Sunshine laws: Shining a light on transparency and accountability
Sunshine laws, also known as open records or freedom of information laws, grants rights to the public to access a wide range of government records and proceedings. These legal mandates, embodied in the sunshine law definition, have played a vital role in promoting transparency within U.S. government institutions for considerable time.
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Understanding who sunshine laws apply to and their implications on recordkeeping constitutes a critical component for compliance professionals. In this article we’ll be clarifying which businesses are subject to sunshine laws, how sunshine laws across the globe compare, and the ways that the digital age is impacting how organizations navigate sunshine laws.
What is the Sunshine Act?
The Freedom of Information Act (FOIA), which came into effect in 1967, allows the public to request access to records from any federal agency in the US. The purpose of the FOIA, which is a deferral law, is to promote government transparency.
The Government in the Sunshine Act, enacted in 1976, is one of a number of FOIA acts. Cumulatively, they are referred to as sunshine laws.
In addition to the federal FOIA, individual U.S. states have their own sunshine laws, which vary from state to state.
What are sunshine laws: In introduction
Sunshine laws foster public trust and accountability by allowing citizens to see how their elected officials are making decisions and using public resources. They are also designed to prevent fraud and corruption, while promoting accountability. The call for sunshine laws has roots in the historical principle of an informed citizenry. With the rise of democracies, public demand for open access to information is constantly growing, leading to the enactment of sunshine laws across various jurisdictions throughout the U.S. and beyond.
Which businesses are subject to sunshine laws?
Sunshine laws primarily apply to government agencies and institutions, ensuring public disclosure and transparency, and helping to prevent unethical decisions. However, the specific applicability of sunshine laws to businesses varies by jurisdiction.
Importantly, some states might extend these laws to certain private entities with close ties to the government, such as public utilities or organizations receiving significant public funding.
Understanding what qualifies as ‘public records’ under sunshine laws can be challenging, especially in light of ever-increasing means of communication. Typically, public records include meeting minutes, agendas, contracts, and even emails (though exceptions may apply).
While the core principle is transparency, exemptions exist for legitimate reasons that mean that some records are not accessible to the public. Some of the exceptions include national security or personal privacy. Being familiar with individual state’s specific sunshine laws and exemptions empowers compliance professionals to effectively handle public records requests and ensure compliance.
A glimpse into sunshine laws globally
While sunshine laws are often associated with the US, the concept of transparency in government extends far beyond American borders.
Canada, for example, upholds the right of access to information through the Access to Information Act, allowing citizens to request government records. Similarly, the UK’s Freedom of Information Act grants public access to a wide range of information held by public authorities.
These laws, though distinct in their details from U.S. sunshine laws, share the core objective of promoting transparency, accountability, and public trust by ensuring citizens have a right to see how their governments operate.
As compliance professionals navigate the increasingly globalized world, understanding these international transparency laws becomes ever more important. Being familiar with the information access rights in different jurisdictions allows for a more comprehensive approach to compliance when dealing with international entities or information requests with a cross-border dimension.
Transparency breaches: Violating sunshine laws
While there are a number of sunshine laws enforced at federal court level, most U.S. states have their own sunshine laws in addition to these. There are variations at the state level on what information is considered public, how to request it, and fees involved, as well as the mechanisms for resolving open government disputes across the U.S.
By the same degree, there are significant differences in how state sunshine laws are enforced. And in some states, enforcing such laws is challenging. For example, in 2014, Missouri’s sunshine law was criticized by Jean Maneke, a consulting attorney for the Missouri Press Association, who stated that the biggest shortcoming was “The lack of any way to enforce it.”
Enforcement of sunshine laws has also been openly criticized more recently in an article published by UK newspaper, The Independent, on March 12, 2024. A nationwide review by The Associated Press and CNHI News uncovered a complex system for resolving open government disputes with the burden of enforcement frequently falling on private citizens.
Summary
It’s widely apparent that sunshine laws have far-reaching implications on how public boards conduct business. Most notably, this includes data retention and responding to public record requests in the correct manner.
For compliance professionals, the digital age presents both challenges and opportunities for sunshine laws. Managing vast amounts of electronic records efficiently and ensuring their searchability for public access is a growing concern. Consequently, balancing transparency with robust cybersecurity measures to protect sensitive information is crucial.
On the other hand, digital technologies can also streamline the public records request process. Online portals for submitting requests and electronic record formats can expedite access and generate significant efficiencies. As such, compliance professionals must stay informed about evolving technologies like cloud storage and their impact on recordkeeping practices.