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Researching Rights

Researching Rights

by

Brian Wayne Wells, Juris Doctor

As published in the September/October 1993 issue of

Belt Pulley Magazine, Volume 6, Number 5

It has come to my attention that some researchers and collectors of antique tractor information have occasionally been denied access to information[1] that is held in various collections around the country.  Some of these collections are held in publicly funded institutions.  When there is a denial of access to public information held in institutions which are even partially funded[2] by the federal or  state government, the law provides a remedy in the form of the Freedom of Information Act. 

            To clarify this legal situation for my fellow antique tractor enthusiasts, I thought it appropriate to share some of my experiences with lawsuits brought under Freedom of Information Acts of the various states for release of public records.  For an analysis of representative samples of state Freedom of Information Acts, I have randomly selected the state laws of Iowa[3] and Wisconsin.[4]  Although, there are some differences between the laws of the various states with regard to freedom of information law, these two states are representative of the majority of states in the area of freedom of information. 

            Both Iowa[5] and Wisconsin[6] declare that the policy of the state is to allow the greatest possible access to all public documents.  This is a recognition that public documents belong to the public, and that institutions in possession of the documents are merely “custodians” of the documents.[7]  The public’s access to public documents is to be unrestricted, except for the limitations imposed by the state statutes and common law.             Both Iowa and Wisconsin statutes provide exceptions to the law for police records of ongoing investigations[8] and trade secrets of corporations.[9]  Wisconsin also exempts computer programs from their Freedom of Information Act.[10]  Iowa attempts to go much farther and extends the list of exemptions to include records of appraisals of private property,[11] industrial information on a company with whom the state is negotiating,[12] information concerning the procedures used to control disturbances in prisons[13] and records of purchases of liquor at state-operated liquor stores.[14]  The Iowa law even seeks to exempt library records containing information on material which has been requested or checked out by patrons of the library.[15]  Iowa may appear to have included so many exemptions to the law that the exemptions are the rule rather than the law itself.  Indeed, in the exemption of communications contained in public records without the permission of the person making the communication[16] and in exemption of governmental reports which would give advantage to competitors,[17] the whole intent of the law seems to have been reversed.  Suddenly there appears to be more public records exempted from public inspection than are available to the public.  This is a deception, however, because the statutes of Iowa have been greatly modified by court decisions and the opinions of the Iowa Attorney General.[18]  The result is that Iowa is not much different from Wisconsin or other states with a strong law in favor of researchers of public documents.

            In summary, researchers of antique tractors seeking to look at and copy records held in public institutions should not be put off by over-zealous public librarians who attempt to deny him/her access to the records based on exemptions in the statutes.  Chances are strong that the librarian does not know the law well enough to understand the full impact (or lack of impact) of these exemptions.  Even if the librarian has some understanding of the statutes, chances are they have not watched the effect of court decisions on the exemptions in the statutes. 

                                                                             II

            In case this article seems to be too critical of public librarians, I should mention that this article also draws heavily from the research I conducted while employed in Mississippi at the Office of the Secretary of State as a defender of the right of public officials to deny public access to certain records. 

            In that case, the Mississippi Republican Party sued the Mississippi State Commission of Public Safety for “access”[19] to the lists of all drivers license records held by the State.  The lawsuit was brought to court under the Mississippi Public Records Act of 1983.[20]  This is Mississippi’s Freedom of Information Act.  At that time I was attempting to support the position of the Department of Public Safety and to prevent the “access” or release of driver’s license records.  We felt that the state had a duty to the people who held driver’s licenses to protect their addresses, telephone numbers, Social Security numbers (Mississippi uses the Social Security number as the license number), blood type and other information that may appear on the driver’s license records from people who may use this information for fraudulent purposes.  Although the Republican Party merely wanted the lists to send out political information, their legal position in court was that “anyone” should be able to have this information.  We felt this position was extreme and would be open to abuse. 

            To make a long story short, the State of Mississippi lost that case and had to provide a copy of all driver’s license records to the Republican Party.  The Mississippi Supreme Court held that the information was a “public record” within the meaning of the Freedom of Information Act and therefore the public must be granted access to the information.[21]      If the State of Mississippi was forced to allow access to addresses and other current and personal information contained on driver’s licenses, consider how strong the claim of the researcher or antique tractor collector would be when he/she attempts to look at or copy old tractor pictures, documents and other information on old tractors which contains no current personal information.  There is no reasonable way that the exemptions contained in either the Iowa, Wisconsin or Mississippi law can be applied to tractor advertising, pictures, serial numbers, etc., held in public archives and libraries that antique tractor enthusiasts would be interested in reading and copying. 

                                                                            III

            The sole responsibility of the custodian of records to which the public has a right of access is the “preservation” of those records.  To this end, the custodian may adopt rules to prevent damage or disorganization of the records;[22] however, these rules may not be used to deny public access to those records.[23]  In both Iowa and Wisconsin, the right of public access includes the right to obtain a copy of the records.[24]  Such copying may be done by the custodian or under the supervision of the custodian to prevent damage or disorganization.[25]  However, if the copying is to be done by the custodian, the quality of the copies of documents, pictures and audio or video tape provided by the custodian is to be as good as possible.[26] 

            The custodians of the documents are allowed to charge a fee for their expenses involved in locating, preparing and copying of public records.[27]  If copies are requested by mail, the custodian may charge shipping or mailing fees for sending the copies to the “requester.”  However, the fees must be no more than that amount that is “actual, necessary and directly incurred by the custodian in providing access or copies of the records to the public.”[28] 

                                                                            IV

            Sometimes researchers will be denied access on a theory of “invasion of privacy.” This should not be confused with the United States Constitutional right of privacy; rather, this is a common law cause of action against an individual for some injury caused by the act of another.  This theory depends solely on the question “What are the damages?”  If there exists no damages which a court of law will recognize, then there exists no case under the “right of privacy.”  Generally, this applies only to pictures and images.  If a researcher found a picture of a person taken inside a mental institution and decided to publish the picture, there would be damage to the person pictured and the person would then have a good case for invasion of privacy against the researcher.  Likewise, the right of privacy would protect Roy Rogers or any other famous person who makes their living from their own popularity and selling images of themselves.

            Obviously, these two facets of the right of privacy cannot be applied to any literature, pictures or movies which have been published by farm equipment manufacturers.  There is no damage to any person pictured, because in the majority of instances the person pictured is not famous enough to be injured by any subsequent publication.  Furthermore, antique tractor enthusiasts are interested in the machinery pictured and not the persons.  The pictures, if found in the collection of a corporation, would probably indicate that the pictures never belonged to the person in the first place;  barring exceptional circumstances, the pictures belonged to the corporation.

            This right of privacy should not be confused with copyright law.  The United States Copyright Law will provide some additional protection to the authors of written material and audio or video tapes if they register the material with the Copyright Office.  In most cases the advertising materials sought by antique tractor enthusiasts were never copyrighted in the first place, because the advertising value of the literature would be diminished by copyrighting the materials.  Copyrights are expensive, need to be maintained and cannot be transferred.  Any material that was transferred to a public library will fall outside the copyright protection.

                                                                             V 

            The right of access to public documents is also the right to publish those documents.  Restriction of the right of access to public records cannot be based on the “use” to which the “requester” wishes to put the documents.[29]  Wisconsin goes further and states that “no showing of interest is required as a prerequisite to inspection.”[30]  The librarian cannot even ask the researcher the purpose intended for the materials.

            Both Iowa and Wisconsin law provide remedies for the researcher if he/she is denied access and copies of any public records.  The remedy is called mandamus.[31]  Mandamus is a court action which orders a public official to perform an act.[32]  In this case, mandamus means that the court would order the librarian to provide access to the materials. 

Wisconsin provides that the researcher may request that the Wisconsin Attorney General or the appropriate district attorney if the library is a county-funded library,  bring the action for mandamus to court.[33]  Iowa allows for the Iowa Attorney General or any county attorney to bring an action for mandamus.[34]  This infers that Iowa has the same protection as Wisconsin, since the Attorney General or county attorney would be acting on behalf of someone who was denied access to public records.  This saves the researcher from having to go through the initial expense of hiring a lawyer to bring the action in court.  I say “initial” because both states allow courts to order the custodian of the records to pay the researcher’s attorney’s fees and legal expenses, if the researcher is successful in court.[35] 

            In conclusion, researchers have some very strong laws on their side when they are denied access to public documents.  I hope that this information will be of assistance to all the antique tractor researchers who have trouble getting information from publicly funded sources.



    [1]”Information” or “public record” is defined as any writing, document, tape recording, printing, picture, movie or other data stored in any other form.  IOWA CODE ANN. § 22.1 (West 1992); WIS. STAT. ANN. § 19.32(2) (West, 1992).

    [2]The gift of records to an institution is defined as “public support” given to the institution; therefore, the term “publicly supported institutions” will also include any institution outside the government which holds governmental records as well as any institution which receives even part of its funding from the state government or its subdivisions (county).  Consequently, all State and County Historical Museums and Societies are included as well as libraries and archives of the state or county.

    [3]IOWA CODE ANN §§ 22.1 to 22.14 (West 1992). 

    [4]WIS. STAT. ANN. §§ 19.21 to 19.42 (West 1992).

    [5]IOWA CODE ANN. § 22.2 (West 1992).

    [6]WIS. STAT. ANN. § 19.31 (West 1992).

    [7]IOWA CODE ANN. § 22.1; WIS. STAT. ANN. § 19.33.

    [8]IOWA CODE ANN. § 22.7(5) (West 1992); WIS. STAT. ANN. § 19.36(2) (West 1992).

    [9]IOWA CODE ANN. § 22.7(3) (West 1992); WIS. STAT. ANN. § 19.36(5) (West 1992).

    [10]WIS. STAT. ANN. § 19.36(4) (West 1992).

    [11]IOWA CODE ANN. § 22.7(7) (West 1992).

    [12] § 22.7(8).

    [13] § 22.7(15).

    [14] § 22.7(25).

    [15]Id. at § 22.7(13).

    [16]Id. at § 22.7(18)(a).

    [17]Id. at § 22.7(6).

    [18]KMEG Television, Inc. v. Iowa State Bd. of Regents, 440 N.W.2d 382 (Iowa 1989); Des Moines Independent Community School Dist. Public Records v. Des Moines Register and Tribune Co., 487 N.W.2d 666 (Iowa 1992); Shannon by Shannon v. Hansen, 469 N.W.2d 412 (Iowa 1991); Head v. Colloton, 331 N.W.2d 870 (Iowa 1983); Op. Att’y Gen. (Branstad) Aug. 24, 1990; Op. Att’y Gen. (King) March 18, 1976.

    [19]Roberts v. Mississippi Republican Party State Executive Committee, 465 So.2d 1050 (Miss. 1985).

    [20]MISSISSIPPI CODE ANN. §§ 25-61-1 to 25-61-17.

    [21]Roberts, 465 So.2d at 1054.

    [22]IOWA CODE ANN. § 22.3 (West 1992) and WIS. STAT. ANN. § 19.35(a),(b) and (f) (West 1992).

    [23]WIS. STAT. ANN. § 19.3

    [24]IOWA CODE ANN. § 22.2(1) (West 1992) and WIS. STAT. ANN. § 19.35(1) (West 1992).

    [25]IOWA CODE ANN. § 22.3 (West 1992); WIS. STAT. ANN. § 19.35(1) (West 1992).

    [26]WIS. STAT. ANN. § 19.35(b)(d) and (f) (West, 1992).

    [27]IOWA CODE ANN. § 22.3 (West 1992); WIS. STAT. ANN. §19.35(3) (West 1992).

    [28]IOWA CODE ANN. § 22.3 (West 1992); Op. Att’y Gen. (Stork) Aug. 13, 1981; WIS. STAT. ANN. § 19.35(3)(a) (West 1992); Op. Att’y Gen. Sept. 16, 1983.

 

    [29]Howard v. Des Moines Register and Tribune Co., 283 N.W.2d 289 (Iowa 1979).

    [30]Op. Att’y Gen., November 8, 1977.

    [31]IOWA CODE ANN. § 22.5 (1992); WIS. STAT. ANN. § 19.37(1) (1992).

    [32]D. DOBBS, LAW OF REMEDIES, § 2.10 (1973). 

    [33]WIS. STAT. ANN. § 19.37(1)(b) (1992).

    [34]IOWA CODE ANN. § 22.10(1) (1992).

    [35]IOWA CODE ANN. § 22.10(3)(c) (1992).