common-law freedom-of-information
FOI and Common Law right of access [US]
<p>The US federal government, and accordingly, the State governments all have Freedom of Information laws, which provide for the disclosure of public information.  frmally in  a government fails to respond to such requests there are long, expensive and administrative appeal processes which are of limited fruitfulness.</p>
<p>In NY and other states, there are advisory opinions which are issued by the public access oversight agency (in NY the Department of State) which sometimes refer to the Common Law right of access.</p>
<p>With a modest search effort I have been unable to unearth any treatises which address the Common Law right of access to government agency records.  Does anyone have some pointers?</p>

<p>The common-law right of access to &quot;agency&quot; records is virtually nonexistent, and I know of no jurisdiction in the United States where invoking it would normally be successful. Instead, requesters must generally rely on the federal Freedom of Information Act or a state-level equivalent.</p>
<p>But this assumes that &quot;agency records&quot; refers to records held by executive-branch offices, such as police, prosecutors, mayors, schools, etc. I suspect that the modern references to the common law that you're seeing are generally referring to access to records held by the judiciary.</p>
<p>So if you're talking instead about <em>court</em> records, the common-law right of access remains a vital and vibrant doctrine. In American courts, the public has access to court proceedings and records under both the common law and the First Amendment:</p>
<ul>
<li><p>The common-law presumption of access attaches to any proceeding or record that is the basis for an adjudication. <a href="https://casetext.com/case/brown-williamson-tobacco-corp-v-ftc" rel="nofollow noreferrer"><em>Brown Williamson Tobacco Corp. v. FTC</em>, 710 F.2d 1165, 1180 (6th Cir. 1983)</a>. This is a very broad standard, but there is a relatively low bar for overcoming the presumption, as the court need only make specific findings explaining why nondisclosure is warranted. <a href="https://casetext.com/case/nixon-v-warner-communications-inc#p599" rel="nofollow noreferrer"><em>Nixon v. Warner Commc'ns, Inc.</em>, 435 U.S. 589, 599 (1978)</a>.</p>
</li>
<li><p>The First Amendment right of access attaches to any proceeding or record when access is supported by the &quot;experience and logic&quot; test, which asks (1) whether courts have traditionally allowed access; and (2) whether access promotes some greater democratic value, such as confidence in the judiciary, reliable factfinding,  etc. <a href="https://casetext.com/case/globe-newspaper-co-v-superior-court#p605" rel="nofollow noreferrer"><em>Globe Newspaper Co. v. Superior Court</em>, 457 U.S. 596, 606 (1982)</a>. This is a narrower test than for the common-law right, but overcoming it is usually impossible, as any exception must satisfy strict scrutiny. <a href="https://casetext.com/case/press-enterprise-co-v-superior-court" rel="nofollow noreferrer"><em>Press-Enterprise Co. v. Superior Court</em>, 478 U.S. 1, 14 (1986)</a>.</p>
</li>
</ul>
<p>The common-law right of access remains operative, even though there are statutory schemes governing the clerks who maintain judicial records. <em>See</em>, <em>e.g.</em>, <a href="https://casetext.com/case/bich-v-bich" rel="nofollow noreferrer"><em>Bich v. Bich</em>, 131 N.Y.S.3d 829 (2020)</a> (denying sealing motion based on &quot;deeply rooted constitutional and common-law right of access to proceedings as well as to court records&quot;); <a href="https://casetext.com/case/people-v-macedonio-8" rel="nofollow noreferrer"><em>People v Macedonio</em>, 41 N.Y.S.3d 451 (2016)</a> (&quot;The common law right of access, however, applies to all publicly filed documents.&quot;); <a href="https://casetext.com/case/people-v-sullivan-195" rel="nofollow noreferrer"><em>People v. Sullivan</em>, 640 N.Y.S.2d 714 (1996)</a> (&quot;the notice and attachments are judicial documents, and therefore  [**720]  subject to the common-law presumption of public access.&quot;).</p>
<p>The article linked in DaleM's answer is a good resource for the largely defunct common-law right of access to executive-branch records. For information about the common-law right of access to judicial records, you could also check out RCFP's <a href="https://www.rcfp.org/open-courts-compendium/new-york/" rel="nofollow noreferrer">Open Courts Compendium</a>.</p>

<h2>The <a href="https://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=2258&amp;context=facpub" rel="nofollow noreferrer">doctrine</a> has fallen out of use</h2>
<p>And may actually have been displaced by statute law - more likely Federally than at State level..</p>
<p>The growth of Freedom of Information statutes 1950s has put the common law basis for accessing government records on the back burner. The statutes provide clear (if not simple) pathways to the information rather than relying on arguing common law rights that are definitely there but ill-defined.</p>
<p>There are two common law rights in US law:</p>
<ul>
<li>one inherited from English law which allowed applicants to apply for information if they had a direct need and for that to be weighed against the government’s and any other affected individual’s interest. Needless to say, in the 17th century, the government interest usually prevailed.</li>
<li>a First Amendment right to access judicial records.</li>
</ul>
