13.4 Access to information and open records laws

Access to information laws are crucial for democracy and journalism. They give the public and reporters the right to see government records, promoting transparency and accountability. These laws help uncover corruption and inform citizens about important issues affecting their lives.

Open records laws, like the federal Freedom of Information Act and state-level Sunshine Laws, set rules for accessing government documents. While there are some exemptions, these laws generally favor disclosure. Journalists use them to investigate and report on government activities, but may face challenges like fees or delays.

Access to Information for Journalists

The Importance of Access to Information in a Democracy

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• Access to information held by the government is a fundamental right in a democracy, enabling citizens to participate in decision-making and hold leaders accountable
• Journalists rely on access to public records to report on government activities, investigate wrongdoing, and inform the public about issues that impact their lives
• Lack of transparency and barriers to accessing public information can enable corruption, waste of public funds, and abuses of power to go undetected

Open Records Laws Establish the Public's Right to Access Government Information

• Open records laws, also known as freedom of information laws, establish the public's right to access government documents and data, with certain exemptions
• These laws typically have a presumption of disclosure, meaning that government records are assumed to be public unless they fall under a specific exemption
• Open records laws help promote transparency, accountability, and public trust in government institutions

Public Records Laws

Federal Freedom of Information Act (FOIA)

• The federal Freedom of Information Act (FOIA), enacted in 1966, provides the public the right to request access to records from federal agencies, subject to nine exemptions
• FOIA applies to executive branch agencies, but does not cover Congress, the courts, or the White House
• Under FOIA, any person, regardless of citizenship, can request agency records without stating a reason or justifying their request

State Open Records Laws

• All 50 states have open records laws, often called Sunshine Laws or Open Records Acts, that allow the public to access state and local government records
• While state laws vary, most have similar basic provisions as FOIA - a presumption of disclosure, requirement for agencies to respond in a timely manner, and a process to appeal denials
• Many states have laws that specifically address access to certain types of records, such as police reports, personnel files, or financial data
• Some states have stronger open records laws than others, with fewer exemptions and more stringent requirements for agencies to comply

Judicial Interpretation of Open Records Laws

• Courts have generally ruled that open records laws should be interpreted broadly, with exemptions applied narrowly, to maximize public access
• Judges often consider the legislative intent behind open records laws, which is to promote transparency and enable public oversight of government
• When faced with legal challenges, courts have ordered agencies to release records that were improperly withheld and have awarded attorney's fees to requesters who substantially prevail

Requesting Public Records

Researching and Preparing a Request

• Before submitting a request, journalists should research what records are likely to contain the needed information and which agency maintains those records
• Requests should be as specific as possible, identifying the exact documents, date ranges, names, or other details to help the agency locate responsive records
• Journalists should be familiar with the open records law that applies and cite the relevant provisions in their requests to underscore the legal obligation to disclose

Following Up and Appealing Denials

• Following up on requests is often necessary, as agencies may miss deadlines, claim no responsive records exist, assess fees, or improperly apply exemptions
• Building relationships with public records officers and demonstrating knowledge of the law can facilitate a more cooperative and timely response
• When an agency denies a request or heavily redacts records, journalists should file an administrative appeal and consider legal action if the denial is improper
• Appeals processes vary by jurisdiction but typically involve writing a letter to the agency head or a designated appeals officer arguing why the denial was improper under the law

Exemptions and Limitations to Open Records Laws

Common Exemptions to Disclosure

• While FOIA and state laws start with a presumption of openness, they contain exemptions for categories of records deemed too sensitive to release
• Common exemptions include national security, law enforcement investigations, trade secrets, personal privacy, and attorney-client privileged communications
• Exemptions for "pre-decisional" records, such as drafts and internal memos, aim to protect candid deliberations but are often overused to withhold important context
• Most open records laws require agencies to redact or segregate exempt information and release the remainder of a record where possible

Balancing Tests and Limitations

• Records can be withheld if disclosure would constitute an "unwarranted invasion of personal privacy," but privacy interests must be balanced against the public interest
• Some laws allow agencies to withhold records if the request is overly broad or burdensome, but journalists can negotiate to narrow the scope or accept records in installments
• Practically, barriers like high fees, long processing times, and the need to sue to enforce the law can hinder access even when a legal right to the records exists
• Despite these limitations, open records laws remain a powerful tool for journalists to shine a light on government activities and inform the public