Access to Indian Land and Title Records: Freedom of Information, Privacy, and Related Issues

Access to government records is as fundamental to democratic governance as the inalienable endowments long part of the Bill of Rights. It augments popular control of government.3 It encourages agency responsibility.4 It counters bureaucratic tendencies toward secrecy by celebrating the primacy of public interest in disclosure.5 It provides a check against that citizen servant who might be inclined to deliberately falsify facts.6 It is memorialized in the Freedom of Information Act of 1966. But public access must be balanced against another inalienable right, that of a citizen's right to privacy and the shielding of personal information collected in the normal and accepted course of public business. Indeed, such information is shielded from public access under limited circumstances by the provisions of the Privacy Act of 1974. Department of the Interior (“DOI”) regulations and these federal informational statutes govern public access to Indian land and title records.

This article addresses the juxtaposition of the two acts in the context of Bureau of Indian Affairs (“BIA”) efforts to balance the underlying policies and the obstacles encountered by the mineral extraction industries caught in the inherent clash of the philosophical titans. Are Indian land and title records subject to the Freedom of Information Act process in the first instance? Are these files shielded fr