describe what if any rights the constitution grants to public access to government records.

November 26, 2013		2013-R-0439
Freedom OF INFORMATION LAWS AND THE Offset AMENDMENT
By: Terrance Adams, Associate Analyst

You asked for a summary of instance law apropos the relationship betwixt the First Subpoena of the U.S. Constitution and liberty of information (FOI) laws.

SUMMARY

Under U.Due south. Supreme Court precedent, access to authorities records is a policy question to exist decided past legislative bodies; it is not a ramble question. As the Court wrote in a recent opinion, information technology "has repeatedly made articulate that there is no constitutional right to obtain all the data provided past FOI[Human activity] laws" (McBurney v. Young, 133 S.Ct.1709, 1718 (2013)).

The primary Supreme Court instance concerning a ramble right of access to government records is Houchins v. KQED, 438 U.Due south. one (1978). In Houchins, the plurality opinion and concurrence both held that neither the Start nor the Fourteenth amendments "mandates a correct of admission to government data or sources of information within the government ' s command" (id., at 15), nor exercise they grant the media a correct of access that is greater than the public ' s right of access. The plurality opinion noted that, while previous Supreme Court cases upheld Get-go Amendment rights to communicate information, those cases did not construe the Outset Subpoena equally providing a correct to obtain information from the government.

Since Houchins, other Supreme Court cases have discussed the lack of a First Subpoena right to government records. One time, the Court upheld a California police force that limited the purposes for which public records could be sought, noting that "California could determine not to give out arrestee information at all without violating the Start Amendment" (Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32, 40 (1999)). Similarly, in the McBurney opinion cited above, the Court noted that there is no constitutional right to obtain records under FOI laws.

In an appellate court case, the U.S. Court of Appeals, District of Columbia Circuit, citing Houchins, held that the Commencement Amendment did not compel the government to release information about individuals detained after the September 11 attacks (i.e., arrestee names, names of their attorneys, dates of arrest and release, locations of abort and detention, and reasons for detention).

This study addresses access to regime records only. In a separate line of cases, beginning with a Supreme Court determination in Richmond Newspapers, Inc. five. Virginia, 448 U.S. 555 (1980), courts have held that the Outset Amendment guarantees the public and media access to criminal trials. As Chief Justice Burger wrote in the Richmond Newspapers plurality opinion:

What this means in the context of trials is that the First Amendment guarantees of speech and press, continuing lone, prohibit government from summarily endmost courtroom doors which had long been open to the public at the time that Amendment was adopted…nosotros hold that the right to attend criminal trials is implicit in the guarantees of the First Amendment (id., at 576, 580).

HOUCHINS Five KQED

Facts and Procedural History

KQED, a broadcasting company, sought to inspect and photograph the part of the Alameda County (CA) Jail at Santa Rita where a prisoner reportedly committed suicide. Afterward Houchins (the county sheriff) denied the request, KQED filed a lawsuit (1) alleging a deprivation of its First Amendment rights and (2) seeking preliminary and permanent injunctions to forbid the jail from excluding KQED personnel and equipment from jail facilities.

The jail subsequently implemented a program of six monthly public tours, which media members were welcome to attend. Notwithstanding, the tours covered just certain parts of the jail and prohibited (1) photography and tape recordings and (2) interviews with inmates.

A federal district court granted KQED ' s asking for a preliminary injunction, prohibiting Houchins from denying KQED personnel and other media members from (1) access to all parts of the jail at reasonable times, (2) using photographic or sound equipment, or (3) interviewing inmates. The 9th Circuit Court of Appeals sustained this order, terminal that the public and media had First and Fourteenth Amendment rights of access to prisons and jails.

Holding and Assay

The Supreme Court reversed the appellate courtroom ' south conclusion. Principal Justice Burger wrote a plurality opinion, joined past Justice White and Justice Rehnquist; Justice Stewart filed an opinion concurring in the judgment. Both the plurality and concurrence held that neither the First nor the Fourteenth amendments "mandates a right of access to government information or sources of data within the authorities ' s control" (Houchins, supra at fifteen). The opinions rejected (1) the Ninth Excursion ' due south determination that the public and the media accept a First Amendment right to regime information regarding the weather of jails and their inmates and (two) KQED ' southward argument that media organizations have an implied special right of access to government-controlled sources of information.

Plurality Opinion . In the plurality stance, Principal Justice Burger wrote that, "The Constitution itself is neither a Freedom of Data Act nor an Official Secrets Act" (id., at 14, quoting Potter Stewart, Or of the Press, 26 Hastings L.J. 631, 636 (1975)). In rejecting KQED ' south First Amendment arguments, he wrote that:

The public importance of conditions in penal facilities and the media ' south function of providing data afford no basis for reading into the Constitution a correct of the public or the media to enter these institutions, with camera equipment, and take moving and still pictures of inmates for broadcast purposes. This Court has never intimated a First Amendment guarantee of a right of access to all sources of data within government control (id., at ix).

The master justice analyzed several cases cited past KQED and concluded that they focused on the media ' s correct to communicate data, rather than a right of access to the information. For example, he plant that, in two of the cases (Grosjean v. American Press Co., 297 U.S. 233 (1936) and Mills v. Alabama, 84 U.S. 214 (1966)), "the Court was concerned with the freedom of the media to communicate information in one case it is obtained; neither case intimated that the Constitution compels the government to provide the media with information or admission to information technology on need" (id., at 9, emphasis in original).

Concerning a special correct of admission for the media, Principal Justice Burger reviewed another case cited by KQED, Branzburg v. Hayes, 408 U.South. 665 (1972). He noted that, in Branzburg, the Court stated that "the First Amendment does not guarantee the printing a constitutional right of special access to data non available to the public generally," and that "[northward]ewsmen have no constitutional correct of access to the scenes of crime or disaster when the general public is excluded" (Houchins, supra at 11, quoting Branzburg).

The master justice also quoted from some other example, Zemel five. Rusk, 381 U.S. 1 (1965), to emphasize the distinction between the right to speak and publish and the right to take access:

There are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the denizen ' s opportunities to gather information he might find relevant to his opinion of the way the country is existence run, but that does not make entry into the White Firm a Beginning Amendment right. The right to speak and publish does not carry with it the unrestrained right to gather information (Houchins, supra at 12, quoting Zemel, accent in original).

Principal Justice Burger concluded that access to penal institutions is a policy question to be resolved by a legislative body, describing information technology as "conspicuously a legislative job which the Constitution has left to the political processes" (Houchins, supra at 12). He noted that, with no basis for a constitutional duty to disembalm data, or standards for disclosing or providing access, judges would "be at large to mode ad hoc standards, in individual cases, according to their own ideas of what seems ' desirable ' or ' expedient ' " (id., at 14).

Concurring Stance . Justice Stewart filed a concurring opinion in which he agreed with the plurality that in that location is no First or Fourteenth Amendment right of access to regime-generated or –controlled data. He also agreed that the media does not take a bones right of access superior to that of the full general public, writing that, "The Constitution does no more than assure the public and the press equal access once government has opened its doors" (id., at xvi).

However, Justice Stewart wrote that equal access for the public and media did non necessarily mean identical access:

[T]erms of admission that are reasonably imposed on individual members of the public may, if they impede effective reporting without sufficient justification, be unreasonable as applied to journalists who are in that location to convey to the general public what the visitors see (id., at 17).

According to Justice Stewart, KQED was entitled to some course of preliminary injunctive relief. He agreed with the District Court that, to keep the public informed, the media needed access that was more frequent and flexible than the regularly scheduled tours. He also agreed that the media needed cameras and sound equipment to properly practise its job.

However, Justice Stewart plant the Commune Courtroom ' s order overly broad as it allowed the media to (i) access all areas of the jail and (2) interview inmates. These provisions, he wrote, are not compelled past the Constitution. Rather, any injunctive relief must "adapt equitably the constitutional function of the press and the institutional requirements of the jail" (id., at 18-19).

OTHER CASES

U.Due south. Supreme Court

Los Angeles Police Dept. 5. United Reporting Publishing Corp. This 1999 instance involved a California police force that express the purposes for which public records could exist sought. Specifically, it prohibited requesters from accessing arrestees ' addresses for the purpose of directly or indirectly selling a product or service. A federal district court permanently enjoined enforcement of the statute, and the Ninth Circuit Court of Appeals affirmed, holding that it was facially invalid because it unduly burdened commercial speech.

The Supreme Court reversed the determination, property that the statute was not bailiwick to a facial challenge. (A "facial challenge" requires the Court to look at the law and make up one's mind if information technology is unconstitutional as written.) In doing so, information technology accepted the law department ' due south argument that the statute does not abbreviate anyone ' s right to speak, but rather regulates admission to data possessed by the law:

This is non a case in which the government is prohibiting a speaker from carrying information that the speaker already possesses…The California statute in question just requires that if respondent wishes to obtain the addresses of arrestees it must qualify under the statute to practise so. Respondent did not endeavour to qualify and was therefore denied access to the addresses. For purposes of assessing the propriety of a facial invalidation, what we have earlier the states is zero more than a governmental denial of admission to information in its possession. California could make up one's mind not to give out arrestee information at all without violating the Get-go Amendment (Los Angeles Police Dept., supra at 40, emphasis added).

McBurney five. Young . In 2013, the Court ruled unanimously in McBurney v. Young that states may exclude out-of-state residents from the access to public records provided by their FOI laws. The case involved Virginia ' s FOI law, which grants access to public records to state residents only. The Court rejected the plaintiffs ' arguments that the denials violated the U.Due south. Constitution ' southward Privileges and Immunities and dormant Commerce clauses, holding that (ane) the state did non abridge any constitutionally protected privilege or immunity and (2) Virginia ' s FOI constabulary does not regulate commerce in any meaningful mode.

Although McBurney did non raise whatsoever Offset Amendment claims, the Court ' s opinion as well discussed more generally the human relationship between public access and the Constitution. The opinion stated that the Courtroom "has repeatedly made articulate that in that location is no constitutional right to obtain all the information provided by FOIA laws" (McBurney, supra at 1718). Information technology also noted that "no such right was recognized at common law," and that, "Nineteenth century American cases… do not support the proposition that a broad-based right to access public information was widely recognized in the early Commonwealth" (id.).

Appellate Court

In Center for National Security Studies v. U.Due south. Dept. of Justice, 331 F.3d 918 (2003), the U.Due south. Court of Appeals, District of Columbia Circuit, held that the government did not have to release data nearly individuals detained subsequently the September 11 attacks (i.east., arrestee names, names of their attorneys, dates of arrest and release, locations of abort and detention, and reasons for detention).

The petitioners fabricated several arguments for releasing the data, including a claim that it was required past the First Amendment. In rejecting this argument, the court, citing Houchins, stated that "the Start Amendment is non implicated past the executive ' s refusal to disclose the identities of the detainees and data apropos their detention" (id., at 935). It also noted that Houchins, not Richmond Newspapers, is the applicative Supreme Court example apropos the constitutional right of access to government information exterior the criminal trial context:

neither this Court nor the Supreme Courtroom has ever indicated that it would apply the Richmond Newspapers test to anything other than criminal judicial proceedings. Indeed, there are no federal court precedents requiring, under the Commencement Amendment, disclosure of data compiled during an Executive Co-operative investigation, such as the information sought in this case (id., accent in original).

TA:ts

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Source: https://www.cga.ct.gov/2013/rpt/2013-R-0439.htm

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