36. Freedom of Information Acts

For centuries, the common law has recognized the public’s right to access of public records. Access to public records has been an important component of participatory democracy and a judiciary accountable for its decisions. Thus have evolved important aspects of our legal system that we presently take for granted, such as our highly elaborate system of publication of judicial opinions, and the detailed reporting of the workings of congress.

However, this important feature of an open government can also run afoul of another important aspect of our democracy: the right to privacy. There are also matters in which the government must have the ability to exercise discretion and some degree of secrecy, both to protect actors in various government activities and to be able to set policy without risking negotiating strategies. But there are also certain matters in which a person’s involvement in government matters may be an embarrassment or may unfairly damage a person’s reputation or even compromise their safety.

Government, generally, tends to prefer a more secretive approach to governing. Not necessarily because it has secret or malicious motives, but because it is always easier to act in an official capacity if fewer people are aware of the myriad details that surround even the most mundane government business, such as negotiating a foreign trade deal, or launching an investigation of a corrupt politician. Most persons in government are happy to make public the results of their actions and policies, but are loath to release details of the discussions or negotiations about how the policy came to be made.

In 1966, the United States Congress passed the Freedom of Information Act (FOIA), for the first time creating a statutory right of public access to public records. Since that time, every state has passed its own version of FOIA. State FOIAs may not contravene any federal laws, but since the states are not custodians of any federal records, little danger exists of states allowing access to federal records that the federal government does not want to make public. State FOIAs instead deal with public access to state records.

In situations where a person desires access to public records that a government agency is unwilling to, or for procedural reasons is unable to release, the person may file a “FOIA request” with the agency or office. Most government agencies are now set up with special procedures and offices devoted to full time work on fulfilling FOIA requests. In most cases offices that keep public records have forms on which FOIA requests may be made. Individual requests are then granted or denied based on the standards of disclosure required by the statutes.

The following chart details four distinct aspects of state FOIA laws. Most state FOIAs specify that FOIA requests may be made by citizens of the state. They also specify remedies for violations of the acts. Usually, the acts provide for injunctions if an agency denies a request, or damages if an agency gives out records that it shouldn’t. State FOIA statutes are also divided on the issue of whether to allow agencies to charge money for the records given up on such a request. Some states permit agencies to charge for the time it takes to search the records and for the cost of making copies. Some states only permit an agency to charge a reasonable amount for the cost of copying them.

The most interesting aspect of the state FOIA laws are the numbers and natures of exemptions specified in the statutes. Of course, there are some states that provide no enumerated exemptions at all. In those situations, presumably, reasonableness will govern when a disclosure has violated a right to privacy. But some states, such as Hawaii, has a broad exemption statute that says that public records need not be disclosed when it would constitute a “clearly unwarranted” invasion of personal privacy. At the other extreme, the state of California’s exemption statutes enumerate dozens and dozens of specific exemptions. Every imaginable type of public record kept by every imaginable public and quasi-public agency or entity is covered in California, from records of alcoholic rehabilitation and records of podiatrists to disciplinary records of public officials. Instead of trying to list every exemption found in each state with enumerated exemptions, the chart only lists the statute numbers where the exemptions may be found. Listing all the exemptions—particularly for states like California—is, for all practical purposes, impossible.

* This chapter was compiled by Kristin Thornblad, 2007 graduate of the University of Nebraska, College of Law.