Public Records Law: Know Your Rights and Limitations

When searching for public records and the information contained in them, you may not be aware of the several laws existing at both the state and federal levels which will affect your efforts. There are basically two types of laws and statutes that concern public records; these include both “right to access” or “right to know” laws as well as “right to privacy” laws. Following is a discussion of both.
 

Right to Know Laws Affecting Public Records

There are several federal laws which directly affect your ability to access public records. These include the Freedom of Information Act, open meeting laws, and even the First Amendment of the Constitution.

The Freedom of Information Act, also known as FOIA, was signed into law in 1966 and provides for public access to records maintained by the federal government. Previously, these records were unavailable to the public. Furthermore, in 1996 an amendment was passed which requires federal agencies to provide these records to the public electronically. Each state generally has its own version of the FOIA implemented to ensure access to local public records.

In an effort to promote transparency in government operations, open meeting laws or “sunshine” laws allow the public to attend government agency meetings where official business is conducted. These laws vary from state to state, and may even be known by a different name. For example, California’s open meeting law is the Brown Act.

The First Amendment to the United States Constitution states that the U.S. Congress may not create any statute which directly impedes the freedom of the press. In 1938, the press was defined as “every sort of publication which affords a vehicle of information and opinion” in Lovell v. City of Griffin. However, this fundamental right is always subject to privacy laws.
 

Right to Privacy Laws Affecting Public Records

There are several different privacy laws which affect the public’s ability to access specific types of records or information found in them. These include the federal Privacy Act, the Driver’s Privacy Protection Act, HIPAA, FERPA and FCRA.

The federal Privacy Act of 1974 outlines the requirements and restrictions for concerned agencies which gather, maintain and provide information that concerns an individual. The Privacy Act also aims to protect personal identifying information such as Social Security numbers while allowing the public to request copies or amendments to federal records. Similarly, the Driver’s Privacy Protection Act of 1994 protects sensitive information about an individual stored by the Department of Motor Vehicles.

HIPAA, or the Health Insurance Privacy and Portability Act, was passed in 1996 by Congress. This act protects sensitive information contained in an individual’s medical records, and requires express written consent from a patient before they may be disclosed to an outside party.

The Federal Educational Rights and Privacy Act, or FERPA, was passed into law in 1974. This law protects the information contained in a student’s records such as institutions attended, grades and other personal details. Students over the age of 18 must provide written consent for anyone else to access them. Parents or guardians of minor students are the only parties able to access these records without consent.

The Fair Credit Reporting Act regulates information concerning an individual’s credit. This law also determines who can access the information, and requires employers to obtain an appropriate release form from potential employees prior to conducting a background check.

Finally, regardless of whether you are concerned with your rights of privacy or access concerning public records, become familiar with your local state laws. Each state has its own laws and regulations concerning the public records maintained by state agencies such as property and vital records, and these will directly affect your efforts to obtain them.