Public records laws play a pivotal role in the United States’ democratic society, granting citizens and entities the right to delve into a vast repository of documents. These documents chronicle the decisions, actions, and operations of government bodies.
Why does this matter? Informed citizens are responsible voters who can hold their government agencies accountable for the use of public resources and power.
In this blog post, we will explain what Freedom of Information laws are, what records are and aren’t included, and how to request public records from government agencies.
What are Freedom of Information Laws?
Various laws govern public records across the US.
The most well-known public records law in the US is the Freedom of Information Act, or FOIA, which was established in 1967. Under FOIA, all federal agencies must release information about their agency’s activities, with only a handful of exceptions.
Each state has comparable laws for state and local governments. The names for these vary, but include things like Open Records Act, Sunshine Laws, Access to Public Records Act, and more. In addition to the different names for the laws, each state has slightly different requirements about:
- Who can request public records: Some states allow anyone to request records, while others state that only residents are eligible to submit a request.
- How long agencies have to respond to requests: Times vary from three days for simple requests under the Colorado Open Records Act, to 30 days under the Maryland Public Information Act.
- What information can be withheld or redacted
- Whether fees can be charged: Some states allow agencies to charge for the time and/or materials used to complete public records requests
- Consequences for not complying: These range from nominal fines to jail time.
What is a Public Record?
Public records are official documents, both physical and digital, created or maintained by government agencies that must be made available to the public on request. They provide a transparent account of government activities, including legislative proceedings, administrative decisions, legal transactions, and vital personal events.
Email, text messages, and other digital communications are typically considered public records in the digital age. Details vary by jurisdiction, but in general, if the content of the message relates to government business, then it’s a public record—even if the message was sent from a non-government device or account.
Let’s take a closer look at several categories of public records.
Government records offer a comprehensive view of the functioning and decision-making processes within public institutions.
Public records within the government category include:
- Session minutes
- Bills and resolutions
- Committee reports
- Executive orders
- Policy directives
- Regulatory guidelines
- Government manuals
- Public policies
- Procedural guidelines
Government Reports and Publications:
- Annual reports
- Research studies
- Statistical publications
- Audited financial statements
- Expenditure reports
- Vendor payments
- Court decisions
- Legal opinions
- Case files
- Letters and emails to and from government officials
- Communications with the public
Contracts and Agreements:
- Government contracts
- Agreements with external entities
- Procurement records
Law Enforcement Records
Within law enforcement, public records could include:
- Incident reports
- Arrest records
- Criminal investigations
- Public safety alerts
- Police logs
- Body camera footage
- 911 call transcripts
- Warrants and court rrders
- Use of force reports
- Complaints and internal affairs investigations
- Traffic citations
- Inmate records
- Forensic reports
- Surveillance records
Vital records serve essential legal and personal purposes, contributing to the accuracy and reliability of public information.
- Birth certificates
- Death certificates
- Marriage licenses
- Divorce decrees
Access to property records is vital for due diligence in real estate matters, safeguarding the interests of individuals and businesses alike.
- Real estate transactions
- Ownership deeds
- Land surveys and maps
- Lien records
- Property tax records
What Can be Withheld or Redacted from Public Records?
Certain information within public records may be withheld or redacted, a process governed by specific laws to balance transparency with the protection of sensitive details.
At the federal level, the 2022 FOIA guidelines say that agencies should apply a “presumption of openness” when determining what they can or can’t release. The 2022 guidelines emphasize the “foreseeable harm” standard, stating that agencies may only withhold information if disclosure would harm protected interests or is prohibited by specific laws.
Emphasizing the fundamental role of FOIA as a tool for citizens to understand government actions, the guidelines prioritize openness, case-by-case evaluation, and good communication in FOIA administration.
Specific laws that guide redaction vary by jurisdiction, but some general principles and examples include:
- Personal Privacy: Individuals’ health information, educational records, Social Security Numbers, and certain personally identifiable information are excluded from public records.
- National Security: The National Security Act allows the government to withhold information related to national security.
- Law Enforcement Exceptions: Law enforcement records can be withheld where disclosure could harm crime victims or compromise ongoing investigations.
- Trade Secrets and Commercial Information: The Uniform Trade Secrets Act (UTSA) protects trade secrets from disclosure in 47 states and the District of Columbia.
- Attorney-Client Privilege: Allows the redaction of information protected by the confidential relationship between an attorney and a client.
It’s crucial to note that the specifics of these laws and exemptions can vary by jurisdiction and context. Public records officers and legal professionals often play a role in determining what can be withheld or redacted.
How Can I Request Public Records?
To request public records, start on the official website of the government agency. You should be able to find downloadable forms or contact information to send your request to. Some organizations use dedicated software for public records requests, which will have a public portal with online forms for you to fill out.
If you are having trouble finding out how to request a public record, use a search engine to find out the name of the public records law in your state. Then search for the name of the agency plus the name of the public records law. For instance, if you are looking for records about Fort Collins, Colorado, you would search for “Fort Collins CORA” or “Fort Collins Colorado Open Records Act.” That search would lead you to the Fort Collins Public Records page.
It’s possible that the records you’re looking for are already published online, so you don’t even need to submit a request, as on Fort Collins’ site:
Many government agencies have established specific procedures for submitting requests, which may include guidelines on fees, processing times, and any restrictions on the types of information that can be requested. Some jurisdictions allow you to request records anonymously, while others don’t. Being aware of and adhering to these procedural intricacies is crucial to navigate the process smoothly.
When requesting a public record, provide as much information as you can about the documents you’re looking for, such as dates, names of people involved, case numbers for law enforcement requests, and so on. Overly broad requests take longer to fulfill and may run up higher costs.
After you submit your request, the agency may contact you for clarification about your request, estimated costs, or other matters. A quick response ensures that your request gets the attention it deserves.
Once your request is complete, you may receive physical photocopies, email attachments, a CD or thumb drive, or a link to download files from a file sharing service.
Public records laws serve as the linchpin for an open and accountable government, cultivating trust and collaboration between governing bodies and the public. If you work for a government agency, we know how hard you work to ensure citizens have access to the information that they need about their government.