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