Common law may provide access to records in situations where statutory law does not. The common law of access to records for journalists was probably never as deficient in actual practice as it is usually predicted.

Author: Robert L Hughes

The dramatic developments in federal and state right-to-know laws during the past quarter century(1) have commanded the attention of the media and their lawyers, leaving the common law of access to records neglected. But the common law, rather than being a misunderstood relic, can be a creative supplement to modern laws. The common law can open records statutes can't.

There are 51 different right-to-know or freedom of information (FOI) laws. Each state has its own as does the federal government Generally speaking, each require all government records to be open to the public unless a particular record falls into one of several specifically identified categories, such as personnel files. In those instances, the custodian of the record has the discretion to withhold it; balancing the interest served by withholding -- personal privacy, for example -- against the public interest in disclosure, (Occasionally other laws override FOI statutes and require certain records to be withheld. And some agencies, or even an entire branch of government as in the case of Congress, is exempt from right-to-know legislation.)

For most journalists most of the time FOI laws are the legal tools of choice. They don't routinely require a lawyer's help to use. They put the burden of justifying withholding on the government. They define records broadly and they impose time limits for making records available. Also, they are unambiguous, at least when compared to the common law, the traditional case- or judge-made law whose failings the statutes were enacted to correct. Yet the very shortcomings can be turned to advantage where modern statutes prove inadequate. Indeed for journalists the common law of access to records was probably never as deficient in actual practice as it is usually depicted. This article will look at the common law of access to public records, its development and applications.(2)

How the common law got a bad name

The publication of The People's Right to Know(3) in 1953 was a watershed. Its author, Harold L. Cross, planted a seed that eventually inspired a tide of FOI acts.(4) But at the same time, the book diverted attention away from the common law -- ironic, since it was one of the more careful studies of the common law and Cross, in fact, found much to compliment. His complaints were directed not so much at the substantive law as they were at its unpredictability and unwieldy procedures. Even where there was substantive criticism, some cases Cross relied on were atypical then or have since been disregarded if not explicitly overruled.(5)

This is not to ignore the fact there is no one common law. Each jurisdiction -- 52 in the United States if the District of Columbia is included -- adopts its own version. Yet there is no gain saying that if the jurisdictions don't move in lockstep, their overall movement during the latter half of this century, indeed throughout the century, has been one of ever increased liberalization of access. But because of reliance on black-letter history and attention given modern access statutes, it's been under-recognized and under-utilized.(6)

The positives of the common law got lost in the excitement and enthusiasm to craft statutes that insure a legislated right to know.(7) Because state and federal FOI law have attracted virtually all of the mainstream academic and professional attention for the past four decades, little has been done to survey the common law of access to non-judicial(8) government records. As a result, inaccurate and dated views of the common law persist, even as the common law itself, by its very nature, grows with the times.(9)

The English cases

A review of the early English cases that provided the foundation for law in this country shows that common law access cases can be pigeonholed into one of three models. In the first, a person sought a document to advance the common welfare. In the second, a demandant wanted information for a purely commercial purpose, usually resale. Third, a requester asserted a personal need for the information that ranged from curiosity to necessity for litigation.(10)

Only cases of this third type were reported with any frequency.(11) They produced this typical statement of the common law rule:

Every person is entitled to the inspection ... of public records ... provided he has an interest therein as would enable him to maintain or defend an action for which the document or record sought can furnish or necessary information.(12)

If this was an accurate representation of the third model, it held little or no relevance to the other two. Yet commentators and courts have often uncritically and inappropriately apply this same broad-brush rule to those areas.(13)

Little support for this statement -- often called black-letter law since rules were printed in bold-face type in legal treatises -- can be found in those English cases where a public interest, as contrasted with personal interests, was asserted. In Herbert v. Ashburner,(14) for example, a court held that citizens of a community had an absolute right to see the books. Similarly, in Rex v. Guardians of Great Farrington(15) the court held a parishioner could not be denied access to the accounts of the parish. In neither case was a citizen required to prove any special interest beyond the interest held by any citizen of the community.(16)

To be sure, very few cases were reported. Possibly few demandants sought to serve the public interest, or they were routinely permitted access, or they were denied access but couldn't afford the time and treasure litigation demands. But the decisions available suggest that English courts weren't nearly as hostile to allowing inspections for a public purpose as some later assessments of that period contend.(17) The common law devil was not in the right, but in the remedy.

Mandamus, an illusive remedy

Public interest litigants faced two formidable enforcement barriers unrelated to the right they sought to claim. The first was standing.(18) Common law courts usually refused to allow an individual to sue on behalf of citizens who share a general grievance. That's what the attorney general is charged to do, represent citizens. Only if a petitioner could show an injury distinct from that suffered by the at-large population would the courts permit a private suit. The second barrier was the nature of the remedy. Mandamus is the ancient writ, or court order, to compel a government official to perform a specific duty.(19) It is an equitable remedy, subject a catalog of ancient maxims. Only ministerial acts, for example, may be compelled.(20) If the act requires the exercise of discretion -- a balancing of interests in access cases -- a mandamus wouldn't issue.

In short, the citizens of a community had an arguably clear right of access to records for a public purpose, but lacked an adequate remedy to enforce it.

Early American cases

As in England, most of the few reported cases in the United States concerned the demand of a private person seeking access for some private purpose. A particularized or special interest was required in those cases. A court balanced the specific need of the individual requester against the general need, if any, for confidentiality.

But where the public interest was asserted, the courts often by-passed any purported special interest requirement by drawing on an analogy alluded to in some English cases: the right of a stockholder in a corporation to inspect the company's books.

An early treatise on municipal law states:

In this country the records, books and by-laws of a municipal corporation are of a public nature, and if such corporation should refuse to give inspection thereof to any person having an interest therein, or perhaps for any purpose, to any inhabitant of the corporation, whether he has any special or private interest, or not, a writ of mandamus will lie to command the corporation to allow such inspection, and copies are to be taken under reasonable precautions to secure the originals.(21)

This logic provided almost everyone with a special interest, both as to the right, where it was not required, and to the remedy, where it was. As municipalities during the 19th Century expanded into the utilities business,(22) initially water services, the analogy to private, shareholder-owned corporations became even more apt and grew to include other enterprises of the municipality and finally all records of the municipality.(23) In 1897 a Pennsylvania court was able to conclude that:

It may now be regarded as settled law in this country that every corporator or citizens of a municipality has the right, on all proper occasions, to inspect and copy its records, books and documents. It is not confined to such a persons only as may have a special interest in the result of the examination.(24)

That may have overstated it. But evidently only one American case refused access solely on the basis that a public interest request required showing a special private interest, as opposed to that shared by all citizens, taxpayers or the like -- and it was overruled.(25)

The shareholder rationale was elastic enough to reach the records of county and state governments:(26)

The right

of inspection

rests, not only on the ground that the books are public books, but on the same principle that authorizes a taxpayer to enjoin the enforcement of illegal contracts entered into by the municipality, county, or state

emphasis added

, for the protection of the applicant and all other taxpayers from illegal burdens.(27)

Citizens and taxpayers were in a very real sense shareholders. Courts seemed especially willing to enforce the examination of financial records of a municipality.(28)

By the turn of this century, many and probably most American courts had not only recognized a broad right of public interest access but provided a remedy without any special showing.(29) The Vermont Supreme Court, for example, distinguished between cases where "the extraordinary aid of a mandamus is involved merely

emphasis added

for the purpose of enforcing or protecting a private right...." The court rejected the view that any special interest was necessary to vindicate the right: "

I

t being sufficient to show that he is a citizen and as such is interested in the execution of the laws."(30)

Few newspaper cases were reported in the 19th Century(31) and newspaper demandants were frequently unsuccessful, not because of their generalized interest or the remedy, but because the information they sought was not considered a public record under the common law's narrow definition.(32) After the turn of the century, however, newspaper requests multiplied and denials were fewer.(33) Courts might recite a narrow, restrictive rule, but they didn't apply it to the case at hand.(34) By 1953 a legal encyclopedia maintained that no special personal or pecuniary interest need be shown in inspecting state records "if his inspection is made in the interest of the public weal."(35)

Explaining this change is a leading case of the period, Nowack v. Fuller:(36)

If there is any rule of English common law that denies the public the right of access to public records, it is repugnant to the spirit of our democratic institutions. Ours is a government of the people. Every citizen rules... Undoubtedly if would be a great surprise to the citizens of Michigan to learn that the law denied them access to their own books, for the purpose of seeing how their money was being expended and how their business is being conducted. There was not such law and never was in either this country or in England.... There is no question as to the common law right of the people at large to inspect public documents and records.(37)

Even in a jurisdiction that purported to require a special interest to afford a remedy, it was usually token. Some, for example, took the view that the only special interest necessary for access was good faith.(38) (When the interest was commercial(39) or personal,(40) a substantive special interest was still required.)

At mid-century Cross was able to state:

A person may inspect public records in which he has an interest or make copies or memoranda thereof when necessity for inspection is shown and the purpose does not seem improper, and where disclosure would not be detrimental to the public interest.(41)

As to what might be detrimental to the public interest, the Rhode Island Supreme Court, in a frequently cited opinion said:

N

o one has a right to examine... public records from mere curiosity, or for the purpose of creating public scandal. To publish broadcast

sic

the painful, and sometimes disgusting, details of a divorce case, not only fails to serve any useful purpose in the community, but, on the other hand, directly tends to the demoralization and corruption thereof, by catering to a morbid craving for that which is sensational and impure.(42)

But no media cases could be found in which access was denied solely because of that rule.

Modern common law

Generally

Right-to-know laws or other statutes do not usually repeal(43) or diminish(44) the common law. It continues in full force. Examining a common law request for a record clearly exempt under the federal FOIA, a federal court said:

We can find no inconsistency or conflict between the Freedom of Information Act and the common law rule. Even if there were an inconsistency or conflict, the Act would have to be construed narrowly, favoring application of the common law, because the Freedom of Information Act is in derogation of the common law.(45) It retains its vitality as a distinct remedy.(46)

When a statute operates in an area formerly governed by the common law, the existing law is changed "only if the statute overturns the common law in clear and unambiguous language, or if the statute is clearly inconsistent with the common law."(47) Even then, statutes in derogation of the common law should be strictly construed while those enlarging the right should be construed liberally in favor of inspection.(48)

Since the legislative intent underlying right-to-know statutes is to expand the common-law right, every conflict should be resolved in favor of access.(49) Where a statute happens to be more restrictive than the common law -- and those instances aren't rare -- the common law should trump it.

The last gasp of the special interest requirement

In 1978 the United States Supreme Court observed that American courts recognize a general common law right to inspect and copy public records and documents. Ample to support standing was a newspaper's interest "... to keep a watchful eye on the workings of public agencies."(50) Lower federal courts had already dismissed the special interest requirement. In Mitchell v. NBC, Inc.,(51) a United States District Court said:

The supposed requirement of English common law that one have a personal 'legitimate interest' in judicial records... was in fact simply a requirement of standing to sue to enforce the right in mandamus where access had been wrongfully denied."(52)

Common law jurisdictions abandoned the requirement. In Vermont, for example, the comm on law was held to protect "the right in all citizens to inspect the public records made and preserved by their government when not detrimental to the public interest."(53) West Virginia readily granted standing to a newspaper that claimed only to represent the interest of its readers who are citizens, taxpayers and voters.(54) After reciting the catalog of common law exceptions, the court declared:

It is indeed difficult to envision a greater interest in public records which reflect the handling of public funds than that of a citizen and taxpayer who own contribution to the public funds is directly involved. His is a real interest.(55) If the special interest exists in any sense today, it is unrecognizable.

How common law can be used today

State and federal records statutes are and should remain the front-line legal weapons to dislodge records from reluctant officials. But adding a common law request to a problematic statutory records demand costs nothing and can lay the groundwork for a successful challenge to withholding. Several widespread, recurring problems under right-to-know statutes particularly lend themselves to common-law solutions.

Access to non-existent records

No FOI statute requires a record to be created or compiled. In the 1986 New Jersey case of Loigman v. Kimmelman,(56) for example, access was sought to the records of a confidential investigation of the state Attorney General. The official argued that the file was not one required by law to be maintained or kept on file and therefore was not a "public record" under the statute. The demandant then asserted a common law right of access to the materials. On appeal the court agreed they were not records for purposes of the legislation, but citing earlier decisions(57) held that "records prepared by

a

State agency are public records at common law even if they are not required by law and thus not public records within the Right to Know statute...."(58)

Similarly, in Daily Gazette Co., v. Withrow,(59) a West Virginia newspaper sought access to a settlement agreement between a sheriff and a discharged deputy. The sheriff had no documents relating to the settlement and said such records were not required by law. The newspaper filed suit under the state freedom of information statute(60) and the common law. The court agreed that the terms of the state statute did not obligate the sheriff to either create or maintain a record of the settlement agreement, but the common law did.(61) It reaffirmed the language of an earlier case:

Whenever a written record of the transactions of a public officer, in his office, is a convenient and appropriate mode of discharging the duties of his office, it is not only his right but his duty to keep that memorial, whether expressly required so to do or not; and when kept it becomes a public document.(62)

And a New Jersey trial court used a common law theory to order police to provide a newspaper with incident reports and statements of witnesses related to a police brutality complaint and suit.(63) The documents were not required to be maintained under the state Administrative Code and thus weren't subject to the records act. But the court ordered disclosure since the common law definition of record was broader than the statutory one.(64)

These cases provide powerful ammunition to the position that that an official must create a specific record if it is one that "constitutes a convenient, appropriate or customary method of discharging the duties of the office."(65)

Records of those who exclude themselves Right-to-know laws often exempt certain agencies or entire branches of government from their reach.(66) State legislatures often ease if not eliminate the requirements their state FOI act imposes on them.(67) Congress excused itself from the federal FOIA.(68) In Schwartz v. Dept. of Justice,(69) however, a federal District Court noted that all three branches of government are subject to the common law right of access. It held that the records of Peter A. Rodino Jr., then chairman of the House Judiciary Committee, were subject to common law access rights even though they were exempt under the federal FOIA.

Balancing the interests and redaction

All access statutes exempt certain categories of records from required disclosure. They allow withholding but don't require it. The custodian, the statute implies, should balance the public interest in disclosure against the competing interest, such as personal privacy.(70) In practice, precious little balancing actually occurs and the custodians often arbitrarily withhold a document if it arguably falls into an exempt category.

A demand based on the common-law, with its lengthy tradition of case-by-case balancing, can force a custodian to engage in principled balancing.(71) In Depart. of Defense v. Federal Labor Relations Authority,(72) the U.S. Supreme Court held that the only purpose to be balanced against an asserted need for confidentiality was the extent to which disclosure would serve the "core purpose" of the FOIA. That purpose was characterized as opening agency action to the light of public scrutiny or advancing public understanding of the operations of government. The request, for home addresses of employees, didn't appear to serve either of those general interests. The court said the specific purpose of the requestor could not be considered. Thus, the request was denied. Under the common law, it seems clear a court could put both the general public interest and the specific purpose to be served by the request in the balance. By the same token, the common law can force the excision or deletion of protected material and release of the remainder,(73) something the statutes achieve with difficulty.(74)

Copies: 10,000 printouts or one computer tape

Initially the right to copy records didn't raise issues.(75) When inspection was allowed so was copying.(76) Copying methods were limited. One of the first modern cases was State ex rel Gibson v. Peller.(77) Taxpayers there claimed a right under the state Records Act(78) to photograph certain school records. The school board argued that the plaintiffs had the right only to inspect them with "the naked eye... and copy them by hand... ."(79) The court held:

This argument cannot be sustained by logic or common knowledge. Modern photography is accurate, harmless, noiseless and saves time ... Neither defendants nor the public can be harmed by the reproduction of the records exactly as they exist. The fact that modern methods of copying are devised should not lessen the basic right given under the common law

emphasis added

.(80)

Today controversy centers on data in electronic format.(81) When a record is available in both paper form and computers tapes or disks, statutes can be ambiguous as to which one should be provided.(82)For some demandants, one form instead of the other can in effect make access meaningless. A common law request can impose a rule of reason. In Brownstone Publishers v. Department of Buildings,(83) for example, a publishing company sought to require the city department of buildings to provide records on computer tapes, rather than hard copy. The computer printout would have taken six weeks to print, produced one million pages, demanded considerable employee monitoring (if only to replenish paper) and cost at least $10,000.

Reconverting the data into useful digital form would cost the plaintiff hundreds of thousands of dollars. A copy of the tape itself would require only several hours and cost less than $500. The statute didn't address the problem squarely and the court paid only lip-service to the language of the law. Rather, it applied a common law rule of reason to order the tape copied. To do otherwise wouldn't provide "reasonable access."(84)

Similarly, in ordering a county clerk to allow a computer tape to be copied, the Supreme Court of New Mexico nodded perfunctorily to its statute, surveyed decisions in other jurisdictions and concluded in a common law vein:

We are unable to understand why the right to inspect public records should not carry with it the benefits arising from improved methods and techniques of recording and utilizing the information contained in these records, so long as the proper safeguards are exercised... . We fail to understand how it can be said that the inspection and copying of information contained on a printed and written affidavit of registration, which is a public record, is proper, but the inspection and copying of this identical information from the "working master record" tape, which is also a public record, constitutes an invasion of privacy.(85)

Summary

The shortcomings of the common law are considerable. The law is murky, courtroom procedures complex and the burden of proof on the demandant. One looks to the case law, not statutes, for answers. Elaborate balancing adds costs and uncertainty. Where some right-to-know statutes make a pro se or self-represented suit feasible(86), an attorney is essential in a common law suit.

Yet it is this very reliance on balancing case law and simple reason that makes the common law such an appealing supplementary legal tool in the quest for important, difficult information that statutes won't give up. Given its rich and varied texture, there's no best way to use it. Common law precedents of the forum should be examined of course. But relevant law is hardly limited to one jurisdiction. Unlike the rules of statutory interpretation,(87) the common law is a willing borrower of whatever law, logic and experience(88) it finds useful or persuasive. "This common law right is not some arcane relic of ancient English law. To the contrary, the right is fundamental to a democratic state."(89)

Notes

1. Perhaps the first statutory right of access to public records in this country was that of Wisconsin in 1849. L. Amico, State Open Records Laws: An Update 2, Columbia, Mo.: Freedom of Information Center, 1976, quoted in, Comment, Public Inspection of State and Municipal Executive Documents, 45 Fordham L. Rev. 1105, n3 (1976). Half of the states adopted records access laws after passage of the Federal Freedom of Information Act, U.S. Code. Vol. 5, Sec 552 as amended. (1966). They are listed in 45 Fordham L. Rev. 1105, n5.

2. Judicial documents relating to the substance of cases -- e.g., depositions, subpoenas, evidentiary documents -- are beyond the scope of this article. Nor is the issue of what constitutes a public record examined. Finally, the statutes referred to are broad "freedom of information" or "right to know" statutes, as opposed to specific laws granting access to, for example, deeds. Access claims based on the first amendment or comparable state constitutional provisions are not explored. For a constitutional approach, see Society of Professional Journalists, Headliners Chapter. v. Briggs, 675 F.Supp 1308 (D. Utah, C.D., 1987). The common law and constitutional arguments, however, are similar.

3. New York: Columbia University Press, 1953 (hereinafter cited as Cross). See also, Note, Open Meeting Statutes: The Press Fights for the "Right to Know, 75 Harv. L. Rev 1199, 1200-01 (1962) ("The people must be able to 'go beyond and behind' the decision reached and be apprised of the 'pros and cons' involved if they are to make sound judgments on questions of policy and to elect their representatives intelligently.")

4. The seed Cross planted helped result in enactment of the federal Freedom of Information Act a decade later and a wave of state laws that culminated in 1990 of Mississippi's becoming the last state to adopt one. Miss. Code Ann. Sec 25-61-6 (Supp. 1993). Prior to 1940 only 12 states had public records acts and most were only one or two sentences in length. Comment, Public Inspection of State and Municipal Executive Documents, 45 Fordham L. Rev. 1105, n3 (1976).

5. E.g., City of St. Matthews v. Voice of St. Matthews, Inc., 519 S.W.2d 811 (Ky 1974) overruled Fayette County v. Martin, 279 Ky. 387, 130 S.W.2d 838 (1939) cited by Cross at 257, 259, 260, 261, 262, 264 and 269.

6. For a contemporary account, see 45 Fordham L Rev 1105 (1977).

7. This is a frequently studied and litigated area.

8. Referring to the famous complaint of Justice Oliver Wendell Holmes Jr.: "It is revolting to have no better reasons for a rule of law than that it was so laid down at thin the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Oliver Wendell Holmes Jr., Collected Legal Papers, Boston: A. Harcourt 1920, p. 187.

In directed release of municipal utility records, a Florida court emphasized the organic nature of the common law:

The rules of the common law will be applied to those cases which come within their reason and equity, even when such cases seem to be outside the strict letter of such rules as they are ordinarily states. The terminology employed in the enunciation of the principles of the common law had its rise in conditions existing at the time of such enunciation. As new situations are discovered, strict terminology will be related, and it will be determined, accordingly, that such situations either do or do not come within the rules, as their true spirit and equity may direct and require. Florida ex rel. Cummer v. Pace, 164 So. 723 (Fla. 1935).

9. E.g., Egan v. Board of Water Supply, 205 N.Y. 147, 98 N.E. 467 (1912).

10. Modern discovery makes this kind of common-law access demands redundant in litigation. For the historical development see generally, Fleming James Jr., Civil Procedure. Boston: Little, Brown and Co. 1965, pp. 179-201. Early access decisions often turned on an analysis closely kindred to that of modern discovery law.

11. 66 Am.Jur.2d Records and Recording Law Secs 15 (1966). Frequently it was said that there is no right to inspect for curiosity, morbid interest, to further any improper or useless purpose or create scandal.

12. For an extended discussion of the English rule and cases. see Nowack v. Fuller, 243 Mich. 200, 219 N.W: 749 (1928), 60 ALR 1356. See also, State ex rel. Wellford v. Williams, 41 N.J. 332, 32 Am. Rep. 219 (1879).

13. Loigman v. Kimmelman, 102 N.J. 98, 505 A.2d 958 (1986). See, also Casey v. MacPhail, 2 N.J.Super. 619, 65 A.2d 657 (Law Div. 1949) (Former Justice William Brennan, then a Superior Court judge, affirmed a citizen's common law right of access.) See also, Cross., op. cit., at 26.

14. 1 Wilson 297, cited in State v. Williams. 110 Tenn. 549, 75 S.W. 948, 954 (1903).

15. 9 B & C 541, 109 Eng. Reprint 202 (1829).

16. See also, Rex v. Lucas, 10 East. 235, 103 Eng. Reprint 765 (1808) (resident entitled to inspect and copy court rolls without showing of a special interest). But see, Rex v. Allgood 7 T.R. 746, 101 Eng Reprint 1232 (1798) which denied a citizen who had no case pending access to court roles.

17. Indiana state press association attorney criticized the state anti-secrecy act as "narrower that the common law of England." United Press International, Feb. 19, 1983.

18. For a general discussion, see Valley Forge Christian College v. American United for Separation of Church and State, 454 U.S. 464 (1982).

19. Annotation, Inspection of Public Records. Mandamus 60 ALR 1356.

20. Nor will one issue when the petitioner has another adequate remedy. Powell v. Smith, 152 Va. 209, 146 S.E. 196 (1929) When a private purpose or interest is asserted, granting the writ would affect right of people not before the court. Clay v. Ballard 13 SE 262, 263 (Va 1891). The key problem what that the common law right was not absolute "certain, complete and substantial." See generally 60 ALR 1358.

21. Dillon on Municipal Corporations Sec 848, cited with approval in, State v. Williams, 110 Tenn 549, 78 S.W. 948, 949 (1903).

22. Mushet v. Dept. of Pub. Service, 35 Cal.App. 630, 170 P. 653 (1917).

23. The case is annotated in 102 ALR 756 (1936).

24. Commonwealth ex rel. Biddle v. Walton, 6 Pa. Dist. R. 287 (1897). See also, Burton v. Tuite, 78 Mich. 363, 44 N.W. 282 (1889).

25. Courier Journal & Louisville Times Co. v. Curtis, 335 S.W.2d 934 (1960), overruled, City of St. Matthews v. Voice of St. Matthews, Inc., 519 S.W.2d 811 (Ky 1974). (Strictly speaking cases turned on standing to challenge, not access). Even in Curtis, the court had held that the newspaper was presumed to have the requisite interest in limited circumstances. In St. Matthews, the court rejected a rule that "originated under a monarchic form of governments...

and held

"a purpose which tends to advance or further a wholesome public interest..." was sufficient. 519 S.W.2d 811, 815.

26. See, Palacios v. Corbett, 172 S.W. 777 (Tex. Civ. App 1915) (citizen taxpayers had sufficient pubic and personal interests in country financial records to compel inspection) but see, Hall v. Staunton, 55 W.Va. 684, 47 S.E. 265 (1904) (petitioner request for access to documents relating to special election unjustified.) See generally, 60 ALR 1356.

27. State ex rel. Ferry v. Williams, 431 N.J.L. 332, 32 Am Rep. 219 (1879) at 958-59:

And it is obvious that, in making and enforcing such application, the taxpayer acts in a very real sense, not only for himself, but for all other taxpayers, and acts, therefore, in the capacity, as if he were, of a trustee for all. It must be admitted also, that the exercise of such powers, if prudently and carefully guarded, cannot be otherwise than salutary, because the knowledge that it can be exercised by a citizen and taxpayer, and may be exercised when the public good shall seem, on sound reasons, to demand it. cannot result otherwise than in producing an added sense of responsibility in those who administer the affairs of municipal corporation, and in inducing a greater carefullness in the discharge of the trusts imposed on them by their fellow citizens under the sanction of law.

28. State ex rel. Wellford v. Williams, 110 Tenn. 549, 78 S.W. 948 (1903).

29. E.g., State ex rel Colscott v. King, 154 Ind. 621, 57 N.E. 535 (1900), Fagan v. State Bd. of Assessors, 80 N.J.L. 516, 77 A. 1023 (1910); State ex rel Clement v. Graham, 78 Vt. 290, 63 A. 1246 (1906).

30. Clement v. Graham, 78 Vt. 290, 63 A. 146 (1906). See also, State ex rel. Ferry v. Williams, 431 N.J.L. 332, 32 Am Rep. 219 (1879) (adopting rule that every person is entitled to inspect public records, provided he show the requisite interest. As taxpayer and inhabitant, he has such an interest. Not essential that the interest be private to secure a writ of mandamus.)

31. It is difficult to distill from the relatively few judicial decisions a comprehensive definition of what is referred to as the common-law right of access or to identify all the factors to be weighed in determining whether access to appropriate. The few cases that have recognized such a right do agree that the decision as to assess is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case. Nixon v. Warner Communications, Inc., 435 U.S. 589, 599, (1978).

32. See Cross, op. cit., at p. 29 and p. 321 (Appendix 1). The appendix summarizes 31 decisions Cross relies on. A recent common law case in which access was denied because the court held the documents were not public records is Washington Legal Foundation v. U.S. Sentencing Commission, 21 Media L. Rptr. 2110 (D.D.C. 1993).

33. Cross, op. cit., at pp. 29, 37 and 321.

34. Cross, op. cit., at p. 57.

35. 45 Am.Jur, Records and Recording Laws Sec 24 (1953) cited in State ex rel Charleston Mail Ass'n v. Kelly, 143 S.E.2d 136, 140 (1965).

36. 243 Mich. 200, 219 N.W. 749 (1928).

37 Ibid.

38. "Their motives are good... and

they

are seeking information which may support demands for increased governmental efficient and affirmative action for the elimination of any existing abuses." Taxpayers Ass'n of Cape May v. City of Cape May, 2 N.J.Super 27, 64 A.2d 453 (1949).

40. Shelby County v. Memphis Abstract Co., 140 Tenn. 74, 203 S.W. 339 (1918).

41. Beckon v. Emery, 36 Wis.2d 510, 153 N.W.2d 501 (1967) (police chief's assertion that release would be "contrary to the public interest" insufficient justification to deny mandamus). See generally, 66 Am.Jur2d Sec 15 (1966).

42. Cross, op. cit., at 29, citing State ex rel. Research Institute v. Nix, 195 Okla 176, 155 P.2d 983 (1944).

43. Re Caswell, 18 R.I. 835, 29 A. 259 (1893). The court went on to say in less frequently quoted dictum that "The judicial records of the state should always be accessible to the people for all proper purposes.., but they should not be used to gratify private spite or promote public scandal."

44. People ex rel. Gibson v. Peller, 34 Ill. App. 2d 372, 181 N.E.2d 376 (1962). But see Mooney v. Board of Trustees of Temple Univ., 448 Pa. 424, 429 n10, 292 A.2d 395, 399 n10 (1972).

45. Wiley v. Woods, 393 Pa. 341, 349-50, 141 A.2d 844, 848-49, 1958).

46. Schwartz v. Dept. of Justice, 435 F. Supp. 1203 (D.C. 1977), aff'd, 595 F.2d 888 (D.C. Cir. 1979).

47. "Common law and statutory rights are not mutually exclusive. The two complement each other, together embodying the State's strong commitment to access to public record." South Jersey Publishing Co., v. New Jersey Expressway Authority, 124 N.J. 478, 591 A.2d 921, 927 (1991) ("memorandum of understanding" containing conditions of termination of state employee that was agreed to in executive session, was not accessible under the state public records law but was available as a "public record" under the common law).

48. Caledonian Record Pub. Co. v. Walton, 573 A.2d 296 (Vt. 1990), quoting State v. Francis, 151 Vt. 296, 561 A.2d 392 (1989). (holding arrest records were accessible under the common law as well as under access statute). For another case allowing common law access to arrest records, see Newspaper, Inc. v. Breier, 89 Wis.2d 417, 279 N.W.2d 179 (1979).

49. Clay v. Ballard, 87 Va. 787, 13 S.E. 262 (1891).

50. No modern cases could be found in which a statute was given precedence over a more liberal common law approach.

51. Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, (1978).

52. 386 F.Supp. 639 (1979).

53. 386 F.Supp. 639 n2. In upholding that decision the U.S. Court of Appeals used even more sweeping language: [T]he American courts tended to view any limitation as "repugnant to the spirit of our democratic citizens" and therefore granted all taxpayers and citizens access to public records." U.S. v. Mitchell, 179 U.S. App. D.C. 293, 551 F.2d 1252 (1976)on remand, U.S. v. Mitchell, 425 F.Supp. 917(D.D.C. 1976 and rev'd on other grounds, Nixon v. Warner Communications, U.S. 589 (1978).

54. Matte v. City of Winooski, 129 Vt. 61, 271 A.2d 830 (1970).

55. State ex rel. Charleston Daily Mail Assn' v. Kelly, 143 S.E.2d 136(W.Va. 1965).

56. "The right to inspect a public record does not attach to all persons or to every situation. He who asserts that right must have some interest in the record of which he seeks inspection, and the inspection must be for a legitimate purpose. There is no right of inspection of a public record when the inspection is sought to satisfy a person's mere whim or fancy, to engage in a pastime, to create scandal, to degrade another, to injure public morals, or to further any improper of useless end or purpose." Ibid. citing State v. Harrison, 130 W.Va. 246, 43 S.E.2d 214 (1947).

57. 102 N.J. 98, 505 A.2d 505 (1986).

58. Nero v. Hyland, 76 N.J. 213, 386 A.2d 846 (1978); Irval Realty Inc. v. Board of Pub. Util. Comm'rs, 61 N.J. 366, 294 A.2d 425 (1972).

59. Loigman at 961 . See also, Red Bank Register v. Bd. of Education, 206 N.J. Super. 1,501 A.2d 985 (1985) (consultant's curriculum report not record but under the statutory definition, but accessible under the common law definition).

60. 177 W.Va. 110, 350 S.E.2d 738 (1986). See also, Miami Herald Publishing Co., v. Collazo, 329 So.2d 333, (Fla. Dist. Cit. App.), cert. denied, 342 So.2d 1100 (Fla. 1976).

61. W.Va. Code 29B-1-5 (1977).

62 Ibid. at 138

63. State ex rel. Charleston Mail Ass'n v. Kelly, 149 W.Va. 766, 769 143 S.E.2d 136, 139 (1965). See also, State ex rel. Beckley Newspapers Corp. v. Hunter, 127 W.Va. 738, 34 S.E.2d 468 and Daily Gazette Co., Inc. v. Withrow, 350 S.E.2d 738 (W.Va. 1986).

64. Asbury Park Press, Inc. v. Seaside Heights, L-5559-90-PW (NJ 1990), reported in New Jersey Law Journal, March 7, 1991, p. 37.

65. A record is

...one required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done, or a written memorial made by a public officer authorized to perform that function, or a writing filed in a public office. The elements essential to constitute a public record are... that it be a written memorial, that it be made by a public officer, and that the public officer be authorized by law to make it. Jsoefowicz v. Porter, 32 N.J. Super. 585, 581 (App. Div. 1954).

66. International Union v. Gooding, 251 Wis. 362, 371, 29 N.W.2d 730, 735 (1947).

Other, somewhat more restrictive definitions limited documents to those required or directed by law. E.g., Amos v. Gunn, 84 Fla. 285, 94 So. 615 (1922).

67. E.g., Cal. Gov't Code Secs 6252(a) (West 1992) (exempts legislature from California Public Records Act).

68. E.g., Code of Va. 1950, Sec 2.1-341 (Michie 1993)

69. 5 U.S.C. Sec 551(1)(A).

70. 435 F.Supp. 1203 (D.C. 1977), affd 595 F.2d 888 (D.C. Cir. 1979) ("We hold that Congress is subject to the common law rule which guarantees the public a right to inspect and copy public records.")

71. Some records laws mandate secrecy. It is to these statutes the general law refers with the provision "unless otherwise by law."

72. Red Bank Register v. Board of Education, 206 N.J. Super 1, 501 A.2d 985 (1985). (Trial court directed to balance the interest in discovering mismanagement of funds against discouragement of curriculum innovation in deciding whether to order release of consultant's report).

73. 114 S.Ct. 1006 (1994).

74. Loigman v. Kimmelman, 102 N.J. 98, 505 A.2d 958, 966 (1985).

75. States that approach this problem at all do cautiously. E.g., Va. Code Ann. Sec 2.1-342 (4) (Michie 1992) requires "Any reasonably segregatable portion of an official record [to] be provided to any person requesting the records after deletion of the exempt portion."

76. Jay Hamburg, As Paper Vanishes, Rights Are Endangered; Technology's Price: Charging Citizens to Inspect Public Records. Orlando Sentinel Tribune, April 18, 1993.

77. "At common law the right to inspect public documents is well understood. The authorities on the subject are very numerous, and they uniformly hold that such a right includes the right, when necessary to the attainment of justice, to take copies. We have been referred to no case, and are aware of none, in which this has ever been denied." Clay v. Ballard, 13 S.E. 262, 263-64 (Va. 1891) (citing several English decisions and treatises).

For more modern treatments of the issue, see Ortiz v. Jaramillo, 82 N.M. 445, 483 P.2d 500 (1971) (requiring records clerk to allow copying of computer tape).

78. 34 Ill.App.2d 372, 181 N.E.2d 376 (1962).

79. State Records Act Sec 43.7, ch 116 Ill. Rev. Stat. 1959.

80. Ibid. at 377.

81. Ibid. See also, In re NBC U.S. v. Myers, 635 F.2d 945, 950 (1980) (The common law right to inspect and copy public document originally permitted copying the content of written documents. With the advent of modern means of document reproduction, such as photography and xerography, the right was applied to copying the physical embodiment of the document.) But see, Matte v. City of Winooski, 271 A.2d 830 (Vt. 1970). (State Supreme Court custodian's refusal to allow photo-copying of record on the basis it might be disruptive).

82. "State Freedom of Information Requests: The Right to Receive Information in a Particular Medium or Format," 86 ALR4th 786.

83. American Federation of State, County & Mun. Employees (AFSCME) AFL-CIO v. County of Cook, 144 Ill.Dec. 242, 136 Ill.2d 334, 555 N.E.2d 361 (1990).

84. 146 Misc2d 376, 550 N.Y.S. 2d 564 (N.Y. County 1990).

85. But see, Dismukes v. Dept. of the Interior, 603 F.Supp 760 (D.D.C. 1984) (microfiche rather than computer tapes held to provide reasonable access, although a tape might be more convenient).

86. Ortiz v. Jaramillo, 483 P.2d at 446-7, 502-3.

87. Virginia allows freedom of information suits to be filed in its General District Court, a usually informal court not of record. Va. Code. Ann. Sec 16.1-77 (Michie 1993). Appeals may be made, however, to the Circuit Court where an attorney will almost certainly be necessary.

88. Reed Dickerson, The Interpretation and Application of Statutes. Boston: Little, Brown and Co., 1975.

89. "The life of law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than syllogism in determining the rules by which men should be governed." Oliver Wendall Holmes Jr., The Common Law. Boston: Little, Brown and Co., 1881, pp 1-2.

90. In re NBC, 551 F.2d 1252 (D.C. 1976).

Hughes is associate professor in the School of Mass Communications at Virginia Commonwealth University in Richmond.

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