During the semester for which this research guide was assigned, the question of using “private” email for “public” purposes was a hot topic in the news. Following are a few links related to this question.
Statement from the Society of American Archivists regarding use of non-government email for government purposes
NPR’s Fact Check on Hillary Clinton’s use of non-government email while Secretary of State
Secondary sources–that is, explanatory and policy-based discussions of FOIA and related laws–fall generally into the following categories:
American Law Reports, available on Westlaw Next. Start in the American Law Reports index; from the table of contents of the index, select “Freedom of Information Acts.”
Stein, Mitchell, Mezines, Administrative Law. Available on Lexis Advance. Chapter 7 is specific to Public Records and the federal Freedom of Information Act.
In some states, the Secretary of State has published a guide for individuals making FOIA requests. For example, see A Guide to the Massachusetts Public Records Law.
There are also Continuing Legal Education programs and publications on FOIA. Because CLEs are big business, it is reasonable to assume that these publications will not be available on the free Internet. Freedom of information and public records law in Massachusetts : a discussion of the mechanics of the public records law and the impact of the law’s application, 3rd ed. is available on BloombergLaw.
Many law school journals have included articles on FOIA. Although these papers are frequently the federal FOIA, papers on state FOIAs may be published in journals of law schools in those states. For example, the University of the District of Columbia-David Clarke School of Law Law Review published a paper about the D.C. FOIA in Summer 2010 (see ARTICLE: MAKING FREEDOM OF INFORMATION LAWS ACTUALLY WORK: THE CASE OF THE DISTRICT OF COLUMBIA, 13 UDC-DCSL L. Rev. 335). On Lexis Advance, search for “Freedom of Information” and then narrow your results to Secondary Sources and then Law Reviews and Journals. In WestlawNext, browse secondary sources by type “Law Reviews & Journals” and search for “freedom of information.”
Trade journals as well are a source for discussion of FOIA. State bar magazines are a good place to look for articles on state FOIA and public records laws.
Because website content is not static, this guide does not direct the user to specific content. Rather, I provide here suggestions of relevant advocacy organizations as well as considerations for the user seeking organizations beyond the ones identified.
Open government organizations
Journalism organizations
Jurisdiction filter
Practice Area filter
When researching case law regarding FOIA, especially a state’s FOIA rather than federal, you are likely not going to want to limit your search to binding precedent. You are going to want to look at a range of jurisdictions to learn how those courts have interpreted similar provisions to the provision you are concerned with.
You are going to always want to to start your case law research with the case law annotations in the annotated code. If you haven’t done your statutory research yet, go back and do that. Then come back here for guidance on expanding your research from the case annotations as well as using the major legal research tools to find additional cases.
For the purposes of this guide, we will focus on the District of Columbia Freedom of Information Act, specifically section 204, which is codified at D.C. Official Code § 2-534. Select a relevant case note and click on the link to the case. For the purposes of illustration, we will select Barry v. Washington Post Co., 529 A.2d 319, 1987 D.C. App. LEXIS 413 (D.C. 1987), from this case note:
From here, you have multiple options. 1. You can select relevant topics from the headnotes. Click on the narrowest term of interest in a headnote and select “get documents.” 2. You can select “Shepardize-Narrow by this Headnote” at the end of a relevant headnote.
In WestlawNext, once you’ve found the Code section you’re looking for, select the “Notes of Decisions” tab. From the list of decisions, select a relevant decision and follow the link either to the case or to the West headnote.
The West Key number system is another effective way to find resources. Begin with 326, Records. k30-k68 are the key numbers for Public Access to records.
When researching FOIA, you will want to start by finding the relevant state’s FOIA statute. Below, I provide basic tips for using each of the major publishers’ tools for finding the relevant statute. First, however, I share my approach to finding the the citation for a law I know to exist when looking at a single state: use your favorite search engine with search terms “[state name] FOIA”
For example:
Clicking on the first result takes you to this:
You can then take the citation you’ve found and find the text in one of the major publisher’s online database products.
Regardless of the tool you’ve used, remember to verify that the text you’ve found is the most current. You should be able to identify any recent amendments by consulting the state legislature’s website. [See below.]
If you are not familiar with Lexis Advance, begin with the Lexis Advance Reference Site on “Efficient Statute Research with Lexis Advance.” From there, you may choose to follow or ignore the advice below, as you see fit.
If you are not looking for a specific state’s law, I recommend that you begin by creating filters; select “Statutes & Legislation” in the “Category” section, “all states” in the “Jurisdiction” section, and “Administrative Law” in the “Practice Area & Topic” section. (See screenshots for visual guidance.)
You can then search for “freedom of information.” You will retrieve more results than you think is reasonable, but you will narrow your results from there. At this point in your research, you are probably looking for codified laws, so select “Codes” in the Category box.
Finally, you can select an individual state to view its FOIA law, or you can search within the results to see if any state includes a provision of interest. In the case of this research guide, we are interested in mentions of email, so at this point we search for “email” and retrieve a manageable 79 results:
From the front page, select “Statutes & Court Rules.” On the next page, click on “USCA” next to the search box. Click on the box next to “All States” and unselect the box next to “United States Code Annotated (USCA).” Click on “Save.”
Type “freedom of information” in the search box and click on search. Like above, search within the results for “email” and retrieve a manageable 79 results.
In Bloomberg Law, start on the “Search & Browse” tab. Select “Legislative” under the “Specialized Searches” heading, and then select “State Legislative.” Enter “Freedom of Information” in the Keywords box and click on the green Search button.
Hein Online is a great resource for statutory research if you are looking for a specific document. In particular, Hein Online is a great resource for older documents that aren’t available from other online publishers.
Remember that the realities of the legislative process mean that newly passed laws may not be included in the published state code. Each state’s legislature should have a legislative information system by which you can search for recent amendments. Be sure to check before relying on a published code.