Entitlement to Public Records: Beyond Citizenship

Résumé

[extract] Nations across the globe have enacted government transparency laws, potentially enabling people to learn what those governments are “up to.” Such laws require governments to provide official documents upon request, albeit often with major exceptions allowing the government to withhold or redact many documents. Scholars have devoted much attention to analysis and assessment of these exceptions and the enforcement mechanisms for holding a government to its transparency obligations. But one conceptually significant question has received scant attention – who should be entitled to demand records under such transparency laws?

The statutory answer to this question is far from uniform; indeed, on this issue transparency statutes can differ quite dramatically. Within the United States, some state governments reserve the right to request records to their own citizens. A few even bar segments of their citizenry, such as incarcerated felons, from invoking their freedom of information laws. Internationally, India limits access to its own citizens. By contrast, the Freedom of Information Act governing access to United States Government records, allows any non-foreign-state requester to obtain records. The European Union (“EU”) and Canada appear to adopt a middle ground that focuses on “physical presence” so that not only citizens, but permanent residents, can access government records.