The federal Freedom of Information Act (FOIA) was passed in 1966, allowing public access to records and documents created by federal agencies. Since the enactment of the federal FOIA, all fifty states have realized the importance of public access.

In referring to the federal Freedom of Information Act, the Supreme Court of the United States held:

The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.

NLRB v. Robbins Tire Co., 437 U.S. 214, 242 (1978)

Enron as an Example

Scandals generated by concealment of files and government meetings are often the impetus needed for the enactment of public access laws. For example, the current Enron situation shows the public’s desire for openness and the need for government accountability. Despite frequent requests by public agencies (including the United States Congress) and the press, the Administration refuses to divulge information obtained in secret meetings with Enron.

The New York Times reports that “More than any of its recent predecessors, this administration has a penchant for secrecy. The Bush White House has steadfastly refused to tell Congress about contacts last year between corporate executives and a task force to develop energy policy headed by Vice President Dick Cheney.” It also reported strategists are getting concerned that Cheney’s response is adding to a public perception that the White House has something to hide, and a poll taken by the newspaper shows that a majority of Republicans believe that the administration has not been forthcoming about its interactions with Enron.

With scandals such as this as the driving force, states have instituted their own laws concerning access to public records and meetings. These laws are often called “sunshine laws” (when referring to open meetings) or open records laws.

State Legislation

Many states’ open records laws do not provide adequate access to government records. As shown by surveys undertaken mostly by journalists, many states fall very short of compliance. A recent study in Connecticut showed that only 10 of 68 agencies followed the law when asked to produce documents. Due to strong provisions that allow for wide-ranging access to records and documents, the language for the sample State Freedom of Information Act is Florida’s Public Records Law.

Florida’s law was passed in 1909 and, most importantly, provides that any records made or received by any public agency in the course of its official business are available for inspection, unless specifically exempted by the Legislature. The bill further mandates that a custodian of public records must honor a request for records, whether it is made in person, over the telephone, or in writing (provided the required fees are paid). In addition, nothing in the law requires the requestor to disclose the reason for the request. The custodian of a public record who contends that the record is exempt from inspection must state the basis for that exemption, including the statutory citation. Moreover, when asked, the custodian must state in writing the reasons for concluding the record is exempt.

Similar legislation has been enacted in Virginia, North Carolina, Texas and, just this year, in New Jersey. Virginia’s law, called the Virginia Freedom of Information Act (FOIA), was originally enacted in 1968. The pre-2001 statute aimed for a liberal interpretation of the law in order to improve understanding of government processes. Recent amendments have reinforced this policy by adding an affirmative proclamation that all public records and meetings are to be presumed open. Further, in 2000, a Freedom of Information Advisory Council was created to assist with, among other things, training and education about the FOIA. This amendment was passed unanimously in the Senate and overwhelmingly in the House. Virginia continues to maintain a strong tradition of open government for its citizenry.

North Carolina passed its Public Records Law in 1935. Changes to the law in 1995 allowed for greater access and instituted a policy asserting that public information compiled by North Carolina agencies is the property of the people. In keeping with this policy, the legislature mandated that copies of public records should be given to the public free or at the actual cost of reproducing the documents.

Texas has traditionally followed a robust guiding principle of open government. According to the Reporters’ Committee for Freedom of the Press, Texas’ declaration of independence from Mexico included the following statement: “[It] is an axiom in political science that, unless the people are educated and enlightened, it is idle to expect the continuance of civil liberty or the capacity for self-government.” Texas’ Public Information Act is one of the strongest acts in the country. As such, it specifically states that “…each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees.” The overriding policy stated in the Act is firm, “…that government is the servant and not the master of the people…”

New Jersey has taken the lead in 2002 and passed a new state public records law that substantially upgrades the state’s 38-year-old law. This act provides, as does the sample Freedom of Information Act, that government records are to be made available to the public unless they are determined exempt. It further provides deadlines for obtaining access to government documents and establishes a Government Records Council to mediate appeals of denials to records. However, the bill’s force was weakened with the addition of amendments providing for the exemption of disclosure of some correspondence by state legislators. The New Jersey bill had strong bipartisan support in the legislature and passed both houses unanimously. Acting Governor Donald DiFrancesco stated, after signing the legislation, “This bill is historic. This is a victory for freedom of the press, for the rights of citizens, for the very process of democracy.”