Freedom of information in the United States relates to the public's ability to access government records, meetings, and other information. In the United States, freedom of information legislation exists at all levels of government: federal level, state level, and local level.
Since the founding of the United States, the public's right to know the affairs of their government has been foundational democracy. James Madison wrote during the United States Constitutional Convention, "The right of freely examining public characters and measures and free communication, is the only effective guardian of every other right." [1] [2]
Several federal laws have strengthened the public's ability to access public records.
The most important was the Freedom of Information Act, signed into law on July 4, 1966, by President Lyndon Johnson.
The Holder Memo is part of series of policy memos on how federal agencies should apply FOIA exemptions. Beginning in 1977 with Attorney General Griffin Bell, and continued by Attorney General William French Smith in 1981 and Attorney General Janet Reno in 1993, U.S. Department of Justice (DOJ) has announced how the executive branch should approach FOIA, its application, and DOJ's defense of agency's actions. In other words, DOJ's position on when they would defend in a FOIA suit has seesawed for about the last three decades.
The Reno Memo [6] established a "presumption" in favor of disclosure by providing that "it shall be the policy of the Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption". It encouraged all government agencies to review FOIA requests in a manner most favorable to openness and to release information, even though it might fall within one of the nine exemption categories, if no "foreseeable harm" would result from the disclosure. The goal was to achieve the "maximum responsible disclosure".
On October 12, 2001, Attorney General John Ashcroft issued a policy memorandum on FOIA to all federal executive agencies. The AG declared the Department of Justice (DOJ) would defend agencies' decisions to withhold documents from a FOIA requester under one of the statute's exemptions "unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records".
The Ashcroft Memorandum reversed the Reno standard. Agencies were told that in making discretionary FOIA decisions they should carefully consider the fundamental values behind the exemptions—national security, privacy, government's interests, etc.—and to lean in their favor whenever possible. The Ashcroft Memo [7] with its "sound legal basis" standard encouraged (or at least seemed to support) greater use of FOIA exemptions by federal agency personnel.
This article's factual accuracy may be compromised due to out-of-date information.(February 2018) |
The Ashcroft Memo was rescinded by Attorney General Eric Holder on March 14, 2009. The AG Holder Memo [8] appears to have reinstated the Reno Memo standard and extends the policy. The policy of the executive branch is to be open, responsive, transparent, and accountable. The current memo encourages the maximum disclosure possible in discretionary exemptions and to, whenever possible, reasonably segregate exempt information and release the rest.
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All fifty U.S. states and the District of Columbia also have freedom of information laws that govern the public's access to government records at state and local levels. [9] These laws go by many different names including Sunshine Laws, Public Records Laws, Open Records Laws, etc. Additionally, Open Meeting Laws govern the public's access to meetings of public officials or appointed boards. [10]
All Freedom of Information style laws supports the ideal that in a democracy, people have the right to know the business of their government. However, the laws vary in scope and strength among jurisdictions. [1] For example, Florida's Sunshine Law creates both a statutory and constitutional right to access whereas many states only provide the statutory right. [2] Additionally, while a state may have strong legislation the state's compliance with its own laws may negatively impact the public's ability to access records. [11]
State | Freedom of Information Law | Code Section [12] | First Enacted | Who May Request Records [12] |
---|---|---|---|---|
Alabama | Alabama Public Records Law | Al. Code §§ 36-12-40; 36-12-41 | 1923 [13] | Any citizen |
Alaska | Alaska Public Records Act | A.S. §§ 40.25.110 to 40.25.125; 40.25.151 | 1900 [14] | Any person |
Arizona | Arizona Public Records Law | A.R.S. §§ 39–121.01 to 39–121.03 | 1901 [15] | Any person |
Arkansas | Arkansas Freedom of Information Act | Ark. Code Ann. §§ 25-19-101 to 25-19-111 | 1967 [16] | Citizens of the state/commonwealth |
California | California Public Records Act | Gov't Code §§ 7920.000 to 7931.000 [lower-alpha 1] | 1968 [17] | Any person |
Colorado | Colorado Open Records Act | C.R.S. §§ 24-72-200.1 to 24-72-205.5 | 1969 [18] | Any person |
Connecticut | Connecticut Freedom of Information Act | Connecticut General Statutes Chapter 14 §§ 1–200 to 1-242 | 1975 [19] | Any person |
Delaware | Delaware Freedom of Information Act | Tit. 29, §§ 10001 to 10007; 10112 | 1977 [20] | Citizens of the state/commonwealth |
Florida | Florida Sunshine Law | Fla. Stat. §§ 119.01 to 119.19 | 1967 [21] | Any person |
Georgia | Georgia Open Records Act | O.C.G.A. §§ 50-18-70 to 50-18-103 | 1959 [22] | Citizens of the state/commonwealth |
Hawaii | Uniform Information Practices Act (Modified) | Haw. Rev. Stat. §§ 92F-1 to 92F-43 | 1975 [23] | Any person |
Idaho | Idaho Public Records Act | Idaho Code §§ 74–101 to 74-126 | 1990 [24] | Any person |
Illinois | Illinois Freedom of Information Act | ILCS 5 §§ 140/1 to 140/11.6 | 1984 [25] | Any person |
Indiana | Access to Public Records Act | IN Code §§ 5-14-3-1 to 5-14-3-10 | 1983 [26] | Any person |
Iowa | Iowa Open Records Law | Iowa Code §§ 22.1 to 22.16 | 1967 [27] | Any person |
Kansas | Kansas Open Records Act | KSA §§ 45–215 to 45-524 | 1984 [28] | Any person |
Kentucky | Kentucky Open Records Act | Kentucky Revised Statute Chapter §§ 61.870 to 61.884 | 1976 [29] | From Kentucky: "an individual residing in Kentucky, a domestic business with a location in Kentucky (or an out-of-state business registered with the Secretary of State), a person who works in Kentucky, a person or business that owns real property within Kentucky, a person or business authorized to act on behalf of a Kentucky resident, or a news-gathering organization"; inmates have some restrictions; non-Kentucky people may request records, but their requests can be denied |
Louisiana | Louisiana Public Records Law | La.R.S. §§ 44:31 to 44:41 | 1940 [30] | Any person 18 or older |
Maine | Maine Freedom of Access Act | Tit. 1, §§ 400 to 434 | 1959 [31] | Any person |
Maryland | Maryland Public Information Act | Gen. Provis. §§ 4–101 to 4-601 | 1970 [32] | Any person |
Massachusetts | Massachusetts Public Records Law | Mass. Gen. Laws ch. 66, §§ 1 to 21 | 1897 [33] | Any person |
Michigan | Michigan Freedom of Information Act | Mich. Comp. Laws Ann. §§ 15.231 to 15.246 | 1977 [34] | Any person |
Minnesota | Minnesota Data Practices Act | Minn. Statutes §§ 13.01 to 13.99 Ch. 13 Appendix | 1974 [35] | Any person |
Mississippi | Mississippi Public Records Act | Miss. Code Ann. §§ 25-61-1 to 25-61-19 | 1983 [36] | Any person |
Missouri | Missouri Public Records Act | Mo. Code §§ 109.180; 610.010 to 610.225 | 1961 [37] | Citizens of the state/commonwealth |
Montana | Montana Public Records Act | Montana Code §§ 2-6-101 to 2-6-1020 | 1895 [38] | Any person |
Nebraska | Nebraska Public Records Law | Nebraska Statutes §§ 84–712 to 84-712.09 | 1866 [39] | Any person |
Nevada | Nevada Open Records Act | N.R.S. §§ 239.010-239.340 | 1911 [40] | Any person |
New Hampshire | Right to Know Law | R.S.A. Ch. 91-A:1 to 91-A:10 | 1967 [41] | Any citizen |
New Jersey | New Jersey Open Public Records Act | N.J.S.A. §§ 47:1A-1 to 47:1A-13 | 2002 [42] | Citizens of the state/commonwealth |
New Mexico | Inspection of Public Records Act | NMSA §§ 14-2-1 to 14-2-12 | 1993 [43] | Any person |
New York | New York Freedom of Information Law | Pub. Off. §§ 84 to 90 | 1974 [44] | Any person |
North Carolina | North Carolina Public Records Law | NCGS Chapter 132–1 to 132-11 | 1995 [45] | Any person |
North Dakota | Open Records Statute | NDCC §§ 44-04-18 to 44-04-32 | 1957 [46] | Any person |
Ohio | Ohio Open Records Law | Ohio Rev. Code §§ 149.43 to 149.45; 2743.75 | 1963 [47] | Any person |
Oklahoma | Oklahoma Open Records Act | Title 51 Oklahoma Statutes §§ 24A.1 to 24A.32 | 1999 [48] | Any person |
Oregon | Oregon Public Records Law | O.R.S. §§ 192.311 to 192.513 | 1973 [49] | Any person |
Pennsylvania | Right-to-Know Law | 65 Pennsylvania Statute §§ 67.101 to 67.1310 | 1957 [50] | Any legal resident of the United States |
Rhode Island | Rhode Island Access to Public Records Act | P.L. §§ 38-2-1 to 38-2-16 | 1979 [51] | Any person |
South Carolina | South Carolina Freedom of Information Act | S.C. Code Ann. §§ 30-4-10 to 30-4-165 | 1974 [52] | Any person |
South Dakota | South Dakota Sunshine Law | SDCL Chapter 1-27-1 to 1-27-48 | 2009 [53] | Any person |
Tennessee | Tennessee Open Records Act | Tenn. Code Ann. §§ 10-7-503 to 10-7-508 | 1957 [54] | Citizens of the state/commonwealth |
Texas | Texas Public Information Act | Gov't §§ 552.001 to 552.376 | 1973 [55] | Any person |
Utah | Government Records Access and Management Act | Utah Code Title 63G-2-101 to 63G-2-804 | 1991 [56] | Any person |
Vermont | Vermont Open Records Law | Vermont Statute Tit. 1, §§ 315 to 320 | 1976 [57] | Any person |
Virginia | Virginia Freedom of Information Act | Code of Virginia §§ 2.2-3700 to 2.2-3715 | 1968 [58] | Citizens of the state/commonwealth |
Washington | Washington Public Records Act | RCW §§ 42.56.001 to 42.56.904 | 1972 [59] | Any person |
West Virginia | West Virginia Freedom of Information Act | W.Va. Code §§ 29B-1-1 to 29B-1-7 | 1977 [60] | Any person |
Wisconsin | Wisconsin Open Records Law | Wisconsin Statute §§ 19.21 to 19.39 | 1981 [61] | Any person |
Wyoming | Wyoming Sunshine Law | Wyo. Stat. §§ 16-4-201 to 16-4-205 | 1983 [62] | Any person |
District of Columbia | Freedom of Information Act [63] | DC Official Code §§ 2–531 to 2-540 | 1974 [64] | Any person |
The Federal Advisory Committee Act (FACA), is a United States federal law which governs the behavior of federal advisory committees. In particular, it has special emphasis on open meetings, chartering, public involvement, and reporting. The U.S. General Services Administration (GSA) oversees the process.
The Government in the Sunshine Act is a U.S. law passed in 1976 that affects the operations of the federal government, Congress, federal commissions, and other legally constituted federal bodies. It is one of a number of Freedom of Information Acts, intended to create greater transparency in government.
The Freedom of Information Act, 5 U.S.C. § 552, is the United States federal freedom of information law that requires the full or partial disclosure of previously unreleased or uncirculated information and documents controlled by the U.S. government upon request. The act defines agency records subject to disclosure, outlines mandatory disclosure procedures, and includes nine exemptions that define categories of information not subject to disclosure. The act was intended to make U.S. government agencies' functions more transparent so that the American public could more easily identify problems in government functioning and put pressure on Congress, agency officials, and the president to address them. The FOIA has been changed repeatedly by both the legislative and executive branches.
Proposition 59 was an amendment of the Constitution of California that introduced freedom of information or "sunshine" provisions. It was proposed by the California Legislature and overwhelmingly approved by the voters in an initiative held as part of the November 2004 elections.
The National Security Archive is a 501(c)(3) non-governmental, non-profit research and archival institution located on the campus of the George Washington University in Washington, D.C. Founded in 1985 to check rising government secrecy. The National Security Archive is an investigative journalism center, open government advocate, international affairs research institute, and the largest repository of declassified U.S. documents outside the federal government. The National Security Archive has spurred the declassification of more than 15 million pages of government documents by being the leading non-profit user of the U.S. Freedom of Information Act (FOIA), filing a total of more than 70,000 FOIA and declassification requests in its over 35+ years of history.
The Freedom of Information Act 2000 is an Act of the Parliament of the United Kingdom that creates a public "right of access" to information held by public authorities. It is the implementation of freedom of information legislation in the United Kingdom on a national level. Its application is limited in Scotland to UK Government offices located in Scotland. The Act implements a manifesto commitment of the Labour Party in the 1997 general election, developed by David Clark as a 1997 White Paper. The final version of the Act was criticised by freedom of information campaigners as a diluted form of what had been proposed in the White Paper. The full provisions of the act came into force on 1 January 2005. The Act was the responsibility of the Lord Chancellor's Department. However, freedom of information policy is now the responsibility of the Cabinet Office. The Act led to the renaming of the Data Protection Commissioner, who is now known as the Information Commissioner. The Office of the Information Commissioner oversees the operation of the Act.
Public records are documents or pieces of information that are not considered confidential and generally pertain to the conduct of government.
The Reporters Committee for Freedom of the Press(RCFP) is a nonprofit organization based in Washington, D.C., that provides pro bono legal services and resources to and on behalf of journalists. The organization pursues litigation, offers direct representation, submits amicus curiae briefs, and provides other legal assistance on matters involving the First Amendment, press freedom, freedom of information, and court access issues.
Sunshine Week is a U.S. nonpartisan collaboration among groups in the journalism, civic, government and private sectors that shines a light on the importance of public records and open government. It is based at the Joseph L. Brechner Freedom of Information Project
Massachusetts Public Records Law is a law in Massachusetts detailing what kinds of documents are actually public records. It is a state law that is similar to the federal Freedom of Information Act, which was signed into law by Lyndon B. Johnson in 1966. According to the Boston Globe newspaper in 2016, "Massachusetts is currently the one state in the country where the Legislature, judiciary, and governor’s office all claim to be completely exempt from the [public records] law." Many voters would welcome more government transparency. For example, in 2020, a "ballot question in 16 house districts found overwhelming support for increasing transparency." Interest groups focusing on the issue include Act on Mass and the New England First Amendment Coalition.
EPIC v. Department of Justice is a 2014 case in the United States District Court for the District of Columbia between the Electronic Privacy Information Center (EPIC) and the U.S. Department of Justice (DOJ) where EPIC seeks court action to enforce their Freedom of Information Act request for documents that the Department of Justice has withheld pertaining to George W. Bush's authorization of NSA warrantless surveillance.
The California Public Records Act was a law passed by the California State Legislature and signed by governor Ronald Reagan in 1968 requiring inspection or disclosure of governmental records to the public upon request, unless exempted by law.
United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), was a case before the United States Supreme Court.
FOIA Exemption 3 Statutes are statutes found to qualify under Exemption 3 of the U.S. Freedom of Information Act, 5 U.S.C.§ 552(b)(3). Under its terms, as amended in 1976 and 2009, a statute qualifies as an "Exemption 3 statute" only if it "(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld." Additionally, any statute enacted after October 29, 2009, acting to exclude information release must contain a specific citation to subsection (b)(3) of the FOIA statute.
The open government laws in Florida are focused on three areas:
Federal Communications Commission v. AT&T Inc., 562 U.S. 397 (2011), was a United States Supreme Court case on aspects of corporate personhood. It held that the exemption from Freedom of Information Act disclosure requirements for law enforcement records which "could reasonably be expected to constitute an unwarranted invasion of personal privacy" does not protect information related to corporate privacy.
The FOIA Oversight and Implementation Act of 2014 is a bill that would amend the Freedom of Information Act in order to make it easier and faster to request and receive information. The bill would require the Office of Management and Budget to create a single FOIA website for people to use to make FOIA requests and check on the status of their request. The bill would also create a Chief FOIA Officers Council charged with reviewing compliance and recommending improvements. This bill would also require the federal agency to release the information it disclosed to the person who requested it publicly afterwards.
The Illinois Freedom of Information Act, 5 ILCS 140/1 et seq., is an Illinois statute that grants to all persons the right to copy and inspect public records in the state. The law applies to executive and legislative bodies of state government, units of local government, and other entities defined as "public bodies". All records related to governmental business are presumed to be open for inspection by the public, except for information specifically exempted from disclosure by law. The statute is modeled after the federal Freedom of Information Act and serves a similar purpose as freedom of information legislation in the other U.S. states.
The Illinois Public Access Counselor (PAC) is an attorney in the office of the Illinois Attorney General who is responsible for enforcing the state's Freedom of Information Act (FOIA) and Open Meetings Act (OMA). The PAC is the head of the Public Access Bureau, a group of more than one dozen attorneys who process complaints against public bodies and provide education to the public on Illinois' transparency laws.
City of Champaign v. Madigan, 2013 IL App (4th) 120662, 992 N.E.2d 629 (2013), is a case decided by the Illinois Appellate Court in 2013 concerning the state's Freedom of Information Act (FOIA). The court ruled that messages sent and received by elected officials during a city council meeting and pertaining to public business are public records subject to disclosure, even when those communications are stored on personal electronic devices. It was the first court ruling in Illinois to hold that private messages were subject to public disclosure under FOIA.
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