I. STATUTE -- BASIC APPLICATION

This outline attempts to comprehensively catalogue those instances in which the Alaska Statutes require that information be kept confidential. There are often additional or complementary requirements of confidentiality in the administrative regulations adopted pursuant to these various statutes. A few of the administrative regulations most significant to news reporters have been addressed in this outline. No attempt has been made to deal with all the administrative regulations of the various state agencies (or likewise, with local government charters, ordinances and policies), but the reader should be aware that they exist and may be asserted as a basis for denying access to records.

[The range of regulatory provisions requiring confidentiality is extremely broad, and a person seeking access to information should check regulations in the pertinent subject area if a question arises. Presumably, the agency would cite any regulation imposing confidentiality as a basis for denying records. Once the legal basis for the denial is established, the regulation can be compared to the statute for consistency and to determine whether there is authority for the regulation. The information kept confidential by these regulatory provisions runs the gamut from student test results, 4 AAC 6.735, to the biological and management data collected by on-board observers from catcher/processor and floating processor vessels that process shell fish, 5 AAC 39.64.5, to employee petitioner interest cards in support of a showing of interest in a union organizing drive, 8 AAC 97.060(d), to applications for concealed handgun permits, 13 AAAC 30.800.]

An agency seeking not to disclose a record on the basis of an agency regulation requiring confidentiality might cite as authority AS 40.25.120(4), which provides that "records required to be kept confidential by a federal law or regulation or by a state law" are not subject to public inspection. Note that the statute does not make an exception for records required to be kept confidential by a "federal or state law or regulation." Only federal regulations, and not state regulations, form the basis for this exception. The legislature apparently intended to reserve to itself the power to make decisions about when documents should be exempt from public disclosure. By not allowing an exception to the public disclosure requirement based on state administrative regulations alone, the legislature refrained from giving administrative agencies carte blanche to keep documents that agency employees decided would be best kept confidential. Although the issue has not squarely been addressed by the Alaska Supreme Court, trial courts in cases brought by the Anchorage Daily News concerning access to public records have interpreted the statute this way, and refused to deny access to records on the basis of administrative regulations purporting to make them confidential.