Access to Public Records

The following statement was approved by the NAGARA Board of Directors
September 2022

 Public records are evidence: they capture the deliberations, decisions, and actions of government agencies and public officials. Access to these records is an essential part of the government records management and archival processes. Without access, the arrangement, description, and preservation of records would be moot. Appropriate, authorized access to information is the ultimate goal of records management. 

Citizens have the right to access and inspect public records. From the United States Constitution, to the constitutions and codes of laws of many states, access to public records is identified as vital to the functioning of our republic. Ensuring that public records can be trusted to be authentic, reliable, complete, unaltered, and freely accessible to the fullest extent allowable by law is the solemn responsibility of records administrators, archivists, and information professionals at every level of government. Without timely access to documentation of the actions of public officials, the public is unable to hold its government institutions accountable to the will of the people.

The Freedom of Information Act of 1964 (FOIA) describes succinctly what the federal government requires of itself: “every agency shall, upon request for identifiable records … make such records promptly available to any person”. Representative John Moss (CA-3), the bipartisan bill’s original author, emphasized its necessity:

Our system of government is based on the participation of the governed, and as our population grows in numbers it is essential that it also grow in knowledge and understanding. We must remove every barrier to information about – and understanding of – government activities consistent with our security in the American public is to be adequately equipped to fulfill the ever more demanding role of responsible citizenship (1). 

In his signing statement President Lyndon B. Johnson said of this:

This legislation springs from one of our most essential principles. A democracy works best when the people have all the information that the security of the nation permits. No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest. I signed this measure with a deep sense of pride that the United States is an open society in which the people's right to know is cherished and guarded. (2

Many states have also enacted laws governing records in their own jurisdictions similar to, or modeled after FOIA. These laws have demonstrated, for more than half a century, that free and open access to government records is necessary to ensure that the rights of citizens are protected and their mandates are faithfully fulfilled. 

The information age has presented numerous challenges to these principles. The volume of data collected and generated has exploded, and the complexity of records produced from these activities has increased substantially. Funding for records management and archives in government, however, sees only marginal year-over-year increases at best, and declines in others.

 Position Statement on Access to Public Records

  • NAGARA stands for the widest possible open access to public records.

  • NAGARA supports “default open” approaches to public records access. The burden of proof for restricting information from public access should fall on the government. The standard of proof should necessarily be high.

  • NAGARA stands for equitable access to public records. All Americans should have equal ability to access information about their government and its actions. Costs are the greatest driver of inequity in access to records, but language barriers, geography, technology access, and other issues also impact citizens’ access to public information.
  • NAGARA supports clearly-articulated exemptions to open access in limited areas. Some records and information must be kept confidential: imminent threats to national security and public safety, and protection of rights including personal privacy, intellectual and real property, and other rights are examples of appropriate restrictions.

  •  NAGARA believes that exemptions to public records access should be narrow in scope and limited in length of time. All exemptions should clearly define when their restrictions expire. Indefinite or arbitrary exemptions directly subvert the intent of public access laws. Those that last for decades do not provide the public the adequate opportunity to reasonably audit and respond to the actions of public officials, and thus must be extremely limited in application. Poorly-conceived or defined exemptions unduly shield public officials from accountability.

  •  NAGARA believes that elected and appointed officials should never (or rarely) have direct influence in making public access determinations. The incentives to prevent disclosure of embarrassing or potentially illegal activity are too great. These concerns are most vital in small offices with limited staff (such as in local government), or in those offices where political officials (elected or appointed) have direct influence over recordkeeping processes.

  • NAGARA believes that claims of executive privilege, attorney-client privilege, and other such privileges (e.g. deliberative process privilege) should be explicitly defined and limited by law, or in some cases eliminated entirely. Abuse of such privileges poses a great threat to the citizens’ ability to audit the performance of government’s highest-ranking officials. There is value in allowing the free exchange of information in government and there is danger in suppressing these exchanges; but the opportunity to hide incompetence, malfeasance, or corruption from the public presents a much greater danger.

  • NAGARA advocates for extremely limited or no collection of information on those seeking public records access. Motivations for access to public information should never be a consideration in access determinations.

  • NAGARA believes that decisions regarding denial of access to public records should be transparent and thoroughly justified by law. Denials should include specific statutory or regulatory citations regarding which exemptions the custodian believes limit the access, and should indicate at what point such exemptions expire. These decisions should never be arbitrary and should not be influenced by anyone with a conflict of interest: for example, those directly responsible for, or whose actions are documented by records, are obviously conflicted.

  • NAGARA believes that public agencies should not impose unreasonable fees to search, view, or copy public records. NAGARA furthermore believes that poor records management practices are at the root of many costly public access issues. “At cost” searches rarely reflect true costs, but instead most often reflect expenses that compensate for poor organization, description, or storage of records. Public agencies should not pass the burden of resourcing records management (including search/retrieval of records for access) to citizens seeking access. Records management activities should be fully funded in agency budgets.
  •  NAGARA believes that requests for records originating from digital systems must include appropriate metadata (including technical and contextual metadata about the records' provenance that establishes authenticity) in addition to the requested content. Any modifications (including reformatting and/or redaction) to original records should be clearly identified as part of the disclosure.

  • NAGARA believes that access methodology and performance (including efficiency, cause for denials, and more) should be regularly audited for compliance.

  • NAGARA believes that any public official that intentionally circumvents or defies public recordkeeping processes or requirements, or uses non-governmental services for the purpose of hiding information from the public, has violated the spirit and intent of public access laws. Intentionally avoiding public disclosure by not creating records, or creating them outside of the public’s reach should be a violation equivalent in severity to the unauthorized destruction of public records. 

Access to public records in most government offices and agencies throughout the United States is both slow and expensive. NAGARA’s advocacy position described above aims to solve the problem practically, as well as philosophically. Most public records access costs originate in two places: extensive searching, and attorney review. Search and retrieval of records can be optimized through greater control of recordkeeping processes, especially through more effective classification, labeling, and storage of records and indexes. Public agencies can reduce the burden of attorney review by reducing the number of exemptions for which information must be reviewed, sunsetting exemptions at the end of short, specific timeframes, and applying classification systems at the point of records creation rather than after-the-fact.

Practical tasks to reduce costs and timetables for accessing public records:

  • Public agencies should devote more resources to description (classification, metadata, labeling) of public records at the point of creation. This will greatly aid search and discovery, which should already be incorporated into records-creation processes. Most importantly, labeling or classification of those records containing exempt/confidential information will greatly reduce the need for legal review. For a simple classification, all records should fall into one of three categories:
    • Publicly accessible (no restrictions)
    • Redacted (partially restricted), publicly accessible in the future
    • Exempt (fully restricted), publicly accessible in the future
  • Public agencies should include anticipated costs for search and retrieval of information, and public access requirements in all designs, procurement, and implementations of information technology. Agencies with mature information governance should know where data is at all times, including what information is part of which records, and in which systems or platforms that data resides.
  • Public agencies can reduce the amount of time spent reviewing potentially-exempt records by taking or advocating for these measures:
    • Significantly reduce the number of public records request exemptions. There are hundreds or thousands of existing exemptions in federal and state statute. This will greatly reduce the set of restricted information, and thus reduce review and redaction time.
    • Review records for exempt information only once, and apply labels during this process. Reduce the number of times a record must be reviewed.
    • Tighten exemption language to narrow and clearly define their scope. Clearly-defined data classifications also reduce the expertise required to make determinations.
    • Implement expirations on exemptions to reduce the quantity of records that require review.
    • Reexamine and optimize records-creation and storage methods for frequently-requested records. Incorporate redaction procedures into recordkeeping processes at the point of creation, whenever possible.
  • Public agencies should ensure that fees borne of recordkeeping practices, extensive review, or arbitrary exemptions should not put a "soft limit” on citizens’ right to access information. The expense devoted to reviewing records is much better spent improving records creation or management governance, as well as auditing and refining agency public information processes. If access procedures require substantial fees, that typically indicates substandard records-creation or -management processes.
  • Public agencies must eliminate all opportunities for political interference in public access workflows. This removes many of the opportunities for delay, costs (including legal costs), and arbitrariness in the process, and allows the people to better trust their government. Political appointees and elected officials should never be involved in public access decision workflows.

NAGARA supports the work of all of the employees of federal, state, and local governments who participate in the records creation, management, or preservation processes. They perform a vital service to the American people, and they should be appropriately resourced to improve efficiency and equity in access to public information. NAGARA believes that our government should trend toward more transparency, more accountability, and more efficiency in recordkeeping processes, and will work toward that goal to benefit the American people. A robust recordkeeping infrastructure that rapidly and efficiently provides information, upon request, to the citizens about the actions and decisions of their government is the only way citizens can trust and verify that their will is heeded.