By Jeffrey A. Roberts
CFOIC Executive Director
Colorado’s constitution guarantees freedom of speech and freedom of the press, broadly stating that “every person shall be free to speak, write or publish whatever he will on any subject.”
Should it also guarantee freedom of information?
An ad hoc group that includes the Colorado Freedom of Information Coalition is exploring that idea this summer for a possible ballot initiative in 2026. The impetus is what seems to be a backsliding in the General Assembly on government transparency matters: The legislature exempted itself from major portions of the Colorado Open Meetings Law in 2024 and lawmakers next year will likely try for a third straight session to weaken the Colorado Open Records Act.
Also involved in the initiative talks are the Independence Institute, the League of Women Voters of Colorado, Colorado Common Cause, the Colorado Press Association and the Colorado Broadcasters Association. As part of that effort, we’re looking at other states that have enshrined the public’s right to know in their constitutions.
There is no federal constitutional right to know, which U.S. Supreme Court reaffirmed in 2013 when it upheld a law requiring users of Virginia’s public records law to be residents of that state. But at least eight state constitutions expressly mention the right to inspect government documents or attend government meetings, or both.
Those states are California, Florida, Illinois, Louisiana, Missouri, Montana, New Hampshire and North Dakota.
Fortifying the right to know in a state constitution can serve two purposes: 1) giving weight to public access when legal disputes arise and 2) possibly constraining legislators who might want to dilute the open-government statutes (even those enacted by voters such as Colorado’s open meetings law in 1972).
“The public’s right of access to government documents and proceedings can be a fickle friend, subject to legislative manipulation at the whim of special interests,” noted University of Florida law students Jessica Terkovich and Aryeh Frank in a 2021 research paper for The Journal of Civic Information.
Their paper and a 2020 paper in the Public Interest Law Journal examined states with right-to-know constitutional provisions, looking mostly at whether those provisions make a difference in court.
Terkovich and Frank concluded that “at least on the margins, the existence of the right appears to do some work, if only as a make-weight factor when judges balance the interests of disclosure and concealment.”
“States without constitutional provisions can be just as accessible to requesters because of their effective statutory protections,” they wrote. “Nevertheless, constitutional protections are an important factor to be weighed by the courts in the complex balancing of the right to know and private interests and should not be discounted.”
In states with a constitutional right to public information, “state courts have held that the right is a fundamental one,” like free speech, a free press, the right to vote, the right to due process and freedom of religion, explained Pennsylvania State University law professor Chad Marzen in the 2020 Public Interest Law Journal paper (while he was at Florida State University).
Fundamental rights have a higher degree of protection from government interference. “This degree of protection would ensure public records laws would be fully interpreted with a presumption toward disclosure, and any governmental action which would potentially limit disclosure would be required to be ‘necessary’ and also relate to a ‘compelling governmental purpose,’” Marzen contended, making a case for both federal- and state-level right-to-know constitutional amendments.
Marzen also wrote that a constitutional right to public information helps to “shift the policy analyses of courts toward public disclosure” when public records laws come into conflict with exemption and privacy claims. He cited cases in Montana and Florida in which constitutional rights were deciding factors in court decisions “to uphold the letter and spirit of public records laws.”
The Montana Supreme Court in 2015 referenced the Montana Constitution’s right-to-know provision in deciding that disciplinary records of a school district employee accused of fraud should be released to news organizations.
In one of several Florida cases cited by Marzen, a Florida appeals court pointed to the Florida Constitution in holding that a mayor’s text messages on a private device may be subject to disclosure. The purpose of Article I, section 24 of the state constitution “is to ensure that citizens may review (and criticize) government actions. That purpose would be defeated if a public official could shield the disclosure of public records by conducting business on a private device,” the court noted.
Right-to-know provisions in state constitutions tend to be concise, amounting to just a few paragraphs or less, rather than full of details. Florida’s is the most extensive, not only guaranteeing every person’s right to inspect public records and attend meetings of public bodies but also making those rights “self-executing,” meaning they do not require additional legislation to be implemented. “In essence,” Marzen wrote, “… these rights automatically apply even in the scenario of the Florida Legislature repealing its freedom of information law, known as the Sunshine Law.” The Florida Constitution also requires a two-thirds vote of both chambers of the legislature to enact new exemptions.
Below are links to each state constitution with a government transparency provision — plus a proposed transparency amendment to the Arkansas Constitution.
California. Article 1, Section 3 (part of a declaration of rights). Excerpt: “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”
Florida. Section 24 (part of a declaration of rights). Excerpts: 1) “Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution.” 2) “All meetings of any collegial public body of the executive branch of state government or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public and meetings of the legislature shall be open and noticed as provided in Article III, Section 4(e), except with respect to meetings exempted pursuant to this section or specifically closed by this Constitution.”
Illinois. Article VIII. Excerpt: “Reports and records of the obligation, receipt and use of public funds of the State, units of local government and school districts are public records available for inspection by the public according to law.”
Louisiana. Article XII, Section 3. Excerpt: “No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.”
Missouri. Article III, Section 19 (applies only to the state legislature). Excerpts: 1) “Legislative records shall be public records and subject to generally applicable state laws governing public access to public records, including the Sunshine Law.” 2) “Legislative proceedings, including committee proceedings, shall be public meetings subject to generally applicable law governing public access to public meetings, including the Sunshine Law. Open public meetings of legislative proceedings shall be subject to recording by citizens, so long as the proceedings are not materially disrupted.”
Montana. Article II, Section 9 (part of a declaration of rights). Excerpt: “No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.”
New Hampshire. Part 1, Article 8 (part of a bill of rights). Excerpt: “All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, should be open, accessible, accountable and responsive. To that end, the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.”
North Dakota. Article XI, Sections 5 and 6. Excerpts: 1) “Unless otherwise provided by law, all meetings of public or governmental bodies, boards, bureaus, commissions, or agencies of the state or any political subdivision of the state, or organizations or agencies supported in whole or in part by public funds, or expending public funds, shall be open to the public.” 2) “. Unless otherwise provided by law, all records of public or governmental bodies, boards, bureaus, commissions, or agencies of the state or any political subdivision of the state, or organizations or agencies supported in whole or in part by public funds, or expending public funds, shall be public records, open and accessible for inspection during reasonable office hours.”
Arkansas. Proposed for 2024 but ultimately not on the ballot. Excerpt: “It is the duty of public officers to conduct government business in a manner that is open to Arkansans in its disclosure of public records upon a citizen’s request and conduct of public meetings.”
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