The public of policy of the State of Wyoming as expressed in its Open Meetings Act and Public Records Act is disclosure — not secrecy. Sheridan Newspapers v. City of Sheridan, 660 P.2d 785, 792, 796 n.14 (Wyo. 1983). The Wyoming Supreme Court in announcing its decision in Sheridan Newspapers said:
This holding is but another pronouncement from this court having to do with making the public's business available to the public whenever that is possible. The courts, legislature, administrative agencies, and the state, county and municipal governments should be ever mindful that theirs is public business and the public has a right to know how its servants are conducting its business. Furthermore, it is for government to remember that the written, viewing and broadcasting press are the eyes and ears of the people. The citizenry must be permitted to hear and see what public officers and their employees say and do whenever the imparting of this knowledge does not run contrary to the rights of those otherwise protected in a way that would result in disclosure having the effect of inflicting such irreparable harm as is recognized at law.
The Wyoming Supreme Court has found a constitutional right of access to government information under the applicable freedom-of-the-press and due-process provisions of the federal and state constitutions. Id. at 794. The Legislature does have the authority to promulgate restraints upon the news-gathering business as will best serve the "public good." These restraints may not, however, unlawfully deny the people's right to be informed. Otherwise, the restrictions would run the risk of violating the First or Fourteenth Amendments to the U.S. Constitution. Id. at 795.
The Court has not yet had the occasion to determine whether a specific provision setting forth an exception to public disclosure in either the Open Meetings Act, the Public Records Act or other statute runs afoul of the public's constitutional right of access.
There have been only a few cases where the Wyoming Supreme Court has interpreted the Wyoming Open Meeting Law (Wyo. Stat. § § 16-4-401 to 16-4-407). An amendment to the Act overturned a ruling by the Court that a meeting in which no action (i.e, a vote, a decision or a commitment to make a decision) was taken did not fall under the notice and other provisions of the Act. Pursuant to the amendments, a meeting is now defined as a gathering of a quorum of the members of a governing body of an agency for the "purpose of discussion, deliberation, presentation of information" regarding public business, regardless of whether action is taken or not.
The amendment made it clear that Wyoming residents not only have a right to know the actions taken by their representatives, but also the basis for those decisions.
Amendments adopted by the Wyoming Legislature in 2005 added a penalty provision to the Act, making it a misdemeanor to "willfully and knowingly" violate its provision. The amendments require the governing body to make a motion to go into executive session. A member of the governing body who objects to an executive session at any point may stay in the meeting and avoid liability if he makes his objection public. Minutes must be made of executive sessions. The minutes are confidential except for the portion where a member objects to the executive session, which shall be made public. The objecting member may also make his objection known publically at the next meeting of the governing body and avoid liability under the penalty provision.
The Wyoming Supreme Court in a 2010 cases rejected the argument by a city building board that it could hold its deliberations behind closed doors because it was acting in a "quasi-judicial" capacity. Cheyenne Newspapers v. City of Cheyenne Building Code Board of Appeals, 2010 WY 2, 222 P.3d 158. The Court also rejected the argument by the board that it was not a "governing body of an agency" because it was not the ultimate decision-making body of the agency, such as the city council or county commission. The ruling also affirmed the standing of the public, and the media as its representative, to contest violations of the open meetings and open records acts.
In 2011, the Wyoming Supreme Court explained the process by which a governmental entity may cure a violation of the Open Meetings Act. Gronberg v. Teton County Housing Authority, 247 P.3d 35, 2011 WY 13. Any action taken at a meeting not in conpliance with the act is null and void. The Court ruled that the "Act would permit ratification of a prior “void” action, if the ratification is done in compliance with the Act. We hold that an agency may “cure” a “void” action made in violation of the Public Meetings Act by conducting a new and substantial reconsideration of the action in a manner which complies with the Act." The reconsideration must be one "in which the public is afforded ample opportunity to know the facts and to be heard with reference to the matters at issue."
The Wyoming Public Records Act (Wyo. Stat. § § 16-4-201 to 16-4-205) sets up a general rule of access to public records by persons in interest (the persons whom the records are about) and the public generally. Public records are defined as any record, in any form, made by the State of Wyoming or any political subdivision of the state, including special districts.
The language of the act "imposes a legislative presumption which says that, where public records are involved, the denial of inspection is contrary to the public policy, the public interest and the competing interests of those involved." Sheridan Newspapers, 660 P.2d at 796. The Federal and Wyoming constitutions "guarantee a person's right to access public records." Houghton v. Franscell, 870 P.2d 1050, 1052-53 (Wyo. 1994).
Wyoming Supreme Court precedents require that the Public Records Act "be read in the light of the legislative presumption of openness and keeping with the constitutional right of access to public records." Wyoming Department of Transportation v. International Union of Operating Engineers Local Union 800, 908 P.2d 970, 973 (Wyo. 1995). The Public Records Act must be construed liberally in favor of disclosure and all exemptions interpreted narrowly. Id. The remedial purpose of the act is "to permit access to public records unless disclosure would inflict irreparable harm contrary to protected rights." Id.
The Act does include both discretionary and quasi-mandatory exemptions to disclosure of records.
A. General exemptions. The substantive exceptions to the general rule of access to information under the Public Records Act are as follows:
(1) Materials otherwise not public under state law (for instance, certain reports);
(2) Materials which are not public under federal law (for instance, where the conditions of a federal grant to the State requires confidentiality);
(3) Materials which are not public under court rules or an order of a court (for instance, records of juvenile hearings).
One must assume that if a specific statute exempts a record from disclosure, the exemption must not violate the public's constitutional right of access. No Wyoming Supreme Court decisions have addressed this issue.
B. Access to records discretionary based on "public interest." A public official has discretion to allow or not allow access to the following records "on the ground that disclosure to the applicant would be contrary to the public interest." The public official's discretionary closure of records is more subject to review by the court than the other categories of records which may be closed for other reasons. The custodian has the burden to show that the harm to the public interest caused by disclosure is based in fact and not merely conjecture or speculation. Allsop v. Cheyenne Newspapers, 2002 Wyo. 22, 39 P.3d 1092 (2002). The harm must also outweigh the public's interest in disclosure. Sheridan Newspapers v. City of Sheridan, 660 P.2d 785 (Wyo. 1983). The records in this category are as follows:
(1) Records of certain law enforcement authorities (police, sheriff, prosecutors, the state auditor, the attorney general) kept for investigation, "intelligence," or prosecution purposes;
(2) Test questions, scoring keys and "examination data" regarding licensing and academic examinations. Scores of promotional exams are available to the person taking the exam;
(3) Details of research projects conducted at state institutions;
(4) Appraisals of real estate or relating to acquiring property;
(5) Interagency and intraagency memoranda which would not be available by law to a private party in litigation with the agency.
C. Access only when provided for by other law. A third category of materials is not available for inspection unless the right to inspection is otherwise provided for by law. In a case involving hospital records, one of the classifications covered by this section of the Act, the Wyoming Supreme Court found that the "common thread running through" the ten classifications of records included in this section "is personal information instinct with a privacy interest." Houghton v. Franscell, 870 P.2d 1050, 1055 (Wyo. 1994). The Court held that in order for a record to fall within the exemptions in this section there must be a "publicizing of one's private affairs with which the public [has] no legitimate concern."
The Court noted that the Legislature recognized that records that might fall under the classifications in this section could still be disclosed despite the apparent mandatory language of the statute — "the custodian shall deny the right of inspection" — because of the phrase that follows the mandatory language — "unless otherwise provided by law." The Court found that this language indicated that the legislature did not intend to create blanket exemptions or those exemptions which would violate the public's constitutional right of access. Id. at 1056-57.
The classifications covered by this section include:
(1) Medical, psychological and sociological data on individuals, except coroner's reports;
(2) Adoption and welfare records on individuals;
(3) Personnel files (but these are available to elected officials, and to the person described in the file);
(4) Letters of reference;
(5) Trade secrets, privileged information, and confidential commercial, financial, geological or geophysical data;
(6) Library and archive materials in accordance with the conditions required by the contributor of the materials;
(7) Hospital records;
(8) School district records regarding students (but the student and school board members can have access to these within certain parameters);
(9) Library circulation and registration records, except as requested by parents or as needed for administration of the library;
(10) Information obtained via 911 emergency systems except to the person in interest, law enforcement, or public agencies for official business purposes.
D. Equal access to all media representatives. The Public Records Act specifically provides that if the right to inspect a record is allowed to any employee of a newspaper, radio or television station, or other employee of the "media," access must be allowed to all news media employees. In other words, a public official who is the custodian of records may not give copies of the requested records to one reporter, but refuse to give the same records to another.
E. Copies. When there is a right of access to public records the person requesting the records may request that copies, printouts, or photographs of the records be provided to him, and the custodian of those records should provide the copies for a reasonable fee set by the custodian. If the custodian does not have the equipment or facilities for copying the records the person who requests them is entitled to access for the purpose of copying. This must be done while the records are still in the custody and possession of the custodian of the records and at his direction. The custodian of the records may establish a reasonable schedule for copying, and "may charge a reasonable fee" for the copies. No Wyoming Supreme Court case interprets what is meant by a "reasonable fee."
The Act makes it clear that custodians may not charge a fee for making a record available for inspection.
F. Jurisdiction of the district courts. The Act grants jurisdiction over disputed questions of access and copying to the district court of the county in which "the record is found." Should a reporter, or other member of the public, seek access, he may apply to the court for an order to the custodian of the record to show cause why the custodian is not allowing access. The custodian of the records may also apply to the court for an order prohibiting access when the custodian of the records believes that "disclosure of the contents of the records would do substantial injury to the public interest," even if access to the records is otherwise allowed under the Act. In order to obtain a court's order having the effect of "sealing" or "closing" such a record, however, the custodian must give notice to the person seeking access to the records, and the court would have to allow him an opportunity to be heard.
G. Wyoming Supreme Court decisions. The Wyoming Supreme Court has decided eight cases in which the Public Records Act played a significant role. They will be explained chronologically.
In Laramie River Conservation Council v. Dinger, 567 P.2d 731 (Wyo. 1977) the Laramie River Conservation Council (LRCC) sought access to a transcript of proceedings before the Industrial Siting Council, a state agency. The District Court denied LRCC's request, holding that the transcript was an intraagency or interagency memorandum, and therefore specifically exempted from disclosure by the Public Records Act. Id. The Supreme Court reversed, reasoning that the hearing was public, and a transcript of a public hearing is a public record not exempted by the Public Records Act. Id. In short, the Wyoming Supreme Court refused to allow the Siting Council to engage in the subterfuge of calling the transcript a "memorandum," which would have allowed the Council to hide behind an inapplicable Public Records Act exception.
In Sheridan Newspapers Inc. v. City of Sheridan, 660 P.2d 785 (Wyo. 1983), the Sheridan Police Chief denied to reporters from the Sheridan Press and others access to "rolling logs," a chronological index of complaints and reports to the police dispatcher, "case reports" (reports of the activities of officers), "jail logs" or rosters, and traffic reports and citations. The police chief, contrary to the Public Records Act, gave no reason for closing these records, despite a request for an explanation from the newspaper. Id.
The district court decided that the public (and therefore the press) had a right to inspect jail logs, traffic accident reports, and complaints and citations issued, but had no constitutional or statutory right to inspect the case reports and rolling logs. Id. Both the city and the newspaper appealed.
Citing its earlier decision in Laramie River Conservation Council, the Wyoming Supreme Court first declared that the objects of the Public Records Act are disclosure, an open and accountable government, and the prevention of secrecy. Id. The Public Records Act would therefore be construed in light of this policy, with an emphasis on accountability, "unless the custodian of such records can show a legal prohibition to disclosure." Id.
The Court held that the Sheridan Press had a constitutional right to the disputed materials, subject to the exceptions and limitations set forth in the Public Records Act. Id. It noted that the police chief's closure of entire categories of records was inappropriate, as the closure of records must be on a selective basis. Id. The requested materials should therefore have been examined and segregated by the police chief on a document-by-document basis. Id.
Based on these principles and the Public Records Act, the Court held that the Sheridan Press was entitled to all the requested records, and noted that any particular records falling within an exception to the general rule of disclosure could be taken up on a case-by-case basis. Id.
In the next case, Houghton v. Franscell, 870 P.2d 1050 (Wyo. 1994), the Supreme Court attempted to give a more complete exposition of the law surrounding the Wyoming Public Records Act. In Houghton the Gillette (Wyo.) News-Record requested access from the Campbell County Hospital District to any and all records concerning guarantees of income made to physicians locating in Gillette. Id. The hospital cited the hospital records exemption outlined at Wyoming Statute 16-4-203(d)(vii), which includes an exemption for hospital records regarding medical personnel and staff. The newspaper argued that the records were the property of the hospital district as opposed to the hospital itself, and that the exemption did not apply to the district. Id. The newspaper also alleged that the exemption only applied to medical information concerning specific patients. Id.
The Court relied on the holding of Sheridan Newspapers Inc., 660 P.2d 785, that the object of the Public Records Act is disclosure, not secrecy, and that the Act should be interpreted liberally in favor of disclosure. The Court held this is especially true regarding records relating to expenditures of public funds. Id at 1052. The Court noted that there is a constitutional right of access to public records. The Court held that the State may not exclude an entire class of records for public inspection absent a compelling state interest. Id at 1053. The Court stated that the language of the exception was plain and unambiguous and that the language exempting hospital records relating to medical staff and personnel did not include the contract requested by the newspaper. Id. In interpreting the statute, the Court indicated that any review of what an exemption means under the Wyoming Public Records Act must include a balancing of privacy interests against the public's right to know. Id. The Court held that an unwarranted invasion of privacy is:
"Unwarranted publicity, unwarranted appropriation or exploitation of one's personality, or the publicizing of one's private affairs with which the public had no legitimate concern." Id at 1055.
After the Houghton case, the Court decided Wyoming Department of Transportation v. International Union of Operating Engineers Local Union 800, 908 P.2d 970 (Wyo. 1995). In that case, the Operating Engineers requested payroll information forms submitted to the Wyoming Department of Transportation by its contractors. Id. The forms were required to be submitted to the Wyoming Department of Transportation under the federal Davis-Bacon Act, which is the federal prevailing wage act. Id. On any state highway project using federal funds, the federal prevailing wage had to be used, and any contractors on the job had to present payroll information to the Department of Transportation. Id. The Department of Transportation agreed to submit the materials to the Operating Engineers, but wanted to remove the names and addresses. Id. The Department of Transportation argued that including the names and addresses on the records would serve no purpose and would be an unwarranted invasion of privacy. Id. The Operating Engineers, on the other hand, alleged that the payroll records could determine whether or not the Department of Transportation and the contractors were complying with the prevailing wage. Id. The Operating Engineers also asserted that confirming information with individual workers was essential to that process. Id.
The Wyoming Supreme Court ruled in favor of the Operating Engineers, stating that the concerns regarding Operating Engineers reviewing the names and addresses of workers did not rise to the level of the public's right to have the information released. Id. The Court noted that the workers had already released their names and addresses to the contractor, who had released them to the state, who had in turn released them to the federal government. Id. The Court ruled that even if the Engineers contacted the workers at their homes, such contact would not be significantly disruptive of their privacy. Id. It is of interest that the Court was willing to consider the balance of interests even though it had already rejected any specific exemptions cited by the Wyoming Department of Transportation. One could argue that the Court is willing to use the balancing test for any issue that comes under the Wyoming Public Records Act. The Court may, however, have simply been indicating that the Court's analysis of the exceptions on their face was supported by the balancing test as used in Houghton.
Interestingly, the Court gave no deference to the Department of Transportation regulations on the subject, stating that the agency did not have "distinctive expertise to construe this special statute . . . thus, we will not accord any deference to its construction of the statute or its parallel regulations." Id at 973. Presumably, the Court will make such a statement when considering any agency regulations that infringe on the Public Records Act.
In addition, in Sublette County Rural Health Care District v. Miley, 942 P.2d 1101 (Wyo. 1997), the court considered a suit against a county rural health care district in which the plaintiff sought disclosure of financial reports that physicians submitted to the district. The physicians were required to make the reports pursuant to contracts that governed the operation of their clinic, which was in a building owned by the district. Id. The district contended that the reports fell under the confidential commercial data exception to the disclosure requirements of the Public Records Act, Wyo. Stat. § 16-4-203(d)(v). Id. The court agreed, reasoning that such disclosure was likely to impair the district's ability to acquire necessary information because physicians could not be expected to divulge sensitive financial information if the district was required to disseminate it to the public. Id. The court also noted that mandatory disclosure of the financial statements was likely to cause substantial harm to the physicians' competitive positions. Id.
In University of Wyoming v. Gressley, 978 P.2d 1146 (Wyo. 1999), the Supreme Court held that the University of Wyoming was subject to the Public Records Act.
In 2000, the Court in Allsop v. Cheyenne Newspapers, 2002 Wyo. 22, 39 P.3d 1092 (2002), found that a report compiled by a nationally known expert analyzing the jail after a rash of suicides and suicide attempts was not exempt from public disclosure, despite claims by the Sheriff that the report would provide a road map to suicide and escape at the jail. The District Court had ordered the report released except for one redaction which might compromise the safety of the jail. The Supreme Court reaffirmed that exempt material should be redacted from public records and non-exempt material released to the public. The Court further found that conclusory affidavits from custodians and their agents regarding potential harm to the public interest from disclosure were insufficient to support withdrawal of the records from public scrutiny. Custodians must present a factual basis to support their opinions that a harm to the public interest will occur.
In 2006, a state disctrict court agreed with the University of Wyoming that surreptitious tape recording of a university committee meeting was not a public record under Wyoming Public Records Act, as the university had not created the document. The Wyoming Suprme Court reversed, ruling that the tape was received by the university in the course of its public business, as it was used in an investigation of whether a former employee had engaged in misconduct. Sheaffer v. State ex. rel. University of Wyoming,2006 WY 99 139 P.3d 468. The Court further ruled that that provision in the Public Records Act that exempts from disclosure records and information that were complied solely for purposes of investigating violations or enforcing internal personnel rules or policies, the disclosure of which would clearly constitute unwarranted invasion of privacy, did not apply to surreptitious tape recording, as it was not compiled “solely” or “exclusively” for purposes of university's internal investigation of manager since tape pre-existed investigation. W.S. 16-4-203(d)(xi).
In 2010, the Wyoming Supreme Court ordered the release of budget reducation recommendations made to the governor by state department heads. Freudenthal v. Cheyenne Newspapers 2010 WY 80,233 P.3d 933. The governor refused to release the recommendations, claiming a "deliberative process" privilege. The district court's ruling recognized the "deliberative process" privilege, but ordered the documents released because they did not provide the kind of close, personal advice required by the privilege. The Supreme Court overturned the district court's recognition of the privilege. The Court left open the possibility it might recognize it in the proper circumstances, but cautioned that the privilege, if adopted, should be narrow in scope. The Court found that even if the privilege existed, the documents did not fit the privilege.
In a 2011 case, a school district declined to release the salaries earned by teachers. The Supreme Court ruled that salareies must be released pursuant to a provision in the Public Records Act that expressly states that documents containing the "terms and conditions" of employment, including employment contracts, are open to public inspection. Laramie County School
Dist. No. 1 v. Cheyenne Newspapers, --- P.3d ----, 2011 WL 1124107 (Wyo.), 2011 WY 55. The Court rejected the argument by the school district that a state statute requiring the publication of the legal notice of the salaries paid by district only required the publication of salary by category and not by individual expressed an intent by the Legislalture that the salaries of individuals were confidential.
H. Otherwise provided by law. The Public Records Act frequently refers to the fact that other laws may require that certain information be either available or denied to the public. A comprehensive list of these other laws and their contents is not included in this overview. Reference to the statutes governing particular subject matter will often be necessary to determine what is "otherwise provided for by law."
Michael J. Krampner, Esq., prepared the first edition of this work in 1989 with Lee Miller, Esq., who prepared the second edition in 1993. Dave Evans, Esq., prepared the third edition in 1997.