1. What kinds of records are covered?
The Alabama Public Records Law does not define "public writing," which are the operative words in the Law. A statute in a different section of the Alabama Code purports to define the term "public records" as including:
[A]ll written, typed or printed books, papers, letters, documents and maps made or received in pursuance of law by the public officers of the state, counties, municipalities and other subdivisions of government in the transactions of public business and shall also include any record authorized to be made by any law of this state belonging or pertaining to any court of record or any other public record authorized by law or any paper, pleading, exhibit or other writing filed with, in or by any such court, office or officer.
Ala. Code § 41-13-1 (2000) (emphasis added). The definition of "public records" in section 41-13-1 is limited by its terms, however, to the article in which the definition appears.
In Stone v. Consolidated Publishing Co., 404 So. 2d 678, 680-81 (Ala. 1981), the Supreme Court of Alabama held that a "public writing" within the meaning of Alabama's Public Records Law includes those documents that are within the definition of "public record" in section 41-13-1, but also includes any such "record as is reasonably necessary to record the business and activities required to be done or carried on by a public officer so that the status and condition of such business and activities can be known by our citizens." Stone, 404 So. 2d at 681 (emphasis in original).
The attorney general has opined that draft administrative rules and legislation and internal and external correspondence from the Department of Revenue regarding possible actions of the Department are not subject to disclosure. Ala. Op. Att’y Gen. 36 (Jun. 20, 2017). However, the Alabama Supreme Court rejected this opinion and found drafts can be public records in Health Care Authority for Baptist Health v. Central Alabama Radiation Oncology, LLC, 292 So.3d 623 (Ala. June 28, 2019). The Attorney General has since opined that while the court’s statements regarding “draft” records in Health Care Authority are dicta, draft minutes distributed at a public meeting are public records. Ala. Att’y Gen. Op. 2020-039.
The Alabama Public Records Law has been held to require disclosure of documents such as the following:
a. Actuarial tables used to calculate teacher retirement benefits, Walsh v. Barnes, 541 So. 2d 34 (Ala. Civ. App. 1989).
b. Arrest reports, Birmingham News Co. v. Deutcsh, CV 85-504-132 JDC (Cir. Ct. Jefferson Cnty., Ala., Equity Div., Aug. 19, 1986).
c. Minutes, Int'l Ass'n of Firefighters v. City of Sylacauga, 436 F. Supp. 482 (N.D. Ala. 1977).
d. Municipal internal audit reports, Bedingfield v. Birmingham News Co., 595 So. 2d 1379 (Ala. 1992).
e. Petitions, State ex rel. Kernells v. Ezell, 291 Ala. 440, 282 So. 2d 266 (1973).
f. Preliminary report prepared at the request of a state university concerning the alleged misconduct of one of its employees, Advertiser Co. v. Auburn Univ., 17 Media L. Rep. (BNA) 1907 (Cir. Ct. Lee Cnty., Ala., Mar. 29, 1990), aff'd, 579 So. 2d 645 (Ala. Civ. App. 1991) (denial of attorneys' fee was only issue on appeal).
g. Resumes and employment applications, Chambers v. Birmingham News Co., 552 So. 2d 854 (Ala. 1989).
h. State court records, Holland v. Eads, 614 So. 2d 1012, 1015 (Ala. 1993).
i. State vehicle license tag records, Birmingham News Co. v. Hobbie, 12 Media L. Rep. (BNA) 1687 (Cir. Ct. Montgomery Cnty., Ala., Dec. 20, 1985).
j. Well-bound books containing jail dockets, Holcombe v. State ex rel. Chandler, 240 Ala. 590, 200 So. 739 (1941).
The law provides access to all records that are developed or received by a public agency, or by a private contractor for a public agency, and that are preserved for their informational value or as evidence of the organization or operation of the public agency, but does not include proprietary software programs. AS 40.25.220(3). The regulations governing access to records maintained by state agencies further elaborates upon this by providing coverage for any record developed or received under law or in connection with the transaction of official business by any agency and preserved as evidence of the organization, function, policies, decisions, procedures, operations or other activities of the agency or because of the informational value in them. It also includes staff manuals and instructions to staff that directly or indirectly affect the public. In McLeod v. Parnell, 286 P.3d 509, 515 (Alaska 2012), the Alaska Supreme Court interpreted the PRA’s definition of “public record” to include state agency records preserved or appropriate for preservation under the state’s Records Management Act (AS 41.21.010-.150). The McLeod case arose from requests for emails of then-Governor Sarah Palin relating to state business sent or received using private e-mail accounts. The Court recognized that “not every record a state employee creates, and certainly not every state employee email, is necessarily appropriate for preservation under the Records Management Act.” Id. at 515. But the Court agreed that the plaintiff requester’s interpretation was “necessary to avoid an inconsistency within the Records Management Act’s definition of ‘records,” under which a document appropriate for preservation could be a record—thereby requiring its preservation—but not a ‘public record’ under the Public Records Act. The plaintiff had argued that adopting a literal interpretation of the PRA definition that defined a “public records” as records that “are preserved” would lead to “an absurd result because ‘it grants “elected and appointed official” authority to … simply, and quite privately, decide not to “preserve” a record that, for whatever reason—including avoiding political embarrassment or because the record is evidence of mis or malfeasance—they do not want the public to see.” Id. at 514.
As indicated above, the Arizona Public Records Law applies to all documents in the custody of public officers, who are obliged “to make and maintain records reasonably necessary to provide knowledge of all activities they undertake in the furtherance of their duties.” Carlson, 141 Ariz. at 490, 687 P.2d at 1245. But “the mere fact that a writing is in the possession of a public officer or public agency does not make it a public record.” Salt River Pima-Maricopa Indian Cmty. v. Rogers, 168 Ariz. 531, 538, 815 P.2d 900, 907 (1991). Rather, a public officer must generate or use a record in a capacity related to his official duties for that record to be a “public record.” Id. Therefore, “only those documents having a ‘substantial nexus’ with a government agency’s activities qualify as public records.” Griffis v. Pinal Cty., 215 Ariz. 1, 4, 156 P.3d 418, 421 (2007).
All records “required by law to be kept or otherwise kept and that constitute a record of the performance or lack of performance of official functions” are public records. Ark. Code Ann. § 25-19-103(5)(A). Opinions issued by an agency that are not required by statute to be kept as records can constitute records “otherwise kept” and be subject to disclosure. See Ryan & Co. AR, Inc. v. Weiss, 371 Ark. 43, 263 S.W.3d 489 (2007) (gross receipt tax opinions issued by Department of Finance & Administration subject to disclosure with redaction of identifying information). Records “maintained in public offices or by public employees within the scope of their employment” are presumed to be public records. Id. In Orsini v. Beck, No. 98-1011, 2000 WL 426568 (Ark. 2000), the Supreme Court held that law library logs kept by a Department of Correction facility, which were “maintained by the prison to monitor the use of the library,” were presumed to be public records under Section 25-19-103(5)(A). See also Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989) (ballots recording individual votes of members of governing body “obviously constitute a record of the performance or lack of performance of official functions”), overruled on other grounds by Harris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006); Ark. Op. Att’y Gen. Nos. 97-244 (customer-specific records of municipal water system are public records), 97-406 (recordings of inmate telephone calls, which are routinely taped by prison officials, are public records within the meaning of the FOIA), 93-002 (document “proposing a course of action” by the action is within statutory definition).
(1) The FOIA covers both records originated by an agency and those received by the agency from third parties. Arkansas Dep’t of Finance & Admin. v. Pharmacy Associates Inc., 333 Ark. 451, 970 S.W.2d 217 (1998); Ark. Op. Att’y Gen. Nos. 2000-220, 97-091, 87-415, 85-100. See also Byrne v. Eagle, 319 Ark. 587, 892 S.W.2d 487 (1995); Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986); Arkansas Gazette Co. v. Southern State College, 273 Ark. 248, 620 S.W.2d 258 (1981), app. dism’d, 455 U.S. 931 (1982). Under a 1997 amendment to the FOIA, a settlement agreement entered into by a state agency at the conclusion of an investigation in pursuit of civil penalties “shall be deemed a public document” for purposes of the act. Ark. Code Ann. § 25-19-105(h). Exception is made for settlement agreements “involving any state tax covered by the Arkansas Tax Procedure Act, § 26-18-101 et seq.” Id.
(2) Under a 2001 amendment, “software acquired by purchase, lease, or license” is expressly excluded from the FOIA’s definition of “public record.” Ark. Code Ann. § 25-19-103(5)(B) (added by Act 1653 of 2001). Even before this amendment, it was doubtful that software fell within the definition, which provides that a record must reflect “the performance or lack of performance of official functions.” Id. § 25-19-103(5)(A). Moreover, if software had been considered a public record, it would most likely have been covered by the FOIA’s exemption for records which, if disclosed, “would give advantage to competitors.” Id. § 25-19-105(b)(9)(A).
(3) A record is subject to the act if it is in the physical possession or administrative control of an agency. See Swaney v. Tilford, 320 Ark. 652, 898 S.W.2d 462 (1995); City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990). When a private entity performs work for a public entity, the public entity cannot “hand off” its records to the private entity in an attempt to circumvent the FOIA. Nabholz Construction Corp. v. Contractors for Public Protection Ass’n, 371 Ark. 411, 266 S.W.3d 689 (2007).
(a) With respect to records physically located at an agency, the phrase “performance or lack of performance of official functions” limits the act’s reach, as does the “scope of employment” language. These terms suggest that personal notes and records of public employees are not subject to disclosure. Ark. Op. Att’y Gen. No. 91-374. See also Ark. Op. Att’y Gen. Nos. 2005-095 (personal e-mail created on public computer during working hours may be shielded from disclosure if shown to be personal in nature), 97-145 (records of faculty senate at state university are not public records unless the senate is “part of the official policy development process” at the institution). Records must have a “substantial nexus” with the government’s activities to classify as public records subject to FOIA. Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718, opinion after remand, 371 Ark. 217, 264 S.W.3d 465 (2007) (requiring trial court to conduct an in camera review of all e-mails of a county employee to determine if e-mails were public records under the FOIA).
(b) Because the act applies to records over which the agency has administrative control or constructive possession, the agency is obligated to acquire such records in response to an FOIA request. Costs incurred in obtaining the records must be borne by the agency, not the requester. Fox v. Perroni, 358 Ark. 251, 188 S.W.3d 881 (2004) (employee’s personal check, used to pay public expense, in possession of private bank); Swaney v. Tilford, supra.
(c) The fact that a public record is maintained outside the official’s office does not exempt it from the FOIA. Ark. Op. Att’y Gen. No. 2000-220 (constituent’s letter to an alderman, sent to the latter’s home and seeking some official action, is a public record).
The CPRA defines "writing" as "any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds or symbols, or combination thereof, and any record thereby created, regardless of the manner in which the record has been stored." Cal. Gov't Code § 6252(g). The format of information is generally not determinative of its public record status. See Sierra Club v. Superior Court, 57 Cal. 4th 157, 165, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013). For example, in Commission on Peace Officer Standards and Training v. Superior Court, 42 Cal. 4th 278, 288 n.3, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007), the California Supreme Court stated that information stored in a computer database containing peace officer names, employing agency and employment dates qualified as a “writing” because “that term is defined broadly to include every ‘means of recording upon any tangible thing any form of communication or representation . . . and any record thereby created, regardless of the manner in which the record has been stored.’” (quoting Gov. Code § 6252(g)).
The CPRA applies to records an agency is legally required to maintain and also to those maintained at the agencies' own discretion and convenience unless a statute specifically provides otherwise. See, e.g., Statewide Homeowners, Inc. v. Williams, 30 Cal. App. 3d 567, 570-71, 106 Cal. Rptr. 479 (1973) (by statute county assessor only required to make accessible those records legally required to be maintained). It also applies to records relating to the public’s business prepared, owned or used by an agency even if the agency does not maintain the records. Cal. Gov't Code § 6252(e); see also City of San Jose, 2 Cal. 5th at 615, 623 (holding emails sent to or from public employees private email accounts are public records under the CPRA). The record, however, must be "identifiable" before an agency is required to make it available for inspection or copying. Cal. Gov't Code § 6253(b). The test for whether a record is "identifiable" is not the volume of records requested but whether they can be located with reasonable effort. State Bd. of Equalization v. Superior Court, 10 Cal. App. 4th 1177, 1186, 13 Cal. Rptr. 2d 342 (1992) (where court explained that CPRA's identification requirement may not be used by agency to withhold records).
As explained by the California Supreme Court, “reasonable efforts do not require that agencies undertake extraordinarily extensive or intrusive searches;” rather, “the scope of an agency’s search for public records “need only be reasonably calculated to locate responsive records.” City of San Jose, 2 Cal. 5th at 627 (citations omitted).
Computer software developed by a state or local agency is not a public record. Cal. Gov't Code § 6254.9(a). But see Sierra Club v. Superior Court, 57 Cal. 4th 157, 175, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013) (narrowly defining computer software exception as not including mapping data in GIS file format).
"Electronic mail" is defined by Colo. Rev. Stat. § 24-72-202(1.2) as an electronic message that is transmitted between two or more computers or electronic terminals, whether or not the message is converted to hard copy format after receipt and whether or not the message is viewed upon transmission or stored for later retrieval. "Electronic mail" includes electronic messages that are transmitted through a local, regional, or global computer network. However, electronic mail whose content does not bear a demonstrable connection to discharge of public functions or to the receipt or expenditure of public funds is not a public record. Denver Publ'g Co. v. Board of Cty. Comm'rs for Arapahoe Cty., 121 P.3d 190 (Colo. 2005).
FOIA applies to all public records as defined in Conn. Gen. Stat. §1-200(5): "'Public records or files' means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostatted, photographed or recorded by any other method."
In Windham v. FOIC, 48 Conn. App. 522, 711 A.2d 738, cert. denied, 245 Conn. 913, 718 A.2d 18 (1998), the Appellate Court held that affidavits by town employees that the town attorney, a private attorney, prepared for an FOIC hearing but which were not admitted into evidence were not public records under Conn. Gen. Stat. §1-200(5).
The Electronic and Voicemail Management and Retention Guide For State and Municipal Government Employees issued by the Office of the Public Records Administrator and State Archives states that e-mail messages and voicemail messages sent or received in the conduct of public business are public records.
Some Superior Court decisions have considered whether a public agency is required to do "research" regarding public records as part of its FOIA obligations. In Book v. FOIC, Nos. CV 96-0566436, CV 97-0567176, 1998 WL 46439 (Conn. Super. Jan. 28, 1998), the Superior Court held that research was not required. In Wildin v. FOIC, No. CV 97-0572290, 1998 WL 345539 (Conn. Super. June 17, 1998), aff'd, 56 Conn. App. 683, 746 A.2d 175 (2000), the Superior Court accepted the parties' position that FOIA did not require a public agency to do research, but then held that retrieving a large number of documents from a large number of files did not constitute research because the agency did not have to scrutinize the contents of each document to determine if it was responsive to the request.
Lesson plans of public schools are not public records because they are not records prepared, owned, used, received, or retained by schools or other public agencies. Edelman v. Superintendent of Schools, Do. #FIC 99-408 (Mar. 22, 2000); see also Fromer v. FOIC, 90 Conn. App. 101, 875 A.2d 590 (2005) (holding that PowerPoint presentations created by instructors at a public university are not public records because the instructors, who maintain control over the files, are not themselves public agencies).
All "public records" are subject to disclosure under the Act. 29 Del. C. § 10002(g). "Public record" is defined as "information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest, or in any way related to public purposes, regardless of the physical form or characteristic by which such information is stored, recorded or reproduced." 29 Del. C. § 10002(g). ("Public business" means any matter over which the public body has supervision, control, jurisdiction or advisory power. 29 Del. C. § 10002(e)).
Personal notes, however, have not been subject to public access under FOIA. Del. Op. Att'y Gen., No. 02-ib34 (Dec. 21, 2002); Del. Op. Att'y Gen., No. 02-ib30 (Dec. 2, 2002).
District of Columbia
The D.C. Act applies to all "public records." D.C. Code Ann. § 2-532. Public records include "all books, papers, maps, photographs, cards, tapes, recordings or other documentary materials regardless of physical form or characteristics prepared, owned or used in the possession of, or retained by a public body." D.C. Code Ann. § 2-502(18); id. § 2-539 (adopting the definition of public record provided in § 2-502). Certain records are specifically required to be disclosed, see id. § 2-536, and some are subject to discretionary statutory exemptions, see id. § 2-534(a). Like the federal courts, at least one published opinion from a D.C. court has adopted a "control standard" instead of a "possession standard" to determine the definition of "agency records" when the records were not created by an agency. Belth v. Dep't of Consumer & Regulatory Affairs, 115 Daily Washington Legal Rptr. 2281 (D.C. Super. Ct. 1987) (holding that records created by the National Association of Insurance Commissioners and used by the Department of Consumer & Regulatory Affairs were covered by the D.C. Act because the documents were in the agency's physical and legal control, and used by the agency to regulate insurers); see also Kane v. District of Columbia, 180 A.3d 1073, 1078 (D.C. 2018) (noting that because certain requested documents “always have been in the District’s possession and under its control,” the District was a proper defendant in a suit for FOIA violations concerning these documents). The D.C. Act also provides that a public body must make available records produced or collected pursuant to a contract with a private contractor to perform a public function. D.C. Code Ann. § 2-532(a-3).
Only “[p]ublic records” are covered by Chapter 119, but Section 119.011(12) broadly defines public records as:
all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.
The Florida Supreme Court, in Shevin v. Byron, Harless, Schaffer, Reid & Associates Inc., construed the foregoing definition of public records to include “any material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type.” 379 So. 2d 633, 640 (1980); see also Booksmart Enters. Inc. v. Barnes & Noble Coll. Bookstores, Inc., 718 So. 2d 227 (Fla. 3d DCA 1998) (book forms supplied by on-campus bookstore and completed by university instructors for university business purposes are public records); Hill v. Prudential Ins. Co. of Am., 701 So. 2d 1218 (Fla. 1st DCA 1997) (documents related to state conducted investigation of insurance statute violations are public records). To be contrasted with “public records” are those materials prepared as drafts or notes which “constitute mere precursors of governmental ‘records’ and are not, in themselves, intended as final evidence of the knowledge to be recorded.” Shevin, 379 So. 2d at 640. As examples of those materials which would not be public records, the Shevin court referred to rough drafts, notes to be used in preparing some other documentary material, and tapes or notes taken by a secretary as dictation. Thus, under the particular facts presented in the case, the court determined that the handwritten notes of a consultant’s impressions made during or shortly after interviews were not public records.
Shevin did not, however, create a blanket exception to the public records law for any document labeled as a “draft” or “notes” or otherwise designated as other than a final copy. The court noted:
Inter-office memoranda and intra-office memoranda communicating information from one public employee to another or merely prepared for filing, even though not a part of an agency’s later, formal public product, would nonetheless constitute public records inasmuch as they supply the final evidence of knowledge obtained in connection with the transaction of official business.
Id.; see also Nicolai v. Baldwin, 715 So. 2d 1161 (Fla. 5th DCA 1998) (internal auditor’s report draft delivered to County Administrator does not subject the report to disclosure as the draft was not a final report and it was not delivered to a “unit of government”); Times Publ’g Co. v. City of St. Petersburg, 558 So. 2d 487 (Fla. 2d DCA 1990); Roberts v. Butterworth, 668 So. 2d 580 (Fla. 1996) (attorney’s “handwritten notes were either not public records or were exempt”); Coleman v. Austin, 521 So. 2d 247 (Fla. 1st DCA 1988) (order restricting inspection of state attorney’s file was overbroad because it prohibited disclosure of interoffice memoranda which communicated information between public employees; preliminary notes prepared by agency attorneys and intended for attorney’s own personal use not public records).
Thus, if the purpose of the document is to perpetuate, communicate, or formalize knowledge, it is a public record notwithstanding that it is not in final form or the ultimate product of the public official or agency. See, e.g., Miami Herald Media Co. v. Sarnoff, 971 So. 2d 915, 917-18 (Fla. 3d DCA 2007) (holding that memorandum created by city commissioner was public record subject to disclosure because commissioner was an agency for purposes of Chapter 119, the memo discussed a meeting that the commissioner attended in his official capacity, the meeting pertained to official city business, it perpetuated his final knowledge of the meeting and contained factual information about the meeting as opposed to mental impressions); Orange Cnty. v. Fla. Land Co., 450 So. 2d 341 (Fla. 5th DCA 1984) (draft notes prepared by public agency’s attorneys for their own personal use are not public records; trial preparation materials in the nature of inter- and intra-office memoranda communicating information from one public employee to another or prepared for filing, even though not part of the agency’s formal public conduct, are public records subject to disclosure); cf. Fla. Stat. § 119.071(1)(d) (2020) (containing exemption for attorney work product); Times Publ’g Co. v. City of Clearwater, 830 So. 2d 844 (Fla. 2d DCA 2002) (personal e-mail sent from or received by city employees using government owned computers fall outside the definition of public record); State v. Kokal, 562 So. 2d 324 (Fla. 1990) (not all trial preparation materials of agency attorneys are public records; state attorney not required to disclose certain trial preparation documents described as preliminary guides intended to aid attorneys); Hillsborough Cnty. Aviation Auth. v. Azzarelli Constr. Co., 436 So. 2d 153 (Fla. 2d DCA 1983) (rejection of claim that when a public body is engaged in litigation, the pleadings and evidence presented in court constitute the formal agency statement on the subject matter and all else is merely preliminary or preparatory and therefore not a Chapter 119 public record); Bay Cnty. Sch. Bd. v. Pub. Emps. Relations Comm’n, 382 So. 2d 747 (Fla. 1st DCA 1980) (school board budget work sheets are materials prepared in connection with official agency business and tend to perpetuate, communicate or formalize knowledge of some type and thus are public records); Justice Coal. v. First Dist. Ct. of App. Nominating Comm’n, 823 So. 2d 185 (Fla. 1st DCA 2002) (notes created by members of Nominating Commission while interviewing judicial candidates were not public records); State ex rel. Copeland v. Cartwright, 38 Fla. Supp. 6 (Fla. 17th Jud. Cir. 1971), aff’d, 282 So. 2d 45 (Fla. 4th DCA 1973) (site plan review prepared for a public building project, even though it was a preliminary working paper, must be open for public inspection). Cf. State v. Buenoano, 707 So. 2d 714 (Fla. 1998) (to prevent the chill of sharing information between the federal and state governments, federal records, designated by the federal government to not be public records and mistakenly sent by State Attorney to trial court, are not public records). All records received by a public agency are open to public inspection, regardless of the expectations of the source of the material, unless exempted by statute or constitutional provisions. See Gadd v. News-Press Publ’g Co., 412 So. 2d 894 (Fla. 2d DCA 1982) (records of a utilization review committee of a county hospital are not exempt from Chapter 119, although the information may come from sources who expect or have been promised confidentiality); Mills v. Doyle, 407 So. 2d 348 (Fla. 4th DCA 1981) (disclosure of grievance records of a public school teacher could not be avoided notwithstanding a provision of a bargaining agreement with the teachers’ association mandating that such matter be kept confidential); Browning v. Walton, 351 So. 2d 380 (Fla. 4th DCA 1977) (city could not refuse disclosure of employee names on basis of a “self-imposed” exemption).
Section 92F-11 states the general rule that all government records are open to public inspection unless access is restricted or closed by law. A "government record" is broadly defined in Section 92F-3 as "information maintained by an agency in written, auditory, visual, electronic, or other physical form." The UIPA applies to existing government records and cannot be used to compel agencies to create requested records. See No Duty to Search for Records that do not Exist, OIP Op. Ltr. No. F16-03 (May 6, 2016) (agency did not need to search for responsive records when it knew, based on information from knowledgeable employees, that no such records existed and therefore search would have been fruitless); Transcript and Diploma Denied, OIP Op. Ltr. No. F15-03 (June 2, 2015) (UIPA did not require university to provide requestor with certified copy of transcript because such a request requires the creation of new, original document and not simply a copy of an existing record); Requests for Government Records Which Do Not Exist, OIP Op. Ltr. No. 97-8 (Sept. 9, 1997) (UIPA does not apply to oral conversations unless there is a physical record of them). While all government records are subject to the general rule favoring disclosure, Section 92F-12 sets forth a non-exhaustive list of sixteen categories of records that must be disclosed. Haw. Rev. Stat. § 92F-12(a)(1)-(16); Conf. Comm. Rep. No. 235, 14th Leg., Reg. Sess. (1988), reprinted in 1988 Haw. Sen. J. 689, 690 (listing of record categories requiring affirmative disclosure is not exhaustive). These include:
(1) Rules of procedure, substantive rules of general applicability, statements of general policy, and interpretations of general applicability adopted by the agency;
(2) Final opinions, including concurring and dissenting opinions, as well as orders made in the adjudication of cases;
(3) Government purchasing information, including all bid results, except to the extent prohibited by Section 92F-13;
(4) Pardons and commutations, as well as directory information concerning an individual's presence at any correctional facility;
(5) Land ownership, transfer, and lien records, including real property tax information and leases of state land;
(6) Results of environmental tests;
(7) Minutes of all agency meetings required by law to be public;
(8) Name, address, and occupation of any person borrowing funds from a state or county loan program, and the amount, purpose, and current status of the loan;
(9) Certified payroll record on public works contracts except that Social Security numbers of individuals shall not be disclosed;
(10) Regarding contract hires and consultants employed by agencies:
(A) The contract itself, the amount of compensation;
(B) The duration of the contract; and
(C) The objectives of the contract,
except social security numbers and home address;
(11) Building permit information within the control of the agency;
(12)Water service consumption data maintained by boards of water supply;
(13) Rosters of persons holding licenses or permits granted by an agency which may include name, business address, type of license held, and status of the license;
(14) The name, compensation (but only salary range for employees covered by or included in chapter 76, and sections 302A-602 to 302A-639 and 302A-701, or bargaining unit (8)), job title, business address, business telephone number, job description, education and training background, previous work experience, dates of first and last employment, position number, type of appointment, service computation date, occupational group or class code, bargaining unit code, employing agency name and code, department, division, branch, office, section, unit, and island of employment of present or former officers or employees of the agency, provided that this provision shall not require the creation of a roster of employees; and provided further that this paragraph shall not apply to information regarding present or former employees involved in an undercover capacity in a law enforcement agency;
(15) Information collected and maintained for the purpose of making information available to the general public; and
(16) Information contained in or compiled from a transcript, minutes, report, or summary of a proceeding open to the public.
Haw. Rev. Stat. § 92F-12(a)(1)-(16).
The UIPA does not alter the effect of other statutes mandating confidentiality for certain records. See id. § 92F-13.
Public records include but are not limited to “any writing containing information relating to the conduct or administration of the public's business prepared, owned, used or retained by any state agency, independent public body corporate and politic or local agency regardless of physical form or characteristics.” Idaho Code § 74-101(13). A “writing” is defined to include but not be limited to “handwriting, typewriting, printing, photostating, photographing and every means of recording, including letters, words, pictures, sounds or symbols or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums or other documents.” Idaho Code § 74-101(16).
Public records are broadly defined as "all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information and all other documentary materials pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body." 5 ILCS 140/2(c) (emphasis added). “A public record that is not in the possession of a public body but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the public body, and that directly relates to the governmental function and is not otherwise exempt under this Act, shall be considered a public record of the public body, for purposes of this Act.” See 5 ILCS 140/7(2).
The Supreme Court has interpreted “directly relates” in light of FOIA’s overall policy and the specific policy and purpose for Section 7(2). Rushton v. Dep’t of Corr., 2019 IL 124552, ¶ 28 (unreleased).
A public record is “any writing, paper, report, study, map, photograph, book, card, tape recording, or other material that is created, received, retained, maintained, or filed by or with a public agency . . . .” Ind. Code § 5-14-3-2(r). This broad definition used to be even broader, having extended to all material “created, received, retained, maintained, used, or filed by or with a public agency.” Ind. Code § 5-14-3-2 (2001) (emphasis added). In 2003, however, Indiana Public Law 261-2003 § 5, dropped the word “used.” The law does, however, exempt confidential records from disclosure requirements, Ind. Code Section 5-14-3-4(a), and also gives public agencies the discretion to deny access to enumerated categories of records, Ind. Code Section 5-14-3-4(b).
As a general rule, the records which are subject to the statute are those records which are "public." Iowa Code § 22.2(1) ("Every person shall have the right to examine and copy public records") (emphasis added).
Public records include: "[A]ll records, documents, tape, or other information, stored or preserved in any medium, of or belonging to this state or any county, city, township, school corporation, political subdivision, nonprofit corporation whose facilities or indebtedness are supported in whole or in part with property tax revenue and which is licensed to conduct pari-mutuel wagering pursuant to chapter 99D, or tax-supported district in this state, or any branch, department, board, bureau, commission, council, or committee of any of the foregoing." Iowa Code § 22.1(3)(a) (2017).
In 2005, the Iowa legislature expanded the definition of public records by adding: "all records relating to the investment of public funds including but not limited to investment policies, instructions, trading orders, or contracts, whether in the custody of the public body responsible for the public funds or a fiduciary or other third party." Iowa Code § 22.1(3)(b) (2017). See also Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 45 (Iowa 1999) (defining "private" in the absence of statutory definition).
Exceptions to this general rule are listed in Iowa Code 22.7, which contains categories of records that shall be kept confidential. When it is unclear whether a record under section 22.7(11) is subject to a privacy exemption, the courts will apply a fact specific balancing test. This four-part test weighs individual privacy interests against the public’s need to know by analyzing: (1) the public purpose of the party requesting the information; (2) whether the purpose could be accomplished without the disclosure of personal information; (3) the scope of the request; (4) whether alternative sources for obtaining the information exist; and (5) the gravity of the invasion of personal privacy.” Shannon v. Koehler, No. C 08-4059, 2010 WL 3943661, at *3 (N.D. Iowa Oct. 6, 2010) (citing DeLaMater v. Marion Civil Serv. Comm'n, 554 N.W.2d 875, 879 (Iowa 1996).
In Kansas, “public record” means “any recorded information, regardless of form, characteristics or location, which is made, maintained or kept by or is in the possession of” either a public agency or “any officer or employee of a public agency pursuant to the officer's or employee's official duties and which is related to the functions, activities, programs or operations of any public agency.” K.S.A. 45-217(g)(1)(A) and (B). This includes settlement agreements on cases of the Kansas Public Employees Retirement System (KPERS) and the investments of money in the fund as public records. K.S.A. 45-217(g)(2). Settlement agreements resolving litigation involving public agencies “meet the definition of a public record, and [are] subject to the KORA. There is no exemption provision allowing the settlement agreement to be confidential under the KORA.” Kan. Att’y Gen. Op. 1993-55. Moreover, “a contractual term attempting to close the conditions of the settlement is void as against public policy.” Id.; see also Kan. Att’y Gen. Op. 91-116. However, KPERS is not obligated to disclose a member's name and address. Kan. Att’y Gen. Op. 1994-57.
The definition of "public records" covers virtually every record, paper or electronic or otherwise, owned or controlled by a public agency. If an entity is considered a "public agency" solely because it "derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds," Ky. Rev. Stat. 61.870(1)(h), then only the records that relate to the operations funded by the government are considered "public" records. The statute defines “[p]ublic record” as:
[A]ll books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs or operations funded by state or local authority.
Ky. Rev. Stat. 61.870(2).
The records covered by the act include all records "having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of [the] state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of [the] state, are 'public records'. . . ." La. Rev. Stat. Ann. § 44:1. "The definition is virtually all inclusive. . . . It covers virtually every kind of record and every kind of written, printed or reproduced materials used in the conduct, transaction or performance of any duty or function of a public office. . . ." Caple v. Brown, 323 So. 2d 217, 220 (La. App. 2d Cir. 1975); Op. Att'y Gen. 87-301 (computer records of property sales and assessment rolls are covered by the Public Records Act). But see the decision in Angelico v. Cannizzaro, 543 So. 2d 1064 (La. App. 4th Cir. 1989), holding that a special grand jury report critical of the district attorney's handling of a sales tax irregularity investigation was not a public record.
In Shane v. Parish of Jefferson, 209 So.3d 726 (La. 2015), e-mails about private political matters, that were located on government servers, became public records when they became part of a government-ordered audit of the agency that had the records because the records were “used” in the audit. If not for the audit, the records may not have been held to be “public records.”
Except as otherwise provided, the PIA requires a custodian to "permit a person or governmental unit to inspect any public record at any reasonable time." § 4-201(a)(1). Hammen v. Baltimore County Police Department, 373 Md. 440, 455, 818 A.2d 1125, 1134 (2003); Police Patrol Security Systems Inc., v. Prince George's County, 378 Md. 702, 714 838 A.2d 1191, 1198 (2003). A public record is defined as "the original or any copy of any documentary material that (i) is made by the unit or instrumentality of the State or of a political subdivision or received by the unit or instrumentality in connection with the transaction of public business; and (ii) is in any form …" § 4-101(j). The Maryland Court of Appeals has recognized this definition of "public record" to be a broad one. Caffrey v. Dep't of Liquor Control for Montgomery County, 370 Md. 272, 279, 805 A.2d 268, 272 (2002). A public record is defined to include "a document that lists the salary of an employee of a unit or instrumentality of the state government or of a political subdivision." § 10-611(g)(2); Moberly v. Herboldsheimer, 276 Md. 211, 345 A.2d 855 (1975), University System of Maryland, et al. v. The Baltimore Sun Company, 381 Md. 79, 100, 847 A.2d 427, 439 (2004) (finding that an employment contract of a public employee evidencing how a publicly funded salary is earned qualified as a public record). In addition, a database set up by a private vendor for use by a public agency for risk management purposes is a "public record." Prince George's County v. The Washington Post Co., 149 Md. App. 289, 335, 815 A.2d 859 (2003); see also PIA Manual, at 1-5.
In determining whether documents are public records, the following criteria are considered: whether the documents were generated within the agency; whether the documents are contained in agency files; whether the documents are under the agency's control; and whether the documents are used for an agency purpose. Bureau of Nat'l Affairs Inc. v. United States Dept. of Justice, 742 F.2d 1484 (D.C. Cir. 1984) (agency employee's telephone message slips and appointment calendar were not agency records under FOIA); but see Office of the Governor v. Washington Post Co., 360 Md. 520, 759 A.2d 249 (2000) (noting that meaning of "agency records" under FOIA is not applicable under the PIA).
A public record is not subject to the PIA if it is: privileged or confidential by law; otherwise prohibited from disclosure by state or federal law, court rule or order; or exempted from disclosure by the PIA. § 4-301(a), 4-304 to 4-327; see also § 4-328 to 4-340 for types of information exempted from disclosure under the PIA.
Federal case law interpreting the FOIA provides persuasive authority in interpreting Maryland's PIA. Faulk v. State's Attorney, 299 Md. 493, 506, 474 A.2d 880, 887 (1984). Thus, it should be noted that under the FOIA, the mere physical location of papers does not confer public record status. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) (Henry Kissinger's notes of telephone conversations made in the Office of the President did not constitute agency records under the FOIA simply because he brought them with him to the state Department); see also 80 Op. Att'y Gen. 311, 312 (1995) (records that are not in the possession of the agency, but that may be required to be maintained by the agency, are not public records). Nor does the PIA create an obligation for an agency to create records to satisfy a PIA request, or to reprogram its computers or aggregate computerized data files so as to effectively create new records.
All records in the agency's custody when the request is received, whether or not required to be kept. G.L. c. 4, § 7, cl. 26; 950 CMR 32.03; see also 32 Op. Att’y Gen. 157, 165 (May 18, 1977) (custodian not obliged to create a record in response to request for information). “Public records are broadly defined and include all documentary materials made or received by an officer or employee of any corporation or public entity of the Commonwealth,” unless exempted. Hull Mun. Lighting Plant v. Mass. Mun. Wholesale Electric Co., 414 Mass. 609, 614, 609 N.E.2d 460, 463 (1993).
“A custodian may withhold exempt information within a record but must disclose any public portions. … Segregation may be accomplished by blocking out exempt information on a copy of the record, or through electronic segregation prior to disclosure.” Supervisor of Public Records (SPR) Bulletin No. 4-96, Fees for Access and Copying of Computer Records (June 7, 1996).
Occasionally the argument will be made that documents possessed by a government agency were created in a private, individual capacity, and therefore are not public records. Where the documents in question relate to the business of the agency, however, the argument is likely to be an uphill battle at best. See, e.g., Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587 (2005) (requiring sheriff to provide list of reserve deputies he appointed, despite his assertion that the reserves had no substantial public function).
A records custodian may, but is not required to, create a record or respond to a prospective request. Guide to Mass. Pub. Recs. Law at 8 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf.
"Public records" which must be disclosed are defined in Mich. Comp. Laws Ann. § 15.232(i) as follows: "'Public record' means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. Public record does not include computer software." The FOIA separates public records into two classes: (a) those which are exempt from disclosure under Mich. Comp. Laws Ann. § 15.243 and (b) "all public records not exempt from disclosure under [Mich. Comp. Laws Ann. § 15.243] and which are subject to disclosure . . . ." Id. Recordings that are created by third parties and received by a government body are “public records” and are subject to disclosure. See Amberg v. City of Detroit, 497 Mich 28 (2014). But see Hopkins v. Duncan Twp., 294 Mich. App. 401 (2011) (a board member’s handwritten notes taken for personal use are not public records subject to disclosure.). But see Bisio v. City of Vill. of Clarkston, No. 335422, 2018 WL 3244117, at *6 (Mich. Ct. App. July 3, 2018), appeal granted, 933 N.W.2d 36 (Mich. 2019) (holding that the city attorney’s possession and use of records in his role as city attorney is not tantamount to the public body’s use and possession of the records in the performance of an official function).
State agencies are also required to create certain records: final orders or decisions in contested cases, promulgated rules, and "other written statements that implement or interpret laws, rules, or policy, including but not limited to guidelines, manuals, and forms with instructions, adopted or used by the agency in the discharge of its functions." Mich. Comp. Laws Ann. § 15.241 (1)(c).
The Act does not deal with "records." It deals with "data," more specifically, "government data," which are data "collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use." Minn. Stat. § 13.02, subd. 7. The Minnesota Supreme Court has held that “government data” must be capable of inspection or copying and therefore, mental impressions are not government data. Navarre v. South Washington Schools, 652 N.W.2d 9, 25 (Minn. 2002).
Records are covered if they are used, or have been used or are "prepared, possessed or retained for use in the conduct, transaction or performance of any business, transaction, work, duty or function of any public body" or are "required to be maintained by any public body." § 25-61-3(b).
Mont. Code Ann. §2-6-1002 defines a public record as “information” fixed in any medium and retrievable in usable form prepared, owned, used, or retained by any public agency relating to the transaction of official business. Again, there are several statutory impositions declaring certain records to be "private" and thus excludable from public inspection.
However, if the record is not one generated by the public body and does not relate to the function and duties of that body, it is not a "document of public bodies" referred to in the Constitution. See Becky v. Butte Silverbow District No. 1, 274 Mont. 131, 906 P.2d 193 (1995) (request for National Honor Society records).
“All public books and public records of a government entity,” which are not confidential are subject to the NPRA. “Public books" and "public records" are not defined by the NPRA. Generally, a document is a public book or public record if (1) the agency required the creation or submission and maintenance of the record; (2) the record was used to conduct or facilitate agency business; (3) the record was distributed to other offices or agencies for formal approval or reporting purposes; (4) the record documents official business action.
The Statute applies to “governmental records,” which includes “any information created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function. Without limiting the foregoing, the term "governmental records'' includes any written communication or other information, whether in paper, electronic, or other physical form, received by a quorum or majority of a public body in furtherance of its official function, whether at a meeting or outside a meeting of the body. The term "governmental records'' shall also include the term "public records.'' RSA 91-A:1-a,III. "Information'' “means knowledge, opinions, facts, or data of any kind and in whatever physical form kept or maintained, including, but not limited to, written, aural, visual, electronic, or other physical form.” RSA 91-A:1-a,IV.
“Governmental records must be made public unless they are exempted from disclosure by the Statute, see RSA 91-A:5 and 6, or by some other law.
The Statute provides for access to "notes, materials, tapes, or other sources used for compiling the minutes of [public] meetings," RSA 91-A:4, II, but these need only be kept until the minutes are approved. Brent v. Paquette, 132 N.H. 415 (1989).
Raw data collected by an agency subject to the act may not constitute a public record until it is compiled. Brent v. Paquette, 132 N.H. 415 (1989) (names and addresses of school children on separate response cards but not compiled into list were not public record). The Statute does not require public officials to retrieve and compile into one record information gathered from numerous documents, if a record of this information does not already exist. Hawkins v. N.H. Dep't of Health and Human Services, 147 N.H. 376 (2001); Brent v. Paquette, 132 N.H. 415 (1989).
Public records that contain confidential information or otherwise protected information (disclosure would constitute an invasion of privacy) are not exempt from disclosure because the information can be redacted. See Hawkins v. N.H. Dep't of Health and Human Services, 147 N.H. 376 (2001).
Note: RSA 91-A:9 makes it a misdemeanor for a person "who knowingly destroys any information with the purpose to prevent such information from being inspected or disclosed in response to a request under this chapter. RSA 641:7 makes it a misdemeanor to make false entries in public records, or to impair the "variety or availability" of records.
Records specifically held to be public records.
Minutes of meetings of public bodies. RSA 91-A:4,I.
Medicaid claims forms redacted to protect any information that would constitute an invasion of privacy. Hawkins v. N.H. Dep't of Health and Human Services, 147 N.H. 376 (2001).
Interview materials prepared by Office of the Legislative Budget Assistant in connection with preparation of audit report of state property and casualty loss program. Goode v. N.H. Office of the Legislative Budget Assistant, 148 N.H. 551 (2002).
Consensual photographs taken by police department of people stopped but not arrested. N.H. Civil Liberties Union v. City of Manchester, 149 N.H. 437 (2003).
Settlement agreements made by public bodies or their insurers. RSA 91-A:4,VI.
"Records of any payment made to an employee of any public body . . . or to the employee's agent or designee, upon the resignation, discharge, or retirement of the employee, paid in addition to regular salary and accrued vacation, sick, or other leave." RSA 91-A:4, I-a.
Minutes of nonpublic sessions of public bodies must be disclosed unless protected by the exception within the Statute. RSA 91-A:3,II; see Orford Teachers Ass'n v. Watson, 121 N.H. 118 (1981) (school board).
Salary and contract information regarding public school teachers and public employees. Rochester Sch. Bd. v. N.H. PELRB, 119 N.H. 45 (1979); Mans v. Lebanon Sch. Bd., 112 N.H. 160 (1972); salaries of public employees. Professsional Firefighters of New Hampshire v. Local Government Center, Inc., 159 N.H. 699, 703 (2010).
Construction plans for proposed town industrial park. Gallagher v. Town of Windham, 121 N.H. 156 (1981).
Names and addresses of substitute teachers. Timberlane Regional Educ. Ass'n v. Crompton, 114 N.H. 315 (1974).
Names and addresses of school children and parents if compiled into one record. Brent v. Paquette, 132 N.H. 415 (1989).
Agency budget requests and income estimates submitted to governor. Chambers v. Gregg, 135 N.H. 478 (1992).
Applications submitted by candidates to be appointed to unexpired term of county sheriff, an elective office. Lambert v. Belknap County Convention, 157 N.H. 949 (2008).
Job titles of employees. Montenegro v. City of Dover, 162 N.H. 641, 34 A.3d 717 (2011)
All New Hampshire Department of Labor records that pertain to workers’ compensation claims. Premium Research Servs. v. New Hampshire Dep't of Labor, 162 N.H. 741 (2011).
Names of retired public employees who received payments from public employee retirement plan and amounts of those payments. Union Leader Corp. v. New Hampshire Ret. Sys., 162 N.H. 673, 34 A.3d 725 (2011)
Records related to alleged wrong-doing by county attorney if the investigation is conducted by a party that does not qualify as the attorney’s employer. Reid v. New Hampshire Attorney Gen., 169 N.H. 509 (2016).
Records maintained by arresting and prosecuting agencies pertaining to an annulled arrest and the related prosecution. Grafton Cty. Attorney's Office v. Canner, 169 N.H. 319 (2016).
Records specifically held not to be public records.
Records subject to attorney-client privilege. Hampton Police Ass'n, Inc. v. Town of Hampton, 162 N.H. 7 (2011).
Records of collective bargaining sessions involving a police union. Appeal of Town of Exeter, 126 N.H. 685 (1985).
Appraisal reports of state condemnation authority. Perras v. Clements, 127 N.H. 603 (1986).
Private notes of the secretary of a meeting beyond those used for creating the minutes. Brent v. Paquette, 132 N.H. 415 (1989).
Report of investigation of complaint of harassment made against a precinct employee. Hounsell v. North Conway Water Precinct, 154 N.H. 1 (2006)(exempt from disclosure under Statute’s exemption for “[r]ecords pertaining to internal personnel practices.” RSA 91-A:5, IV).
Names of residential customers, but not business customers, who had filed voltage complaints with a public utility and whose names were redacted from public reports released by the Public Utilities Commission. Lamy v. New Hampshire Professional Utilities Com’n, 152 N.H. 106 (2005).
Records subject to the work-product doctrine. New Hampshire Right to Life v. Dir., New Hampshire Charitable Trusts Unit, 169 N.H. 95 (2016).
Trade secrets. CaremarkPCS Health, LLC v. New Hampshire Dep't of Admin. Servs., 167 N.H. 583 (2015).
Specific rights of access may apply.
Where a public body provides for access to records that is broader than the access provided by the Statute, the specific provision will apply. RSA 91-A:2, II.
All "government records" shall be subject to access unless specifically exempt from such access. "Government record" or "record" means any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof.
(See N.J.S.A. 47:1A-1.1).
Public records is given a very broad definition: "All documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained." NMSA 1978 § 14-2-6(G) (2018).
The FOIL defines “record” to mean “any information kept, held, filed, produced, or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever.” N.Y. Pub. Off. Law § 86(4) (McKinney 1988).
In applying the statutory definition, the courts have held that a document need not evince some governmental purpose to be within the scope of FOIL, as nothing in the legislative history suggests that the Legislature intended such a “content-based limitation in defining the term ‘record’ . . . . Moreover . . . permitting an agency to engage in a unilateral prescreening of those documents which it deems to be outside the scope of FOIL would be inconsistent with [the statute].” Capital Newspapers Division of Hearst Corp. v. Whalen, 69 N.Y.2d 246, 505 N.E.2d 932, 513 N.Y.S.2d 367 (1987) (holding that personal or unofficial documents intermingled with official government files being kept or held by a governmental entity are “records”).
The courts have also held that a “promise of confidentiality . . . is irrelevant to whether the requested documents fit within the Legislature’s definition of records. . . . Nor is it relevant [whether] the documents originated outside the government.” Washington Post v. Insurance Dep’t, 61 N.Y.2d 557, 463 N.E.2d 604, 475 N.Y.S.2d 263 (1984) (granting access to minutes of insurance company meetings voluntarily given in confidence to the Insurance Department); Paul Smith’s Coll. of Arts and Sciences v. Cuomo, 186 A.D.2d 888, 589 N.Y.S.2d 106 (3d Dep’t 1992); Smith v. Cty. of Rensselaer, RJI No. 41-1156-92 (Sup. Ct. Rensselaer Cty.) (itemized bills prepared or submitted by an attorney working for an agency are agency records within FOIL subject to disclosure); 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) (promises of confidentiality to teachers were invalid because the courts have repeatedly held that “as a matter of public policy the Board of Education cannot bargain away the public’s right to access public records”).
Relevance of place of origin and the location of records. A record is “any information kept or held” by an agency, and “temporary possession in another does not necessarily oust a permanent possessor of the control which would make it subject to the responsibilities imposed by FOIL.” Westchester Rockland Newspapers v. Kimball, 50 N.Y.2d 575, 581, 408 N.E.2d 904, 430 N.Y.S.2d 574 (1980) (granting access to lottery records of village volunteer fire department in possession of District Attorney). An agency that transferred records to another agency may be required to recover and furnish the records. 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); In Re Mazzone, 30 Misc.3d 981, 914 N.Y.S.2d 623 (Sup. Ct. 2011) (a single FOIL request may not be subdivided into two or more FOIL requests based on geographic region, thus creating multiple final determinations. FOIL only contemplates that a requestor will receive a single final determination). “[N]or is it relevant [whether] the documents originated outside the government.” Washington Post v. Insurance Dep’t, 61 N.Y.2d 557, 463 N.E.2d 604, 475 N.Y.S.2d 263 (1984) (granting access to minutes of insurance company meetings voluntarily given in confidence to the Insurance Department). See also Russo v. Nassau Cmty. Coll., 81 N.Y.2d 690, 623 N.Y.S.2d 15, 603 N.E.2d 294 (1993) (film and film strips used in a public college and provided by the college are “records” within FOIL); Capital Newspapers Division of Hearst Corp. v. Whalen, 69 N.Y.2d 246, 505 N.E.2d 932, 513 N.Y.S.2d 367 (1987) (granting access to the records of ex-Mayor of City of Albany when held by the agency); Montalvo v. City of New York, N.Y.L.J., October 19, 1995 (Sup. Ct. New York Cty., 1995) (“Opinions and recommendations . . . do not lose their exempt status simply because they are prepared for the agency, at its request by an outside consultant”); Kerr v. Koch, N.Y.L.J., Feb. 1, 1988 (Sup. Ct., New York Cty., 1988) (granting access to records of Mayors’ expense accounts); Cf. United Food and Commercial Workers, District Union, Local One v. City of Schenectady Industrial Development Agency, 204 A.D.2d 887, 612 N.Y.S.2d 477 (3d Dep’t 1994) (records submitted to and possessed by a private corporation and not requested to be prepared by an agency are not subject to FOIL); Moore v. Santucci, 151 A.D.2d 676, 543 N.Y.S.2d 103 (2d Dep’t 1989) (suppression hearing or trial transcripts held by Office of District Attorney are court records, not agency records); Gannett Satellite Information Network Inc. v. City of Elmira, No. 94-1752 (Sup. Ct., Chemung Cty., August 26, 1994) (granting access to factual inventory data compiled by appraisal firm retained by City); Smith v. Cty. of Rensselaer, No. 41-1156-92 (Sup. Ct. Rensselaer Cty.) (itemized bills prepared or submitted by an attorney working for an agency are agency records within FOIL subject to disclosure).
No requirement to create records. “Nothing in this article shall be construed to require any entity to prepare any record not possessed or maintained by the entity.” N.Y. Pub. Off. Law § 89(3) (McKinney 1988). See Matter of Weslowski v. Vanderhoef, 2012 NY Slip Op 6303, ¶ 2, 98 A.D.3d 1123, 1126, 951 N.Y.S.2d 538, 541 (2d Dep’t 2012) (holding that agencies are not required to compile or reorganize information into new records that were not otherwise maintained during the course of their operations); Gabriels v. Curiale, 216 A.D.2d 850, 628 N.Y.S.2d 882 (3d Dep’t 1995) (agency was not required to create new records or develop a program to produce information in the form requested); O’Shaughnessy v. New York State Division of State Police, 202 A.D.2d 508 (2d Dep’t 1994) (denying petitioner’s request for records in part because no such records existed and agencies are under no obligation to create a record); Reubens v. Murray, 194 A.D.2d 492, 599 N.Y.S.2d 580 (1st Dep’t 1993) (agency was not required to compile requested data from the documents or records in its possession); Adams v. Hirsch, 182 A.D.2d 583, 582 N.Y.S.2d 724 (1st Dep’t 1992) (agency not required to provide reprint of photograph); White v. Regan, 171 A.D.2d 197, 575 N.Y.S.2d 375 (3d Dep’t 1991) (agency was not required to compile information or to rearrange its filing system); see also Guerrier v. Hernandez-Cuebas, 165 A.D.2d 218, 566 N.Y.S.2d 406, (3d Dep’t 1991) (holding that “if the statistical information requested by petitioner had to be compiled from written documents or records, respondent clearly would not be required to do so”); Brownstone Publishers Inc. v. New York City Department of Buildings, 166 A.D.2d 294, 560 N.Y.S.2d 642 (1st Dep’t 1990) (computer files were required to be transferred onto computer tapes); Duban v. State Board of Law Examiners, 157 A.D.2d 946, 550 N.Y.S.2d 207 (3d Dep’t 1990) (law bar examination was destroyed, therefore request was moot);; Kryston v. Board of Education, 77 A.D.2d 896, 430 N.Y.S.2d 688 (2d Dep’t 1980); Day v. Town Board of Milton, No. 4Q-14, (Sup. Ct., Saratoga Cty., April 27, 1992) (respondent was under no duty to compile a new list); Chechek v. Gribble, No. 5320/80 (Sup. Ct., Dutchess Cty., April 6, 1981); Wood v. Ellison, 196 A.D.2d 933, 602 N.Y.S.2d 237 (3d Dep’t 1993); see, e.g., Oakknoll v. De Francesco, 200 A.D.2d 619, 608 N.Y.S.2d 850 (1994) (dismissing proceeding where a review of the file revealed that the file did not contain the requested material).
Agencies are required, however, to prepare a “reasonably detailed current list by subject matter,” of all records in their possession, whether or not available under FOIL. N.Y. Pub. Off. Law § 87(3)(c) (McKinney 1988). See 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). This statutory mandate has not been read to require a detailed listing or index of final opinions of an agency. See Wattenmaker v. N.Y.S. Employees’ Retirement System, 95 A.D.2d 910, 464 N.Y.S.2d 52 (3d Dep’t 1983), appeal denied, 60 N.Y.2d 555, 455 N.E.2d 487, 467 N.Y.S.2d 1030 (1983); D’Alessandro v. Unemployment Insurance Appeals Bd., 56 A.D.2d 762, 392 N.Y.S.2d 433 (lst Dep’t 1977). This list is not required to be maintained by each subdivision of a larger entity. 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).
The 2008 amendments include an important new provision which states that “Any programming necessary to retrieve a record maintained in a computer storage system and to transfer that record to the medium requested . . . or to allow the transferred record to be read or printed shall not be deemed to be the preparation or creation of a new record.” Therefore, in cases when a request reasonably describes records or data maintained electronically, and using new programming is more reasonable or efficient than manually manipulating the data or redacting it, the agency is required to use the new programming to provide the information. N.Y. Pub. Off. Law § 89 (3)(a).
The Public Records Law covers “all records made or received pursuant to law or ordinance in connection with the transaction of public business.” G. S. § 132-6(a). Courts have held that the phrase “made or received pursuant to law or ordinance in connection with the transaction of public business” includes, in addition to those records required to be kept by law, all records that are in fact kept by a public official or agency in carrying out the agency’s lawful duties. News and Observer Publishing Company v. Wake County Hospital System, 55 N.C. app. 1, 13, 284 S.E.2d 542, 549 (1981), cert. denied, 305 N.C. 302, 291 S.E.2d 151, cert. denied, 459 U.S. 803, 103 S. Ct. 26, 74 L.Ed. 2d 42 (1982); 1996 WL 925098 (N.C.A.G.); 1996 WL 925156 (N.C.A.G.). The AG’s guide to open government contains an affirmation of this: “Public records also include materials that government agencies make or collect at their discretion in carrying on government business.”
In Advance Publications v. City of Elizabeth City, 53 N.C. app 504, 506, 281 S.E.2d 69, 70 (1981), the North Carolina Court of appeals held that the North Carolina Public Records Law is to be liberally construed in favor of public access. In N.C. Press Ass’n v. Spangler, 87 N.C. app. 169, 360 S.E.2d 138 (1987), the trial court held that reports compiled by chancellors of 15 constituent campuses of the University of North Carolina system concerning intercollegiate athletics were subject to the Public records law, despite the defendants’ claims that the reports were “drafts” or “working papers.” The Court of appeals dismissed defendants’ appeal as moot. The North Carolina Supreme Court reached the same result in News and Observer Publishing Co. v. Poole, 330 N.C. 465, 484, 412 S.E.2d 7 (1992), holding that “our statute contains no deliberative process privilege exception.” Two trial courts have applied the rulings of Spangler and Poole. Piedmont Pub. Co. v. Surry County Board of Comm’rs, 24 Media L. Rep. (BNA) 1371 (N.C. Sup. Ct. 1995); Durham Public Schools Bd. of Educ. v. Bussian, Case No. 94 CVS 484, unpublished opinion (Durham Co. Sup. Ct. Feb. 18, 1994). The Court of appeals went so far as to hold the working papers of a public attorney to be public records in the absence of a specific exemption. McCormick v. Hanson Aggregates Southeast Inc., 164 N.C. app. 459, 596 S.E.2d 431. cert. denied and appeal dismissed, 359 N.C. 69, 603 S.E.2d 131 (2004). (Since Hanson, an exemption for trial preparations has been enacted. G.S. § 132-1.9.)
As noted above, numerous government records facially subject to the Public records law are exempted from disclosure by other statutes. Some examples include:
Driver license and automobile registration records. As mandated by the federal Driver’s Privacy Protection act (18 U.S.C. §§ 2721-2725), North Carolina enacted G.S. § 20-43.1, which prohibits the release of personal information regarding driver’s licenses and automobile registrations in the absence of written consent. Social security numbers provided in obtaining driver’s licenses and registrations are not matters of public record. G.S. § 20-7 and G.S. § 20-52. In addition, law enforcement agents, IRS agents and public officials may apply for private registration tags to be issued where the applicant provides information establishing a need on the basis of personal safety. The application and registration are confidential. G.S. § 20-56.
Records relating to business activities of the state-owned North Carolina railroad. G.S. § 124-3.
Numerous other examples are listed in Section II(B), below.
Under the law, record “means recorded information of any kind, regardless of the physical form or characteristic by which the information is stored, recorded, or reproduced, which is in the possession or custody of a public entity or its agent and which has been received or prepared for use in connection with public business or contains information relating to public business.” N.D.C.C. § 44-04-17.1(16). Record “does not include unrecorded thought processes or mental impressions, but does include preliminary drafts and working papers.” Id. Record “also does not include records in the possession of a court of this state.” Id.
All of the decisions of the North Dakota Supreme Court and the opinions of the attorney general regarding this issue have stated that the term “record” should be given an expansive interpretation and should not be limited to records required by law or ordinance. See, e.g., Forum Publishing Company v. City of Fargo, 391 N.W.2d 169, 171 (N.D. 1988); City of Grand Forks v. Grand Forks Herald, 307 N.W.2d 572, 577-78 (N.D. 1981) (but note that Justice VandeWalle’s concurring opinion states, “I do not imply that every scrap of paper a public official or a public employee might retain in the course of his tenure with a public body is a public record. . . . [T]he term, as used in these provisions, implies a document of some official import to be retained by a public officer or employee in the course of his public duties.”).
All "public records" are available for public inspection and copying. A "public record" is any record that is "kept by any public office." Ohio Rev. Code § 149.43(A),(B).
A "record" is "any document, device, or item, regardless of physical form or characteristic, including an electronic record, . . . created or received by . . . any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office." Ohio Rev. Code § 149.011(G).
The statute used to define "public record" as those records required by law to be kept by a public office, but the Ohio General Assembly amended the statute to delete that language. The statute now defines "public record" as simply "records kept by any public office," which broadens the scope of what kinds of records qualify as public records.
Notwithstanding that legislative amendment, the Ohio Supreme Court has ruled that, if information recorded in physical form is kept by a public office, it may not qualify as a "record" under Ohio Rev. Code § 149.011(G), and therefore cannot be a "public record." Examples: Unsolicited letters received and read by a judge in which the authors advocated leniency in the sentencing of a convicted rapist did not count as "records" because the judge testified that she did not base her subsequent sentencing decision on anything in the letters. State ex rel. Beacon Journal Publishing Co. v. Whitmore, 83 Ohio St. 3d 61 (1998). See also State ex rel. Sensel v. Leone, 85 Ohio St. 3d 152, 707 N.E.2d 496 (1999) (reinstating trial court's judgment that unsolicited letters from parents received and read by public school superintendent and high school principal, which criticized and praised controversial high school basketball coach, were not "records" and could be thrown away at the sole discretion of the public school officials).
A city employee's personal handwritten notes in carrying out his official duties at city hall were not "records" because they were taken for his own convenience, were not kept as part of the city's official records, and no other city officials had access to or used the notes. State ex rel. Cranford v. Cleveland, 103 Ohio St. 3d 196, 814 N.E.2d 1218, 2004-Ohio-4884.
Jury questionnaire questions are "records," but the potential jurors' responses are not "records" because the court does not use the answers "in rendering its decision, but rather collect[s] the questionnaires for the benefit of litigants." State ex rel. Beacon Journal Publ'g Co. v. Bond, 98 Ohio St. 3d 146, 781 N.E.2d 180, 2002-Ohio-7117 (ordering disclosure of the questionnaire responses, juror names, and juror addresses on constitutional grounds).
State employee home addresses are not "records" because they do not "document the organization, functions, policies, decisions, procedures, operations, or other activities" of the state agencies and are kept by the state only as an administrative convenience. State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St. 3d 160, 833 N.E.2d 274 (2005). A roster of names and addresses of minors who signed up for a municipal recreation department's voluntary identification-badge program was not a "record." State ex rel. McCleary v. Roberts, 88 Ohio St. 3d 365, 725 N.E.2d 1144, 2000-Ohio-345. See also State ex rel. O'Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 131 Ohio St. 3d 149, 159, 962 N.E.2d 297, 307, 2012-Ohio-115, ¶ 49 (questionnaires and releases from liability used by a county agency to identify children suspected of being exposed to lead are public records subject to disclosure with redactions to protect personally identifiable information).
Internal e-mails generated by county employees on county time using county computer systems, which allegedly contained racist epithets, did not qualify as "records" because the e-mails did not document the authorized activities of that county agency. State ex rel. Wilson-Simmons v. Lake County Sheriff's Dept., 82 Ohio St. 3d 37, 693, N.E.2d 789 (1998).
A public record does not lose its status as a "public record" though a public office transfers possession of a public record to a private entity. State ex rel. The Cincinnati Enquirer v. Krings Hamilton App. No. C-000408, 2000 Ohio App. LEXIS 5854 (Dec. 15, 2000) ("The respondents in this case cannot play a shell game with public records. The public has a right of access to the records, regardless of where they are physically located, or in whose possession they may be."); State ex rel. Findlay Publ'g Co. v. Hancock Cty. Bd. of Comm'rs, 80 Ohio St. 3d 134, 684 N.E.2d 1222 (1997) (ordering disclosure of settlement agreement when county's attorney possessed the agreement).
All documents regardless of physical form "created by, received, under the authority of, or coming into the custody, control or possession of public officials, public bodies, or their representatives in connection with the transaction of public business, the expenditure of public funds or the administering of public property" are records available for public inspection. Records do not include computer software, non-governmental personal effects temporarily coming into the possession of a public body or official, unless disclosure is otherwise required by law, vehicle movement record of the Oklahoma Turnpike Authority obtained in connection with the electronic toll collection system, personal financial information, credit reports or other financial data obtained by or submitted to a public body for the purpose of evaluating credit worthiness, obtaining a license, permit or for the purpose of becoming qualified to contract with a public body. 51 O.S. § 24A.3.1. A public body that contracts with a private vendor to provide electronic access to and reproduction of the public body's records at another location or through the world wide web, is still required to provide access to its records for inspection, copying, or mechanical reproduction at the public body's office, pursuant to the Open Records Act. 2005 OK AG 3.
Pursuant to ORS 192.311(5)(a) (formerly ORS 192.410), a public record includes any writing containing information relating to the conduct of the public’s business prepared, owned, used or maintained by a public body regardless of physical form or characteristics. In 2005, the Legislative Assembly made express that the definition of “public record” excludes any writing that (1) does not relate to the conduct of the public’s business and (2) is contained on a privately owned computer. ORS 192.311(5)(b) (formerly ORS 192.410(4)(b)). This may be redundant, since any writing that did not relate to the conduct of the public’s business was already not a public record, pursuant to ORS 192.311(5)(a). Moreover, it interestingly raises by negative inference the question of whether everything on a publicly owned computer is a public record. Compare ORS 192.005(5) (stating that public records, for purposes of ORS 192.005 to 192.170 (concerning archiving of public records), do not include voicemail or telephone storage or retrieval systems, or Legislative Assembly records, including committee or employee records).
The Law provides access to the following kinds of records:
Public Records: Commonwealth and local agencies must provide access to “public records.” A public record is defined as follows: “A record, including a financial record, of a Commonwealth or local agency that: (1) is not exempt under section 708; (2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or (3) is not protected by a privilege.”
The word “record” has an extremely broad definition and essentially covers any agency information or document:
“Information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency. The term includes a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data-processed or image-processed document.”
65 Pa. Stat. Ann. § 67.102.
Financial Records: Commonwealth, independent, local, legislative, and judicial agencies must provide access to financial records. 65 Pa. Stat. Ann. §§ 67.301-302, 304.
Financial records are any of the following:
“(1) Any account, voucher or contract dealing with: (i) the receipt or disbursement of funds by an agency; or (ii) an agency's acquisition, use or disposal of services, supplies, materials, equipment or property. (2) The salary or other payments or expenses paid to an officer or employee of an agency, including the name and title of the officer or employee. (3) A financial audit report. The term does not include work papers underlying an audit.”
65 Pa. Stat. Ann. § 67.102.
Subsections (2) and (3) of this definition are new. Subsection (2) makes clear that records showing payments of money to an agency officer or employee are public records. Subsection (3) requires access to financial audit reports though not any of the underlying work papers.
Subsection (1), however, parallels part of the old act’s definition of records subject to the law. As a result, prior case law interpreting that language will likely remain good law. The following addresses Pennsylvania decisions interpreting the “account, voucher or contract” category of records:
The “account, voucher and contract” category deals generally with fiscal aspects of governance, providing for public review of accounts, vouchers or contracts, dealing with receipts and disbursements of funds by an agency. City of Harrisburg v. Prince, 186 A.3d 544 (Pa. Commw. Ct. 2018); The Pa. State Univ. v. State Emps.’ Ret. Bd., 880 A.2d 757 (Pa. Commw. Ct. 2005), aff’d 935 A.2d 530 (Pa. 2007). An account is “a record of business dealings between parties,” Carbondale Twp. v. Murray, 440 A.2d 1273, 1274 (Pa. Commw. Ct. 1982); see also Sipe v. Snyder, 640 A.2d 1374, 1382 (Pa. Commw. Ct. 1994) (an “‘account’ include[s] any ‘record of business dealings between the parties’ as well as the documentary record of a business transaction.’”). In a narrower, more technical definition, one court ruled that an account is a “record of debit and credit entries to cover transactions during a fiscal period of time” rather than a statement of facts or events. Butera v. Commonwealth Office of the Budget, 370 A.2d 1248, 1249 (Pa. Commw. Ct. 1977) (departmental budget reports provided to Pennsylvania Budget Secretary not public record), overruled by LaValle v. Office of Gen. Counsel, 769 A.2d 449 (Pa. Commw. Ct. 2000). A voucher is a documentary record of a business transaction. Carbondale, 440 A.2d at 1274 n.2. Thus, a municipality’s canceled checks have been held to be both “accounts” and “vouchers” under the law. Id. See also Inkpen v. Roberts, 862 A.2d 700 (Pa. Commw. Ct. 2004) (deeds and mortgages filed with County Recorder of Deeds are not accounts, vouchers or contracts; therefore, they are not public records under the law).
Contracts are also public records under the Law’s definition. See, e.g., Lukes v. Dep’t of Pub. Welfare, 976 A.2d 609 (Pa. Commw. Ct. 2009) (holding that provider agreements between a Medicaid managed care program and the Department of Public Welfare constitute “public records” subject to disclosure). While “a proposal itself is not a public record under the Law because it does not lead to the expenditure of public funds,” once a proposal is “formalized into a contract, [it] as well as competing proposals [are] subject to disclosure.” Tapco, Inc. v. Twp. of Neville, 695 A.2d 460, 463-64 (Pa. Commw. Ct. 1997). The fact that the contract may not necessarily involve the receipt or disbursement of public funds is “irrelevant:” “[S]o long as the contract dealt with the possible appropriation of public funds, the contract was a public record subject to inspection.” Envirotest Partners v. Commonwealth Dep’t of Transp., 664 A.2d 208 (Pa. Commw. Ct. 1995) citing The Morning Call, Inc. v. Lower Saucon Twp., 627 A.2d 297 (Pa. Commw. Ct. 1993). However, contracts that are required to be filed with an agency, such as deeds and mortgages, to which the agency is not a party (but merely a recorder memorializing a third-party transaction), are not public records. Inkpen v. Roberts, 862 A.2d 700 (Pa. Commw. Ct. 2004).
Under the old act, an agreement settling litigation between an agency and a third party is a public record notwithstanding a confidentiality agreement contained therein. Tribune-Review Publ’g Co. v. Westmoreland Cty. Housing Auth., 833 A.2d 112 (Pa. 2003) (a confidentiality clause in a settlement agreement involving an agency is void as against public policy); Cogen, Sklar and Levick v. Pennsylvania, 814 A.2d 825, 31 Media L. Rep. 1478 (Pa. Commw. Ct. 2003); The Morning Call, Inc. v. Housing Auth., 769 A. 2d 1246 (Pa. Commw. Ct. 2001); The Morning Call, Inc. v. Lower Saucon Twp., 627 A.2d 297 (Pa. Commw. Ct. 1993); Korczakowski v. Hwan, 68 Pa. D. & C. 4th 129 (Lackawanna Cty. C.C.P. 2005) (a settlement agreement which utilized public monies from cigarette taxes from the MCARE fund cannot be placed under seal, in part, because it is a public record).
The Commonwealth Court’s holding requiring the disclosure of written arbitration suggests the continuing validity of the above case law relating to settlement agreements. See Lutz v. City of Phila., 6 A.3d 669 (Pa. Commw. Ct. 2010). The police officer arbitrations at issue in Lutz essentially settled grievances made by members of the police union and the City of Philadelphia. The Commonwealth Court rejected the argument that resolutions of such private disputes are not a “public record” and thus denied a request to enjoin the City of Philadelphia from disclosing arbitration opinions. Id. at 676.
“The Act does not permit an agency; to avoid its obligation to disclose documents by contracting indirectly through a third party.” Associated Builders & Contractors, Inc. v. Pa. Dep’t of Gen. Servs., 747 A.2d 962, 966 (Pa. Commw. Ct. 2000) (requiring DGS to turn over contract between DGS’s construction manager and insurance broker).
Pennsylvania courts have ruled that this category “reaches some range of records beyond those which on their face constitute actual accounts, vouchers or contracts.” N. Hills News Record v. Town of McCandless, 722 A.2d 1037, 1039 (Pa. 1999). For example, in Sipe v. Snyder, 640 A.2d 1374 (Pa. Commw. Ct. 1994), appeal denied, 668 A.2d 1138 (Pa. 1995), the Commonwealth Court held that the Department of Public Welfare’s nursing home “Settlement and Appeal Activity Reports” were “accounts” under the Act because they deal with the receipt and disbursement of agency funds. Sipe, 640 A.2d at 1381-82. In Sapp Roofing Co. v. Sheet Metal Workers’ Int’l Ass’n, Local Union 12, 713 A.2d 627 (Pa. 1998), the court held that a private roofing contractor’s payroll records, which had been submitted to the government in connection with the performance of a public project, were public records under the Act because “they are records evidencing a disbursement by the school district.”
Nonetheless, “to constitute a public record, the material at issue must bear a sufficient connection to fiscally related accounts, vouchers or contracts.” North Hills, 722 A.2d at 1039; LaValle v. Office of Gen. Counsel, 769 A.2d 449, 453 (Pa. 2001). Since the North Hills case, the Commonwealth Court has ruled that insurance policies purchased by DGS were public records because they were paid for by public funds. Associated Builders & Contractors, 747 A.2d 962. The current salaries and salary histories of employees of state-related institutions (which is not obtainable from the state institution) is obtainable from those employees who participate in the public employees’ retirement fund, because the employees’ salary information is closely related to “accounts” and “contracts” and is therefore subject to the Law. The Pa. State Univ. v. State Emps.’ Ret. Bd., 880 A.2d 757 (Pa. Commw. Ct. 2005).
Under the new Law, the legislature included substantially similar “accounts, vouchers or contracts” language in its definition of “financial records” under 65 Pa. Stat. Ann. § 67.102. See, e.g., Dep’t of Conservation and Natural Res. v. Office of Open Records, 1 A.3d 929, 940-41 (Pa. Commw. Ct. 2010) (citing North Hills, 722 A.2d at 1038-39; Sapp Roofing, 713 A.2d at 628). Thus, prior case law construing the “accounts, vouchers or contracts” language in the old Act has been cited as binding precedent under the new Law. Id. So, just as a roofing contractor’s payroll records were public records in Sapp, private contractors’ payroll records are accessible “financial records” under the new Law. Id. at 940-41.
Chemical disbursement sheets, which record the use of chemicals at a state prison, are not public records because they are unrelated to the fiscal governance of the Department of Corrections and are therefore not “accounts.” Heffran v. Dep’t. of Corr., 878 A.2d 985, 991 (Pa. Commw. Ct. 2005).
Not addressed in the case law is whether a contract that deals with an agency’s “acquisition, use or disposal of services or of supplies, materials, equipment or other property” is a public record even where the agency pays or receives no funds. A strict reading of the Law suggests that such contracts are public records, but agencies have argued to the contrary.
Legislative Records: This includes:
“Any of the following relating to a legislative agency or a standing committee, subcommittee or conference committee of a legislative agency: (1) A financial record. (2) A bill or resolution that has been introduced and amendments offered thereto in committee or in legislative session, including resolutions to adopt or amend the rules of a chamber. (3) Fiscal notes. (4) A cosponsorship memorandum. (5) The journal of a chamber. (6) The minutes of, record of attendance of members at a public hearing or a public committee meeting and all recorded votes taken in a public committee meeting. (7) The transcript of a public hearing when available. (8) Executive nomination calendars. (9) The rules of a chamber. (10) A record of all recorded votes taken in a legislative session. (11) Any administrative staff manuals or written policies. (12) An audit report prepared pursuant to the act of June 30, 1970 (P.L.442, No.151) entitled, ‘An act implementing the provisions of Article VIII, section 10 of the Constitution of Pennsylvania, by designating the Commonwealth officers who shall be charged with the function of auditing the financial transactions after the occurrence thereof of the Legislative and Judicial branches of the government of the Commonwealth, establishing a Legislative Audit Advisory Commission, and imposing certain powers and duties on such commission.’ (13) Final or annual reports required by law to be submitted to the General Assembly. (14) Legislative Budget and Finance Committee reports. (15) Daily legislative session calendars and marked calendars. (16) A record communicating to an agency the official appointment of a legislative appointee. (17) A record communicating to the appointing authority the resignation of a legislative appointee. (18) Proposed regulations, final-form regulations and final-omitted regulations submitted to a legislative agency. (19) The results of public opinion surveys, polls, focus groups, marketing research or similar efforts designed to measure public opinion funded by a legislative agency.”
65 Pa. Stat. Ann. § 67.102.
Reports filed by State-related Institutions: The Law states that state-related institutions (Penn State, University of Pittsburgh, Temple, and Lincoln) must, no later than May 30 of each year, file with the Governor’s Office, the General Assembly, the Auditor General and the State Library, a report containing certain information. 65 Pa. Stat. Ann. § 67.1502. The report “shall include” the following information: (1) “all information required by a Form 990 or equivalent form; regardless of whether the State-related institution is required to file the form;” (2) “the salaries of all officers and directors of the State-related institution;” (3) “the highest 25 salaries paid to employees of the institution that are not included under paragraph 2.” 65 Pa. Stat. Ann. § 67.1503(1)-(3). The report “shall not include information relating to individual donors.” Section 1503(4). The Law requires that state-related institutions “shall maintain, for at least seven years, a copy of the report in the institution’s library and shall provide free access to the report on the institution’s Internet website.” 65 Pa. Stat. Ann. § 67.1504.
State Contract Information: The Law requires that when any commonwealth, legislative or judicial agency (this excludes local agencies) enter into any “contract involving any property, real, personal or mixed of any kind or description or any contract for personal services where the consideration involved in the contract is $5,000 or more, a copy of the contract shall be filed with the Treasury Department within ten days after the contract is fully executed on behalf of the Commonwealth agency, legislative agency or judicial agency or otherwise becomes an obligation of the Commonwealth agency, legislative agency or judicial agency.” 65 Pa. Stat. Ann. § 67. 65 Pa. Stat. Ann. § 67.1701(a).
This obligation does not apply to “contracts for services protected by a privilege,” referring, inter alia, to the attorney-client privilege, attorney work product doctrine, the doctor-patient privilege and the speech and debate privilege. Section 1701(a); 102 (definition of “privilege”). It also does not apply to “a purchase order evidencing fulfillment of an existing contract but shall apply to a purchase order evidencing new [contractual] obligations.” Section 1701(a). And it does not apply to contracts “submitted to the Treasury Department, the Office of Auditor General or other agency for purposes of audits and warrants for disbursements” under the Fiscal Code.
When an open records officer discloses records protected by the attorney-client privilege without prior consent from the municipality’s solicitor, the agency has not waived its attorney-client privilege. See Bd. of Supervisors v. McGogney, 13 A.3d 569, 573 (Pa. Commw. Ct. 2011). The majority in McGogney analyzed inadvertent disclosures through the five factor test articulated in Carbis Walker, LLP v. Hill, Barth & King, LLC, 930 A.2d 573 (Pa. Super. 2007). The court found that open records officers have “ministerial and administrative” duties. McGogney, 13 A.3d at 573. Therefore, they have no power either as client or attorney to waive the attorney-client privilege. Id.
However, the dissent cited 65 Pa. Stat. Ann. § 67.902’s notice provisions for delay in responding to a request. Id. at 574–75. 65 Pa. Stat. Ann. § 67.902 permits an agency to extend the time for response under 65 Pa. Stat. Ann. § 67.901 if a “legal review is necessary to determine whether the record is a record subject to access under this act.” 65 Pa. Stat. Ann. § 67.902(a)(4). Thus, the dissent reasoned that the open records officer had the power to and did waive the attorney-client privilege by disclosing documents without waiting for a legal review. See McGogney, 13 A.3d at 573.
The contract must be “in a form and structure mutually agreed upon” by the agency and State Treasurer. The Treasury Department may require the agency to “provide a summary with each contract” that “shall include” the date of execution, amount of the contract, beginning and end date of the contract, name of agency and all parties and subject matter. Every contract filed shall remain on file with the Treasury Department “for a period of not less than four years after the end date of the contract.” The agency is “responsible for verifying the accuracy and completeness of the information” submitted to the State Treasurer. The contract “shall be redacted” in accordance with the Law by the agency filing it. 65 Pa. Stat. Ann. §§ 67.1701(a)(1), (2)(a)–(c).
The Treasury Department shall make each filed contract available for public inspection in one of two ways: (1) “by posting a copy of the contract on the Treasury Department’s publicly accessible Internet website,” or (2) “by posting a contract summary on the department’s publicly accessible Internet website.” 65 Pa. Stat. Ann. § 67.1702(a). The posted information must allow the public to “search contracts or contract summaries by the categories of information that must be contained in summaries.” 65 Pa. Stat. Ann. § 67.1702(b).
A requester may obtain a “paper copy” of the contract from the agency that executed the contract. 65 Pa. Stat. Ann. § 67.1702(d).
The APRA broadly defines public records as “all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, magnetic or other tapes, electronic data processing records, computer stored data (including electronic mail messages, except specifically for any electronic mail messages of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacities) or other material regardless of physical form or characteristics made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.” R.I. Gen. Laws §§ 38-2-2(4) and 38-2-3(a) (2012).
The private law practice records of an education department commissioner which were created or maintained at the department’s offices were nonetheless not “public records” under the act, as they were not “made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.” Pontarelli v. Rhode Island Department of Elementary and Secondary Education, 176 A.3d 472, 479 (2018).
Records "prepared, owned, used, in the possession of or retained by a public body" are subject to the act with the exception of income tax returns, medical records, hospital medical staff reports, scholastic records, adoption records, library circulation records which reveal the identity of a person using library material and applications for bank charters. S.C. Code Ann. §30-4-20(c). Under the federal Driver's Privacy Protection Act, 18 U.S.C. §§ 2721-2725, the nonconsensual disclosure of certain personally identifying information contained in motor vehicle records is prohibited. South Carolina's Attorney General challenged the legislation on Tenth Amendment grounds, but the Act was upheld by the United States Supreme Court, reversing both the District Court and the Fourth Circuit. Condon v. Reno, 528 U.S. 141 (2000). Other statutes may contain specific exemptions from disclosure, e.g., autopsy photographs are exempt from disclosure to the public under the provisions of S.C. Code Ann. §§17-5-535 and 30-4-40(18).
All "state, county and municipal records" are public unless otherwise exempted. Broad categories of records legislatively mandated to be excluded from the Public Records Act include medical records of patients in state institutions, investigative files of the Tennessee Bureau of Investigation, records of students in public educational institutions, federal military and state militia records, state attorney general records, and investigative records of the internal affairs division of the department of corrections. T.C.A. § 10-7-504 (1999). Additionally, T.C.A. § 10-7-403 defines and enumerates county records that are public.
As stated above, the Act covers virtually all information possessed by governmental bodies. Section 552.002 makes public "information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business" by a governmental body or for a governmental body, and the governmental body owns the information or has a right of access to it.
For example, government investments are subject to the Act. Section 552.0225 provides that "it is the policy of this state that investments of government are investments of and for the people and the people are entitled to information regarding those investments." That section lists categories of information held by a governmental body relating to its investments that constitute public information and are not excepted from disclosure under the Act. Tex. Gov’t Code § 552.0225(b). This includes:
(1) the name of any fund or investment entity the governmental body is or has invested in;
(2) the date that the fund or investment entity was established;
(3) each date the governmental body invested in the fund or investment entity;
(4) the amount of money, expressed in dollars, the governmental body has committed to a fund or investment entity;
(5) the amount of money, expressed in dollars, the governmental body is investing or has invested in any fund or investment entity;
(6) the total amount of money, expressed in dollars, the governmental body received from any fund or investment entity in connection with an investment;
(7) the internal rate of return or other standard used by a governmental body in connection with each fund or investment entity it is or has invested in and the date on which the return or other standard was calculated;
(8) the remaining value of any fund or investment entity the governmental body is or has invested in;
(9) the total amount of fees, including expenses, charges, and other compensation, assessed against the governmental body by, or paid by the governmental body to, any fund or investment entity or principal of any fund or investment entity in which the governmental body is or has invested;
(10) the names of the principals responsible for managing any fund or investment entity in which the governmental body is or has invested;
(11) each recusal filed by a member of the governing board in connection with a deliberation or action of the governmental body relating to an investment;
(12) a description of all of the types of businesses a governmental body is or has invested in through a fund or investment entity;
(13) the minutes and audio or video recordings of each open portion of a meeting of the governmental body at which an item described by this subsection was discussed;
(14) the governmental body's percentage ownership interest in a fund or investment entity the governmental body is or has invested in;
(15) any annual ethics disclosure report submitted to the governmental body by a fund or investment entity the governmental body is or has invested in; and
(16) the cash-on-cash return realized by the governmental body for a fund or investment entity the governmental body is or has invested in.
Section 552.029 further provides that certain information about an inmate who is confined in a facility operated under a contract with the Texas Department of Criminal Justice is subject to disclosure. This includes the following:
(1) the inmate's name, identification number, age, birthplace, department photograph, physical description, or general state of health or the nature of an injury to or critical illness suffered by the inmate;
(2) the inmate's assigned unit or the date on which the unit received the inmate, unless disclosure of the information would violate federal law relating to the confidentiality of substance abuse treatment;
(3) the offense for which the inmate was convicted or the judgment and sentence for that offense;
(4) the county and court in which the inmate was convicted;
(5) the inmate's earliest or latest possible release dates;
(6) the inmate's parole date or earliest possible parole date;
(7) any prior confinement of the inmate by the Texas Department of Criminal Justice or its predecessor; or
(8) basic information regarding the death of an inmate in custody, an incident involving the use of force, or an alleged crime involving the inmate.
Section 552.0221 provides that certain information about an employee or trustee of a public employee pension system is subject to disclosure. This includes information concerning the income, salary, benefits, and bonuses received from the pension system by the employee in the person's capacity as an employee of the system. Information concerning the service of a trustee of a public employee pension system is also subject to the Act, including information concerning the income, salary, benefits, and bonuses received from the pension system by the trustee in the person's capacity as a trustee of the system. Id.
Section 552.025 provides for access to tax rulings and opinions. A governmental body with taxing authority that issues a written determination letter, technical advice memorandum, or ruling that concerns a tax matter shall index the letter, memorandum, or ruling by subject matter. On request, the governmental body shall make the index prepared and the document itself available to the public, subject to certain requirements and limitations. A governmental body cannot withhold from the public or limit the availability to the public of a written determination letter, technical advice memorandum, or ruling that concerns a tax matter and that is issued by a governmental body with taxing authority. Id.
Section 552.024 provides each employee or official of a governmental body and each former employee or official of a governmental body shall choose whether to allow public access to their address, telephone number, or social security number, or to information that reveals whether the person has family members. Id.
Section 552.023 provides for a special right of access to confidential information. If necessary, a person or a person's authorized representative has a special right of access, beyond the right of the general public, to information held by a governmental body that relates to the person and that is protected from public disclosure by laws intended to protect that person's privacy interests. The governmental body may not deny access to information to the person, or the person's representative, to whom the information relates on the grounds that the information is considered confidential by privacy principles under this chapter but may assert as grounds for denial of access other provisions of this chapter or other law that are not intended to protect the person's privacy interests. Id.
GRAMA states that “[e]very person has the right to inspect a public record free of charge . . . .” Utah Code § 63G-2-201(1). “Public records” include all records that are not “private,” “controlled,” “protected,” or otherwise exempt from disclosure by statute. See id. § 63G-2-201(3). GRAMA states that certain records are public and must be disclosed, except to the extent that they contain information expressly exempted by court order or by statute. Id. § 63G-2-301(2). The list of public records, which is illustrative rather than exhaustive, see id. § 63G-2-301(4), includes:
(b) names, gender, gross compensation, job titles, job descriptions, business addresses, business telephone numbers, number of hours worked per pay period, dates of employment, and relevant education, previous employment, and similar job qualifications of the government entity’s former and present employees and officers excluding: (i) undercover law enforcement personnel, and (ii) investigative personnel if disclosure reasonably could be expected to impair the effectiveness of investigations or endanger any individual’s safety;
(c) final opinions that are made by a government entity in a judicial, administrative, or adjudicative proceeding, unless the proceeding was properly closed to the public or the opinion contains information which is controlled, private, or protected;
(d) final interpretations of statutes or rules, unless otherwise protected;
(e) information contained in the records of the open portion of the meetings of government entities, including the records of all votes of each member of the government entity;
(f) judicial records, unless otherwise protected;
(g) records held by government entities concerning real property titles, encumbrances, restrictions on use, or tax status;
(h) Department of Commerce records concerning incorporation and uniform commercial code filings;
(i) data on individuals, otherwise private, but the individual who is the subject of the record has given the government entity written permission to make the record available to the public;
(j) records of compensation paid by a government entity to a “contractor” (a person who provides goods or services directly to the government entity or an entity funded by the government entity) or a “private provider” (a person who contracts with the government entity to provide services to the public);
(k) summary data collected from records that are classified as private, controlled, or protected that do not disclose the classified information;
(l) voter registration records, including an individual’s voting history, except for those parts of the record classified as private;
(m) contact information of elected officials, including telephone number and email address;
(n) contact information of school community council members, including telephone number and email address;
(o) annual audited financial statements of the Utah Educational Savings Plan; and
(p) initiative packets and referendum packets that have been submitted to a county clerk.
See id. § 63G-2-301(2).
In addition, the following records are “normally public,” but to the extent that a record is expressly exempt from disclosure, access may be restricted under section 63G-2-201(3)(b) or under sections 63G-2-302, -304, or -305:
(a) administrative staff manuals, instructions to staff, and statements of policy;
(b) records documenting a contractor’s or private provider’s compliance with the terms of a contract with a government entity;
(c) records documenting the services provided by a contractor or private provider to the extent that the records would be public if prepared by the government entity;
(d) contracts entered into by a government entity;
(e) any account, voucher, or contract that deals with a government entity’s receipt or expenditure of funds;
(f) records relating to government assistance or incentives publicly disclosed, contracted for, or given by a government entity, encouraging a person to expand or relocate a business in Utah, except as provided in subsection 63G-2-305(35);
(g) chronological logs and initial contact reports;
(h) correspondence by and with a government entity in which the government entity determines or states an opinion upon the rights of the state, a political subdivision, the public, or any person;
(i) empirical data contained in drafts if (1) the empirical data is not reasonably available to the requester elsewhere in similar form, and (2) the government entity is given a reasonable opportunity to correct any errors or to make nonsubstantive changes before release;
(j) drafts that are circulated to anyone other than: (1) a government entity; (2) a political subdivision; (3) a federal agency if the government entity and the federal agency are jointly responsible for implementation of a program or project that has been legislatively approved; (4) a government-managed corporation; or (5) a contractor or a private provider;
(k) drafts that have never been finalized but were relied upon by the government entity in carrying out action or policy;
(l) original data in a computer program if the government entity chooses not to disclose the program;
(m) arrest warrants after issuance, except that, for good cause, a court may order restricted access to arrest warrants before service;
(n) search warrants after execution and filing of the return, except that a court, for good cause, may order restricted access to search warrants before trial;
(o) records that would disclose information relating to formal charges or disciplinary actions against a past or present government entity employee if: (1) the disciplinary action has been completed and all time periods for administrative appeal have expired, and (2) the charges on which the disciplinary action was based were sustained;
(p) records maintained by the Division of State Lands and Forestry or the Division of Oil, Gas and Mining that evidence mineral production on government lands;
(q) final audit reports;
(r) occupational and professional licenses;
(s) business licenses; and
(t) a notice of violation, a notice of agency action under section 63G-4-201, or similar records used to initiate proceedings for discipline or sanctions against persons regulated by a government entity, but not including records that initiate employee discipline.
See id. § 63G-2-301(3).
If a record was subject to a confidentiality agreement before GRAMA’s effective date, April 1, 1992, the prior law and judicial interpretations are controlling, unless all parties to the agreement agree otherwise. See id. § 63G-2-105.
What records are excluded: “Records of a governmental entity or political subdivision regarding security measures designed for the protection of persons or property, public or private,” are not subject to GRAMA, including security plans, security codes, combinations or passwords, passes and keys, security procedures, and building and public works designs, to the extent the records or information relate to a public entity’s ongoing security measures. Id. § 63G-2-106. Also, records controlled or maintained by any government entity subject to the Standards for Privacy of Individually Identifiable Health Information are not subject to GRAMA. See id. § 63G-2-107.
“[A]ll papers, documents, machine readable materials, or any other written or recorded matters regardless of their physical form or characteristics, that are produced or acquired in the course of agency business” are subject to the act except for enumerated exemptions. 1 V.S.A. § 317(b). This includes all forms of records, whether on paper or in electronic form. 1 V.S.A. § 316(h).
a. General Definition of Records: "Public records" are defined as "all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business." Va. Code Ann. § 2.2-3701. This broad definition covers records in a fixed, tangible medium or stored in electronic form.
b. Existing Records: The Act applies only to records in existence and in custody of the public body at the time the request for official records is received. 1991 Va. Op. Atty. Gen. 13 (June 21, 1991). The Act does not require that a public body create or prepare a particular record if it does not already exist. See Va. Code Ann. § 2.2-3704.D.; see also Hale v. Washington, 241 Va. 76, 81, 400 S.E.2d 175 (1991); National Rural Utilities Cooperative Finance Corporation v. Greenlief, 27 Va. Cir. 140 (Fairfax Cir. Ct. 1992). However, the public body may summarize or abstract the information under terms agreed upon by the requester and the public body. Va. Code Ann. § 2.2-3704.D.
c. Types of Records: All types of records are covered.
The Act applies to all “public records,” defined as any record “relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” RCW 42.56.010. Courts have interpreted this broadly. For example, records regarding “community contributions” from Native American tribes to the State Gambling Commission are public records, because the Commission relies on those documents when negotiating compacts with the tribes. Confederated Tribes of Chehalis Reservation v. Johnson, 135 Wn.2d 734, 958 P.2d 260 (1998). In Concerned Ratepayers Association v. Public Utility District No. 1, 138 Wn.2d 950, 983 P.2d 635 (1999), the court found that an agency “used” a record that it had examined at the vendor’s site and subsequently cited in a feasibility study. Electronic “metadata” is disclosable as a public record if the metadata is specifically requested. O’Neill v. Shoreline, 170 Wn.2d 138, 240 P.3d 1149 (2010). The Act does not apply to requests for information rather than records. See Smith v. Okanogan Cnty., 100 Wn. App. 7, 994 P.2d 857 (2000); Bonamy v. City of Seattle, 92 Wn. App. 403, 994 P.2d 857 (1998).
The Freedom of Information Act applies to "any writing containing information relating to the conduct of the public's business, prepared, owned and retained by a public body." W. Va. Code § 29B-1-2(4). The focus of the FOIA is information, not documents. Farley v. Worley, 215 W. Va. 412, 420, 599 S.E.2d 835, 843 (2004). As the state Supreme Court has noted, this provision "constitutes a liberal definition of a 'public record' in that it applies to any record which contains information relating to the conduct of the public's business, without the additional requirement that the record is kept 'as required by law' or 'pursuant to law,' as provided by the more restrictive freedom of information statutes in some of the other states." Daily Gazette v. Withrow, 350 S.E.2d at 742-43 (citations omitted).
Earlier editions of this Guide observed that the requirement that the writing contain "information relating to the conduct of the public's business" is one of the easiest to understand and apply. As the state Supreme Court held in Withrow, 177 W. Va. 110, 350 S.E. 2d (1986), this broad definition includes documents that contain a mixture of "official" and "personal" information regarding a public officer or body:
[If the] document contains information 'relating to the conduct of the public's business,' [it] is . . . a 'public record' under the State FOIA . . . That the . . . document involves 'personal,' as well as 'official,' conduct of the public body does not vitiate the 'public' nature of the document. The term 'public record' should not be manipulated to expand the exemptions to the State FOIA; instead, the burden of proof is upon the public body to show that one (or more) of the express exemptions applies to certain material in the document.
Daily Gazette v. Withrow, 350 S.E.2d at 744. However, Associated Press v. Canterbury, took a much more narrow, crabbed view of the statutory term “related to the conduct of the public’s business.” 224 W. Va. 708, 688 S.E.2d 317 (2009). The Court held that the definition of a “writing” contained in FOIA includes e-mail communications. But, it also held that “a personal e-mail communication by a public official or public employee, which does not relate to the conduct of public's business, is not a “public record” under FOIA. While that holding is unsurprising, the Court chose to narrowly construe the statutory language “relating to the conduct of the public’s business.”
The Court’s opinion advised trial courts to restrict their review of whether a record was “public’ to an analysis of the content of the e-mail and not extend review to a context-driven analysis because of public interest in the record. Thus, the court held that an email sent by a member of the judiciary via a court email system to an officer of a private corporate litigant that had a fifty-million-dollar adverse jury award appeal pending before the court) was not a “public record” subject to the FOIA. The decision was criticized by commentators and by this Guide. See e.g., Taking Out The Context: A Critical Analysis of Associated Press v. Canterbury, 113 W. Va. Law Rev. 259 (2010).
Both the majority and a dissenting opinion in Canterbury indicated that the state’s legislature should consider amending the statute if it desired a broader interpretation of “public record.” Subsequently, the 2015 West Virginia Legislature amended FOIA to recognize a broader interpretation of "public record" consistent with the transparency goals of the statute. W. Va. Code § 29B-1-2(4). That amendment rejected Canterbury's crabbed interpretation of "public record" and redefined the term to include "any writing containing information prepared or received by a public body, the content or context of which, judged either by content or context, relates to the conduct of the public's business W. Va. Code § 29B-1-2(4). (emphasis supplied).
Thus, West Virginia courts must now consider both the content of information possessed by a public body as well as the nexus between the information sought and the context in which the information was created. In Canterbury, for example, the Chief Justice's emails sought by the Associated Press were sent to the CEO of a litigant whose company had a multi-million-dollar appeal pending before the Supreme Court. After the 2015 amendment those facts would constitute relevant context when a court determines whether information in the emails related to the conduct of the public's business. If so related, the information would fall within the statutory definition of "public record."
Guidance as to the impact of the 2015 amendment of the definition of "public record" may be gleaned from Justice Workman's concurring and dissenting opinion in Associated Press v. Canterbury. Justice Workman suggested an analysis that would be relevant to a trial court's determination of whether requested document relates to the conduct of the public's business when judged by its content or context:
Two ways in which a consideration of “context” is not only relevant, but necessary, to a FOIA determination immediately come to mind. First, context necessarily must be considered where the meaning of a writing is not apparent on its face. For example, consider a hypothetical e-mail from a judge to a personal friend that simply states: “Go ahead and rent the boat.” A consideration of the context in which that e-mail was written is necessary to determine whether it contains information relating to “the conduct of the public's business.” If the judge and the recipient of that e-mail are merely discussing a planned weekend adventure, and the friend has no connection to the court or any pending cases, the e-mail is clearly personal and *732 **341 does not contain information relating to the conduct of the public's business. As such, it would not be a public record nor subject to disclosure under FOIA.
If, however, the judge sent the hypothetical e-mail to a personal friend who also happened to be hired by the judge to plan a court retreat, and the boat was being rented for that purpose using public funds, such statement does relate to the conduct of the public's business. Specifically, the context in which the e-mail was sent reveals that it relates to official court business and involves the expenditure of public funds. As such, it would be considered a public record and be subject to disclosure under FOIA.
In this example, the meaning of the content of the e-mail depends on understanding the circumstances in which it was written. Thus, “context” can be central to determining whether the content relates to “the conduct of the public's business.”
Second, the context in which a document is written can provide, in and of itself, information relating to the conduct of the public's business. The mere fact that Justice Maynard and Mr. Blankenship exchanged e-mails (the content of which had nothing to do with the case then pending before the Supreme Court of Appeals) demonstrates virtually nothing when examined solely by their literal content.9 But the public can garner from the context of the e-mails that the two are friends. That information is relevant under the circumstances of their roles as Justice and litigant, and thus such information should be subject to disclosure as a public record.
Associated Press v. Canterbury, 224 W. Va. 708, 731-731, 688 S.E.2d 317, 340-341 (2009) (Workman, J., concurring and dissenting).
The Court has also broadly defined what is "owned and retained by a public body": "[L]ack of possession of an existing writing by a public body at the time of a request under the State's Freedom of Information Act is not by itself determinative of the question whether the writing is a 'public record' under W. Va. Code § 29B-1-2(4). . . . The writing is 'retained' if it is subject to the control of the public body." Daily Gazette v. Withrow, 350 S.E.2d at 744.
As Withrow noted, a public body can be compelled to produce records under the Freedom of Information Act if those records are in the hands of its attorney, bank, or other agent. However, subsequent to Withrow, the Supreme Court held that "[w]here a public body has a legal right to obtain a copy of a writing relating to the conduct of the public's business, which was prepared and retained by a private party, but the public body does not exercise that right, the fact that the public body has the right to obtain a copy of the document does not, standing alone, mean that the writing is a "public record" as defined by the Freedom of Information Act." Affiliated Construction Trades Foundation v. Regional Jail and Correctional Facility Authority, 200 W. Va. 621, 622, 490 S.E.2d 708, 709 (1997).
The FOIA requirement that a writing must have been "prepared, owned and retained by a public body" is somewhat ambiguous. However, in a recent decision, the Supreme Court has clarified the meaning of the phrase, interpreting the word "and" used in the phrase "prepared, owned and retained by a public body" to be read as "or." In Daily Gazette v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996), a "public record" was held to include written communications between a public body and private persons or entities. The court recognized a very narrow exception to the disclosure requirement where such communications "consist of advice, opinions or recommendations to the public body from outside consultants or experts obtained during the public body's deliberative, decision-making process." Id., Syl. Pt. 4.
In Shepherdstown Observer v. Maghan, 226 W. Va. 353, 700 S.E.2d 805 (2010), a public body argued that a zoning petition prepared by private citizens, but in the possession of a County Clerk, did not qualify as a public record because it was not “prepared . . . by a public body.” The Court rejected that argument, holding that “under the West Virginia Freedom of Information Act (FOIA) . . . a ‘public record’ includes any writing in the possession of a public body that relates to the conduct of the public's business which is not specifically exempt from disclosure by W. Va. Code, 29B-1-4, even though the writing was not prepared by, on behalf of, or at the request of, the public body.” Id. Syl. Pt. 2.
It is clear that documents kept by a public body and containing information relating to the conduct of the public's business are not exempt from disclosure simply because they were initially "prepared" by some other person or entity.
Essentially all information in the hands of the agencies and officers described above is subject to inspection. Section 19.21 of the Open Records law describes the reach of a public official’s custody of public records as follows:
“Each and every officer of the state, or of any . . . municipality or district, is the legal custodian of and shall safely keep and preserve all property and things . . . which are in the lawful possession or control of the officer . . . or to the possession or control of which the officer . . . may be lawfully entitled, as such officer.”
Wis. Stat. § 19.21(1). An officer’s custody of records is not limited to records the officer is required by law to maintain, but extends to all records the officer actually maintains in his official capacity. Hathaway v. Green Bay Joint Sch. Dist. No. 1, 116 Wis. 2d 388, 393–94, 342 N.W.2d 682, 685 (1984). The records subject to inspection and copying under the Open Records law are defined as follows:
“‘Record’ means any material on which written, drawn, printed, spoken, visual or electromagnetic information or electronically generated or stored data is recorded or preserved, . . . that has been created or is being kept by an authority.”
Wis. Stat. § 19.32(2). See Woznicki v. Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996) (private telephone records obtained by subpoena are “records” subject to the Open Records law while they remain in the custody of the district attorney). On the other hand, “drafts and notes . . . prepared for the originator’s personal use” are not “records” within the Open Records law. Wis. Stat. § 19.32(2); State v. Pankin, 217 Wis. 2d 200, 210, 579 N.W.2d 52 (Wis. Ct. App.) (judge’s personal notes compiled in connection with sentencing and placed in court file are not subject to inspection), review denied, 217 Wis. 2d 522, 580 N.W.2d 691 (1998). An authority cannot withhold an otherwise final document from inspection simply by labeling it as a “draft,” however. Fox v. Bock, 149 Wis. 2d 403, 417, 438 N.W.2d 589 (Wis. Ct. App. 1989).