The Cage of Statute: How CORA and FOIA Suppressed the Supremacy of Common Law and Freedom of Information
Prompted By Josef K, a concerned Member of the Press. All opinions and interpretations are our own. Not liable for mistakes. Kindly do your own research by following the citations, or creating your own.
In the modern bureaucratic state, the public’s right to know has been unlawfully transformed from an inherent civic authority into a managed privilege. At the heart of this transformation are two statutes often praised as breakthroughs in government transparency: the federal Freedom of Information Act (FOIA) of 1966, and Colorado’s Open Records Act (CORA), enacted in 1969. While both are publicly framed as tools of accountability, their deeper function reveals a more troubling truth: these statutes serve not to empower citizens, but to regulate and restrain pre-existing, superior rights—those found in common law and the constitutional tradition of free inquiry.
I. Common Law and the Pre-Statutory Right to Access Public Records
Long before FOIA or CORA existed, courts recognized a common law right to inspect public records. As early as the 19th century, the U.S. Supreme Court noted the public’s interest in governmental transparency. In Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), the Court affirmed the common law right “to inspect and copy public records and documents,” a right rooted not in statute, but in historical tradition and judicial precedent [Id. at 597–98].
Likewise, in Nowack v. Fuller, 243 N.Y. 200 (1926), Justice Cardozo observed that “[p]ublic records are kept for the information of the people… and they are the property of the people.” Such statements reflect the understanding that public servants are stewards—not owners—of public information. The accessibility of such records was never to be granted by government—it was assumed as inherent to self-governance.
II. The Arrival of FOIA and CORA: Statutory Gifts or Constitutional Constraints?
The Freedom of Information Act, 5 U.S.C. § 552, was passed in 1966 to codify the public’s right to request records from federal agencies. Colorado followed with CORA, codified at C.R.S. § 24-72-201 et seq., in 1969. Ostensibly, both laws were enacted to affirm the public’s right to government records. Yet their very structure reveals the opposite: by establishing request procedures, response deadlines, exemptions, redactions, and enforcement mechanisms, these statutes effectively replaced the inherent right of access with a regulated process—one that redefined what could be accessed and how, and thereby who was truly in control.
As scholars have noted, FOIA “created a system in which access is the exception, not the norm” (Mark Fenster, The Transparency Fix, Stanford Univ. Press, 2017). The burden of access was placed on the requester, not the government, flipping the logic of the First Amendment and the common law on its head. In the same vein, CORA created a default posture of institutional discretion, allowing broad categories of information to be shielded under vague exemptions and undefined “public interest” tests.
III. Statutory Suppression of Preexisting Rights
Legal scholarship supports the argument that these acts have diminished rather than expanded the scope of transparency. As legal theorist David E. Pozen wrote, “Transparency statutes like FOIA do not eliminate secrecy; they normalize it by defining what must be disclosed and what may remain hidden” (Harvard Law Review, Vol. 127, 2014, p. 1081). Courts have echoed this concern: “The FOIA is not an absolute right to access information, but a right that exists only as outlined and limited by statute.” – United Techs. Corp. v. U.S. Dep’t of Def., 601 F.3d 557, 562 (D.C. Cir. 2010).
This means the once-unlimited common law right has now been conditioned—filtered through statutory gates that did not exist before. In effect, statute has become a gatekeeper, turning what was once a natural right of public inspection into a bureaucratic favor, granted only when proper channels are followed and subject to arbitrary denials.
IV. Inversion of Accountability: Public Servants as Gatekeepers
This transformation marks a profound inversion: public servants, once accountable to the people, now determine what the people may know. In practice, both FOIA and CORA permit agencies to delay, deny, or obfuscate—often without consequence. Through statutory exemptions, entire classes of documents (e.g., internal communications, deliberative process material, personnel records) are excluded from disclosure. These exemptions are frequently invoked broadly and without oversight, thus undermining the public’s constitutional right to know what its government is doing.
V. The Supremacy of Common Law and Constitutional Rights
Yet despite their reach, neither FOIA nor CORA can lawfully supersede the Constitution or the common law. The First Amendment protects not only the right to speak and publish, but also the right to receive information, particularly regarding the government’s operation (Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)). The common law right of inspection remains legally relevant: unless explicitly repealed, common law survives alongside statute (United States v. Texas, 507 U.S. 529 (1993)).
Furthermore, under Colorado law, courts have affirmed that the state constitution may afford greater protection than its federal counterpart (People v. Ross, 680 P.2d 1264 (Colo. 1984)). Thus, citizens and members of the press may rightfully invoke constitutional and common law authority, not as an alternative to CORA, but as a superior basis for demanding access to information.
VI. Conclusion: Reclaiming What Was Never Theirs to Give
FOIA and CORA did not create the right to know—they confined it. They took a birthright of public inquiry and shrouded it in process. In doing so, they allowed institutions to hide behind legality while rejecting legitimacy. A right that is filtered, delayed, and selectively enforced is no right at all.
To restore true accountability, we must reassert the supremacy of the common law, the First Amendment, and the truth that no statute may override the people’s inherent right to see what is done in their name. The freedom of information is not a gift from government. It is a claim upon it—one that predates every law and survives beyond every denial.
Citations:
Nixon v. Warner Communications, Inc., 435 U.S. 589, 597–98 (1978).
Nowack v. Fuller, 243 N.Y. 200 (1926).
FOIA, 5 U.S.C. § 552.
CORA, C.R.S. § 24-72-201 et seq.
Fenster, Mark. The Transparency Fix: Secrets, Leaks, and Uncontrollable Government Information, Stanford University Press (2017).
Pozen, David E. “The Mosaic Theory, National Security, and the Freedom of Information Act,” Harvard Law Review, Vol. 127 (2014), p. 1081.
United Techs. Corp. v. U.S. Dep’t of Def., 601 F.3d 557, 562 (D.C. Cir. 2010).
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).
United States v. Texas, 507 U.S. 529 (1993).
People v. Ross, 680 P.2d 1264 (Colo. 1984).
