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 in government records.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.
Executive branch 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. Many 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 protect from disclosure information provided by private companies to the government, such as commercially sensitive or trade secret information in licensing or contract applications.
• Pre-decisional 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 pre-decisional materials are sometimes available once the agency makes its final decision.
• National security: These exemptions are intended to protect from disclosure those documents that if released could potentially harm security interests. At the federal level, these are often documents containing “classified” information.
• Attorney-client communications and attorney work product: Exemptions generally exist to protect communications between legal counsel and government entities and attorney “work product” consisting of legal opinions or analysis.
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 additional exemptions for 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 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 U.S. Supreme Court ruled that the federal law does not unconstitutionally infringe on the states’ right to govern.4
Another federal statute that exempts certain records from disclosure is the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). HIPAA protects personal health information kept by insurance companies and medical providers. Information related to a person’s physical or mental condition, the types of health care provided and payment information is confidential.
Finally, the Family Educational Rights and Privacy Act (“FERPA”) is a federal privacy law that protects student educational records from disclosure. It was initially designed to protect student grades and school disciplinary records but is often interpreted broadly by educational institutions to apply to a variety of records that in some way may refer to a student.
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 requests 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 fees. Ask for the waiver in the initial records request and list your reporting 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, insist that the agency official cite the specific statutory exemption justifying the withholding. 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. Once again, agencies must justify these deletions by referring to specific exceptions in the public records law or to some other statute. If the agency offers to release a portion of the requested information, you may 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 records.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 the electronic format in which it is maintained
Response times vary by jurisdiction. Federal agencies have 20 days in which to respond to a records request. In practice, however, this deadline is almost never met. Under the 2007 amendments to FOIA, agencies that do not respond to a request within 20 days cannot assess search fees nor can they assess duplication fees to members of the news media. The 20-day time limit can be extended in some circumstances such as when the agency requests more information from the requester, if the agency needs clarification on the request or the request is particularly voluminous.
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. Under federal law, OGIS is best utilized after a requester has exhausted all remedies under an administrative appeal. In all states and at the federal level, you also have the right to file a lawsuit 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. In some states and at the federal level, if your lawsuit is successful you may be entitled to reimbursement for attorneys’ fees and litigation costs.
2. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). For example, Florida, Louisiana, Montana, New Hampshire, North Dakota and Tennessee are among those states whose constitutions recognize a right of access to government or court documents.
3. 5 U.S.C. § 552 (2003). The Reporters Committee publishes “Federal Open Government Guide, ” which explains the law and how to use it. It is available at www.rcfp.org/fogg/index.php.
4. 18 U.S.C. §§ 2721 - 2725 (2010); Reno v. Condon, 528 U.S. 141 (2000).
5. The Reporters Committee publishes a separate guide, “Access to Electronic Records, ” updated in Winter 2008. It is available at www.rcfp.org/elecaccess.