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Freedom of information acts: Freedom of information laws

Although the U.S. Supreme Court has recognized a First Amendment right of access to government records in limited situations and a few states have enshrined a right of access in their state constitutions, statutes and the common law are more frequently invoked to create a presumption of openness.²

The jurisdiction of the agency determines which freedom of information law applies. State open records laws cover most state agencies. In some states, nongovernmental entities that receive public funds or perform a governmental function also are subject to the disclosure laws.

Agencies of the federal government are covered by the federal Freedom of Information Act.³ The law does not apply to other entities that receive federal funds.

No government — state or federal — maintains a centralized system of access to information, so you must direct your requests to the agency in possession of the documents you seek. Although a growing number of states and counties have contracted with private companies to provide electronic access to records, the agency or local government generally remains responsible for complying with access laws.

Most open records laws are based on the presumption that everything is public, unless specifically exempted. Some states specify certain categories of information that always are public. Most exceptions to public access are subject to agency discretion, so you always can try to convince officials that it would be in the public's interest to release the requested information. In most states, only a few specifically designated types of records are required to be kept secret.

The number and kinds of exemptions vary from state to state, but state and federal laws usually have exemptions for:

• Personal privacy: Some states have specific exemptions for personnel, medical and similar files. In other states more general exemptions for "privacy" apply.

• Law enforcement and investigative files: These may be exempt across the board, or may resemble the federal statute, which permits information to be withheld only when some specified harm to the investigation or an individual involved would result from disclosure.

• Commercially valuable information: These exemptions usually seal information provided by private companies to the government, such as sensitive information in licensing or contract applications.

• Predecisional documents: These exemptions are designed to allow staffers to debate alternatives frankly and openly before an agency reaches a final decision. Final agency action, however, rarely can be withheld from the public, and predecisional materials are sometimes available once the agency makes its final decision.

Other common exceptions at the state level cover information relating to government acquisition of real estate, library circulation records, civil service examinations and answer keys, and student records.

Federal law includes exemptions for national security, information relating to banking or financial institutions, and oil and gas wells. Under the federal and all state laws, legislatures may enact specific statutes exempting additional classes of documents from the public access laws.

For instance, the federal Driver's Privacy Protection Act forced state legislatures to restrict access to information maintained by their state motor vehicles department except in certain specified circumstances. The Supreme Court ruled that federal law does not infringe on the states' right to govern in any unconstitutional way.⁴

In many states, citizens may simply ask to inspect and copy records during regular business hours. In others, and in federal agencies, requesters must put their inquiries in writing.

Although many states will honor oral requests, making your request in writing is often the only way to trigger your statutory rights. Whether your request is oral or written, be sure to cite to the relevant open records law. This helps the custodian of the record who processes your request to better understand what you want and give your request serious consideration.

You may have to pay for the copies of records you receive. A deposit also may be required before the records custodian will process a large request. Some states allow agencies to charge for the time it takes their employees to locate the documents, in addition to the actual copying costs. Under the federal law and some state laws, reporters are entitled to partial or full fee waivers, especially if their requests will directly benefit the public. The federal law entitles reporters to an automatic waiver of all search fees and the first 100 pages of copying. Ask for the waiver in the record request and list your credentials to document your eligibility for the waiver. Although many statutes establish fee schedules that charge commercial requesters a higher fee, newsgathering generally is not considered to be a commercial use of the information.

If your request is denied, ask the agency official to cite an exemption justifying the withholding. If the agency offers to release a portion of the requested information, it is advisable to accept partial access and resolve the remaining issues subsequently.

The physical form of the record is generally not an issue; computerized data should be accessible as well as paper.⁵ Although government bodies generally are not required to create new documents, records custodians usually — but not in all states — are required to search electronic databases in response to a request. If the document exists in electronic form, the custodian usually is also required to make it available to the requester in an electronic format.

Most states require agencies to separate exempt information from non-exempt material. Therefore, you may get a document in which certain information has been blacked out. The agencies must justify these deletions by referring to specific exceptions in the public records law or to some other state statute.

In a few states and under the federal law, if your initial request is denied, you must appeal to a higher official within the agency. In other states you must appeal to a special FOI appeals commission. In all states and at the federal level, you have the right to file suit in court to enforce your rights to obtain government information. Some states allow the state's attorney general to bring a suit against the records custodian to enforce compliance with the law.

Notes 2. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). Florida, Louisiana, Montana, New Hampshire, North Dakota and Tennessee are among those states whose constitutions recognize a right of access to government documents.

3. 5 U.S.C. § 552 (2003). The Reporters Committee publishes "How to Use the Federal FOI Act," which explains the law and how to use it. It is available at www.rcfp.org/foiact.

4. 18 U.S.C. §§ 2721 - 2725 (2003); Reno v. Condon, 528 U.S. 141 (2000).

5. The Reporters Committee publishes a separate guide, "Access to Electronic Records," updated in Spring 2003. It is available at www.rcfp.org/elecaccess.

Next section: Freedom of information acts: Sunshine laws