Public Records Access: Constitutional and Statutory Considerations
Access to public records is a right we often take for granted, and a concept which is full of paradoxical arguments. Public records are governed by both rights of access as well as rights of privacy. In addition, each type of public record is subject to specific restrictions of use. Public records access may vary according to the type of record you seek and the agency which controls it.
Rights of Access
In the argument for the public’s rights of access to public records, you must account for both constitutional and statutory considerations. Constitutional considerations, when discussing public records access, often leads to an examination of the First Amendment rights and their scope. The freedom of speech and freedom of the press provided are often cited when arguing public records access. In addition, each state has a constitution which may outline specific rights to citizens in that locale.
Statutory considerations include all laws or statutes that have been passed regarding public records access. These statutes must be accounted for at both the federal and state level. Although each state’s pertinent laws vary somewhat, they are largely influenced by the Freedom of Information Act, which is one of the federal statutes governing public records access. In addition, an amendment to this act in 1996 determined that official agencies must provide public records access electronically to the public.
Each state also has its own set of open meeting or “sunshine” laws which promote transparency in government business and meetings. These laws protect the citizens’ rights to attend any and all meetings where government business will be conducted.
Rights of Privacy
Federal and state rights of privacy are also specific to the type of records you may want to access. These statutes generally aim to protect personal identities and related information such as Social Security numbers and perhaps even addresses and phone numbers. Federal statutes concerned with rights of privacy include FCRA, FERPA, HIPAA, and the Driver’s Privacy Protection Act.
The Fair Credit Reporting Act, or FCRA, protects an individual’s right to disclose personal credit information to outside parties. The FCRA determines that a prospective employee must give his express written consent for an employer to conduct a background check using his identity.
The Federal Educational Records Protection Act, or FERPA, states that only a student and his or her parents if underage may access educational records such as grades, courses taken and institutions attended. Similarly, the Health Insurance Portability and Accountability Act requires patients to sign a release form in order for an entity to disclose his or her personal medical records to outside parties. This form is often required in order for your doctor to provide medical information to your insurance company, for example.
The Driver’s Privacy Protection Act simply protects the personal information maintained in Department of Motor Vehicle records from public view, such as personal home addresses and Social Security numbers.
Restrictions of Use
In addition to being subject to constitutional rights and statutes affecting privacy and access, there are exemptions noted in the laws which restrict the use of public records. For example, someone requesting public records about an individual may be required to provide the reason for their request or what is known as a “tangible” reason. This may include genealogical research or private background checks. In addition, public records may only be used for private research and not commercial purposes.
When you need to be aware of your rights in regard to public records access, you must take into account both federal and respective state laws and constitutions. In addition to considering the purpose for your search and requests, each type of public record carries with it various laws which provide for both the accessibility and privacy of information contained in them.