The U.S. Constitution makes no specific allowance for any one of the co-equal branches of government to have access to information held by the others and contains no provision expressly establishing a procedure for, or a right of, public access to government information. Nonetheless, Congress has legislated various public access laws, including:
- Federal Advisory Committee Act (5 U.S.C. App.)
- Freedom of Information Act (5 U.S.C. 552)
- Government in the Sunshine Act (5 U.S.C. 552b)
- Privacy Act of 1974 (5 U.S.C. 552a)
No statutory arrangements have been created to facilitate access by one branch of the federal government to records and information holdings of the other two branches. Both Congress and the judiciary have subpoena powers which can be exercised to compel the production of materials by another branch, but even these demands have sometimes been resisted. Occasionally, but rarely, the courts have ruled on these disputes. In 1974, for example, a Special Prosecutor sought certain tape recordings that President Richard Nixon, on a claim of constitutional privilege, initially refused to provide. The U.S. Supreme Court, in United States v. Nixon, disallowed the President’s claim of privilege, finding it too general and overbroad and the needs of the Special Prosecutor to pursue criminal prosecutions more compelling.
In general, interbranch disputes over access to information are political conflicts of the highest order. The federal courts, historically, have been reluctant to review and resolve such "political questions." Resolution is often reached through negotiation — reduction of the quantity of records initially sought, substitution of other information, alternative delivery mechanisms, or limitation of the number of individuals who will examine materials provided by another branch. Sometimes appeals to public opinion will pressure an information access deadlock to settlement. Congress can use its "power of the purse" to leverage its information access demands; federal courts rely upon a spirit of justice and fair play to sustain their orders for the production of information by another branch. In view of the American separation of powers model of government, such conflicts are neither unexpected nor necessarily destructive. Furthermore, they probably will continue to occur.
- 418 U.S. 683 (1974).