What happens when state open records laws require disclosure but federal laws seem to prohibit it?

This clash between laws has cropped up on occasion and is currently playing a role in the legal fight over identifying detainees rounded up after Sept. 11. It is also the central issue in a case the Supreme Court will hear this fall that may be the first time in several years the Court will be able to address questions of federalism pertaining directly to information disclosure.

The federal Freedom of Information Act contains an exemption for other statutes requiring non-disclosure of certain categories of information. There are probably several hundred of these prohibitory statutes, and agencies cite the individual statute if it applies to requested information.

State laws are generally similar, although typically such exemptions apply both to state and federal laws and may even apply to regulations. But where controversy normally arises is when a federal law or regulation is cited as the basis for withholding records when the statute or regulation may not clearly be applicable.

This conflict of state and federal laws and regulations has taken center stage in a case in New Jersey where the ACLU sued Passaic and Hudson counties for access to a list of detainees being held on federal immigration charges in county jails. The judge ruled that information pertaining to who was being held at the county jail was covered by the state's open records law and that the counties were required to release it.

However, the Immigration and Naturalization Service said the federal prisoners were only being held at the jails under contract and that the counties were prohibited from disclosing information without the permission of the federal agency. The agency pointed to statutory authority providing that the INS develop procedures for processing immigration charges and proceeded to publish a proposed regulation in the Federal Register prohibiting state facilities from disclosing information about immigration detainees without federal authorization.

The ACLU has countered that the information is purely a state record not subject to any federal prohibition.

Supreme Decision

While the New Jersey case presents some hot-button issues because it is tied to the Sept. 11 investigation and involves significant constitutional and civil liberties issues, the case that has recently been accepted by the Supreme Court deals with some of the same underlying issues involving the clash between state and federal law, but in a completely different context. Even so, the stakes involved are equally high.

Last year, the Washington Supreme Court ruled that the use of information collected by state and local agencies pertaining to intersections considered to be traffic hazards could not be withheld from state court litigants on the basis of 23 U.S.C. 409.

The code is a provision in a federal highway statute. The provision was designed so that states could identify particularly risky intersections and apply for federal funding to solve such road conditions. But Congress added section 409 as a prohibition on the use of such information by plaintiffs suing for damages as the result of injuries sustained in accidents.

The provision covers "reports, surveys, schedules, lists or data compiled or collected for the purpose of identifying, evaluating or planning the safety enhancement of potential accident sites, hazardous road conditions or railway-highway crossings ..."

The provision goes on to say that such information "shall not be subject to discovery or admitted into evidence in a federal or state court proceeding or considered for other purposes in any action for damages ..."

A practical problem facing the court was that much of this information is routinely collected by state agencies for state purposes. However, agencies argued that it was also "compiled or collected" under the federal provision.

In a case of first impression, the

Harry Hammitt  |  Contributing Writer