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.
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 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."
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.
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.
In something of a first, the U.S. Department of Education, charged with publishing guidance on the law, intervened in a federal court suit on behalf of Ohio State University and Miami University, claiming the Ohio Supreme Court had misinterpreted the law.
The universities won in the district court and the case is still pending before the U.S. Court of Appeals for the Sixth Circuit.
The Washington Supreme Court decision is not the first time the U.S. Supreme Court has considered similar issues in recent years. In Los Angeles Police Department v. United Reporting Publishing, the Court upheld a California restriction on access to accident reports for commercial purposes, saying access was only a statutory right that could be legitimately restricted by government.
And in Reno v. Condon, the Court surprised many observers by unanimously upholding the federal Drivers Privacy Protection Act, which requires states to prohibit disclosure of most driver's license information without specific individual consent.
Based on the Court's track record on federalism issues, many had thought the statute would be stricken on 10th Amendment grounds. But what these cases show is that, although infrequent, clashes between state access and federal prohibitions on the disclosure of state records present important unresolved issues that go to the very core of constitutional principles.