Open Records

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Georgia’s Open Records Act was first enacted on Feb. 27, 1959, several years before the passage of the federal Freedom of Information Act. The Act is now codified at O.C.G.A. § 50-18-70, et seq., and last underwent substantial revision in 2012.

Idaho’s Public Records Act (Idaho Code §§ 74-101 through 126) can now be found within the larger Transparent and Ethical Government Act, Title 74, Idaho Code.

Since its enactment in 1967, the Iowa Open Records Act, Iowa Code Chapter 22, has sought to impose openness and accountability mandates on state and local agencies (but not the legislature) by requiring them to permit public access to information and records in the possession of a governmental agency or otherwise “of or belonging to” that body.  The General Assembly’s 1967 Act has been watered down consistently in the 50 years since passage—the act now contains 73 exemptions to disclosure and covers important public records such as drafts. See Iowa Code § 22.7.

The open records act was enacted in response to citizen complaints about the denial of access to public records. Note, Iowa's Freedom of Information Act: Everything You've Always Wanted to Know About Public Records But Were Afraid to Ask, 57 Iowa L. Rev. 1163, 1166 (1972). Prior to its adoption, case law held that "Not every document which comes into the possession or custody of a public official is a public record." Linder v. Eckard, 152 N.W.2d 833, 835 (Iowa 1967).

Modern Iowa law, practice, and public policy make clear that disclosure of government records and information serves the needs and interests of the State and its people.  This follows because the open records act and the cases applying and enforcing it: (i) start with a presumption of openness, and (ii) favor results that enhance the public’s ability to stay informed about governmental activities, the citizenry’s right to hold officials accountable and the taxpayers’ prerogative to know how agencies spend their money.

Thus, Iowa’s public policy goals, as enunciated in Chapter 22, provide an essential backdrop to the access statute.  The open records act expressly declares “that free and open examination of public records is generally in the public interest even though such examination may cause inconvenience or embarrassment to public officials or others.”  Iowa Code § 22.8(3).

The open records act “is designed ‘to open the doors of government to public scrutiny’” and “to prevent government from secreting its decision-making activities from the public, on whose behalf it is its duty to act.”  Gannon v. Bd. of Regents, 692 N.W.2d 31, 38 (Iowa 2005) (citations omitted); Ne. Council on Substance Abuse, Inc. v. Iowa Dep’t of Pub. Health, 513 N.W.2d 757, 759 (Iowa 1994).  The statute “invites public scrutiny of the government’s work, recognizing that its activities should be open to the public on whose behalf it acts.”  Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 45 (Iowa 1999) (citations omitted).

Under Chapter 22, “every person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record.” Iowa Code § 22.2.  The paramount public interest in securing access to government information is reinforced by the penalty provisions within the open records act.  Id. § 22.6.

Exemptions in the statute create categories where the lawful custodian may elect to keep public records confidential.  Id. § 22.7.  The rules for interpreting the scope and application of those exemptions are well settled.  The open records act “establish[es] a liberal policy of access from which departures are to be made only under discrete circumstances.”  Howard v. Des Moines Register & Tribune Co., 283 N.W.2d 289, 299 (Iowa 1979); see also City of Dubuque v. Tel. Herald, Inc., 297 N.W.2d 523, 526 (Iowa 1980) (“It is plain that our analysis must start from the premise that [the Act] is to be interpreted liberally to provide broad public access to * * * public records.”).

Exemptions are not designed to defeat the evident purpose of the statute, as the “legislature intended for the disclosure requirement to be interpreted broadly, and for the . . . exceptions to be interpreted narrowly.”  DeLaMater v. Marion Civil Serv. Comm’n, 554 N.W.2d 875, 878 (Iowa 1996).  “Disclosure is favored over non-disclosure, and exemptions from disclosure are to be strictly construed and granted sparingly.”  US West Commc’ns, Inc. v. Office of Consumer Advocate, 498 N.W.2d 711, 713 (Iowa 1993).

However, an emerging trend involving statutory construction of the act questions if, when the plain text of an exemption is clear and precise, any balancing of interests is appropriate and courts instead should enforce the confidentiality provisions without consideration of competing values.  Am. Civil Liberties Union Found. of Iowa, Inc. v. Records Custodian, Atlantic Cmty. Sch. Dist., 818 N.W.2d 231, 236 (Iowa 2012).

Kentucky’s Open Records Act is codified at Ky. Rev. Stat. 61.870 to 61.884.

A complete copy of the Mississippi Open Records Act is available at:

http://www.ethics.state.ms.us/ethics/ethics.nsf/PageSection/A_records_entire_pub_rec_act/$FILE/Public%20Records%20Act_7.14.17.htm?OpenElement

Article II, Section 9 of the Montana Constitution creates a presumption that all records of any governmental entity be open for public inspection. This presumption can only be overcome if the entity establishes that the demands of individual privacy clearly exceed the merits of disclosure.

Public records have a long history in Ohio. The Ordinance of 1787, which Congress passed in 1787, governed Ohio before it became a state. The Ordinance required Congress to appoint a secretary for the Northwest Territory, which included Ohio. The secretary's duties included keeping and preserving "the public records" of the territory.

Long before 1963, when Ohio's General Assembly enacted the public records statute, Ohio courts recognized a common law right of the public to inspect and copy governmental records. At about the turn of the century, an Ohio court in Cincinnati recognized that unrestricted public access to governmental records was one of the elements distinguishing American government from the government of England. The court stated:

In England the fountainhead of justice is the king. . .. The courts are his courts, and the government is his government. Whatever power the people have he has granted to them; and if no grant has been made to them to examine the public records, it may well have been in England that they have no such power.

But in this country . . . the people are the fountainhead of justice. The courts are their courts, and the government is their government. Whatever power they have not granted to their officials remains with them. . ..

As public records are but the people's records, it would seem necessarily to follow that unless forbidden by a constitution or statute, the right of the people to examine their own records must remain.

Wells v. Lewis, 12 Ohio N.P. 170 (Superior Ct. of Cincinnati 1901).

The Wells case evidences a colorful history of the public right of access to records, and shows that times have not changed as much in the passing century as one might think. Two men, Mr. Wells and Mr. Schroeder, sought to inspect and make copies of the Hamilton County "fair books" for a particular ward within the county. The "fair books" listed the name and address of each owner of real estate, and the assessed value of each real estate parcel as made by the county. The Hamilton County Auditor, Mr. Lewis, maintained the "fair books" as one of the duties of his office. Lewis was in the midst of running for re-election, and Wells was a democrat running against Lewis. Wells lived in Hamilton County, and was a taxpayer. Schroeder, also a democrat, was a resident of Hamilton County, but not a taxpayer.

Wells and Schroeder alleged that public statements about a reduction in the property tax rate had created a misimpression among the citizenry that property taxes would in fact go down. Wells and Schroeder wanted to see the "fair books" to try to show that the county had increased the valuation of real estate and, thus, a reduction in the tax rate would not mean an actual reduction in taxes.

When Wells and Schroeder went to Lewis' office to inspect the "fair books," the books were absent from their customary shelves. Lewis said that one of his clerks was in the process of duplicating the books, and they would not be available to Wells or Schroeder. In the subsequent suit by Wells and Schroeder against Lewis, the court rejected Lewis' argument that the English rule of public access should apply. The English rule asserted that no one had a right to inspect the records of a public officeholder unless the person seeking inspection had an interest in seeing the records that was peculiar to that person and distinct from the community at large. Lewis argued that Wells and Schroeder could inspect records about their own properties, but not about any other properties.

In rejecting the English rule, the court stated that all citizens "have a right to as full knowledge of all the official acts of their officers as the officers themselves have, so as to enable them to ascertain whether their officers have performed their duty in such manner as is acceptable to them with a view to determine whether they will continue them in office or not." The court added:

[T]he records in the auditor's office are the public records of the people of Hamilton county, bought with their money, kept in a public place built with their money, and in the charge of public officials paid by their money and selected by them. The officials in charge of these books, therefore, can be no other than trustees in possession of property belonging to the people of Hamilton county.

If then the auditor holds these books in trust for the people of Hamilton county, it is but an elementary proposition of law that the beneficiaries of the trust may inspect such property, subject only to the limitation that such inspection does not endanger the safety of the books or interfere with the discharge by the auditor of his official duties.

Wells, Ohio N.P. at 176.

Today's public records statute codifies Ohio's common law, and incorporates the common law philosophy that "public records are the people's records, and officials in whose custody they happen to be are merely trustees for the people." E.g., State ex rel. Warren Newspapers Inc. v. Hutson, 70 Ohio St. 3d 619, 640 N.E.2d 174 (1994).

The history of open meetings in Ohio lacks the color and legal precedent of the history of open records in Ohio. Although it cited no authoritative history, the Ohio Supreme Court has opined that there was no common law right of public access to governmental meetings in Ohio. Beacon Journal Publishing Co. v. City of Akron, 3 Ohio St. 2d 191, 209 N.E.2d 399 (1965).

The Ohio Supreme Court is probably mistaken. Ohio has a long history of open meetings of public bodies. In 1795, the legislature of the Northwest Territory, which included Ohio, held its first recorded session. The Territory's only newspaper at that time, The Centinel of the Northwest Territory, announced the time and place of the meeting. The territorial legislative sessions were open to the public. C.B. Galbreath, "Legislature of The Northwestern Territory, 1795," Ohio Archaeological and Historical Society Publications 14, 18 (1921).

In 1802, Ohioians held a constitutional convention to adopt a state constitution. All citizens had a right to address that body "openly or in writing." C.B. Galbreath, "Legislature of The Northwestern Territory, 1795," Ohio Archaeological and Historical Society Publications 203 (1921).

The product of the constitutional convention was the Ohio Constitution of 1802, which provided that "[t]he doors of each house, and of committees of the whole, shall be kept open." Ohio Const. of 1802, Art. I, §  15.

The primary organ of local governmental authority in the Northwest Territory was the court of Quarter Sessions, the forerunner of the board of county commissioners. The courts of Quarter Sessions operated in a combination of legislative, executive, and judicial capacities. The proceedings of the courts of Quarter Sessions were open community affairs. R. Ireland, "Politics of County Government," Kentucky: Its History and Heritage 75 (1978).

At the municipal level, open town meetings were the norm. W. Rose, Cleveland: The Making Of A City 115-116 (1950).

Ohio's open meetings statute was first passed in 1954.

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