court ruled that litigants could not introduce such information into evidence, but that it was subject to discovery. The court then went on to say that Congress had overstepped its jurisdiction by trying to mandate how state-collected information could be used in state courts.

Observing that the U.S. Supreme Court had struck down a number of statutes in recent years because they violated the 10th Amendment's grant of powers to the states, the Washington court concluded that such broad grants of federal power as the Commerce Clause did not apply here, noting, "We fail to see how [vital federal interests in the highway system] are reasonably served by also barring the discovery and admissibility in state court of routinely prepared state and local traffic and accident materials and data that would exist even had a federal safety enhancement program never been created ...."

The court pointed out that "such a broad privilege lacks the requisite nexus to [section] 409's raison d'etre and cannot reasonably be characterized as an 'integral part' of the federal-aid highway system's regulation."

Nationwide Dilemma

Historically, part of the problem with applying federal law to state records has been that state courts tend to apply federal law too broadly and withhold records at the state level that could not be withheld at the federal level.

Several years ago, a Tennessee court upheld the use of 23 U.S.C. 409 to deny access under the public records act to hazard information about a railway crossing. Although the federal provision contains mandatory restrictions, those restrictions only apply to the use of the records in litigation, not to their disclosure generally under an open records law.

However, the court reasoned that the congressional intent was to keep this information out of the hands of litigants and to allow the open records law to be used as a back door method of access would defeat the congressional intent.

The Georgia attorney general ruled several years ago that a provision in the federal statute setting up the criminal history information network prohibited the disclosure of information from the network under Georgia's open records law.

Ironically, the U.S. Court of Appeals for the District of Columbia Circuit had found several years earlier that the exact same provision did not create a statutory prohibition against disclosure under the FOIA.

The Georgia Supreme Court required the Atlanta police to disclose records on the Atlanta child murders investigation to several media requesters under the state's open records law. But at the last moment the FBI intervened in the case and insisted that records in the custody of the Atlanta police that had originated with the FBI could not be disclosed because they were protected by an exemption in the federal FOIA.

Although the exemptions in FOIA are generally discretionary and had never been considered themselves to be obstacles to disclosure under state law, the U.S. Court of Appeals for the 11th Circuit agreed with the FBI and made the Atlanta police return copies of FBI records.

However, since the records had already been disclosed, the court did not require the Atlanta police to attempt to recover them from the requesters.

Legal Misinterpretation

Perhaps the most misinterpreted statute on the state level has been the federal Family Educational Rights and Privacy Act, which requires schools receiving federal funds to protect the privacy of student records or face the possibility of losing federal funding.

Several federal courts, including one in the District of Columbia, have ruled the statute does not prohibit disclosure of records. But a major controversy broke out when the Ohio Supreme Court ruled that student disciplinary records maintained by state universities must be disclosed under the public records act.

Harry Hammitt  |  Contributing Writer