Transparency in government is a key feature of any free society, and U.S. law encourages government agencies to make their records available to the public whenever possible. Some exceptions apply, such as in certain situations involving individual privacy and national security, but federal and state laws establish broad guidelines for the disclosure of information and records by administrative agencies. Meetings and hearings held by government agencies are also generally open to the public with some exceptions, and the agencies are required to provide public notice in advance.
Many types of government records have long been considered part of the “public record.” Court records, such as documents filed by parties to a lawsuit, criminal complaints and indictments filed by prosecutors, and orders and judgments written by court officials, are generally available for viewing by the public, although local procedures often require individuals seeking copies of records to bear the cost of making copies. Some court records may be sealed as a matter of law, as authorized by legislation. This includes records of certain types of proceedings, such as child welfare cases and juvenile criminal cases. Judges may be authorized by statute to order other types of court records sealed, either during a proceeding or afterwards. Unsealing court records requires an additional court order.
Access to Legislation
Legislation, including proposed bills, early drafts of laws, and laws that have been passed by a legislature and signed into law by an executive, is available to the public through publications like the United States Code, the United States Statutes at Large, and the Congressional Record.
Federal Open Records Laws
Records of the executive branches of the federal and state governments, their agencies, and legislative and judicial agencies are subject, to varying extents, to open records laws. These laws identify types of records that must be made directly available to the public and those that must be made available upon request. The rulemaking process is subject to public notice requirements, as are enforcement proceedings and certain other agency actions. Federal agencies publish required notices in the Federal Register, and they may also publish them in industry or trade publications and newspapers when appropriate.
The main law governing open records for the federal government is the Freedom of Information Act, commonly known by its acronym “FOIA,” which became law in 1966. It identifies the documents that federal agencies must make available to the public, including by publication on the internet. Agencies are required to maintain systems for responding quickly to “FOIA requests.” The statute identifies specific types of records that are exempt from public disclosure, including national defense and foreign policy records sealed by executive order, agencies’ internal personnel records, and documents containing trade secrets or other privileged or confidential information.
Other important federal open records statutes include the Ethics in Government Act of 1978, which requires the disclosure of certain public officials’ financial and employment history, and the Presidential Records Act of 1978, which mandates the preservation of official presidential records and makes most of them available through FOIA.
State Open Records Laws
States have open records laws similar to FOIA, which direct state and local agencies to publish certain types of information, preserve official records, and make those records available to the public upon request.
Much like legislative and court records, legislative and court proceedings are generally open to the public, and schedules or dockets of upcoming proceedings are available. With regard to executive and other agencies, open meeting laws require agencies to publish advance notice of certain proceedings, such as formal rulemaking hearings, enforcement proceedings, and other administrative matters.
Federal Open Meeting Laws
Various federal statutes establish open meeting requirements for federal agencies. Agencies may publish notices of upcoming meetings and hearings in the Federal Register. The Federal Advisory Committee Act, which became law in 1972, applies to government committees that advise the President and executive agencies on specific matters. Most federal agencies are subject to the open meeting provisions of the Government in the Sunshine Act, passed in 1976. This law requires “every portion of every meeting of an agency [to] be open to public observation.” The exemptions to this requirement are similar to those found in FOIA, such as national defense, internal agency matters, and matters covered by privacy statutes.
Open record statutes like FOIA establish several exemptions to the general requirement that government agency documents be available to the public. Other statutes may also limit agencies’ obligation to disclose, or the public’s right to obtain, certain information. The Privacy Act of 1974, for example, governs the collection, use, and retention by federal agencies of individuals’ personally identifiable information. This includes restrictions on the disclosure of information or documents to a person if it would infringe on the privacy rights of another person.