1. Character of exemptions
The Public Records Act, AS 40.25.110 - .220 contains a number of exemptions to disclosure requirements. Whether these exemptions are discretionary or mandatory varies depending on the nature of the specific exemption. Most exceptions are relatively specific, but AS 40.25.120(4) is a "catch-all" exemption that closes "records required to be kept confidential by federal law or regulation or by state law." This exception has been construed to include both express exceptions contained in state law and common law exceptions, which are considered to be within state law, and has specifically been interpreted to encompass the attorney-client and attorney work product privileges. Griswold v. Homer City Council, P.3d , 2018 WL 4375455, at *4-6 (Alaska, September 14, 2018).
The state public records act itself predates the Federal FOIA and is not patterned after it, although the administrative regulations adopted by the state resemble the federal procedures. While the Alaska courts have not routinely, or even often, relied on federal FOIA precedent, the Alaska Supreme Court has in 1996 specifically endorsed reliance on FOIA precedent for purposes of interpreting the deliberative process privilege. See Capital Information Group v. Office of the Governor, 923 P.2d 29, 35 n. 4 (Alaska 1996).
The FOIA exempts specified records and contains a “catch-all” exemption that incorporates confidentiality provisions of other statutes. Ark. Code Ann. § 25-19-105(a)-(c). If a record does not fall squarely within an exemption, it must be disclosed. Exemptions are to be narrowly construed, and when the scope of a given exemption is unclear, it will usually be interpreted in a manner favoring disclosure. Orsini v. State, 340 Ark. 665, 13 S.W.3d 167 (2000); Arkansas Dep’t of Finance & Admin. v. Pharmacy Associates Inc., 333 Ark. 451, 970 S.W.2d 217 (1998); Legislative Joint Auditing Committee v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987); Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986). However, courts faced with a question of statutory interpretation will also use a “common sense” approach that balances the public interest in disclosure and the need for confidentiality. Byrne v. Eagle, 319 Ark. 587, 892 S.W.2d 487 (1995); Bryant v. Mars, 309 Ark. 480, 830 S.W.2d 869 (1992). The location of records is irrelevant with respect to the application of particular exemptions. Ark. Op. Att’y Gen. Nos. 2001-172, 2000-257, 2000-225, 97-356, 92-237, 91-323.
The act’s exemptions are mandatory. See Ark. Code Ann. § 25-19-105(b) (records in exempt categories “shall not be deemed to be made open to the public”). Thus, an agency may not disclose records that fall within an exemption absent a court order, subpoena, or written consent of the person whose rights are protected by the exemption. Ark. Op. Att’y Gen. Nos. 99-334, 91-374, 91-323.
Although the exemptions are not patterned on the federal FOI act, there is some common ground. In those situations, federal case law will likely be persuasive. E.g., Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (citing federal cases in construing exemption for personnel records, which are exempt only to the extent that their disclosure would constitute a “clearly unwarranted invasion of personal privacy”); Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (same).
The CPRA sets merely the “minimum standard” public agencies must meet for disclosing public records. Section 6253(e) of the CPRA states that “[e]xcept as otherwise prohibited by law, a state or local agency may adopt requirements for itself that allow for faster, more efficient, or greater access to records than prescribed by the minimum standards set forth in this chapter.” Cal. Gov’t Code § 6253(e). See also North County Parents Org. v. Dept. of Ed., 23 Cal. App. 4th 144, 148, 28 Cal. Rptr. 2d 359 (1994). Thus, the exemptions for the most part are discretionary on the part of the agency.
The CPRA is modeled after the federal Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, et seq. See ACLU v. Superior Court, 3 Cal. 5th 1032, 1038, 221 Cal. Rptr.3d 832, 400 P.3d 432 (2017); Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1338, 283 Cal. Rptr. 893, 813 P.2d 240 (1991); Los Angeles Unified Sch. Dist. v. Superior Court, 228 Cal. App. 4th 222, 238, 175 Cal. Rptr. 3d 90 (2014); Versaci v. Superior Court, 127 Cal. App. 4th 805, 818, 26 Cal. Rptr. 3d 92 (2005); Cal. State Univ. v. Superior Court, 90 Cal. App. 4th 810, 823-24, 108 Cal. Rptr 2d 870 (2001). Accordingly, federal “legislative history and judicial construction of the FOIA … ‘serve to illuminate the interpretation of its California counterpart.’” Los Angeles Unified Sch. Dist., 288 Cal. App. 4th at 238 (quoting Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1338, 283 Cal. Rptr. 893, 813 P.2d 240 (1991)); see also Cal. State Univ., 90 Cal. App. 4th at 823-24; but see Williams v. Superior Court, 5 Cal. 4th 337, 19 Cal. Rptr. 2d 882, 852 P.2d 377 (1993) (where court rejected the application of FOIA standards in interpreting the investigatory records exemption of Section 6254(f)(1) and (f)(2) of the Government Code).
The CPRA contains specific statutory exemptions, and one general or “catchall” exemption. Under Section 6255 of the Government Code this “catchall” exemption applies where, on the facts of a particular case, "the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record." Cal. Gov’t Code § 6255. See International Federation of Professional and Technical Eng. v. Superior Court, 42 Cal. 4th 319, 329, 64 Cal. Rptr. 3d 693, 165 P.3d 488 (2007) (describing nature of exemptions under CPRA).
In general, however, unless an express statutory provisions makes the record exempt, it must be disclosed. See City of San Jose v. Superior Court, 2 Cal. 5th 608, 616, 214 Cal. Rptr. 3d 274, 389 P.3d 848 (2017); Sander v. State Bar of California, 58 Cal. 4th 300, 323, 165 Cal. Rptr. 3d 250, 314 P.3d 488 (2013); Int’l Federation, 42 Cal. 4th at 329; Commission on Peace Officer Standing and Training v. Superior Court, 42 Cal. 4th 278, 288, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007).
Exemptions are to be narrowly construed and public agencies bear the burden of proving that an exemption applies. Long Beach Police Officers Assn. v. City of Long Beach, 59 Cal. 4th 59, 67, 172 Cal. Rptr. 3d 56, 325 P.3d 460 (2014); Int’l Federation, 42 Cal. 4th at 329; Los Angeles Unified Sch. Dist., 228 Cal. App. 4th at 239; County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1321, 89 Cal. Rptr. 3d 374 (2009); BRV, Inc. v. Superior Court, 143 Cal. App. 4th 742, 756, 49 Cal. Rptr. 3d 519 (2006); Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1045, 13 Cal. Rptr. 3d 517 (2004), Cal. State Univ., 90 Cal. App. 4th at 831.
Importantly, the Constitutional Sunshine Amendment mandates that "[a] statute, court rule or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access." Cal. Const. Art. I, § 3(b)(2); see Sierra Club v. Superior Court, 57 Cal. 4th 157, 175, 158 Cal. Rprt. 639, 302 P.3d 102 (2013) (stating that to extent statutory language is ambiguous, “the constitutional cannon requires us to interpret it in a way that maximizes the public’s access to information…”). See also ACLU v. Superior Court, 3 Cal. 5th 1032, 1039, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017); City of San Jose, 2 Cal. 5th at 616-17. The Amendment also requires that any new exemption adopted after the effective date of the Sunshine Amendment must be adopted "with findings demonstrating the interest protected by the limitation and the need for protecting that interest." Cal. Const. Art. I, § 3(b)(2).
Public agencies cannot deny access merely because portions of a public record contain exempt information. Rather, Section 6253(a) of the CPRA requires that "[a]ny reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law." Cal. Gov't Code § 6253(a). See also Commission on Peace Officer Standing and Training, 42 Cal. 4th at 301-02; American Civil Liberties Union Foundation v. Deukmejian, 32 Cal. 3d 440, 453 n.13, 186 Cal. Rptr. 235, 651 P.2d 822 (1982); Northern Cal. Police Practices Project v. Craig, 90 Cal. App. 3d 116, 124, 153 Cal. Rptr. 173 (1979).
Public agencies may also waive exemptions by voluntarily disclosing a record otherwise exempt from disclosure by statute. Specifically, Section 6254.5 provides, in pertinent part, "whenever a state or local agency discloses a public record which is otherwise exempt from this chapter, to any member of the public, this disclosure shall constitute a waiver of the exemptions specified in Sections 6254, 6254.7, or other similar provisions of law." Cal. Gov't Code § 6254.5. The California Supreme Court has interpreted this statute as requiring an intentional disclosure of a public record to a member of the public to constitute a waiver; inadvertent disclosure was held not to constitute a waiver of the attorney-client privilege. See Ardon v. City of Los Angeles, 62 Cal. 4th 1176, 1189, 199 Cal. Rptr. 3d 743, 366 P.3d 996 (2016); see generally County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1321-22, 89 Cal. Rptr. 3d 374 (2009) (“‘Disclosure to one member of the public would constitute a waiver of the exemption [citation], requiring disclosure to any other person who requests a copy.’” (citations omitted)); City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1018, 88 Cal. Rptr. 2d 552 (1999); Vallejos v. Cal. Hwy. Patrol, 89 Cal. App. 3d 781, 152 Cal. Rptr. 846 (1979). There are, however, several statutory exceptions to waiver. See Cal. Gov't Code § 6254.5 (a)-(i); Rackauckas v. Superior Court, 104 Cal. App. 4th 169, 240, 128 Cal. Rptr. 2d 234 (2002) (no waiver for interagency disclosures made in confidence); Michael P. v. Superior Court, 92 Cal. App. 4th 1036, 1048, 113 Cal. Rptr. 2d 11 (2001) (same).
Where a specific statute barred a county from disclosing vehicle impoundment forms, which contain owner address information, the county’s practice of disclosing addresses to towing companies to facilitate notice to owners of vehicle impoundment was held not to constitute a waiver under Section 6254.5. See County of Los Angeles v. Superior Court, 242 Cal. App. 4th 475, 195 Cal. Rptr. 3d 110 (2015).
In the absence of a specific statute or court rule permitting information to be withheld, a public official has no authority to deny any person access to public records. Denver Publ'g Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974). Exemptions are patterned after the federal Freedom of Information Act, but there are discrepancies.
FOIA contains twenty-five specific exemptions. See Conn. Gen. Stat. §1-210(b). Exemptions under FOIA are narrowly construed in light of the general rule of disclosure under FOIA. See Wilson v. FOIC, 181 Conn. 324, 435 A.2d 353 (1980); Maher v. FOIC, 192 Conn. 310, 472 A.2d 321 (1984). The exemptions reflect "a legislative intention to balance the public's right to know what its agencies are doing, with the governmental and private needs for confidentiality." Wilson, 181 Conn. at 328. The burden of proving the applicability of an exemption rests upon the agency claiming it. Id. at 329; Maher, 192 Conn. at 315. The exemptions are in general discretionary with the public agency, as indicated by opening the language of Conn. Gen. Stat. §1-210(b): "Nothing in [FOIA] shall be construed to require disclosure of . . ." Therefore, the agency may disclose material that is exempt but need not. See Conn. Gen. Stat. §1-210(b).
The Connecticut exemptions are to some degree patterned after the federal Freedom of Information Act. See Bd. of Trustees v. FOIC, 181 Conn. 544, 436 A.2d 266 (1980) (appropriate to look to federal act for guidance in interpreting FOIA).
There are 16 specific exemptions contained within the Act. Additionally, records of the General Assembly and certain records of the University of Delaware and Delaware State University are excluded. 29 Del. C. § 10002(d). See Del. Op. Att'y Gen., No. 00-ib08 (May 24, 2000) (holding that any documents relating to the spending of state funds for those infrastructure improvements are "public records" under FOIA, and that the University was required to make them available for inspection and copying.) Given the Act's commitment to making records available, the 16 exemptions are construed narrowly and specifically and thus are not easily abused exemptions. See Delaware Solid Waste Auth. v. News-Journal Co., 480 A.2d 628 (Del. 1984); News-Journal Co. v. McLaughlin, 377 A.2d 358 (Del. Ch. 1977).
The Act preserves all common law and other statutory exemptions to public disclosure. 29 Del. C. § 10002(g)(6).
Whether they are mandatory or discretionary is not specified, but the statute says exempt records "shall not be deemed public." 29 Del. C. § 10002(g).
Though the Delaware Act was not modeled on the federal FOIA, certain fundamental language related to exemptions is identical. On occasion the Delaware courts have looked to cases under the federal FOIA. See, e.g,. News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980).
District of Columbia
Statutory exemptions are specific and are to be strictly construed; courts do not have the power to create additional exemptions. See D.C. Code Ann. § 2-537(b); Barry v. Washington Post Co., 529 A.2d 319, 321 (D.C. 1987). A government agency that wishes to withhold information has the burden of showing an exemption to the D.C. Act applies. See Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d 517, 521 (D.C. 1989).
The language of the D.C. Act provides that the listed categories of information "may be exempt." D.C. Code Ann. § 2-534(a). The exemptions, therefore, should be viewed as discretionary. See also 1 D.C. Mun. Reg. ("DCMR") § 406.1 (no requested record may be withheld unless it both comes within a statutory exemption and there is a need in the public interest to withhold it); 1 DCMR § 400.4 (records exempt from mandatory disclosure shall be made available as a matter of discretion when disclosure is not prohibited by law or is not against the public interest). Information gathered under the Vital Records Act, however, is excluded from the D.C. Act altogether, and can only be disclosed pursuant to the terms of the Vital Records Act. § 2-534(d). The D.C. Act exemptions do not authorize nondisclosure of information when disclosure is authorized or mandated by other law. D.C. Code Ann. § 2-534(c). See Dunhill v. Director, 416 A.2d 244, 247-48 (D.C. 1980) (holding that even if information sought was exempt under privacy exemption, nondisclosure was improper because the information was available under another law and accompanying regulations); Cf. Riley v. Fenty, 7 A.3d 1014, 1017 (D.C. 2010) (holding that juvenile records were not subject to disclosure because another statute prohibited their release); Wemhoff v. D.C., 887 A.2d 1004, 1009 (D.C. 2005) (holding that attorney could not obtain driving records for solicitation purposes because another statute barred those records' release).
The exemptions under the D.C. Act are patterned on and have been construed in accordance with federal law. See Barry v. Washington Post Co., 529 A.2d at 321. Three exemptions that appear in the federal act do not appear in the D.C. Act: (1) internal personnel rules and practices of an agency; (2) reports of and information gained during examinations of financial institutions; and (3) geological and geographical data regarding wells. 5 U.S.C.A. § § 552(b)(2), 552(b)(8)-(9). Exemptions appearing in the D.C. Act that do not appear in the federal act are discussed in other sections.
Generally, every person has the right to inspect records created or received in relation to official business of State legislative, executive, or judicial branches. However, the legislature may specifically exempt certain records from public access. The legislature must include in the exemption law the “public necessity justifying the exemption” and construct the restriction so that it “shall be no broader than necessary to accomplish the stated purpose of the law.” Art. I, § 24(c), Fla. Const.; see also Halifax Hosp. Med. Ctr. v. News-Journal Corp., 724 So. 2d 567 (Fla. 1999) (exemption under section 286.011, Fla. Stat. (1995), which denied public access to transcripts generated at a public hospital board meeting, held to be overly broad and unconstitutional on its face).
Exemptions from the inspection provisions of Chapter 119 must be specifically provided for by statute. Wait v. Fla. Power & Light Co., 372 So. 2d 420 (Fla. 1979); see also Greater Orlando Aviation Auth. v. Nejame, LaFay, Jancha, Vara, Barker, 4 So. 3d 41, 43 (Fla. 5th DCA 2009) (“Courts are not authorized to create exemptions from disclosure or to read into laws exemptions not clearly created by Congress or by the State Legislature.”) (quoting Housing Auth. of Daytona Beach v. Gomillion, 639 So. 2d 117, 121 (Fla. 5th DCA 1994)); Miami Herald Publ’g Co. v. City of N. Miami, 452 So. 2d 572 (Fla. 3d DCA 1984), approved, 468 So. 2d 218 (only public records provided by statute to be confidential or which are expressly exempt by general or special law from disclosure under the public records law are exempt); Douglas v. Michel, 410 So. 2d 936 (Fla. 5th DCA 1982), answering certified questions, 464 So. 2d 545 (Fla. 1985); News-Press Publ’g Co. v. Gadd, 388 So. 2d 226 (Fla. 2d DCA 1980) (all documents falling within the scope of the public records law are subject to disclosure unless specifically exempt by statute; court may not consider public policy questions regarding relative significance of public interest in disclosure and damage resulting from such disclosure).
Provisions exempting specified categories of records from the requirements of Section 119.07(1) do not specify whether such exemptions are mandatory or discretionary. However, the public records law is to be liberally construed in favor of open government, and exemptions are to be construed narrowly so they are limited to their stated purpose. See City of Petersburg v. Romine ex rel. Dillinger, 719 So. 2d 19 (Fla. 2d DCA 1998), reh’g denied; Christy v. Palm Beach Cty.. Sheriff’s Office, 698 So. 2d 1365 (Fla. 4th DCA 1997); Gillim v. Tribune Co., 503 So. 2d 327 (Fla. 1987); Seminole Cty.. v. Wood, 512 So. 2d 1000 (Fla. 5th DCA 1987); Tribune Co. v. Pub. Records, 493 So. 2d 480 (Fla. 2d DCA 1986), review denied; Bludworth v. Palm Beach Newspapers Inc., 476 So. 2d 775 (Fla. 4th DCA 1985), review denied, 488 So. 2d 67 (Fla. 1986); Miami Herald Publ’g Co. v. City of N. Miami, 452 So. 2d 572 (Fla. 3d DCA 1984), approved, 468 So. 2d 218 (Fla. 1985). There is a difference between records which are exempt from inspection and those which are made confidential by statute. Op. Att’y Gen. Fla. 89-12; Op. Att’y Gen. Fla. 85-62. If records are simply exempt, an agency is not prohibited from disclosing records in all circumstances. Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA), review denied, 589 So. 2d 289 (Fla. 1991).
Where the purpose of an exemption is to protect an individual or a class of individuals, and the statutory language includes the term “shall,” the exemption is likely to be regarded as mandatory. However, in light of the presumption of openness of public records, a custodian may have discretion to make available otherwise exempt records where the reason for the exemption is not present and it is in the interest of the public that the records be made available.
Pursuant to Section 119.07(1)(d), when an exemption applies to a requested record, the person who has custody is to “redact that portion of the record to which an exemption is asserted and validly applies, and such person shall produce the remainder of such record for inspection and copying.”
“The exceptions set forth in [the Act], together with any other exception located elsewhere in the Code, shall be interpreted narrowly to exclude only those portions of records addressed by such exception.” O.C.G.A. § 50-18-70(a). See § 50-18-72(b) (same); Hardaway Co. v. Rives, 262 Ga. 631, 422 S.E.2d 854 (1992) ("[A]ny purported statutory exemption from disclosure under the Open Records Act must be narrowly construed"); City of Brunswick v. Atlanta Journal & Constitution, 214 Ga. App. 150, 447 S.E.2d 41 (1994).
As is the case with all exemptions to the Act, the custodian bears the burden of proving the exemption's applicability. Brown v. Minter, 243 Ga. 397, 254 S.E.2d 326 (1979). Conclusory and speculative allegations are insufficient. Richmond Cty. Hosp. Auth. v. Se. Newspapers Corp., 252 Ga. 19, 311 S.E.2d 806 (1984).
In order to effectively claim an exemption under the Act, the agency must provide the requester—generally within three business—“the specific legal authority exempting the requested record or records from disclosure by Code section, subsection, and paragraph.” § 50-18-71(d). “It shall be the duty of the agency having custody of a record to provide all other portions of a record for public inspection or copying.” § 50-18-72(b). The claimed applicability of an exception cannot be raised for the first time on appeal. Dortch v. Atlanta Journal & Constitution, 261 Ga. 350, 405 S.E.2d 43 (1991).
Unless an exemption specifically mandates non-disclosure, see, e.g., Harris v. Cox Enter. Inc., 256 Ga. 299, 301, 348 S.E.2d 448 (1986) ("The language of the statute mandates the maintenance of confidentiality of records required by the federal government to be kept confidential or to medical or veterinary records and similar files, the disclosure of which would be an invasion of personal privacy."), the Act does not require official custodians to deny access to the records falling under the enumerated exemptions. § 50-18-72(a); Campaign for Accountability v. Consumer Credit Research Found., 303 Ga. 828, 815 S.E.2d 841 (2018) (holding that exemptions to the Open Records Act generally allow disclosure or non-disclosure and do not prohibit disclosure).
Chapter 92F contains fives exemptions to disclosure, all but two of which are specific. See Haw. Rev. Stat. § 92F-13.
Because the law supports disclosure, exemptions from disclosure are basically discretionary. Section 92F-13 provides that the act "shall not require disclosure of" five categories of records. Agencies or third parties attempting to block disclosure bear the burden of proof to justify nondisclosure. Haw. Rev. Stat. § 92F-15(c). Criminal penalties are only enforceable against those disclosing "confidential information explicitly described by specific confidentiality statutes." Id. § 92F-17(a).
As an evidentiary matter, the OIP has opined that the exemptions in section 92F-13 do not afford a basis to object to a subpoena or discovery request under the rules of pretrial discovery. Disclosure of Patient Medical Records in Response to Clerk-Issued Subpoenas, OIP Op. Ltr. No. 95-16 (July 18, 1995).
The exemptions are not tightly patterned after those in the FOIA, 5 U.S.C.A. § 552 (1996 and Supp. 2000), although the OIP frequently turns to the FOIA, its legislative history, and federal case law for guidance in interpreting the scope of the UIPA exceptions.
When considering whether a public record is exempt from disclosure, Idaho courts begin with the presumption that all public records are open to disclosure and that all exemptions are to be narrowly construed. Ward v. Portneuf Medical Center, Inc., supra, n. 4. See also Idaho Code § 74-102(1). Therefore, “the agency bears the burden of persuasion and must ‘show cause,’ or prove, that the documents fit within one of the narrowly-construed exemptions.” Hymas v. Meridian Police Dept., 156 Idaho 739, 745, 330 P.3d 1097, 1103 (Ct. App. 2014) (citation omitted).
Importantly, the public records act was crafted to encourage the release of a public record even in those cases in which it may be a close call as to whether the public record is exempt from public disclosure. If the record is released “in good faith in attempting to comply” with the public records act, then the public agency, public official or custodian involved is immune from any claim for loss or damage based upon the release of the record. Idaho Code § 74-118. In practice, however, despite this protection some agencies remain concerned about possible liability for release of their records and make decisions to deny disclosure that appear to be influenced by such a concern.
Only Idaho’s police investigatory record statute, Idaho Code § 74-124, patterned after Exemption 7 of the federal Freedom of Information Act, is specifically based upon a federal statute.
The Illinois FOIA sets out specific categories of exemptions. FOIA contains a series of exemptions set out in the statute in section 7. The Act also contains, in Section 7.5, a series of additional exemptions as set forth in other statutes.
The Illinois Supreme Court has held that, under the Freedom of Information Act, "public records are presumed to be open and accessible. The Act does create exceptions to disclosure, but those exceptions are to be read narrowly." Lieber v. Board of Trs., 176 Ill. 2d 401, 407, 680 N.E.2d 374, 377, 223 Ill. Dec. 641, 644 (1997). When a public body receives a proper request, "it must comply with that request unless one of the narrow statutory exemptions applies." Lieber (emphasis added); see also Lieber v. Southern Ill. Univ., 279 Ill. App. 3d 553, 664 N.E.2d 1155, 216 Ill. Dec. 227 (5th Dist. 1996) (holding that Act's public policy statement, 5 ILCS 140/1, does not provide an alternative exemption from disclosure, and that public body may validly shield itself from mandatory disclosure only by meeting its burden to prove that the information is exempt under 5 ILCS 140/7; "[T]he main purpose of the Act is to provide the public with easy access to government information, and the exemptions in section 7 and the public policy statements of section 1 should not be construed to defeat that purpose").
The Act suggests that invoking any applicable exemptions is discretionary, while releasing non-exempt material is mandatory: “When a request is made to inspect or copy a public record that contains information that is exempt from disclosure under this Section, but also contains information that is not exempt from disclosure, the public body may elect to redact the information that is exempt. The public body shall make the remaining information available for inspection and copying.” 5 ILCS 140/7(1) (emphasis added).
Likewise, the Illinois Appellate Court held that "[t]he purpose of the Act is to ensure disclosure of information, not to protect information from disclosure." Roehrborn v. Lambert, 660 N.E.2d 180, 183 (1st Dist. 1995). The court noted the FOIA provides, for example, "no explicit remedies for disclosing personal information." Id. Relying on Roehrborn, the Illinois Attorney General has stated that "[t]he exemptions do not . . . prohibit the dissemination of information; rather, they merely authorize the withholding of information." A Guide to the Illinois Freedom of Information Act 13 (2004) (available at http://www.ag.state.il.us/government/FOIA_guide.pdf).
Some Illinois exemptions resemble exemptions in the federal Act. It should be noted here that the legislature intended that case law construing the federal Act be used to interpret the Illinois Act. See Roulette v. Department of Cent. Mgmt. Servs., 141 Ill. App. 3d 394, 400, 490 N.E.2d 60, 64, 95 Ill. Dec. 587, 591 (1st Dist. 1986).
The Act has both mandatory and discretionary exemptions. There are mandatory exemptions for confidential records and discretionary exemptions for a laundry list of records. Ind. Code §§ 5-14-3-4(a); (b). The most recent addition to the discretionary exemptions is “records relating to negotiations between a state educational institution and another entity concerning the establishment of a collaborative relationship or venture to advance the research, engagement, or educational mission of the state educational institution, if the records are created while the negotiations are in progress.” Ind. Code § 5-14-3-4(b)(28).
Amendments to Sections 5-14-3-4(a) and (b) have added exemptions for autopsy records, personal information of municipal utility customers, and, perhaps most notably, exceptions for records “which would have a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack.” Ind. Code § 5-14-3-4(a)(11) and (b)(19), (20).
In general, the exemptions are patterned after the Freedom of Information Act (FOIA), see, e.g., Pigman v. Evansville Press, 537 N.E.2d 547, 550 (Ind. Ct. App. 1989), but over time, the list has been expanded to meet the concerns of various interest groups. The 2003 addition of Ind. Code Section 5-14-3-4(b)(19), creating a detailed discretionary exemption for information relating to terrorist attacks, mirrors a similar curtailing of FOIA in response to the post-Sept. 11 homeland security initiative.
The statutory exemptions are specific. See Iowa Code § 22.7. Moreover, the district court may enjoin examination of specific records or a narrowly drawn class of records if examination would clearly not be in the public interest and the examination would result in substantial and irreparable injury to any person or persons. Iowa Code § 22.8(1). Inconvenience or embarrassment to officials or others is not sufficient to warrant grant of an injunction. Iowa Code § 22.8(3). Injunctions "restraining the examination of a narrowly drawn class of public records may be issued only if an injunction would be justified under this section for every member within the class of records involved if each of those members were considered separately." Iowa Code § 22.8(3). See generally Iowa R. Civ. P. 320-30 (discussing injunctions).
The exemptions are also discretionary. "The following public records shall be kept confidential, unless otherwise ordered by a court, by the lawful custodian of the records, or by another person duly authorized to release such information." Iowa Code § 22.7 (emphasis added). This discretion is in favor of broad public access and excemptions should be construed narrowly. Iowa Film Prod. Svcs., 818 N.w.2d at 219 (“Although we should not thwart legislative intent, the specific exemptions contained in freedom of information statutes are to be construed narrowly.” quoting Hall v. Broadlawns Med. Ctr., 811 N.W.2d 478, 485 (Iowa 2012); State v. Henderson, No. 01-0291, 2002 WL 987851, at *2 (Iowa Ct. App. May 15, 2002) (“There is a liberal policy of access under chapter 22, and departures are to be made only under discrete circumstances.”).
The Iowa statute does not appear to be patterned after the federal statute. But when a federal provision is similar to a provision in the Iowa statute, federal court interpretations are helpful in construing the Iowa statute. Hall v. Broadlawns Med. Ctr., 811 N.W.2d 478, 483-84 (Iowa 2012) (analyzing two federal cases interpreting “the degree to which a statute protects confidentiality even though documents are in the hands of third parties); City of Riverdale v. Diercks, 806 N.W.2d 643, 658 (Iowa 2011) (agreeing with a federal court that discussed selective disclosure); Records Custodian, Atlantic Cmty. Sch. Dist., 818 N.W.2d at 238 (applying the balancing test applied by federal courts to balance “the public interests served by disclosure against the private interests in protecting privacy”).
The exemptions in Ky. Rev. Stat. 61.878(1) are specific. The exemptions are also discretionary in nature: "[T]he exceptions to the Open Records Law are permissive rather than mandatory." 94-ORD-120.
Some similarities exist between the Kentucky Open Records Act and the Freedom of Information Act ("FOIA"), and Kentucky courts and the Attorney General often look to the FOIA for guidance when state law is scarce. See, e.g., 94-ORD-108 (looking to cases interpreting "the federal analogue to Ky. Rev. Stat. 61.878(1)(i) which is found at 5 U.S.C. § 552(b)(5)").
All exceptions or exemptions must be set out in the Public Records Act or in the Constitution. The Act contains numerous exceptions and exemptions, as well as a section that merely lists, by statute number, exceptions or exemptions found in other titles of the Revised Statutes, thus satisfying the requirement that all exceptions or exemptions must be in the Public Records Act.
The constitutional right of privacy is often invoked to defeat or limit public records requests. See La. Const. art. I, § 5; Trahan v. Larrivee, 365 So. 2d 294 (3rd Cir. 1979); see also Eastbank Consol. Special Serv. Fire Prot. Dist. v. Crossen, 892 So. 2d 666 (La. App. 5th Cir.), writ denied, 897 So. 2d 608 (La. 2005) (determining that personnel files, including records of all disciplinary actions, reprimands, apologies or other personnel documents should remain beyond the scope of the Public Records Act). Despite the holding in Capital City Press v. East Baton Rouge Parish Metropolitan Council, 696 So. 2d 562 (La. 1997) where the Louisiana Supreme Court declined to recognize a privacy exemption from the Act absent clear statutory grounding, more courts have been willing to apply the constitutional right of privacy to limit production of certain requests. See Angelo Iafrate Constr., L.L.C. v. State, 879 So. 2d 250 (La. App. 1st Cir. 2004) (finding employees' expectation of privacy in employee payroll information detailing hourly wages, hours worked, deductions and net paycheck amount outweighed public interest); Local 100, SEIU v. Smith, 830 So. 2d 417 (La. App. 2d. Cir.), writ dismissed, 836 So. 2d 75 (La. 2003) (disclosure of employees' organizational affiliations would violate employees' reasonable expectation of privacy). Nonetheless, the expectation of privacy must be objectively reasonable, and the privacy interest must be balanced against the public's right to know. See Hilbun v. State Division of Administration, 745 So. 2d 1189 (La. App. 1st Cir. 1999) (investigative report concerning one employee's activities is not exempt); Times-Picayune v. New Orleans Aviation Board, 742 So. 2d 979 (La. App. 5th Cir.), writ denied, 751 So. 2d 257 (La. 1999) (applications for determining Disadvantaged Business Enterprise are not exempt).
Additionally, the Louisiana Supreme Court created a novel exception to the Act by virtue of its "inherent authority," holding that bar examination model answers, any materials related to the grading guidelines or an applicants' bar examinations were also exempt from disclosure. Acknowledging that none of the exceptions enumerated under the law applied to such records and documents, the Court nevertheless reasoned that it could create an exception by virtue of the "inherent authority" vested in it by the legislature. Bester v. Louisiana Supreme Court Comm. on Bar Admissions, 779 So. 2d 715 (La. 2001); see also Louisiana Supreme Court Comm. on Bar Admissions v. Roberts, 779 So. 2d 726 (La. 2001) (restating rule set in Bester).
The custodian's power to enforce most exemptions is discretionary. Some exemptions, especially those found outside the statute itself, are not. See, e.g., La. Rev. Stat. Ann. § 44:3(B) (records pertaining to the identity of any confidential source of information of certain specific state agencies or officers are privileged and no officer or employee may disclose such records except with the written consent of the chief officer of the agency).
The Louisiana statutory exemptions are not patterned after the federal statute, although the Attorney General may refer to federal FOIA precedents in his opinions construing the Louisiana act.
The Maine Legislature has adopted exemptions to the FOAA on an ad hoc basis. Some of them are contained in the FOAA itself. See 1 M.R.S.A. § 402(3). Others are scattered through Maine’s statutes and address particular subjects or special interests. The exemptions vary in scope and purpose.
There are four categories of exemptions to disclosure under the PIA. The first exempts a public record or any part of a public record that is privileged or confidential under law or if inspection of the public record or any part of the public record would be contrary to a state or federal statute or contrary to a regulation issued pursuant to the statute, a rule adopted by the Maryland Court of Appeals, or an order issued by a court of record. § 4-301. Police Patrol Security Systems Inc. v. Prince George's County, 378 Md. 702, 714, 838 A.2d 1191, 1198 (2003). The second category provides for mandatory exemption of specific records or specific information contained in a public record. § 4-304 et seq. (specific records), § 4-328 et seq. (specific information). The third involves discretionary exemptions for certain parts of records based upon the public interest. § 4-343 et seq. University System of Maryland, et al. v. The Baltimore Sun Company, 381 Md. 79, 94, 847 A.2d 427, 436 (2004). The fourth authorizes a limited discretionary exemption for records otherwise subject to disclosure if temporary nondisclosure is in the public interest. § 4-358.
The exemptions provided in § 4-304 et seq. and § 4-328 et seq. do not control if disclosure of the record would be either contrary to or compelled by another statute. Conversely, even if the PIA permits access, disclosure may still be denied based on other law. § 4-304, § 4-328; See, e.g., PIA Manual, at 3-8 (and statutes cited therein).
The proscriptions against disclosure of records and information identified in §§ 4-304 et seq. and 4-328 et seq. are mandatory. The proscriptions contained in §§ 4-343 and 4-358 are discretionary. The Maryland Court of Appeals has addressed the interplay between the PIA's mandatory and discretionary provisions. Attorney Gen'l v. Gallagher, 359 Md. 341, 753 A.2d 1036 (2000). In Gallagher, the court rejected Gallagher's argument that his status as the party in interest allowed him to compel disclosure of records under § 4-343 that were otherwise subject to the mandatory nondisclosure provisions. 359 Md. at 355, 753 A.2d at 1044. Instead, the court held, if any exemption under the mandatory provisions is applicable to a particular record, then it must be withheld. Id. See also Comptroller of the Treasury v. Immanuel, 216 Md. App. 259, 273 (2014) (where another source of law allows for access, the exception set forth in the PIA will not control).
While the impetus for change from the traditional uncertainty of common law rules governing disclosure to the adoption of the PIA was the adoption of the federal Freedom of Information Act, the PIA is patterned after the state statutes of Wyoming and Colorado. See PIA Manual, at 1-2.
Theoretically specific, although most exemptions have some play in their joints; whether an exemption applies will frequently depend on the outcome of a balancing test or judgment call. For example, the privacy exemption (c) requires a weighing of the privacy and public interests; the investigatory exemption (f) applies only when disclosure would prejudice effective law enforcement; the Homeland Security exemption (n) depends on the custodian’s reasonable judgment of the likely jeopardy to public safety; etc. “Given the statutory presumption in favor of disclosure, exemptions must be strictly construed.” Attorney Gen’l v. Assistant Comm’r of Real Property Dep’t, 380 Mass. 623, 625, 404 N.E.2d 1254, 1256 (1980); Attorney Gen’l v. Assessors of Woburn, -- Mass. --, 378 N.E.2d 45 (1978).
A 2009 publication from the Secretary of the Commonwealth describes all exemptions generally as being “discretionary to the records custodian” (Guide to Mass. Pub. Records Law (Sec’y of Comm., revised March 2009), “Frequently Asked Questions” at p. 1), and the Supreme Judicial Court has assumed the same. See Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 442 n. 24 (1983). Certainly that would seem correct with respect to documents that are exempted under the public records law but not subject to a separate confidentiality statute. See, e.g., Westinghouse Broad. Co. v. Sergeant-at-Arms of General Court, 375 Mass. 179, 185 n.9, 375 N.E.2d 1205 (1978). Town Crier Inc. v. Chief of Police of Weston, 361 Mass. 682, 691-692, 282 N.E.2d 379 (1972). Where there is a separate confidentiality statute, that statute’s mandate of non-disclosure will likely control. See, e.g., "personal data" on government employees and others maintained by government agencies (G.L. c. 66A); reports of rape or sexual assault (G.L. c. 41, § 97D); hospital records on individual patients (G.L. c. 111, § 70).
There has been some suggestion that, at least with respect to the personnel exemption, the statute should be viewed as prohibiting disclosure altogether, even in the absence of other statutory authority. See Wakefield Teachers Ass'n, 431 Mass. at 802-03 (declaring that personnel files are “absolutely exempt from disclosure,” whereas the Boston Retirement Board case used the formulation, “absolutely exempt from mandatory disclosure”). So far, however, that argument has gained no traction. See, e.g., Geier v. Town of Barre, No. 070171C, 2009 WL 323370 (Mass. Super. Jan. 9, 2009) (declining to read Wakefield Teachers Ass'n. as implicitly recognizing a private right of action for municipal employee to recover damages for a town’s discretionary disclosure of her personnel files). See also Pottle v. School Comm. of Braintree, 395 Mass. 861, 862 n. 3; (1985); General Chem. v. Dept. of Envt'l. Quality, 19 Mass.App.Ct. 287, 291 n. 3 (1985).
The Massachusetts Public Records Law is patterned after the federal Freedom of Information Act "in a general way." Globe Newspaper Co. v. Boston Retirement Board, 388 Mass. 427, 433 n.11, 446 N.E.2d 1051, 1055, n.11. (holding that, due to differences in the punctuation of the Massachusetts and federal statutes, municipal employee medical files, unlike their federal analogs, are absolutely exempt from disclosure). See also Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 156, 385 N.E.2d 505, 508 (1979) (holding that balancing process required under the state privacy exemption (exemption (c)) parallels the privacy exemption under FOIA); see also Attorney Gen. v. Assistant Comm’r of Real Property Dep’t, 380 Mass. 623, 625-26 n.2, 404 N.E. 2d 1254, 1256 n.2 (1980).
One important difference is the omission of the federal exemption for litigation strategy and privileged materials contained in the Massachusetts law; another is the narrower exemption under Massachusetts law for personnel rules and policies. The differences between the state statute and the previously enacted federal statutes permit an inference that the Massachusetts law rejects, narrows, or expands the legal principles embodied in FOIA. Globe Newspaper Co. v. Boston Retirement Board, 388 Mass. 427, 432-33 (1983).
A public body may meet in closed session only for the purposes listed in Mich. Comp. Laws Ann. § 15.268. The closed session exemptions are to be construed strictly to limit the types of situations that are not open to the public. Wexford County Prosecuting Attorney v. Pranger, 83 Mich. App. 197, 268 N.W.2d 344 (1978); see also Booth Newspapers Inc. v. University of Michigan Board of Regents, 168 Mich. App. 459, 425 N.W.2d 695 (1988).
The Act states that all data are accessible "unless classified by statute, or temporary classification pursuant to Minn. Stat. § 13.06, or federal law, as nonpublic or protected nonpublic, or with respect to data on individuals, as private or confidential." Minn. Stat. § 13.03, subd. 1.
Thus, there are no general exemptions from the Act. However, there are categories of data rendered non-public by specific provisions of the Act itself.
Exemptions are specific, except for a catchall exemption for records specifically declared to be confidential or privileged by any constitutional or statutory law or a decision of a state or federal court. § 25-61-11. This would include information which federal law classifies as “Sensitive But Unclassified” given to the state health department. Att’y Gen. No. 2008-358, Aug. 8, 2008 to Thompson.
Most exemptions are discretionary. They do not require that the records be kept confidential. They are not grounds for resisting a court subpoena. United States v. Dale, 155 F.R.D. 149, 152 (S.D. Miss. 1994). The immunity provisions of the Tort Claims Act prevent liability claims from being asserted against officials who choose to release exempt material. Att’y General No. 2000-74, March 10, 2000 to Hinter. However, certain statutory exclusions found outside the Public Records Act require confidentiality.
Unlike the federal Freedom of Information Act, the Mississippi Act contains no exemption for records concerning pre-decisional and deliberative matters. Att'y Gen. Oct. 16, 1989 to McKinley.
The Public Records Act exempts information (1) constitutionally protected from disclosure because it contains private information which clearly exceeds the merits of disclosure, (2) related to judicial deliberations in adversarial proceedings, (3) necessary to maintain the integrity of secure facilities, or (4) designated as confidential through statutes or judicial decisions. Mont. Code Ann. § 2-6-1002(1). The constitutional privacy exception is general in nature and subject to the discretion of the entity, but subject to review by the courts.
The public records statutes presume that government records are public, "except where any other statute expressly provides that particular information or records shall not be made public." Neb. Rev. Stat. §84-712.01(1) (emphasis added). The attorney general has opined that the list of records that may be withheld from public inspection under Neb. Rev. Stat. §84-712.05 are not "exemptions" to the public record statutes; i.e., the categories of records set out in that section (and discussed below) are still public records, but they may be kept confidential at the discretion of their custodian. Op. Att'y. Gen. No. 94080 (Oct. 14, 1994). Additionally, various other statutes dealing with particular records exist. There is no general "public interest" exception for withholding records.
The exceptions contained in the public records statutes are discretionary. Records falling within those exceptions "may be withheld from the public by the lawful custodian of the records." Neb. Rev. Stat. §84-712.05. Records that might otherwise be withheld must be made available for inspection if they have been "publicly disclosed in an open court, open administrative proceeding, or open meeting, or disclosed by a public entity pursuant to its duties." Id. Record withholding pursuant to specific statutes other than the public records statutes may be either discretionary or mandatory.
The exceptions are not directly patterned after the Federal Freedom of Information Act.
NRS 239.001(3) declares that “[a]ny exemption, exception or balancing of interests which limits or restricts access to public books and records by members of the public must be construed narrowly.” NRS 239.010 sets forth a lengthy list of specific statutes that contain exemptions to the NPRA as well as a general provision that records “declared by law to be confidential” fall outside of the NPRA.
The exemptions to governmental records are set forth in RSA 91-A:5, and established by case law. See, e.g., Lamy v. N.H. Public Utilities Commission, 152 N.H. 106 (2005) (court uses a three-step analysis to determine whether disclosure of public record constitutes an invasion of privacy); Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540 (1997) (court will balance asserted private, confidential, commercial or financial interest against public's interest in disclosure); Union Leader Corp. v. City of Nashua, 141 N.H. 473 (1996) (records concerning private citizens must reveal what the government is up to to serve the public's interest in disclosure; adopting Reporters Committee test); Lodge v. Knowlton, 118 N.H. 574 (1978) (court looked to exemptions contained in FOIA section 552(b)(7) to determine whether police records were exempt from disclosure); Murray v. New Hampshire Div. of State Police, 154 N.H. 579 (2006)(reaffirming Lodge v. Knowlton and the six-prong test under FOIA for evaluating access to police investigative files).
Courts also look to records that contain information with respect to which public bodies may meet in nonpublic session, as authorized by RSA 91-A:3,II (a)-(j), to be exempt from disclosure, e.g., records of the “hiring of any person as a public employee,” or “relating to the preparation for and the carrying out of emergency functions, including training to carry out such functions, developed by local or state safety officials that are directly intended to thwart a deliberate act that is intended to result in widespread or severe damage to property or widespread injury or loss of life.”
The exemptions under RSA 91-A:5 can be general – e.g., “confidential, commercial, or financial information” – or specific – e.g., “personnel, medical, welfare, library user, videotape sale or rental, and other files whose disclosure would constitute invasion of privacy.”
The determination of whether the exemption applies or not is based on FOIA case law, although the Supreme Court has looked to FOIA cases in applying an exemption under section 5. E. g., Reid v. New Hampshire Attorney Gen., 169 N.H. 509 (2016). The Court has looked at the Reporters Committee Case, decided under FOIA, to rule that absent a specific provision requiring disclosure, records subject to the Statute must show “what its government is up to. Professional Firefighters of New Hampshire v. Local Government Center, Inc., 159 N.H. 699, 705 (2010). It has also looked to FOIA in deciding cases seeking access to law enforcement files. Murray v. New Hampshire Div. of State Police, 154 N.H. 579 (2006); Lodge v. Knowlton118 N.H. 574 (1978).
OPRA declares that all government records be subject to public access unless exempt from such access by: (i) OPRA, (ii) any other statute, (iii) resolution of either or both houses of the Legislature, (iv) regulation promulgated under the authority of any statute or Executive Order of the Governor; (v) Executive Order of the Governor; (vi) Rules of Court; (vii) any federal law; (viii) federal regulation; or (ix) court order. (See N.J.S.A. 47:1A-1).
OPRA provides, in N.J.S.A. 47:1A-1.1:
A government record shall not include the following information which is deemed to be confidential for the purposes of P.L. 1963, c. 73 (C. 47:1A-1 et seq.) as amended and supplemented:
information received by a member of the Legislature from a constituent or information held by a member of the Legislature concerning a constituent, including but not limited to information in written form or contained in any e-mail or computer data base, or in any telephone record whatsoever, unless it is information the constituent is required by law to transmit;
any memorandum, correspondence, notes, report or other communication prepared by, or for, the specific use of a member of the Legislature in the course of the member's official duties, except that this provision shall not apply to an otherwise publicly-accessible report which is required by law to be submitted to the Legislature or its members;
any copy, reproduction or facsimile of any photograph, negative or print, including instant photographs and videotapes of the body, or any portion of the body, of a deceased person, taken by or for the medical examiner at the scene of death or in the course of a post mortem examination or autopsy made by or caused to be made by the medical examiner except:
when used in a criminal action or proceeding in this State which relates to the death of that person,
for the use as a court of this State permits, by order after good cause has been shown and after written notification of the request for the court order has been served at least five days before the order is made upon the county prosecutor for the county in which the post mortem examination or autopsy occurred,
for use in the field of forensic pathology or for use in medical or scientific education or research, or
for use by any law enforcement agency in this State or any other state or federal law enforcement agency;
criminal investigatory records;
victims' records, except that a victim of a crime shall have access to the victim's own records;
any written request by a crime victim for a record to which the victim is entitled to access as provided in this section, including, but not limited to, any law enforcement agency report, domestic violence offense report, and temporary or permanent restraining order;
personal firearms records, except for use by any person authorized by law to have access to these records or for use by any government agency, including any court or law enforcement agency, for purposes of the administration of justice;
personal identifying information received by the Division of Fish and Wildlife in the Department of Environmental Protection in connection with the issuance of any license authorizing hunting with a firearm. For the purposes of this paragraph, personal identifying information shall include, but not be limited to, identity, name, address, social security number, telephone number, fax number, driver’s license number, email address, or social media address of any applicant or licensee;
trade secrets and proprietary commercial or financial information obtained from any source. For the purposes of this paragraph, trade secrets shall include data processing software obtained by a public body under a licensing agreement which prohibits its disclosure;
any record within the attorney-client privilege. This paragraph shall not be construed as exempting from access attorney or consultant bills or invoices except that such bills or invoices may be redacted to remove any information protected by the attorney-client privilege;
administrative or technical information regarding computer hardware, software and networks which, if disclosed, would jeopardize computer security;
emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein;
security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software;
information which, if disclosed, would give an advantage to competitors or bidders;
information generated by or on behalf of public employers or public employees in connection with any sexual harassment complaint filed with a public employer or with any grievance filed by or against an individual or in connection with collective negotiations, including documents and statements of strategy or negotiating position;
information which is a communication between a public agency and its insurance carrier, administrative service organization or risk management office;
information which is to be kept confidential pursuant to court order;
any copy of form DD-214, or that form, issued by the United States Government, or any other certificate of honorable discharge, or copy thereof, from active service or the reserves of a branch of the Armed Forces of the United States, or from service in the organized militia of the State, that has been filed by an individual with a public agency, except that a veteran or the veteran’s spouse or surviving spouse shall have access to the veteran’s own records;
any copy of an oath of allegiance, oath of office or any affirmation taken upon assuming the duties of any public office, or that oath or affirmation, taken by a current or former officer or employee in any public office or position in this State or in any county or municipality of this State, including members of the Legislative Branch, Executive Branch, Judicial Branch, and all law enforcement entities, except that the full name, title, and oath date of that person contained therein shall not be deemed confidential;
that portion of any document which discloses the social security number, credit card number, unlisted telephone number or driver license number of any person; except for use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf thereof, or any private person or entity seeking to enforce payment of court-ordered child support; except with respect to the disclosure of driver information by the New Jersey Motor Vehicle Commission as permitted by section 2 of P.L. 1997, c. 188 (C. 39:2-3.4); and except that a social security number contained in a record required by law to be made, maintained or kept on file by a public agency shall be disclosed when access to the document or disclosure of that information is not otherwise prohibited by State or federal law, regulation or order or by State statute, resolution of either or both houses of the Legislature, Executive Order of the Governor, rule of court or regulation promulgated under the authority of any statute or executive order of the Governor.
A list of persons identifying themselves as being in need of special assistance in the event of an emergency maintained by a municipality for public safety purposes pursuant to section 1 of P.L.2017, c. 266 (C.40:48-2.67); and
A list of persons identifying themselves as being in need of special assistance in the event of an emergency maintained by a county for public safety purposes pursuant to section 6 of P.L.2011, c. 178 (C.App.A:9-43.13).
A government record shall not include, with regard to any public institution of higher education, the following information which is deemed to be privileged and confidential:
pedagogical, scholarly and/or academic research records and/or the specific details of any research project conducted under the auspices of a public higher education institution in New Jersey, including, but not limited to research, development information, testing procedures, or information regarding test participants, related to the development or testing of any pharmaceutical or pharmaceutical delivery system, except that a custodian may not deny inspection of a government record or part thereof that gives the name, title, expenditures, source and amounts of funding and date when the final project summary of any research will be available;
test questions, scoring keys and other examination data pertaining to the administration of an examination for employment or academic examination;
records of pursuit of charitable contributions or records containing the identity of a donor of a gift if the donor requires non-disclosure of the donor's identity as a condition of making the gift provided that the donor has not received any benefits of or from the institution of higher education in connection with such gift other than a request for memorialization or dedication;
valuable or rare collections of books and/or documents obtained by gift, grant, bequest or devise conditioned upon limited public access;
information contained on individual admission applications; and
information concerning student records or grievance or disciplinary proceedings against a student to the extent disclosure would reveal the identity of the student.
- Biotechnology trade secrets and related confidential information as restricted by federal law. (See N.J.S.A. 47:lA-1.2.)
- Personal information regarding the victim of a crime or the victim's family when the information is being sought by the convict who wronged the victim or by anonymous request. (See N.J.S.A. 47:1A-2.2)
- Files maintained by the Office of the Public Defender that relate to the handling of any case. (See N.J.S.A. 47:lA-5.k.)
- Records exempt from disclosure under any other statute; resolution of either or both Houses of the Legislature; regulation promulgated under authority of any statute or Executive Order; Executive Order; Rules of Court or; federal law, federal regulation or federal order. (See N.J.S.A. 47:lA-9.a.).
- Records heretofore exempt from disclosure pursuant to any executive or legislative privilege or grant of confidentiality established or recognized by State Constitution of this State, statute, court rule or case law. (See N.J.S.A. 47:lA-9.b.)
- Personnel and pension records of state and local employees except for the employee's name, title, position, salary, payroll record, length of service, date of termination, reason for termination, amount and type of pension received, and other employee background information which discloses specific experiential, educational or medical qualifications for government employment or for receipt of a public pension, but excluding detailed medical or psychological information (Byrne Executive Order No. 11 (1974));
- Executive Orders:
(a) Executive Order No. 9 issued by Governor Richard J. Hughes
(b) Executive Order No. 48 issued by Governor Richard J. Hughes
(c) Executive Order No. 11 issued by Governor Brendan Byrne
(d) Executive Order No. 69 issued by Governor Christine Todd Whitman
(e) Executive Order No. 18 issued by Governor James McGreevey
(f) Executive Order No. 21 issued by Governor James McGreevey
(g) Executive Order No. 26 issued by Governor James McGreevey
(h) Executive Order No. 47 issued by Governor Chris Christie (note that Executive Order 47 provides in part “[a]ny provision of Executive Order No. 21 (2002) and Executive Order No. 26 (2002) that applies to any exemption initially proposed by an agency in the July 1, 2002 a New Jersey Register, is hereby rescinded.)
- Regulatory Exemptions
There is discretionary language in N.J.S.A. 47:1A-3. Specifically, where records sought pertain to an investigation in progress, access may be denied if disclosure would "be inimical to the public interest." (See N.J.S.A. 47:1A-3).
That section also provides that “[n]otwithstanding any other provision of this subsection, where it shall appear that the information requested or to be examined will jeopardize the safety of any person or jeopardize any investigation in progress or may be otherwise inappropriate to release, such information may be withheld.” (See N.J.S.A. 47:1A-3)
If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency. N.J.S.A. 47:1A-5(g).
The specific exemptions of the Inspection of Public Records Act are enumerated in NMSA 1978 § 14-2-1(A)-(H)) (2011) : "(A) records pertaining to physical or mental examinations and medical treatment of persons confined to an institution; (B) letters of reference concerning employment, licensing or permits; (C) letters or memoranda that are matters of opinion in personnel files or students’ cumulative files; (D) law enforcement records that reveal confidential sources, methods, information or individuals accused but not charged with a crime. Law enforcement records include evidence in any form received or compiled in connection with any criminal investigation or prosecution by a law enforcement or prosecuting agency, including inactive matters or closed investigations to the extent that they contain the information listed [above]; (E) as provided by the Confidential Materials Act (NMSA 1978 § 14-3A-1 (1981); (F) trade secrets, attorney-client privileged information and long-range or strategic business plans of public hospitals discussed in a properly closed meeting; (G) tactical response plans or procedures prepared for or by the state or a political subdivision of the state, the publication of which could reveal specific vulnerabilities, risk assessments or tactical emergency security procedures that could be used to facilitate the planning or execution of a terrorist attack; (H) protected personal identifier information; and (I) as otherwise provided by law.”
These exemptions are discretionary, except NMSA 1978 § 14-2-1(D)) (2019) and possibly § 14-2-1(C). See related Arrest Records Act provisions, NMSA 1978 § 29-10-8 (1999).
The exemptions are patterned after the Freedom of Information Act, but the procedures and definitions are more favorable to disclosure and exceptions are more limited.
The statutory exemptions are specific in nature. N.Y. Pub. Off. Law § 87(2) (McKinney 1988). “FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government,” Capital Newspapers Division of Hearst Corp. v. Whalen, 69 N.Y.2d 246, 252, 505 N.E.2d 932, 513 N.Y.S.2d 367 (1987) (“[t]he agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access”); Russo v. Nassau Cmty. College, 81 N.Y.2d 690, 623 N.Y.S.2d 15, 603 N.E.2d 294 (1993); Capital Newspapers Division of Hearst Corp. v. Burns, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986); M. Farbman & Sons v. New York City, 62 N.Y.2d 75, 464 N.E.2d 437, 476 N.Y.S.2d 69 (1984); Fink v. Lefkowitz, 47 N.Y.2d 567, 393 N.E.2d 463, 419 N.Y.S.2d 467 (1979); Muniz v. Roth, 163 Misc.2d 293, 620 N.Y.S.2d 700 (Sup. Ct. 1994) (holding that merely asserting the exemption without particularity is insufficient); In Re W. Harlem Bus., 13 N.Y.3d 882, 921 N.E.2d 592, 893 N.Y.S.2d 825 (2010) (Empire State Business Corporation failed to meet its burden of sufficiently identifying a particular exemption when it submitted documents for in camera review because it failed to specify which documents fell under the inter/intra-agency exemption); In Re Carnevale, 68 A.D.3d 1290, 891 N.Y.S.2d 495 (3d Dep’t 2009) (holding that respondents categorical assumption that all law enforcement investigations will be harmed if witnesses names are available through a FOIL request failed to establish that witnesses statements to police fell under any particular exemption).
The FOIL exemptions must be read as having engrafted, as a matter of public policy, certain limitations on the disclosure of otherwise accessible records. Xerox v. Town of Webster, 65 N.Y.2d 131, 480 N.E.2d 74, 490 N.Y.S.2d 488 (1985) (denying access to intra-agency records under FOIL exemption notwithstanding general principles for access to public records under § 51 of General Municipal Law).
Once it is determined that the requested material falls within a FOIL exemption, no further policy analysis is required. Hanig v. Department of Motor Vehicles, 79 N.Y.2d 106, 588 N.E.2d 750, 580 N.Y.S.2d 715 (1992); Bellamy v. New York City Police Dep’t., 59 A.D.3d 353, 874 N.Y.S.2d 60 (1st Dep’t 2009) (holding that while age of requested record is a factor in determining an exemption, age alone is not a sufficient basis to find an exemption inapplicable).
Waiver or loss of exemption. Public disclosure of records may waive the cloak of confidentiality. McGraw-Edison Company v. Williams, 133 Misc.2d 1053, 509 N.Y.S.2d 285 (Sup. Ct. 1986) (inadvertent disclosure does not waive an exemption); See e.g. Matter of Madera v. Elmont Public Library, 101 A.D.3d 726, 101 A.D.3d 726 (2d Dep’t 2012) (holding that “by voluntarily and deliberately disclosing the report to [the subject of the report], the [public agency] affirmatively waived its right to claim the intra-agency exemption”); Moore v. Santucci, 151 A.D.2d 676, 543 N.Y.S.2d 103, (2d Dep’t 1989) (investigative statements lose cloak of confidentiality once the statements have been used in open court); Gerbe v. Franklin Hospital Medical Center, N.Y.L.J., Sept. 6, 1991 (Sup. Ct., Nassau Cty., 1991) (granting access to investigation file where no promise of confidentiality and agency allowed counsel access to file). Improper or inadvertent disclosure may not waive confidentiality, Mitzner v. Sobol, 173 A.D.2d 1064, 570 N.Y.S.2d 402 (3d Dep’t 1991) (unauthorized disclosure of a record does not operate as a waiver of the FOIL exemptions); New York 1 News v. President of the Borough of Staten Island, 631 N.Y.S.2d 479 (Supreme Court Kings Cty. 1995) (FOIL exemption may be waived by voluntary disclosure of a significant part of the privileged communications or, alternatively, if a release creates even an unintended impression of the existence of underlying material); McGraw-Edison Company v. Williams, 133 Misc.2d 1053, 509 N.Y.S.2d 285 (Sup. Ct. 1986) (inadvertent disclosure does not waive an exemption); Miller v. New York State Dep’t of Transp., 58 A.D.3d 981, 871 N.Y.S.2d 489 (3d Dep’t 2009) (same).
Identifying the exemption. A governmental body seeking an exemption from the disclosure requirements of FOIL has the burden of proving that a record falls “squarely within the ambit of one of [the] statutory exemptions.” Russo v. Nassau Cmty. Coll., 81 N.Y.2d 690, 623 N.Y.S.2d 15, 603 N.E.2d 294 (1993) (quoting Fink v. Lefkowitz, 47 N.Y.2d 567, 571). N.Y. Pub. Off. Law. § 89(4)(b) (McKinney 1988). See also Matter of Gannett Satellite Info. Network v. Cty. of Putnam, 142 A.D.3d 1012, 37 N.Y.S.3d 299 (2d Dep’t 2016) (affirming judgement granting petition and directing disclosure because the records did not fall squarely within any FOIL exemption); Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986); Washington Post v. Insurance Dep’t, 61 N.Y.2d 557, 463 N.E.2d 604, 475 N.Y.S.2d 263 (1984); Doolan v. BOCES, 48 N.Y.2d 341, 398 N.E.2d 533, 422 N.Y.S.2d 927 (1979). See also Grune v. Alexanderson, 168 A.D.2d 496, 562 N.Y.S.2d 739, (2d Dep’t 1990) (agency failed to identify with specificity those portions of records claimed to be exempt); Burton v. Slade, 166 A.D.2d 352, 561 N.Y.S.2d 637 (1st Dep’t 1990) (abuse of discretion for agency to deny access without reviewing documents and stating with particularity reasons for denial).
Conclusory allegations are insufficient to meet the agency’s burden of proof. Matter of Dilworth v. Westchester Cty. Dep’t of Correction, 93 A.D.3d 722, 724, 940 N.Y.S.2d 146, 149 (2d Dep’t 2012) (“Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed.”); Capital Newspapers Division of Hearst Corp. v. Burns, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986); Dobranski v. Houper, 154 A.D.2d 736, 546 N.Y.S.2d 180 (3d Dep’t 1989); Mooney v. State Police, 117 A.D.2d 445, 502 N.Y.S.2d 828 (3d Dep’t 1986); Hopkins v. City of Buffalo, 107 A.D.2d 1028, 486 N.Y.S.2d 514 (4th Dep’t 1985).
The FOIL exemptions are discretionary in their application by the agency. N.Y. Pub. Off. Law § 87(2) (McKinney 1988) (“such agency may deny access . . .”). “[T]he language of the exemption provision contains permissive rather than mandatory language, and it is within the agency’s discretion to disclose such records . . . if it so chooses.” Capital Newspapers Division of Hearst Corp. v. Burns, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986); Accord, Buffalo Teachers Federation Inc. v. Buffalo Board of Ed., 156 A.D.2d 1027, 549 N.Y.S.2d 541 (4th Dep’t 1989).
The New York Legislature modeled FOIL onthe federal Freedom of Information Act (FOIA”), 5 U.S.C. 552, et seq., and accordingly, federal case law and legislative history on the scope of the federal act are instructive in interpreting New York’s law, including its exemptions. Fink v. Lefkowitz, 47 N.Y.2d 567, 393 N.E.2d 463, 419 N.Y.S.2d 467 (1979); see also Matter of Lesher v. Hynes, 19 N.Y.3d 57, 67 (2012) (“the law enforcement exemption is modeled on 5 USC § 552(b)(7)”); Seeling v. Sielaff, 201 A.D.2d 298, 607 N.Y.S.2d 300 (1st Dep’t 1994) (following federal case law that the release of Social Security numbers constitutes an unwarranted invasion of privacy); Hawkins v. Kurlander, 98 A.D.2d 14, 469 N.Y.S.2d 820 (4th Dep’t 1983); McAulay v. Board of Education, 61 A.D.2d 1048, 403 N.Y.S.2d 116 (2d Dep’t 1978), aff’d, 48 N.Y.2d 659, 396 N.E.2d 1033, 421 N.Y.S.2d 560 (1979); Matter of N.Y. Times Co. v. N.Y. State Exec. Chamber, 2017 NY Slip Op 27241, ¶ 3, 57 Misc. 3d 405, 411, 56 N.Y.S.3d 821, 826 (Sup. Ct. Albany Cty., 2017) (following federal case law for the definition of “compiled” with respect to the law enforcement exemption to FOIL); Dep’tNew York 1 News v. President of the Borough of Staten Island, 166 Misc.2d 270, 631 N.Y.S.2d 479 (Sup. Ct. Kings Cty. 1995); Whitehead v. Morgenthau, 146 Misc.2d 733, 552 N.Y.S.2d 518 (Sup. Ct. 1990). Quirk v. Evans, 116 Misc.2d 554, 5 N.Y.S.2d 918 (Sup. Ct. 1982), aff’d, 97 A.D.2d 992, 469 N.Y.S.2d 834 (lst Dep’t 1983).
- Exemption based on trade secrets or records maintained for regulation of a commercial enterprise.
The FOIL permits an agency to deny access to records that “are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise.” N.Y. Pub. Off. Law § 87(2)(d).
Relying on the New York Court of Appeal’s long history of recognizing “[t]he importance of trade secret protection and the resultant public benefit,” Matter of New York Tel. Co. v. Public Serv. Commn., 56 NY2d 213, 219 (1982), the Third Department recently confirmed that the language of § 87(2)(d) “create[s] two separate FOIL exemptions in the same statutory provision, one that exempts all records proven to be bona fide trade secrets, and another that requires a showing of substantial competitive injury. . . .” Matter of Verizon N.Y., Inc. v. N.Y. State Pub. Serv. Comm., 23 N.Y.S.3d 446, 449 (3d Dep’t 2016). In other words, § 87(2)(d) requires “a showing of substantial competitive injury only when a party seeks a FOIL exemption for non-trade secret commercial records.” Id.
Each state agency which maintains records containing trade secrets is directed by statute to promulgate regulations pertaining to such records, including, but not limited to the following: (1) the manner of identifying the records or parts; (2) the manner of identifying persons within the agency to whose custody the records or parts will be charged and for whose inspection and study the records will be made available; and (3) the manner of safeguarding against any unauthorized access to the records. N.Y. Pub. Off. Law § 87(4)(a). The term “agency” or “state agency” for the purposes of this statutory directive means only a state department, board, bureau, division, council or office and any public corporation the majority of whose members are appointed by the governor. N.Y. Pub. Off. Law § 87(4)(b).
When records are required to be submitted to state agencies pursuant to law by a commercial entity, the entity may request that the records or portions thereof be kept confidential on the ground that the records constitute trade secrets. N.Y. Pub. Off. Law § 89(5). If a request is made for records characterized as trade secrets, or if the agency chooses to reject a claim of trade secrets, the entity submitting the records must be informed and be given the opportunity to justify its claim of trade secret status. N.Y. Pub. Off. Law § 89(5). See Irving Bank Corporation v. Considine, 138 Misc.2d 849, 525 N.Y.S.2d 770 (Sup. Ct. 1988) (Public Officers Law § 89(5) sets forth a very detailed schedule within which applications for confidential treatment of commercial trade information and secrets and appeals therefrom must be made, and failure to follow this schedule can result in failure to exhaust administrative remedies).
For trade secret cases, see Matter of Verizon N.Y., Inc. v. N.Y. State Pub. Serv. Comm., 23 N.Y.S.3d 446, 449 (3d Dep’t 2016); Verizon New York, Inc. v. Mills, 60 A.D.3d 958, 875 N.Y.S.2d 572 (2d Dep’t 2009) (holding that franchise agreement between Village and cable company was exempt because disclosure would cause substantial injury to the competitive position of the subject enterprise); Verizon New York, Inc. v. Devita, 60 A.D.3d 956, 879 N.Y.S.2d 140 (2d Dep’t 2009) (franchise agreement between municipality and cable company exempt from disclosure, but municipality retains discretion to disclose franchise reports even if reports fall under exemption); Hearst Corp. v. State, Office of State Comptroller, 24 Misc.3d 611, 882 N.Y.S.2d 862 (N.Y. Sup. Albany Cty. 2009) (trade secret exception does not apply to state payroll tables that did not use social security numbers of state employees); Markowitz v. Serio, 11 N.Y.3d 43, 893 N.E.2d 110, 862 N.Y.S.2d 833 (2008) (request for records revealing “the number of voluntary [automobile] policies issued, renewed, cancelled … or nonrenewed” for “each Kings County zip code, including, by carrier,” was not exempt as a trade secret, as the interested insurance companies were not able to demonstrate that the records’ disclosure would put them at a competitive disadvantage); City of Schenectady v. O’Keeffe, 50 A.D.3d 1384, 856 N.Y.S.2d 281 (3d Dep’t 2008) (records pertaining to public utility’s franchise and right-of-way agreement with a state agency, and which contained cost and inventory data identifying and tracking all of the utility’s property assets that are employed along the right-of-way and used to transmit and distribute electricity, were exempt from disclosure as a trade secret, the release of which would cause substantial competitive injury); N.Y. Racing Ass’n, Inc. v. State, Racing and Wagering Bd., 21 Misc.3d 379, 863 N.Y.S.2d 540 (N.Y. Sup. Ct. 2008) (holding that release of documents concerning confidential bidding correspondence in connection with a state contract between private corporation and state agency was exempt from disclosure under FOIL, as the request documents were “proprietary trade information”); Verizon New York, Inc. v. Bradbury, 40 A.D.3d 1113, 837 N.Y.S.2d 291 (2d Dep’t 2007) (holding that draft of cable franchise agreement with municipality was not exempt from disclosure as a trade secret because Verizon failed to establish a specific harm that disclosure would cause); Professional Standards Review of America v. New York State Department of Health, 193 A.D.2d 937 (3d Dep’t 1993) (granting access to contract bid submitted by private organization and to factual and statistical data used by agency in making its final determination to award the contract); Niagara Mohawk Power Corporation v. New York State Department of Environmental Conservation, 169 A.D.2d 943, 564 N.Y.S.2d 839 (3d Dep’t 1991) (question of whether report of data was a “trade secret” was rendered “moot”); P.J. Garvey Carting and Storage Inc. v. Cty. of Erie, 125 A.D.2d 972, 510 N.Y.S.2d 365 (4th Dep’t 1986) (unsuccessful bidder unable to get damages for release of its “route list” by county; route list neither a trade secret nor “record” under FOIL); Waste-Stream Inc. v. Solid Waste Disposal Authority, 166 Misc.2d 6, 630 N.Y.S.2d 1020 (Sup. Ct. St. Lawrence Cty. 1995) (while an agency may hold “trade secrets” exempt from disclosure, information sought to be withheld on the basis of substantial injury to the competitive position does not apply to the agency itself); Ragusa v. New York State Dep’t of Law, 152 Misc.2d 602, 578 N.Y.S.2d 959 (Sup. Ct. 1991) (records from Attorney General’s investigation of company’s pricing policy are not trade secrets); American Society for the Prevention of Cruelty to Animals v. Board of Trustees, 147 Misc.2d 846, 556 N.Y.S.2d 447 (Sup. Ct. 1990) (information relating to procedures to be performed on animals did not explore researcher’s underlying method, hypothesis, analysis, or results, and were not exempt from disclosure as trade secrets under 7 U.S.C. § 2157 which exempts release of trade secrets); Oswego Motor Lines v. Frank, No. 85-5409 (Sup. Ct., Onondaga Cty., Oct. 15, 1985) (denying access to list of charter customers or clients); N.Y. PIRG Inc. v. City of New York, N.Y.L.J., Sept. 27, 1982 (Sup. Ct., New York Cty., 1982) (rejecting agency’s assertion that disclosure of real property gains tax returns would reveal trade secrets); Belth v. Insurance Dep’t, 95 Misc.2d 18, 406 N.Y.S.2d 649 (Sup. Ct. 1977) (denying access to computer programs, statistical assumptions and mathematical models of insurance company).
- Exemption for records compiled for law enforcement purposes.
An agency may deny access to records or portions thereof that are compiled for law enforcement purposes and which, if disclosed, would: (i) interfere with law enforcement investigations or judicial proceedings; (ii) deprive a person of the right to a fair trial or impartial adjudication; (iii) identify a confidential source or disclose confidential information about a criminal investigation; or (iv) reveal criminal investigative techniques or procedures, except routine techniques and procedures. N.Y. Pub. Off. Law § 87(2)(e).
“[T]he purpose of the Freedom of Information Law is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution. . . . Records . . . which merely clarify procedural or substantive law must be disclosed.” Fink v. Lefkowitz, 47 N.Y.2d 567, 393 N.E.2d 463, 419 N.Y.S.2d 467 (1979) (denying access to portions of an office manual of the Special Prosecutor for Nursing Homes on basis that disclosure would reveal non-routine investigatory techniques).
In interpreting the exemption, the courts have held that the law enforcement exemption potentially applies even where the investigation has terminated, is inactive and no judicial proceeding exists. Hawkins v. Kurlander, 98 A.D.2d 14, 469 N.Y.S.2d 820 (4th Dep’t 1983), appeal withdrawn, 62 N.Y.2d 804 (1984) (denying access to transcripts of confidential interviews of witnesses in investigation by district attorney).
It has also been held that there is no requirement that the records be compiled by a law enforcement agency. Rather, the only requirement is that such records be compiled for law enforcement purposes and be held by a public agency. City of New York v. Bustop Shelters Inc., 104 Misc.2d 702, 428 N.Y.S.2d 784 (Sup. Ct. 1980). See also Frick v. Hennessy, No. 1405/79 (Sup. Ct., Sullivan Cty., July 25, 1979) (denying access to investigative file relating to oil spill). Likewise, there is no requirement that compilation of the records be effected at a specific time. See Matter of N.Y. Times Co. v. City of N.Y. Fire Dep’t, 195 Misc. 2d 119, 123,754 N.Y.S.2d 517, 521 (N.Y. Sup. Ct. N.Y. Cnty. 2003) (“The important point in time as to ‘compiling’ of documents is not when they are created or initially received, but when they would be gathered for disclosure under FOIL. That is the time when their disclosure would have an effect on law enforcement investigations, judicial proceedings, or a person who is to be or is being tried.”) (citing John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989)); see John Doe Agency v. John Doe Corp., 493 U.S. 146, 153 (1989) (holding under FOIA Exemption 7 there is “no requirement that compilation be effected at a specific time”); Matter of N.Y. Time Co. v. New York Exec. Chamber, 57 Misc. 3d 405, 56 N.Y.S.3d 821 (N.Y. Sup. Ct. N.Y. Cty. 2017) (same). Rather, the records “sought merely must have been ‘compiled’ when the Government invokes the Exemption.” John Doe Agency, 493 U.S. at 153.
For law enforcement cases, see Matter of Madeiros v. Department, 30 N.Y.3d 67, 2017 N.Y. LEXIS 3073 (2017) (holding that agency properly denied FOIL request for audit guidelines and related documents related to special education preschool programs because they were compiled with law enforcement investigative purposes in mind); Matter of Friedman v. Rice, 134 A.D.3d 826, 20 N.Y.S.3d 600, 2015 N.Y. App. Div. LEXIS 9126 (N.Y. App. Div. 2d Dep't 2015), rev’d, 2017 N.Y. LEXIS 3285 (2017) (district attorney met her burden of demonstrating that the witness statements and other documents provided to law enforcement officials during a criminal investigation by witnesses who did not testify at trial were exempt from disclosure, and the fact that petitioner had pled guilty did not remove the cloak of confidentiality from statements); Lesher v. Hynes, 80 A.D.3d 611, 914 N.Y.S.2d 264 (2d Dep’t 2011) (held, claim that disclosure of documents would interfere with an ongoing police investigation was sufficiently particularized to deny access); Bellamy v. New York City Police Dep’t, 80 A.D.3d 442, 913 N.Y.S.2d 225 (1st Dep’t 2011) (allowing access to police reports containing the names and statements of witnesses who did not testify at petitioner’s trial since no promises of confidentiality were made, nor was there any evidence that access would allow violators to evade detection by deliberately tailoring their conduct); Gomez v. Fischer, 74 A.D.3d 1399, 902 N.Y.S.2d 212 (3d Dep’t 2010) (request for statements made by a witness during an interview with investigators was improperly denied because witness statements must be disclosed unless there is a promise of confidentiality); Esposito v. Rice, 67 A.D.3d 797, 888 N.Y.S.2d 178 (2d Dep’t 2009) (respondents properly withheld statements to law officers made by persons who did not testify at a criminal trial); Smith v. Capasso, 200 A.D.2d 502, 608 N.Y.S.2d 815 (1st Dep’t 1994); Spencer v. New York State Police, 187 A.D.2d 919, 591 N.Y.S.2d 207 (3d Dep’t 1992) (denying access to non-routine, highly detailed step-by-step depictions of the investigatory process and to portions of the file describing autopsies performed on victims, but granting access to files regarding surveillance, establishment of roadblocks and lists of evidence seized); Lyon v. Dunne, 180 A.D.2d 922, 580 N.Y.S.2d 803 (3d Dep’t 1992), motion for leave to appeal denied, 79 N.Y.2d 758 (1992) (denying access to laboratory analyses of evidence because it would reveal nonroutine techniques and procedures, however, evidence inventory list is not exempt from disclosure); Laureano v. Grimes, 179 A.D.2d 602, 579 N.Y.S.2d 357 (1st Dep’t 1992) (granting access to police memo books of investigation where no assertion or promise of confidentiality and confidentiality, if given, was lost since witnesses later testified); Ennis v. Slade, 179 A.D.2d 558, 579 N.Y.S.2d 59 (1st Dep’t 1992), motion for leave to appeal denied, 79 N.Y.2d 758 (1992) (denying access to records of narcotics buy operation); Mitchell v. Slade, 173 A.D.2d 226, 569 N.Y.S.2d 437 (1st Dep’t 1991) (arrest follow-up report was not exempt under law enforcement or intra-agency exemptions); Grune v. Alexanderson, 168 A.D.2d 496, 562 N.Y.S.2d 739 (2d Dep’t 1990) (portions of arson control plan which reveal routine criminal investigative techniques or procedures are subject to disclosure); Dobranski v. Houper, 154 A.D.2d 736, 546 N.Y.S.2d 180 (3d Dep’t 1989) (denying access to identikit papers and notations as nonroutine); Cornell University v. City of New York Police Dep’t, 153 A.D.2d 515, 544 N.Y.S.2d 356 (1st Dep’t 1989), leave denied, 75 N.Y.2d 707 (1990) (granting disclosure of police investigative file where witnesses were not promised anonymity); New York News Inc. v. Office of the Special State Prosecutor of the State of New York, 153 A.D.2d 512, 544 N.Y.S.2d 151 (1st Dep’t 1989) (depositions compiled during investigation were exempt as disclosure could interfere with law enforcement investigations); Auburn Publisher Inc. v. City of Auburn, 147 A.D.2d 900, 537 N.Y.S.2d 354 (4th Dep’t 1989) (denying access to affidavits in police investigation); Allen v. Strojnowski, 129 A.D.2d 700, 514 N.Y.S.2d 463 (3d Dep’t 1987), motion for leave to appeal denied, 70 N.Y.2d 871, 518 N.E.2d 5, 523 N.Y.S.2d 493 (1987) (denying access to names, addresses, and statements of confidential witnesses compiled during a criminal investigation); Matter of Spruils N.Y.L.J., July 28, 1995 (Sup. Ct., New York Cty., 1995) (denying access to police officer’s memo book on personal hardship grounds and which might contain names, addresses and statements of confidential witnesses); Muniz v. Roth, 163 Misc.2d 293, 620 N.Y.S.2d 700 (Sup. Ct. 1994) (granting access to fingerprint tests because they are routine investigative techniques); Planned Parenthood of Westchester v. The Town Board of the Town of Greenburgh, Sup. Ct., Westchester Cty. (January 27, 1992) (disclosure of photographs of arrestees compiled for law enforcement purposes would not interfere with law enforcement purposes were exempt from disclosure under FOIL); Ragusa v. New York State Dep’t of Law, 152 Misc.2d 602, 578 N.Y.S.2d 959 (Sup. Ct. 1991) (granting access to Attorney General’s investigative records where allegation of interference with law enforcement is wholly speculative); Matter of Woods, N.Y.L.J. February 2, 1995 (Sup. Ct., New York Cty., 1995) (ordering in camera inspection of police follow-up reports (DD-5’s) to determine if they contain exempt opinions); Matter of Warner, N.Y.L.J. (App. Div. 1st Dep’t March 17, 1995) (ordering in camera inspection of police training material to determine whether exempt as criminal investigative techniques or procedures or would endanger life or safety of any person); Matter of New York City Dep’t of Investigation, N.Y.L.J., May 12, 1995 (Sup. Ct., New York Cty., 1995); Maffeo v. New York Organized Crime Task Force, Index #92-18502 (Sup. Ct., Westchester Cty. April 14, 1993) (denying disclosure of applications made and warrants issued for eavesdropping surveillance pursuant to CPL 700.55; denying access to investigation interviews and lists prepared by the FBI; granting access to trial testimony transcripts).
- Exemption for records which, if disclosed, would endanger the life or safety of any person.
Any record which, if disclosed, would endanger the life or safety of any person may be exempt from disclosure. N.Y. Pub. Off. Law § 87(2)(f) (McKinney 1988). See Matter of N.Y. Times Co. v. City of N.Y. Police Dep’t, 103 A.D.3d 405, 959 N.Y.S.2d 171, 2013 N.Y. App. Div. LEXIS 689 (1st Dep't 2013), app. denied, 22 N.Y.3d 854, 977 N.Y.S.2d 183, 999 N.E.2d 548, 2013 N.Y. LEXIS 2941 (2013) (disclosing a person’s home address implicated a heightened privacy concern); Matter of Luongo v Records Access Officer, Civilian Complaint Review Bd, 150 A.D.3d 13, 51 N.Y.S.3d 46, 2017 N.Y. App. Div. LEXIS 2463 (1st Dep't 2017), app. denied, 2017 N.Y. LEXIS 3771 (2017) (nondisclosure was warranted where the records implicate serious threats to an officer’s safety); John H. v. Goord, 27 A.D.3d 798, 809 N.Y.S.2d 682 (3d Dep’t 2006) (request of inmate/petitioner for investigative reports, interviews and related documents generated in response to his allegations of sexual assault by a corrections officer were exempt from disclosure because disclosure would reveal the identity of a non-confidential witness, whose life or safety may then be in danger); Buffalo Broad. Company Inc. v. New York State Dep’t of Correctional Services, 174 A.D.2d 212, 578 N.Y.S.2d 928 (3d Dep’t 1992) (denying access to portions of videotape of security system, storming of cells, other prison techniques during Attica uprising as possible endangerment to prison security and staff safety); Newton v. Police Department City of New York, 183 A.D.2d 621, 585 N.Y.S.2d 5 (1st Dep’t 1992) (disclosure of certain law enforcement records could endanger the life or safety of person); Connolly v. New York Guard, 175 A.D.2d 372, 572 N.Y.S.2d 443 (3d Dep’t 1991) (denying access to some of the mobilization plans and documents of the New York Guard); Bernier v. Mann, 166 A.D.2d 798, 563 N.Y.S.2d 158 (3d Dep’t 1990) (institutional safety justified denial of petitioner’s request for information on inmates involved in a prison disturbance); Buffalo Broad. Company Inc. v. New York State Dep’t of Correctional Services, 155 A.D.2d 106, 552 N.Y.S.2d 712 (3d Dep’t 1990) (agency failed to establish that videotape of inmates endangered safety and security); Dobranski v. Houper, 154 A.D.2d 736, 546 N.Y.S.2d 180 (3d Dep’t 1989) (denying access to deposition and criminal information underlying criminal complaint); Stronza v. Hoke, 148 A.D.2d 900, 539 N.Y.S.2d 528 (3d Dep’t 1989) (agency need only demonstrate a possibility that information would endanger the lives or safety of individuals); Lonski v. Kelly, 149 A.D.2d 976, 540 N.Y.S.2d 114 (4th Dep’t 1989) (denying access to videotape depicting petitioner’s transfer to special housing unit); Flowers v. Sullivan, 149 A.D.2d 287, 545 N.Y.S.2d 289 (2d Dep’t, 1989) (denying access to records of prison security system); Nalo v. Sullivan, 125 A.D.2d 311, 509 N.Y.S.2d 53 (2d Dep’t 1986), appeal denied, 69 N.Y.2d 612, 511 N.E.2d 86 (1987) (denying access to records referring to petitioner as member of organized crime and escape risk); Matter of Warner, N.Y.L.J., March 17, 1995 (1st Dep’t 1995) (ordering in camera inspection of police training material to determine whether exempt as criminal investigative techniques or procedures or would endanger life or safety of any person); McDermott v. Lippman N.Y.L.J., January 4, 1994 (Sup. Ct., New York Cty., 1993) (denying disclosure of security survey of New York trial courts due to possibility that disclosure will pose a danger to the life or safety of any person); New York News v. Koch, N.Y.L.J., May 22, 1987 (Sup.Ct., New York Cty., 1987) (denying access to records pertaining to a pending investigation of Bess Myerson on basis of prejudice to fair trial rights, harm to witnesses, confidential information, and privacy rights); Elmira Star-Gazette v. Strojnowski, No. 9924-84 (Sup. Ct., Albany Cty., Nov. 7, 1984) (denying access to state police reports); ABC Inc. v. Siebert, 110 Misc.2d 744, 442 N.Y.S.2d 855 (Sup. Ct. 1981) (granting access to names and business addresses of principals of check cashing businesses licensed by Banking Dep’t, but denying access to other aspects of license applications, such as home addresses); Whitfield v. Bailey, 80 A.D.3d 417, 914 N.Y.S.2d 58 (1st Dep’t 2011) (granting access to records but allowing redaction of names of witnesses who testified at trial since disclosure could endanger their life or safety); Canty v. Office of Counsel, 30 Misc.3d 705, 913 N.Y.S.2d 528 (Sup. Ct. 2010) (holding that while certain portions of the accident reports of correctional officers were subject to disclosure, certain identifying information could be redacted which might endanger the life or safety of the officers).
- Exemption for inter-agency or intra-agency materials.
Inter-agency or intra-agency records are exempt from disclosure unless they are: (i) statistical or factual tabulations or data; (ii) instructions to staff that affect the public; (iii) final agency policy or determinations; or (iv) external audits, including audits by the comptroller or federal government. N.Y. Pub. Off. Law § 87(2)(g). The exemption is intended to protect the deliberative process of government, and to encourage the free exchange of ideas among government policymakers. See Russo v. Nassau Cmty. Coll., 81 N.Y.2d 690, 623 N.Y.S.2d 15, 603 N.E.2d 294 (1993) (inter-agency materials are construed to mean “deliberative material”, i.e., communications exchanged for discussion purposes not constituting final policy decisions); Gould v. New York City Police Dep’t, 89 N.Y.2d 267, 653 N.Y.S.2d 54(1996); New York Times Co. v. City of New York Fire Dep’t, 4 N.Y.3d 477, 796 N.Y.S.2d 302 (2005). The FOIL allows denial of access to predecisional memoranda or other nonfinal recommendations, whether or not action is taken. Xerox v. Town of Webster, 65 N.Y.2d 131, 480 N.E.2d 74, 490 N.Y.S.2d 488 (1985).
An agency, however, is not authorized to throw a protective blanket over all information by casting it in the form of an internal memo. Miracle Mile Ass’n v. Yudelson, 68 A.D.2d 176, 417 N.Y.S.2d 142 (4th Dep’t 1979), appeal denied, 48 N.Y.2d 706, 397 N.E.2d 758, 422 N.Y.S.2d 68 (1979).
With regard to the general applicability of the exemption, it has been held that “records may be considered ‘intra-agency material’ even though prepared by an outside consultant at the behest of an agency as part of the agency’s deliberative process.” Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 480 N.E.2d 74, 490 N.Y.S.2d 488 (1985) (denying access to portions of appraisal reports prepared by private consulting firm for town). Accord Goodstein & West v. O’Rourke, 201 A.D.2d 731, 608 N.Y.S.2d 306 (2d Dep’t 1994) (denying access of investigative report prepared by Department of Correction at the requests of the Office of Affirmative Action as inter-agency or intra-agency materials); Austin v. Purcell, 103 A.D.2d 827, 478 N.Y.S.2d 64 (2d Dep’t 1984) (consultants’ reports and opinion of outside counsel treated as intra-agency material); Bray v. Mar, 106 A.D.2d 311, 482 N.Y.S.2d 759 (lst Dep’t 1984) (panel of outside experts considered part of agency); Sea Crest Construction Corp. v. Stubing, 82 A.D.2d 546, 442 N.Y.S.2d 130 (2d Dep’t 1981) (correspondence between town and outside consultant is intra-agency); Montalvo v. City of New York, N.Y.L.J., October 19, 1995 (Sup. Ct., New York Cty., 1995) (an outside consultant); Gannett Satellite Information Network Inc. v. City of Elmira, No. 94-1752 (Sup. Ct., Chemung Cty., August 26, 1994) (denying access to appraisal figures of appraisers retained by City as professional opinions; not statistical or factual tabulations and data). Town of Waterford v. N.Y. State Dep’t of Environmental Conservation, 77 A.D.3d 224, 906 N.Y.S.2d 651 (3d Dep’t 2010) (exemption for intra/inter-agency materials could be applied to records containing communications exchanged between state and federal agencies during planning and implementation of environmental remediation project). But see Tuck-It-Away Assoc., L.P. v. Empire State Development Corp., 54 A.D.3d 154, 861 N.Y.S.2d 51 (1st Dep’t 2008) (holding that the intra- or inter-agency exemption does not attach to a government agency’s communications with a firm hired as a consultant by that agency whose approval is required for the project, when the same firm was also hired by the entity promoting the project in question)
Material which is not prepared by or at the behest of an agency cannot fall within the intra-agency exemption. The mere fact of records being collected by an agency and appended to its report does not transform a record into intra-agency material. Ingram v. Axelrod, 90 A.D.2d 568, 456 N.Y.S.2d 146 (3d Dep’t 1982) (granting access to material not prepared by or for the department). Accord Lowry v. Bureau of Labor Services, No. 20438-83 (Sup. Ct., New York Cty., March 9, 1984) (granting access to correspondence between a public agency and a private organization it regulates).
Even if a record is a draft or preliminary, an agency is obliged to review the record for the purpose of disclosing those portions that are accessible. Gould v. New York City Police Dep’t, 89 NY 2d 267, 675 NE 2d 808, 25 Med.L.Rptr. 1004 (1996) (holding that police complaint follow-up reports are not categorically exempt from disclosure and that police activity logs are agency records).
For cases granting access, see Lee Enters., Inc. v. City of Glens Falls, 2016 NY Slip Op 51709(U), ¶ 3, 53 Misc. 3d 1217(A), 50 N.Y.S.3d 26 (N.Y. Sup. Ct. Warren Cty. 2016) (holding that “a disciplinary matter which is addressed in a hearing and culminates in the firing of a public employee does not fall within the intra-agency exemption simply because the agency claims to accept only the recommendation of the hearing officer, but not the reasons therefor”); Mosey v. Cty. of Erie, 148 A.D.3d 1572, 50 N.Y.S.3d 641, 2017 N.Y. App. Div. LEXIS 2202 (4th Dep't 2017); Mulgrew v. Board of Educ. of City Sch. Dist. of City of New York, 31 Misc.3d 296, 919 N.Y.S.2d 786 (Sup. Ct. 2011) (holding that the names of teachers included in Teacher Data Reports do not fall under the exception since such names are “statistical or factual tabulations of data”); Humane Soc’y of the United States v. Empire State Development Corp., 53 A.D.3d 1013, 863 N.Y.S.2d 107 (3d Dep’t 2008) (copies of project finance memorandum and cost-benefit analysis for funding arrangement between private company and Empire State Development Corp. were not exempt from disclosure as an intra-agency material, provided that the state agency’s projections were redacted from the record); Humane Soc’y of the United States v. Brennan, 53 A.D.3d 909, 861 N.Y.S.2d 234 (3d Dep’t 2008) (handwritten notes and memoranda authored by a Department of Agriculture and Markets veterinarian in connection with the investigation of avian flu at a foie gras farm were not exempt from disclosure as intra-agency records, as they contained objective, factual data); Tuck-It-Away Assoc., L.P. v. Empire State Development Corp., 54 A.D.3d 154, 861 N.Y.S.2d 51 (1st Dep’t 2008) (holding that the intra- or inter-agency exemption does not attach to a government agency’s communications with a firm hired as a consultant by that agency whose approval is required for the project, when the same firm was also hired by the entity promoting the project in question); New York Times Co. v. City of New York Fire Dep’t, 4 N.Y.3d 477, 796 N.Y.S.2d 302 (2005) (held, dispatch calls made over Fire Department’s internal communications system concerning response to September 11 terrorist attacks are disclosable “to the extent they consist of factual statements or instructions affecting the public”); Russo v. Nassau Cmty. Coll., 81 N.Y.2d 690, 623 N.Y.S.2d 15, 603 N.E.2d 294 (1993) (while the nature of a classroom may be one of deliberation, teaching materials used in the course for years constitute final agency policy or determinations); Professional Standards Review of America v. New York State Department of Health, 193 A.D.2d 937 (3d Dep’t 1993) (granting access to rating sheets used to make final determination, but remitting the matter for in camera inspection and redaction of any subjective commentary, opinions and recommendations); Svaigsen v. City of New York, 203 A.D.2d. 32, 609 N.Y.S.2d 894 (1st Dep’t 1994) (granting access to interviews of investigating officers that might ordinarily be exempt as pre-decisional intra-agency materials where such interviews comprise a factual account); Miller v. Hewlett-Woodmere Union Free Sch. District, N.Y.L.J., May 16, 1990 (Sup. Ct., Nassau Cty., 1990) (granting access to records of final decision denying request to change schools); Rold v. Coughlin, 142 Misc.2d 877, 538 N.Y.S.2d 896, (Sup. Ct. 1989) (granting access to inmate health care records as factual data and final agency determinations); Faulkner v. DelGiacco, 139 Misc.2d 790, 529 N.Y.S.2d 255 (Sup. Ct. 1988) (granting access to inmates statements as not intra-agency); Matter of Woods, N.Y.L.J. February 2, 1995 (Sup. Ct., New York Cty., 1995) (Ordering in camera inspection of police follow-up reports (DD-5’s) to determine if they contain exempt opinions); Smith v. Capasso, 200 A.D.2d 502, 608 N.Y.S.2d 815 (1st Dep’t 1994).
For cases denying access, see Matter of Pasek v New York State Dep’t of Health, 151 A.D.3d 1250, 56 N.Y.S.3d 627, 2017 N.Y. App. Div. LEXIS 4443 (N.Y. App. Div. 3d Dep’t 2017) (holding that intra-agency exception to request by a patient's spouse for documents prepared in the course of a Department of Health investigation into the hospital's treatment of the patient applied because the information was collected by the hospital for quality assurance purposes); Miller v. New York State Dep’t of Transp., 58 A.D.3d 981, 871 N.Y.S.2d 489 (3d Dep’t 2009) (Department of Transportation documents are not exempt because they consist of communications with people outside the agency and press releases; contain “objective information” rather than “opinions;” and contain instructions to staff that affect the public); In Re Pro, 69 A.D.3d 1040, 892 N.Y.S.2d 642 (3d Dep’t 2010) (specific documents withheld by the Department of Taxation and Finance met inter and intra-agency exemption because they contained predecisional, nonfinal discussion and recommendations); Marino v. Pataki, 55 A.D.3d 1171, 867 N.Y.S.2d 219 (3d Dep’t 2008) (handwritten notes made in preparation for a presentence investigation report were exempt from disclosure as an “inter-agency material”); Tate v. De Francesco, 217 A.D.2d. 831, 629 N.Y.S.2d 529 (3d Dep’t 1995) (denying, after in camera inspection, access to records regarding a prison altercation based on privacy, safety and intra-agency exemptions); Rothenberg v. City University of New York, 191 A.D.2d 195, 594 N.Y.S.2d 210 (1st Dep’t 1993) (denying access to documents regarding an individual’s failure to achieve the rank of professor); O’Shaughnessy v. New York State Division of State Police, 202 A.D.2d 508 (2d Dep’t 1994) (denying access to request for records relating to his application for and subsequent denial to position of State Trooper consisting of opinions, advise, evaluations, conclusions or recommendations); Rowland v. Scully, 152 A.D.2d 570, 543 N.Y.S.2d 497 (2d Dep’t 1989), aff’d, 76 N.Y.2d 725, 557 N.E.2d 112, 557 N.Y.S.2d 876 (denying access to assessment forms used to determine placement of an inmate as predecisional evaluations and recommendations); Scott v. Chief Medical Examiner, 179 A.D.2d 443, 577 N.Y.S.2d 861, (1st Dep’t 1992) (denying access to police officer’s memo book as exempt interagency material and as private property of officer); Rome Sentinel Company v. City of Rome, 174 A.D.2d 1005, 572 N.Y.S.2d 165 (4th Dep’t 1991) (denying access to internal review of agency which consisted solely of opinions and subjective material); Mitzner v. Sobol, 173 A.D.2d 1064, 570 N.Y.S.2d 402 (3d Dep’t 1991) (interim report and accompanying analysis were predecisional, interagency material exempt from disclosure under FOIL); Stronza v. Hoke, 148 A.D.2d 900, 539 N.Y.S.2d 528, (3d Dep’t 1989) (denying access to inmates security assessment summaries as interagency or intra-agency records and as danger to life or safety); Flores v. City of New York, 207 A.D.2d 302, 615 N.Y.S.2d 400 (1st Dep’t 1994) (denying access to Internal Affairs Division and Civilian Complaint Review Board as predecisional intra-agency materials); Gannett Satellite Information Network Inc. v. City of Elmira, No. 94-1752 (Sup. Ct., Chemung Cty., August 26, 1994) (denying access to status reports between City and the New York State Department of Equalization and Assessment as inter-agency material to the extent that they do not contain statistical or factual tabulations or data).
(i) Statistical or factual tabulations or data. For cases on statistical or factual tabulations or data, see Professional Standards Review of America v. New York State Department of Health, 193 A.D.2d 937 (3d Dep’t 1993) (backup factual and statistical data to a final determination of an agency is not exempt from disclosure, however, the subjective comments, opinions and recommendations written by committee members are not required to be disclosed and may be redacted); Akras v. Suffolk Department of Civil Service, 137 A.D.2d 523, 524 N.Y.S.2d 266 (2d Dep’t 1988) (granting access to factual material relating to reclassification of incumbent position); MacRae v. Dolce, 130 A.D.2d 577, 515 N.Y.S.2d 295 (2d Dep’t 1987) (granting access to actual response times of firefighters contained in an exempt planning report); Ingram v. Axelrod, 90 A.D.2d 568, 456 N.Y.S.2d 146 (3d Dep’t 1982) (granting access to factual portions of investigative report); Polansky v. Regan, 81 A.D.2d 102, 440 N.Y.S.2d 356 (3d Dep’t 1981) (holding that “budget examiner’s worksheet” is not automatically excluded from disclosure; in camera review necessary); Miracle Mile Ass’n v. Yudelson, 68 A.D.2d 176, 417 N.Y.S.2d 142 (4th Dep’t 1979), appeal denied, 48 N.Y.2d 706, 397 N.E.2d 758, 422 N.Y.S.2d 68 (1979) (granting developer access to factual materials regarding proposed shopping center); Matter of Newsday Inc., N.Y.L.J. (1st Dep’t 1992) (granting access to inter-agency audit report to the extent that it contains statistical information); Gannett Satellite Information Network Inc. v. City of Elmira, Index No. 94-1752 (Sup. Ct. Chemung Cty. August 26, 1994) (granting access to factual inventory data compiled by appraisal firm retained by City); Stewart Park and Reserve Coalition v. White, No. 0191-ST2939, (Sup. Ct., Albany Cty., Sept. 4, 1991) (granting access to statistical and factual data even if latter used to form an opinion); Rold v. Coughlin, 142 Misc.2d 877, 538 N.Y.S.2d 896, (Sup. Ct. 1989) (inmate health care records are factual data and final agency determinations and are available to individual patients and, therefore, are not intra-agency material); Warder v. Board of Regents, 97 Misc.2d 86, 410 N.Y.S.2d 742 (Sup. Ct. 1978) (granting access to notes of Regents meeting consisting of factual data).
(ii) Instructions to staff. For cases on instructions to staff that affect the public, see Miller v. New York State Dep’t of Transp., 58 A.D.3d 981, 871 N.Y.S.2d 489 (3d Dep’t 2009) (Department of Transportation documents are not exempt because they contain instructions to staff); Buffalo Broad. Co. v. City of Buffalo, 126 A.D.2d 983, 511 N.Y.S.2d 759 (4th Dep’t 1987) (granting access to tapes of police radio broadcasts); Adirondack Park Local Government Review Board v. Adirondack Park Agency, No. 273-81 (Sup. Ct., Essex Cty., June 24, 1981) (granting access to an agency report from its Legal Affairs Committee).
(iii) Final agency policy or determination. For cases on final agency policy or determinations, see Lee Enters., Inc. v. City of Glens Falls, 2016 NY Slip Op 51709(U), ¶ 3, 53 Misc. 3d 1217(A), 50 N.Y.S.3d 26 (N.Y. Sup. Ct. Warren Cty. 2016) (holding that “a disciplinary matter which is addressed in a hearing and culminates in the firing of a public employee does not fall within the intra-agency exemption” because it is akin to a final intra-agency determination); Kheel v. Ravitch, 62 N.Y.2d 1, 464 N.E.2d 118, 475 N.Y.S.2d 814 (1984) (denying access to staff memo prepared for internal use in collective bargaining as nonfinal intra-agency memo); Russo v. Nassau Cmty. Coll., 81 N.Y.2d 690, 623 N.Y.S.2d 15, 603 N.E.2d 294 (1993) (while the nature of a classroom may be one of deliberation, teaching materials used in the course for years constitute final agency policy or determinations); Mitzner v. Sobol, 173 A.D.2d 1064, 570 N.Y.S.2d 402 (3d Dep’t 1991) (interim report was predecisional); Grune v. New York State Dep’t of Correctional Services, 166 A.D.2d 834, 562 N.Y.S.2d 826 (3d Dep’t 1990) (predecisional evaluations, recommendations and conclusions of inmates’ conduct in prison are exempt); Village of Tuckahoe v. Public Service Commission, 150 A.D.2d 466, 541 N.Y.S.2d 221 (2d Dep’t 1989), motion for leave to appeal denied, 74 N.Y.2d 609 (1989) (predecisional memoranda are exempt); David v. Lewishohn, 142 A.D.2d 305, 535 N.Y.S.2d 793, (3d Dep’t 1988), lv. denied, 74 N.Y.2d 610, 546 N.Y.S.2d 554, 545 N.E.2d 868 (denying access to nonfinal recommendations contained in real property transfer data; MacRae v. Dolce, 130 A.D.2d 577, 515 N.Y.S.2d 295 (2d Dep’t 1987) (denying access to city planning report as predecisional draft); Bray v. Mar, 106 A.D.2d 311, 482 N.Y.S.2d 759 (lst Dep’t 1984) (actions and recommendation of staff or panels represent final agency action when adopted by the agency); Schumate v. Wilson, 90 A.D.2d 832, 456 N.Y.S.2d 11 (2d Dep’t 1982) (denying access to minutes, recommendations and similar materials regarding an inmate’s temporary release determination); Sinicropi v. Cty. of Nassau, 76 A.D.2d 832, 428 N.Y.S.2d 312 (2d Dep’t 1980), appeal denied, 51 N.Y.2d 704, 411 N.E.2d 797, 432 N.Y.S.2d 1028 (1980) (denying access to predecisional materials relating to disciplinary proceeding; charges, pleadings and stipulation of settlement had been provided); Miracle Mile Ass’n v. Yudelson, 68 A.D.2d 176, 417 N.Y.S.2d 142 (4th Dep’t 1979), appeal denied, 48 N.Y.2d 706, 397 N.E.2d 758, 422 N.Y.S.2d 68 (1979) (final determinations include decisions at every level of administrative process); McAulay v. Board of Education, 61 A.D.2d 1048, 403 N.Y.S.2d 116 (2d Dep’t 1978), aff’d, 48 N.Y.2d 659, 396 N.E.2d 1033, 421 N.Y.S.2d 560 (1979) (denying access to records of advisory hearing panel as predecisional); New York 1 News v. President of the Borough of Staten Island, 166 Misc.2d 270, 631 N.Y.S.2d 479 (Sup. Ct., Kings Cty. 1995) (granting access to portions of staff member’s prior oral or written discussion expressly adopted by the agency in explaining its final decision); Rome Sentinel Company v. City of Rome, 145 Misc.2d 183, 546 N.Y.S.2d 304 (Sup. Ct. 1989) (granting disclosure of final determination of fireman’s suspension hearing, but denying access to documents which contain allegations, complaints, or witness names); Rold v. Coughlin, 142 Misc.2d 877, 538 N.Y.S.2d 896 (Sup. Ct. 1989) (inmate health care records are factual data and final agency determinations are available to individual patients and, therefore, are not intra-agency material); Faulkner v. DelGiacco, 139 Misc.2d 790, 529 N.Y.S.2d 255 (Sup. Ct. 1988) (denying access to investigative records of prison melee as predecisional material); Montalvo v. City of New York, N.Y.L.J. October 19, 1995 (Sup. Ct., New York Cty., 1995) (denying access to “final report” because report does not reflect final policy or determinations of the agency; denying access to reports of committee because they reflect only opinions and suggestions of the committee); Gannett Satellite Information Network Inc. v. City of Elmira, Index No. 94-1752 (Sup. Ct. Chemung Cty., August 26, 1994) (denying access to appraisal figures of appraisers retained by City as professional opinions; not statistical or factual tabulations and data; denying access to status reports between City and the New York State Department of Equalization and Assessment as inter-agency material to the extent that they do not contain statistical or factual tabulations or data).
Most of the exemptions from the Public records law are not set out in the Public records law itself but are sprinkled through the North Carolina General Statutes. For examples, see Section II.B, below. Some exemptions, such as those protecting tax information and trade secrets, are mandatory. Others, including the exemption for privileged communications from an attorney, are discretionary.
The North Dakota Constitution and North Dakota statutes provide that all records are open unless there is a specific exception in the law.
“Confidential” records are characterized by a lack of discretion to disclose the documents to the public, and the release of such records can generally be punished. See N.D.C.C. § 44-04-17.1(3); N.D.C.C. § 12.1-13-01.
“Exempt” records are all or part of records that are neither required by law to be open to the public, nor are confidential, but may be open in the discretion of the public entity. N.D.C.C. § 44-04-17.1(5).
Exemptions are specific. Absent an express statutory exemption, records are open to the public. State ex rel. MADD Gosser, 20 Ohio St. 3d 30, 485 N.E.2d 706 (1985).
But even where no statutory exemption exists, recorded information kept by a public office may be unavailable to a requester because (1) the information fails to qualify as a "record" under the definition of "record" in Ohio Rev. Code § 149.011(G), or (2) the information is within the scope of the constitutional right to privacy under the 14th Amendment. See, e.g., State ex rel. McCleary v. Roberts, 88 Ohio St. 3d 365, 725 N.E.2d 1144, 2000-Ohio-345.
A public office cannot enter into enforceable promises to keep public records confidential. State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St. 3d 580, 669 N.E.2d 835 (1996) (coroner's promise to suicide victims' families to keep reports of his findings confidential); State ex rel. Dispatch Printing Co. v. Wells, 18 Ohio St. 3d 382, 481 N.E.2d 632 (1985) (labor agreement with police union); State ex rel. Finday Publishing Company v. Hancock County Board of Commissioners, 80 Ohio St. 3d. 134, 684 N.E.2d 1222 (1997) (confidentiality provision in settlement agreement between a citizen and a public entity unenforceable).
Not all statutory exemptions are contained within the statute itself. The Ohio Revised Code contains more than 400 separate statutory provisions addressing public records, many of them setting forth exemptions.
Exceptions to disclosure are strictly construed against the custodian of public records, and the burden to establish an exception is on the custodian. State ex rel. Findlay Publ'g Co. v. Schroeder, 76 Ohio St. 3d 580, 582, 669 N.E.2d 835, 838, 1996-Ohio-360.
Generally, the statute does not bar public offices from releasing records that are exempt from disclosure, it merely does not require public offices to disclose them—which gives public offices the discretion either to disclose them or to withhold them. See, e.g, Bentkowski v. Trafis, 56 N.E.3d 230, 240, 2015-Ohio-5139 ¶ 31 (Public Records Act does not create a cause of action for disclosure of exempt materials, and does not explicitly and directly impose a duty upon a public office not to disclose records).
The Ohio Attorney General publishes a manual regarding the Public Records Act in which it characterizes exemptions into categories of “must not release” and “may release, but may choose to withhold.” Ohio Sunshine Laws 2017: An Open Government Resource Manual, at 27-28 (2017).
The exemptions in Ohio's statute are not patterned after the federal Freedom of Information Act. The Ohio Supreme Court specifically has rejected the federal FOIA as an interpretive model for exemptions related to the Ohio statute. State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St. 3d 580, 669 N.E.2d 835 (1996) (“FOIA does not apply to state agencies or officers.”); State ex rel. Thomas v. Ohio State Univ., 71 Ohio St. 3d 245, 248 643 N.E.2d 126, 129 (1994)(“FOIA does not apply here, and R.C. 149.43 contains no similar personal-privacy exception”; State ex rel. Toledo Blade Co. v. Univ. of Toledo Foundation, 65 Ohio St. 3d 258, 602 N.E.2d 1159 (1992) (FOIA personal privacy exemption is statutory, not common-law, and does not apply in Public Records Act cases); See also State ex rel. Dist. 1999 v. Gulyassy, 107 Ohio App.3d 729, 737, 669 N.E.2d 487, 492 (10th Dist. 1995) (refusing to adopt an exemption for predecisional deliberative privilege as found in 5 U.S.C. 552(b)(5) to R.C. 149.43).
Twenty specific exemptions are recognized within the Act. 51 O.S. §§ 24A.7 through 24A.30. The public body claiming an exemption has the burden of establishing the applicability of the exemption. Citizens Against Taxpayer Abuse, Inc. v. City of Oklahoma City, 2003 OK 65.
All the exemptions are discretionary. A public body or public official is not civilly liable for damages for providing access to records. 51 O.S. § 24A.17.D.
The Oklahoma Open Records Act bears little resemblance, if any, to the federal Freedom of Information Act. Most importantly, it does not contain a corresponding Privacy Act. See discussion in Foreword concerning the privacy interests recognized under the Act.
Exemptions are limited in their nature and scope because the Public Records Law is primarily a disclosure law. Jordan v. MVD, 308 Or. 433, 781 P.2d 1203 (1989). Oregon courts construe exemptions narrowly. Brown v. Guard Publishing Co., 267 Or. App. 552, 563 (2014). The “narrow construction” rule means that if there is a plausible construction of a statute favoring disclosure of public records, that is the construction that prevails. Colby v. Gunson, 224 Or. App. 666, 676 (2008).
Oregon may be said to have three broad categories of exemptions. The first two categories are generally described in ORS 192.345 and ORS 192.355 (formerly ORS 192.501 and ORS 192.502), which permit the public body to disclose records, if the public body so desires. As noted in Attorney General Manual, § I.E.1, the exemptions described in the Public Records Law allow the public body to refuse to disclose records but does not prohibit their disclosure or require that the public body withhold disclosure in order to protect third parties. See Colby v. Gunson, 224 Or. App. 666, 676 (2008). The claim of exemption is controlled by the public agency, not public officials or employees who may be the subject of the materials being sought. AFSCME v. State of Oregon, Dept. of Administrative Services, 150 Or. App. 87, 945 P.2d 102 (1997). These two categories of exemptions may be used for withholding records from the public, but they are subject to qualifying conditions.
The third category of exemptions incorporated into the Public Records Law through ORS 192.355(8) and (9) (formerly ORS 192.502(8) and (9)) is found in numerous federal or state statutory references or regulations outside of the Public Records Law. Some of these exemptions prohibit disclosure of records even if the agency is otherwise willing to provide the records or the records would otherwise be subject to disclosure under the law. A list of many of these statutes is found in Attorney General Manual, Appendix G. Additional exemptions may be hidden within other statutes.
The Oregon Attorney General maintains a searchable, online catalog of the more than 500 codified exemptions, with the stated purpose of assisting “public officials and members of the public in determining what information is exempt from public disclosure. The catalog is not intended to provide legal advice to public bodies or to members of the public.” The website is found here: https://justice.oregon.gov/PublicRecordsExemptions/
The Oregon Public Records statutes bear similarity in some cases to the Federal Freedom of Information Act, and appellate decisions occasionally, but not invariably, discuss the purpose and workings of parallel federal provisions.
Section 708 of the Law, which is not patterned on the federal Freedom of Information Act, contains numerous exceptions. The individual exceptions will be discussed in the next subsection. For purposes of this subsection, concerning the characteristics of the exceptions in the Law:
• All of the exceptions apply to public and judicial records.
• Only a few of the exceptions apply to financial records. 65 Pa. Stat. Ann. § 67.708(c), moreover, expressly provides that “an agency may redact that portion of a financial record protected under [Section 708](b)(1)-(6), (16–17).”
• 65 Pa. Stat. Ann. § 67.708(d) provides that the exceptions do not apply to “aggregated data maintained or received by an agency, except for data protected under” 65 Pa. Stat. Ann. § 67.708(b)(1)-(5).
• 65 Pa. Stat. Ann. § 67.708(c) prohibits agencies from disclosing “the identity of an individual performing an undercover or covert law enforcement activity.”
In terms of burdens of proof, the agency receiving a records request bears the burden of proving by a preponderance of the evidence that a requested record is exempt from disclosure. 65 Pa. Stat. Ann. § 67.708(a)(1)-(3); see also Mission Pa., LLC v. McKelvey, --- A.3d ----, 2019 WL 2345090, at *6 (Pa. Commw. Ct. 2019) (explaining that “decisional law allows third parties to raise and defend exemptions to protect their information,” but agencies are not relieved from considering the validity or consistent application of the asserted exceptions) (citations omitted). Furthermore, the agency must separately and independently assess each exemption believed to apply to a requested record. 65 Pa. Stat. Ann. § 67.708(e). Courts will narrowly construe the exceptions when they are asserted to preclude disclosure of a requested record. Office of the Governor v. Davis, 122 A.3d 1185, 1191 (Pa. Commw. Ct. 2015).
As it relates to the Section 708 exceptions, it is also important to recognize that agencies are not required to withhold records that fall within one of the listed exceptions. 65 Pa. Stat. Ann. § 67.506(c) provides agencies with “discretion” to make an “otherwise exempt” record accessible for inspection and copying if: (1) “disclosure is not prohibited” by a “[f]ederal or [s]tate law or regulation,” or a “[j]udicial order or decree;” (2) the “record is not protected by a privilege;” and (3) “[t]he agency head determines that the public interest favoring access outweighs any individual, agency or public interest that may favor restriction of access.” See also Scranton Times, L.P. v. Scranton Single Tax Office, 736 A.2d 711 (Pa. Commw. Ct. 1999) (explaining in the context of the old Act that “there are three types of records kept by government agencies: 1) records that must be made public because they are subject to the Act; 2) records that may be made public because they fall within the discretion of the public official to make them public because they either fall within an exception under the Act or are otherwise not prohibited from being released; and 3) those records that cannot be released because there is an express statutory prohibition against their release . . .”); Bangor Area Educ. Ass’n v. Angle, 720 A.2d 198, 202 (Pa. Commw. Ct. 1998), aff’d, 750 A.2d 282 (Pa. 1998) (concluding that the old Act “prohibited” the agency from providing access to teacher personnel files protected by the constitutional right of privacy). Thus, it is possible that a requesting party may still be in a position to obtain an otherwise exempted record. But the ultimate disclosure decision for exempted records is within an agency’s discretion.
Exemptions under the Act are specific. S.C. Code Ann. § 30-4-40.
Exemptions are discretionary with the public body, and the public body may release a document that is subject to an exemption. The Act provides, "A public body may but is not required to exempt from disclosure the following information . . . ." S.C. Code Ann. § 30-4-40(a). This language was added after the Supreme Court decision in S.C. Tax Comm'n v. Gaston Copper Recycling Corp., 447 S.E.2d 843 (S.C. 1994); 22 Media L. Rep. 2211, and is consistent with the decision.
Exemptions are patterned roughly after the federal act.
The exemptions are fairly specific. The statutory exemption and redaction language, while not explicitly mandatory, will likely be interpreted to be mandatory. SDCL §§1-27-1.5 through 1.8 and 1-27-1.10. However, the “deliberative process” exemption is expressly discretionary. SDCL §1-27-1.9. The exemptions more closely follow Nebraska than the federal FOIA.
Records exempted by the Tennessee Open Records Act itself are specific and are listed in 48 categories that deal with confidential records.
The withholding of these records is not generally left to the discretion of the custodian; rather, the withholding is mandated unless otherwise indicated.
The Tennessee Open Records Act has little resemblance to the federal Freedom of Information Act. See Schneider v. City of Jackson, 226 S.W.3d 332 (Tenn. 2007) (court noted differences and refused to apply FOIA exemption rationale to state Act).
A governmental body that believes requested records are exempt must specifically identify in a letter to the Attorney General which of the categories of exceptions it believes exempts the requested information and why. See Tex. Gov’t Code § 552.301. Ordinarily the Attorney General will not raise an exception the governmental body has failed to claim unless the information involves confidential information about third parties that might be exempt under Section 552.101. See Tex. Att'y Gen. ORD-455 (1987); Tex. Att'y Gen. ORD-325 (1982). In the event the governmental body's refusal to disclose information results in a lawsuit, the governmental body can only raise in that suit exceptions that were raised before the Attorney General. Tex. Gov’t Code § 552.326. However, this does not prohibit the governmental body from raising an exception based on a requirement of federal law or involving the property or privacy interests of another person.
The Act does not require a governmental body to withhold all information that falls within these exempt categories. A governmental body can release exempt information, unless such information is considered "confidential" under the terms of the Act or by some other law or judicial decision. See Tex. Gov’t Code §§ 552.101, 552.352, 552.007. However, once the governmental body has released information, that information must be made available to any person. Id. at § 552.007(b). The waiver of the exception resulting from a governmental body's disclosure of documents extends only to the documents released, and not with respect to related documents. Cornyn v. City of Garland, 994 S.W.2d 258, 265-66 (Tex. App.—Austin 1999, no pet.).
The legislature modeled the Act after the federal Freedom of Information Act. Texas Comptroller of Public Accounts v. Attorney General of Texas, No. 08-0172, 2010 WL 4910163, at *8 (Tex. 2010); A & T Consultants, Inc., 904 S.W.2d at 676. Courts may look to the federal courts' construction of the Freedom of Information Act for guidance in interpreting the Texas Public Information Act. Texas Comptroller of Public Accounts, 2010 WL 4910163, at *5 (“[b]ecause the PIA is modeled on the FOIA, federal precedent is persuasive, particularly where the statutory provisions mirror one another”); City of Garland v. Dallas Morning News, 22 S.W.3d 351, 360 (Tex. 2000).
GRAMA’s exemptions to public access are specific. See Utah Code § 63G-2-201(2)-(3). Under GRAMA, all “public records” are available for inspection. Id. § 63G-2-201(1). In addition to the list of records expressly made public by GRAMA, all other government records are presumed to be public unless classified as “private,” “controlled,” or “protected,” or unless access to such records is restricted by court rule or by state or federal statute. Id. § 63G-2-201(2)-(3).
Government entities cannot publicly disclose records that are classified as private, controlled, or protected, except as set forth expressly in Utah Code sections 63G-2-201(5)(b)-(c), -202, -206, or -303. Id. § 63G-2-201(5)(a) If access to a record is restricted by court rule or by state or federal statute, the specific provisions of those rules or statutes govern disclosure. Id. § 63G-2-201(6)(a).
How records are classified. Each government entity evaluates and designates each record series (a collection of individual records, grouped for designation purposes) according to GRAMA’s provisions. The designation is reported to the state archives. See id. § 63G-2-307(1).
i. The government entity is not required to classify a specific record until access to the particular record is requested. See id. § 63G-2-307(2).
ii. A government entity may reclassify a record at any time. See id. § 63G-2-307(3).
iii. Any person who submits a record to a government entity that contains a trade secret or commercial or nonindividual financial information that the person believes should be protected from disclosure, shall provide with the record a written claim of business confidentiality and a concise statement of reasons supporting the claim of business confidentiality. See id. § 63G-2-309(1)(a)(i)(A)-(B).
iv. Records classified as “private,” “controlled,” or “protected” must satisfy the statutory requirements for each classification.
The exemptions to disclosure listed in 1 V.S.A. § 317(b) are for the most part specific rather than generalized. Vermont exemptions are patterned in part after the federal exemptions, but do not follow them exactly. Exemptions are to be narrowly construed, and any doubts should be resolved in favor of disclosure. Finberg v. Murnane, 159 Vt. 431, 436, 623 A.2d 979, 982 (1992); Trombley v. Bellows Falls Union High Sch. Dist., 160 Vt. 101, 624 A.2d 857 (1993). The governmental body has the burden of establishing that an exemption applies, and this burden cannot be sustained with conclusory claims or pleadings. Finberg, 159 Vt. at 438. Rather, the defendant must present a specific factual record that supports the exemption claim. Id. There is no exemption that recognizes withholding simply “in the public interest;” disclosure is mandatory unless a record falls within a specific exemption.
Effective January 1, 2019, the Public Records Act provides that “[u]nless otherwise provided by law, a record produced or acquired during the period of applicability of an exemption that is subsequently repealed or narrowed in scope shall, if exempt during that period, remain exempt following the repeal or narrowing in scope of the exemption.” 1 V.S.A. § 317(f) (effective Jan. 1, 2019).
Additionally, effective January 1, 2019, the Public Records Act provides that:
“For any exemption to the Public Records Act enacted or substantively amended in legislation introduced in the General Assembly in 2019 or later, in the fifth year after the effective date of the enactment, reenactment, or substantive amendment of the exemption, the exemption shall be repealed on July 1 of that fifth year except if the General Assembly reenacts the exemption prior to July 1 of the fifth year or if the law otherwise requires.”
Id. § 317(e) (effective Jan. 1, 2019). Moreover, “[l]egislation that enacts, reenacts, or substantively amends an exemption to the Public Records Act shall explicitly provide for its repeal on July 1 of the fifth year after the effective date of the exemption unless the legislation specifically provides otherwise.” Id.
It is critically important to understand the structure of the Act, as there is frequent confusion about the basis for withholding public records. The Act is not based on “exemptions” in the common legal sense of the word. An “exemption” typically would connote the categorical removal of a class of records from public disclosure based on its content or subject matter. That is not the case in Virginia.
The Act is structured to provide “exclusions” rather than “exemptions.” Thus, absent a specific exemption unconditionally prohibiting its release (often located in a statute outside the Act), a record may be withheld, in whole or in part, in the discretion of the public body, if the information embodied in the record falls within the subject matter identified in the exclusion listed in the Act. The sections of the Act establishing exclusions all begin with the same verbal formula: “The following information contained in a public record is excluded from the mandatory disclosure provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law.” See Va. Code Ann. §§ 2.2-3705.1 through 3705.7 (emphasis added). Despite the clear language of the statutes, the Supreme Court of Virginia attempted to resolve the tension between “exemption” and “exclusion” by holding that for purposes of the Act there is no practical distinction between the terms “exemption” and “exclusion.” Am. Tradition Inst. v. Rector & Visitors of the Univ. of Va., 287 Va. 330, 334 n.1, 756 S.E.2d 435 (2014).
This structure has both positive and negative aspects. Because the exclusions by their plain language permit the exercise of discretion, there is room for argument that a pubic body may exercise its discretion in favor of granting access to a requested record. As a practical matter, public bodies treat the exclusions not as opportunities to exercise discretion and release information, but as rigid exemptions that bar public access, a safer way in some cases for a public employee to avoid controversy.
The Act is not patterned after the federal Freedom of Information Act. Instead, it has evolved based on the premise that exclusions should be individually justified and narrowly drawn. Over time, this approach has led to a proliferation of exclusions, some of which are conceptually repetitive and some of which create interpretive difficulty as a result of the inconsistent use of language.
Under case law, the coverage of the Act is liberally construed and its exemptions narrowly confined. Progressive Animal Welfare Soc’y v. University of Wash. (“PAWS”), 125 Wn.2d 243, 884 P.2d 592 (1994), partial reconsideration denied (Feb. 1, 1995). In 1992, the Legislature formally adopted this rule of construction. RCW 42.56.030. Disclosure is required unless a specific exemption applies. RCW 42.56.070.
The exemptions in the Public Records Act are permissive, not mandatory. Thus, an agency can release information even if an exemption applies.
Washington courts will look to federal FOIA case law when interpreting the Public Records Act. Dawson v. Daly, 120 Wn.2d 782, 791, 845 P.2d 995 (1993). The exemptions are only loosely patterned after the federal act, and in some cases the two statutes are “markedly different.” Laborers Intern. Union of North America, Local No. 374 v. City of Aberdeen, 31 Wn. App. 445, 448, 642 P.2d 418 (1982).
There is no general exemption in the West Virginia statute and there is no authority for an agency or court to deny access to records based upon its own notion of what "the public interest" requires. The only public records to which citizens may be denied access under the Freedom of Information Act are those containing the twenty categories of information made "specifically exempt from disclosure" under W. Va. Code § 29B-1-4 (a)(5) or information specifically exempted from disclosure by other provisions of West Virginia Law. § 29B-1-4 (a)(5).
While the issue has not been litigated, it is likely that the West Virginia Supreme Court would follow the lead of the federal courts and interpret the West Virginia FOIA exemptions to be discretionary rather than mandatory.
It is important to keep in mind that the Freedom of Information Act is not the only source of access to documents. "The State FOIA and the common law principles are not . . . coextensive but are interrelated." Daily Gazette v. Withrow, 350 S.E.2d at 746 n.9. Even if a particular record falls within one of the FOIA exemptions, it still might be disclosable under the common law or a more specific statute providing for public access to such records.
The West Virginia Freedom of Information Act is similar to the federal statute in many respects. The West Virginia Supreme Court has recognized "the close relationship between the federal and West Virginia FOIA . . . in particular the value of federal precedents in construing our state FOIA's parallel provisions." Daily Gazette v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996) (“Gazette I”). It should be noted, however, that the new exemptions added to W. Va. Code § 29B-1-4 since 2003 are not patterned after those contained in the federal FOIA, 5 U.S.C. § 552 (b) (1)-(9).
The West Virginia court has identified notable differences between the state and federal acts, regarding the law enforcement record exemption, Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799, 809-12 (1985), and the exemption for personal information, Child Protection Group v. Cline, 177 W.Va. 29, 350 S.E. 2d 541 (1986). The Cline Court cautioned that, although the state and federal exemptions for personal information are similar:
The statutes differ in an important regard. Under the United States Code, private information should be disclosed unless its disclosure would "constitute a clearly unwarranted invasion of personal privacy." The West Virginia Code, on the other hand, exempts disclosure if the "public disclosure thereof would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance."
While the burden of proof is always on the agency resisting disclosure, the burden is different in the two codes. The Federal Code unambiguously favors disclosure of personal information with the resisting party having to show clear evidence of an unwarranted invasion of personal privacy. The West Virginia Code, with some ambiguity, favors nondisclosure of personal information unless public interest clearly requires disclosure. The simplest explanation of these differences is as follows: If the scales weigh heavily in favor of disclosure, both codes require disclosure; if the scales weigh heavily in favor of nondisclosure, both codes require nondisclosure; but, if the scales weigh even or near even, the Federal Code favors disclosure while the West Virginia Code favors nondisclosure.
Child Protection Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541, 545 (1986) (citations and footnotes omitted).
The Hechler Court also emphasized a significant difference between the state and federal exemptions for law enforcement information: It is clear that Federal FOIA exemption 7 "includes the enforcement of both civil and criminal federal laws." It is not so clear whether W. Va. Code, § 29B-1-4(4) includes regulatory agencies" proceedings directed only at invocation of civil sanctions, such as suspension or revocation of a license issued by an agency, and not to enforce penal laws. Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d at 813.
The Hechler Court also noted a more fundamental difference:
The law enforcement exemption to the State FOIA . . . appears at first blush to be a somewhat broader exemption than exemption 7 to the Federal FOIA, amended in 1974 to limit exemption thereunder to six types of situations in which disclosure is likely to cause specified types of injury. We do not, however, believe that W. Va. Code § 29B-1-4(4) creates a blanket law enforcement exemption, as did the pre-1974 Federal FOIA, because our statute, unlike the pre-1974 Federal FOIA, does not exempt entire "files" labeled "law enforcement" and does not expressly limit disclosure to "authorized private parties," as did the pre-1974 Federal FOIA.
175 W. Va. 434, 333 S.E.2d at 809 n.7.
Wisconsin is basically a common-law state with a statutory presumption that almost all government records are public and statutory procedures for access. As declared by the Wisconsin Supreme Court, this requires that the presumed public interest in inspection must be balanced against the asserted public interest in withholding inspection in the specific case:
“Thus the right to inspect public documents and records at common law is not absolute. There may be situations where the harm done to the public interest may outweigh the right of a member of the public to have access to particular public records or documents. Thus, the one must be balanced against the other in determining whether to permit inspection.”
State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 681, 137 N.W.2d 470, 474 (1965), modified on reh'g, 28 Wis. 2d 672, 139 N.W.2d 241 (1966). On the other hand, "[i]f the information requested is covered by an exempting statute that does not itself require a balancing of public interests, . . . there is no need for a custodian to conduct such a balancing. . . . The legislature has presumably already weighed the competing public interests and the custodian may or may not be aware of the legislature's rationale for the exempting statute." State ex rel. Savinski v. Kimble, 221 Wis. 2d 833, 840, 586 N.W.2d 36, 39 (Wis. Ct. App. 1998). There are, as noted in II.B., numerous specific statutory exceptions to the presumption of public access and general balancing test.
Examples of records opened to public inspection under the balancing test are:
(1) Statements taken in the course of a closed investigation into alleged, but not found, police misconduct were opened for public inspection on the ground that:
“In the instant situation the public interest to be served by permitting inspection is to inform the public whether defendant mayor has been derelict in his duty in not instigating disciplinary proceedings against policemen because of wrongful conduct disclosed in the report. If the report contains statements of persons having first-hand knowledge, which disclose police misconduct, the fact that reputations may be damaged would not outweigh the benefit to the public interest in obtaining inspection. On the other hand, statements based upon hearsay or suspicion, or inconclusive in nature, would be of small public benefit if made public, and might do great harm to reputations.”
State ex rel. Youmans, 28 Wis. 2d at 685, 137 N.W.2d at 476. But see Hempel v. City of Baraboo, 2005 WI 120, ¶¶ 69–78, 284 Wis. 2d 162, 699 N.W.2d 551, 568–70 (in sexual harassment investigation of police officer in which city had released substantial information about the nature of the allegations with names redacted, city's interest in preserving the confidentiality of informants and protecting the privacy of sexual harassment victim outweighed public interest in disclosure of redacted identities).
(2) Data relating to abortions performed at a public hospital, including the identity of doctors performing same, counseling procedures and numbers of abortions performed, on the ground that:
“The petition on its face encompasses only records which the trial court properly described as statistical records, administrative records and records which are not personal to or identifiable with individual patients. The petition thus states a cause of action under § 19.21, Stats., and the motion to quash was properly denied.”
State ex rel. Dalton v. Mundy, 80 Wis. 2d 190, 197, 257 N.W.2d 877, 881 (1977).
(3) Police blotters, without exception, on the ground that:
“Because of the statutory and common-law presumption that public records should be available to the public and because of the strong public-policy interests in making the arrest records public, those interests clearly outweigh the amorphous, ill-defined interests that the public might have in the protection of the reputations of persons who have been arrested. As stated above, the balance of policy considerations in respect to the particular records does not vary from case to case.
We hold as a matter of law that the harm to the public interest in the form of possible damage to arrested persons' reputations does not outweigh the public interest in allowing inspection of the police records which show the charges upon which arrests were made.”
Newspapers Inc. v. Breier, 89 Wis. 2d 417, 439–40, 279 N.W.2d 179, 190 (1979).
(4) Pupil parents' names and addresses. Hathaway v. Joint Sch. Dist. No. 1, 116 Wis. 2d 388, 342 N.W.2d 682 (1984)
(5) Records of personnel actions taken at closed meetings. Jensen v. Sch. Dist. of Rhinelander, 2002 WI App 78, ¶ 14, 251 Wis. 2d 676, 684, 642 N.W.2d 638, 642 (diminished reputational interests of school superintendent who had already been placed on administrative leave did not warrant withholding from public inspection school board's employment evaluation of superintendent's performance); Oshkosh Nw. Co. v. Oshkosh Library Bd., 125 Wis. 2d 480, 373 N.W.2d 459 (Wis. Ct. App. 1985). While police officer personnel files generally are not subject to inspection, see Pangman & Assocs. v. Stigler, 161 Wis. 2d 828, 468 N.W.2d 784 (Wis. Ct. App. 1991), specific reports of police conduct may be open to inspection under the balancing test. State ex rel. Journal/Sentinel Inc. v. Arreola, 207 Wis. 2d 496, 513–19, 558 N.W.2d 670 (Wis. Ct. App. 1996).
(6) Settlement agreements of private parties when subject to court approval, In re Estates of Zimmer, 151 Wis. 2d 122, 442 N.W.2d 578 (Wis. Ct. App. 1989), and settlement agreements of government authorities whether or not filed in court. Journal/Sentinel, Inc. v. Sch. Bd. of Sch. Dist. of Shorewood, 186 Wis. 2d 443, 459, 521 N.W.2d 165 (Wis. Ct. App. 1994) (“Taxpayers of a community have a right to know how and why their money is spent.”).
(7) Mug shots. State ex rel. Borzych v. Paluszcyk, 201 Wis. 2d 523, 549 N.W.2d 253 (Wis. Ct. App. 1996).
In Wisconsin, custodians of public records may be required to notify record subjects before publicly disclosing records pertaining to them to allow the record subject to seek de novo judicial review of the custodian’s application of the balancing test. See Woznicki v. Erickson, 202 Wis. 2d 178, 191–93, 549 N.W.2d 699, 705 (1996) (subject of records acquired by district attorney in a criminal investigation is entitled to judicial review of district attorney's decision to release records). In Milwaukee Teachers' Educ. Ass’n v. Milwaukee Bd. of Sch. Dirs., 227 Wis. 2d 779, 797–98, 596 N.W.2d 403, 411 (1999), the court extended this holding to all custodians of public records. Id. ("[W]e hold that the implicit right of a de novo judicial review of a public records custodian's decision recognized by this court in Woznicki is available to an individual public employee whose privacy or reputational interests would be impacted by disclosure of records requested under the Open Records Law. This right of de novo judicial review applies whether or not the custodian of the records is a district attorney.") The legislature in 2003 narrowed the Woznicki right to notice and judicial review to records of disciplinary actions and investigations, records obtained by warrant or subpoena, and records concerning private sector employees. Wis. Stat. § 19.356.
Wisconsin does not follow federal FOIA exemptions.
“Wisconsin courts have more effectively enforced the public records statute, § 19.21 [now § 19.31-.39], than federal courts have enforced the federal Freedom of Information Act. Unquestionably, the lesser effectiveness of the federal courts is due in part to the consignment by Congress of nine categories of information to the exemption discretion of federal agencies.”
In re Wis. Family Counseling Servs. Inc., v. State, 95 Wis. 2d 670, 672–73, 291 N.W.2d 631, 633–34 (Wis. Ct. App. 1980) (footnote omitted). On the other hand, the Wisconsin Supreme Court has more recently touted the FOIA exemption for law enforcement records, 5 U.S.C. § 552(b)(7) (2000), as "concisely list[ing] the factors that support . . . public policies" that weigh against disclosure of police records. Linzmeyer v. Forcey, 2002 WI 84, ¶ 32, 254 Wis. 2d 306, 328, 646 N.W.2d 811, 820. The Linzmeyer decision even suggested that FOIA factors "provide a framework that records custodians can use to determine whether the presumption of openness in law enforcement records is overcome by another public policy." Id. ¶ 33, 254 Wis. 2d at 329, 646 N.W.2d at 820.
The Wyoming Public Records Act has two different sections discussing exemptions to public disclosure. The first section lists categories of records that may be withheld if disclosure “would be contrary to the public interest.” W.S. §16-4-203(b). The reasons for non-disclosure must outweigh the state's public policy of openness. A so-called catch-all exemption allows the custodian to go to court to withhold records not covered by an exception if the custodian can prove that disclosure would be contrary to the public interest. Wyo. Stat. § 16-4-203(b) (1977 & Cum. Supp. 1996). A custodian must petition the district court if he wishes to withhold a record pursuant to the general exemption.
The second section states that the custodian shall deny inspection to the categories of records listed. W.S. §16-4-203(d). However, the Wyoming Supreme Court has ruled that records listed in W.S. §16-4-203(d) may only withheld if disclosure would cause an unwarranted invasion of privacy. Houghton v. Franscell, 870 P.2d 1050 (Wyo. 1994)
There are Wyoming exemptions that are similar to the federal statute. The Wyoming Supreme Court has used the federal statute and case law when interpreting the Public Records Law. Sheridan Newspapers Inc. v. City of Sheridan, 660 P.2d at 791-97; Stephen Jouard, Note, A Constitutional Right To Access To State-Held Information, 19 Land & Water L. Rev. 719, 723 (1984).