EUGENE VOLOKH
March 25, 2014
Does the Second Amendment trump the First?
It’s a question being looked at here in the Ohio Valley after a local newspaper is denied a Freedom of Information request.
The request was made by a reporter for a Wheeling newspaper requesting the names of all the people with a concealed-carry permit.
Ohio County Sheriff Pat Butler says it violates the privacy and safety of many residents. “First of all, I think it’s an invasion of privacy, and I think it’s a dangerous precedent to set to let people all over the Ohio Valley know who has permits and who doesn’t,” Butler said….
Stories about whether one constitutional right “trump[s]” another usually turn on unduly loose understandings of what constitutes a right. This is particularly so in this situation.
There is no First Amendment right to access government records. There’s a First Amendment right to speak about what you’ve found in a record that was released to you, but not a First Amendment right to access the record in the first place. (Courts have recognized one significant exception this principle — a First Amendment right of access to documents filed in criminal prosecutions or civil lawsuits. But that exception is limited, and not applicable to ordinary government records.)
Of course, there are broad rights to access many government records secured under state and federal statutes, usually called Freedom of Information Acts or Public Records Acts. But those statutes tend to have statutory exemptions for private information about particular people. Whether or not the sheriff should release the records turns not on the First Amendment, but on the relevant West Virginia statute and its privacy exception.

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