Under U.S. Supreme Court precedent, access to government records is a policy question to be decided by legislative bodies; it is not a constitutional question. As the Court wrote in a recent opinion, it “has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOI[Act] laws” (McBurney v. Young, 133 S.Ct.1709, 1718 (2013)).
The primary Supreme Court case concerning a constitutional right of access to government records is Houchins v. KQED, 438 U.S. 1 (1978). In Houchins, the plurality opinion and concurrence both held that neither the First nor the Fourteenth amendments “mandates a right of access to government information or sources of information within the government's control” (id., at 15), nor do they grant the media a right of access that is greater than the public's right of access. The plurality opinion noted that, while previous Supreme Court cases upheld First Amendment rights to communicate information, those cases did not construe the First Amendment as providing a right to obtain information from the government.
Since Houchins, other Supreme Court cases have discussed the lack of a First Amendment right to government records. In one case, the Court upheld a California law that limited the purposes for which public records could be sought, noting that “California could decide not to give out arrestee information at all without violating the First Amendment” (Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32, 40 (1999)). Similarly, in the McBurney opinion cited above, the Court noted that there is no constitutional right to obtain records under FOI laws.
In an appellate court case, the U.S. Court of Appeals, District of Columbia Circuit, citing Houchins, held that the First Amendment did not compel the government to release information about individuals detained after the September 11 attacks (i.e., arrestee names, names of their attorneys, dates of arrest and release, locations of arrest and detention, and reasons for detention).
This report addresses access to government records only. In a separate line of cases, beginning with a Supreme Court decision in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), courts have held that the First Amendment guarantees the public and media access to criminal trials. As Chief Justice Burger wrote in the Richmond Newspapers plurality opinion:
What this means in the context of trials is that the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that Amendment was adopted…we hold that the right to attend criminal trials is implicit in the guarantees of the First Amendment (id., at 576, 580).
For more information, read the full report.
