Public Records Denials
Transparency and openness in our national, state and local governments is a cardinal principle in our democratic system. Although the United States Supreme Court has held that there is no federal constitutional right to obtain public information,2 the right of the press to discuss and comment on such information is a fundamental and sacrosanct federal constitutional right, 3 and the Sixth Amendment of the United States Constitution provides criminal defendants the right to a public trial.4 While not a federal constitutional right, some states have established the right to obtain public records as a state constitutional right—for example, the constitutions of the states of North Dakota, 5 Montana,6 and Florida enshrine rights for access to public information. 7
Additionally, a number of politicians and policymakers have emphasized the significance of open government and the availability of the right to public information.8 Although the federal constitution does not enshrine the right to public information and records, it has been statutorily granted through the Freedom of Information Act.9 Effective since 1967, the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, is the primary applicable law that enables citizens to obtain public information from executive branch agencies of the federal government.10 On the state level, essentially every state also has a freedom of information act (“state FOIA”), public records law, or similar law that allows citizens access to public documents and records.11
Much academic scholarship has been devoted to legal issues relating to freedom of information laws, focusing upon such issues as the commercial use of FOIA requests,12 analysis of FOIA cases that proceed to trial, 13 use of the FOIA for discovery purposes, 14 and reforming the FOIA. 15 Despite this scholarship, there is a largely unexplored area in the academic literature surrounding freedom of information laws involving the sanctions or penalties that may attach to noncompliance. While it is unclear how widespread a practice it is for public records requests to be denied or completed untimely in the absence of a statutory exemption, the practice occurs.16
