The Common Law Right to Information

A once-thriving doctrine, today the common law right to information has been largely forgotten by U.S. courts at both the state and federal level. But courts have not paused to question whether the common law right still has a role to play in modern litigation. One reason may be the dearth of case law explaining the common law right's operation. Another may be that courts believe this doctrine has been eradicated by the advent of freedom of information laws.

This article first brings together the disparate authority on the common law right in an attempt to pin down the precise contours of the doctrine. It then examines the operation of the various federal and state freedom of information statutes and compares them to the common law right. Then it considers whether these statutes preempt or displace the common law rights, ultimately concluding that the state common law right is unlikely to be displaced, while the federal common law right is more likely displaced. Finally, this article suggests several relatively narrow uses the common law may still serve today in the realm of public access to information.