Proactive Disclosure of Government Records

Principles:

• Government should proactively disclosure records.
• Enforcement mechanisms should incentivize proactive disclosure of government records.
• Presumption for responding to all open records requests should be in favor of transparency and absent burdensome obstacles.
• Costs via fees and other monetary penalties should not be a barrier to accessing information.
• Disclosed records should be uniform in stands and definitions across jurisdictions to maximize the availability of the information.

Policy Recommendations:

State and local governments should take steps through legislation and regulations to proactively disclose government records to the public.  Proactive disclosure ensures transparency and assists the public with timely and free access to information.  Policies should include enforcement mechanisms that ensure public information is timely disclosed and available.  Finally, state and local laws should incorporate the federal “Rule of 3” which requires agencies to make available records that have been requested 3 or more times.

States can also look to federal FOIA law which provides for proactive disclosures.  FOIA.gov defines these as “Records made publicly available by agencies without waiting for a specific FOIA request. Agencies now post on their websites a vast amount of material concerning their functions and mission. The FOIA itself requires agencies to make available certain categories of information, including final opinions and orders, specific policy statements, certain administrative staff manuals and frequently requested records.”

Statutory Language Example:

• (1)Each state and local agency, in accordance with published rules, shall make available for public inspection in an electronic format—
  • (A)final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
  • (B)those statements of policy and interpretations which have been adopted by the agency and are not published;
  • (C)administrative staff manuals and instructions to staff that affect a member of the public;
  • (D)copies of all records, regardless of form or format—
    • (i)that have been released to any person under paragraph (3); and
    • (ii)
      • (I)that because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; or
      • (II)that have been requested 3 or more times; and
    • (E)a general index of the records referred to under subparagraph (D); unless the materials are promptly published and copies offered for sale.