'Q' says that we have more than we know. While I know most will say we have more information, and I do agree with that, I say it is more power than we know.
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 common 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. **
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Cross, op. cit., at 29, citing State ex rel. Research Institute v. Nix, 195 Okla 176, 155 P.2d 983 (1944).
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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."
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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).
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Wiley v. Woods, 393 Pa. 341, 349-50, 141 A.2d 844, 848-49, 1958).
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Schwartz v. Dept. of Justice, 435 F. Supp. 1203 (D.C. 1977), aff'd, 595 F.2d 888 (D.C. Cir. 1979).
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"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).
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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).
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Clay v. Ballard, 87 Va. 787, 13 S.E. 262 (1891).
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No modern cases could be found in which a statute was given precedence over a more liberal common law approach.
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Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, (1978).
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386 F.Supp. 639 (1979).
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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).
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Matte v. City of Winooski, 129 Vt. 61, 271 A.2d 830 (1970).
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State ex rel. Charleston Daily Mail Assn' v. Kelly, 143 S.E.2d 136(W.Va. 1965).
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"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).
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102 N.J. 98, 505 A.2d 505 (1986).
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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).
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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).
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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).
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W.Va. Code 29B-1-5 (1977).
62 Ibid. at 138
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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).
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Asbury Park Press, Inc. v. Seaside Heights, L-5559-90-PW (NJ 1990), reported in New Jersey Law Journal, March 7, 1991, p. 37.
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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).
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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).
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E.g., Cal. Gov't Code Secs 6252(a) (West 1992) (exempts legislature from California Public Records Act).
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E.g., Code of Va. 1950, Sec 2.1-341 (Michie 1993)
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5 U.S.C. Sec 551(1)(A).