In late 2011, the Media Law Resource Center (MLRC) and National Freedom of Information Coalition (NFOIC) published a survey of media lawyers and NFOIC member coalitions regarding trends in enforcement of and government official compliance with freedom of information (FOI) laws.
The majority of respondents reported some positive trends, such as increased vigilance from citizens and non-news entities enforcing public records and other FOI laws. A majority of respondents also reported, however, a decrease in open government lawsuits by news organizations over the last five years, citing a lack of resources as the principal cause. While reports varied regarding the trend in government compliance with FOI laws, some media lawyer and NFOIC-member respondents suggested that the new media’s decreased vigilance has emboldened public officials to withhold public information.
The misleading structure of many state FOI laws likely contributes to news organizations’ increasing disinclination to file lawsuits over public record requests. Under the Tennessee Public Records Act, for example, public access is supposedly the rule and not the exception: “All state, county and municipal records shall.be open for inspection by any citizen of this state, and those in charge of the records shall not refuse such right of inspection to any citizen, unless otherwise provided by state law.” Tenn. Code Ann. § 10-7-503 (emphasis supplied). In practice, the clause “unless otherwise provided by state law” has been interpreted to include the common law, administrative codes, regulations and various statutory carve-outs appearing throughout the Tennessee Code. There is no central location listing all of the exceptions to the supposedly “general rule” of public access.
Fortunately for newsgatherers, at least in Tennessee, the burden is ultimately on the public record custodian withholding a record to justify non-disclosure. Tenn. Code Ann. § 10-7-505(c). The individual or entity requesting a public record can also recover costs incurred in gaining access to willfully withheld public records. Tenn. Code Ann. § 10-7-505(g). Newsgatherers should therefore demand that custodians cite a source of law specifically justifying non-disclosure, and should not let public officials get away with insisting based on an abstract policy justification or officials’ own abundance of caution that a record should be withheld. This general practice would help newsgatherers reduce the resources expended in enforcing FOI laws and channel those resources to circumstances where a public records official is obviously reluctant or unable to identify a source of law justifying non-disclosure.