1. Executive branch
The state public records act contains no express exceptions for records of the governor, mayors or other executives. Section .110 refers to "every public officer," and § .120 similarly directs "every public officer" to make non-exempt records available for inspection and copying. It has been interpreted, however, to exempt at least some records relating to state executive branch decision-making that are subject to deliberative process privilege or executive privilege. The Alaska Supreme Court has firmly established the existence of a deliberative process privilege that exempts qualifying documents of the executive branch from disclosure under the Public Records Act. In Fuller v. City of Homer, 75 P.3d 1059, 1065 (Alaska 2003) the Court extended this privilege to the records of municipal governments. See also, Griswold v. Homer City Council, P.3d , 2018 WL 4375455, at *4-5 (Alaska, September 14, 2018). The Alaska Supreme Court initially recognized at least a limited "executive" or "deliberative process" privilege that protects communications between the governor and his or her aides about policy matters in Doe v. Superior Court, 721 P.2d 617 (Alaska 1986). The qualified privilege recognized in Doe was intended to encompass confidential internal communications including advice, opinions and recommendations, in order to protect the deliberative and mental processes of decision-makers. 721 P.2d at 623. The basis for the privilege in Doe was the notion of "separation of powers" implicit in Alaska's constitution. (It was derived by analogy from United States v. Nixon, 418 U.S. 683, 1062-65 (1974), in which the U.S. Supreme Court held the executive privilege is "inextricably rooted in the separation of powers under the [federal] Constitution.") 721 P.2d at 623. The court said the privilege is only "qualified," not absolute, so that there must be a balancing in each case of the government's interest in confidentiality against the need for disclosure. Doe set out a procedure to be followed in cases where this privilege has been asserted. It requires the government, through sworn testimony of an official who has personally examined the documents, to describe the documents it seeks to protect and to explain why they fall within the scope of executive privilege. The party seeking disclosure then must show that its need for disclosure outweighs the interest in confidentiality. If this is done, the judge will look at the documents in chambers to decide whether the claim of privilege should be honored, or whether to order the production of the documents. 721 P.2d at 626.
The Alaska Supreme Court recognized and explained the deliberative process privilege in greater detail in Capital Information Group v. Office of the Governor, 923 P.2d 29 (Alaska 1996) ("CIG"), Gwich'in Steering Committee v. Office of the Governor, 10 P.3d 572 (Alaska 2000) ("Gwich'in"), and Fuller v. City of Homer, 75 P.3d 1059 (Alaska 2003) ("Fuller I"). The Capital Information Group ("CIG"), a news organization that publishes periodicals describing the activities of the Alaska state government, sought two sets of documents that were at issue in the Supreme Court appeal. The first consisted of budget proposals sent from each executive department commissioner to the Office of Management and Budget, and the second, each department's proposals for new legislation sent to the governor's legislative liaison. In each case, the requests were denied on the grounds that the documents were protected by the deliberative process privilege. The court required the state to submit the records requested by CIG for in camera review, and thereafter granted the state's motion for summary judgment based on the deliberative process privilege.
Until CIG, the Alaska Supreme Court had never explicitly adopted the deliberative process privilege by that name, although in Doe it had said the "executive privilege" encompassed the same policy concerns. The court said that this privilege recognizes that a chief executive has a qualified power to keep confidential certain internal governmental communications so as to protect the deliberative and mental processes of decision-makers, and said that it considered the terms "executive privilege" and "deliberative process privilege" synonymous for purposes of the case at hand. The court reiterated that its analysis in Doe began with the assumption that exceptions to public records statutes disclosure requirements are to be construed narrowly. It noted, however, that unlike the executive privilege in Nixon, which was deemed constitutionally required by the separation of powers doctrine, the common law-based deliberative process privilege traced its roots to supreme court decisions protecting the mental processes of government decision-makers, and the need for open and frank discussions among government officials about proposed or contemplated actions.
The court articulated the substantive requirements of the deliberative process privilege, which is designed to protect open and free discourse among governmental decision-makers, as being two-fold: (1) the communication at issue must be "pre-decisional" to be protected; and (2) it must be "deliberative" in nature, reflecting the give and take of the deliberative process and containing opinions, recommendations or advice about agency policies. 923 P.2d at 35-36. Post-decisional communications are not protected; however, a pre-decisional communication does not automatically lose the privilege after the decision has been made, for fear that even disclosure of past communications could harm future deliberations. Each case must be considered independently and on its own merits. Ibid.; Fuller I, 75 P.3d at 1063. Merely factual material is not protected, and must be disclosed unless the manner of selecting or presenting those facts would reveal the deliberative process, or if the facts are inextricably intertwined with the policy-making process. CIG, 923 P.2d at 36. Documents that contain "opinions and interpretations" of a policy decision already made are not considered deliberative. Gwich'in, 10 P.3d at 579.
If a communication is not shown to be both pre-decisional and deliberative, then the public records statute applies and the document will likely be disclosed. However, even if the communication meets the threshold test, the inquiry is not over because the deliberative process privilege is only a qualified privilege. To establish a prima facie claim to the deliberative process privilege in any given case, the government must show that the document whose disclosure is sought is an internal communication or one that the government directly solicited, and that the communication is both predecisional and deliberative. But bare assertions are insufficient. “The burden is on the government, or government actor asserting privilege, to show that the communication is presumptively protected by the privilege,” and this burden is not met by one who merely asserts that there is little question that the communication was a predecisional and deliberative internal communication and that he therefore had a presumptively protected deliberative process privilege. Eberhart v. Alaska Public Offices Commission, Council, P.3d , 2018 WL 4041135, at *10 (Alaska, August 24, 2018). If the court reviews the document and finds that it meets these criteria, the privilege presumptively attaches, overriding the public records act's usual presumption of disclosure. The burden then shifts to the requesting party to demonstrate that the public's interest in disclosure outweighs the government's interest in confidentiality. Fuller I, 75 P.3d at 1063; CIG, 923 P.2d at 36. The court in CIG compared its well-established balancing test for resolving disputes over access to public records articulated in City of Kenai v. Kenai Peninsula Newspapers Inc., 642 P.2d 1316 (Alaska 1982) with the balancing test required where the deliberative process privilege is asserted and preliminarily demonstrated. In the City of Kenai case, in the face of municipal executive officials' claims of secrecy, the court said that the balance to be struck between the public interest in disclosure, on the one hand, and the privacy and reputation interests of the affected individuals and the government's interests in confidentiality, on the other, required a balancing in which "the scales must reflect the fundamental right of a citizen to have access to the public records as contrasted with the incidental right of the agency to be free from unreasonable interference. The citizen's predominant interest was expressed in terms of the burden applicable in this class of cases, which was cast upon the agency to explain why the records sought should not be furnished." 923 P.2d at 36, quoting City of Kenai, 642 P.2d at 1323, see also Municipality of Anchorage v. Anchorage Daily News, 794 P.2d 584, 590-91 (Alaska 1990).
This "balancing test" was articulated, the CIG court noted, in the absence of any official assertion of a deliberative process privilege.
But the balancing test as described goes a long way toward accomplishing the goals of the qualified privilege. If the government does not make a justifiable claim to confidentiality, then the balance will almost certainly tip in favor of the individual seeking the information. If it does make such a claim, and meets the threshold requirements, then there is a presumptive privilege and the party seeking disclosure must make a sufficient showing that the need for production outweighs the need for secrecy. . . . The deliberative process privilege affects the balance described above primarily by identifying more specifically what interest the government may have in maintaining confidentiality, in the form of a threshold showing that the communication is pre-decisional and deliberative. It also outlines fairly rigid procedural requirements that the government must meet in order to claim the privilege. . . . Thus, the balancing test that a court should perform where a presumptive privilege attaches is that of City of Kenai. If the privilege attaches, however, instead of there being a presumption in favor of disclosure, with doubtful cases being resolved by permitting public inspection, see City of Kenai, 642 P.2d at 1323, there is a presumption in favor of non-disclosure and the party seeking access to the document must overcome that presumption.
CIG, 923 P.2d at 36-37. (While the presumption may be changed when a government entity establishes that the deliberative process privilege attaches, it appears that this does not alter the basic requirement that “in balancing the interests … the scales must reflect the fundamental right of a citizen to have access to the public records as contrasted with the incidental right of the agency to be free from unreasonable interference.” Griswold v. Homer City Council, P.3d , 2018 WL 4375455, at *5 (Alaska, September 14, 2018).
In CIG, the court found that the legislative proposals at issue were exempt from disclosure pursuant to the deliberative process privilege. It said they were pre-decisional, and that arguments that they were not, because they were a one-way communication, were without merit because this did not mean that they were not deliberative. The court said that the privilege is meant to further candor and the giving of advice or opinion to the chief executive, and the governor need not respond to a document for candor to be desirable.
By contrast, the court said that the budget impact memoranda that CIG sought, which were documents required by a specific state statute to be sent to the Office of Management and Budget, were not exempt from disclosure under the deliberative process privilege. The statute provides that these documents and other related documents are "public information" after the date they are forwarded. AS 37.07.050(g). Nonetheless, the court found that the budget impact memoranda met the threshold requirements for the deliberative process privilege. They were pre-decisional because they were submitted before the governor made his final determinations as to his proposed budget. They were deliberative because they were meant to be, and clearly were, a direct part of the deliberative process, allowing the governor to hear the needs and opinions of each of the agencies that needed to be accommodated in the budget. The court said that since the documents were pre-decisional and deliberative, it would normally proceed to question whether the demonstrated need for disclosure outweighed the government's interest in confidentiality. However, it found that in this case the legislature had already weighed those interests and resolved them in favor of public disclosure.
The court rejected the state's argument that the legislature cannot override a constitutionally based deliberative process privilege. Noting that the privilege is commonly accepted as having both common law and constitutional roots, the court assumed for purposes of this argument the constitutional underpinnings of the doctrine. It observed, however, that the deliberative process privilege has never been held to be absolute. It may be outweighed by the legitimate needs of a coordinate branch. In this specific case, the court found particularly compelling the fact that the document itself was created as a result of a legislative requirement, and that in mandating that the report be made and submitted to the OMB, the legislature had declared that the report should be public, implicitly determining that the need for public disclosure outweighed any risk to candor on the agency's part. It said that this determination was entitled to significant weight, given the legislature's constitutional power to allocate executive department functions and duties among the offices, departments and agencies of the state government.
It is noteworthy that the Alaska Supreme Court stated in a footnote that "we consider cases dealing with the Freedom of Information Act, 5 U.S.C. § 552, and its 'exemption 5' instructive as they relate to the deliberative process privilege." The case law interpreting exemption 5 of the federal Freedom of Information Act is generally quite favorable to administrative agencies and decision-makers seeking to withhold documents they claim are pre-decisional and deliberative, pursuant to a deliberative process privilege or related privilege. While the court's opinion in CIG reflects its willingness to make independent decisions, and indeed to distinguish specific cases decided under FOIA Exemption 5, see 923 P.2d at 40 n.8, its willingness to rely substantially on the federal case law may foreshadow a substantial deference to agency assertions of privilege. 923 P.2d at 35, n.4.
In Gwich'in, the Court solidified the establishment of a deliberative process privilege for state officials. In Gwich'in, the Governor's office sought to protect documents relating to lobbying and public relations efforts with respect to potential opening of the Arctic National Wildlife Refuge to oil exploration and drilling from disclosure to a group representing the interests of Native inhabitants of the affected area. In an expansive ruling, the Court firmly recognized a common law basis for the privilege. It said this deliberative process privilege is a judicially recognized "state law," which, when invoked by public officials, triggered the exemption in section .120(a)(4) of the Public Records Act for "documents required to be kept confidential by federal law or regulation or state law." 10 P.3d at 578. It rejected the argument that the privilege only protects communications relating to constitutionally prescribed executive powers and duties. The Court said that the deliberative process privilege is not synonymous with the executive privilege, but instead is a "branch" of a broader group of governmental privileges, with its roots in the common law, and is intended to protect the mental processes of governmental decision-makers from interference, not constitutional notions of separation of powers. The question, therefore, is whether the communication sought would affect the quality of governmental decision-making. Id. at 578-579. The Court noted that predecisional communications are protected because the quality of the communications received by the decision maker clearly affects the quality of the decision-making process, and that predecisional communications do not automatically lose the privilege after a decision has been made. Id. at 579. The Court allowed the Governor to withhold documents provided by an outside consultant, saying the privilege applies to communications that are either internal or "directly solicited" by a government official. The Court also refused to require that the documents at issue be clearly tied to a particular, identified decision. Instead, it held that no specific decision need be identified for a document to be predecisional. "The privilege protects the give-and-take deliberative process, not final decisions; no ultimate conclusion needs to be identified, or even reached, for the privilege to attach." Id. at 581.
While the Court did not say the privilege attaches in perpetuity, it made clear that the question of when, if ever, the privilege "evaporates" does not depend simply on whether a decision has been implemented, or whether sufficient time has passed. Instead, the question is whether disclosure of these preliminary proposals would harm the agency's future decision-making by chilling either the submission of such proposals or their forthright consideration. Id. at 583. The Court also rejected the argument that the privilege protects only essential, constitutionally mandated executive functions, and said that instead it protects any governmental decision-making function. Id. Finally, with respect to the balancing test required when a government official invokes the privilege and establishes that a document is predecisional and deliberative, the Court observed "generally, it is difficult for a requester to override the presumptive privilege." The court said that relevant factors include "the degree of confidentiality and sensitivity of the communication; the time elapsed after deliberation concluded and after communications were made; and whether deliberation is ongoing." Id. at 584. In Fuller I, for example, the court rejected Homer's claim of deliberative process privilege, finding that while the city manager certainly might have had "compelling reasons to protect internal staff discussions from outside intrusion while his staff was actually deliberating the issues, the legitimacy of the city's interest in stifling disclosure after discussion ended seem[ed] far less obvious." 75 P.3d at 1064. "In contrast to the city's attenuated interest in confidentiality, the public's interest in disclosure of all potentially relevant government records grew strong and specific once the council filed the annexation petition," and the court saw "no realistic danger that post-petition disclosure would have any appreciable chilling effect on the city's future deliberative process." 75 P.3d at 1065.
In 1988, a superior court judge ruled that the mayor of Anchorage could not assert an executive or deliberative process privilege. That court held that no municipal privilege is expressed or implied in the state constitution, so that any privilege applicable to local government executives would have to be based on a municipal charter or other local law. However, the judge said, the state's broad public records law controls over local law, and contains no exception for a deliberative process privilege for local officials. The judge said arguments for recognition of such a privilege should be addressed to the state legislature. Anchorage Daily News v. Municipality of Anchorage, Case No. 3AN -85-1254 Civ. (supplemental proceedings in 1988 on motion to enforce previously entered injunction). On appeal the Alaska Supreme Court affirmed the trial court's decision that documents at issue had to be disclosed, but on other grounds, and did not rule on the question of a municipal deliberative process privilege. Municipality of Anchorage v. Anchorage Daily News, 794 P.2d 584, 593 (Alaska 1990) (report of Mayor's Blue Ribbon Panel on Fiscal Policy not privileged). The Court did note, however, that the policies underpinning qualified executive privilege were not implicated in that case, since the committee meetings leading up to the report were open, and the fiscal report was to go to the assembly, as well as the mayor, and was intended for public dissemination. Since CIG and Gwich'in, however, superior court judges in several cases had recognized a deliberative process privilege applicable to municipal officials, either in the context of a public records request or an assertion of evidentiary privilege, and in more recent cases the Supreme Court has affirmed that this privilege extends to the records of municipal governments. See Fuller v. City of Homer, 75 P.3d 1059, 1065 (Alaska 2003) ("Fuller I"), see also, Griswold v. Homer City Council , P.3d , 2018 WL 4375455, at *4-5 (Alaska, September 14, 2018).
The CPRA applies to every state office, officer, department, division, bureau, board and commission or other state body or agency, except the Legislature and the courts. Cal. Gov't Code § 6252(f). The CPRA also applies to local agencies, including counties, cities, schools districts, municipal corporations, districts, political subdivisions, or any board, commission or agency thereof; other local public agencies; or non-profit entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952 of the Government Code. Cal. Gov't Code § 6252(a). For example, a county’s claim settlement committee constituted a “local agency” under the CPRA. Register Div. of Freedom Newspapers, Inc. v. Orange County, 158 Cal. App. 3d 893, 898, 205 Cal. Rptr. 92 (1984). But a nonprofit auxiliary corporation affiliated with a state university, and which operated multi-purpose arena being built on university campus was not a “state agency” under the CPRA. California State Univ. (Fresno) v. Superior Court, 90 Cal. App. 4th 810, 898, 108 Cal. Rptr. 2d 870 (2001).
The Act applies to members of the Executive Branch.
All executives' records, as defined by the statute, are subject to the Act.
All records that are "made, maintained, or kept" by an executive officer or the executive branch agency "for use in the exercise of functions required or authorized by law or administrative rule or involving the expenditure of public funds" are covered by the Act.
Governor did not make, maintain or keep personal cell phone billing statements in his official capacity. Denver Post Corp. v. Ritter, 207 P.3d 954 (Colo. 2009). While governor made the telephone calls, the telephone service provider created and generated the phone bills. Id. at 1242. Governor did not maintain the records as they were kept solely to pay the bills and there was no evidence that the governor was responsible for updating the records. The term maintain, at the least means to "keep up or keep in good repair." Finally, it was stipulated that the governor kept the bills only to verify the amounts he owed and to pay them, which the court deemed is a personal, rather than official, function.
The executive branch is subject to FOIA. Conn. Gen. Stat. §1-200(1).
Records of executives are subject to FOIA unless they fall within one of the categories of exemptions. See Conn. Gen. Stat. §1-200(1); see also Lewin v. FOIC, No. CV 03-0522443, 2004 WL 2284250 (Conn. Super. Sept. 20, 2004) (holding that handwritten notes made by acting chairman of town ethics committee were exempt from disclosure under Conn. Gen. Stat. §1-210(b)(1)); see generally Records Outline at II.A.
The records of the executives themselves (governor, mayor, other chief executive person or body) are subject to the Act, unless protected, for example, by executive privilege. See Guy v. Judicial Nominating Comm'n, 659 A.2d 777 (Del. Super. 1995); see definition of "public body." 29 Del. C. § 10002(c). The records of all functions of the executive branch are subject to the Act. See 29 Del. C. § 10002(e) (defining "public business").
District of Columbia
The D.C. Act requires disclosure of records of any "public body." D.C. Code Ann. § 2-532(a). The D.C. Administrative Procedure Act, from which many definitions in the D.C. FOIA are taken, see D.C. Code Ann. § 2-539, defines a "public body" as including the Mayor, an agency or the Council of the District of Columbia. Id. at § 2-502(18A). "Agency" includes both subordinate and independent agencies. Id. at § 2-502(3). "Subordinate agency" is defined as "any officer, employee, office, department, division, board, commission or other agency of the government of the District, other than an independent agency or the Mayor or the Council, required by law or by the Mayor or the Council to administer any law or any rule adopted under the authority of law." Id. at § 2-502(4).
"Independent agency" is defined as "any agency of the government of the District of Columbia to which the Mayor and the Council are not authorized by law, other than this subchapter, to establish administrative procedures but does not include the several courts of the District and the Tax Division of the Superior Court." Id. at § 2-502(5). Intergovernmental agencies would probably not be considered "agencies" for the purposes of the D.C. Act. See Latimer v. Joint Comm. on Landmarks, 345 A.2d 484, 486-87 (D.C. 1975) (construing § 2-502 definitions); KiSKA Constr. Corp.-U.S.A. v. Washington Metro. Area Transit Auth., 167 F.3d 608, 611-12 (D.C. 1999) (holding that WMATA is not an agency within the meaning of the D.C. FOIA).
The Office of the Secretary (which has been delegated the authority vested in the Mayor to render final decisions on appeals under the D.C. FOIA) has issued an opinion concluding that an agency under the administrative control of a court-ordered general receiver is not an "agency" to which the FOIA requirements applied. See In re Appeal of Claire M. Riley, Matter No. 00-08806, 47 D.C. Reg. 6287 (July 24, 2000) (concluding that the Child and Family Services Division of the Department of Human Services was not an "agency" because it was under the exclusive administrative control of the court); In re Appeal of The Washington Post, Matter No. 00-105900, 47 D.C. Reg. 7229 (August 25, 2000) (same).
The D.C. Act applies to all "public records." D.C. Code Ann. § 2-532. The following records are specifically required to be disclosed under D.C. Code Ann. § 2-536:
- The names, salaries, title and dates of employment of all employees and officers of a public body;
- Administrative staff manuals and instructions to staff that affect a member of the public;
- Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
- Those statements of policy and interpretations of policy, acts and rules that have been adopted by a public body;
- Correspondence and materials referred to therein, by and with a public body, relating to any regulatory, supervisory or enforcement responsibilities of the public body, whereby the public body determines, or states an opinion upon, or is asked to determine or state an opinion upon, the rights of the District, the public or any private party;
- Information in or taken from any account, voucher or contract dealing with the receipt or expenditure of public or other funds by public bodies;
- Budget requests, submissions and reports available electronically that agencies, boards and commissions transmit to the Office of Budget and Planning during the budget development process, as well as reports on budget implementation and execution prepared by the Office of the Chief Financial Officer, including baseline budget submissions and appeals, financial status reports and strategic plans and performance-based budget submissions;
- The minutes of all proceedings of all public bodies;
- All names and mailing addresses of absentee real property owners and their agents. "Absentee real property owners" means owners of real property located in the District that do not reside at the real property.
- All pending applications for building permits and authorized building permits, including the permit file;
- Copies of all records, regardless of form or format, that have been released to any person under the D.C. Act and which, because of the nature of their subject matter, the public body determines have become or are likely to become the subject of subsequent requests for substantially the same records.
- A general index of the foregoing records, unless the materials are promptly published and copies offered for sale.
For records in the categories listed above created on or after November 1, 2001, each public body shall make records available on the Internet or, if a Web site has not been established by the public body, by other electronic means. See § 2-536(b).
The UIPA does not expressly include or exclude the executive branch. However, all agencies (defined as "any unit of government") are subject to the law. Seventy percent or 4,793 of the 6,839 units of state government classified by the OIP as government agencies belong to the executive branch. OIP, Records Report Training Guide 40 (1992) (on file with OIP).
For example, the Review Commission on the state water code, though temporary, is classified as an "agency" for UIPA purposes. Review Commission on the State Water Code, OIP Op. Ltr. No. 94-2 (Mar. 21, 1994). According to the OIP, it is the function and purpose of the entity, not the duration that determines whether an entity is subject to UIPA. Id.
It is unclear to what extent the UIPA applies to records of individual executive office holders. Cf. Haw. Rev. Stat. § 92F-13(5) (excluding "personal files of members of the legislature"). Under prior law, the Corporation Counsel advised that certain "personal papers and records of living mayors, and the personal records of other City employees and officers" may be exempt from public disclosure. Op. Honolulu Corp. Counsel No. 75-43 (May 27, 1975).
Even under the UIPA, agency information, such as the notes and drafts of executive personnel, will be confidential when it is deliberative and pre-decisional in nature such that disclosure would interfere with a protected public interest, e.g., frustrate a legitimate government function or interfere with prosecution or defense of lawsuits involving an agency. See, e.g., Drafts of Correspondence and Staff Notes About an Alleged Zoning Violation, OIP Op. Ltr. No. 90-8 (Feb. 12, 1990). Where factual matters contained in records can be segregated from information protected by the pre-decisional deliberative privilege, then disclosure of factual matters may be required. See, e.g., Public Inspection of Univ. Program Reviews, OIP Op. Ltr. No. 90-11 (Feb. 26, 1990). Confidentiality under UIPA is of limited duration and extends "only so long as the nature of the information is deserving of protection . . . ." Proposed HECO Confidentiality Agreement Relating to Geothermal Interisland Transmission Project, OIP Op. Ltr. No. 90-2 (Jan. 18, 1990) (emphasis added) (citing Audio Technical Serv. Ltd. v. Dep't of the Army, 487 F. Supp. 779, 784 (D.D.C. 1980)); see also Public Utility Commission Applicant Records, OIP Op. Ltr. No. F17-02 (Dec. 8, 2016) (confidentiality agreement between government body and private entity was only effective to protect information not otherwise required to be disclosed under UIPA); Applicability of UIPA to Aloha Tower Dev. Proposals, OIP Op. Ltr. No. 89-15 (Dec. 20, 1989) (protecting competitive bids only until contract negotiated).
The definition of “state agency” includes the executive branch, with the exception of the state militia and the Idaho state historical society library and archives. Idaho Code § 74-101(15). In addition, the act defines “public official” as “any state, county, local district, independent public body corporate and politic or governmental official or employee, whether elected, appointed or hired.” Idaho Code § 74-101(12).
As all officers of the executive branch are included in the definition of state agency and public official, all records maintained by public officers in the executive branch in connection with their official functions are potentially accessible to the public. See, e.g. Cowles Publishing Co. v. Kootenai County Board of County Comm'rs, 144 Idaho 259, 159 P.3d 896 (2007).
The Act applies to all public bodies, including executive offices. See 5 ILCS 140/2(a). As with all public bodies, the exemptions set out in 5 ILCS 140/7 apply to specific types of records kept by executive branches.
In Quinn v. Stone, 211 Ill. App. 3d 809, 570 N.E. 2d 676, 156 Ill. Dec 200 (1st Dist. 1991), the court held that a FOIA request directed at an individual alderman was properly denied, because a single alderman is not a “public body” subject to the Act. Rather, Quinn held that suit should have been brought against the mayor and the City Council, of which the alderman was a member. See Quinn, 211 Ill. App. 3d at 811, 570 N.E.2d at 677, 156 Ill. Dec. at 200, 201.
The Act also emphasizes that financial records are open: All records relating to the obligation, receipt, and use of public funds of the State, units of local government, and school districts are public records subject to inspection and copying by the public. See 5 ILCS 140/2.5. Relatedly, certified payroll records submitted to a public body under Section 5(a)(2) of the Prevailing Wage Act are open—except that contractors' employees' addresses, telephone numbers, and social security numbers must be redacted by the public body prior to disclosure. 140/2.10. And all settlement agreements entered into by or on behalf of a public body are public records subject to inspection and copying by the public, although certain information specifically exempt under Section 7 may be redacted. 5 ILCS 120/20.
The Act does not set out exceptions to disclosure of records concerning specific functions of executive offices; it sets out exceptions only to specific types of records. The Act may in effect exempt all the records generated by one entire function. For example, one function of an executive office is to set policy. Subsection 7(1)(f) exempts "[p]reliminary drafts, notes, recommendations, memoranda and other records in which . . . policies or actions are formulated," with one exception: If a document containing such policies is publicly cited and identified by the head of the public body (as in a decision to grant a license or zoning request, for example), then the document must be disclosed. See 5 ILCS 140/7(1)(f). Accordingly, in Carrigan v. Harkrader, 146 Ill. App. 3d 535, 496 N.E.2d 1213, 100 Ill. Dec. 148 (3d Dist. 1986), the court held that an applicant for a liquor license was not entitled to a copy of a letter which the local sheriff submitted in conjunction with the license application because the letter merely expressed an opinion about the applicant and was not publicly cited or identified as a basis for the decision. In Harwood v. McDonough, the Appellate Court, First District, denied access to a consultant's final report, finding it was "preliminary" to the final agency decision. 799 N.E.2d 859 (1st Dist. 2003).
Because of the expansive definition of “public agency” and “public records,” Indiana Code Section 5-14-3-2, the records of the executive branch are subject to the Act unless they are covered by a specific statutory exemption.
The Act does not differentiate between records of the office-holder and other public records. If the record is one that is “created, received, retained, maintained, or filed by or with a public agency,” Ind. Code § 5-14-3-2, it should be subject to access. Although this definition of public records remains quite broad, it used to be even wider in its scope. Before 2003, the definition included any record that had been “created, received, maintained, used, or filed by or with a public agency.” Ind. Code § 5-14-3-2 (2001) (emphasis added). Indiana Public Law 261-2003, Sec. 5 deleted “used” from the definition.
The Act does not limit itself to certain executive branch functions. However, attorney-client privilege and the common interest privilege (an extension of the attorney-client privilege) recently has limited public access to executive documents. See Groth v. Pence, 67 N.E.3d 1104 (Ind. Ct. App. 2017). Former Indiana Governor, Mike Pence, met his burden to show that “white paper,” which was attached to an email that the Texas Governor-Elect sent to Pence, was not subject to disclosure under the Access to Public Records Act. Id. at 1122. Citing Indiana Code Section 5-14-3-4(b)(6), the court held that Pence properly employed the “deliberative material exception” to APRA requests; the white paper was an expression of legal opinion. Id. The court concluded that Pence’s denial was not arbitrary and capricious. Id.
Executive branch is subject to KORA under the definition of public agencies set forth in K.S.A. 45-245(f)(1), but records “which are made, maintained or kept by an individual who is a member of the legislature or of the governing body of any political or taxing subdivision of the state” are not public records under the KORA. K.S.A. 45-217(g)(3)(B). This provides is intended to “exclude records kept by individual members but not records of the governing bodies they serve. It excuses individual members of such governing bodies from the burden of producing records that they maintain personally in their performance of official duties, but the records of the governing bodies they serve are still considered public records and thus must be made available. The person seeking the records of the governing body must get them from the central office rather than from the individual.” Ted Frederickson, Letting the Sunshine In, 33 Kan. L. Rev. 205, 221 (Winter 1985).
Kentucky’s Open Records Act defines “public agency” to include, among others, “[e]very state or local government officer,” and “[e]very state or local government department, division, bureau, board, commission, and authority.” Thus, the Act applies to records of all executive branch officers and agencies. See, e.g., Courier-Journal v. Jones, 895 S.W.2d 6 (Ky. App. 1995) (applying the Act to records of the governor).
Records in the custody or control of the Governor and which are used in the discharge of his duties are exempt. La. Rev. Stat. Ann. § 44:5. This exemption extends to records of the Inspector General's Office, which is part of the Office of the Governor. Op. Att'y Gen. 92-128. Records of other executives are not exempt.
All records of the executive branch, including the Governor, are subject to the Act if the records have been received or prepared for use in connection with the transaction of public or government business or if they contain information relating to the transaction of public or governmental business. 1 M.R.S.A. § 402.
The PIA applies. The records of all units or instrumentalities of State government or of a political subdivision of the State concerning the affairs of government and the official acts of public officials and employees are subject to the PIA. See §§ 4-101(i), (j); see also Napata v. Univ. of Md. Med. Sys. Corp., 417 Md. 724 (2011) (concluding that UMMS was not subject to the PIA because the language of the enabling statute provides that the entitiy is not subject to provisions of law "affecting only governmental or public entities"). All documentary material or records created or received by a unit or instrumentality in connection with the transaction of the public business is subject to disclosure. No provision is made to exempt certain functions of the State from disclosure requirements. § 4-101(j)(1). Records of executives themselves are also subject to disclosure under the PIA. See Office of Governor v. Washington Post Co, 360 Md. 520, 534-35, 759 A.2d 249 (2000).
The definition of a "public body" includes "[a] state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof." Mich. Comp. Laws Ann. § 15.232(d)(i). Therefore, FOIA does not require the Executive Office of the Governor to disclose records pursuant to a FOIA request. See McCartney v. Attorney Gen., 231 Mich. App. 722, 730, 587 N.W.2d 824, 828 (1998) (noting copies of letters sought by a FOIA plaintiff from the Attorney General could not have been obtained through the Governor’s office).
However, the act specifically "does not authorize the withholding of a public record in the possession of the executive officer of the governor or lieutenant governor, or an employee of either executive office, if the public record is transferred to the executive office of the governor or lieutenant governor, or an employee of either executive office, after a request for the public record has been received by a state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive bench of government subject to this act" Mich. Comp. Laws Ann. § 15.243(4). The definition of a "public body" also includes "[a] county, city, township, village, intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof." Mich. Comp. Laws Ann. § 15.232(d)(iii). This includes corporations formed under The Summer Resort Owners Corporation Act. 1997 Op. Att'y Gen No. 6942 (1997). It does not include private, voluntary unincorporated associations of lake property owners. Id.
As noted above, all records of all agencies are public unless there is a specific statute to the contrary. No statute specifies whether records of the executive department head (e.g., governor or mayor) are also included. To the extent such records are records belonging to the state, county or municipality, rather than to the executive, they should be considered public records.
The NPRA applies to any "governmental entity." NRS 239.010(1). A governmental entity is defined as 1) an "elected or appointed officer of this State or of a political subdivision of this State” or 2) an "institution, board, commission, bureau, council, department, division, authority or other unit of government of this State including, without limitation, an agency of the Executive Department or of a political subdivision of this State" 3) a university foundation, or 4) an educational foundation. NRS 239.005(5). The Office of the Governor is subject to the NPRA. See Reno Newspapers, Inc. v. Gibbons, 127 Nev. Adv. Op. 79 (Dec. 15, 2011).
The Statute covers public records maintained by executive branch employees only to the extent they maintain records on behalf of a public agency or public body, such as chair of the entity, executive director or record custodian.
Subject to some exceptions, the Statute most often exempts governmental records from disclosure based on the content of the record, not the function of the public agency or public body. But see, RSA 91-A:5,I and II, exempting the records of grand and petit juries, and parole and pardon boards; and RSA 91-A:6, exempting records of the Department of Employment Security.
In general, all government records are subject to access under OPRA, unless specifically exempted. Certain Executive Branch records have been exempted. The following records maintained by the office of the Governor, or part thereof, shall not be deemed to be government records under OPRA:
- Any record made, maintained, kept on file or received in the course of its official business which is subject to an executive privilege or grant of confidentiality established or recognized by the Constitution of this State, statute, court rules or judicial case law.
- All portions of records, including electronic communications, that contain advisory, consultative or deliberative information or other records protected by a recognized privilege.
- All portions of records containing information provided by an identifiable natural person outside the Office of the Governor which contains information that the sender is not required by law to transmit and which would constitute a clearly unwarranted invasion of personal privacy if disclosed.
- If any of the foregoing records shall contain information not exempted by the provision of the Open Public Records Act or the preceding subparagraphs (a), (b), or (c) hereof then, in such event, that portion of the record so exempt shall be deleted or excised and access to the remainder of the records shall be promptly permitted.
(See Executive Order 26)
Records relating to petitions for executive clemency are not public records under OPRA. (See Executive Order No. 9)
N.J.S.A. 47:1A-1.1 provides that a government record shall not include the following information which is deemed to be confidential:
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
The New Mexico Inspection of Public Records Act specifically provides that the executive branch is subject to the Act. NMSA 1978 § 14-2-6(F) (2013). However, in addition to all of the statutory exceptions noted below, the Supreme Court of New Mexico has recognized a constitutionally-based “executive privilege.” Republican Party of N.M. v. N.M. Taxation & Revenue Dep’t, 2012-NMSC-026, ¶ 43, 283 P.3d 853. In Republican Party, the Supreme Court rejected the common law “deliberative privilege” and defined a qualified privilege similar in scope to the presidential communications privilege. Id. ¶¶ 18-50 (“We see no basis for sanctioning an executive communications privilege broader than the privilege afforded to the President of the United States.”).
New Mexico’s executive privilege is available only to the Governor and does not extend to “cabinet agencies” that are under the control of the Governor. Republican Party of N.M. v. N.M. Taxation & Revenue Dep’t, 2012-NMSC-026, ¶ 47, 283 P.3d 853. To fall within the scope of the privilege, the communication at issue must “have been authored, or solicited and received, by either the Governor or an immediate advisor with broad and significant responsibility for assisting the Governor with his or her decision making.” Id. ¶ 46 (citations omitted). The executive privilege is further limited to “documents that are communicative in nature” and “concern the Governor’s decision making in the realm of his or her duties.” Republican Party of N.M. v. N.M. Taxation & Revenue Dep’t, 2012-NMSC-026, ¶¶ 44-45, 283 P.3d 853. The communications must “relate to the Governor’s constitutionally-mandated duties. Id. ¶ 45.
Records of the governor and other executive branch officials are covered by the law, and there appear to be no statutes or court decisions that confer any special “executive privilege.” Governors have asserted that some of their records, such as those compiled in connection with the exercise of the clemency power, are beyond the reach of the Public Records Law, and the Court of appeals found such records outside the reach of the Public Records Law. News & Observer Pub. Co. v. Easley, 182 N.C. app. 14, 641 S.E.2d 698 (2007).
The statute's language is broad enough to literally apply to the executives themselves, such as a governor or other chief executive officer. However, the Ohio Supreme Court has recognized that the constitutional doctrine of separation of powers may inhibit the statute's application to the Governor, Lieutenant Governor, Secretary of State, State Auditor, State Treasurer, and Attorney General. That doctrine does not inhibit the law's application to mayors or other chief executives of political subdivisions. State ex rel. Plain Dealer Publishing Co. v. City of Cleveland, 75 Ohio St.3d 31, 661 N.E.2d 187 (1996). The separation of powers limitation creates a qualified privilege that may be overcome where a requester demonstrates a particularized need to review the communications which outweighs the benefits of according confidentiality to communications. State ex. rel. Dann v. Taft, 109 Ohio St.3d 364, 848 N.E.2d 472 (2006).
The statute does not distinguish among the functions of an executive officer, or any other official, in determining whether the public has a right of access to records.
Records of executive office are open by the Act. 51 O.S. § 24A.3.
If the record is generated in connection with the transaction of public business, the expenditure of public funds or the administering of public property, then it is a public record. 51 O.S. § 24A.3. However, the Oklahoma Supreme Court has ruled that the separation of powers found in the state Constitution confers a qualified deliberative process privilege upon the Governor that is protected from encroachment by Legislative acts, including the Open Records Act. Vandelay Entertainment, LLC v. Fallin, 2014 OK 109. The Governor had claimed an executive privilege involving communications between the Governor and senior executive branch officials who were offering advice and counsel to the governor. Finally, the Governor's Security and Preparedness Executive Panel, created in the aftermath of the terrorist strikes on the United States, is not a public body and its records are not subject to the ORA. 2002 OK AG 5.
The right to inspect the public records of any “public body” in the state includes the records of any “state officer.” ORS 192.311(4) (formerly ORS 192.410). This right is limited by the definition of “public record,” which includes “any writing that contains information relating to the conduct of the public’s business” but expressly excludes “any writing that does not relate to the conduct of the public’s business and that is contained on a privately owned computer.”
"Memoranda, correspondence, and working papers in the possession of individual members of the General Assembly or their immediate staffs" are exempt from disclosure, but the exemption is not to be construed to limit public access to "source documents or records, factual data or summaries of factual data, papers, minutes, or reports otherwise considered to be public information . . . and not specifically exempted by any other provisions." S.C. Code Ann. § 30-4-40(a)(1). Other than this "working papers" exception, other records of the General Assembly are subject to the same provisions as other public records.
Presumably, an executive’s records are covered as “of or belonging to” state and its subdivisions. The act does protect confidentiality, generally of public officials and employees’ “[c]orrespondence, memoranda, calendars…working papers, and records of telephone calls” as well as their “personal records or documents.” SDCL §1-27-1.5(12) and (19). There is specific exclusion for documents and records “used for the purpose of the decisional or deliberative process….” SDCL §1-27-1.9. There also is an exclusion for materials “in which opinions are expressed or policies formulated or recommended….” SDCL §1-27-1.7.
Copies of any act, record, or paper in the office of the secretary of state are available to any person, "except papers relating immediately to the executive department, and, in the governor's judgment, requiring secrecy." T.C.A. § 8-3-104(10). All law enforcement personnel records are open, however, special rules apply when inspections are made of these records. T.C.A. § 10-7-503(c)(1). Applications of applicants for city school superintendent are subject to the Act. Board of Education of Memphis City Schools v. Memphis Publishing Co., 585 S.W.2d 629 (Tenn. Ct. App. 1979) (holding that applications of those seeking the position of superintendent of city schools in the possession of a search committee created by the board of education were public records).
Executive branch entities subject to GRAMA include the “executive department agencies of the state, the offices of the governor, lieutenant governor, state auditor, attorney general, and state treasurer, the Board of Pardons and Parole, the Board of Examiners, the National Guard, the Career Service Review Office, the State Board of Education, the State Board of Regents, and the State Archives.” Utah Code § 63G-2-103(11)(a)(i). GRAMA also extends to any “office, agency, board, bureau, committee, department, advisory board, or commission” of the above-named entities if the office, agency, board, etc. “is funded or established by the government to carry out the public’s business.” Id. § 63G-2-103(11)(b).
GRAMA does not exempt any executive branch records from its scope, although it does restrict access to specific categories of records. For example, access is restricted to “records of the governor’s office, including budget recommendations, legislative proposals, and policy statements, that if disclosed would reveal the governor’s contemplated policies or contemplated courses of action before the governor has implemented or rejected those policies or courses of action or made them public.” Utah Code § 63G-2-305(29).
The Public Records Act contains an exemption for records that are subject to statutory or common law privileges, such as the executive privilege. 1 V.S.A. § 317(c)(4). The Vermont Supreme Court has recognized that some records of the Governor are protected by a qualified executive privilege. Killington, Ltd. v. Lash, 153 Vt. 628, 637, 572 A.2d 1368, 1374 (Vt. 1990); see also Herald Ass’n v. Dean, 174 Vt. 350, 355-56, 816 A.2d 474-75 (Vt. 2002); New England Coalition for Energy Efficiency & the Env’t v. Office of the Governor, 164 Vt. 337, 339-40, 670 A.2d 815, 817 (Vt. 1995); Browning v. State, No. 272-5-14, 2014 Vt. Super. LEXIS 106, *2 (Vt. Super. Wash. County Dec. 10, 2014). The privilege allows the Governor “maintain the privacy of documents relating to the formulation of policy,” which includes “intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising parts of the process by which governmental decisions and policies are formulated.” Killington, 153 Vt. at 635-37, 572 A.2d at 1373-74.
Once a prima facie case has been made for the existence of the executive privilege, the burden shifts to the requester to provide reasons why the need for the information outweighs the interest in confidentiality. Killington, 153 Vt. at 639, 572 A.2d at 1375. If the court determines that the requester has shown need, the court will conduct an in camera inspection of the documents to determine if the interest in confidentiality outweighs the need for disclosure. Id. Although the court upheld the assertion of executive privilege in both Killington and New England Coalition, it was careful to note that the privilege is not absolute, and that not all direct communications with the Governor are privileged. See Killington, 153 Vt. at 637, 572 A.2d at 1374; New England Coalition, 164 Vt. at 345, 670 A.2d at 820.
In Dean, 174 Vt at 351, 816 A.2d at 471, several newspapers sought access to Governor Howard Dean’s daily calendar to determine how much time the Governor spent on “nongubernatorial activities, particularly time spent on matters related to his bid for the United States presidency.”
The Supreme Court found that the calendar qualified as a public record and held that certain information contained within it was “not sufficiently related to gubernatorial policymaking or deliberations to qualify for confidential treatment under the executive privilege” Id. at 357, 816 A.2d at 476.
The Supreme Court has squarely rejected any effort to expand executive privilege beyond sensitive policy-making communications with or to the Governor. Trombley v. Bellows Falls Union High Sch. Dist., 160 Vt. 101, 107 n.5, 624 A.2d 857, 861 n.5 (Vt. 1993) (noting that the executive privilege is “limited to communications with the Governor of Vermont”). More recently, however, the Vermont Supreme Court recognized that “notwithstanding the general right of access to public records under the PRA, the more specific and exacting legislative requirements that a retiring governor’s official correspondence be placed in the state archives and that such records be made ‘accessible only in accord with’ the special terms or conditions restricting their use, must control.” Judicial Watch, Inc. v. State, 2005 VT 108, ¶ 8, 892 A.2d 191, 195-96 (Vt. 2005) (holding that the State Archives Act evince an express legislative intent to authorize restricted access to former Governor Howard Dean’s archived records).
The Public Records Act requires all public agencies of the executive branch that receive a written request for records under the statute catalogue the request, including: the date it was received, the agency that received the request, the person making the request, the status of the request, the exemption asserted by the agency if the request was denied or partially fulfilled, the estimate hours necessary to respond to the request, the date the agency closed the request, and the elapsed time between the receipt of the request and the date the agency closed the request. See 1 V.S.A. § 318a. The Vermont Secretary of Administration is required to maintain and update a Public Records Request System on its website containing the information catalogued by each agency. Id. at (a). The website is available here: https://aoa.vermont.gov/statewide-public-record-requests.
The executive branch agencies excluded from the coverage of the Act are: (a) the Virginia Parole Board, (b) family assessment and planning teams established pursuant to § 2.2-5207, and (c) the Virginia State Crime Commission. Va. Code Ann. § 2.2-3703.A.1, 3, and 4.
The Virginia Parole Board language is convoluted, as it purports to exclude the agency entirely, but lists records of the agency that include statistical summaries and guidance documents that must be available to the public.
There is no basis for these agencies to be excluded wholesale, as the apparent objectives of the statute could be accomplished by making them generally subject to the Act and excluding particularized records that may be sensitive.
The Public Records Act applies to all state and local agencies. RCW 42.56.040, .070(1). There is no express statutory or case law concerning access to executives themselves, but the definition of “agency” appears broad enough to cover them. Relying on “separation of powers” concerns, the state supreme court has held that a qualified gubernatorial communications privilege is an exemption to the PRA. Freedom Found. v. Gregoire, 178 Wn.2d 686, 310 P.3d 1252 (2013). In practice, the governor can waive this executive privilege
Since every individual state officer constitutes a "public body" under the Freedom of Information Act (cf. Daily Gazette v. Withrow, 177 W. Va. 110, 350 S.E.2d 738 (1986)), the records of the executives themselves (governor, mayor, other chief executive) are subject to the act so long as they "contain information relating to the public's business." The FOIA makes no other distinctions based upon the functions of a public agency.
Where a document involves "personal" conduct in addition to "official" conduct of the public body, it is possible that the "invasion of privacy" exemption set forth in W. Va. Code § 29B-1-4(2) may apply. If that exemption applies, a reviewing court would use a balancing test to determine whether, and in what circumstances, such information may be disclosed. See, Daily Gazette v. Withrow, 177 W. Va. 110, 166; 350 S.E.2d 738, 744 (1986), Child Protection Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541 (W. Va.1986); Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799, 809-12 (1985).