Public records

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Public records are documents or pieces of information that are not considered confidential and generally pertain to the conduct of government.

Contents

Depending on jurisdiction, examples of public records includes information pertaining to births, deaths, marriages, and documented transaction with government agencies.

Attitudes and expectations about what information should be made public have been studied. [1]

History

Since the earliest organised societies, with taxation, disputes, and so on, records of some sort have been needed. In ancient Babylon records were kept in cuneiform writing on clay tablets. In the Inca empire of South America, which did not have writing, records were kept via an elaborate form of knots in cords, quipu, whose meaning has been lost.

In Western Europe in the Late Middle Ages public records included census records as well as records of birth, death, and marriage; an example is the 1086 Domesday Book of William the Conqueror. [2] The details of royal marriage agreements, which were effectively international treaties, were also recorded. The United Kingdom Public Record Office Act, which formalised record-keeping by setting up the Public Record Office, was passed in 1838. [3]

Public records

Access to public records

Although public records are records of public business, they are not necessarily available without restriction, although Freedom of Information legislation (FOI) that has been gradually introduced in many jurisdictions since the 1960s has made access easier. Each government has policies and regulations that govern the availability of information contained in public records. A common restriction is that data about a person is not normally available to others; for example, the California Public Records Act (PRA) states that "except for certain explicit exceptions, personal information maintained about an individual may not be disclosed without the person's consent". [4] For example, in California, when a couple fills out a marriage license application, they have the option of checking the box as to whether the marriage is "confidential" (Record will be closed, and not opened to public once recorded) or "public" (record will become public record once recorded). Essentially, if the marriage record is public, a copy of the record can be ordered from the county in which the marriage occurred. [5] [ dead link ]

In the United Kingdom, Cabinet papers were subject to the thirty-year rule: until the introduction of FOI legislation, Cabinet papers were not available for thirty years; some information could be withheld for longer. As of 2011 the rule still applies to some information, such as minutes of Cabinet meetings.

Some companies provide access, for a fee, to many public records available on the Internet. Many of them specialize in particular types of information, while some offer access to different types of record, typically to professionals in various fields. Some companies sell software with a promise of unlimited access to public records, but may provide nothing more than basic information on how to access already available and generally free public websites. [6]

Each year news media, civic groups, libraries, nonprofits, schools and other interested groups sponsor "Sunshine Week." Sunshine Week occurs in mid-March, coinciding with James Madison's birthday and National Freedom of Information Day on the 16th. [7] The purpose of the week is to highlight the idea that "government functions best when it operates in the open." [8]

In many states, state legislatures are often exempt from public-records laws that apply to state executive officials and local officials. In 2016, the Associated Press made a request for the emails and daily schedules of state legislative leaders (speakers of state Houses and presidents of state Senates) in all 50 states; a majority denied the request. [9]

Court records

Of particular significance was the evolution of the common-law right "to access court records to inspect and to copy". The expectation inherent in the common law right to access court records is that any person may come to the office of the clerk of the court during business hours and request to inspect court records, with almost instantaneous access. Such right is a central safeguard of the integrity of the courts. Any decision to conceal court records requires a sealing order. The right to access court records is also central to liberty: There is no conceivable way to exercise the Habeas Corpus right, deemed by the late Justice Brennan as "the cornerstone" of the United States Constitution, absent access to court records as public records.[ citation needed ]

In the United States the common law right to "access court records to inspect and to copy" was reaffirmed by the U.S. Supreme Court in Nixon v Warner Communications, Inc (1978), where the court found various parts of the right to access court records as inherent to the First, Fourth, Sixth, and Fourteenth Amendments. In the United States access to court records is governed by Civil Rights in the Amendments to the United States Constitution, not by the Freedom of Information Act.

As court records become increasingly more accessible online, concerns about the undermining of private information has become a significant issue. In the past, obtaining court records required people to physically go to a courthouse and request documents. However, with the relative ease at which people can now access these records, highly sensitive information (i.e. victim names, social security numbers, etc.) are at risk of being publicly exploited. [10]

In the United States

Access to U.S. national public records is guided by the Freedom of Information Act (FOIA). Requests for access to records pursuant to FOIA may be refused by federal agencies if information requested is subject to exemption, or some information may be redacted (deleted).

In addition to the national FOIA, all states have some form of FOI legislation. For example, Colorado has the Colorado Open Records Act (CORA); [11] in New Jersey the law is known as the Open Public Records Act (OPRA). [12]

There are many degrees of accessibility to public records between states, with some making it fairly easy to request and receive documents, and others with many exemptions and restricted categories of documents. One state that is fairly responsive to public records requests is New York, which utilizes the Committee on Open Government to assist citizens with their requests. [13] A state that was fairly restrictive in how they respond to public records requests is Pennsylvania, where the law formerly presumed that all documents are exempt from disclosure, unless they can be proven otherwise. [14] This was changed by a 2008 bill that went into effect in 2009. [15] The California Public Records Act (California Government Code §§6250-6276.48) covers the arrest and booking records of inmates in the State of California jails and prisons, which are not covered by First Amendment rights (freedom of speech and of the press). Public access to arrest and booking records is seen as a critical safeguard of liberty.[ citation needed ]

Uses of public records

With the advent of the Internet and the information age, access to public records in the United States to anyone who wishes to view them has dramatically increased. Third parties such as the information broker industry make regular use of public records to compile readily accessible profiles on millions of people, and may make a profit from the service of recompiling and mining the data.

Public record data is used for multiple purposes, such as ensuring that child support payments are made as determined by the courts, [16] assisting credit bureaus in keeping accurate data [17] and helping to pay pension benefits to retirees. [18]

Access to criminal records in the United States

Individual criminal histories are generally considered to be public records in the United States and are often accessed via criminal history background checks, but "access and use of FBI-maintained criminal history record information has been traditionally limited and controlled in large measure to protect the privacy of the individuals to whom the records pertain." [19] The federal Fair Credit Reporting Act imposes "fair information-practice requirements by consumer reporting agencies that report public record information, such as criminal history records, for employment purposes", and some state consumer-protection laws impose more restrictive regulations. [20]

According to the Reporters' Committee for Freedom of the Press, in the United States, arrest records "are generally open to the public unless they concern an active or ongoing investigation. A few states restrict the information that can be obtained from an arrest record, especially when it concerns individuals who were never charged, were acquitted or had their records expunged. Again, the determination will often result in a balancing test comparing the public's interest in disclosure against the individual privacy interest." [21] By contrast, protective custody and juvenile delinquency records are exempted from most state open-records laws, such that access is "limited to the juvenile, his or her parents or guardians, or other parties directly involved in a legal matter." [22]

Destruction of public records

In early 2018, the National Archives put up a webpage, "Unauthorized Disposition of Federal Records", to publish all instances of investigations into possible unauthorized destruction of records. [23]

See also

Related Research Articles

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 the federal level and at the local level.

Freedom of information laws allow access by the general public to data held by national governments and, where applicable, by state and local governments. The emergence of freedom of information legislation was a response to increasing dissatisfaction with the secrecy surrounding government policy development and decision making. In recent years Access to Information Act has also been used. 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. Also variously referred to as open records, or sunshine laws, governments are typically bound by a duty to publish and promote openness. In many countries there are constitutional guarantees for the right of access to information, but these are usually unused if specific support legislation does not exist. Additionally, the United Nations Sustainable Development Goal 16 has a target to ensure public access to information and the protection of fundamental freedoms as a means to ensure accountable, inclusive and just institutions.

Electronic Privacy Information Center (EPIC) is an independent nonprofit research center established in 1994 to protect privacy, freedom of expression, and democratic values in the information age. EPIC is based in Washington, D.C. EPIC's mission is to secure the fundamental right to privacy in the digital age for all people through advocacy, research, and litigation.

The "thirty-year rule" is the informal name given to laws in the United Kingdom, the Republic of Ireland, and the Commonwealth of Australia that provide that certain government documents will be released publicly thirty years after they were created.

Civil liberties in the United States are certain unalienable rights retained by citizens of the United States under the Constitution of the United States, as interpreted and clarified by the Supreme Court of the United States and lower federal courts. Civil liberties are simply defined as individual legal and constitutional protections from entities more powerful than an individual, for example, parts of the government, other individuals, or corporations. The explicitly defined liberties make up the Bill of Rights, including freedom of speech, the right to bear arms, and the right to privacy. There are also many liberties of people not defined in the Constitution, as stated in the Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

<span class="mw-page-title-main">Freedom of Information Act (United States)</span> 1967 US statute regarding access to information held by the US 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, state, or other public authority 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.

<span class="mw-page-title-main">2004 California Proposition 59</span> Amendment of the Constitution of California

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.

<span class="mw-page-title-main">National Security Archive</span> Open government advocacy and investigative journalism nonprofit at George Washington University

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.

In United States law, the term Glomar response, also known as Glomarization or Glomar denial, refers to a response to a request for information that will "neither confirm nor deny" (NCND) the existence of the information sought. For example, in response to a request for police reports relating to a certain individual, the police agency may respond with the following: "We can neither confirm nor deny that our agency has any records matching your request."

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.

<i>Access to Information Act</i> Canadian freedom of information act

The Access to Information Act or Information Act is a Canadian Act providing the right of access to information under the control of a federal government institution. As of 2020, the Act allowed "people who pay $5 to request an array of federal files". Paragraph 2. (1) of the Act ("Purpose") declares that government information should be available to the public, but with necessary exceptions to the right of access that should be limited and specific, and that decisions on the disclosure of government information should be reviewed independently of government. Later paragraphs assign responsibility for this review to an Information Commissioner, who reports directly to parliament rather than the government in power. However, the Act provides the commissioner the power only to recommend rather than compel the release of requested information that the commissioner judges to be not subject to any exception specified in the Act.

Sunshine Week is a national initiative spearheaded by the News Leaders Association to educate the public about the importance of open government and the dangers of excessive and unnecessary secrecy. It was established in March 2005 by the American Society of News Editors, now known as the News Leaders Association, with funding from the John S. and James L. Knight Foundation.

Investigative Data Warehouse (IDW) is a searchable database operated by the FBI. It was created in 2004. Much of the nature and scope of the database is classified. The database is a centralization of multiple federal and state databases, including criminal records from various law enforcement agencies, the U.S. Department of the Treasury's Financial Crimes Enforcement Network (FinCEN), and public records databases. According to Michael Morehart's testimony before the House Committee on Financial Services in 2006, the "IDW is a centralized, web-enabled, closed system repository for intelligence and investigative data. This system, maintained by the FBI, allows appropriately trained and authorized personnel throughout the country to query for information of relevance to investigative and intelligence matters."

<span class="mw-page-title-main">California Public Records Act</span> Freedom-of-information law in California, US

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.

<span class="mw-page-title-main">Open Government Initiative</span>

The Open Government Initiative is an effort by the administration of President of the United States Barack Obama to "[create] an unprecedented level of openness in Government.". The directive starting this initiative was issued on January 20, 2009, Obama's first day in office.

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.

<span class="mw-page-title-main">FOIA Oversight and Implementation Act of 2014</span>

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.

McBurney v. Young, 569 U.S. 221 (2013), was a United States Supreme Court case in which the Court upheld Virginia and all states' right to restrict citizen requests for state government documents to citizens of that state.

<span class="mw-page-title-main">Illinois Freedom of Information Act</span> Public records law in Illinois

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.

References

  1. ↑ Martin, Kirsten E.; Nissenbaum, Helen (2016). "Privacy of Public Data". SSRN Electronic Journal. doi:10.2139/ssrn.2875720. ISSN   1556-5068. S2CID   152240152.
  2. ↑ "BBC - History - British History in depth: The Domesday Book". www.bbc.co.uk.
  3. ↑ Archives, The National. "The National Archives - Homepage".
  4. ↑ California Public Records Act Archived 2015-12-16 at the Wayback Machine CA Codes (gov:6250-6270) - Official California Legislative Information
  5. ↑ "Article from Public Records 101"
  6. ↑ "What is public records technology?". legal.thomsonreuters.com. Retrieved 2021-03-23.
  7. ↑ "Sunshine Week". Sunshine Week. Retrieved 13 March 2016.
  8. ↑ Dukes, Tyler (13 March 2016). "Sunshine Week to celebrate government transparency". WRAL. Retrieved 13 March 2016.
  9. ↑ Lieb, David A. (March 14, 2016). "Many state legislatures exempt themselves from record laws". Associated Press.
  10. ↑ Ardia, David S. (2017). ""Privacy and Court Records: Online Access and the Loss of Practical Obscurity."". University of Illinois Law Review 2017. 4.
  11. ↑ Colorado Open Records Act Archived August 3, 2007, at the Wayback Machine
  12. ↑ "Open Public Records Act". www.nj.gov.
  13. ↑ "Committee on Open Government". Open Government.
  14. ↑ Pa.'s open secret By Dimitri Vassilaros(July 27, 2007)- Pittsburgh Tribune-Review
  15. ↑ "Pennsylvania's New Right to Know Law" (PDF). Pennsylvania Office of Open Records.
  16. ↑ Office of Child Support Enforcement FY 2005 Annual Report to Congress May 2008
  17. ↑ "Prepared Statement of the Federal Trade Commission On Identity Theft and Social Security Numbers". Federal Trade Commission. Jul 1, 2013.
  18. ↑ "Waysandmeans.house.gov". Archived from the original on Dec 28, 2006.
  19. ↑ THE ATTORNEY GENERAL'S REPORT ON CRIMINAL HISTORY BACKGROUND CHECKS, U.S. Department of Justice, Office of the Attorney General, June 2006, p. 95.
  20. ↑ The Attorney General's Report on Criminal History Background Checks, U.S. Department of Justice, Office of the Attorney General, June 2006, pp. 1-2.
  21. ↑ "Private Eyes: Confidentiality issues and access to police investigation records" (PDF). Reporters Committee for Freedom of the Press. Archived from the original on 2016-10-06.
  22. ↑ Juvenile Records, Reporters' Committee for Freedom of the Press.
  23. ↑ Howard, Alex (24 April 2018). "National Archives publishes online dashboard of its investigations into lost, altered or destroyed public records". Sunlight Foundation. Retrieved 25 May 2018.

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