C. What records are and are not subject to the act?

The scope and coverage of the Public Records Act was intended by the legislature to be very broad, and the Supreme Court has interpreted it this way. The statute was amended in 1990 to expand the definition of public records, most significantly to reaffirm that it includes drafts, memorializations of conversations, and records "developed or received by a public agency or by a public contractor for a public agency." AS 40.25.220(6). The state has adopted regulations interpreting and implementing the public records law. See 2 Alaska Administrative Code [hereinafter "AAC "] .96.100 to -.900. These apply to state executive branch agencies.

The Supreme Court has held that parties cannot immunize otherwise public documents from disclosure by entering into a confidentiality agreement. Anchorage School Dist. v. Anchorage Daily News, 779 P.2d 1191, 1193 (Alaska 1989) (school district required to disclose settlement of asbestos litigation despite agreement to keep it confidential). The Attorney General has noted that in light of the Supreme Court's repeated holdings that "exceptions" to the disclosure requirements of Alaska's public records laws are not favored, and will be narrowly construed, agencies should be cautious about the use of language on forms or in agreements that may create an expectation of "confidentiality" among members of the public as to information being gathered from them, since such language quite likely may not be sufficient to create an enforceable exception to the explicit terms of the state's public records statutes. March 16, 1995, Attorney General Opinion No. 663-95-0424. With respect to law enforcement documents based on information obtained through express or implicit confidentiality agreements. See 1994 Police Records Attorney General Opinion, §  A.3(a)(ii).

One section of the Public Records Act underscores that public records must still be made available even if they are involved in litigation or law enforcement proceedings, but provides that parties to litigation should obtain copies through court discovery rules, while everyone else can get copies through normal public records act requests. “A public record that is subject to disclosure and copying under AS 40.25.110—40.25.120 remains a public record subject to disclosure and copying even if the record is used for, included in, or relevant to litigation, including law enforcement proceedings, involving a public agency, except that with respect to a person involved in litigation, the records sought shall be disclosed in accordance with the rules of procedure applicable in a court or an administrative adjudication. In this section, ‘involved in litigation’ means a party to litigation or representing a party to litigation, including obtaining public records for the party.”  AS 40.25.122. This provision was added to the law at the suggestion of news organizations when the Public Records Act was revised in 1990, in response to a situation in which a reporter investigating alleged misconduct by the Governor was denied access to important documents concerning leasing of state office space. The documents sought were public records that would have been available except that when a criminal investigation of the governor was begun, the state argued they could not be released because they were being used in an ongoing criminal investigation.  Section .122 was added to clarify that withholding otherwise public documents in such circumstances is improper.  Representatives of the Department of Law persuaded the legislature to qualify this provision by adding the exception with respect to persons involved in litigation.  The reason for this language was to ensure that attorneys representing public agencies in litigation were not blindsided by finding that their own clients’ documents, which they might not have seen or been aware of, had been obtained from the agency through a public records request rather than through the normal “discovery” channels for exchanging documents and information in lawsuits.  Given the limited nature of the exception, there would be no reason for a public agency to withhold public records simply because a requestor is litigating with different agency, or on another matter.  In Doubleday v. Alaska, Commercial Fisheries Entry Commission, 238 P.3d 100 (Alaska 2010), e.g., in the context of denying a commercial fishing permit for lack of evidentiary support, the court noted that documents sought by the appellant that were relevant to his dispute with the State’s Commercial Fisheries Entry Commission could have been obtained from a separate agency and should have been pursued using the federal FOIA.