Unshackling the Freedom of Information: Open Records Laws and the Right of Non-Citizen Records Access

Abstract:     
State governments often face difficult decisions regarding the inherent tension between the public’s right to access government records and the state’s interest in government efficiency; an increase in one necessarily infringes upon the other. One way in which states attempt to strike a balance between these competing interests is through restrictive provisions in state open records laws — informally referred to as “citizens-only provisions” — that explicitly grant public records access to state citizens, but provide no such access to non-state citizens. The Third Circuit and Fourth Circuit disagree as to whether citizens-only provisions are constitutional under the Privileges and Immunities Clause of Article IV, Section 2 of the United States Constitution. More specifically, the courts disagree as to whether the right to access public records is a fundamental right.

This Article suggests that the right to access public records is a fundamental right under the Privileges and Immunities Clause. Further, because citizens-only provisions fail to satisfy intermediate scrutiny, these provisions unconstitutionally infringe upon the right to access public records. However, even if citizens-only provisions are deemed unconstitutional, states are not powerless to protect themselves from the potential burdens of non-citizen records requests. To the contrary, this Article identifies several alternative methods of action that states can use in the absence of citizens-only provisions to protect their interests in efficiency. These alternatives include legislative action, charging fees for record production, and delaying response to non-citizen records requestors.

Number of Pages in PDF File: 30

Keywords: Freedom of Information, Open Records, FOIA, Records Access, Citizens-Only Provisions, McBurney v. Young, McBurney

working papers series