Freedom of Information

A police officer is caught driving more than 100 miles per hour on the streets of Milton, Conn. A Virginia woman accuses a police officer of raping her when he responded to her 911 call in 2009. A man is killed by the gun of a Maine state police officer. An officer is charged with multiple sexual assaults during traffic stops in Charlotte, N.C.

The judicial branch is responsible for its share of "lost stories," as courts have found many ways to limit media access to important information. Most notably, access to immigration hearings has been virtually eliminated since Sept. 11.

From hearings for the alleged Washington, D.C.-area snipers to immigration hearings for foreign nationals the government has detained since Sept. 11, reporters trying to inform the public about the justice system are increasingly running into closed doors.

The California Public Records Act requires that the government grant prompt access to all non-exempt e-mail written to or by government officials. Government Code Section 6252 (defining “writing” covered by the PRA as including electronic mail) and 6253.9 (requiring the government to make the requested information available in any electronic format in which it holds the information). These two provisions, considered together, give meaning to the “broad” right of access to government records, which are increasingly maintained in electronic form. 88 Ops. Atty. Gen. 153.

You may try to make an informal telephone request to an agency to obtain documents. However, agencies frequently require that requests be made in writing. In fact, you establish your legal rights under FOIA only by filing a written request. (See the online FOIA Request Letter.) Once you have filed a FOIA request, the burden is on the government to release the documents promptly or to show that they are covered by one of the FOIA exemptions.

E-mail can constitute a public record, whether printed or stored electronically. 81 Op. Att’y Gen. Md. 140, 144 (1996). Access to such records depends on their content, not their form. Md. State Gov’t Code Ann. §§10-611 et. seq. (Maryland Public Information Act). Maryland’s State Archivist and the Records Management Division of the State’s Department of General Services create regulations setting standards for record retention for each state entity, including with respect to electronic records. Md. State Gov’t Code Ann. §§9-1007 and 10-632.

All documents regardless of physical form are records available for public inspection under the open records law. 51 Okla. Stat. Supp. 2005 § 24A.3.1. E-mail in either electronic or paper form is subject to the Act. 2001 Okla. Op. Att’y Gen. 7.

A recent attorney general opinion addressed various issues related to electronic communications. Communications among legislators, whether written or electronic, are not subject to disclosure because, except for financial records, the legislature and legislators are not a “public body” covered under the Oklahoma Open Records Act.

How the Sunshine Act works

Gaining access to internal investigation records after police have concluded an investigation into allegations of misconduct is a difficult issue in many states.