by Matt Clarke
On April 18, 2023, Loyola University’s College of Law published a paper detailing the ways prisoners are often denied access to public records that those not incarcerated can easily obtain. Professor Andrea Armstrong and Distinguished Professor of Law Dr. Norman C. Francis described how various state statutes and court opinions erect barriers to prisoners seeking public records – even records about themselves and those necessary to challenge their convictions or conditions of confinement.
The authors noted a lack of research on access to public records in general and especially on barriers incarcerated people face when seeking them. In fact, most of the research that has been done focused on access for news media, not individual access.
When governments attempt to limit prisoner access to public records, they generally claim a poverty of resources to fulfill the requests. But this justification for singling out those behind bars amounts to “they file a lot of public records requests” – as if prisoners, bored and with a lot of time on their hands, file public records requests just to aggravate government officials, especially those responsible for their incarceration.
As the paper points out, this line of argument ignores the simple fact that prisoners may have a greater need to file public records requests than the general public. For one, the many public records that are freely available on the internet and in other media are completely unavailable to most prisoners. Also, the government plays a much greater role in the conduct of prisoners’ lives, thus the greater need for access to government records such as prison or jail policies. Exacerbating this is a frustrating lack of transparency in most jails and prisons.
“Historically, [only] people with a ‘direct and tangible interest’ in specific government records could request access,” the authors note. But this began to change when states started codifying “access as a right of belonging and citizenship.” As a result, “state laws shifted to a ‘presumption of openness,’” often citing government accountability.
Within the last few decades, though, a trend emerged of limiting prisoners’ access to public records. In 15 states – Arizona, Arkansas, Connecticut, Idaho, Kentucky, Louisiana, Michigan, New Jersey, Ohio, South Carolina, Texas, Utah, Virginia, Washington and Wisconsin– such access is restricted via statute. Additionally, courts in four more states – Alabama, Florida, Illinois and West Virginia – have interpreted their public record laws to limit or preclude access for incarcerated people.
The exclusions and limitations may be based on the English common law principle that convicted prisoners are “civilly dead -- unable to enter into or enforce contracts, buy property, or use the legal stem at all.” This is the same principle used to deny prisoners voting rights. However, its application in the U.S., where prisoners are acknowledged as retaining some constitutional rights, is questionable.
Although the Supreme Court has held that access to public records is not a constitutional right, Houchins v. KQED, Inc., 438 U.S. 1 (1978), prisoners can still challenge public records denials as violating the Fourteenth Amendment’s Equal Protection Clause or the First Amendment, subject to a rational basis review.
The paper gives an account of the various limitations placed on prisoners’ access to public records. Some, such as high fees or in-person viewing requirements, place limitations on non-prisoners as well. An appendix lists the applicable laws in each state, making it highly recommended reading for those interested in prisoners’ access to public records. See: Access Denied: Public Records and Incarcerated People, 19 St. Thomas L. J. 220 (2023).
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