Systems in the Shadow of Sunshine Laws

Abstract

All 50 states, the federal government and the District of Columbia have open government laws in place to ensure that citizens have a right of access to government records and meetings. While every jurisdiction allows citizens to sue in court if they feel their right of access has been improperly denied, about two-thirds also have alternative dispute resolution programs built into their transparency laws. For jurisdictions that do not have these kinds of systems, and even in ones that do, other more informal systems have emerged to fill the void between when a dispute arises and the potential onset of litigation.

In this study, depth interviews of ten experts on open government laws were conducted to examine the role of these informal systems and how they interact with the more formal systems in place in open government laws. Respondents reported the existence of few actual informal systems, but they emphasized the importance of having more formal alternative dispute resolution mechanisms in sunshine laws. However, they noted that these formal systems may have unintended consequences. Further, they explained that the underlying conflict inherent in the relationship between citizens, particularly journalists, and the government plays a significant role in shaping how disputes over access are processed.

Keywords: freedom of information, sunshine laws, open records, dispute resolution, mediation, negotiation