The Uniform Law Commission is currently looking into drafting uniform legislation on personal information redactions.
Model legislation is usually drafted by an interest group and then promoted across multiple states. While “copycat bills” have earned a bad rap from their overuse, lack of proper consideration, and poorly disguised lobbying; there are positive aspects to model legislation, including enhanced uniformity, reform, and use as an educational, drafting, and legal resource. The practice is as old as legislation itself, but I first encountered the idea of model state FOIA legislation when I heard it proposed by Terry Mutchler at NFOIC’s State Government Hall of Fame in 2018.
As an attorney who works with these cases in several states, I support the concept. A uniform request and appeal process nationwide would go far to increase ease of access to public information. However, the legislation should come from open government advocates, or at least a mix of state government representatives and open government advocates, as opposed to a commission comprised of state government appointees. The ULC is made up of lawyers who are appointed by state governments. Realistically, it is likely that many of the voices at the ULC table have a genuine conflict of interest with the primary objectives of open records laws.
The ULC drafts “uniform” legislation. It’s worth watching this study committee and its progress, because the ULC’s uniform laws are much more widely adopted than most model bills circulated by other organizations. It’s the organization that gave us the Uniform Commercial Code, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and other acts that have been widely adopted across the United States. While it’s true that the ULC can only propose law (the law has to be adopted by state legislatures to actually become the law of the land), it’s also true that most states provide for the appointment of a commissioner to the ULC by their statutes, and that states’ active participation in the process means that the laws are often favorable to state governments and that widespread adoption is much more likely.
Here’s where we are in the process: a study committee has been formed. This means that the ULC is reviewing the law and will then recommend whether it should proceed with a draft on that subject. The next step would be for the subject to be passed along to a drafting committee. These meetings are open to the public and the drafts are available on the ULC website. ULC drafting committees typically meet three times a year (two substantive drafting committee meetings and a presentation of the draft for line-by-line reading and debate at the ULC Annual Meeting) for at least two years, before uniform legislation is formed.
The ULC is considering the need for and feasibility of a uniform or model law concerning:
the redaction of personal information,
particularly with respect to judges and other public officials,
from real property records and other official public records
in order to address safety concerns.
I think we can all agree that personal information (depending on how you define the term) should be redacted from public record. Most recently, we've heard about protests at homes that pose a legitimate threat of security to the families of judges and other public officials.
From my perspective, the real danger here is that the ULC might choose to expand their scope of review to include additional areas of the law. This legislation will affect real property records, which are sought for many legitimate reasons. This move is likely to result in unintended restrictions on public records—and is worth watching closely as the ULC study committee continues its work. And to ensure that this legislation appropriately balances privacy rights against the public's interest in accessing government records, it would be ideal to have open government experts at the drafting desk.
This blog is not intended to be legal advice, as the analysis might change depending upon your specific situation. For additional assistance, reach out to Joy Ramsingh, at joy@ramsinghlegal.com. Joy Ramsingh is an open records, open meetings, appellate advocacy lawyer and the founder of Ramsingh Legal.
