June 5, 2014
One of the founding documents of the American political system is the Mayflower Compact, adopted by the Pilgrim settlers of Massachusetts in 1620. That very brief statement is noteworthy for many reasons. One of those reasons is the premise of the document. At a time when many governments were based on the divine right of kings, the small band that was assembled on Cape Cod agreed among themselves to form a “body politick,” and to enact such laws “as shall be thought most meete & conuenient for ye generall good of ye colonie.” Government by the people is a bedrock principle in America. That self-government, however, depends on a citizenry that knows what its government is doing. The right is a vital one. As the editor and diplomat James Russell Wiggins said, “Nothing could be more irrational than to give to the people power and to withhold from them the information without which power may be abused.” In addition, the public has now come to expect that information will be readily available to them on demand.
Access to information kept by the federal government is governed by the Freedom of Information Act, 5 U.S.C. § 552. In addition to the federal law, all state and other U.S. jurisdictions have laws granting the public open access to government records. Wisconsin enacted its first open records law in 1849, and court decisions in many states acknowledged a common-law right of the public to see official records. Details of these laws vary, but they generally say that all information kept by a unit of government is open to the public unless it falls within an exception listed in the law. Typical exceptions include medical records, personnel records, and records relating to internal agency discussions about developing a policy. The laws also apply to virtually every unit of government, including city and county government, boards and commissions, and state universities and colleges.
The broad scope of the open records laws has made the laws a useful source of information for those investigating the conduct of government. Recently, however, there have been reports of records requests or uses of records that have been called abusive. So-called “mug shot” websites post publicly-available booking photographs or mug shots. The proprietors of these websites say that they are providing a public service by encouraging users or readers to report suspected criminal activity to law enforcement. Note that the photographs are posted when a person is arrested. Most of these sites will remove a posted picture if the subject is found not guilty, or if the charges are dismissed. A few of them will not remove a picture unless the subject pays a fee for the removal.
There have also been allegations that records requests have been made to intimidate or silence the person whose records have been requested. For example, University of Virginia Professor Douglas Laycock wrote a letter to Arizona Governor Jan Brewer regarding a controversial bill that would have given businesses the opportunity to “opt out” of anti-discrimination laws if the business owners objected to gay marriage on religious grounds. Professor Laycock had previously filed an amicus brief with the U.S. Supreme Court in favor of allowing corporations to refuse to provide insurance coverage for contraception if the owners had a religious objection. Two activists responded to these activities by filing a request under the state’s freedom of information act for e-mails between Professor Laycock and conservative and religious liberty groups. The activists who have made the request have stated that their intention is to promote a “dialogue” about the way Professor Laycock’s work is being used by opponents of same-sex marriage. In another controversy, in Wisconsin in 2011, the state’s Republican Party responded to an opinion piece and blog posts by University of Wisconsin Professor William Cronon criticizing the administration of Governor Scott Walker by making a request for all of the Professor’s e-mails that referenced twenty words, names, and term (e.g. “Republican,” “Scott Walker,” “union,” “recall,” etc.).
From a purely legal standpoint, there is usually nothing wrong with these requests. As a rule, state open records laws do not ask why a person is requesting a particular record, or what use he or she intends to make of that record. The records are to be made available to anyone who makes a request. Public records are, in that sense, like the books in a public library: they are available, with some restrictions, for whatever use you intend to make of them. Complaints about “abuse” of open records laws tend to involve governmental entities that strain to find that they are exempt from the requirements of the law, either because the requested records are exempt from release, or because meeting the request would be “burdensome.” Complaints are also made that the response to a request is too slow, or incomplete. While the individual subjects of a records request may object to a request as being made only to intimidate, that is not a valid reason for a request to be refused. After all, one person’s “intimidation” is another person’s “investigative journalism.”
Some states have taken recent action to limit the mug shot publishing industry. Since 2012, seven states have passed laws regarding publication of mug shots or booking photos. Laws passed in Colorado, Georgia, Illinois, Texas, Utah, and Wyoming all prohibit charging a fee to remove a booking photograph from a website. Similar legislation is, as of June 4, 2014, awaiting action by the Governor in Missouri. A law passed in Oregon in 2013 limits the number of booking photographs one person may request. In Georgia, another law passed in 2014 prohibits release of a booking photograph to a person who intends to publish it or post it on a website. It is important to note that these laws regulate the use of a certain, narrowly defined type of record. The photographs themselves are still accessible.
It would be difficult to formulate a policy that protected people from misuse of records while still ensuring the free availability of information. Laws that restrict the most blatant misuse of information—requiring payment before removing inaccurate information—may be the best that can be done. The writer Stewart Brand said several years ago that “information wants to be free.” That freedom carries with it its own set of consequences.