Part Two: Public Information, Sunshine and the Freedom of Information Act
Public records, open meetings and freedom of information laws
Beginning in 1946 with the adoption of the federal Administrative Procedure Act (APA), the United States government began a process of requiring openness in government. In 1966, the Freedom of Information Act (FOIA) succeeded the APA to set up sweeping requirements that the federal government open its records to all citizens—with very few exceptions—to keep documents secret. The federal FOIA governs only records held by the federal government, but most states have enacted their own acts that open government records. Whether at the federal or state level, there is no central repository of records held by any one government. Instead, requests for records must be made to the specific agency that holds the needed records.
Just as the Freedom of Information Act and its state counterparts keep government records open, federal and state “sunshine” laws keep government meetings open. Passed in 1976, the Government in the Sunshine Act was federal legislation designed to keep meetings of government agencies open to public observation and occurring only after ample notice is given to the public. At the federal level, these agency meetings must be open except for certain specific exemptions, the most notable of which is for the sake of national security. State sunshine laws vary, but most follow the same pattern, requiring all governmental meetings to be open except in the case of personnel matters, litigation and real estate. It’s important to note that the right to record audio or video of a public meeting is usually considered to be implied by the sunshine laws, unless there is a specific written prohibition.
Filing a Freedom of Information Act (FOIA) request
Requests for documents under the federal Freedom of Information Act (FOIA) or any of the state statutes for government open records are made in writing. Telephone calls, e-mails and in-person forms of contact may yield documents at the discretion of the agency or employee getting the request, but a written FOIA request triggers a chain of actions that will result in either the delivery of the desired documents or a written reason why the government does not see them as public.
There is no official form needed to request documents from the federal government, but a number of advocacy groups have written sample letters that allow anyone requesting records to just fill in the blanks. Here is a sample letter written by the National Freedom of Information Coalition and free for use by anyone petitioning a federal agency:
Agency Head [or Freedom of Information Act Officer]
Name of Agency
Address of Agency
City, State, Zip Code
Re: Freedom of Information Act Request
This is a request under the Freedom of Information Act.
I request that a copy of the following documents [or documents containing the following information] be provided to me: [identify the documents or information as specifically as possible].
In order to help to determine my status to assess fees, you should know that I am (insert a suitable description of the requester and the purpose of the request).
[Sample requester descriptions:
a representative of the news media affiliated with the ___________ newspaper (magazine, television station, etc.), and this request is made as part of news gathering and not for a commercial use.
affiliated with an educational or noncommercial scientific institution, and this request is made for a scholarly or scientific purpose and not for a commercial use.
an individual seeking information for personal use and not for a commercial use.
affiliated with a private corporation and am seeking information for use in the company’s business.]
[Optional] I am willing to pay fees for this request up to a maximum of $_____. If you estimate that the fees will exceed this limit, please inform me first.
[Optional] I request a waiver of all fees for this request. Disclosure of the requested information to me is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in my commercial interest. [Include a specific explanation.]
Thank you for your consideration of this request.
City, State, Zip Code
Telephone number [Optional]
The sample letter shows a number of elements that should be included in the request. First, the letter must be addressed to the specific agency that holds the desired records. The letter can be addressed to an individual or simply to the Freedom of Information Act officer. Next, the letter should invoke the Freedom of Information Act so that the receiving party knows the agency must respond under law. The letter should then specifically request the documents being sought. The more specific the request, the more likely to get timely results. For example, instead of asking the EPA for all records regarding pollution in the Hudson River, the request should be for records pertaining to oil contamination in the Hudson River between Chelsea, NY and West Point, NY, occurring between January 1, 2015 and December 31, 2016. A specific request will allow the agency to find a finite number of records and return them much more quickly.
The letter should also make the case for a reduction or waiver in the fees charged. The law allows agencies to charge a reasonable fee for the cost of finding, duplicating, reviewing and delivering the records in the request. But a requesting party can ask for those fees to be waived if the use of the records will serve the public interest. So the letter can explain that the records will be used for documentary purposes to be released to a public audience for the public welfare. Even films being done for theatrical, screening or other commercial release can claim journalistic, non-commercial use or for public information into the understanding of the agency. Even if requesting a waiver, filmmakers should include a sentence to say how much they are willing to pay for records and listing an amount over which the agency must confirm charges. In closing, filmmakers should give a full list of contact information so that the documents can be delivered when ready.
Most state agencies will accept a general letter like the one above for request, or the requesting party can find a sample letter for each individual state that lists its respective open records statute.
Appealing an FOIA request
Once a FOIA request is filed, either at the federal or state level, three things can happen. The requestor will either get all the records requested, a denial of the records requested, or partial fulfillment of the request, including documents with sections redacted.
If the request is denied or the records come back redacted, the requestor has the right to an appeal. Before appealing, the filmmaker should check to be sure that the records are open under the law. At the federal level, there are specific exemptions to the law. They are:
Exemption 1: Information that is classified to protect national security.
Exemption 2: Information related solely to the internal personnel rules and practices of an agency.
Exemption 3: Information that is prohibited from disclosure by another federal law.
Exemption 4: Trade secrets or commercial or financial information that is confidential or privileged.
Exemption 5: Privileged communications within or between agencies, including those protected by: the Deliberative Process Privilege (provided the records were created less than 25 years before the date on which they were requested), the Attorney-Work Product Privilege or the Attorney-Client Privilege.
Exemption 6: Information that, if disclosed, would invade another individual’s personal privacy.
Exemption 7: Information compiled for law enforcement purposes that: could reasonably be expected to interfere with enforcement proceedings, would deprive a person of a right to a fair trial or an impartial adjudication, could reasonably be expected to constitute an unwarranted invasion of personal privacy, could reasonably be expected to disclose the identity of a confidential source, would disclose techniques and procedures for law enforcement investigations or prosecutions or could reasonably be expected to endanger the life or physical safety of any individual.
Exemption 8: Information that concerns the supervision of financial institutions.
Exemption 9: Geological information on wells.
If a filmmaker believes the requested documents fall outside these exemptions and have been improperly withheld, she may file an administrative appeal to the agency holding the records. The appeal should be a letter stating that the filmmaker is appealing the initial decision on the request. There is no fee to file this appeal. It will be heard by an independent review board and a new answer issued. If the board still denies the documents, the filmmaker can seek mediation on the matter from the Office of Government Information Services at the National Archives and Records Administration. This same process can be used if the request returns some or all the documents required, but those documents are redacted, hiding necessary information.
The states have fewer exemptions than the federal government, but may also deny or redact documents. The same appeal procedure can be used, funneling it to the proper state agency.
Some common problems that occur with FOIA requests can be addressed in specific ways. If told that no records exist that meet the request, try different dates, specifics, or even come back later to find records that are newly filed. If given a brief, broad denial, such as stating the request would interfere with law enforcement, narrow the request to keep the scope more limited. If requesting material that turns out to be exempt, separate known nonexempt requests and resubmit only those. Finally, ask for help, either from friendly workers inside the agency where the request is being made or from special interest groups expert at making similar requests.
Open and closed public meetings
Open government is a two-pronged process. Open documents provide a record of what the government is doing and how it’s communicating. But open meetings are required to allow citizens to watch the government “live” while it works, stepping in to stop it when it runs awry. While the Freedom of Information Act and all the various state versions of the law provide for records to be open, sunshine laws at the federal and state level require open meetings that admit the public—and usually cameras and audio recorders.
While the federal government and all states have sunshine laws, there is a difference between the scope of the laws depending on the level of government. At the federal level, the act applies to government agencies only, defining agency as being “headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency.” This very specific definition leaves out the meeting of many individuals and groups in government that are not part of bodies like this.
At the local level, while laws vary from state to state, they are typically much more inclusive in terms of what meetings must be open. Missouri’s open meetings law, for instance, requires “public governmental bodies” conduct open meetings, and then goes on to define governmental bodies as:
any legislative, administrative or governmental entity created by the Constitution or statutes of this state, by order or ordinance of any political subdivision or district, judicial entities when operating in an administrative capacity, or by executive order
any body, agency, board, bureau, council, commission, committee, board of regents or board of curators or any other governing body of any institution of higher education, including a community college, which is supported in whole or in part from state funds
any advisory committee or commission appointed by the governor by executive order
any department or division of the state, of any political subdivision of the state, of any county or of any municipal government, school district or special purpose district including but not limited to sewer districts, water districts, and other subdistricts of any political subdivision
any other legislative or administrative governmental deliberative body under the direction of three or more elected or appointed members having rulemaking or quasi-judicial power
any committee appointed by or at the direction of any of the entities and which is authorized to report to any of the above-named entities, any advisory committee appointed by or at the direction of any of the named entities for the specific purpose of recommending, directly to the public governmental body’s governing board or its chief administrative officer, policy or policy revisions or expenditures of public funds including, but not limited to, entities created to advise bi-state taxing districts regarding the expenditure of public funds, or any policy advisory body, policy advisory committee or policy advisory group appointed by a president, chancellor or chief executive officer of
any college or university system or individual institution at the direction of the governing body of such institution which is supported in whole or in part with state funds for the specific purpose of recommending directly to the public governmental body’s governing board or the president, chancellor or chief executive officer policy, policy revisions or expenditures of public funds provided, however, the staff of the college or university president, chancellor or chief executive officer shall not constitute such a policy advisory committee. The custodian of the records of any public governmental body shall maintain a list of the policy advisory committees described in this subdivision
any quasi-public governmental body
any bi-state development agency
Clearly the state requires open meetings of nearly every type of government meeting possible within its borders.
In addition to the requirement to hold open meetings, all sunshine laws contain language that requires notice be given to the public in advance of meetings so that citizens may attend. Typically, the amount of prior notice needed is written into the statutes. Twenty-four hours is often the minimum notice for a public meeting.
Also typical in most sunshine laws is a requirement that public meetings be open to video and audio recording. The laws state that cameras and microphones may not be barred from public meetings except in specific circumstance, which vary by state.
Most sunshine laws allow any of these normally open meetings to be closed for specific circumstances. Those reasons to close a meeting include discussion of:
Litigation or other legal action
Purchase, sale or leasing of real estate
Hiring, firing or discipline of personnel
State national guard or militia business
Discussions of the physical or mental health of individuals
School or other academic records
Individual recipients of state aid
Records closed of confidential by law
Confidential auditor’s records
Personal data records like credit card numbers
Should a filmmaker be barred from what she believes should be an open meeting, there are some steps to take to try to regain access. Generally, the first remedy is to raise an objection at the meeting at the time it is being closed. The filmmaker should be sure to know the federal statutes or the law of the state where the meeting is taking place and then assert the reasoning why the meeting should be open. In some cases, the group running the meeting will agree and open it to the public.
If that approach is not successful, the filmmaker will probably not get into that specific meeting. The remedy at the state level requires the filmmaker file a formal complaint with the body holding the meeting. The state attorney general is a contact point to check the law and get information on the complaint. In some states, the attorney general’s office will assist or even file the complaint itself. At the federal level, the complaint must go directly to the agency that closed the meeting. The U.S. Attorney General will not get involved in those complaints.
In cases where the complaint is denied by the offending body, then it is necessary to file suit in the county where the meeting took place or in federal court for federal meetings. This can start without a lawyer involved, though if the case goes to court, it may be necessary to have an attorney at that time.
Sunshine laws – Reporters Committee for Freedom of the Press
The Government in the Sunshine Act – GSA.gov
Open Meetings – Reporters Committee for Freedom of the Press
Open records & meetings (FOIA) – Reporters Committee for Freedom of the Press
Reporters often banned from public meetings even though it’s unconstitutional – Consumer Affairs
Sunshine Law: Missouri’s Open Meetings and Records Law – University of Missouri Extension
Closed meetings and closed records authorized when, exceptions – Revisor of Statutes, State of Missouri
Open Meetings: Questions and Answers – North Carolina Department of Justice
Courtroom access and cameras in the courtroom
The history of cameras and other recording devices in the courtroom is one of the most complicated aspects of First Amendment rights. As early 20th Century innovations began to allow for the recording of judicial processes, the courts struggled with how to deal with the new technology. Radio broadcasters place four microphones around the courtroom to broadcast the so-called Scopes Monkey Trial live to audiences around the country in 1925. Ten years later, still and movie cameras were allowed in the Lindbergh kidnapping trial of Bruno Hauptmann—restricted just to when court was not in session, though photographers broke those rules and recorded during the trial.
The relatively loose rules applying to media in the courtrooms led to some backlash from bar associations and eventually Congress. Following the Hauptmann trial, the American Bar Association (ABA) adopted a rule banning cameras and microphones from courtrooms to preserve the “essential dignity” of the trial process. Then, in 1946, Congress banned photography and broadcast coverage in any federal courts.
The state courts where slower to respond and in many states, photography, filming and audio recording went on, ignoring the ABA rule. As television came on the scene, state court trials were sometimes televised. Some states, like Colorado, even made rules expressly allowing television coverage of trials.
But all that changed with the murder trial in Ohio of Cleveland doctor Sam Sheppard, accused of the murder of his pregnant wife. Reporters and cameramen filled the courtroom, moving about where they liked and interfering with the trial. Sheppard was convicted, but in 1966, the U.S. Supreme Court threw out that conviction, partially due to the circus-like media coverage of the trial and the placement of reporters and photographers in the courtroom. With the overturning of that case, as well as the case of Billy Sol Estes, which received similar press attention, state courts sharply cut back and basically banned cameras and microphones in courtroom, once again following the ABA rules.
After a fifteen-year lull, some states began to experiment with bringing cameras and microphones back into the courts. Florida was the first to resume routine coverage and a U.S. Supreme Court ruling in 1981 opened the door for other states to follow suit. Now, all states allow cameras in some level of their courts. Most allow coverage of trial courts, though some only allow cameras and microphones in appellate courts. A guide to all states is included in the links below. Federal courts, with the exception of a few limited experiments, still prohibit outside cameras and microphones in their courtrooms. In some cases, as with the U.S. Supreme Court, audio recordings done by the court are released after the fact and available to filmmakers. Journalists and others continue to call for cameras to be allowed in the Supreme Court, but must justices seem to be hesitant to take that step.
Though the states allow cameras, the procedure to get one into a courtroom is often complex. In very few cases can a filmmaker just show up with a camera on the day of the trial and gain access. In nearly every jurisdiction, there are rules to request cameras and microphones that must be followed. Some courts require all media pool their requests and allow just one video camera and one still camera into the proceedings. Many give the judge and sometimes even the defendant the right to veto cameras and microphones. And most have restrictions on what can be recorded in the courtroom (e.g. many jurisdictions don’t allow video or stills to be taken of the jury members). Once again, a link below supplies detailed rules state by state.
Aside from access to the courtroom, of particular interest to filmmakers is access to the records of the trial, most notably video depositions. All documents filed in court become part of the public record and are available to filmmakers, including video or audio depositions. Material not actually filed in court but collected by either party does not necessarily become part of the public record and thus is not available to the public.
There are some court records that, as a rule, do not become public and are not available to filmmakers. In most states, they are:
Juvenile court matters
Mental health commitment hearings
Personal private records used in trials, like social security numbers and account numbers
Domestic violence protection orders
Paternity and adoption proceedings
Some medical records