Right to Know

The right to know is also referred to as ‘‘freedom of information’’ or ‘‘government in the sunshine.’’ The right to know encompasses two rights of Citizenship: the right to examine records and documents possessed by governments and the right to participate in government proceedings. The first is typically guaranteed by a state constitution or a freedom of information act or public records act. The right to participate refers to the right to observe deliberations of government and public bodies and to comment audibly or in writing on matters before them. While the right to know is protected by various state statutes and constitutional provisions, and various federal statutes as well, it does not receive direct protection under the First Amendment. That is to say, the Supreme Court has refused to treat the First Amendment as a ‘‘Freedom of Information Act.’’

Access to information in the possession of governmental bodies and observation of the proceedings and deliberations of governmental bodies ensure that government actions are transparent. When actions are transparent, the official who is responsible for them will be fully accountable for them.

Governments restrict the right to know in various ways. These include restrictive definitions of ‘‘public documents,’’ and of ‘‘public bodies,’’ and by excluding classes of documents or matters from public examination. These exemptions have been based upon claims of invasion of privacy, trade secrets, proprietary information, ongoing law enforcement investigations, national security, ‘‘records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function,’’ and other evidentiary privileges. Governments may also limit the enforcement of a right to know by requiring fees for examination and copying of documents, by failing to give notice of meetings, and by imposing upon citizens the costs judicial enforcement of the right.

The most expansive right in the United States is found in the Constitution of the State of Montana. It guarantees ‘‘the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure,’’ and ‘‘the right to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law.’’ Montana also requires offending governments to pay the attorneys’ fees of a person who prevails in an action to enforce the right to know.

JEFFREY RENZ

Cases and Statutes Cited

• California Constitution, Article I, Section 3
• Montana Constitution (1972), Article II, Sections 8, 9
• New Hampshire Constitution (1784) (as amended), Article 8

See also Freedom of Information Act (1966); Freedom of Information and Sunshine Laws