Abstract

http://ssrn.com/abstract=2158903
 


 



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


William Scott Kimberly


Seattle University School of Law

August 26, 2012


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

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Date posted: October 9, 2012 ; Last revised: March 13, 2014

Suggested Citation

Kimberly, William Scott, Unshackling the Freedom of Information: Open Records Laws and the Right of Non-Citizen Records Access (August 26, 2012). Available at SSRN: http://ssrn.com/abstract=2158903 or http://dx.doi.org/10.2139/ssrn.2158903

Contact Information

William Scott Kimberly (Contact Author)
Seattle University School of Law ( email )
901 12th Avenue, Sullivan Hall
P.O. Box 222000
Seattle, WA n/a 98122-1090
United States
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