Public Records States Law in the United States

State Laws Governing Public Records

From the National Association of Counties (NACo):

Designed to allow access to governmental documents while protecting privacy rights and maintaining public safety, open records statutes vary from state to state.

Governmental agencies and officials generate data, information, and documents related to public functions. Certain materials are required to be kept by law while others are simply created in the course of an organization’s operations. Though Congress did not enact the Freedom of Information Act, which applies to federal government documents, until 1966, most states already had statutes regulating the release of public records. These vary in length from a few paragraphs to a few dozen pages. Some states’ constitutions create a constitutional right to access open records.

More differences include:

• Certain statutes define the term “person” or “individual” to include corporations, firms, associations, and other forms of organizations.
• Many states’ open records laws do not allow individuals to request materials for certain purposes or limit the subsequent use of public records.
• Some of these regulated purposes include: Commercial purposes, Political purposes, and Litigation purposes.

Whose and which records are covered under the law:

• Each statute defines the entities which are subject to its provisions slightly differently.
• Every statute applies to the executive branch overall, though some exclude the office of the governor of the state or certain executive functions.
• Likewise, no state exempts the legislative branch in its entirety, though the state legislature is sometimes subject to other rules or procedures.
• The judiciary branch is occasionally exempt and is instead subject to common law practices or constitutional provisions that open its records to the public.
• Non-governmental entities which receive public funding or have public officials as
  members are subject to some states’ open records acts.
• Multi-state or regional bodies and advisory boards or commissions are sometimes
  addressed within the statutes. Otherwise, the courts rule as to whether these entities
  must disclose records relating to public functions.
• States’ statutes also define the term “public records” in different manners.
• The format or physical characteristics of the requested record is rarely relevant to
  the openness of that record.
• Typically all records open for inspection are available for copying. A few provisions
  allow custodians to prevent the copying of any record deemed too fragile to be handled
  or too large to be copied feasibly.

Fees and costs:

○ Some public records laws create a schedule
of fees or establish a maximum fee that
custodians may charge for providing copies
of public records.

◈ Often personnel costs may only be
charged if the request is for a tailored
format or requires a substantial
amount of a public employee’s time
to compile the record or segregate
confidential information from the
public portions requested.
○ Several laws allow custodians to require
advance payment if the fee is likely to
exceed a specified amount.
○ Agencies are not generally allowed to
charge individuals for the right to inspect
records during normal business hours.
○ Fee waivers or reductions may be granted
at the discretion of the custodian in many
states. Some statutes require fees be waived
under certain circumstances.
○ Most statutes stipulate that the fees
established within the open records laws do
not supersede any other statutory provisions
dictating the charges for copies of public
records.

Nearly every state’s laws require public
agencies to charge no more than the
actual cost of providing copies of public
records. These costs may be comprised of
one or more of the following components,
depending on the statutory provisions:
▶ Actual costs of direct materials used,
▶ The cost of mailing copies of records to
the requester,
▶ Overhead costs associated with
providing copies, and
▶ Personnel costs incurred in providing
copies of records.

Enforcement and sanctions:

○ Most public records laws prescribe a
procedure for appealing denials of requests
for records. Appeals must be filed with
courts of specific jurisdictions and within a
certain time frame.
○ The attorney general or an ombudsman
may play a role in enforcement, though in
many states, requesters must pursue action
on their own behalf. Some state agencies
may have administrative processes to
mediate disputes.

○ In accordance with the presumption of
openness established by legislative intent
and judicial interpretation of states’ laws,
public agencies bear the burden of proving
that a requested record is exempt from
disclosure.

○ Court-imposed sanctions outlined within
open records statutes may include:
▶ Attorneys’ fees to a substantially
prevailing plaintiff,
▶ Actual damages or punitive damages,
▶ Civil fines against the public agency or
custodian, and
▶ Criminal sanctions including fines or
imprisonment.

Exemptions:

○ All public records laws include specific
exemptions which apply to certain types
of records, while some also contain general
exemptions to protect the public interest or
prevent invasion of privacy.
○ Most laws enable custodians to utilize
discretion to encourage a higher level of
disclosure when appropriate or feasible.
○ Often the number of exemptions is too
great to list all of them. This report offers a
few examples of categories of records which
are exempt in each state and provides
the information necessary to find other
exemptions listed within the open records
law.
○ Each act expressly exempts other records
deemed confidential by federal or state
statute. Again, this report includes a few
examples and directs the reader to where
more information may be found.
○ Following the presumption of openness,
courts have instructed agencies to construe
exemptions narrowly to favor maximum
disclosure.