and provides legal defense.

Missouri's law appears to be the strictest, requiring that agencies using
the exemption put in writing that disclosure of the discussions would impair
its ability to protect the public's health or safety, and that the need for
confidentiality outweighs the public's interest in disclosure. The statute
ends Dec. 31, 2008, so state leaders would have to determine whether to
continue the provision.

It wasn't the first time council had met to discuss homeland or domestic
security.

Since Sept. 11, 2001, council has gone into executive session four times for
that issue, including last month, when it discussed the issue for 53
minutes. Before that, council discussed the issue privately for 36 minutes -
including a session in November in which city officials approved provisions
to allow the airport to construct a 7-foot fence, a foot higher than city
building code allows.

On Jan. 18, 2006, council spent 13 minutes on the issue and on June 14,
2006, they discussed it for 11 minutes. The Nov. 1 session lasted 12
minutes. No minutes were taken and nothing about those talks was disclosed,
even though council approved allowing a 7-foot fence in November.

City Clerk Tara Norman said that unlike executive sessions involving
litigation, those sessions aren't under her purview, but fall under Pritt's
jurisdiction.

Closed-door meetings involving homeland security are becoming increasingly
common, according to Lucy Dalglish, executive director of The Reporters
Committee for Freedom of the Press.

"In general, what we're finding is that local governments around the country
are making liberal use of these statutes that allow them to shut down access
to public meetings when any discussion is related to homeland security - and
there is very little the public can do to engage in oversight to make sure
this is not something that is being done arbitrarily," Dalglish said.

"It's a post-9/11 trend," she added. "... You'd be astonished at what
they're able to close down these days in the name of homeland security. I am
not in the least bit surprised to hear this."

She said some states only allow discussions in private if they strictly
involve issues of security, while other state laws say that any time certain
officials are called to meetings to discuss security issues, meetings must
remain closed.

. . .

But it's what occurred in December that has people questioning the legality
of the executive session.

In the weeks before the executive session, Airport Authority member Jim
Lennane approached council twice, on Dec. 4 and Dec. 6, with a personal plea
involving Continental Aviation, his charter flight business, which will be
affected by the fence. Lennane claimed the Sheriff's Office was building a
"fortress" without concern to other airport tenants and said construction
work damaged a storage tank beneath Continental's area, and that rainwater
drainage would flow onto his area.

Councilman John Sorey pointed out that some of the issues Lennane mentioned
were discussed before by council - as homeland security behind closed doors.
Councilwoman Penny Taylor was angered to learn that council's prior actions
had caused problems.

"Even if it is deemed homeland security, I don't think it was my ...
intention that they flout our zoning (law) and damage other people's
property through construction," she said Dec. 4.

Two days later, Lennane returned to council to complain that Soliday had
issued a state of emergency due to the tank leak. Lennane was upset he was
being made a scapegoat, as if the leak was intentional; he blamed
construction trucks.

"The city of Naples should become involved in this problem," he told
council. "Ultimately, you're going to be responsible for the (federal
Environmental Protection Agency) cleanups."

Two weeks later, at a Dec. 21 Airport Authority meeting, the authority heard
an update on the sheriff's special operations facility and fence, which will
prevent the new building's 137 employees and visitors from venturing onto
the airfield. They heard detailed information about a gap in the wire fence
- a temporary fence - the height of a retention wall, stormwater drainage
issues, the height of the perimeter fence, closed-circuit monitoring of
anyone entering the property, K9 dog training times, and that dogs often are
used to scout the airport grounds.

Authority commissioners heard that a retaining wall would be 3 or 4 feet
high, and that an 8-foot fence would be erected atop it.

Lt. Mark Cherney apparently didn't think the issue was secret. The only time
Sheriff Don Hunter kept plans private, he told the authority, was when
security features inside the new facility, which houses 10 special bureaus,
including the aviation bureau and SWAT team, were discussed. That prompted
Hunter to seek a waiver from the Naples Design Review Board process to keep
secret the building's security design and operations features.

"It remains imperative that project plans be kept from becoming public
record," Cherney told the authority, adding that Hunter's request was
unanimously approved in June 2004. He added that SWAT teams are considered
part of homeland security.

Authority commissioners also discussed how the fence would affect
Continental Aviation, whether wings on Lennane's larger planes would hit it,
and whether the fence was needed. That meeting was televised and is
available on the Internet.

. . .

To hold an executive session, state law requires that an announcement be
made about how long the session will take and who it will involve. It also
mandates that a statute, for confidentiality, must be cited. None of that
occurred, although an announcement that a session would be held was made at
council's Jan. 15 workshop and then again the day they went behind closed
doors.

The executive session began at 11:57 a.m. and ended at 12:50, when council
adjourned. Those involved included Pritt, Soliday, City Manager Bob Lee,
Naples Public Works Director Dan Mercer, Community Development Director
Robin Singer, and Erv Dehn, the airport's director of planning and
engineering.

Mayor Bill Barnett, who left before the executive session, confirmed that
discussions involved the airport fence, as did Vice Mayor Johnny Nocera, who
chaired the session, and Councilman Bill MacIlvaine, who didn't consider
drainage to be a large issue.

"It happened to be mentioned, but I don't consider that was why we were
there," MacIlvaine said, adding that the discussion, as a whole,
legitimately involved homeland security. "We have to do our best to protect
our people and our facilities from outside attack."

Councilman Bill Willkomm conceded talks did touch on a "peripheral
discussion" about stormwater, involving "something that needed to be done."
But he questioned why the authority discussed the fence publicly and said he
even asked city officials why the authority meeting was still available on
the Internet.

It was an e-mail by Willkomm, who contended the 12-foot fence violated city
code, that prompted the meeting; code allows a 6-foot fence. City officials
would not provide that e-mail to the Naples Daily News, saying it's not an
open record because it involves homeland security.

However, Willkomm said he watched the airport authority meeting and heard
that the fence was higher than code allowed, so he wrote to the city manager
to say city approval was needed. "That's not legal. They can't just do it on
their own," he said he wrote.

"That's when the hysteria started," Willkomm said. "Where it stands now is
I'm not allowing them to build a 12-foot fence unless they have proof from
the federal government."

Willkomm said he was angry because the airport and Sheriff's Office should
have known better - a waiver from city building codes was required for the
7-foot fence around the airport property. "This is 5 feet higher," he said.
"If they want it, we have to grant a variance."

The U.S. Transportation Security Administration's "Recommended Security
Guidelines for Airport Planning, Design and Construction" calls perimeter
fences the "first line of defense" in providing security. The inch-thick
guidelines, which are suggestions, not mandates, says fences should be 7
feet high, with 1 foot of barbed wire. The guidelines don't address
confidentiality - and are easily available on the Internet.

Airport Authority spokeswoman AnneElena Foster said airport officials
question the need for an executive session because nothing secret - or
exempt - was being revealed. Florida law says an aviation authority
determines what is security-sensitive information for its airport, she said.

"You can close a meeting and you can seal the record, but you can't just not
have a record, so we're pretty uncomfortable about that," she said, adding
that those records are made available to state or federal agencies to use in
their efforts against terrorism.

Airport officials didn't question the earlier executive session involving
the fence, she said, because they thought it was an isolated event. Foster
also pointed out that Florida's Sunshine law exemptions don't apply to parts
of security plans that are already generally known.

"We have locks on our doors; we have a fence around our airfield," she said.
"We have security personnel on patrol. We want the public to know these
things. Just because something is a deterrent to illegal activity doesn't
make it security sensitive."

The Reporters Committee's Dalglish said no one will ever know if
confidentiality was necessary, but it depends on what details about the
security system were discussed. Access points, fence construction and type,
and security cameras would be confidential, she said, but if talks ventured
into stormwater drainage, council should have discussed that publicly.

"There's always a risk when public bodies do this sort of thing - and that's
why it's risky," she said.

Pritt understands the media's concern that by citing "homeland security," a
meeting can be closed to the public - and that could be abused. "My answer
is: 'I hope not,' " he said. "I don't think it was being misused or abused
and I stand behind that. ... It's certainly not my intent to shut the public
out."

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