Open Records

By Douglas E. Lee, Special to the First Amendment Center Online

Updated January 2008

Although often considered one of the press freedoms guaranteed by the First Amendment, freedom of information instead is a creation of statute. The First Amendment-related philosophy behind freedom information is that a free press needs access to public information in order to do its job of informing the people.

Because freedom of information is established by statute, the public’s right to government records is frequently subject to political pressures and bureaucratic whims.

Each of the states and the District of Columbia has enacted its own open-records law. State laws control local governments’ and agencies’ policies, which may grant even more access to their records than the minimum level set by the state. As can be imagined, these laws vary in a number of ways. Generally, however, the state laws follow the basic format of the Freedom of Information Act, 5 U.S.C. Section 552, which governs access to federal records.

The FOIA was adopted in 1966 and amended significantly in 1996 to clarify citizens’ rights to federal electronic records. FOIA was most recently amended on Dec. 31, 2007, to make FOIA more user-friendly, to clarify that nonproprietary information held by government contractors is subject to FOIA and to expand the definition of “representative of the news media” to include many freelance journalists. At its core, FOIA requires federal government agencies to disclose certain types of records when requested and establishes the procedures for requesting records and responding to requests. FOIA also establishes the right to sue agencies that fail to comply with the law.

The agencies covered by FOIA are the agencies, offices and departments of the executive branch of the federal government (the Department of Defense and the Office of Management and Budget, for example), independent federal regulatory agencies (such as the Environmental Protection Agency and the Federal Communications Commission) and government-controlled corporations (the U.S. Postal Service, the Smithsonian Institution and others).

FOIA does not apply to Congress, the courts or executive staff who advise and assist the president.

At times, it seems that the exemptions in FOIA swallow the law’s disclosure requirements. Agency employees and judges can deny access to records on any of nine grounds:

  • The records “reasonably could be expected to cause damage to the national security” if disclosed.
  • The information relates solely to internal agency personnel rules and practices.
  • The documents are specifically exempted from disclosure by another statute.
  • The records contain trade secrets or other sensitive commercial or financial information obtained from a person.
  • The documents are interagency or intra-agency memoranda that concern confidential communications or that contain advice on recommendations that are part of government’s decision-making process.
  • The records contain personal information that would lead to an invasion of personal privacy if released.
  • The data was compiled for law-enforcement purposes, and release of the data would compromise a legitimate law-enforcement goal.
  • The records relate to the examination, operation or condition of financial institutions that are subject to federal regulation.
  • The documents contain geological information concerning oil and gas well locations.

The meaning and breadth of these exemptions have been the focus of countless agency reviews and hundreds of court decisions. Most of these administrative and judicial appeals result from many agencies’ almost knee-jerk denial of FOIA requests.

Occasionally, however, more legitimate issues of interpretation reach as high as the U.S. Supreme Court. Perhaps the Supreme Court’s most important FOI decision to date is its ruling in Department of Justice v. Reporters Committee for Freedom of the Press (1989), in which the Court held that criminal rap sheets are exempt from disclosure under FOIA because such disclosure would invade personal privacy. In the FOIA cases it has considered, the Supreme Court usually has sided with the government and against requesters.

Political philosophies and current events also influence the ease with which records can be obtained. Most recently, many federal agencies (and their state counterparts) have determined that the increased threat of domestic terrorism requires even more limited disclosure of many categories of documents. On Oct. 12, 2001, for example, Attorney General John Ashcroft issued an FOIA memorandum requiring that federal agencies use a “sound legal basis” standard for denying access to documents, rather than the “foreseeable harm” test used before Sept. 11.

When the proposed 2007 FOIA amendments were working their way through Congress, a provision to overturn the Ashcroft standard and restore the presumption in favor of disclosure was included in the House of Representatives version of the bill. That provision, however, was not part of the Senate bill ultimately signed by the president.

Technically, an agency is required to respond to an FOIA request within 20 days unless “exceptional circumstances” exist. Rarely, however, do agencies comply with this deadline. Courts generally have been sensitive to agency claims that the deadline is impossible to meet, often holding that a large backlog of requests constitutes an exceptional circumstance and that the agency need do no more than show it is actively processing FOIA requests on a first-come, first-served basis.

Note: Although FOIA doesn’t apply to courts, lower courts have tended to allow a right of access to court files and other court documents. These courts, however, have struggled to define the reach of that right. Courts across the country, for example, disagree about whether the news media are entitled to copies of videotapes, audiotapes and documents that are introduced as evidence. Courts also disagree about the circumstances under which it is lawful to seal settlement agreements and other court records. While courts more consistently hold that members of the press and the public are not entitled to obtain unfiled discovery materials or attend depositions, a few courts have held that discovery proceedings, including depositions, are presumptively open.