Overview of Public Information Availability

Public information is available to citizens because of various Freedom of information legislation.  They are rules that guarantee access to data held by the state.  The Federal Freedom of Information Act and various state enacted freedom of information acts are examples of such legislation.  They establish a right-to-know legal process by which requests may be made for government-held information, to be received freely or at minimal cost, barring standard exceptions.  In the United States, governments are bound by a duty to publish and promote openness.  In many countries there are constitutional guarantees for the right of access to information, but usually these are unused if specific legislation to support them does not exist.

The Federal Freedom of Information Act (FOIA) was enacted to open the administrative process to the scrutiny of the press and the general public[i].  The statute is broadly structured, seeking to permit access to official information previously shielded from public view and attempting to create a judicially enforceable public right to secure such information from unwilling official hands.

Many states have enacted freedom of information acts[ii],open or public records acts, or right to know acts. The dominant purpose of a state public-records law is to afford the public broad access to governmental records. State freedom of information acts are remedial in nature and should be liberally construed.  Any doubt is to be resolved in favor of disclosure of records. Exemptions to such acts are to be narrowly interpreted, and the burden is on the public agency opposing disclosure. The ordinary rules of statutory construction apply to the review of freedom of information acts.

Certain state freedom of information acts have been modeled on the federal act.  For instance, the District of Columbia’s Freedom of Information Act (FOIA), like its federal counterpart, is designed to promote the disclosure of information, not to inhibit it. The FOIA was designed to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny. Broadly conceived, FOIA seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such official information from possibly unwilling official hands[iii].

When this is so, courts draw on the federal counterpart for judicial construction and legislative history.  Further, when few cases exist interpreting a particular state freedom of information act, federal cases and developments from other states are persuasive[iv].  However, state courts are not bound by cases interpreting the federal statute, and federal cases may not be persuasive where the language of a state public records act is substantially different from that of the Federal FOIA.  In some instances, federal litigation may give rise to claims arising under state freedom of information acts.  When a litigant in federal court is seeking to obtain information from an agency under state law, the state freedom of information law governs.

It has been noted that the right to access to public records is not of constitutional dimension but is derived from the common law and applicable statutes[v].  An argument has been made that the First Amendment right of freedom of the press also implies a right to gather information so that the public can be informed.  While, traditionally, the First Amendment and comparable state constitutional provisions dealing with freedom of speech and the press have not been seen as providing significant constitutional support for compelling government disclosure, some read a case dealing with the right of the public to attend a criminal trial as recognizing that the First Amendment guarantees some public right to access to public information, and some cases recognize that freedom of speech and press clauses of the federal and state constitutions support a constitutional right of access to public records.  The express provisions of some state constitutions may also mandate the disclosure of public records or require that the public’s right of access to governmental records shall not be unreasonably restricted.  The legislature may not specify certain documents to which the right to know provision of the state constitution does not apply.

[i] Pa. Dep’t of Pub.Welfare v. United States, 2001 U.S. Dist. LEXIS 3492 (W.D. Pa. Feb. 7, 2001).

[ii] Pane v. City of Danbury, 267 Conn. 669 (Conn. 2004).

[iii] Washington Post Co. v. Minority Business Opportunity Com., 560 A.2d 517 (D.C. 1989).

[iv] Kenyon v. Garrels, 184 Ill. App. 3d 28 (Ill. App. Ct. 4th Dist. 1989).

[v] Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163 (Miss. 1987).

Inside Overview of Public Information Availability