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States Should Not Limit Open Records Requests to State Citizens 

 

Guiding Principle:

Barring non-state citizens from the open-records process offends the people’s foundational right to access government information. The fact a potential requester lives in a different state should not determine his or her ability to request public records.  State policy choices often have impacts beyond a state’s borders. More importantly, first principles of good government, such as ensuring accountability for decision-making, counsel in favor of broad access to public records.

 

The Issue 

At least five states are known to restrict the right to request public records, either by statute or legal opinion, to citizens of the state:

  • Alabama
    • “Every citizen has a right to inspect and take a copy of any public writing of this state[.]” Ala. Code § 36-12-40.0
    • “[A]ccess to most public records of this state are limited to Alabama citizens.” – Att’y Gen. Op. 2018-030
  • Arkansas
  • Delaware
  • Tennessee
    • “All state, county, and municipal records shall . . . be open for personal inspection by any citizen of Tennessee.” – Tenn. Code § 10-7-503(a)(2)(A)
  • Virginia
    • “[A]ll public records shall be open to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth[.]” – Code Ann. § 2.2-3704.A

Other states have public records laws that contain language that, while not generally acknowledged or currently interpreted as a bar to out-of-state requesters, leaves open that possibility. For example, New Hampshire’s “Right to Know” Law states that “[e]very citizen . . . has the right to inspect all governmental records[.]”  N.H. Rev. Stat. § 91-A:4 (emphasis added).  The New Jersey Open Public Records Act similarly states that “government records shall be readily accessible for inspection, copying, or examination by the citizens of this State[.]”  N.J. Rev. Stat. § 47:1A-1 (emphasis added).  As it stands, the New Jersey Attorney General does not presently interpret this language as prohibiting government entities from processing records requests filed by out-of-state requesters.  Oddly, Nebraska limits the right of access to “all citizens of this state,” while simultaneously extending it to “other persons interested in the examination of public records.”  Neb. Rev. Stat. § 87-712(1). South Dakota does the same. See S.D. Code L. § 1-27-1 (“[A]ll citizens of this state, and all other persons interested in the examination of the public records . . .”).

In Kentucky, public records are limited to “any resident of the Commonwealth,” but that definition also includes some out-of-state requesters, namely foreign business entities registered with the state and certain news-media organizations. KRS 61.870(10)(a) to (f). Other out-of-state requesters are disallowed.

State citizenship or residency requirements have not gone unchallenged. But in 2013, the U.S. Supreme Court ruled that such requirements were constitutionally permissible.  Specifically, in McBurney v. Young, Justice Alito, writing for a unanimous court, affirmed Virginia’s limitation and explained that it neither violated the Privileges and Immunities Clause nor the Dormant Commerce Clause. See 569 U.S. 221 (2013).

Some states have recognized the incongruence of a commitment to open government and a citizenship or residency-based limitation of who can file a records request.  Florida amended its “Government in Sunshine” Law decades ago to eliminate a citizenship requirement, see, e.g., Fla. Att’y Gen. Op. 75-175 (June 17, 1975), and enshrined the right of access in its state constitution. See Fla. Const. Art. I, § 24(a). More recently, legislators in Tennessee tried to eliminate that state’s citizenship requirement from its Public Records Act.  See, e.g., S.B. 3280, § 7 (2008). These are positive developments that should be copied in those states that still disallow out-of-state requesters.

Policy Recommendation 

States should remove residency requirements for open records requests by specifying that “any person” can submit a request.

There are no compelling reasons to limit records requests to state citizens, especially in light of broader principles underlying open government and transparency. Most states do not have such limits, and they process requests from out-of-state requesters without issue. Most sophisticated records requesters can find an in-state proxy to submit requests on their behalf, thus circumventing the limitations, but many average requesters do not have such access.

Statutory Language Example – Arizona: “Any person may request to examine or be furnished copies, printouts or photographs of any public record” – A.R.S. § 39-121

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