Don’t Limit Open Records Requests to State Citizens 

Kevin Schmidt 

In October 2023, Americans for Prosperity Foundation (AFPF) joined with eight other center-right organizations working in the transparency space to form the Right On Transparency coalition.  This first-of-its-kind coalition aims to improve public records and open meetings laws, incentivize proactive disclosure of records, and modernize records management to reflect emerging technology. 

You can see the members of the coalition here and read the essays some of our members contributed to this symposium.  I’m excited to see what the coalition can accomplish in 2024 and beyond.  

For Sunshine Week, I’m pleased to announce the coalition has released a new model policy that urges states to remove residency requirements from their open records laws. Instead, we argue, freedom of information statutes should allow “any person” to submit a request for public records.  I’d like to expand on the argument the coalition made in this essay. 

The model policy might seem obvious to those who live in states without residency requirements.  Over 40 states operate their open records laws without them and routinely process requests from out-of-state requesters without issue. 

Only five states are known to specifically restrict the right to request public records, either by statute or legal opinion, to citizens of the state, including: 

  • Alabama 
  • Arkansas 
  • Delaware 
  • Tennessee 
  • Virginia 

Other states have public records laws that contain language that, while not generally acknowledged or currently interpreted as a bar to out-of-state requesters, leaves open that possibility.  In Kentucky, public records are limited to “any resident of the Commonwealth,” but that definition also includes some out-of-state requesters, namely foreign business entities registered with the state and certain news-media organizations.  KRS 61.870(10)(a) to (f).  Other out-of-state requesters are disallowed. 

The fact a potential requester lives in a different state should not determine his or her ability to request public records.  State policy choices often have impacts beyond a state’s borders.  

In 2013, the U.S. Supreme Court ruled that state residency requirements were constitutionally permissible.  But the underlying facts of one of the petitioners in that case demonstrates the harm of such a policy.  

Petitioner Mark McBurney was a former resident of Virginia, where his ex-wife who defaulted on child support obligations still lived.  The Commonwealth’s Division of Child Support Enforcement took nine months to enforce those obligations.  Because Virginia restricts records requests to state citizens, the state denied McBurney’s records request seeking the reason for the delay.  

There are many Americans who live in one state and commute to work or school in another.  I did this when I lived in Washington, D.C. and commuted to Arlington, Virginia.  Now imagine a government official violates your constitutional rights in the state to which you commute.  If that state has a residency requirement, you would be unable to obtain any public records (e.g., body cam footage, emails, official policies, etc.) about the transgression short of hiring an expensive attorney and compelling discovery.  

Any justification for residency requirements fails under scrutiny.  

Some people complain that allowing out-of-state requesters is unfair because the state’s taxpayers have to foot the bill for them.  But this isn’t how state records requests work.  State agencies and local governments are able to charge requesters fees to cover the costs of processing the requests, rather than relying on tax revenue (the coalition has thoughts on fees as well).  

Further, most sophisticated records requesters can find an in-state proxy to submit requests on their behalf, thus circumventing the limitations, but many average requesters do not have such access.  Again, over 40 states allow out-of-state requesters and there is no evidence of widespread burden or abuse. 

Finally, residency requirements also create an unnecessary burden on requesters that are citizens of the state.  Residents requesting records may be required to provide proof of residency.  Doing so can require requesters to share sensitive personal information and the process of providing and reviewing it surely imposes an unnecessary delay on receiving the requested records.  

Going back to the coalition’s model policy, our recommendation is simple: States should remove residency requirements for open records requests by specifying that “any person” can submit a request.  

Some states have recognized the incongruence of a commitment to open government with a citizenship or residency-based limitation on who can file a records request.  Florida amended its “Government in Sunshine” Law decades ago to eliminate a citizenship requirement, see, e.g., Fla. Att’y Gen. Op. 75-175 (June 17, 1975), and it enshrined the right of access in its state constitution.  See Fla. Const. Art. I, § 24(a).  More recently, legislators in Tennessee tried to eliminate that state’s citizenship requirement from its Public Records Act. See, e.g., S.B. 3280, § 7 (2008).  These are positive developments that should be copied in those states that still disallow out-of-state requesters. 

Ultimately, there are no compelling reasons for states to limit records requests to their respective citizens, especially in light of broader principles underlying open government and transparency and the fact that state policies can impact citizens of other states.  

Endorsements of the Model Policy: 

Visit the coalition website at rightontransparency.org.  

Kevin Schmidt is Director of Investigations at Americans for Prosperity Foundation.