FOREWORD

The Alaska Legislature has adopted statutes assuring access to both public meetings and public records, and the Alaska Supreme Court has liberally construed these statutes to help ensure they accomplish their intended purposes. What is the intent of these laws? The state Supreme Court has noted Alaska's strong commitment to ensuring broad public access to both government records and meetings. It has repeatedly held that the public records act creates a presumption in favor of disclosure and that the act's implicit legislative policy of broad public access requires courts to narrowly construe exceptions to disclosure. The legislative findings to the 1990 amendments to the public records act explain that public access serves as an important "check and balance" that allows citizens to maintain "control of government." And the Supreme Court's decisions have characterized public access to records as a "fundamental right." Fuller v. City of Homer, 75 P.3d 1059, 1061-1062 (Alaska 2003) ("Fuller I") (footnotes omitted)

Before 1990, both the text and legislative history of the public records statutes were silent about legislative intent. The public meetings law, however, contains a strong statement of purpose, and the Supreme Court had cited this language in cases dealing with records as well. See, City of Kenai v. Kenai Peninsula Newspapers, 642 P.2d 1316, 1323 (Alaska 1982). ("There is a strong public interest in disclosure of the affairs of government generally.")

That statute includes the following:

It is the policy of the state that

(1) the governmental units mentioned in AS 44.62.310(a) exist to aid in the conduct of the people's business;

(2) it is the intent of the law that actions of those units be taken openly and that their deliberations be conducted openly;

(3) the people of this state do not yield their sovereignty to the agencies which serve them;

(4) the people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know;

(5) the people's right to remain informed shall be protected so that they may retain control over the instruments they have created.

Alaska Stat. (hereinafter "AS") § 44.62.312(a)(1)-(5). In 1990, when the Legislature amended the Public Records Act (primarily to deal with access to electronic products and services), it adopted findings that "public access to government information is a fundamental right that operates to check and balance the actions of elected and appointed officials and to maintain citizen control of government;" and that "to protect the public's right to know, public records must be available at nominal cost." § 1, ch.200, SLA 1990 in the Temporary and Special Acts.

Legislative History. The legislative history of the public records law is set out in City of Kenai v. Kenai Peninsula Newspapers, 642 P.2d at 1319-1321.

Records. Alaska's public records statute was first enacted by Congress in 1900 for the territorial District of Alaska. The language of the statute initially adopted was similar to sections of Oregon law, which in turn had counterparts in the laws of California, Montana, Utah and Idaho. Enactment of the 1900 law was intended to codify the common law (that every interested person was entitled to inspect public records, including those of municipal corporations), and may also have been intended to eliminate the requirement that the person seeking inspection have an interest.

The public records statute remained unchanged until 1955, when a reference to public writings in recorder's offices was added. Then in 1957 the law was amended to provide for exceptions relating to medical records, juveniles, and to those records required to be kept confidential by federal or territorial law. (In 1931, Alaska had become an organized territory, and the territorial legislature enacted the forerunner of § .110 that year. It remained essentially unchanged until the past decade, when an eclectic variety of exceptions were added. See, AS 40.25.120(d)(7)-(11).) After Alaska became a state in 1959, the public records statutes were repealed and re-enacted (in 1962), codified as AS 09.25.110 et seq. (The statute was renumbered in 2000 when the Public Records Act was moved from Title 9 to Title 40 of the Alaska Statutes, but no substantive changes were made). This 1962 re-enactment was part of a comprehensive revision of the entire territorial statutory code of civil procedure. It was intended to delete procedural provisions from the state's statutes, in deference to the judicial branch's power under the new state constitution to make rules governing court procedures. The report of the House Judiciary Committee makes clear that no substantive changes in pre-existing public records law were intended by the code revisions, and no change in the scope of the public records law was affected by the re-codification. In short, the common law presumption of public access to records adopted in 1900 has not been changed since.

However, two subsequent actions by the Alaska Legislature in particular have significantly affected access to public records. First, the Victims Rights Act of 1991 restricted access to records that include the names and addresses of victims of sexual assaults and kidnapping, and certain identifying information about witnesses generally, see AS 12.61.100-.150, reproduced in the Appendix. This statute has substantially impaired access to records previously available — in part because of the language of the statute itself, and in part because some law enforcement agencies and others have used the VRA as an excuse for denying and delaying access to documents not necessarily covered by the Act.

Second, revisions to the public records act in 1990 made several changes affecting access to public records generally, but primarily addressed access to electronic products and services. Public records are available regardless of their format — it doesn't matter whether a document is stored on parchment, floppy disk or PC. However, public records laws do not require public officials to create records that don't already exist. Among other things, this means that an agency is not required by traditional public records laws to manipulate data stored in computer databases to suit the needs of a particular citizen's request, even though computer programs might enable public employees to satisfy the request with little trouble. AS 40.25.115 and related provisions were carefully crafted to balance interests of the public and government agencies, and to encourage agencies to make electronically stored information available in ways that are responsive to specific individual needs, and take advantage of evolving capabilities of new technology.

Meetings. Alaska's Open Meetings Act ("OMA") was enacted in 1959 as part of the Administrative Procedures Act adopted by the first legislature after statehood. AS 44.62.310. Its broad language was a comprehensive mandate that meetings of public agencies be open to the public. In 1972, the legislature bolstered the OMA by adding to it a strong statement of purpose codified in AS 44.62.312. A contemporaneous amendment clarified the law to underscore that the OMA was intended to cover meetings of the legislature. [This latter change was rendered meaningless by the Court's decision in Abood v. League of Women Voters, 743 P.2d 333 (Alaska 1987), holding that the constitutional separation of powers prevented enforcement of the OMA against the state legislature (see Reporters Committee Alaska Open Meetings outline, sec. I.C.2).] The law was also amended in 1985 to expressly provide for teleconference meetings.

Through the years, the Alaska Supreme Court has consistently construed the OMA liberally in order to give full effect to the letter and spirit of the law. However, after years of complaining about certain provisions they found troublesome, a coalition of municipalities and other public agencies were successful in obtaining certain restrictive amendments to the Open Meetings Act as part of significant revisions made by the legislature in 1994. Chief among these was a definition of the number of public officials necessary to constitute a meeting. Until this time, a "meeting" was not defined by statute, and the Alaska Supreme Court, agreeing with arguments made by press interests filing as friends of the court, had refused to require that a quorum was necessary to establish a meeting. It left this issue unresolved, though a 1981 attorney general's opinion had indicated that any time two or more members of a public body gathered together to conduct public business it was a meeting covered by the Open Meetings Act. Press organizations never challenged the conduct of public officials based on the "two or more" standard. The imprecise definition of a meeting was a troublesome point for many years, however, not only with respect to inappropriate activities of public officials with little concern about following the Open Meetings Act, but also for conscientious public officials who were interested in following the law but needed to know what the law required of them.

The matter came to a head as a result of two or three high profile and costly lawsuits by public employees or public officials against their colleagues or municipalities. One was an employment-related dispute, the other a political dog fight. In neither case was the press a party. Both suits were extraordinarily expensive, and in each case the court adopted as the definition of a meeting a gathering of "two or more" officials. The perceived need to clarify the definition of a meeting after these cases provided the impetus for legislative revision of the Open Meetings Act, and bills addressing this point provided a vehicle for interested parties to deal with other problems that they had with the Open Meetings Act and its liberal construction by the courts.

Among the changes adopted by the legislature in 1994 were imposition of a 180-day time limit for bringing suits to void actions taken in violation of the Open Meetings Act (the Act itself contained no statute of limitations prior to that time, and the Alaska Supreme Court had expressly refused to apply the doctrine of laches), and exemption of certain meetings of bodies of the state university system (including, for example, faculty tenure committee meetings, which the Alaska Supreme Court had ruled were subject to the Open Meetings Act). Also, a much looser definition of what meetings are subject to coverage of the act was applied to groups meeting solely in an advisory capacity, and violations of the law by advisory groups can no longer be remedied by an action to set aside resulting decisions (reversing the effect of yet another Supreme Court decision). Although the court had previously held that a balancing of interests is required to ensure protection of the public interest, courts are now expressly required to weigh a variety of factors enumerated in the statute before they can invalidate or void action taken by a public body. The list largely codifies factors that have been articulated in Supreme Court decisions, but adds or underscores factors stressing cost or disruption to the bodies that have taken action.

As a result of significant vigilance and involvement in the legislative process by parties attempting to maximize public access, especially the press, the Alaska Newspaper Association, and the League of Women Voters, much more onerous proposed amendments were avoided (e.g., limiting the definition of a meeting to only gatherings of a quorum or more of a public body, and denying coverage of the Open Meetings Act unless a meeting was pre-arranged for the purpose of discussing public business, regardless of the fact that a meeting did occur and that public business was in fact discussed, allowing substantial decisions to be made in an executive session, and removing advisory groups and meetings of any body discussing professional qualifications or discipline). In addition, a few provisions were inserted that improved the law from the perspective of members of the press and public advocating for greater openness. A subtle but perhaps most significant change affecting the overall enforceability of the Open Meetings Act is the language strengthening AS 44.62.312(b), which now reads:

AS 44.62.310(c) [the provision for executive sessions] and (d) [the list of gatherings not covered by the Open Meetings Act at all] shall be construed narrowly in order to effectuate the policy stated in (a) of this section [the statement of policy of the Open Meetings Act] and to avoid exemptions from open meeting requirements and unnecessary executive sessions.

Future Revisions of this Outline. Those who use this outline can contribute to its usefulness and accuracy in the future by sending materials to be included in periodic revisions to: D. John McKay, 117 E. Cook Ave., Anchorage, Alaska 99501. Ph. (907) 274-3154; fax (907) 272-5646; e-mail: mckay@alaska.net

Include statutes, regulations or ordinances not noted in this outline, any changes that occur with respect to provisions cited here, and interpretations of these laws by courts or public officials. Also, send court cases you are involved in or know about, and incidents involving access to meetings and records.