How NOT to Write an Open Records Law

By Emily Garcia

Open records laws are written with the expressed intention to make the government more accountable to the people it serves. Through open records laws, concerned citizens can make requests to see anything in the public record, from a public official’s emails to how much the city spends on water treatment.

Open records give the public a window into the day-to-day activities of elected officials and sends them a clear message that they can be held accountable for their wrongdoing. However, the opaqueness of this window varies depending on where you live, as each state has its own open records law with its own set of exceptions.

Exceptions may list documents that might reasonably be withheld from the public such as medical records or communications protected by attorney-client privilege. Yet, some exceptions withhold information from the public for no compelling reason and only serve to limit public oversight.

In Georgia, members of the state legislature and offices housed therein, like the state reapportionment office, are immune to open records requests. Essentially, the window into their activities is covered by a black-out curtain and iron bars. What this means for Georgians is that their legislators have unbridled freedom for all manner of legislative skullduggery with no expectation of public scrutiny.

If nobody checked in on you at work, what is to stop you from playing candy crush for seven hours straight? Or more specific to legislators; ignoring constituent complaints.

The irony of Georgia’s open records law is that the legislators who wrote the law recognized the need for transparency among public officials but were willing to exempt themselves from that group.

In Virginia, legislators are willing to admit they are accountable to the people but only if those people are citizens of Virginia. Virginia’s open records law specifies that, “all public records shall be open to citizens of the Commonwealth.” Virginia renders out-of-state commuters incapable of asking for transparency from the Virginia government. These state-citizen-only clauses also create a problem for journalists and researchers seeking to report on Virginia from another state. In fact, matters of Virginia impact residents of the entire Beltway. CfA, as a DC-based institution, cannot submit records requests to Virginia unless we have staff based out of Virginia.

Some open records laws go even further to exclude certain groups from government accountability. Michigan’s open records law exempts people serving time in prison for a felony charge from receiving public records. But what does this exemption serve to prevent other than an estimated 33,000 people from keeping the state accountable? The law does not inhibit people outside of prison from requesting and receiving open records requests on someone else’s behalf. Therefore, the exemption is effectively useless and unnecessarily burdensome.

The ineffectiveness of other open records laws stems from poor writing and a lack of well-defined terms. Alabama’s open records law, a consistent recipient of failing grades from organizations like the National Freedom of Information Coalition and Better Government Association, is one such example.

The statute, which is five sentences in total, has no established time requirements for public officers to surrender records. Without a definite timeline, records custodians can de facto deny records requests by letting enough time elapse for the requestor to either give up or forget. The law is also silent on the appropriate amount of fees to charge for a records request, allowing agencies to render their records unreachable to low-budget requestors by charging exorbitant fees per page.

Indeed, not all public records laws are created equal. Some states have done an admirable job in implementing open records laws that uphold the principles of transparency.

Washington’s public records law specifically prohibits agencies from charging requestors fees for locating and preparing public records for inspection. This portion of the law substantially limits the ability of records custodians to overcharge for records.

In Louisiana, it is required by law that public records requestors receive a response to their request within three days. Additionally, unlike Wisconsin and West Virginia, Louisiana’s open records law does not place restrictions on how information found in records requests may be used.

As these states demonstrate, it is possible to create public records laws that support the public in their quest to appropriately scrutinize the government. In order for our democracy to function, the government must write laws that welcome this scrutiny.

Campaign for Accountability is a nonpartisan, nonprofit watchdog organization that uses research, litigation, and aggressive communications to expose misconduct and malfeasance in public life and hold those who act at the expense of the public good accountable for their actions.