III. Open Records

• Library: Municipal Law Deskbook (ABA) (2015 Ed.)

III. OPEN RECORDS

A. Freedom of Information Laws

Following the 1966 passage of the federal Freedom of Information Act (FOIA), any state that had not yet enacted an open records statute adopted its own version modeled after the federal FOIA. State public records laws are intended to provide individuals and groups the right to request and inspect or obtain copies of documents or records from state and local government agencies.¹⁰⁴ These laws are generally construed to favor disclosure, although as with open meetings laws, there are a variety of exemptions.

B. What Is a Public Record?

A "public record" is a term of art raising two distinct legal issues: (1) whether the format or the public body creating documents falls under the auspices of the open records laws and (2) what constitutes the origin, nature, and justification for the government's creation or acquisition of the records.¹⁰⁵

Resolving the first question is fairly straightforward since the answer is usually contained in the statute itself. In recent years, though, "public record" has been expanded through legislative changes, attorney general opinions, and case law to include electronic records, as discussed in Section IV, "Electronic Communications and Social Media." The matter, though, is far from settled since the definition of electronic records, and what falls within that definition, continuously changes with technology.

Analysis of the second issue often depends on whether the production or use of a set of documents was for the express or implied purpose of delivering essential public services.¹⁰⁶ This view has been criticized as too rigid especially since official and nonofficial agencies often work side by side in carrying out public business. Indeed some jurisdictions have ruled that given "the expanding boundaries of governmental activity" the scope of open records laws is not limited "on the purpose for which the document was produced or the function to which it relates." ¹⁰⁷ Put differently, the "author" of the record, not the "purpose" of the document, usually defines what constitutes a public record. As long as documents are produced by the government, and assuming the record does not fall under an exemption, disclosure of those records will probably be required under the FOIA. In some states the question of whether a public official's own notes to herself, made and stored on her own device or media, still constitute a public record subject to disclosure.

Records retention requirements and custodial duties are defined by statute and rarely raise issues. Moreover, most open records laws require municipalities to make publicly available specific information about its operations and structures. Most laws require a municipality to disclose basic functional information about itself, such as its operating budget, number of part-time and full-time employees, and information regarding the identification and membership of its boards, commissions, committees, or advisory councils.¹⁰⁸

C. Request Procedure and Requirements

Most states require municipalities to appoint at least one freedom of information (FOI) officer who is responsible for processing requests in a timely fashion. In many municipalities, that individual will be the municipal clerk or deputy clerk, although larger municipalities may appoint or hire separate information officers or even departments. Municipalities are encouraged to have at least two officers in case one goes on vacation, becomes ill, or otherwise cannot perform her duties. In some states, FOI officers may be required to register with the attorney general's office and be trained in enforcement and administration of the state FOI laws.

Although the government must make a diligent effort to search for records, a FOIA response is not expected to provide a full detailed affidavit of its search efforts since most open records laws are silent on this point. For example, in Rattley v. New York City Police Department the court held that "[n]either a detailed description of the search nor a personal statement from the person who actually conducted the search is required." ¹⁰⁹

Certain state laws require municipalities to establish specific procedures for requesting and responding to public records requests. For example, Iowa's FOIA law requires the following:

Procedure for providing the record with access to public records, for allowing a person to inspect government records, by which the subject of confidential record can have a copy of that record released to a third-party, procedures by which the agency shall notify persons supplying information requested by the agency of the use that will be made of the information, which persons outside of the agency might routinely be provided this information, which parts of the information requested are required and which are optional and the consequences of failing to provide the information requested.¹¹⁰

In practice, working with requestors to narrow down their FOIA requests is a double-edged sword. On one hand, a thorough research interview pinpointing the exact documents requestors have in mind can save time and effort for both parties. However, mistrustful requestors or those with an agenda may interpret the custodian's good-natured efforts as evidence that the public body is undermining their rights to freely access government information. In such cases, the officers should follow the procedures of the FOIA, advising the requestor with an estimate of time and cost to fulfill his request.¹¹¹ An obligation to disclose a record is not the same as an obligation to create one, and state laws vary on the extent to which the government must create a custom document that responds to what more closely resembles a discovery request in a lawsuit. A request for disclosure that would require the local entity to devise and apply multiple filters to a large database is one such example.

1. Timing of Response

Response time generally refers to the time frame within which a public body must either give access, ask for an extension to gather the records, or deny the request.¹¹² Failure to respond could be deemed a denial of a request giving requestors the right to file for injunctive or declaratory relief. Under Illinois law, even after receiving an extension on a FOIA request, if the government still fails to issue a response, then municipalities can lose the right to claim a request was unduly burdensome or charge copy fees.¹¹³FOI officers should closely study their open records law's timing provision, create an efficient workflow, and properly train support staff for processing requests to avoid potential timing violations.

2. Fees

Many states have fee limitations restricting the number of pages charged for FOIA requests. In Illinois, municipalities must provide the first 50 pages at no charge, and they are restricted to charging 15 cents per page after the first 50 pages. Some states have adopted specific provisions attaching fees to the retrieval of electronic information,¹¹⁴ while others limit fees to only copies of other nonelectronic data. The fees are intended to reimburse a municipality for its cost in copying the records, and they do not usually allow the municipality to charge for personnel time in searching for the records. The Florida attorney general opined that "provision of access to public records is a statutory duty imposed by the Legislature upon all record custodians and should not be considered a revenue-generating operation." ¹¹⁵

Some states provide a procedure for the waiver of fees, either upon request or for certain groups or organizations. For instance, some statutes adopted fee waivers for the indigent, members of the armed forces, and documents used to determine eligibility for veterans or pension benefits.¹¹⁶ Others allow requesters to apply for fee waivers when the request is for public benefit.

3. Responses

Municipalities have at least two options for delivering successful record retrievals, including physical copies or electronic versions of the requested records. Most record keepers are now being asked to deliver information in the format requested by the patron. Most of the issues that arise involve the practicalities of reproduction. In the case of electronic requests, the government must consider whether the requested records are available electronically in the first place. If not, they may have to...