Open Records Laws

Everywhere in the United States, there are statutory schemes mandating that the records and documents generated by public entities be made available to the public. In some states, like California, the legal basis for open public records derives from the state constitution. Accordingly, the governing bodies of public schools, public colleges, and public universities typically must comply with states' open records laws. Indeed, generally speaking, records of public schools and public colleges must be made available for public inspection upon request. States' open records laws are analogous to the federal Freedom of Information Act.

The primary underlying public policy of the open records laws is to encourage open government and to discourage governmental secrecy. Many of the states' open records statutes set forth express statements of public policy. For example, New York, in enacting that state's Freedom of Information Law, declared “that government is the public's business and that the public, individually and collectively and represented by a free press, should have access to the records of government.” In light of these strong public policies, many states have express statutory provisions declaring that the open records laws are to be strictly interpreted in favor of public disclosure.

Tricky questions often arise as to whether a particular document must be made available to the public upon request. Under Montana law, for instance, a clear dichotomy is expressly established between “public” documents and “private” documents, but the more difficult questions typically concern not whether a particular document is “public,” but rather, presuming that it is a public document, whether the document is somehow exempt from public disclosure.

In this regard, public documents that typically are exempt from disclosure include employee personnel files, such as the personnel files of public school teachers or public university professors; public school employees' medical records; certain documents pertaining to pending claims or litigation; documents that are privileged, such as under the attorney-client privilege; test questions and scoring keys; library circulation records; and student records. Litigation sometimes arises when there are disputes as to whether particular documents were properly withheld by a public school or public university.

Open records laws often set forth procedures regarding how public records are to be requested by the public and how and when a public entity must respond to [Page 605]the requests. Also, there often are provisions not only for inspection of public records but also for obtaining photocopies of the records upon payment of fees. Schools or institutions of higher learning usually have a certain time frame in which officials must respond to requests by indicating their willingness to comply or by asserting one or more applicable exemptions.

Requests for public records generally must be reasonably clear and specific. Even so, underscoring the legal emphasis on public disclosure in some states, such as California, school or institutions of higher learning are legally required to assist members of the public in formulating their requests if they are having difficulty in doing so.

Considering that public documents are now often stored in electronic formats, open records laws now typically specify that electronically stored data are considered public documents that must be made available to the public unless otherwise exempt. Sometimes the school or college may produce the documents to the public in electronic format, rather than in paper format.

...