Reporters in Alaska say that they usually can get electronic information — if it exists that way in the first place. Some agencies still do not have their records on computer. "We don’t ask for a lot of electronic information here, but when we do, we usually get it. The process is very slow and painful, often dealing with agency officials or techies who aren’t familiar with the great access laws we have," said Anchorage Daily News reporter Richard Mauer.

The law. The Alaska Public Records Act gives the public a right to inspect and copy "public records," defined as "books, papers, files, accounts, writings . . . regardless of format or physical characteristics." Alaska Stat. §§ 09.25.120, 09.25.220(3).

The statute also specifies that "electronic information that is provided in printed form shall be made available without codes or symbols, unless accompanied by an explanation of the codes or symbols." Alaska Stat. § 40.25.110(I).

If an electronic file or database contains both nondisclosable and disclosable records, a public agency must either delete or mask the nondisclosable information before releasing the requested record, or write a program to extract the requested disclosable public records from the electronic file or database. Masking or deleting nondisclosable information does not constitute providing an electronic service or product. Alaska Admin. Code tit. 6, § 96.330(b)(c).

The law encourages public agencies to "make information available in usable electronic formats to the greatest extent feasible" and to provide equal access to electronic products and services. Alaska Stat. § 09.25.115(a), (h).

Certain agencies have attempted at times to provide electronically stored information only in a less usable paper printout format, but ultimately provided information on disk in response to objections from media organizations. The public records law specifically provides that agencies are entitled to exercise their discretion about whether to provide duplication of public records in an alternative format not used by a public agency, and to charge an enhanced fee if they choose to do so. Alaska Stat. § 40.25.220(1)(A).

As a general rule, public records laws do not require agencies to create records that do not exist. Pursuant to, or consistent with this principle, the Alaska Legislature in 1990 added § 40.25.115, dealing with requests for "electronic services and products." This provision was designed to balance the interests of citizens seeking access to information more usefully tailored to their specific needs and the interests of agencies being asked to provide this. It also was designed to encourage agencies to help those requesting information. Among these electronic services and products, as defined by § 29.25.220(1)(A)-(G), are electronic manipulation of data contained in public records in order to tailor the data to the person’s request or to develop a product that meets the person’s request.

Cases & opinions. In at least one context, after 10 years has elapsed a defendant’s expectation of privacy in regards to computerized criminal justice information is greater than the public’s interest in the disclosure of the information. Although much of the information contained in a criminal history record, such as arrests and convictions, is public information, this information enjoys "practical obscurity," the Attorney General held, because it is not easily available. Att’y Gen. File No. 663-93-0039 (No

25, 1994).

The Criminal Justice Information Systems Security and Privacy Act by its own terms restricts only access to criminal justice information contained in systems funded by the federal Law Enforcement Assistance Administration (LEAA). Alaska Statute § 12.62.070(3). Although the state’s initial computerized database of individuals’ criminal histories — the Alaska Justice Information System (AJIS) — was funded by LEAA, the system in current use — the Alaska Public Safety Information Network (APSIN) — is not. Inf. Op. Att’y Gen. (Dec. 10, 1986; 663-86-0479) at 1-3. Thus, although the statutory restrictions apply to systems that are still funded at least in part by LEAA (which include the Prosecutor’s Management Information System and the Offender-Based State Correctional Information System), the Act’s restrictions on disseminating criminal history records from AJIS are not directly applicable to criminal history records contained in APSIN. Nonetheless, the restrictions were developed to protect individuals’ rights of privacy. They accordingly may serve as useful guidelines for the dissemination of APSIN information. Att’y Gen. File No. 663-93-0039 (Nov. 25, 1994)
The Workers’ Compensation Division may not release its electronic database in its entirety, but may release the information contained in the database if the Social Security numbers are deleted.

The release of public information in usable electronic formats, when feasible, is encouraged under Alaska Stat. § 09.25.115. However, state law excepts from public inspection records that are required to be kept confidential under federal law or regulations. Att’y Gen. File No. 663-93-0171 (Nov. 13, 1992).

The Child Support Enforcement Division may not disclose Social Security numbers in its files or computer database unless the disclosure is necessary for the purpose of establishing or collecting child support obligations or locating persons who owe child support. A Social Security number may be disclosed for other purposes if it was not obtained from a federal tax return, the Social Security Administration, or the Bureau of Vital Statistics. Att’y Gen. Op. 663-99-0160 (April 8, 1999).

Fees. The fee for electronic services and products "must be based on the actual incremental costs" of providing them, plus a "reasonable portion of the costs associated with building and maintaining the information system" of the agency. Alaska Stat. § 09.25.115(b). The fee may be reduced or waived if the information is used for a public purpose, such as journalism or academic research. Alaska Stat. §09.25.115(b).

State administrative regulations allow agencies to charge the media for excess searching and copying time only if the requests are unreasonable, in bad faith, or require extraordinary expenditures of state resources, or if the news organization has failed to pay for previous requests. Alaska Admin. Code tit. 6, § 95.130(c).

Unreasonably high fees for electronic services and products also may be canceled by the state’s Telecommunications Information Council. Alaska Stat. § 09.25.115(g).

"Electronic services and products" include the electronic manipulation of data to fill a search request, duplicating public records in an alternative format not used by the agency, providing online access to an electronic file or database, providing information that cannot be retrieved or generated by an agency’s existing computer programs, providing electronic access to the agency’s information system and providing software developed by the agency and generating maps from an electronic geographic information system. Alaska Stat. § 09.25.220.

Additional fees may be incurred for electronic public records searches. Furthermore, when a public agency offers online access to an electronic file or database, the agency must provide at least one public terminal to access such information free of charge. Alaska Stat. § 09.25.115(f). Agencies are allowed to charge an enhanced fee for electronic services and products, including customized searches of computer databases tailored to the requesters’ needs. Specifically, the fee for electronic services and products must be based on recovery of the actual incremental costs of providing them, but may also include a "reasonable portion of the cost associated with building and maintaining the information system of the public agency." These may be reduced or waived if the electronic services and products are to be used for a public purpose, including journalism, so long as fee reductions and waivers are uniformly applied. Alaska Stat. § 40.25.115(b).

The fee for duplicating a public record in the electronic form kept by a public agency may not exceed the actual incremental costs of the public agency. Alaska Stat. § 40.25.120(c). In other words, as a general rule, the only charge for providing records in electronic format should be the cost of a disk, if the disk is provided by the agency rather than the requester. This provision must be read together with the more general section governing charges for public records by agencies, which provides that a fee for copying public records may not exceed the standard unit cost of duplication established by the public agency, and that no charge may be made for personnel costs required to complete the search and copying tasks unless they exceed five "person-hours" per calendar month for any one requester. Alaska Stat. § 40.25.110(b), (c).

Software. The law specifically excludes "proprietary software programs." Alaska Stat.§ 09.25.220(3).