The importance of public records

Mar 15, 2021 by Ginger McCall

This article was prepared by Ginger McCall for Americans for Prosperity Foundation’s Restoring Accountability essay series commemorating Sunshine Week. The views expressed in this article are the author’s own and do not necessarily reflect the views or opinions of Americans for Prosperity Foundation, which encourages the expression of diverse viewpoints within a culture of civil discourse and mutual respect.

In 2009, after graduating from law school and spending the summer studying for the bar exam, I was fortunate enough to be offered a position at the Electronic Privacy Information Center, a non-profit, non-partisan privacy rights organization in Washington, D.C.

One of the first projects I worked on at EPIC was a Freedom of Information Act lawsuit for documents related to the Transportation Security Administration’s airport body scanners. As a result of that lawsuit, EPIC obtained several hundred pages of government documents, which demonstrated both the questionable effectiveness and unquestionable invasiveness of the machines.

Armed with those government documents, EPIC was able to form a diverse coalition of public policy advocates from across the political spectrum. This coalition joined together to fight a successful campaign to force the TSA to modify the machines and adopt privacy protections. These documents provided the backbone of a campaign of public engagement and spawned several congressional hearings. The machines that travelers see today in U.S. airports, which show only a stick figure outline of the person being scanned, are a direct result of the FOIA documents EPIC was able to obtain.

My former job, Public Records Advocate of Oregon, was created as part of a slate of transparency reforms which were the result of a high profile scandal revealed by public records. Public records revealed that Governor Kitzhaber’s fiancée had been using her position as first lady for personal gain. Public records then revealed that the governor’s office had tried to delete thousands of emails. The resulting scandal ended with Governor Kitzhaber’s resignation and a slate of new transparency laws for the state.

This is the promise of public records requests. They can launch effective campaigns to change law and policy. They can lead to congressional hearings. And they can lead to accountability for even the most powerful elected officials.

We are taught in civics class that it is important to participate in our democracy. We are encouraged to vote — to make choices about ballot referendums, elected officials, and pieces of proposed legislation.

But the truth is that citizens cannot engage meaningfully with government or make educated choices about their democracy if they do not know what their government is doing. And public records are key to gaining that knowledge. If we don’t know what federal administrative agencies are up to, how can we really know what we are voting for when we cast a vote in a presidential election?

Public records are essential for the public to be able to hold officials accountable — in the ballot box, in court, and in the press. Without transparency, there would be no consequences or disincentives for the occasional malfeasance of elected officials and appointees, for government waste, or even just for suboptimal government decision-making.

Public records are often also essential for members of the public to vindicate their own rights. Public records tell the story of some of the most difficult events in a person’s life: the death of a child in a state-supervised childcare setting, an abuse perpetrated by a teacher, an act of police violence committed against a member of the public, a workplace injury investigated by the government. Public records allow members of the public to seek remedies for the wrongs perpetrated against them and to more fully understand their own stories in order to begin the process of recovery.

Despite the importance of public records, the task of obtaining them as a member of the public is often more onerous and expensive than it should be. And the task of locating and processing them on the government side is often equally so.

We haven’t yet crafted a perfect law which will ensure ease of access to information on the public side or ease of production of information on the government side, but it is worth continuing to try — to rebalance exemptions that have tilted too far in favor of withholding information, to adequately resource and staff government public records offices, to obtain technology that will make it easier to locate and process documents, to try harder to proactively disclose important documents, and to ensure that the fees charged for public records are fair and reasonable.

Ginger McCall is legal director at Demand Progress. Read other essays in the Restoring Accountability series here.