An essential journalistic tool promoting public accountability in government decision making.

The first federal FOIA statute was enacted in 1966, taking effect in 1967. It began its life humbly as a clause in the Administrative Procedure Act, which establishes the process for federal agencies to enact regulations. In signing the first FOIA statute into law, President Lyndon Johnson declared, “This legislation springs from one of our most essential principles: a democracy works best when the people have all of the information that the security of the nation will permit.” Even then, the president's statement tellingly identified the central tension that underlies every open-records regime – the tension between an informed public and the government's ability to keep secrets in the name of public safety.

Wisconsin is credited with enacting the nation's first open-records statutes in 1848, shortly after it became a state. By the time Congress enacted the federal FOIA statute, a majority of states already had their own freedom-of-information laws; every state and the District of Columbia now has an analog to the federal statute. In a few states, including Florida and Montana, the right of access to public records is so deeply rooted in the culture that it is memorialized in the state constitution.

The Supreme Court has recognized a common-law right of access to public records, including the records of criminal judicial proceedings, in the landmark case of Nixon v. Warner Communications, Inc., 425 U.S. 589 (1978), involving a publisher's request to make duplicates of former President Nixon's incriminating White House tapes. The Court has declined, however, to find that the right of access is of constitutional dimension. Most recently, the Court in McBurney v. Young, 133 S. Ct. 1709 (2013) rejected the theory that state public-records statutes giving preference to in-state requesters violate the citizenship protections of the Privileges and Immunities Clause, finding that the preference did not burden any constitutionally recognized right.

“Records” are given a broad interpretation and include any medium in which information is memorialized. In recent years, as the storage of information has migrated from paper to electronic media, requesters have been able to gather such information as records of security access cards swiping the card-reading devices on doorways of government buildings, or – in one memorable Florida case – the records of electronic tollway passes mounted on the dashboards of police cruisers.

Access to public records has enabled journalists to break news stories of national consequence, including the Detroit Free Press' 2009 Pulitzer Prize-winning investigative series that led to the removal and corruption conviction of Detroit Mayor Kwame Kilpatrick. Using Michigan's open-records act to obtain some 14,000 text messages sent on city-owned paging devices, Free Press reporters demonstrated that Kilpatrick and his aide and lover, Christine Beatty, lied under oath at a 2007 police whistleblower trial.

Although journalists are the most avid and highest-profile users of public records, a requester need not be a journalist or furnish a journalistic justification to obtain public records. Indeed, some of the highest-profile conflicts over access to records have involved citizen activists or industries with a business need to obtain information, such as NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978), in which a manufacturer sought (ultimately, without success) to compel the National Labor Relations Board to release its files of interviews with witnesses in an impending NLRB enforcement proceeding.

The default assumption of every open-records statute is that the statute must be liberally construed in favor of openness. Accordingly, as a federal appeals court stated in the early FOIA case of Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973), “exemptions from disclosure must be construed narrowly, in such a way as to provide the maximum access consonant with the overall purpose of the Act.” With rare exceptions, the exemptions in federal FOIA and its state analogs are permissive, not mandatory, meaning that the custodian has discretion to release more than the bare minimum required by law, as the Supreme Court explained in Chrysler Corp. v. Brown, 441 U.S. 281, 293 (1979). While the federal FOIA statute has nine relatively broad categorical exemptions, state statutes commonly have dozens, often narrowly targeted to satisfy industry lobbyists; the Georgia statute, for instance, has 46 enumerated exemptions (many with multiple parts), including carve-outs for the unpublished data of university researchers and measurements of farmers' water usage. In a June 2012 report, “The state of public records laws: Access denied,” the Center for Public Integrity concluded that the proliferation of special-interest exemptions – including a commonplace one allowing government officials to withhold “draft” versions of documents or documents reflecting policymakers' “deliberative process” – has rendered the statutes largely ineffective.

A frequent source of tension between government efficiency and the public's right to know involves the investigative files of police and regulatory agencies. Exemption 7 in the federal FOIA statute, which is mirrored in nearly every state open-records law, originally permitted agencies to withhold all “records or information compiled for law enforcement purposes.” In 1974, concerned that agencies were abusing Exemption 7 to forever conceal records no longer of any practical use in ongoing investigations, Congress amended FOIA to clarify that law enforcement records could be withheld only if certain specified harms could be demonstrated, such as compromising an investigation or invading personal privacy. Notwithstanding this clarification, the breadth of the “law enforcement” exemption remains a rich vein of conflict between requesters and the custodians of records.

In an influential 1989 case, Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, the Supreme Court refused to order the FBI to disclose “rap sheets” consisting of compilations of police and court records from throughout the country. Although the contents of the rap sheets were largely already a matter of public record if a requester were able to physically canvass courthouses nationwide, the Court reasoned that those records were “practically obscure” and that making the once-inaccessible records readily available for inspection would unreasonably violate the personal privacy of those named in the files.

As the Internet makes public records more readily searchable, and more enduringly accessible beyond a single fleeting broadcast, policymakers are revisiting long-held presumptions about the openness of records that might prove harmful to individuals' reputations or traumatic to families. For instance, in 2005 the Florida legislature rapidly enacted a statutory exemption for autopsy photos after news media organizations sued to obtain records of the autopsy of legendary auto racer Dale Earnhardt, who died in a crash at the Daytona Motor Speedway. The exemption was justified in part by the possibility that a family member might be traumatized by stumbling onto the photos during an Internet search. Similarly, the proliferation of extortionate websites offering to un-publish jailhouse mug-shots for a fee led to a wave of statutory exemptions withdrawing booking photos from the public record.

In addition to the statutory exemptions, various state and federal privacy statutes have been interpreted as overriding the public's right of access. Among them is the Drivers Privacy Protection Act of 1994, 18 U.S.C. § 2721, a federal statute that prohibits the disclosure of personally identifiable information from motor vehicle records maintained by state licensing agencies. Other federal statutes that have been interpreted to override the right of access to otherwise-public documents include the Family Educational Rights and Privacy Act (student educational records) and the Health Insurance Portability and Accountability Act (medical records kept by health care providers or insurers).

In recent years, litigation has arisen around electronic messages exchanged by government employees in the course of their official duties. Access to such ephemeral messages, especially when sent on non-government-controlled devices, presents new challenges in the retrieval, retention and storage of records, to which government agencies are struggling to adapt. In an August 2015 ruling, Nissen v. Pierce County, the Washington Supreme Court determined that text messages sent and received by a county prosecutor in the course of doing government business were subject to disclosure under the state Public Records Act even if they were sent on a personally owned device outside of business hours.

Public records statutes almost never extend to the judicial branch of government and rarely to the legislative branch. A number of quasi-governmental entities – such as university fundraising foundations, public hospital authorities and lobbying associations for city and county governments – exist in a gray zone of accessibility, frequently resulting in litigation. Otherwise-private entities are not typically required to abide by open-records statutes merely because they receive substantial taxpayer money (for example, construction companies that accept government contracts, or private universities that benefit from federal financial aid). However, when a private entity performs a traditional governmental function under state supervision – such as contractually operating a prison – the courts have regarded the private actor as an “arm of the state” subject to disclosing the records of that function.

The federal FOIA statute provides a limit of 10 working days to fulfill a request, though in practice that deadline is aspirational and, due to the delay inherent in bringing a judicial challenge, of little enforceable value. A denial or refusal to respond may be appealed internally within the agency, but there, too, the statutory deadline of 20 days to respond is practically unenforceable and widely ignored. A 2007 study by the National Security Archive at George Washington University found that federal agencies were so backlogged on FOIA compliance that five of them (including the State Department, FBI and CIA) had “pending” requests dating back 15 years or longer. In a May 2015 report, the Justice Department's Office of Information Policy documented 160,000 unfulfilled federal FOIA requests that were past the statutory deadline, a spike of 70 percent over the previous year. Most state open-records statutes merely require compliance within a “reasonable time,” though a minority impose turnaround times as short as three days – which, as with the federal deadline, are seldom observed in practice.

Open-records statutes typically are enforced by way of a private civil action by an aggrieved requester. A handful of states (including Iowa, Maryland and Pennsylvania) provide state administrative remedies short of filing suit, by way of executive-branch “FOI councils” that can render interpretations of the law. But in most states, a requester's only resort is to initiate a civil complaint. Although criminal penalties are theoretically possible, prosecutions are almost unheard-of. The standard penalty for noncompliance is, at most, an order for the agency to pay the prevailing requester's attorney fees (and under many state statutes, attorney fees are awarded only upon proof that records were withheld purposefully in bad faith). Consequently, open-records statutes are widely regarded as “toothless” and easily defied. In a rare exception, the director of the Little Rock, Ark., housing authority was tried and convicted in June 2015 on a misdemeanor count of violating the Arkansas Freedom of Information Act for demanding more than $16,000 to process a newspaper's public-records request with no documentation that the charges had any basis in reality.

The accessibility of public records has increasingly been hampered by unaffordable fees beyond the reach of all but the deepest-pocketed requester. It is not uncommon for requesters to be presented with five-figure invoices – payable in advance – to cover the cost of retrieving and producing records; the scope of costs taxable to the requester varies by state and is a matter of continuing disagreement. Florida Gov. Rick Scott declared upon taking office in 2011 that agencies were to begin assessing the full cost of compliance with requests for public records including a “special service charge” for requests considered especially laborious, a directive denounced by press-rights groups as a blow to transparency. Ironically, Scott accepted an unprecedented $700,000 settlement in August 2015 to resolve a series of seven lawsuits alleging that he and the state's attorney general circumvented the state public-records law by doing state business on private email accounts and then withholding the messages in defiance of a public-records request.

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See also: Educational setting, privacy in an; Family Educational Rights and Privacy Act (FERPA); Freedom of Information Act (FOIA); Health Insurance Portability and Accountability Act (HIPPA); Law enforcement; Medical confidentiality, right to