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2. Discussion of each exemption

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  • Alaska

    The public records statute, in A.S. 40.25.120, specifically exempts from disclosure:

    1. records of vital statistics and adoption proceedings which shall be treated as required by AS 18.50.
    2. records pertaining to juveniles unless disclosure is authorized by law.
    3. medical and related public health records.
    4. records required to be kept confidential by federal law or regulation or by state law.
    5. records the state is required to keep confidential in order to secure or retain federal assistance.
    6. certain records compiled for law enforcement purposes. [For more specific description of the law enforcement record exemption, see AS 40.25.120(a)(6)(A) to (G).]
    7. names, addresses and other information identifying a person as a participant in the Alaska Higher Education Savings Trust under AS 14.40.802 or the advance college tuition savings program under AS 14.40.803 - 14.40.817;
    8. public records containing information that would disclose or might lead to the disclosure of a component in the process used to execute or adopt an electronic signature if the disclosure would or might cause the electronic signature to cease being under the sole control of the person using it;
    9. [See delayed repeal note]. reports submitted under AS 05.25.030 concerning certain collisions, accidents or other casualties involving boats;
    10. records or information pertaining to a plan, program or procedures for establishing, maintaining or restoring security in the state, or to a detailed description or evaluation of systems, facilities or infrastructure in the state, but only to the extent that the production of the records or information

    (A) could reasonably be expected to interfere with the implementation or enforcement of the security plan, program or procedures;

    (B) would disclose confidential guidelines for investigations or enforcement and the disclosure could reasonably be expected to risk circumvention of the law; or

    (C) could reasonably be expected to endanger the life or physical safety of an individual or to present a real and substantial risk to the public health and welfare;

    1. the written notification regarding a proposed regulation provided under AS 24.20.105 to the Department of Law and the affected state agency and communications between the Legislative Affairs Agency, the Department of Law, and the affected state agency under AS 24.20.105. Note: This subsection AS 40.25.120(a)(11) was repealed effective August 1, 2018.

    In a number of instances, a statute or regulation states that an agency “may keep confidential” certain data. A reporter seeking such information should note that this law only authorizes, but does not require nondisclosure. It could be argued that because of this, the general public record disclosure provision of A.S. 40.25.120 controls, and requires disclosure, since the only applicable exemption is for “records required to be kept confidential by a federal law or regulation or by a state law.” The Alaska appellate courts have not addressed this issue, but the argument is plausible and should be asserted. If nothing else, a balancing test should be required in cases where nondisclosure is permissive rather than mandatory, so that in each case the court must weigh the need for disclosure against the need for confidentiality.

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  • Arizona

    There are no specific exceptions to disclosure codified in the Arizona Public Records Law.

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  • Arkansas

    (1) State income tax records. Ark. Code Ann. § 25-19-105(b)(1). This exemption covers more than just income tax returns of individuals. See, e.g., Ark. Op. Att’y Gen. No. 91-093 (payroll records indicating amount withheld from an employee’s paycheck for state income taxes). However, it does not apply to records pertaining to other state taxes, such as the sales tax, or to tax records of political entities other than the state. Some of these other tax records are exempt under other statutes. E.g., Ark. Code Ann. § 26-18-303 (forbidding disclosure of state tax records maintained by Department of Finance & Administration, with certain enumerated exceptions).

    (2) Medical, adoption, and education records. Ark. Code Ann. § 25-19-105(b)(2).

    (a) The exemption for “medical records” is limited to specific medical information about individuals, such as test results, employee health reports, and workers’ compensation records that reflect the nature and cause of an injury. Ark. Op. Att’y Gen. Nos. 95-262, 87-135, 87-070. The records must be related to the treatment or diagnosis of a medical condition. Ark. Op. Att’y Gen. Nos. 2000-232, 2000-226, 99-110, 99-042, 98-261, 98-202, 96-203, 91-374. Consequently, records that identify persons who received money from a county indigent care fund do not qualify, Ark. Op. Att’y Gen. No. 89-147, nor do hospital billing records. Ark. Op. Att’y Gen. No. 91-208. Also, statements by medical personnel to law enforcement officers will typically not be exempt. Ark. Op. Att’y Gen. No. 99-110. Ambulance records that include the patient’s medical history and a paramedic’s evaluation are exempt, as are home health care records. Ark. Op. Att’y Gen. Nos. 99-110, 96-203. Autopsy reports prepared by the State Medical Examiner are not considered medical records; however, these records are confidential under Ark. Code Ann. § 12-12-312(a) so long as they remain in the possession of the state crime lab. Once they leave the custody of the crime lab, however, the reports are subject to the FOIA unless another exemption, such as the act’s law enforcement exemption, Ark. Code Ann. § 25-19-105(b)(6), is applicable. See Ark. Op. Att’y Gen. Nos. 2001-100, 99-110, 97-294, 87-353. If the autopsy report is prepared by someone other than the State Medical Examiner, the crime lab confidentiality statute would not apply. Ark. Op. Att’y Gen. Nos. 97-294 (autopsy report that was never in possession of crime lab is subject to disclosure), 87-135 (autopsy report of coroner qualified to conduct post mortem tests is available under FOIA unless otherwise exempted).

    (b) There are apparently no cases construing the exemption for adoption records; the Supreme Court has simply recognized that it exists. Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994). In 1978, the Attorney General opined that the exemption did not apply to records containing the names and addresses of foster families. Ark. Op. Att’y Gen. No. 78-108. However, another statute exempts records compiled or received by a state agency in placing a child for adoption, including foster care records. Ark. Code Ann. § 9-28-407(h) (as amended by Act 1211 of 2001). This statute and others dealing specifically with adoption records are independent exemptions to the FOIA. See, e.g., Ark. Code Ann. §§ 9-9-217, 9-9-406, 9-9-506.

    (c) As amended by Act 1653 of 2001, Section 25-19-105(b)(2) exempts “education records as defined in the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, unless their disclosure is consistent with the provisions of [that act].” Previously, the FOIA used the term “scholastic records,” which may have been narrower in scope than the definition of “education records” in FERPA. The 2001 amendment makes the exemption coextensive with FERPA, which defines “education records” as “records, files, documents and other materials which . . . contain information directly related to a student; and . . . are maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. § 1232g(a)(4)(A). See Ark. Op. Att’y Gen. No. 2001-154 (name of student and other personally identifying information in letter is within the FERPA definition and thus exempt from disclosure under Section 25-19-105(b)(2)).

    Certain records are excluded from the FERPA definition, e.g., records of instructional personnel and records created by a law enforcement unit of the institution or agency for law enforcement purposes. Id. § 1232g(a)(4)(B). Moreover, so-called “directory information” — a student’s name, address, telephone number, date and place of birth, major field of study, participation in school activities and sports, weight and height of members of athletic teams, degrees and awards received, and other schools attended — is not covered by the act, although a student may specifically request that the institution or agency not disclose such information without his or her prior consent. Id. § 1232g(a)(5)(A) & (B). Under a 1998 amendment, some disciplinary records of students at institutions of postsecondary education may be disclosed. Id. § 1232g(b)(6).

    (3) Historical and archeological files. Ark. Code Ann. § 25-19-105(b)(3). This provision exempts the “site files and records maintained by the Arkansas Historic Preservation Program and the Arkansas Archeological Survey.” It was apparently designed to prevent the disclosure of information that would create a risk of destruction or harm to historic sites or objects. Ark. Op. Att’y Gen. No. 86-213.

    (4) Grand jury minutes. Ark. Code Ann. § 25-19-105(b)(4). This exemption states only that grand jury “minutes” are not to be disclosed and may therefore not apply to other grand jury records. The term “minutes” apparently includes any record reflecting what transpired before the grand jury, including documentary evidence received and a summary or verbatim transcript of testimony. See Davis v. Kirby, 244 Ark. 142, 424 S.W.2d 149 (1968). However, the grand jury’s use of a public record in deliberations does not affect its status as a public document. See Collins v. State, 200 Ark. 1027, 143 S.W.2d 1 (1940).

    (5) Judicial and quasi-judicial drafts. Ark. Code Ann. § 25-19-105(b)(5). This provision, which exempts “[u]npublished drafts of judicial or quasi-judicial opinions,” is designed to shield draft opinions of the courts and those administrative agencies that act in a quasi-judicial capacity. However, it does not extend to other types of preliminary materials prepared by agencies, such as proposals, draft guidelines, or memoranda. Ark. Op. Att’y Gen. No. 91-175.

    (6) Law enforcement records. Ark. Code Ann. § 25-19-105(b)(6). This exemption applies to “[u]ndisclosed investigations by law enforcement agencies of suspected criminal activity.” For a more thorough discussion, see part IV.N.4, infra, of this outline.

    (7) Unpublished memoranda, working papers, and correspondence. Ark. Code Ann. § 25-19-105(b)(7). This provision exempts “[u]npublished memoranda, working papers, and correspondence of the Governor, members of the General Assembly, Supreme Court Justices, Court of Appeals Judges, and the Attorney General.”

    (a) The exemption applies to records of the specified officials, their staffs, and outside consultants. Bryant v. Mars, 309 Ark. 480, 830 S.W.2d 869 (1992). But see Legislative Joint Auditing Committee v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987) (working papers of employees of a legislative committee are not within the exemption); Ark. Op. Att’y Gen. No. 95-128 (research files and rough drafts of the governor’s advisory committee on the state constitution are not working papers of the governor). It is clear that the working papers, memoranda, and correspondence of state administrative agencies, cities, counties, and school districts are not exempt. Arkansas Hwy. & Transp. Dep’t v. Hope Brick Works Inc., 294 Ark. 490, 744 S.W.2d 711 (1988). The exemption is applicable to records of the Lieutenant Governor generated during his or her service as acting governor, but not otherwise. Ark. Op. Att’y Gen. No. 95-277.

    (b) With respect to the Governor, the Attorney General has opined that the exemption “should not be construed to apply to the work product of all executive branch employees, even when they are working on projects of interest to the Governor.” If that were the case, “the FOIA would, in effect, become inapplicable to the executive branch of government.” Rather, the exemption should apply “only if it is established, as a factual matter, that the individuals who generated the documents work for the Governor and serve in a representative capacity or relationship similar to that served by members of the Governor’s staff such that the case of Bryant v. Mars will support the exemption.” Ark. Op. Att’y Gen. No. 97-369. In Bryant, the Supreme Court held that the exemption applied to the working papers of Assistant Attorneys General and consultants retained by the Attorney General’s Office.

    (c) Although unpublished memoranda, working papers, and correspondence are not available under the FOIA from an official or staff member covered by the exemption, the same documents are not exempt when in the hands of a person to whom the exemption does not apply. Ark. Op. Att’y Gen. Nos. 95-128, 93-166, 92-346. The term “unpublished” is given its usual meaning, i.e., “issued, put into circulation, or made publicly known.” Ark. Op. Att’y Gen. No. 92-129 (letter from state senator to deputy prosecutor in regard to criminal defendant was published and thus not within exemption).

    (d) Except for the Attorney General, his or her staff, and outside consultants, the exemption does not apply to litigation files and similar records of lawyers who represent government bodies, such as city and county attorneys, law firms retained by cities and school districts, and staff counsel at state agencies. City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990); Arkansas Hwy. & Transp. Dep’t v. Hope Brick Works Inc., supra. Neither the attorney-client privilege nor the work-product doctrine create exemptions to the FOIA. Scott v. Smith, 292 Ark. 174, 728 S.W.2d 515 (1987). However, documents of some government attorneys might be protected from disclosure by another statute. E.g., Ark. Code Ann. § 23-42-207(b)(2) (work product and other communications of Securities Commissioner and staff lawyers are confidential). Litigation files of attorneys representing doctors in public hospitals are not public records subject to disclosure when the attorneys are paid by private medical-malpractice insurance carriers. Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511 (2012).

    (8) Court orders and rules. Ark. Code Ann. § 25-19-105(b)(8). Under this provision, a record is exempt from the FOIA if “protected from disclosure by order or rule of court.” See, e.g., Arkansas Newspaper Inc. v. Patterson, 281 Ark. 213, 662 S.W.2d 826 (1984) (court order sealing judicial records to prevent prejudicial pretrial publicity); Gannett River States Pub. Co. v. Arkansas Judicial Discipline & Disability Comm’n, 304 Ark. 244, 801 S.W.2d 292 (1990) (Supreme Court rules providing for confidentiality of records of judicial discipline commission); Ark. Op. Att’y Gen. No. 90-217 (rules governing records of Supreme Court committee on professional conduct).

    (a) Without this exemption, the FOIA would likely be unconstitutional as applied to the courts. See Arkansas Newspaper Inc. v. Patterson, supra (exemption “prevents any entanglement in the separation of powers doctrine”).

    (b) The order or rule must specifically require confidentiality. In Scott v. Smith, 292 Ark. 174, 728 S.W.2d 515 (1987), the Supreme Court held that Rule 502 of the Rules of Evidence (the attorney-client privilege) and Rule 26(b)(3) of the Rules of Civil Procedure (the work-product doctrine) do not fall within this exemption, since neither deals directly with the question of disclosure under the FOIA.

    (c) A trial court has “inherent authority to protect the integrity of the court in actions pending before it” and may issue “appropriate protective orders” exempting records from the FOIA. City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990). For example, a trial court may seal documents filed with the court to prevent prejudicial pretrial publicity, Arkansas Newspaper Inc. v. Patterson, supra, and enter an order forbidding disclosure of police files to protect a criminal defendant’s right to a fair trial. Arkansas Gazette Co. v. Goodwin, 304 Ark. 204, 801 S.W.2d 284 (1990). A trial court hearing an FOIA case must “give credit” to protective orders issued by another court but may not use this exemption to enter its own order preventing access to records that would otherwise be available for public inspection. City of Fayetteville v. Edmark, supra.

    (9)(A) Competitive advantage. Ark. Code Ann. § 25-19-105(b)(9)(A). This exemption covers “[f]iles which, if disclosed, would give advantage to competitors or bidders.” It protects trade secrets and other proprietary information collected by governmental entities in the course of their activities and may, in some circumstances, shield records which, if made public, would put government itself at a competitive disadvantage. A state agency may assert this exemption on behalf of the person who submitted the information at issue to the agency. The exemption neither excludes documents “owned by the state” nor requires the state “to possess a proprietary interest in the [records] for the exception to apply[.]” Arkansas Dep’t of Finance & Admin. v. Pharmacy Associates Inc., 333 Ark. 451, 970 S.W.2d 217 (1998). The party resisting disclosure bears the burden of proof. Gannett River States Pub. Co. v. Arkansas Industrial Development Comm’n, 303 Ark. 684, 799 S.W.2d 543 (1990).

    (a) Although the exemption does not use the term “trade secrets,” disclosure of such information would plainly give advantage to competitors or bidders. See Miller v. Fairfield Bay Inc., 247 Ark. 565, 446 S.W.2d 660 (1969) (describing trade secret as a formula, method or device “that gives one an advantage over competitors”). In deciding whether a record contains a trade secret, courts will likely look for guidance to cases interpreting the Trade Secrets Act, Ark. Code Ann. §§ 4-75-601 to -607. See, e.g., Allen v. Johar Inc., 308 Ark. 45, 823 S.W.2d 824 (1992) (equipment designs and customer lists are both trade secrets). If a record is determined to be a trade secret, competitive harm should be presumed and the record deemed exempt. See Ark. Op. Att’y Gen. No. 95-106.

    (b) If the information is not a trade secret, exemption applies if it can be shown that public disclosure is “likely to cause substantial harm to [the] competitive position” of the person or entity that has provided commercial or financial information to the agency. Arkansas Dep’t of Finance & Admin. v. Pharmacy Associates Inc., supra, quoting National Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). Compare Leathers v. W.S. Compton Co. Inc., 316 Ark. 10, 870 S.W.2d 710 (1994) (interpreting an identical tax code provision that was based on the FOIA as requiring confidentiality if disclosure of certain tax records would give any advantage to a competitor). The exemption also applies if disclosure of the records would impair the government’s ability to obtain the information in the future. Ark. Op. Att’y Gen. Nos. 97-071, 93-254, 87-473.

    (c) The Attorney General has emphasized that “[e]very business has its unique characteristics which, if revealed, may or may not give advantage to a competitor.” Ark. Op. Att’y Gen. No. 87-194. This determination is made on a case-by-case basis, with the submitter having the burden of proof. Ark. Op. Att’y Gen. Nos. 97-071, 94-015, 91-390. See, e.g., Ark. Op. Att’y Gen. Nos. 98-026 (records obtained by Livestock & Poultry Commission from poultry companies pursuant to federal requirements probably fall within the exemption, because “the nature of the information . . . appears to be particularly susceptible to misuse by competitors”), 96-363 (amount of tax credit and identity of recipients under low income housing program are probably not exempt, once the building has been placed in service and the final tax credit determined), 96-301 (submissions by professionals being considered for work on county project may be exempt), 96-229 (policy and procedure manual prepared by firm working under contract with state agency is probably not exempt), 95-414 (records reflecting hotel and restaurant taxes paid by specific business entity may be exempt), 95-106 (contracts and other documents detailing the delivery of services or supplies may be exempt), 94-015 (customer lists are exempt), 93-254 (customer lists and records that reflect pricing structure are exempt), 92-156 (payroll records and wage rates may be exempt), 88-113 (exemption not likely to apply to records of Arkansas Forestry Commission pertaining to farming operations of individual landowners), 88-065 (customer lists are exempt), 87-259 (city tax records based on gross receipts or sales could qualify), 87-194 (county tax assessment records might be exempt), 84-127 (information submitted by utilities to Public Service Commission are not exempt), 84-042 (financial reports obtained by Transportation Commission in regulating common carriers are not exempt), 83-190 (financial data furnished to Arkansas Economic Development Commission in connection with grant application may be exempt), 82-148 (records of exploratory activities gathered by the Commission on Pollution Control and Ecology are exempt).

    (d) Unlike the federal FOI act, which exempts “trade secrets and commercial or financial information obtained from a person,” the Arkansas exemption appears to apply to any record, regardless of its source, if its disclosure would give advantage to a competitor. In some circumstances, government entities, as well as private organizations subject to the FOIA, could well be placed at a competitive disadvantage if records that they have generated are made public. Thus a circuit court held the exemption applicable to certain fund-raising activities of a state university that competes with other colleges for donations from the private sector. Arkansas Times Ltd. P’ship v. University of Arkansas, No. CV-2002-7175 (Pulaski County Cir. Ct. 2002). See also Ark. Op. Att’y Gen. Nos. 97-048 (exemption could apply to records of state university hospital), 95-108 (exemption is potentially applicable where disclosure of records would have adverse competitive impact on a city).

    (e) A brief passage in City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990), suggests that the competitive advantage exemption applies only if a competitor requests the records. Under this interpretation, an agency could not invoke the exemption when the news media files an FOIA request. Surely this is not the law, for the issue is not the identity of the requester but whether competitors would benefit if the information becomes public. An earlier decision, Gannett River States Pub. Co. v. Arkansas Industrial Development Comm’n, supra, reflects proper application of this exemption. There a newspaper sought access to agency records concerning a company that planned to locate a steel mill in the state. In remanding the case for further proceedings, the Supreme Court held that the trial judge should examine the records in camera and make evidentiary findings as to whether their disclosure would give advantage to the company’s competitors.

    (f) Insofar as harm to bidders is concerned, the exemption is designed to protect the integrity of the bidding process for government contracts. Obviously, a potential bidder should not be able to obtain, prior to the deadline for submission, a copy of bids already filed. But even after the bids have been opened, disclosure of financial information may have an adverse impact if it is so detailed that other companies could use it to estimate the successful bidder’s costs and thus possibly undercut his bids on future projects. Arkansas Dep’t of Finance & Admin. v. Pharmacy Associates Inc., supra. Moreover, disclosure of a bidder’s confidential financial information “would have the effect of diminishing the prospect of original and candid bids in the future.” Id. The exemption could also come into play apart from the bidding process itself. See, e.g., Ark. Op. Att’y Gen. No. 92-156 (wage rate information obtained by labor department from companies that had participated in sealed bidding might be exempt).

    (9)(B) Arkansas Economic Development Commission. Ark. Code Ann. § 25-19-105(b)(9)(B). This provision, which was intended to further the state’s interest in economic development, covers records maintained by the commission relating to “any business entity’s planning, site location, expansion, operations, or product development and marketing,” unless the business entity consents to disclosure. The exemption remains applicable when the commission furnishes the records to another public entity. Ark. Op. Att’y Gen. No. 95-108. However, similar records of city or county economic development agencies do not fall within the exemption. Id. Other commission records are exempt under specific statutes. E.g., Ark. Code Ann. § 15-4-606 (applications and related documents submitted under Industrial Revenue Bond Law). A comprehensive statutory system for the development of economic “super projects,” id. §§ 15-4-3201 to -3224, extends the AEDC privilege to certain state and local entities insofar as they handle and prepare records pursuant to their “powers, duties, and obligations” under the system, id. § 15-4-3222.

    (10) Undercover law enforcement officers. Ark. Code Ann. § 25-19-105(b)(10). This exemption protects the “identities of law enforcement officers currently working undercover with their agencies and identified in the Arkansas Minimum Standards Office as undercover officers.” By its own terms, the exemption does not cover records of the number of undercover officers that a law enforcement agency has listed. Moreover, it does not apply to former undercover officers who are no longer employed. Ark. Op. Att’y Gen. No. 96-005.

    (11) Computer Security Measures. Ark. Code Ann. § 25-19-105(b)(11). Added by Act 1653 of 2001, this exemption covers “[r]ecords containing measures, procedures, instructions, or related data used to cause a computer or a computer system or network, including telecommunication networks, or applications thereon, to perform security functions, including, but not limited to, passwords, personal identification numbers, transaction authorization mechanisms, and other means of preventing access to computers, computer systems or networks, or any data residing therein.” See Ark. Op. Att’y Gen. No. 2003-064 (opining that credit card account numbers and agency identification numbers are exempt because their disclosure could “result in the type of security breach that this exemption was apparently intended to prevent”).

    (12) Personnel and evaluation records. Ark. Code Ann. § 25-19-105(b)(12) & (c)(1). Under subsection (b)(12), personnel records are exempt from the FOIA “to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.” If, however, the personnel records in question are “employee evaluation or job performance records,” a different standard applies. Subsection (c)(1) provides that such records are open for public inspection only if a final administrative decision has been made to terminate or suspend the employee, the evaluation records formed a basis for that decision, and there is a “compelling public interest” in disclosure. Under Ark. Code Ann. § 25-19-105(c)(2), an employee or former employee has the right to examine his or her own personnel and evaluation records, even though they are exempt from disclosure to the public. However, this special right of access does not apply to records exempt from disclosure by virtue of the FOIA or another statute, Ark. Op. Att’y Gen. No. 98-223, or records concerning another employee that may have been placed in the requester’s own personnel file, unless they can also be characterized as personnel, evaluation, or job performance records of the requester. See Ark. Op. Att’y Gen. Nos. 2000-058, 95-131.

    (a) Personnel Records

    (i) Although there is no definition in the FOIA, the Attorney General has consistently taken the position that the term “personnel records” includes virtually all records pertaining to individual employees and former employees, with the exception of evaluation and job performance records. Ark. Op. Att’y Gen. Nos. 2001-152, 2000-257, 2000-232, 2000-130, 99-244, 99-148, 99-042, 99-040. See, e.g., Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (records of police promotional examination); Ark. Op. Att’y Gen. Nos. 2001-152 (unsolicited complaints about public school employee), 2001-120 (travel records), 99-147 (exit interview documents), 99-040 (change of status forms, memorandum reflecting employee transfer, emergency contact form, letters reflecting conditions of employment and standard probationary period), 98-223 (records that employee is required to prepare, complete, and sign as part of his or her departure from service), 98-126 (time cards), 98-001 (complaint alleging sexual harassment), 97-331 (pension and employee benefit records), 97-034 (list of employees who attended firearms training course), 97-070 (worker’s compensation documents, grievance records), 96-205 (salary history), 96-142 (resumes, interview notes, letters of recommendation, transfer records, insurance forms, legal documents), 96-088 (letter of resignation), 95-256 (pre-employment background investigation), 92-132 (records reflecting vacation time and sick leave), 91-003 (leave records), 90-335 (lists of names and addresses of employees), 88-224 (payroll records). Compare Ark. Op. Att’y Gen. No. 94-391 (college administrator’s letter in response to a complaint filed with an accrediting body is not a personnel record, even though it mentions an employee). Documents that contain information about employees of other agencies are apparently not considered personnel records for purposes of the exemption. See Ark. Op. Att’y Gen. No. 92-145 (teacher employment contracts maintained in office of county treasurer, as required by statute, are not personnel records). Records that do not pertain to individual employees, but rather discuss the employees as a group, are not covered by the exemption. Ark. Op. Att’y Gen. No. 96-258.

    (ii) Whether the records of unsuccessful job applicants are personnel records remains an open question. In the past, the Attorney General’s Office has taken the position that records of job applicants are not personnel records because potential employees are not personnel. E.g., Ark. Op. Att’y Gen. Nos. 98-102, 90-248. More recent opinions, however, treat the question as open. Ark. Op. Att’y Gen. Nos. 2005-004 n.1, 99-002. Two circuit courts have split on the issue. If the applicant is successful, his or her job application, resume, and related materials are clearly personnel records. Ark. Op. Att’y Gen. Nos. 2005-004, 97-042, 96-190, 95-244, 95-113, 94-187. The same is true for applicants for promotion or for a different government position. Ark. Op. Att’y Gen. Nos. 2005-004, 96-142, 88-133.

    (iii) Certain personnel records—such as medical and scholastic records, state income tax records, and the home addresses of non-elected state employees—are confidential by virtue of other FOIA exemptions. See, e.g., Ark. Op. Att’y Gen. Nos. 2001-169, 2001-080, 2000-257, 2000-168, 99-042, 98-261, 98-202, 98-173, 98-146, 98-101, 97-190, 96-222, 95-244, 94-319, 94-198, 92-191. Federal tax withholding information (income tax, FICA) is exempt as a matter of federal law. Ark. Op. Att’y Gen. Nos. 96-363, 91-093. Personnel records that would otherwise be disclosable are exempt if they are being used in an ongoing criminal investigation. Ark. Op. Att’y Gen. Nos. 97-079, 95-351, 93-055.

    (iv) The test for determining whether personnel records are exempt is objective, and the fact that the employee may consider release of the information invasive of his or her privacy is not relevant. Ark. Op. Att’y Gen. Nos. 2005-058, 2003-027, 2001-169, 98-152, 98-101, 98-001, 97-079, 97-034, 96-222, 96-193. In Young v. Rice, supra, the Supreme Court made plain that a two-step balancing process is to be employed, with the scales tipped in favor of disclosure. The Court subsequently refined this approach in Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998).

    1. The first issue is whether the information is of a personal or intimate nature sufficient to give rise to a substantial privacy interest. If that is so, the issue becomes whether that privacy interest is outweighed by the public’s interest in disclosure. Young v. Rice, supra. The Attorney General has opined that there is no need to proceed to the second step if the privacy interest is de minimis. Ark. Op. Att’y Gen. Nos. 95-220, 95-169, 93-131. A substantial privacy interest, the Court said in Young, exists in records that reveal “the intimate details of a person’s life, including any information that might subject the person to embarrassment, harassment, disgrace, or loss of employment or friends.” Such a privacy interest can exist even if the subject of the records is deceased, although in some cases the individual’s death may affect the outcome of the balancing process. Ark. Op. Att’y Gen. Nos. 96-368.
    2. In Stilley v. McBride, supra, the Supreme Court held that the “public interest” inquiry requires a determination that the records at issue would shed some light on the workings of government, since the purpose of the FOIA is to enable citizens to learn “what their government is up to.” That purpose is not served by disclosure of information about private citizens that reveals little or nothing about an agency’s own conduct.
    3. The Supreme Court concluded in Young v. Rice, supra, that tape recordings made of candidates during a police department promotional examination were exempt, pointing out that disclosure would reveal “embarrassing behaviors,” could “subject the candidates to embarrassment,” and could “perhaps threaten their future employment.” Similarly, the Court held in Stilley v. McBride, supra, that records showing the home addresses of police officers were exempt. In that case, an attorney sought access to the records so that he could mail the summons and complaint to two officers against whom he had filed a civil rights action. The Court determined that the officers’ privacy interests were substantial, since officers expect that they and their families will be safe at home. Also, disclosure of home addresses might subject the officers to harassment. On the other hand, there was little public interest in disclosure. The attorney’s “sole reason for requesting [the] addresses was to utilize a cheaper method of obtaining service of process on the officers,” and this reason “has little or nothing to do with learning or reporting the officers’ activities.” Because the privacy interests were substantial and the public interest non-existent, the requested records were exempt from disclosure.
    4. The Attorney General has frequently employed the balancing test. See, e.g., Ark. Op. Att’y Gen. Nos. 2000-258 (applying Young under factual circumstances similar to those in that case), 98-097 (names and addresses of retired public employees are exempt), 96-088 (employee’s letter of resignation was exempt where it set forth personal reasons for the decision and did not contain any details about the operation of the agency). Compare Ark. Op. Att’y Gen. Nos. 98-131 (because “the identity of public employees is ordinarily a matter of significant public interest,” identification photos of employees will not usually be exempt), 97-331 (disclosure of former mayor’s pension records would not constitute a clearly unwarranted invasion of personal privacy), 95-167 (letter of resignation that reflects salary information is not exempt), 94-119 (privacy interest of the former president of state university was outweighed by the public’s interest in the circumstances of his termination), 89-077 (letter stating employee’s reasons for resigning were not sufficiently personal in nature to trigger exemption).

    (v) The following personnel records have been deemed exempt by the Attorney General: Social Security numbers; marital status and similar family information, citizenship status and religious affiliation; welfare payments, payroll deductions, credit union statements, employee benefit information, and other personal financial records; insurance coverage; individual scores on promotional exams and other tests; a state university’s personnel action form; the photograph of a former undercover police officer; letters of resignation that contain information of a “personal and intimate nature”; and, in some situations, the reasons a teacher prefers to be assigned to a particular school. See, e.g., Ark. Op. Att’y Gen. Nos. 2002-160, 2000-257, 2000-168, 2000-159, 2000-122, 2000-119, 99-360, 99-002, 98-296, 98-126, 98-122, 97-331, 97-286, 97-189, 97-177, 97-079, 97-063, 97-033, 96-308, 96-205, 96-134, 96-088, 96-005, 95-220, 95-169, 95-113, 95-110, 94-198, 93-185, 93-131, 93-105, 93-079, 93-076, 92-266, 92-191, 92-089, 90-295.

    (vi) By contrast, the Attorney General has concluded that the following are not exempt: names and race of employees; birth certificates; date and place of birth; job applications, resumes, and references; employment history and military service records; fingerprint cards; identification photos; records reflecting arrests or convictions; background investigations; confirmation that psychological evaluation found law enforcement officer fit for service; educational background, training, and certification; letters of appreciation; membership in civic, professional, or social organizations; job titles and salary information; employment contracts; records indicating vacation time, sick leave, or other absences; travel records submitted for reimbursement; an unsolicited letter of complaint about an employee; applications for promotion and records relating to promotion; terms of a settlement releasing an employee from his contract; a letter advising employee of his removal from active duty but not including the reasons therefor; letters of resignation that contained no personal information; retirement notices. See, e.g., Ark. Op. Att’y Gen. Nos. 2002-159, 2001-122, 2001-120, 2001-080, 2000-175, 2000-168, 2000-130, 2000-122, 99-054, 99-035, 99-016, 99-015, 99-007, 98-281, 98-202, 98-131, 98-130, 98-122, 98-101, 98-001, 97-286, 97-190, 97-177, 97-079, 97-063, 97-042, 97-034, 97-033, 97-032, 96-269, 96-257, 96-205, 96-190, 96-142, 96-134, 95-256, 95-220, 95-169, 95-167, 95-151, 95-113, 95-080, 95-070, 95-012, 94-337, 94-319, 94-178, 94-113, 93-407, 93-185, 93-131, 93-114, 93-105, 93-076, 92-247, 92-291, 92-132, 91-351, 91-003, 90-335, 90-023, 89-077, 88-133, 88-078.

    (vii) As amended in 2001, the FOIA exempts “[h]ome addresses of nonelected state employees contained in employer records,” although the custodian of the records must, on request, “verify an employee’s city or county of residence or address on record.” Ark. Code Ann. § 25-19-105(b)(13). This exemption does not apply to other public employees, such as those who work for cities and school districts. Prior to Stilley v. McBride, supra, the Attorney General took the position that unlisted home addresses of public employees are exempt from disclosure, but that listed addresses are not. E.g., Ark. Op. Att’y Gen. No. 93-403. Post-Stilley opinions recognize that even listed addresses might be exempt, because the information can be used to harass and disclosure does not further the purposes of the FOIA. E.g., Ark. Op. Att’y Gen. Nos. 2001-148, 2000-257, 99-040. However, these opinions also state that the information is not exempt unless the employee in question has a “heightened privacy interest.” That is the case, for instance, with respect to law enforcement officers, see Ark. Op. Att’y Gen. No. 2000-168, and perhaps to public school personnel. See Ark. Op. Att’y Gen. Nos. 2002-169, 2002-158, 2001-148. But a heightened privacy interest requirement seems inconsistent with Stilley. Because the home address of any public employee — whether he or she be a file clerk or a police officer — does not shed any light whatsoever on the workings of government, it is arguably exempt under that decision even if the employee’s privacy interest cannot be described as “heightened.”

    (b) Employee Evaluation Records

    (i) Subsection (c)(1) does not provide a definition of “employee evaluation or job performance records,” but it does state that “preliminary notes and other materials” associated with the evaluation process are included. Thus, the provision exempts not only the end product, i.e., the evaluation itself, but also other records from which the evaluation was prepared. See Ark. Op. Att’y Gen. Nos. 2001-047 (evaluations of school administrator by faculty and staff), 96-256 (formal evaluation), 96-046 (evaluation appraisal forms), 95-258 (quarterly performance reports), 92-089 (“dock status” memorandum), 90-295 (memoranda and notes). Evaluation scores are also exempt. Ark. Op. Att’y Gen. Nos. 96-205, 94-194. The records must be “created by or at the behest of the employer” for use in the evaluation process. Ark. Op. Att’y Gen. No. 2001-147. Thus, faculty evaluations performed by a student government association and not used in the university’s evaluation process are not exempt. Ark. Op. Att’y Gen. No. 90-086.

    (ii) The term “job performance record” has been interpreted as any record relating to an employee’s performance or lack of performance on the job. Ark. Op. Att’y Gen. Nos. 2001-149, 2000-335, 2000-257, 2000-130, 99-360, 99-244, 98-296, 97-190, 94-306. This definition covers a variety of records. E.g., Ark. Op. Att’y Gen. Nos. 2001-147 (documents pertaining to high school football coach’s recruiting of student athlete), 2000-257 (sheriff’s investigation into deputy’s intimate relationship with prisoner), 2000-175 (transcripts of interviews conducted during investigation into employee’s conduct), 2000-166 (grievance records filed in response to supervisor’s comments concerning employee’s job performance), 99-289 (written reprimands, letters of caution, documents upon which a recommendation for dismissal was based, and letters related to promotions and demotions), 98-006 (records of disciplinary actions less severe than suspension or termination), 98-001 (witness statements taken as part of investigation into allegation of sexual harassment), 97-415 (memorandum setting out basis for suspension and records created as part of inquiry into misconduct leading to the suspension), 97-261 (document containing incidents that led to employee’s termination), 97-190 (letter of warning to employee), 97-081 (records of police department internal affairs investigation), 97-063 (notice of termination, employee’s response and request for hearing, employee’s work history), 96-324 (records created as part of inquiry into alleged employee misconduct), 95-326 (records on which suspension of ambulance driver was based), 95-171 (letter of termination that includes reasons for the decision), 95-109 (memorandum explaining employee’s demotion), 94-127 (records of investigation into alleged wrongdoing), 94-110 (records of previous suspension), 93-105 (records of faculty member’s promotion), 93-076 (incident reports), 93-055 (letter recommending termination, letter of reprimand, and other disciplinary records), 92-319 (internal affairs investigation of police officer), 92-247 (notice to terminate teacher and records collected or created as part of investigation leading to that decision), 92-207 (letter of caution to jail employee and other records concerning investigation into an incident at the facility), 92-191 (records reflecting prior suspensions, without pay, of employee who was subsequently terminated), 91-303 (written reprimand), 91-003 (records concerning state agency’s investigation into alleged misconduct by employee), 88-162 (records of inquiry into charges of sexual harassment and resulting reprimand), 88-097 (documents on which recommendation for dismissal of teachers was based).

    (iii) A document does not constitute a job performance record merely because it discusses the general duties of an employee or reflects some aspect of how an employee is doing in his or her job. A previously prepared document or an unsolicited letter of complaint about an employee is not transformed into a job performance record by virtue of a subsequent investigation. However, these documents are personnel records covered by Ark. Code Ann. § 25-19-105(b)(12). Ark. Op. Att’y Gen. Nos. 2001-123, 2000-175, 2000-174, 2000-166, 2000-058, 99-339, 99-026, 98-001, 97-342, 97-081, 96-257.

    (iv) Evaluations of persons other than employees, such as members of a school board, are not covered. Ark. Op. Att’y Gen. No. 87-361. In that opinion, the Attorney General relied on the common law definition of employee, which would exclude independent contractors. If an agency has legitimately obtained for its use copies of evaluations or job performance records of employees at another agency, the exemption is applicable with respect to those copies. Ark. Op. Att’y Gen. Nos. 2000-279, 2000-257.

    (v) Evaluation or job performance records are open for public inspection “only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure.” Ark. Code Ann. § 25-19-105(c)(1). If one or more of these conditions are not met, the records are exempt. Ark. Op. Att’y Gen. Nos. 2000-257, 2000-166, 2000-130, 2000-122, 2000-059, 99-244, 99-148, 99-147, 99-042, 99-041, 98-075, 98-006, 98-001, 97-154. Records that are considered job performance records include letters of recommendation of termination, letters of reprimand, disciplinary records, and documents about investigations into employee misconduct. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (2012). However, records relating to a use-of-force investigation of a police officer are not considered to be job performance records. Id.

    1. The records are exempt if there has been no suspension or termination, if the employee resigned, or if he or she was reprimanded, demoted, placed on probation, or given a letter of caution. Ark. Op. Att’y Gen. Nos. 2000-175, 98-296, 98-188, 97-176, 97-079, 97-063, 94-306, 92-266, 92-207, 91-324, 91-303, 90-295, 88-094. Similarly, the non-renewal of an employee’s contract at the end of its term does not constitute a termination. Ark. Op. Att’y Gen. No. 2001-125. Moreover, the fact that an employee resigned under pressure does not necessarily amount to a constructive termination. Ark. Op. Att’y Gen. No. 2005-094, 2004-219, 2005-164, 2002-235, 2001-246, 2001-184, 98-188, 97-063. Even if the employee has been terminated, the records are exempt until the effective date of the termination. Ark. Op. Att’y Gen. No. 95-242.
    2. Also, the records are exempt if the employee has administrative remedies available, if a decision to suspend him has been overturned, or if the employee has been reinstated and placed on probation. Ark. Op. Att’y Gen. Nos. 2005-181, 2005-160, 2002-263, 2002-158, 2000-224, 99-361, 97-415, 97-176, 97-063, 95-171, 91-296, 91-180, 88-308. The term “final administrative resolution” means the final decision-making step taken by the employing entity, regardless of the bureaucratic level at which the decision is made. Ark. Op. Att’y Gen. No. 2005-181, 98-006, 94-306, 91-003. If no review is sought, the initial decision is final. Ark. Op. Att’y Gen. Nos. 98-006, 90-292.
    3. Even if the records formed a basis for a final decision to suspend or terminate the employee, they remain exempt unless there is a “compelling public interest” in disclosure. This test is more rigorous than the “clearly unwarranted invasion of personal privacy” standard that applies to other personnel records. Moreover, the mere fact that an employee has been terminated or suspended does not mean that the records should be made public. Ark. Op. Att’y Gen. Nos. 99-361, 99-148, 99-041, 98-122, 97-415, 95-242. Whether there is a compelling public interest in disclosure of these records turns on several factors, including the nature of the infraction that led to suspension or termination, the existence of a public controversy related to the agency and its employees, and the employee’s rank within the agency. Ark. Op. Att’y Gen. Nos. 99-361, 99-148, 99-147, 99-041, 98-122, 98-006. There is a compelling interest in disclosure of records that reflect employee conduct that is illegal, undermines the public trust, or compromises public safety. Ark. Op. Att’y Gen. Nos. 2001-147, 99-361, 98-210, 97-415, 97-400, 97-261, 97-190, 97-081, 97-079, 94-312, 94-119, 92-247, 92-089, 92-075, 91-296, 89-073. “[T]he balance tips in favor of disclosure where the allegations involve sexual misconduct by a manager directed toward a worker.” Ark. Op. Att’y Gen. No. 2002-095, accord Ark. Op. Att’y Gen. Nos. 2005-032, 2004-012. Also, a compelling interest is more likely to be found when a high-level employee is involved than when the records of rank-and-file workers are at issue. Ark. Op. Att’y Gen. Nos. 2004-012 (mayor), 96-258 (vice president of Arkansas Development Finance Authority), 95-242 (second-highest salaried employee in city government), 95-109 (director of Arkansas Arts Council), 94-119 (university president). By contrast, the Attorney General concluded that the test was not met with respect to suspension letters sent to rank-and-file employees while an investigation was in progress. The letters would not accurately inform the public about the employees’ conduct because more information was being collected, and the end result of the investigation was a determination that no further disciplinary action was warranted. Ark. Op. Att’y Gen. No. 2000-242. This is not to say, however, that records of low-level employees will always be exempt. See, e.g., Ark. Op. Att’y Gen. No. 98-075 (records of police officers suspended or terminated for driving accidents are not exempt, since the public “clearly has an interest in the cautious driving of its law enforcement officers in emergency situations”).

    (13) Home Addresses of State Employees. Ark. Code Ann. § 25-19-105(b)(13). This provision, added by Act 1653 of 2001 (and Act 1336, which contained identical language), and amended in 2003, exempts “[h]ome addresses of non-elected state employees, non-elected municipal employees, and non-elected county employees contained in employer records.” However, the custodian “shall verify an employee’s city or county of residence or address on record on request.” The State Employees Association pushed strongly for this exemption, which before 2003 applied only to state employees. Arguably, however, the home address of a public employee may be exempt under the FOIA’s exemption for personnel records. See Part II.A.2.m of this outline.

    (14) Licensing Examinations. Ark. Code Ann. § 25-19-105(b)(14). Added by Act 1259 of 2001, this exemption applies to “[m]aterials, information, examinations, and answers to examinations utilized by boards and commissions for purposes of testing applicants for licensure by state boards or commissions.” Statutes with similar provisions had previously been enacted with respect to particular licensing agencies. E.g., Ark. Code. Ann. § 17-86-204(d) (licensing examinations of State Board of Massage Therapy).

    (15) Military Discharge Records. In 2003, the General Assembly added to the FOIA an exemption for “[m]ilitary service discharge records or DD Form 214, the Certificate of Release or Discharge from Active Duty . . . , filed with the county recorder as provided under § 14-2-102.” This exemption, which appears in Section 25-19-105(b)(15), covers such records “for veterans discharged from service less than seventy (70) years from the current date.” Access is permitted to the veteran and his or her spouse and children. The exemption was prompted by legislative concern about identity theft. Pursuant to a subsequent act of 2005, a veteran may seek a court order to withdraw a discharge record from court files. Ark. Code Ann. § 14-2-102(c)(4).

    (16) Public Water System Security Records. In 2003, the General Assembly added an exemption for records “relating to security for any public water system.” This provision was deemed necessary because information “could be obtained for terroristic purposes, including contamination and destruction of public water systems.” The exemption includes in its scope “analyses, investigations, studies, reports, recommendations, requests for proposals, drawings, diagrams, blueprints, and plans,” as well as risk and vulnerability assessments, plans and proposals for preventing and mitigating security risks, records pertaining to emergency response and recovery, security plans and procedures, and “[a]ny other records containing information that, if disclosed, might jeopardize or compromise efforts to secure and protect the public water system.” The exemption by its terms expires on July 1, 2013, but may be renewed by the General Assembly.

    (17) Licenses to carry concealed handgun. Records concerning “the issuance, renewal, expiration, suspension, or revocation of a license to carry a concealed handgun” for both current and past licensees are exempt from the FOIA. Ark. Code Ann. § 25-19-105(b)(19). However, the name and zip code for an applicant, licensee, or past licensee “may be released upon request by a citizen of Arkansas.” Ark. Code Ann. § 25-19-105(b)(19)(C).

    (18) Settlement Agreements in Tax Cases. Under a 1997 amendment to the FOIA, a settlement agreement reached “at the conclusion of any investigation conducted by a state agency in pursuit of civil penalties . . . shall be deemed a public document” for purposes of the act. Ark. Code Ann. § 25-19-105(h). However, exception is made for settlement agreements “involving any state tax covered by the Arkansas Tax Procedure Act.” Id.

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  • California

    Specific Exemptions Under 6254.

    Section 6254 lists specific exemptions from disclosure that a public agency may rely upon to withhold particular records. These exemptions are listed in Section 6254 as subsection (a) through subsection (ac). They are permissive, not mandatory. The following provides the text of each exemption under Section 6254 and commentary thereon. Note, other statutory exemptions exist and are set forth in subsequent sections of the CPRA. Some of these are discussed separately below.

    (a) Preliminary drafts, notes or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.

    Comment: “The purpose of the exemption is to provide a measure of agency privacy for written discourse concerning matters pending administrative action.” Citizens for a Better Environment v. Dept. of Food & Agric., 171 Cal. App. 3d 704, 711-12, 217 Cal. Rptr. 504 (1985). There are three statutory conditions for exemption under this subdivision: (1) The record sought must be a preliminary draft, note or memorandum; (2) of a type not retained by the public agency in the ordinary course of business; and (3) the public interest in withholding it must clearly outweigh the public interest in disclosure. Id. at 711-12. While the exemption serves to exempt from disclosure “pre-decisional writings containing advisory opinions, recommendations and policy deliberations,” the exemption does not apply to severable factual material contained in deliberative memoranda. Id. at 713.

    In Citizens For A Better Environment, the plaintiff, a national environmental organization, sought disclosure of inspection and monitoring reports on county enforcement of pesticide-use laws. Since the documents were made in the course of a determinative process of evaluating the county's compliance with the state's criteria regarding pesticide law enforcement, the documents met the first criteria as “pre-decisional communications.” Id. at 510. While evidence regarding some of the documents sought supported a finding that they were discarded in the ordinary course of business and thus met the second criteria, an EPA memoranda retained in each county file did not. Id. In addressing the third criteria, the court said the phrase “public interest in withholding records” could not be construed to encompass any policy argument as with the catchall exemption under Section 6255, but only those objectives that advance the specific policy domain of subdivision (a) — fostering robust agency debate. Id. at 715-16.

    In distinguishing factual as opposed to recommendatory content, the court said, “That a judgment (an opinion) is embedded in a statement that something is the case (the hallmark of a factual claim) obviously does not deprive it of its factual quality. It is only an opinion which is “recommendatory” that may be withheld.” Id. at 717; cf. Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1342, 813 P.2d 240, 283 Cal. Rptr. 893 (1991) (where under Section 6255's catchall exemption the court explained that even if the content of a document is purely factual, it would be nonetheless exempt from public scrutiny if it is actually related to the process by which policies are formulated or inextricably intertwined with the policy-making process.)

    While this exemption was intended to protect the pre-decisional, deliberative processes in an agency's drafts, notes or memoranda, a broader “deliberative process” exemption has been applied by the courts under Section 6255's catchall exemption, which arguably makes the exemption under subsection (a) of Section 6254 obsolete.

    (b) Records pertaining to pending litigation to which the public agency is a party, or to claims made pursuant to Division 3.6 (commencing with Section 810), until the pending litigation or claim has been finally adjudicated or otherwise settled.

    Comment: The purpose of this exemption is to prevent a litigant from obtaining a greater advantage against a government entity than otherwise allowed under the rules of discovery. Roberts v. City of Palmdale, 5 Cal. 4th 363, 373, 853 P.2d. 496, 20 Cal. Rptr. 2d 330 (1993). It applies only if the record was specifically prepared for use in litigation — mere relevancy to the litigation is not enough. County of Los Angeles v. Superior Court, 211 Cal. App. 4th 57, 64, 149 Cal. Rprt. 3d 324 (2012) (where court held county law firm’s billing invoices were not exempt from disclosure under the pending litigation exemption); Bd. of Trustees of the Cal. State Univ. v. Superior Court, 132 Cal. App. 4th 889, 897, 34 Cal. Rptr. 3d 82 (2005) (quoting County of Los Angeles v. Superior Court, 82 Cal. App. 4th 819, 830, 98 Cal. Rptr. 2d 564, 572 (2000) (where court remanded action for in camera determination of whether sheriff's department's over-detention reports, logs tracking erroneous releases and over-detentions, and Inmate Reception Center Task Force Report were prepared by county for use in litigation)); see also City of Hemet v. Superior Court, 37 Cal. App. 4th 1411, 1418-19, 44 Cal. Rptr. 2d 532 (1995) (where court concluded that internal investigation report of officer misconduct could not be withheld under pending litigation exemption because report was not prepared specifically for litigation; rejecting argument that documents relevant to later-instituted litigation should be exempt under pending litigation exemption); Fairley v. Superior Court, 66 Cal. App. 4th 1414, 1422, 78 Cal. Rptr. 2d 648 (1998) (where court remanded action for in camera determination of whether pre-litigation arrest records of plaintiff were prepared in anticipation of litigation).

    This exemption protects not only attorney work product or documents protected by the attorney-client privilege, but also the work product of public agencies generated in anticipation of litigation. Bd. of Trustees of the Cal. State Univ., 132 Cal. App. 4th at 898 (citing Fairley, 66 Cal. App. 4th at 1422 n.5); see also Roberts, 5 Cal. 4th at 373. While, generally, the exemption protects only documents prepared by or on behalf of the agency (see Farley, 66 Cal. App. 4th at 1504), it also protects correspondence between opposing counsel and parties when sought by nonparties to the action and when the parties do not intend the correspondence to be revealed outside of the litigation. Id. at 894.

    Once the litigation is over, records not otherwise independently protected from disclosure (i.e., attorney-client documents) must be disclosed. See, e.g., City of Los Angeles v. Superior Court, 41 Cal. App. 4th 1083, 49 Cal. Rptr. 2d 35 (1996) (depositions in concluded action against city not exempt from disclosure); Register Division of Freedom Newspapers v. County of Orange, 158 Cal. App. 3d 893, 909, 205 Cal. Rptr. 92 (1984) (documents pertaining to settlement of personal injury claim against public entity, including but not limited to settlement agreement itself, were subject to disclosure).

    Deposition transcripts are not exempt from disclosure under this subdivision because they are available under another statutory provision absent a protective order. Bd. of Trustees of the Cal. State Univ., 132 Cal. App. 4th at 901(citing Cal. Civ. Proc. Code § 2025.570). A county’s outside counsel’s billing records are not exempt under this subdivision. County of Los Angeles v. Superior Court, 211 Cal. App. 4th 57, 67, 149 Cal. Rptr. 3d 324 (2012). Claims filed against a public agency under California's Tort Claims Act are not exempt from disclosure under this subdivision. Poway Unified Sch. Dist. v. Superior Court, 62 Cal. App. 4th 1496, 1505, 73 Cal. Rptr. 2d. 777 (1998); see also 71 Ops. Cal. Att'y. Gen. 235, 238 (1988).

    (c) Personnel, medical or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.

    Comment: In enacting the CPRA the Legislature was mindful of the right of individuals to privacy. See Cal. Gov't Code § 6250 ("In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state."). Likewise, the Constitutional Sunshine Amendment provides, “Nothing in this subdivision supersedes or modifies the right of privacy guaranteed by Section 1 or affects the construction of any statute, court rule or other authority to the extent that it protects that right to privacy . . . .” Cal. Const. Art. I, § 3(b)(3). Thus, disclosure of public records requires the balancing of two fundamental yet competing public interests: “the public’s interest in disclosure and the individual’s interest in personal privacy.” International Federation of Professional and Technical Engineers v. Superior Court, 42 Cal.4th 319, 329-30, 64 Cal.Rptr.3d 693, 165 P.3d 488 (2007); Commission on Peace Officer Standards and Training v. Superior Court, 42 Cal.4th 278, 299, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007); see also Los Angeles Unif. Sch. Dist. v. Superior Court, 228 Cal. App. 4th 222, 239, 175 Cal. Rptr. 3d 90 (2014); Versaci v. Superior Court, 127 Cal. App. 4th 805, 813, 26 Cal. Rptr. 3d 92 (2005) (quoting Gilbert v. City of San Jose, 114 Cal. App. 4th 606, 613, 7 Cal. Rptr. 3d 692 (2003)).

    The exemption “typically appl[ies] to employee's personnel folders or sensitive personal information which individuals must submit to government.” San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762, 777, 192 Cal. Rptr. 415 (1983); cf. Los Angeles County Sch. Dist., v. Superior Court, 228 Cal. App. 4th at 239 (stating exemption for “similar files” need not contain intimate details or highly personal information; rather, records “may simply be government records containing ‘information which applies to a particular individual.’”)(citation omitted)). As courts have stated, “one does not lose his [or her] right to privacy upon accepting public employment . . . .” Versaci, 127 Cal. App. 4th at 818 (quoting New York Times Co. v. Superior Court, 52 Cal. App. 4th 97, 100, 60 Cal. Rptr. 2d 410 (1997)). For example, in Versaci, the court held that the personal performance goals of a former superintendent of a community college district established each year between the superintendent and the board and maintained as confidential as part of her personnel file were exempt from disclosure under this subdivision. Id. at 818-22.

    In determining whether the exemption applies, courts may look to the factors necessary to establish an invasion of a constitutional right of privacy. Int’l Federation, 42 Cal.4th at 330 n.3 (while recognizing that review of the factors might be helpful in a particular case, Court explained that intrusion upon a privacy interest need not rise to the level of an invasion of a constitutional right of privacy to be recognized under 6254(c)).  That test requires a showing of: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy; and, (3) a serious invasion of privacy. Hill v. National Collegiate Athletic Ass'n, 7 Cal.4th 1, 39-40, 26 Cal. Rptr. 2d 834, 865 P.2d 633 (1994) (applying test in invasion of privacy case); Int’l Federation, 42 Cal.4th at 330-31(recognizing privacy interest in personal financial information but holding that expectation of privacy over salary earned in public employment was not reasonable); Braun v. City of Taft, 154 Cal. App. 3d 332, 347, 201 Cal. Rptr. 654 (1984) (applying Hill test in determining whether disclosure required under CPRA); cf. Versaci, 127 Cal. App. 4th at 818 (applying three-part determination that: (1) the document sought constitutes a personnel file, medical file or other similar file; (2) disclosure would compromise substantial privacy interests; and, (3) the potential harm to the privacy interests outweighs the public interest in disclosure).

    Personnel Files: Personnel files are not per se exempt from disclosure. However, portions may be exempt if disclosure constitutes an “unwarranted invasion of privacy.” See Braun, 154 Cal. App. 3d at 347. The Braun court recognized that the “personnel” exemption was developed to “protect intimate details of personal and family life, not business judgments and relationships.” Braun, 154 Cal. App. 3d at 343-44; see also Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1045, 13 Cal. Rptr. 3d 517 (2004) (same); but see Los Angeles Unif. Sch. Dist., 228 Cal. App. 4th at  239 (stating that “similar” files exemption need not contain intimate details or highly personal information; rather, “[t]hey may simply be government records containing ‘information which applies to a particular individual.’”) (citation omitted)).

    In Braun, the court found that disclosure of two letters from a public employee's personnel file, one appointing him to a position and another rescinding the appointment, did not constitute such an invasion because the letters contained no private information. Id. at 344. The court explained that although the reclassification may be embarrassing to an individual, the letters manifested his employment contract, and in California public employment contracts are public records that may not be considered exempt. Id. Nor was disclosure of the employee's address, birth date and Social Security number prohibited by the right of privacy under Article I, Section 1 of the California Constitution. Id. at 347.

    In CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 907, 110 Cal. Rptr. 2d 889 (2001), the court held that the privacy exemption did not exempt from public disclosure the identity of individuals granted criminal conviction exemption to work in a licensed child day care facility and the identity of each facility employing such individuals because this information was a matter of public record.

    In Cal. State Univ. v. Superior Court, 90 Cal. App. 4th 810, 834, 108 Cal. Rptr. 2d 870 (2001), the court held that individuals who purchased luxury suites in an arena being built on university campus entered into “public sphere” and by doing so “voluntarily diminished their own privacy interest” such that their names and license agreements were not exempt from disclosure under the CPRA.

    In Lorig v Medical Bd., 78 Cal. App. 4th 462, 468, 92 Cal. Rptr. 2d 862 (2000), the court held that it was not an unwarranted invasion of privacy to disclose the home addresses of state-employed physicians who voluntarily used their home address as their “address of record.” See also ANG Newspapers v. Union City, 33 Med. L. Rptr. 2069 (Cal. Sup. Ct. 2005) (granting access to morale and job satisfaction report by outside consultant of city fire department).

    Employee Wrongdoing: While documents relating to employee wrongdoing may be contained in personnel files, they must be disclosed if they “reveal allegations of a substantial nature, as distinct from baseless or trivial, and there is reasonable cause to believe the complaint is well-founded . . . .” Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1046, 13 Cal. Rptr. 3d 517 (2004) (citing American Federation of State, County and Municipal Employees v. Regents of Univ. of Cal., 80 Cal. App. 3d 913, 146 Cal. Rptr. 42 (1978) (upholding access to alleged incident of sexual harassment or intimidation by school principal even though district had found allegation not true); see also Marken v. Santa Monica-Malibu Unif. Sch. Dist., 202 Cal. App. 4th 1250, 1273, 136 Cal. Rptr. 3d 395 (2012) (quoting Bakersfield and discussing case law in context of substantiated complaint that teacher violate sexual harassment policy). Under such circumstances, the public employee privacy must give way to the public interest in disclosure of public employee wrongdoing. Bakersfield, 118 Cal. App. 4th at 1046. In determining whether the complaint is well founded, the trial court does not determine the veracity of the underlying complaint but reviews the documents to determine whether “they reveal sufficient indicia of reliability to support a reasonable conclusion that the complaint was well-founded.” Id. at 1047.

    Separately, where a “complaint has been upheld by the agency involved or discipline imposed, even if only a private reproval, it must be disclosed.” Marken, 202 Cal. App. 4th at 1275 (holding that where school district had concluded teacher violated sexual harassment policy and where written reprimand was imposed, release of investigatory report and disciplinary record was required under the  CPRA) (citing American Federation, 80 Cal. App. 3d at 919)).

    Where the allegations of wrongdoing are against a public figure, public official, such as a school district superintendent, as opposed to a nonpublic figure, public official, a lesser standard of reliability is applied in reviewing the records.  See BRV, Inc. v. Superior Court, 143 Cal.App.4th 742, 759, 49 Cal.Rptr.3d 519 (2006). This is so because public officials have significantly reduced expectations of privacy in their public employment. Id. at 758 (“The potential injury here is to his reputation, but as a public official, he knew his performance could be the subject of public, ‘vehement, caustic, and sometimes unpleasantly sharp attacks….’”) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)).  Thus, the court in BRV reviewed a report against a school superintendent accused of verbally abusing students and sexually harassing female students and said “it could not conclude the allegations were so unreliable the accusations could not be anything but false.” Id. at 758-59.

    Applying this lesser standard, the court in Caldecott v. Superior Court, 243 Cal. App. 4th 212, 224-25, 196 Cal. Rptr. 3d 223 (2015), held that terminated school district employee was entitled under the CPRA to documents responsive to his hostile work employment complaint against superintendent, which included allegations of financial irregularities. In so holding, the court said it could not conclude that the allegations against the superintendent and school “could not be anything but false” even though the district had found that the allegations were not well founded.  Id. at 225.

    Salary Information: The public has a right of access to public employee exact salary information under the CPRA.  See Int’l Federation, 42 Cal.4th at 329. Without deciding whether a public entity’s payroll expenditure information constitutes “personnel … or similar files” under Section 6254(c), the court in Int’l Federation held that disclosure of exact salary information was nonetheless compelled because disclosure would not constitute an “‘unwarranted invasion of personal privacy.’” Id. at 329 (quoting Cal. Gov’t § 6254(c)).  In so holding, the court explained that while disclosure may cause “discomfort or embarrassment… an individual’s expectation of privacy in a salary earned in public employment is significantly less than the privacy expectation regarding income earned in the private sector.” Id. at 331. The court also noted that “[c]ounterbalancing any cognizable interest that public employees may have in avoiding disclosure of their salaries is the strong public interest in knowing how the government spends its money.” Id. at 333.  Access to public records, the court said, “makes it possible for members of the public ‘to expose corruption, incompetence, inefficiency, prejudice, and favoritism.’” Id. at 333 (quoting NBC Subsidiary, Inc. v. Superior Court, 20 Cal.4th 1178, 1211 n.28, 86 Cal.Rptr.2d 778, 980 P.2d 337 (1999)).

    The court also discounted an earlier case decided at the preliminary injunction stage that had supported the notion that public employees may have, under certain circumstances, a reasonable expectation of privacy in their exact salaries. Id. at 335 (concluding that Priceless, 112 Cal. App. 4th 1500, was of slight precedential value because of the limited trial court record and posture of the case).   It also expressly disagreed with Priceless to the extent its holding can be read to stand for the proposition that the practice of a particular governmental agency in refusing to disclose salary information can create a privacy interest in those records.  Id. at 336.

    Cases decided before Int’l Federation also supported the notion that exact salary information of public employees is not exempt under the CPRA. See Braun, 154 Cal. App. 3d at 338-40 (holding that trial court was within its discretion to find that disclosure of salary card of transit administrator was not an unwarranted invasion of personal privacy); 60 Ops. Cal. Att'y. Gen. 110 (1977); 68 Ops. Cal. Att'y. Gen. 73 (1985); see also Cal. Gov't Code § 54957 (prohibiting local public agencies from conducting closed session meetings to discuss or act on proposed compensation “except for a reduction of compensation that results from the imposition of discipline."); San Diego Union v. City Council, 146 Cal. App. 3d 947, 955, 196 Cal. Rptr. 45 (1983) (upholding trial court order enjoining city council from holding closed sessions on salaries of nonelected city employees).

    Under Section 6254.8 of the CPRA, every public employment contract between a state or a local agency and any public official or public employee is a public record. Cal. Gov't Code § 6254.8; cf. Priceless, 112 Cal. App. 4th at 1517-18 (holding this provision did not apply to compel individualized salary information of most classified civil service employees because their employment is pursuant to statute not contract).

    Pension Benefits: Disclosure of individual public employee pension amounts has been held not to constitute a violation of the constitutional right to privacy of public employees. See Sacramento County Employees’ Retirement System v. Superior Court, 195 Cal. App. 4th 440, 468; 125 Cal. Rptr. 3d 655 (2011)(concluding that public pensions are not private information and that county retirement system failed to demonstrate under Section 6255(a) of the Government Code a public interest in nondisclosure that clearly outweighed the public interest in disclosure); see also Sonoma County Employees’ Retirement Ass’n v. Superior Court, 198 Cal. App. 4th 986, 1006, 130 Cal. Rptr. 3d 540 (2011) (privacy interests of county retires did not outweigh the public’s interest in access to names and gross benefit amount of retirees); San Diego County Employee Retirement Assn. v. Superior Court, 196 Cal. App. 4th 1228, 1242, 127 Cal. Rptr. 3d 479 (2011) (concluding that “public employees lack a reasonable expectation of privacy in an expense [pension amounts] the public largely bears after their retirement”).

    Police Records: Disclosure of police officer personnel records are regulated by both California's Evidence Code and Penal Code. See Cal. Penal Code §§ 832.5, 832.7, 832.8 and Cal. Evid. Code §§ 1043-1046; see, e.g., Copley Press, Inc. v. Superior Court, 39 Cal.4th 1272, 1284, 48 Cal.Rptr.3d 183, 141 P.3d 288 (2006) (records of a county civil service commission relating to a peace officer’s administrative appeal of a disciplinary matter were exempt under Penal Code Section 832.7, protecting peace officer personnel records); San Diego Police Officers Ass'n v. City of San Diego Civil Service Commission, 104 Cal. App. 4th 275, 128 Cal. Rptr. 2d 248 (2002) (provisions governing peace officer personnel records precluded disclosure of peace officer personnel records at public administrative appeal of disciplinary decision if disclosure objected to by officer); City of Hemet v. Superior Court, 37 Cal. App. 4th 1411, 1431, 44 Cal. Rptr. 2d 532 (1995) (records relating to allegations of police misconduct fell within protections of peace officer personnel records); Fagan v. Superior Court, 111 Cal. App. 4th 607, 618-19, 4 Cal. Rptr. 3d 239 (2003) (officers' urinalysis test results taken in connection with an administrative investigation of officer's off-duty conduct fell within protections of peace officer personnel records).

    The Constitutional Sunshine Amendment expressly maintains these privacy protections for peace officers. Cal. Const. Art. I, § 3(b)(3). However, not all police officer information is subject to these provisions or the protections of this subdivision. In Commission on Peace Officer Standards and Training v. Superior Court, 42 Cal.4th 278, 64 Cal.Rptr.3d 661, 165 P.3d 462 (2007), the California Supreme Court made clear that these statutes cannot be interpreted as reaching beyond their clear language and purpose, and cannot be used as a justification for withholding basic information about the state’s law enforcement officers:

    The public’s legitimate interest in the identity and activities of peace officers is even greater than its interest in those of the average public servant.  ‘Law enforcement officers carry upon their shoulders the cloak of authority to enforce the laws of the state.  In order to maintain trust in its police department, the public must be kept fully informed of the activities of its peace officers.’

    42 Cal. 4th at 297 (emphasis added) (quoting New York Times v. Superior Court, 52 Cal. App. 4th 97, 104-105, 60 Cal. Rptr. 2d 410 (1997)).  Thus, the court held that police officer names, employing agency, and employment dates in a database maintained by the commission was not confidential under Sections 832.7 or 832.8, and disclosure would not constitute an unwarranted invasion of personal privacy under Section 6254(c).  Id. at 294, 299-303.  And in Int’l Federation, 42 Cal.4th at 343-46, the court rejected the argument that individual salary information of police officers was confidential as part of their “personnel records” under Section 832.7.

    Names of police officers involved in shooting incidents while engaged in the performance of their duties also have been held not to be private information under these Penal Code provisions. See Long Beach Police Officers Assn. v. City of Long Beach (“LBPOA”), 59 Cal. 4th 59, 71, 73, 172 Cal. Rptr. 3d 56, 325 P.3d 460 (2014) (limiting exemption for peace officer personnel records to records “generated in connection with [an officer’s] appraisal or discipline, and holding that “public’s substantial interest in the conduct of its peace officers outweighs, in most cases, the officer’s personal privacy interest”); New York Times Co. v. Superior Court, 52 Cal. App. 4th 97, 104, 60 Cal. Rptr. 2d 410 (1997) ("Fear of possible opprobrium or embarrassment is insufficient to prevent disclosure [of peace officers involved in on-duty shootings]."). The California Attorney General also has concluded that these Penal Code provisions do not shield the names of peace officers involved in critical incidents, and that the information must be disclosed in response to a CPRA request unless the proponents of secrecy show that the harm of disclosure clearly outweighs the benefits of public access in a specific case – generally, in those situations where peace officers are currently working undercover.  91 Ops. Cal. Atty. Gen.11 (May 19, 2008).

    While recognizing the general rule of disclosure, the California Supreme Court also noted that where an officer’s name is linked, not just to an on-duty shooting, but to a confidential disciplinary action involving the officer, the information may be exempt under these same provisions. LBPOA, 59 Cal. 4th at 73 (distinguishing Copley Press, Inc. v. Superior Court, 39 Cal.4th 1272, 48 Cal. Rptr. 3d 183, 141 P.3d 288 (2006)).

    Relying on LBPOA, the court in City of Eureka v. Superior Court, 1 Cal. App. 5th 755, 763-64, 205 Cal. Rptr. 3d 134 (2016), held that video of juvenile’s arrest from dashboard camera was not a confidential police personnel record because it was not “generated in connection” with the officer’s appraisal or discipline. Instead, the court said, it was just a “visual record of the minor’s arrest” akin to “information contained in the initial incident report” of an arrest, which is not exempt as a peace officer personnel record. Id. at 764.

    A report compiled by an independent consultant hired to review officer-involved shooting of an unarmed teenager not for disciplinary purposes but to advance department-wide administrative reforms was held not to be exempt as a peace officer personnel record. See Pasadena Police Officers Assoc. v. Superior Court, 240 Cal. App. 4th 268, 289, 192 Cal. Rprt. 3d 486 (2015). But portions of the report culled from personnel information or officer statements in the course of the administrative investigation contained within the report were held to be exempt. Id. at 290-91 (discussing segregation requirements where exempt information is not inextricably intertwined with non-exemption information).

    Disclosure of information in violation of the statutory procedures governing disclosure of peace officer personnel records has been determined not to give rise to a private right of action. Rosales v. City of Los Angeles, 82 Cal. App. 4th 419, 428, 98 Cal. Rptr. 2d 144 (2000).

    Job Applications: With respect to job applications and resumes of public employees, the court in Eskaton Monterey Hospital v. Myers, 134 Cal. App. 3d 788, 794, 184 Cal. Rptr. 840 (1982), said that “information as to the education, training, experience, awards, previous positions and publications of the (employee) . . . is routinely presented in both professional and social settings, is relatively innocuous and implicates no applicable privacy or public policy exemption.” Additionally, job applications and resumes of those actually chosen for the job, are not exempt from disclosure. But applications and resumes pertaining to others in the pool of applicants may be exempt from disclosure under the deliberative process privilege, discussed elsewhere in this guide.

    Medical Records: Generally, medical records are the type of records that are exempt from disclosure under 6254(c). However, medical records of a tort claimant against a county are not exempt from disclosure since by making the claim, the claimant places his or her alleged physical injuries, and medical records substantiating them, in issue and tacitly waives any expectation of privacy with respect to them. Register Div. of Freedom Newspapers Inc. v. County of Orange, 158 Cal. App. 3d 893, 902, 205 Cal. Rptr. 92 (1984). Because the county used the records in arriving at its decision to settle the claim, the court in Register Div. Of Freedom Newspapers, Inc. said the county could not hide behind the claimant's privacy to justify its concealment of the records from public scrutiny. Id.

    “No provider of health care, health care service plan or contractor” may disclose medical information without patient or guardian authorization. Cal. Civ. Code § 56.10; see also The Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), 42 U.S.C. § 1320d (governing use and disclosure by a covered entity of personally identifiable health care information relating to an individual).

    Financial Data: Financial data submitted by a waste disposal firm to a city, which the city relied on in granting a rate increase pursuant to an exclusive contract between the city and the company, was not exempt from disclosure under Section 6254(c) where the city publicly based its decision to permit the company to increase rates based upon the financial data it submitted. The data thereby lost its exempt status. San Gabriel Tribune, 143 Cal. App. 3d at 775; see also Cal. State Univ., 90 Cal. App. 4th at 834 (rejecting argument that disclosure of names of those who purchased luxury suites at arena being built on university property would violate individuals' right to privacy in their financial dealings).

    (d) Contained or related to:

    (1) Applications filed with any state agency responsible for the regulation or supervision of the issuance of securities or of financial institutions, including, but not limited to, banks, savings and loan associations, industrial loan companies, credit unions and insurance companies.

    (2) Examination, operating or condition reports prepared by, on behalf of, or for the use of, any state agency referred to in paragraph (1).

    (3) Preliminary drafts, notes or interagency or intra-agency communications prepared by, on behalf of, or for the use of, any state agency referred to in paragraph (1).

    (4) Information received in confidence by any state agency referred to in paragraph (1).

    Comment: There are no California reported court decisions interpreting Section 6254(d). Cases decided under the companion section of the federal Freedom of Information Act, 5 U.S.C. § 552(b)(8), generally apply this exemption liberally in favor of nondisclosure. One federal appeal court has even held that financial reports concerning a closed bank require the same protection from disclosure as those of an operating bank. Gregory v. Federal Deposit Insurance Corp., 631 F.2d 896, 203 U.S. App. D.C. 314 (D.C. Cir. 1980).

    (e) Geological and geophysical data, plant production data and similar information relating to utility systems development, or market or crop reports, which are obtained in confidence from any person.

    Comment: There are no California reported court decisions interpreting Section 6254(e).

    (f) Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes. However, state and local law enforcement agencies shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the victims of an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damage or loss, as the result of the incident caused by arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime as defined by subdivision (b) of Section 13951 [crime involving injury or death to victim compensated under crime victim's bill of rights law], unless the disclosure would endanger the safety of a witness or other person involved in the investigation, or unless disclosure would endanger the successful completion of the investigation or a related investigation. However, this subdivision does not require the disclosure of that portion of those investigative files that reflect the analysis or conclusions of the investigating officer.

    Customer list provided to a state or local police agency by an alarm or security company at the request of the agency shall be construed to be records subject to this subdivision.

    Notwithstanding any other provision of this subdivision, state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:

    (1) The full name and occupation of every individual arrested by the agency, the individual's physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.

    (2) (A) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded, the time, date, and location of occurrence, the time and date of the report, the name and age of the victim, the factual circumstances surrounding the crime or incident, and a general description of any injuries, property, or weapons involved. The name of a victim of any crime defined by Section 220, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3, 288.4, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of the Penal Code [various sex crimes] may be withheld at the victim's request, or at the request of the victim's parent or guardian if the victim is a minor. When a person is the victim of more than one crime, information disclosing that the person is a victim of a crime defined in any of the sections of the Penal Code set forth in this subdivision may be deleted at the request of the victim, or the victim's parent or guardian if the victim is a minor, in making the report of the crime, or of any crime or incident accompanying the crime, available to the public in compliance with the requirements of this paragraph.

      (B) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the names and images of a victim of human trafficking, as defined in Section 236.1 of the Penal Code, and of the victim’s immediate family, other than a family member who is charged with a criminal offense arising from the same incident, may be withheld at the victim’s request until the investigation or any subsequent prosecution is complete. For purposes of this subdivision, “immediate family” shall have the same meaning as that provided in paragraph (3) of subdivision (b) of Section 422.4 of the Penal Code.

    (3) Subject to the restrictions imposed by Section 841.5 of the Penal Code and this subdivision, the current address of every individual arrested by the agency and the current address of the victim of a crime, if the requester declares under penalty of perjury that the request is made for a scholarly, journalistic, political, or governmental purpose, or that the request is made for investigation purposes by a licensed private investigator as described in Chapter 11.3 (commencing with Section 7512) of Division 3 of the Business and Professions Code. However, the address of the victim of any crime defined by Section 220, 236.1, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3, 288.5, 288.7, 289, 422.6, 422.7, 422.75,  646.9, or 647.6 of the Penal Code shall remain confidential. Address information obtained pursuant to this paragraph shall not be used directly or indirectly, or furnished to another, to sell a product or service to any individual or group of individuals, and the requester shall execute a declaration to that effect under penalty of perjury. This paragraph shall not be construed to prohibit or limit a scholarly, journalistic, political, or government use of address information obtained pursuant to this paragraph.

    Comment: The cumbersome “investigatory records” exemption is one of the most litigated exemptions of the CPRA, and it is with investigatory records of law enforcement agencies that the public's right to access is the most limited. Unlike other exemptions under the CPRA, which simply set forth discretionary exemptions, the investigatory records exemption contains three categories of information: that which an agency may withhold, that which must be disclosed and that which is expressly exempt from the mandatory disclosure provisions. See Williams v. Superior Court, 5 Cal. 4th 337, 349, 852 P.2d 377, 19 Cal. Rptr. 2d 882 (1993). Under this exemption, unless the requester has a specific interest in the investigatory report (such as being the victim), an agency may, in the exercise of its discretion, withhold the actual records pertaining to its investigatory functions, but it must extract specific information from those records and make that information available to the public.

    In 1993, the California Supreme Court decided the first in a series of cases that generally have limited the public's right of access to investigatory records and files. In Williams, a newspaper waited until after the completion of a criminal prosecution before requesting copies of criminal investigation records. Although there was no pending criminal investigation, the California Supreme Court held that unlike the Federal Freedom of Information Act ("FOIA") investigatory records exemption, which does not exempt records of closed investigations, the CPRA exemption “does not terminate with the conclusion of the investigation.” Id. at 361-62. Moreover, the court explained that “[o]nce an investigation . . . has come into being because there is a concrete and definite prospect of enforcement proceedings at that time, material that relate to the investigation and, thus, properly belong in the file, remain exempt subject to the terms of the statute.” Id.  In rejecting FOIA standards for interpreting Section 6254(f), the Williams court limited access to investigatory records by holding that the public has a statutory right of access only to that information which is set forth with particularity in Sections 6254(f)(1) and 6254(f)(2), as long as the disclosure of that information would not endanger the safety of an individual involved in the investigation or would not jeopardize the successful completion of the investigation or a related investigation. Id. at 354; see also Rivero v. Superior Court, 54 Cal. App. 4th 1048, 63 Cal. Rptr. 2d 213 (1997) (where court held district attorney's investigatory file in concluded investigation was not subject to disclosure under the CPRA, and city's sunshine laws, which allowed for disclosure of closed investigation files, had to yield to state statute prohibiting interference with district attorney's investigatory and prosecutorial functions).

    While the prospect of law enforcement must be “concrete and definite” before investigatory files may be withheld under the exemption, this standard was held inapplicable to investigatory records, which have an independent claim to exempt status under the statute. In holding as exempt from disclosure citizen reports and police radio calls following a routine police stop that resulted in no arrest, the California Supreme Court in Haynie v. Superior Court, 26 Cal. 4th 1061, 1070, 112 Cal. Rptr. 2d 80, 31 P.3d 760 (2001), reasoned that limiting the exemption “only to records of investigations where the likelihood of enforcement has ripened into something concrete and definite would expose to the public the very sensitive investigative stages of determining whether a crime has been committed or who has committed it."

    But Section 6254(f)’s exemption for records of investigation was given a narrow construction by the California Supreme Court in ACLU v. Superior Court, 3 Cal. 5th 1032, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017). There the court was confronted with the issue of whether automatic license plate reader data collected by law enforcement over a one-week period was exempt as “records of … investigations” under Section 6254(f) of the Government Code. The court held that the exemption for records of investigations did not include the indiscriminate collection of bulk data “of hundreds or thousands of individuals simultaneously”; rather, it applies to targeted inquiries into particular violations of law. Id. at 1040, 1042. The court’s narrow construction was largely informed by the California Sunshine Amendment’s constitutional mandate that exemptions be narrowly construed. Id. at 1042. It was also informed by common sense: “It is hard to imagine that the Legislature intended for the records of investigations exemption to reach the large volume of date that plate scanners and other similar technologies now enable agencies to collect indiscriminately.” Id. at 1041. Because disclosure of unredacted data nevertheless implicated privacy concerns, the court remanded with directions to consider methods of anonymizing the data in conducting a balancing analysis. Id. at 1044, 1046.

    To be exempt, the investigatory, security, intelligence or complaint records must be compiled by the agency for correctional, law enforcement or licensing purposes. See, e.g., Uribe v. Howie, 19 Cal. App. 3d 194, 112-13, 96 Cal. Rptr. 493 (1971) (where court held that county agricultural commissioner could not withhold mandatory reports filed by farmers who had sprayed pesticides in the area by labeling the files investigatory for licensing purposes when licensing was not the primary purpose for which the files were compiled and when the files were not being used for investigation purposes at the time of trial).

    Other cases have defined the exemption broadly. For example, in Dixon v. Superior Court, 170 Cal. App. 4th 1271, 1276, 88 Cal. Rptr.3d 847 (2009), the court held that an autopsy report produced by a coroner’s inquiry into a suspected homicide where there exists a definite prospect of law enforcement is an investigatory file compiled for law enforcement purposes within the meaning of Section 6254(f).  In so holding, the court recognized that a coroner’s office that compiles investigatory files for law enforcement purposes is entitled to assert the exemption even if it is not itself the police or law enforcement agency since it is an “other … local agency” that compiled the files for “law enforcement … purposes.”  Id.

    Similarly defining the exemption broadly, the court in State Office of the Inspector General v. Superior Court, 189 Cal. App. 4th 695, 709, 117 Cal. Rptr. 3d 388 (2010), stated that investigatory materials underlying a public report of the Office of Inspector General into the Department of Corrections and Rehabilitation’s parole supervision of a defendant charged with kidnapping, raping and holding hostage for 18 years a female minor, were exempt as “investigatory files compiled by a state agency for correctional purposes.”  Because the underlying investigation of the parole supervision carried with it the possibility of criminal prosecution, the court said the prospect of “enforcement proceedings was concrete and definite when the investigation was launched.” Id. at 709-10.

    Also in Rackauckas v. Superior Court, 104 Cal. App. 4th 169, 179, 128 Cal. Rptr. 2d 234 (2002), the court held that a letter prepared by the district attorney after the conclusion of its investigation of alleged police misconduct and which contained the DA's conclusions fell within the investigatory records exemption because the statute contains no exception for post-investigation records and because the letter related exclusively to the investigation.

    The courts have diverged on the scope of an agency’s obligations to provide information under Section 6254(f)(1) and (f)(2). In County of Los Angeles v. Los Angeles Superior Court (Kusar), 18 Cal. App. 4th 588, 599, 22 Cal. Rptr. 2d 409 (1993), the court held that disclosure of arrest information under subdivision (f)(1) was limited to current information pertaining to contemporaneous police activity and did not apply to a request for arrest information of two police officers going back ten years.

    More recently, in Fredericks v. Superior Court, 233 Cal. App. 4th 209, 233-34, 182 Cal. Rptr. 3d 526 (2015), the court rejected the Kusar court’s “contemporaneous” time limitations when construing subdivision (f)(2)’s disclosure obligations pertaining to complaints and calls for assistance. There, the requester sought complaint information over a six-month period but the police department limited its response to 60-days. Id. at 216. Discussing Kusar, the court noted that statutory language the court had relied on there in determining legislative intent—language that limited disclosure of arrestee and victim address information to current addresses—had since been eliminated from the statute, and that unlike in Kusar there was no clear attempt by the requester to evade discovery procedures through use of the CPRA. Id. at 233-34. Nor were the disclosure concerns the same under the two subdivisions, as the court noted. Id. at 233. More practically, the court said that “[t]here was no basis in the plain language of the statute to read into it any 60-day limitation on access to disclosable information.” Id. at 234.

    The Fredericks decision casts serious doubt on the validity of any time restriction on the information required to be disclosed under either subdivision (f)(2) or (f)(1)—the subdivision at issue in Kusar.

    The United States Supreme Court has upheld the facial constitutionality of subsection (f)(3), which allows for the disclosure of the addresses of arrestees and victims of crimes for specified purposes, but precludes disclosure for commercial purposes. See Los Angeles Police Dept. v. United Reporting Pub. Corp, 528 U.S. 32, 120 S.Ct. 483, 488, 145 L.Ed. 2d 451 (1999). The United States Supreme Court, however, noted that the constitutionality of the provision as applied to respondent, a publishing company that provides the names and addresses of arrested individuals to its customers, remained open on remand. See United Reporting Pub. Corp. v. Cal. Hwy. Patrol, 231 F.3d 483 (9th Cir. 2000).

    It is important to note that each piece of information requested that is enumerated in Section 6254(f) must be considered and analyzed separately by the agency. A law enforcement agency, like any other agency subject to the provisions of the CPRA, bears the burden of justifying its refusal to disclose otherwise public records with regard to each separate piece of information requested (i.e., name, the factual circumstances surrounding the arrest, the charges, etc.).

    (g) Test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment, or academic examination, except as provided for in Chapter 3 (commencing with Section 99150) of Part 65 of Division 14 of Title 3 of the Education Code.

    Comment: The Education Code sections referred to in this subsection address standardized tests for admission to post-secondary institutions, such as the Scholastic Aptitude Test (SAT) and similar examinations. Copies of tests, answers, scores and related documents and information that are required to be filed with the California Post-Secondary Education Commission are exempt from disclosure under this subsection.

    (h) The contents of real estate appraisals or engineering or feasibility estimates and evaluations made for or by the state or local agency relative to the acquisition of property, or to prospective public supply and construction contracts, until all of the property has been acquired or all of the contract agreement obtained. However, the law of eminent domain shall not be affected by this provision.

    Comment: There are no reported cases discussing this exemption.

    (i) Information required from any taxpayer in connection with the collection of local taxes that is received in confidence and the disclosure of the information to other persons would result in unfair competitive disadvantage to the person supplying the information.

    Comment: There are no reported cases discussing this exemption.

    (j) Library circulation records kept for the purpose of identifying the borrower of items available in libraries, and the library and museum materials made or acquired and presented solely for reference or exhibition purposes. The exemption in this subdivision shall not apply to records of fines imposed on the borrowers.

    Comment: There are no reported cases discussing this exemption.

    (k) Records the disclosure of which is exempted or prohibited pursuant to the provisions of federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.

    Comment: This subdivision is not an independent exemption but merely incorporates other prohibitions established by law. Copley Press, Inc. v. Superior Court, 39 Cal. 4th 1272, 1283, 48 Cal. Rptr. 3d 183, 141 P.3d 288 (2006); CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 906, 110 Cal. Rptr. 2d 889 (2001) (quoting CBS Inc. v. Block, 42 Cal.3d 646, 656, 230 Cal. Rptr. 362, 725 P.2d 470 (1986)). Statutes regulating various agencies, commissions and public offices often designate specific records as confidential. Additionally, Sections 930 through 1061 of the Evidence Code set forth the various privileges from compelled disclosure available to litigants in civil and criminal trials. These statutes and privileges may be asserted, where applicable, by a public agency under Section 6254(k).

    For example, pursuant to Evidence Code Sections 950 through 962, a public agency has an attorney-client privilege in confidential communications between itself and its attorneys. The California Supreme Court held that this exemption covers communications that are made between a public agency and its attorneys during pending litigation as well as those made at other times. Roberts v. City of Palmdale, 5 Cal. 4th 363, 371, 20 Cal. Rptr. 2d 330, 853 P.2d 496 (1993).

    In Los Angeles County Board of Supervisors v. Superior Court, 2 Cal. 5th 282, 288, 212 Cal. Rptr. 107, 386 P.3d 773 (2016), the California Supreme Court held that the attorney-client privilege does not categorically shield everything in a county attorneys’ billing invoice but that invoices for work in pending and active legal matters are covered by the privilege. The court remained for further determination of whether billing totals in completed cases were communicated for purpose of legal consultation (and thus were privilege). Id. at 300. See County of Los Angeles Board of Supervisors v. Superior Court, 12 Cal. App. 5th 1264, 1276-77, 219 Cal. Rptr. 3d 674 (2017) (on remand from Cal. Supreme Court, appellate court refused to conduct in camera review of redacted portions of billing statements citing attorney-client privilege, and remanded to trial court issue of whether fee totals in concluded cases should be disclosed under CPRA).

    One court also has held that the privilege is not waived by disclosure to successful bidder of a privileged memorandum and transmittal letter prepared by county counsel where disclosure was reasonably necessary to further interests of both parties in finalizing negotiations. STI Outdoor v. Superior Court, 91 Cal. App. 4th 334, 341, 109 Cal. Rptr. 2d 865 (2001).

    In a case decided under Section 6254(k), the California Supreme Court held that more specific provisions of California’s Long-Term Care, Health, Safety, and Security Act, providing that citations issued against health care facilities are public records, prevailed over confidentiality provisions contained in another statutory scheme protecting mentally ill and developmentally disabled individuals. State Dep’t of Public Health v. Superior Court, 60 Cal. 4th 940, 964, 184 Cal. Rptr. 3d 60, 342 P.3d 1217 (2015).

    The qualified trade secret, official information and attorney work-product privilege, which covers the research, impressions, notes and conclusions of an attorney, may be asserted through Section 6254(k).

    In an effort to identify the numerous statutes that are incorporated in this subdivision, the Legislature enacted Section 6275, which provides that after January 1, 1999, each addition or amendment to a statute that exempts any information contained in a public record from disclosure pursuant to subdivision (k) of Section 6254 shall be listed and described in Article 2, Section 6276.02-6276.48. Cal. Gov't Code § 6275.

    (l) Correspondence of and to the Governor or employees of the Governor's office or in the custody of or maintained by the Governor's Legal Affairs Secretary. However, public records shall not be transferred to the custody of the Governor's Legal Affairs Secretary to evade the disclosure provision of this chapter.

    Comment: This exemption is designed to protect from disclosure communications to the Governor and members of the Governor's staff from correspondents outside of government. Cal. First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 168, 78 Cal. Rptr. 2d 847 (1998). In Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1337, 813 P.2d 240, 283 Cal. Rptr. 893 (1991), the California Supreme Court held that the Governor's daily, weekly and monthly calendars and schedules were not exempt under this subsection, which the court said was confined to “communications by letter.” However, the court in Times Mirror found such documents to be exempt under the “deliberative process” exemption under Government Code Section 6254(a). Id. at 1344.

    Expanding the exemption beyond strictly “communications by letters,” the appellate court in Cal. First Amendment Coalition, 67 Cal. App. 4th at 169, held that application forms as well as letters received by the Governor's office from applicants for appointment to a vacant supervisor position fell within the correspondence exemption.

    (m) In the custody of or maintained by the Legislative Counsel, except those records in the public database maintained by the Legislative Counsel that are described in [Government Code] Section 10248.

    Comment: There are no reported cases discussing this exemption. Records of the Legislature are subject to the Legislative Open Record Act. See Gov’t Code §§ 9070-9080.

    (n) Statements of personal worth or personal financial data required by a licensing agency and filed by an applicant with the licensing agency to establish his or her personal qualification for the license certificate, or permit applied for.

    Comment: This exemption has been interpreted narrowly as not including financial records of a waste disposal company with an exclusive contract with a city. San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762, 779, 192 Cal. Rptr. 415 (1983). In San Gabriel, the court concluded that a contract is not a license and that the legislature intended Section 6254(n) to be limited to those submitting financial data to a licensing agency. Id.

    (o) Financial data contained in applications for financing under Division 27 (commencing with Section 44500) of the Health and Safety Code, if an authorized officer of the California Pollution Control Financing Authority determines that disclosure of the financial data would be competitively injurious to the applicant and the data is required in order to obtain guarantees from the United States Small Business Administration. The California Pollution Control Financing Authority shall adopt rules for review of individual requests for confidentiality under this section and for making available to the public those portions of an application which are subject to disclosure under this chapter.

    Comment: If a private party seeks financial assistance from the California Pollution Control Financing Authority in order to implement a pollution control project, the financial information concerning the private party would presumably be exempt from disclosure, while other information would not.

    (p)(1) Records of state agencies related to activities governed by Chapter 10.3 (commencing with Section 3512), Chapter 10.5 (commencing with Section 3525), and Chapter 12 (commencing with Section 3560) of Division 4, that reveal a state agency's deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories or strategy, or that provide instruction, advice or training to employees who do not have full collective bargaining and representation rights under these chapters. This paragraph shall not be construed to limit the disclosure duties of state agency with respect to any other records relating to the activities governed by the employee relations acts referred to in this paragraph.

       (2) Records of local agencies related to activities governed by Chapter 10 (commencing with Section 3500) of Division 4, that reveal a local agency’s deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategies, or that provide instruction, advice, or training to employees who do not have full collective bargaining and representative rights under that chapter. This paragraph shall not be construed to limit the disclosure duties of a local agency with respect to any other records relating to the activities governed by the employee relations act referred to in this paragraph.

    Comment: The referenced statutes are provisions of the Government Code relating to state and local agency employer-employee relations. The representatives of a state or local agency need not disclose to the public records concerning their tactics, analysis or strategy in employee relations.

    (q)(1) Records of state agencies related to the activities governed by Articles 2.6 (commencing with Section 14081), 2.8 (commencing with Section 14087.5), and 2.91 (commencing with Section 14089) of Chapter 7 of Part 3 of Division 9 of the Welfare and Institutions Code, that reveal the special negotiator's deliberative processes, discussions, communications or any other portion of the negotiations with providers of health care services, impressions, opinions, recommendations, meeting minutes, research, work product, theories or strategy, or that provide instruction, advice or training to employees.

       (2) Except for the portion of a contract containing the rates of payment, contracts for inpatient services entered into pursuant to these articles, on or after April 1, 1984, shall be open to inspection one year after they are fully executed. If a contract of inpatient services that is entered into prior to April 1, 1984, is amended on or after April 1, 1984, the amendment, except for any portion containing the rates of payment, shall be open to inspection one year after it is fully executed. If the California Medical Assistance Commission enters into contracts with health care providers for other than inpatient hospital services, those contracts shall be open to inspection one year after they are fully executed.

       (3) Three years after a contract or amendment is open to inspection under this subdivision, the portion of the contract or amendment containing the rates of payments shall be open to inspection.

       (4) Notwithstanding any other law, the entire contract or amendment shall be open to inspection by the Joint Legislative Audit Committee and the Legislative Analyst’s Office. The committee and that office shall maintain the confidentiality of the contracts and amendments until the time a contract or amendment is fully open to inspection by the public.

    Comment: The statutes cited in Section 6254(q) refer to special negotiators who represent the State in the Medi-Cal program.

    (r) Records of Native American graves, cemeteries and sacred places and records of Native American places, features, and objects described in Section 5097.9 and 5097.993 of the Public Resources Code maintained by, or in the possession of, the Native American Heritage Commission, another state agency, or a local agency.

    Comment: There are no reported cases discussing this exemption.

    (s) A final accreditation report of the Joint Commission on Accreditation of Hospitals that has been transmitted to the State Department of Health Care Services pursuant to subdivision (b) of Section 1282 of the Health and Safety Code.

    Comment: A health care facility must transmit a copy of the Joint Commission's report on an inspection of its facility to the state if the commission is simultaneously conducting a quality of care inspection of the facility.

    (t) Records of a local hospital district, formed pursuant to Division 23 (commencing with Section 32000) of the Health and Safety Code, or the records of a municipal hospital, formed pursuant to Article 7 (commencing with Section 37600) or Article 8 (commencing with Section 37650) of Chapter 5 of Part 2 of Division 3 of Title 4 of this code, that relate to any contract with an insurer or nonprofit hospital service plan for inpatient or outpatient services for alternative rates pursuant to Section 10133 or 11512 of the Insurance Code. However, the record shall be open to inspection within one year after the contract is fully executed.

    Comment: There are no reported cases discussing this exemption.

    (u)(1) Information contained in applications for licenses to carry firearms issued pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code by the sheriff of a county or the chief or other head of a municipal police department that indicates when or where the applicant is vulnerable to attack or that concerns the applicant's medical or psychological history or that of members of his or her family.

    (2) The home address and telephone number of prosecutors, public defenders, peace officers, judges, court commissioners and magistrates that are set forth in applications for licenses to carry firearms issued pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code by the sheriff of a county or the chief or other head of a municipal police department.

    (3) The home address and telephone number of prosecutors, public defenders, peace officers, judges, court commissioners and magistrates that are set forth in licenses to carry firearms issued pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code by the sheriff or a county or the chief or other head of a municipal police department.

    Comment: This Section requires the licensing agency to segregate exempt from non-exempt material. See Cal. Gov't Code § 6253. Except for the information specifically exempted, the remainder of the application should be made available. CBS Inc. v. Block, 42 Cal. 3d 646, 652-53, 725 P.2d 470, 230 Cal. Rptr. 362 (1986). However, even under CBS Inc., information contained in an application that would reveal intimate details of a person's medical or family circumstances may also be deleted prior to release of the record.

    (v)(1) Records of the Managed Risk Medical Insurance Board and the State Department of Health Care Services related to activities governed by Part 6.3 (commencing with Section 12695), and Part 6.5 (commencing with Section 12700), Part 6.6 (commencing with Section 12739.5), and Part 6.7 (commencing with Section 12739.70) of Division 2 of the Insurance Code, or Chapter 2 (commencing with Section 15810) or Chapter 4 (commencing with Section 15870) or Part 3.8 of Division 9 of the Welfare and Institutions Code, and that reveal any of the following:

    (A) The deliberative processes, discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the board, entities with which the board or department is considering a contract, or entities with which the board or department is considering or enters into any other arrangement under which the board or the department provides, receives, or arranges services or reimbursement.

    (B) The impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff or the department or its staff, or records that provide instruction, advice or training to employees.

    (2) (A) Except for the portion of a contract that contains the rates of payment, contracts entered into pursuant to Part 6.3 (commencing with Section 12695), Part 6.5 (commencing with Section 12700), Part 6.6 (commencing with Section 12739.5), or Part 6.7 (commencing with Section 12739.70) of Division 2 of the Insurance Code, or Chapter 2 (commencing with Section 15810) or Chapter 4 (commencing with Section 15870) of Part 3.3 of Division 9 of the Welfare and Institutions Code, on or after July 1, 1991, shall be open to inspection one year after their effective dates.

    (B) If a contract that is entered into prior to July 1, 1991, is amended on or after July 1, 1991, the amendment, except for any portion of the contract containing the rates of payment, shall be open to inspection one year after the effective date of the amendment.

    (3) Three years after a contract or amendment is open for inspection pursuant to this subdivision, the portion of the contract or amendment containing the rates of payment shall be open to inspection.

    (4) Notwithstanding any other provision of law, the entire contract or amendments to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendments thereto, until the contract or amendments to a contract is open to inspection pursuant to paragraph (3).

    Comment: There are no reported cases discussing this exemption.

    (w)(1) Records of the Managed Risk Medical Insurance Board related to activities governed by Chapter 8 (commencing with Section 10700) of Part 2 of Division 2 of the Insurance Code, and that reveal the deliberative processes, discussions, communications, or any other portion of the negotiations with health plans, or the impressions, opinions, recommendations, meeting minutes, research, work product, theories or strategy of the board or its staff, or records that provide instructions, advice or training of employees.

    (2) Except for the portion of a contract that contains the rates of payment, contracts for health coverage entered into pursuant to Chapter 8 (commencing with Section 10700) of Part 2 of Division 2 of the Insurance Code, on or after January 1, 1993, shall be open to inspection one year after they have been fully executed.

    (3) Notwithstanding any other law, the entire contract or amendments to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendments thereto, until the contracts or amendments to a contracts are open to inspection pursuant to paragraph (2).

    Comment: There are no reported cases discussing this exemption.

    (x) Financial data contained in applications for registration, or registration renewal, as a service contractor filed with the Director of Consumer Affairs pursuant to Chapter 20 (commencing with Section 9800) of Division 3 of the Business and Professions Code, for the purpose of establishing the service contractor's net worth, or financial data regarding the funded accounts held in escrow for service contracts held in force in this state by a service contractor.

    Comment: There are no reported cases discussing this exemption.

    (y)(1) Records of the Managed Risk Medical Insurance Board and the State Department of Health Care Services related to activities governed by Part 6.2 (commencing with Section 12693) or Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code or Sections 14005.26 and 14005.27 of, or Chapter 3 (commencing with Section 15850) or Part 3.3 of Division 9 of, the Welfare and Institutions Code, if the records reveal any of the following:

    (A) The deliberative processes, discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the board or the department, entities with which the board or department is considering a contract, or entities with which the board or department is considering or enters into any other arrangement under which the board or department provides, receives, or arranges services or reimbursement.

    (B) The impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff, or the department or its staff, or records that provide instructions, advice or training to employees.

    (2) (A) Except for the portion of a contract that contains the rates of payment, contracts, entered into pursuant to Part 6.2 (commencing with Section 12693) or Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code, on or after January 1, 1998, or Sections 14005.26 and 14005.27 of, or Chapter 3 (commencing with Section 15850) of Part 3.3 of Division 9 of, the Welfare and Institutions Code shall be open to inspection one year after their effective date. 

    (B) If a contract entered into pursuant to Part 6.2 (commencing with Section 12693) or Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code or Sections 14005.26 and 14005.27 of, or Chapter 3 (commencing with Section 15850) or Part 3.3 of Division 9 of, the Welfare and Institutions Code, is amended, the amendment shall be open to inspection one year after the effective date of the amendment.

    (3) Three years after a contract or amendment is open to inspection pursuant to this subdivision, the portion of the contract or amendment containing the rates of payment shall be open to inspection.

    (4) Notwithstanding any other provision of law, the entire contract or amendments to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendments thereto until the contract or amendments to a contract are open to inspection pursuant to paragraph (2) or (3).

    (5) The exemption from disclosure provided pursuant to this subdivision for the contracts, deliberative processes, discussions, communications, negotiations, impressions, opinions, recommendations,  meeting minutes, research, work product, theories or strategy of the board or its staff, or the department or its staff, shall also apply to the contracts, deliberative processes, discussions, communications, negotiations, impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of applicants pursuant to Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code or Chapter 3 (commencing with Section 15850) of Part 3.3 of Division 9 of the Welfare and Institutions Code.

    Comment: There are no reported cases discussing this exemption.

    (z) Records obtained pursuant to paragraph (2) of subdivision (c) of Section 2891.1 of the Public Utilities Code.

    Comment: There are no reported cases discussing this exemption.

    (aa) A document prepared by or for a state or local agency that assesses its vulnerability to terrorist attack or other criminal acts intended to disrupt the public agency's operations and that is for distribution or consideration in a closed session.

    Comment: This exemption was adopted in response to concerns after the terrorist attacks on Sept. 11, 2001. There are no reported cases discussing this exemption.

    (ab) Critical infrastructure information, as defined in Section 131(3) of Title 6 of the United States Code, that is voluntarily submitted to the Office of Emergency Services for use by that office, including the identity of the person who or entity that voluntarily submitted the information.  As used in this subdivision, “voluntarily submitted” means submitted in the absence of the office exercising any legal authority to compel access to or submission of critical infrastructure information. This subdivision shall not affect the status of information in the possession of any other state or local governmental agency.

    Comment: This exemption has generated no reported decisions.  But see County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 89 Cal. Rptr. 3d 374 (2009) (holding that federal Critical Infrastructure Information Act did not prohibit county from disclosing GIS basemap data under the CPRA where data had been submitted by the county to federal government, not to the county).

    (ac) All information provided to the Secretary of State by a person for the purpose of registration in the Advance Health Care Directive Registry, except that those records shall be released at the request of a health care provider, a public guardian, or the registrant's legal representative.

    Comment: There are no reported cases discussing this exemption.

    (ad) The following records of the State Compensation Insurance Fund:

    (1) Records related to claims pursuant to Chapter 1 (commencing with Section 3200) of Division 4 of the Labor Code, to the extent that confidential medical information or other individually identifiable information would be disclosed.

    (2) Records related to the discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the fund, and any related deliberations.

    (3) Records related to the impressions, opinions, recommendations, meeting minutes of meetings or sessions that are lawfully closed to the public, research, work product, theories, or strategies of the fund or its staff, on the development of rates, contracting strategy, underwriting, or competitive strategy pursuant to the powers granted to the fund in Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code.

    (4) Records obtained to provide worker’s compensation insurance under Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code, including, but not limited to, any medical claims information, policyholder information provided that nothing in this paragraph shall be interpreted to prevent an insurance agent or broker from obtaining proprietary information or other information authorized by law to be obtained by the agent or broker, and information on rates, pricing, and claims handling received from brokers.

    (5) (A) Records that are trade secrets pursuant to Section 6276.44, or Article 11 (commencing with Section 1060) of Chapter 4 of Division 8 of the Evidence Code, including without limitation, instructions, advice, or training provided by the State Compensation Insurance Fund to its board members, officers, and employees regarding the fund’s special investigation unit, internal audit unit, and informational security, marketing, rating, pricing, underwriting, claims handling, audits, and collections.

    (B) Notwithstanding subparagraph (A), the portions of records containing trade secrets shall be available for review by the Joint Legislative Audit Committee, California Stte Auditor’s Office, Division of Workers’ Compensation, and the Department of Insurance to ensure compliance with applicable law.

    (6) (A) Internal audits containing proprietary information and the following records that are related to an internal audit:

    (i) Personal papers and correspondence of any person providing assistance to the fund when that person has requested in writing that his or her papers and correspondence be kept private and confidential.  Those papers and correspondence shall become public records if the written request is withdrawn, or upon order of the fund.

    (ii) Papers, correspondence, memoranda, or any substantive information pertaining to any audit not completed or an internal audit that contains proprietary information.

    (B) Notwithstanding subparagraph (A), the portions of records containing proprietary information, or any information specified in subparagraph (A) shall be available for review by the Joint Legislative Audit Committee, California State Auditor’s Office, Division of Workers’ Compensation, and the Department of Insurance to ensure compliance with applicable law.

    (7) (A) Except as provided in subparagraph (C), contracts entered into pursuant to Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code shall be open to inspection one year after the contract has been fully executed.

    (B) If a contract entered into pursuant to Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code is amended, the amendment shall be open to inspection one year after the amendment has been fully executed.

    (C) Three years after a contract or amendment is open to inspection pursuant to this subdivision, the portion of the contract or amendment containing the rates of payment shall be open to inspection.

    (D) Notwithstanding any other provision of law, the entire contract or amendments to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendments thereto until the contract or amendments to a contract are open to inspection pursuant to this paragraph.

    (E) This paragraph is not intended to apply to documents related to contracts with public entities that are not otherwise expressly confidential as to that public entity.

    (F) For purposes of this paragraph, “fully executed” means the point in time when all of the necessary parties to the contract have signed the contract.

    Comment: There are no reported cases discussing this exemption.

    Concluding paragraphs of Section 6254:

    This section does not prevents any agency from opening its records concerning the administration of the agency to public inspection, unless disclosure is otherwise prohibited by law.

    Nothing in this section prevents any health facility from disclosing to a certified bargaining agent relevant financing information pursuant to Section 8 of the National Labor Relations Act (29 U.S.C. SEC. 158).

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  • Colorado

    Public records not subject to the act

    (1) The following records are specifically exempt from disclosure under the Act, except that such records, other than letters of reference concerning employment, licensing, or issuance of permits, shall be available to the person in interest.

    1. Medical, psychological, sociological, and scholastic achievement data on individual persons, other than scholastic achievement data submitted as part of finalists’ records as set forth in Colo. Rev. Stat. § 24-72-204(3)(a)(XI). Colo. Rev. Stat. § 24-72-204(3)(a)(I).

    This does not include coroners’ autopsy reports.

    Nor does it include group scholastic data from which the individual cannot be identified. See Sargent School Dist. No. RE-33J v. Western Services Inc., 751 P.2d 56 (Colo. 1988). However, individual scholastic data may not be disclosed under the Open Records Act even if the individuals’ names have been deleted. Id. The schools have no implied duty to convert individual scholastic data into group scholastic data documents.

    1. Personnel files. Colo. Rev. Stat. § 24-72-204(3)(a)(II).

    "Personnel files,” as defined by Colo. Rev. Stat. § 24-72-202(4.5), means and includes home addresses, telephone numbers, financial information, and other [similarly private] information maintained because of the employer-employee relationship, including other documents specifically exempt from disclosure by law. Only information that is akin to an employee’s home address, telephone number and personal financial information is properly classified as “personnel file.” Daniels v. City of Commerce City, 988 P.2d 648, 651 (Colo. App. 1999).

    "Personnel files,” as defined by Colo. Rev. Stat. § 24-72-202(4.5), does not include applications of past or current employees, employment agreements, any amount paid or benefit provided incident to termination of employment, performance ratings, final sabbatical reports required under Colo. Rev. Stat. § 23-5-123, or any compensation, including expense allowances and benefits, paid to employees by the state, its agencies, institutions, or political subdivisions. Because employment applications are public records, an applicant cannot waive the right to information concerning denial of an application for employment. Carpenter v. Civil Service Commission, 813 P.2d 773 (Colo. App. 1990).

    Employment records concerning the terms of employment and compensation of employees, including agreements made in settlement of disputed claims, are public records. Denver Publishing Co. v. University of Colorado, 812 P.2d 682 (Colo. App. 1990; Freedom Colo. Info. Inc. v. City of Colo. Springs, 37 Med.L.Rptr. (BNA) 1639 (Ct. App. Feb. 26, 2009) (requiring disclosure of employment agreements for two heart-lung surgeons on staff at public hospital);  See Colo. Rev. Stat. § 24-72-204(3)(a)(II)(B).

    Records of an employee’s absence from the workplace are public records, including the reason given for the absence. Jefferson Cty. Educ. Assoc. v. Jefferson Cty. Sch. Dist., 378 P.3d 835, 839 (Colo. App. 2016) (requiring disclosure of records showing names of high-school teachers who reported in sick on particular days).

    Only documents that are actually present in an employee’s personnel file are exempt from disclosure under the Act. Denver Post v. Univ. of Colo., 739 P.2d 874, 878 (Colo. App. 1987). A public employer cannot restrict access to documents that are otherwise subject public records merely by placing them in an employee’s personnel file; such records must implicate an employee’s personal privacy to qualify as a “personnel record.” Denver Publ'g Co. v. Univ. of Colo., 812 P.2d 682 (Colo. App. 1990).

    Personnel files are available to the person in interest and to duly elected and appointed public officials who supervise the employee’s work. Colo. Rev. Stat. § 24-72-204(3)(a)(II)(A). See Ornelas v. Dep't of Institutions, 804 P.2d 235 (Colo. App. 1990).

    1. Letters of reference. Colo. Rev. Stat. § 24-72-204(3)(a)(III). Letters of reference concerning employment, licensing or issuance of permits are not available to the person in interest. Colo. Rev. Stat. § 24-72-204(3)(a). City of Westminster v. Dogan Constr. Co., 930 P.2d 585 (Colo. 1997) (telephone survey notes of references are “letters of reference").
    2. Trade secrets, Colo. Rev. Stat. § 24-72-204(3)(a)(IV), including privileged information and confidential commercial, financial, geological or geophysical data furnished by or obtained from any person. See Griffin v. S.W. Devanney & Co., 775 P.2d 555 (Colo. 1989); International Bhd. of Elec. Workers Local 68 v. Denver Metro. Major League Baseball Stadium Dist., 880 P.2d 160 (Colo. App. 1994); Zubeck v. El Paso Cty. Ret. Plan, 961 P.2d 597 (Colo. App. 1998) (only information obtained from private parties is subject to this exemption, not information generated by the government itself).
    3. Information about library and museum material contributed by private persons, Colo. Rev. Stat. § 24-72-204(3)(a)(V), but only to the extent of any limitations placed on such information as a condition of contribution. Thus, the identity of an anonymous donor may not be divulged if anonymity of the donor is a condition of the gift or loan.
    4. Addresses and telephone numbers of students in public elementary and secondary schools. Colo. Rev. Stat. § 24-72-203(3)(a)(VI).
    5. Library records disclosing the identity of a user. Colo. Rev. Stat. § 24-72-203(3)(a)(VII); Colo. Rev. Stat. § 24-90-119 (see below).
    6. Records disclosing the addresses, telephone numbers, and personal financial information of past or present users of public utilities, public facilities, or recreational or cultural services owned and operated by the state, its agencies, institutions, or political subdivisions. Colo. Rev. Stat. § 24-72-203(3)(a)(IX).
    7. Records of sexual harassment complaints and investigations. Colo. Rev. Stat. § 24-72-204(3)(a)(X).

    Any records of sexual harassment complaints and investigations that are maintained pursuant to any rule of the general assembly on a sexual harassment policy, whether or not such records are maintained as part of a personnel files, are not open to inspection. Colo. Rev. Stat. § 24-72-204(3)(a)(X)(A). However, an administrative agency investigating the complaint may, upon a showing of necessity, gain access to information necessary to the investigation of such a complaint. Id.

    A person in interest, who includes the person making a complaint and the person whose conduct is the subject of such a complaint, may make a record of sexual harassment complaint or investigation available for public inspection when such record supports the claim that an allegation of sexual harassment against such person is false. Colo. Rev. Stat. § 24-72-204(3)(a)(X)(C).

    1. Records submitted by or on behalf of an applicant or candidate for an "executive position" who is not a "finalist" if the applicant or candidate makes a written request that the records be kept confidential at the time of submission of the records. Colo. Rev. Stat. § 24-72-204(3)(a)(XI)(A).

    "Executive position" is defined by Colo. Rev. Stat. § 24-72-202(1.3) as any non-elective employment position with a state agency, institution, or political subdivision, except employment positions in the state personnel system or in a classified system or civil service system of an institution or political subdivision.

    A "finalist" is defined by Colo. Rev. Stat. § 24-72-204(3)(a)(XI)(A) as an applicant or candidate for an executive position as the chief executive officer of a state agency, institution, or political subdivision or agency thereof who is a member of the final group of applicants or candidates made public pursuant to section 24-6-402(3.5); if only three or fewer applicants or candidates for the chief executive officer position possess the minimum qualifications for the position, then said applicants or candidates shall be considered finalists.

    Records submitted by or on behalf of an applicant or candidate include records of employment selection processes for all executive positions, including selection processes conducted or assisted by private persons or firms at the request of a state agency, institution, or political subdivision. Colo. Rev. Stat. § 24-72-204(3)(a)(XI)(C).

    1. Any record which is deemed confidential or protected from inspection by:

    State statute. Colo. Rev. Stat. § 24-72-204(1)(a). (See (B) below.)

    Federal statute or regulation. Colo. Rev. Stat. § 24-72-204(1)(b).

    Supreme Court rule or court order. Colo. Rev. Stat. § 24-72-204(1)(c).  This includes Chief Justice Directives.

    (2) The Custodian of Records has the discretionary authority to deny inspection of the following records on the ground that disclosure would be contrary to the public interest:

    1. Test questions, scoring keys, and other examination data pertaining to administration of licensing examinations, examinations for employment, or academic examinations. Colo. Rev. Stat. § 24-72-204(2)(a)(II). See Garner v. Colorado State Dep't of Personnel, 835 P.2d 527 (Colo. App. 1992), cert. denied, 507 U.S. 917 (1993).
    2. Specific details of bona fide research projects being conducted by a state institution. Colo. Rev. Stat. § 24-72-204(2)(a)(III).
    3. Contents of real estate appraisals made for the state or political subdivision concerning acquisition of property for public use until title to the property has passed to the state or political subdivision. Colo. Rev. Stat. § 24-72-204(2)(a)(IV). The contents of an appraisal are available to the property owner if eminent domain proceedings are brought.
    4. Any market analysis data generated by the Department of Transportation's bid analysis and management system for the confidential use of the department for awarding contracts or for the purchase of goods and services, and any records, documents, and automated systems prepared for the bid analysis and management system. Colo. Rev. Stat. § 24-72-204(2)(a)(V).
    5. Photographs filed with, maintained by, or prepared by the Department of Revenue pursuant to Colo. Rev. Stat. § 42-2-121(2)(c)(I)(F). Colo. Rev. Stat. § 24-72-204(2)(a)(VI).
    6. NOTE: If the right of inspection of any of the above records is allowed to any person in the media, it shall be allowed to all news media. Colo. Rev. Stat. § 24-72-204(2)(b).

    (3) "Substantial Injury to the Public Interest."

    1. The Open Records Act in Colo. Rev. Stat. § 24-72-204(6) provides that if the official custodian of any public record is of the opinion that disclosure of the contents of a record otherwise subject to disclosure would do "substantial injury to the public interest," the custodian may request the district court to order that disclosure of the record is restricted.
    2. Any hearing is to be held "at the earliest practical time." The person seeking to examine the record has a right to appear at the hearing.
    3. The custodian has the burden of proving that disclosure would substantially injure the public interest. This is primarily a question of fact. Civil Service Comm’n v. Pinder, 812 P.2d 645 (Colo. 1991). The unique circumstances surrounding a particular record must be so extraordinary that the legislative can be presumed not to have reasonably anticipated such a set of circumstances. See Civil Serv. Comm'n v. Pinder, 812 P.2d 645 (Colo. 1991).
    4. If the court determines that disclosure would do "substantial injury to the public interest," the court may restrict access to public records even though such records might otherwise be available to the person in interest or the general public. Civil Service Comm'n v. Pinder, 812 P.2d 645 (Colo. 1991).
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  • Connecticut

    1. Exemption One — “Preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.” Conn. Gen. Stat. §1-210(b)(1).

    (1) In 1980, the Supreme Court held that this exemption covers “advisory opinions, recommendations, and deliberations comprising part of the process by which governmental decisions and policies are formulated.” Wilson v. FOIC, 181 Conn. 324, 435 A.2d 353 (1980).

    (2) In 1981, the General Assembly effectively overruled Wilson by amending FOIA to state that “[n]otwithstanding the provisions of [Conn. Gen. Stat. §1-210(b)(1) and (16)], disclosure shall be required of: (1) Interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency.” Conn. Gen. Stat. §1-210(e)(1).

    (3) In Shew v. FOIC, 245 Conn. 149, 714 A. 2d 664 (1998), the Supreme Court discussed the meaning of the term “preliminary notes or drafts” and held that it does not depend on whether the record is subject to further alteration. The court also held that an attorney hired by a public agency to provide legal advice was analogous to a staff member under Conn. Gen. Stat. §1-210(e)(1), and drafts prepared by her are exempt. Despite this, the record-keeper must review documents to conduct a balancing test as to public interest. See also Coalition to Save Horsebarn Hill v. FOIC, 73 Conn. App. 89, 806 A.2d 1130 (2002), cert. denied, 262 Conn. 932, 815 A.2d 132 (2003) (abandonment of a contemplated project does not automatically require disclosure of preliminary drafts relating thereto; public interest must still be weighed).

    (4) In Van Norstrand v. FOIC, 211 Conn. 339, 559 A.2d 200 (1989), the Supreme Court held that a summary of data collected by the Speaker of the House of Representatives concerning judges not scheduled for House consideration for reappointment, which he had not submitted to House members in connection with reappointment deliberations, was exempt (but would not have been if the purpose of the survey had been to compile data on all judges for future House use).

    (5) In East Lyme Bd. of Educ. v. FOIC, No. 700617, 1991 WL 28098 (Conn. Super. Jan. 29, 1991), in upholding an order that the board disclose a summary of its oral evaluation of the school superintendent, following which negotiations continued on a mutually acceptable format for the evaluation, the Superior Court held that even when §1-210(b)(1) would exempt a record from disclosure, “if that record crosses the initial threshold for disclosure under [section 1-210(b)(1)] and is not then exempted under the second part of [section 1-210(b)(1)], the record must be disclosed."

    (6) In Bd. of Trustees v. FOIC, No. CV 91-05030535, 1992 WL 154367 (Conn. Super. June, 18, 1992), the Superior Court held that the responsibility for making the requisite public interest determination is vested by §1-210(b)(1) in the agency, and its decision to withhold can only be overruled if the FOIC finds it abused its discretion or its reasons for withholding are frivolous or patently unfounded. See Shew v. FOIC, 245 Conn. 149 (1998), where the Supreme Court noted that “the agency may not abuse its discretion in making the decision to withhold disclosure. The agency must, therefore, indicate the reasons for its determination to withhold disclosure and those reasons must not be frivolous or patently unfounded” (quoting Wilson v. FOIC, 181 Conn. 324 (1980)).

    (7) The FOIC has held that a budget director’s notes on a yellow legal pad, from which he prepared a memorandum, are exempt from disclosure under Conn. Gen. Stat. §1-210(b)(1) as preliminary drafts. Williams v. City of Hartford, Do. #FIC 85-101 (Oct. 23, 1985); see also Boynton v. Town of Westport, Do. #FIC 86-248 (May 27, 1986) (preliminary notes are exempt from disclosure; Lewin v. FOIC, No. CV 03-0522443, 2004 WL 2284250 (Conn. Super. Sept. 20, 2004) (holding that handwritten notes made by acting chairman of town ethics committee were exempt from disclosure under Conn. Gen. Stat. §1-210(b)(1)).

    (8) In Hartford Bd. of Educ. v. FOIC, No. CV 95-0550463, 1996 WL 176354 (Conn. Super. Mar. 29, 1996) the Superior Court ruled that a draft request for proposals submitted by a task force to the plaintiff board was not exempt under Conn. Gen. Stat. § §1-210(b)(1) or (e) because it was not a preliminary draft of what the task force might submit to the board, but rather the text of its final recommendation. The exemption for preliminary drafts under Conn. Gen. Stat. §1-210(b) is only for drafts that the submitter may revise before submission to the agency to which the draft is to be submitted. See also Comm’r of Pub. Works v. FOIC, No. CV 01-0509953S, 2002 WL 853593 (Conn. Super. Apr. 8, 2002) ("last draft” of a contract between the city of Bridgeport and the state that had been submitted to the city council for its action is not preliminary).

    (9) In Woodbridge Town Plan & Zoning Comm’n v. FOIC, No. CV 95-0374751, 1996 WL 62643 (Conn. Super. Jan. 25, 1996), the Superior Court held that under Conn. Gen. Stat. §1-210(b)(1) the public interest determination as to disclosure may be made by the agency after it consults with legal counsel and may be based on counsel’s advice.

    (10) Public records consisting of preliminary draft documents may be exempt from disclosure under Conn. Gen. Stat. §1-210(b)(1) regardless of their provenance. In Coalition to Save Horsebarn Hill v. FOIC, 73 Conn. App. 89, 806 A.2d 1130 (2002), cert. denied, 262 Conn. 932, 815 A.2d 132 (2003), the Appellate Court held that documents could be labeled preliminary drafts whether initiated by a public agency or private organization. The court upheld the FOIC’s decision that draft agreements between a pharmaceutical company and a public university for construction of a research facility were exempt from disclosure as preliminary drafts despite a dispute about which party had initiated the drafts.

    (11) In Strillacci v. FOIC, 2009 Conn. Super. LEXIS 1046 (2009), the court held that a list of lawsuits prepared by the Chief of Police was not preliminary because it was a completed document used by the Chief of Police in his public duties.

    1. Exemption Two — “Personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.” Conn. Gen. Stat. §1-210(b)(2).

    (1) In City of Hartford v. FOIC, 201 Conn. 421, 518 A.2d 49 (1986), the Supreme Court held that a public agency must meet “a twofold burden of proof to establish the applicability” of this exemption. First, it must establish that the file is a “personnel or medical or similar file,” and second it must establish that disclosure “would constitute an invasion of privacy.” The court also held that certain internal affairs records of the plaintiff’s police department were not exempt from disclosure.

    (2) In Perkins v. FOIC, 228 Conn. 158, 635 A.2d 783 (1993) and Kureczka v. FOIC, 228 Conn. 271, 636 A.2d 777 (1994), the Supreme Court interpreted the statutory phrase “invasion of personal privacy” in accordance with the common law tort standard for disclosure of private but embarrassing facts as reflected in 3 Restatement (Second) Torts, §652D. Therefore, disclosure may be denied only when the information sought does not pertain to legitimate matters of public concern and is highly offensive to a reasonable person (and not merely offensive to the person the data concerns). No public agency can shield public records from disclosure merely by promising to keep them confidential.

    (3) In Chairman v. FOIC, 217 Conn. 193, 585 A.2d 96 (1991), which Perkins and Kureczka would appear to supersede, the Supreme Court had held that “a person’s reasonable expectation of privacy and the potential for embarrassment” were “significant factors in determining if disclosure would constitute an invasion of privacy.” Id. at 198. In considering the Chief State’s Attorney’s “aptitude, attitude, basic competence . . . trustworthiness, ethics, [and] interpersonal relationships . . .” incident to his consideration for reappointment, the court held “disclosure of the report would carry significant potential for embarrassment and that [the Waterbury State’s Attorney] entertained a reasonable expectation of privacy in the information contained in the evaluation,” making disclosure an invasion of privacy “as a matter of law.” Id. at 199-200. The court also ruled that with respect to this exemption, unlike the one in Conn. Gen. Stat. §1-210(b)(1), no balancing test should be applied, thereby overruling its decision in Bd. of Educ. v. FOIC, 210 Conn. 590, 556 A.2d 592 (1989). Id. at 200-201; see also First Selectman v. FOIC, No. CV 99-0493041S, 1999 WL 595726 (Conn. Super. July 28, 1999) (reconciling Perkins and Chairman).

    (4) In Rocque v. FOIC, 255 Conn. 651, 774 A.2d 957 (2001) the Supreme Court reiterated that one claiming the exemption must prove both prongs, the facts of each case must be analyzed, and no type of data is always exempt.

    (5) In Dep’t of Transp. v. FOIC, No. CV 01-0508810S, 2001 WL 1734436 (Conn. Super. Dec. 21, 2001), the Superior Court acknowledged that a summary of a sexual harassment investigation was a “similar document” for the purposes of Conn. Gen. Stat. §1-210(b)(2), but held that it must be disclosed, with certain identifying information redacted. In reaching its decision, the court followed Rocque and Perkins.

    (6) In West Hartford v. FOIC, 218 Conn. 256, 588 A.2d 1368 (1991), the Supreme Court held that the FOIC could take judicial notice of the fact that, as a general rule, addresses are available in public directories, so that disclosure of retirees’ addresses would not per se constitute an invasion of personal privacy. The court recognized, however, that if a retiree took significant efforts to keep his or her name inaccessible, that retiree might have a reasonable expectation of privacy in the address so that disclosure would in fact constitute an invasion of privacy. See also Dir., Retirement & Benefit Servs. Div. v. FOIC, 256 Conn. 764, 775 A.2d 981 (2001) (holding that home addresses of employees of the state banking department were exempt from disclosure because the employees had also taken significant efforts to keep their addresses private).

    (7) In First Selectman v. FOIC, No. CV 99-0493041S, 1999 WL 595726 (Conn. Super. July 28, 1999), the Superior Court held that certain employee evaluations were not legitimate subjects of public concern because they were conducted in confidential circumstances, but that the evaluations were not exempt because the plaintiffs had failed to demonstrate that disclosure would be highly offensive to a reasonable person.

    (8) In Chairman, Bd. of Educ. v. FOIC, No. CV 97-0575674, 1998 WL 832415 (Conn. Super. Nov. 20, 1998), the Superior Court held that a public agency did not have standing to assert this exemption and that only the employee had this right under Conn. Gen. Stat. §1-214 (which provides a procedure for notifying an employee of a request for a personnel or medical file or similar file). The court also held that records pertaining to the evaluation of the superintendent of schools were not exempt under this exemption. See also Conn. Gen. Stat. §10-151c (teacher performance records are exempt; applies to all employees “below the rank of superintendent").

    (9) In Dep’t of Children & Families v. FOIC, 48 Conn. App. 467, 710 A.2d 1378 (1998), cert. denied, 245 Conn. 911, 718 A.2d 16 (1998), the Appellate Court held that the names of disciplined employees were a matter of public concern, and therefore not exempt under this exemption. Note that Conn. Gen. Stat. §1-217(a)(8) provides that the residential address of an employee of the Department of Children and Families is not subject to FOIA.

    (10) In Conn. Alcohol & Drug Abuse Comm’n v. FOIC, 233 Conn. 28, 657 A.2d 630 (1995), the Supreme Court found that an investigative file of a sexual harassment complaint by an employee against a coworker was a file “similar” to a “personnel file” in that it may contain information that would ordinarily be considered in making personnel decisions regarding the individuals involved. See also Almeida v. FOIC, 39 Conn. App. 154, 664 A.2d 322 (1995); Armstrong v. FOIC, Nos. CV 96-0563608, CV 96-0565853, 1997 WL 433957 (Conn. Super. July 23, 1997).

    (11) In Corporation Counsel’s Office v. FOIC, 3 CSCR 337 (1988), a pre-Chairman decision, the Superior Court upheld release of data on the criminal record and physical defects and major illnesses in the last five years contained in a policeman’s pre-employment application. The court also ruled that the motives of the one seeking the data are irrelevant. See also Pers. Dir. v. FOIC, 3 CSCR 338 (1988).

    (12) In City of Bristol v. FOIC, 9 Conn. L. Trib. No. 40 (1983), the Superior Court held that park employees did not assume the role of a public official so as to relinquish their right to privacy and that the employees’ discipline records were exempt from disclosure under this exemption.

    (13) In Town of Glastonbury v. FOIC, 9 Conn. L. Trib. No. 6 (1982), the Superior Court held that a directory listing the names and addresses of teachers is not exempt from disclosure under this exemption since the information is neither vital nor intimate and the disclosure would not constitute an invasion of privacy, even if used for commercial purposes.

    (14) In Town of Wallingford v. FOIC, 7 Conn. L. Trib. No. 29 (198l), the Superior Court held that a list of delinquent water accounts was not exempt from disclosure since it was not a “similar file” within the meaning of this exemption.

    (15) In Town of South Windsor v. FOIC, 5 Conn. L. Trib. No. 5 (1979), the Superior Court held that teachers are “limited public officials” and therefore relinquish certain privacy rights. The Superior Court also applied a five-part balancing test with respect to the teachers’ right of privacy versus the public’s right to know and held that the names of nontenured teachers whose contracts were not renewed were not exempt from disclosure.

    (16) In Town of Bloomfield v. FOIC, 4 Conn. L. Trib. No. 31 (1978), the Superior Court held that this exemption should be analyzed under the common-law tort doctrine of the right to privacy; i.e., has there been (1) an intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs, (2) a public disclosure of embarrassing private facts about the plaintiff, (3) publicity which places the plaintiff in a false light in the public eye, or (4) appropriation for the defendant’s advantage, of the plaintiff’s likeness. The Superior Court also held that public officials — in this case police officers — relinquish at least a portion of their right to privacy and that the information requested, the names of the police officers, which was contained in the officers’ personnel files, was not exempt from disclosure under this exemption.

    (17) In New Haven Chief of Police v. FOIC, 2 Conn. Ops. 572 (Conn. Super. 1996), the Superior Court held that under Conn. Gen. Stat. §1-210(b)(2), unless the character of the documents in question is conceded by the parties, the FOIC may be required to inspect them in camera (citing Wilson v. FOIC, 181 Conn 324, 340 (1980)).

    (18) In Cracco v. FOIC, Nos. CV 94-0705369S, CV 94-0705370S, CV 94-0705371S, 1995 WL 514468 (Conn. Super. Aug. 18, 1995), the Superior Court held that copies of records of complaints filed against a local school teacher and the result of any investigation and action taken were not exempt under either Conn. Gen. Stat. §1-210(b)(2) or §10-151c.

    (19) In Dep’t of Pub. Safety, Div. of State Police v. FOIC, 242 Conn. 79, 698 A.2d 803 (1997), the Supreme Court affirmed the trial court, holding that reports regarding a citizen’s complaint of police assault and use of excessive force by a police officer were not exempt from disclosure under Conn. Gen. Stat. §1-210(b)(2); however, reports regarding a citizen’s complaint that state trooper was involved in an inappropriate relationship with the complainant’s wife were exempt from disclosure.

    (20) In Hemmings v. FOIC, No. CV 96-0561457S, 1996 WL 715405 (Conn. Super. Dec. 4, 1996), the Superior Court affirmed the FOIC’s decision that it did not have subject matter jurisdiction over a complaint pursuant to Conn. Gen. Stat. §17a-548(b), which addresses the rights of a patient to access his or her own medical records.

    (21) The FOIC has held that only certain information in a job application is disclosable as a result of this exemption in order to protect the employee’s privacy rights: (1) name; (2) address; (3) business telephone number; (4) previous employment history; (5) educational background; (6) references; (7) motor vehicle conduct; (8) military information; and (9) the employee’s signature and date of the application. Mozzochi v. Town of Glastonbury, Do. #FIC 86-253 (Dec. 16, 1986).

    (22) When a public agency receives a request for personnel or medical files and similar files and the agency reasonably believes that disclosure would legally constitute an invasion of privacy, FOIA requires the agency to put the employee and the employee’s collective bargaining representative, if any, on notice of the request and provide an opportunity for objection. If the employee or representative does object, the public agency is required not to disclose the documents unless ordered to do so by the FOIC. Conn. Gen. Stat. §1-214(b) and (c).

    (23) In Davis v. FOIC, 787 A.2d 530, 259 Conn. 45 (2002), a case of first impression, the Connecticut Supreme Court held that a town tax assessor was not prohibited from disclosing information contained in records received from the Department of Motor Vehicles to an insurance investigator. The insurance investigator wished to examine the town’s motor vehicle “grand list,” which contained the names and addresses of motor vehicle owners, and the court concluded that this information was not exempt under FOIA.

    (24) In Dep't. of Public Safety v. FOIC, 2009 Conn. Super. LEXIS 509 (2009), the court held that a police report of a suicide was not a personnel, medical or similar file under Conn. Gen. Stat. §1-210(b)(2).

    1. Exemption Three — “Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known, (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action, (D) investigatory techniques not otherwise known to the general public, (E) arrest records of a juvenile, which shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes, (F) the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b, or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof, or (G) uncorroborated allegations subject to destruction pursuant to section 1-216.” Conn. Gen. Stat. §1-210(b)(3).

    (1) In Kirschner v. FOIC, No. CV 97-0567162, 1998 WL 27829 (Conn. Super. Jan. 15, 1998), the Superior Court held that the plaintiff failed to prove the applicability of this exemption to an internal investigation report.  See also Davis v. FOIC, 47 Conn. Sup. 309, 790 A.2d 1188 (2001), aff'd 259 Conn. 45, 787 A.2d 530 (2002).

    (2) In Bona v. FOIC, No. CV 94-0123411S, 1995 WL 491386 (Conn. Super. Aug. 10, 1996), the Superior Court held that a police report concerning an alleged incident at the home of the ex-wife of a gubernatorial candidate was exempt under Conn. Gen. Stat. § §1-210(b)(3)(G) and 1-202 after the court conducted an in camera review of the documents in question and found that the report contained an allegation that an individual had engaged in criminal activity, though no arrest was made. The Appellate Court affirmed this decision, holding that records of uncorroborated allegations are not to be disclosed during the 15-month period in which corroboration is sought, that disclosure would not be in the public interest, and that no balancing is required. Bona v. FOIC, 44 Conn. App. 622, 691 A.2d 1 (1997).

    (3) In Maher v. FOIC, 192 Conn. 310, 472 A.2d 321 (1984), the Supreme Court held that the Department of Income Maintenance was not a law enforcement agency for purposes of this exemption even though it transmits information to a state fraud control unit.

    (4) In Comm’r of Motor Vehicles v. FOIC, 6 Conn. L. Trib. No. 6 (1979), the Superior Court held that the term “crime” should be construed according to its commonly understood usage and that an infraction is a crime within the meaning of this exemption. See also Records Outline at III.J.

    (5) In Dep’t of Pub. Safety v. FOIC, 51 Conn. App. 100, 720 A. 2d 268 (1998), the Appellate Court held that subsection (C) is not satisfied by a mere good faith assertion that the matter is potentially criminal. There must be an “evidentiary showing” that the “actual information sought is going to be used in a law enforcement action” and “that the disclosure of that information would be prejudicial to that action."

    1. Exemption Four — “Records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled.” Conn. Gen. Stat. §1-210(b)(4). See also Conn. Gen. Stat. §1-200(8) and (9) (defining “pending claim” and “pending litigation").

    (1) Conn. Gen. Stat. §1-200(8) and (9) define “pending claims” and “pending litigation” as follows:

    (i) “’Pending claim’ means a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.” Conn. Gen. Stat. §1-200(8).

    (ii) “’Pending litigation’ means (A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (B) the service of a complaint against an agency returnable to a court which seeks to enforce or implement legal relief or a legal right; or (C) the agency’s consideration of action to enforce or implement legal relief or a legal right.” Conn. Gen. Stat. §1-200(9).

    (2) In ECAP Construction Co. v. FOIC, No. CV 97-0574054, 1998 WL 470640 (Conn. Super. July 30, 1998), the Superior Court held that a “pending claim” can exist without specifically threatening a lawsuit. A demand for damages under a contract suffices.

    (3) In City of Stamford v. FOIC, 241 Conn. 310, 696 A.2d 321 (1997), the Supreme Court held that an investigative report prepared for the City of Stamford concerning issues related to litigation involving Stamford is exempt pursuant to Conn. Gen. Stat. §1-210(b)(4) as “records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party."

    (4) In City of New Haven v. FOIC, 205 Conn. 767, 535 A.2d 1297 (1988), the Supreme Court held that the plaintiff had failed to present evidence showing that invoices for legal services that bear only the attorney’s name and the amount of the billing “pertain to strategy and negotiations” and that the invoices were therefore not exempt from disclosure under this exemption. See also Maxwell v. FOIC, No. CV 99-0497390S, 1999 WL 219874 (Conn. Super. Feb. 15, 2001), aff’d on other grounds, 260 Conn. 143, 794 A.2d 535 (2002) (ordering the disclosure of town counsel’s legal bills despite the relation of some invoices to pending litigation).

    1. Exemption Five — “(A) Trade secrets, which for purposes of the Freedom of Information Act, are defined as information, including formulas, patterns, compilations, programs, devices, methods, techniques, processes, drawings, cost data, or customer lists that (i) derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from their disclosure or use, and (ii) are the subject of efforts that are reasonable under the circumstances to maintain secrecy; and (B) Commercial or financial information given in confidence, not required by statute.” Conn. Gen. Stat. §1-210(b)(5).

    (1) In Dep’t of Pub. Utilities v. FOIC, 55 Conn. App. 527, 739 A.2d 328 (1999), the Appellate Court held that a natural gas study was not exempt under this exemption as a trade secret because there was no evidence of a formal confidentiality agreement regarding the study or other discernable measures taken to guard its secrecy.

    (2) In Chief of Staff v. FOIC, No. CV 98-0492654S, 1999 WL 643373 (Conn. Super. Aug. 12, 1999), the Superior Court held that this exemption contains two components: trade secrets and commercial or financial information. (Note that this decision was prior to P.A. 00-136, which split this exemption into subsections (A) and (B)).

    (3) In Holbrook v. FOIC, No. CV 96-0563515S, 1997 WL 187177 (Conn. Super. Apr. 9, 1997), the Superior Court held that individual reports from shellfish harvesters are exempt from disclosure pursuant to Conn. Gen. Stat. §1-210(b)(5), as the reports are “commercial or financial information given in confidence, not required by statute."

    (4) The Supreme Court found in Dir., Dep’t of Info. Tech. v. FOIC, 274 Conn. 179, 874 A.2d 785 (2005) that computerized data from a town’s geographic information system was not a trade secret because it was data readily available to the public from several other town departments; the requested database was simply a convenient compilation of the information in one place.

    (5) In University of Connecticut v. FOIC, 303 Conn. 724 (2012), the Supreme Court held that lists of supporters and potential supporters created by the athletic department and other university departments could be exempt as a trade secret customer list even though the university may not be engaged in a “trade.”

    1. Exemption Six — “Test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examinations.” Conn. Gen. Stat. §1-210(b)(6).

    (1) In Stamford v. FOIC, No. CV 99-0497667S, 1999 WL 1212439 (Conn. Super. Dec. 6, 1999), the Superior Court held that a psychological report of a police officer candidate is not exempt under this exemption.

    (2) In Washington v. FOIC, No. CV 98-0492644S, 1999 WL 711509 (Conn. Super. Aug. 31, 1999), the Superior Court held that written answers, taped oral answers, and the panelists’ scoring sheets for a fire department promotional examination were “examination data” and therefore exempt from disclosure.

    (3) In Town of Glastonbury v. FOIC, 39 Conn. Supp. 257, 476 A.2d 1090 (1984), the Superior Court held that this exemption applies to tests that have already been administered and to tests that have yet to be administered.

    (4) In Chairman, Merit Promotional Comm. v. FOIC, 4 CSCR 16 (1988), the Superior Court held that disclosure to those taking merit promotion exams of the evaluation rating forms completed by each rater, showing the name of the rater, does not violate Conn. Gen. Stat. §§5-225 or 1-210(b)(6).

    (5) In Conn. Bar Examining Comm. v. FOIC, 4 CSCR 225 (1989), the Superior Court sustained an FOIC order requiring disclosure of the names of those who read, graded, and scored bar exam essay questions. On appeal, the Supreme Court held that records relating solely to the committee’s administrative functions must be made available to the public unless doing so would interfere with performance of committee’s judicial functions, and remanded the case for further findings regarding the impact upon the committee of complying with disclosure order and reasonableness of committee’s refusal in respect to each item sought. Conn. Bar Examining Comm. v. FOIC, 209 Conn. 204, 550 A.2d 663 (1988).

    1. Exemption Seven — “The contents of real estate appraisals, engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned, provided the law of eminent domain shall not be affected by this provision.” Conn. Gen. Stat. §1-210(b)(7).

    (1) In City of Hartford v. FOIC, 41 Conn. App. 67, 674 A.2d 462 (1996), the Appellate Court sustained the FOIC’s finding that responses submitted in response to a request for proposals for a construction manager to oversee a school renovation and expansion project were not exempt under Conn. Gen. Stat. §1-210(b)(7).

    1. Exemption Eight — “Statements of personal worth or personal financial data required by a licensing agency and filed by an applicant with such licensing agency to establish the applicant’s personal qualification for the license, certificate or permit applied for.” Conn. Gen. Stat. §1-210(b)(8).

    (1) There are no reported court decisions on this exemption.

    1. Exemption Nine — “Records, reports and statements of strategy or negotiations with respect to collective bargaining.” Conn. Gen. Stat. §1-210(b)(9).

    (1) In Bloomfield Educ. Ass’n v. Frahm, 35 Conn. App. 384, 646 A.2d 247 (1994), the Appellate Court held that grievances filed under a teacher’s employment contract are not exempt under Conn. Gen. Stat. §1-210(b)(9).

    (2) In East Lyme Teachers Ass’n v. FOIC, No. CV 97-0571973, 1998 WL 310827 (Conn. Super. June 5, 1998), the Superior Court held that the school principal’s response to a grievance was not exempt under this exemption.

    1. Exemption Ten — “Records, tax returns, reports and statements exempted by federal law or state statutes or communications privileged by the attorney-client relationship.” Conn. Gen. Stat. §1-210(b)(10). See also Conn. Gen. Stat §52-146(r) (statute governing confidential attorney-client communications regarding public agencies).

    (1) In Harrington v. FOIC, 323 Conn. 1 (2016), the Supreme Court held that communications relating to both business and legal advice are privileged if the “primary purpose” of the communication is legal assistance.

    (2) In Shew v. FOIC, 245 Conn. 149, 714 A.2d 664 (1998), the Supreme Court held that the attorney-client privilege applied to municipal entities and it set forth the requirements of the privilege: (i) the attorney must be acting in a professional capacity for the agency; (ii) the communications must be made to the attorney by current employees or officials of the agency; (iii) the communications must relate to the legal advice sought by the agency from the attorney; and (iv) the communications must be made in confidence.

    (3) In Lash v. FOIC, 14 A.3d 998 (2011), the Supreme Court held that certain documents were exempt from disclosure under the FOIA because they met the four part test set forth in Shaw.

    (4) In Groppo v. FOIC, 4 CSCR 300 (1989), the Superior Court held that Conn. Gen. Stat. §12-15 exempts from disclosure applications filed with the Department of Revenue Services for tax registration numbers.

    (5) In City of New Haven v. FOIC, 4 Conn. App. 216, 493 A.2d 283 (1985), the Appellate Court held that the plaintiff had not established that certain attorney invoices submitted to a public agency were within the purview of the attorney-client privilege and that the invoices were therefore not exempt from disclosure under this exemption.

    (6) In Lucarelli v. FOIC, No. CV 93-0068988, 1995 WL 151911 (Conn. Super. Mar. 29, 1995), the Superior Court ruled that determining whether certain documents were protected by the attorney-client privilege required an in camera review of them by the FOIC.

    (7) In Maxwell v. FOIC, 260 Conn. 143, 794 A.2d 535 (2002), the Supreme Court rejected a plaintiff’s argument that the Conn. Gen. Stat. §1-210(b)(10) was an unconstitutional delegation of power by the legislature to the FOIC in violation of the separation of powers doctrine. The Supreme Court found that the statute did not provide the FOIC with the authority to define the attorney-client privilege.

    (8) The Appellate Court ruled that a selectman’s intentional disclosure of a letter from town counsel that was written for the purpose of providing information to the public about a case affecting their beach access rights did not expressly or impliedly waive privilege with respect to any communications regarding the same subject. McLaughlin v. FOIC, 83 Conn. App. 190, 850 A.2d 254, cert denied, 270 Conn. 916, 853 A.2d 530 (2004). The court found that although the letter was created by an attorney hired by the town, it was not privileged because it was created to help a political leader explain the implications of a court decision; therefore, its disclosure did not constitute a waiver.

    (9) In Division of Criminal Justice v. FOIC, 2010 Conn. Super. LEXIS 497 (2010), the court held that subpoenas issued to a public agency in connection with an investigatory grand jury were not exempt under Conn. Gen. Stat. §§1-210(b)(10) and 54-47e.

    (10) In Danaher v. FOIC, 2008 Conn. Super. LEXIS 2255 (2008), the court held that the reference in the exemption to "federal law" only applies to federal law that "prohibits disclosure."  The court held that the requested documents, which were prepared by the Department of Homeland Security, were not exempt from disclosure.  See also Chief of Police v. FOIC, 252 Conn. 377, 746 A.2d 1264 (2000) (apply exemption ten by implication).

    1. Exemption Eleven — “Names or addresses of students enrolled in any public school or college without the consent of each student whose name or address is to be disclosed who is eighteen years of age or older and a parent or guardian of each such student who is younger than eighteen years of age, provided this subdivision shall not be construed as prohibiting the disclosure of the names or addresses of students enrolled in any public school in a regional school district to the board of selectmen or town board of finance, as the case may be, of the town wherein the student resides for the purpose of verifying tuition payments made to such school.” Conn. Gen. Stat. §1-210(b)(11).

    (1) In Univ. of Conn. v. FOIC, 217 Conn. 322, 585 A.2d 690 (1991), the Supreme Court held that this section exempted from disclosure the names of all employees of the University who were also students and whose employment was conditioned on their being students.

    (2) In Hartford Bd. of Educ. v. FOIC, No. CV 95-0555646, 1997 WL 15422 (Conn. Super. Jan. 9, 1997), the trial court held that the board was not required to disclose the names and addresses of parents of Hartford school children to the public, because doing so would violate Conn. Gen. Stat. §1-210(b)(11). The court reasoned that “it requires no stretch of imagination to see that the disclosure of the names and addresses of parents will more often than not reveal at least the surnames and the addresses of their children.” Id. at *2.

    (3) In Eastern Conn. State Univ. v. FOIC, No. CV 96-0556097, 1996 WL 580966 (Conn. Super. Sept. 30, 1996), the Superior Court affirmed the FOIC’s decision that audio tapes of a student disciplinary hearing are public records and subject to public disclosure.

    1. Exemption Twelve — “Any information obtained by the use of illegal means.” Conn. Gen. Stat. §1-210(b)(12).

    (1) In State Dep’t of Admin. Servs. v. FOIC, No. CV 95-550049, 1996 WL 88490 (Conn. Super. Feb. 9, 1996), the Superior Court upheld the decision of the FOIC rejecting the premise that if legally obtained information is illegally disclosed the collection of the information would be rendered illegal. The FOIC had ordered disclosure of data sheets provided to applicants who sat for a Librarian 1 examination which indicated handicapped status. The Superior Court stated that the argument amounts to a claim that disclosure is illegal, a separate issue from the legality of the collection of the information, which the court determined was legal.

    1. Exemption Thirteen — “Records of an investigation or the name of an employee providing information under the provisions of section 4-61dd [disclosure of information to auditors of public accounts].” Conn. Gen. Stat. §1-210(b)(13).

    (1) Note that this exemption is referred to by courts as the whistle-blower exemption and is significant for its coverage of both the “records of an investigation” and the name of the employee providing information under the statute. Rocque v. FOIC, No. CV 98-0492734S, 1999 WL 1268150 (Conn. Super. Nov. 30, 1990), aff’d in part, rev’d in part, 255 Conn. 651, 774 A.2d 957 (2001).

    (2) In Office of the Attorney General v. FOIC, 2011 Conn. Super. LEXIS 129 (2011), the court held that by its plain language and its relationship to Conn. Gen. Stat. §1-210(b)(13), Conn. Gen. Stat.§4-61dd(a) does not require the release of records of a whistleblower investigation upon the conclusion of the investigation.

    1. Exemption Fourteen — “Adoption records and information provided for in sections 45a-746, 45a-750 and 45a-751 [certain information pertaining to adoption].” Conn. Gen. Stat. §1-210(b)(14).

    (1) There are no reported court decisions on this exemption.

    1. Exemption Fifteen — “Any page of a primary petition, nominating petition, referendum petition or petition for a town meeting submitted under any provision of the general statutes or of any special act, municipal charter or ordinance, until the required processing and certification of such page has been completed by the official or officials charged with such duty after which time disclosure of such page shall be required.” Conn. Gen. Stat. §1-210(b)(15).

    (1) There are no reported court decisions on this exemption.

    1. Exemption Sixteen — “Records of complaints, including information compiled in the investigation thereof, brought to a municipal health authority pursuant to chapter 368e or a district department of health pursuant to chapter 368f, until such time as the investigation is concluded or thirty days from the date of receipt of the complaint, whichever occurs first.” Conn. Gen. Stat. §1-210(b)(16).

    (1) There are no reported court decisions on this exemption.

    1. Exemption Seventeen — “Educational records which are not subject to disclosure under the Family Educational Rights and Privacy Act, 20 USC 1232g.” Conn. Gen. Stat. §1-210(b)(17).

    (1) There are no reported court decisions on this exemption.

    1. Exemption Eighteen — “Records, the disclosure of which the Commissioner of Correction, or as it applies to Whiting Forensic Division facilities of the Connecticut Valley Hospital, the Commissioner of Mental Health and Addiction Services, has reasonable grounds to believe may result in a safety risk, including the risk of harm to any person or the risk of an escape from, or a disorder in, a correctional institution or facility under the supervision of the Department of Correction or Whiting Forensic Division facilities. Such records shall include, but are not limited to:

    (A) Security manuals, including emergency plans contained or referred to in such security manuals;

    (B) Engineering and architectural drawings of correctional institutions or facilities or Whiting Forensic Division facilities;

    (C) Operational specifications of security systems utilized by the Department of Correction at any correctional institution or facility or Whiting Forensic Division facilities, except that a general description of any such security system and the cost and quality of such system may be disclosed;

    (D) Training manuals prepared for correctional institutions and facilities or Whiting Forensic Division facilities that describe, in any manner, security procedures, emergency plans or security equipment;

    (E) Internal security audits of correctional institutions and facilities or Whiting Forensic Division facilities;

    (F) Minutes or recordings of staff meetings of the Department of Correction or Whiting Forensic Division facilities, or portions of such minutes or recordings, that contain or reveal information relating to security or other records otherwise exempt from disclosure under this subdivision;

    (G) Logs or other documents that contain information on the movement or assignment of inmates or staff at correctional institutions or facilities; and

    (H) Records that contain information on contacts between inmates, as defined in section 18-84, and law enforcement officers.” Conn. Gen. Stat. §1-210(b)(18).

    (1) In Dep't. of Correction v. FOIC, 2008 Conn. Super. LEXIS 2724 (2008), the court stated that the FOIC may review the Commissioner's determination under this exemption for "reasonableness."  The court held that the Commissioner's determination must be upheld unless it was pretextual and not bona fide or irrational.

    (2) In Tillman v. FOIC, 2008 Conn. Super. LEXIS 2120 (2008), the court held that the "risk of harm" referred to in the exemption did not include purely psychological harm unrelated to issues of prison safety and security.

    (3) In Dep't. of Correction v. FOIC, 2007 Conn. Super. LEXIS 1742 (2007), the court held that the Commissioner of Corrections is the person to determine whether there is "reasonable grounds" for the exemption to apply.

    1. Exemption Nineteen — “Records when there are reasonable grounds to believe disclosure may result in a safety risk, including the risk of harm to any person, any government-owned or leased institution or facility or any fixture or appurtenance and equipment attached to, or contained in, such institution or facility, except that such records shall be disclosed to a law enforcement agency upon the request of the law enforcement agency. Such reasonable grounds shall be determined (A) with respect to records concerning any executive branch agency of the state or any municipal, district or regional agency, by the Commissioner of Public Works, after consultation with the chief executive officer of the agency; (B) with respect to records concerning Judicial Department facilities, by the Chief Court Administrator; and (C) with respect to records concerning the Legislative Department, by the executive director of the Joint Committee on Legislative Management. As used in this section, ’government-owned or leased institution or facility’ includes, but is not limited to, an institution or facility owned or leased by a public service company, as defined in section 16-1, a certified telecommunications provider, as defined in section 16-1, a water company, as defined in section 25-32a, or a municipal utility that furnishes electric, gas or water service, but does not include an institution or facility owned or leased by the federal government, and ’chief executive officer’ includes, but is not limited to, an agency head, department head, executive director or chief executive officer. Such records include, but are not limited to:

    (i) Security manuals or reports;

    (ii) Engineering and architectural drawings of government-owned or leased institutions or facilities;

    (iii) Operational specifications of security systems utilized at any government-owned or leased institution or facility, except that a general description of any such security system and the cost and quality of such system, may be disclosed;

    (iv) Training manuals prepared for government-owned or leased institutions or facilities that describe, in any manner, security procedures, emergency plans or security equipment;

    (v) Internal security audits of government-owned or leased institutions or facilities;

    (vi) Minutes or records of meetings, or portions of such minutes or records, that contain or reveal information relating to security or other records otherwise exempt from disclosure under this subdivision;

    (vii) Logs or other documents that contain information on the movement or assignment of security personnel at government-owned or leased institutions or facilities;

    (viii) Emergency plans and emergency recovery or response plans; and

    (ix) With respect to a water company, as defined in section 25-32a, that provides water service: Vulnerability assessments and risk management plans, operational plans, portions of water supply plans submitted pursuant to section 25-32d that contain or reveal information the disclosure of which may result in a security risk to a water company, inspection reports, technical specifications and other materials that depict or specifically describe critical water company operating facilities, collection and distribution systems or sources of supply.” Conn. Gen. Stat. §1-210(b)(19).

    (1) In People of the Ethical Treatment of Animals v. FOIC, 321 Conn. 805 (2016), the Supreme Court held that the FOIC must defer to the Dept. of Administrative Services determination of a safety risk unless it is frivolous or patently unfounded or was not arrived at in good faith.

    (2) Only one court decision has discussed this exemption, which was amended significantly in 2002. A town’s director of information technology refused a request for copies of computerized data from a town’s geographic information system based on exemptions including Conn. Gen. Stat. §1-210(b)(19). Dir., Dep’t of Info. Tech. v. FOIC, 274 Conn. 179, 874 A.2d 785 (2005). The Appellate Court held that the IT director failed to meet his burden of seeking a determination from the commissioner of public works that the GIS information fell under the public safety exception, and so affirmed the earlier decisions requiring disclosure. Id. at 189.

    1. Exemption Twenty — “Records of standards, procedures, processes, software and codes, not otherwise available to the public, the disclosure of which would compromise the security or integrity of an information technology system.” Conn. Gen. Stat. §1-210(b)(20).

    (1) This exemption was discussed briefly in the context of general public safety concerns regarding the disclosure of a town’s geographic information system, but has not been addressed in detail by any court. See Dir., Dep’t of Info. Tech. v. FOIC, 274 Conn. 179, 874 A.2d 785 (2005); see also Records Outline at II.A.2.s.1.

    1. Exemption Twenty-One — “The residential, work or school address of any participant in the address confidentiality program established pursuant to sections 54-240 to 54-240o, inclusive [establishing substitute mailing addresses for victims of family violence, injury to a child, sexual assault or stalking].” Conn. Gen. Stat. §1-210(b)(21).

    (1) There are no reported court decisions on this exemption.

    1. Exemption Twenty-Two — "The electronic mail address of any person that is obtained by the Department of Transportation in connection with the implementation or administration of any plan to inform individuals about significant highway or railway incidents." __________________

    (1) There are no reported court decisions on this exemption.

    1. Exemption Twenty-Three — "The name or address of any minor enrolled in any parks and recreation program administered or sponsored by any public agency." ________________________

    (1) There are no reported court decisions on this exemption.

    1. Exemption Twenty-Four — " Responses to any request for proposals or bid solicitation issued by a public agency or any record or file made by a public agency in connection with the contract award process, until such contract is executed or negotiations for the award of such contract have ended, whichever occurs earlier, provided the chief executive officer of such public agency certifies that the public interest in the disclosure of such responses, record or file is outweighed by the public interest in the confidentiality of such responses, record or file." ______________________

    (1) There are no reported court decisions on this exemption.

    1. Exemption Twenty-Five — " The name, address, telephone number or electronic mail address of any person enrolled in any senior center program or any member of a senior center administered or sponsored by any public agency." ________________________

    (1) There are no reported court decisions on this exemption.

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  • Delaware

    a. 29 Del. C. § 10002(g)(1): "Any personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy." See Gannett Co. v. Christian, 1983 WL 473048 (Del. Super. Aug. 19, 1983) (disclosure of teacher salary information not an invasion of privacy). For example, Social Security numbers need not be disclosed. Del. Op. Att'y Gen., No. 95-ib03 (Jan. 25, 1995). Further, withholding taxes, Social Security declarations and elective declarations are not required to be disclosed. Likewise, score sheets of interviewees during the applicant selection process for a new driver's education instructor have been exempted from disclosure. Del. Op. Att'y Gen., No. 05-ib20 (July 27, 2005). However, the names of the presidents and the contact information for corporations have been held to be public information under FOIA. Del. Op. Att'y Gen., No. 03-ib01 (Jan. 10, 2003).

    For purposes of construing Delaware's FOIA, "personnel file" is defined as "any application for employment, wage or salary information, notices of commendations, warning or discipline, authorization for a deduction or withholding of pay, fringe benefit information, leave records, employment history with the employer, including salary information, job title, dates of changes, retirement record, attendance records, performance evaluations and medical records." Del. Op. Att'y Gen., No. 02-ib24 (Oct. 1, 2002).

    b. 29 Del. C. § 10002(g)(2): "Trade secrets and commercial or financial information obtained from a person which is of a privileged or confidential nature." This exemption has been construed to protect "individuals from a wide range of embarrassing disclosures." Del. Op. Att'y Gen., No. 03-ib21 (Oct. 6, 2003) (quoting Del. Op. Att'y Gen., No. 87-1031 (Nov. 4, 1987). For example, the "release of information regarding one's assets, profits and losses, stock holdings, loans and collateral" are confidential financial information exempt from disclosure under FOIA. Del. Op. Att'y Gen., No. 87-I031 (Nov. 4, 1987). See also Del. Op. Att'y Gen., No. 96-ib30 (Sept. 25, 1996) (tax returns of parents of children applying for scholarships exempt from disclosure under FOIA). See Del. Op. Att'y Gen., No. 00-ib15 (Oct. 4, 2000) (outlining the trade secret exception).

    The FOIA exemption for confidential commercial or financial information may apply "when the government requires a private party to submit information as a condition of doing business with the government." Del. Op. Att'y Gen., No. 03-ib21 (Oct. 6, 2003) (quoting Judicial Watch v. Export-Import Bank, 108 F. Supp. 2d 19, 27 (D.D.C. 2000)). To fall within the exemption, the government has the burden of showing that disclosure of the information "is likely to cause substantial harm to the competitive position of the person from whom the information was obtained." Id.

    c. 29 Del. C. § 10002(g)(3): "Investigatory files compiled for civil or criminal law-enforcement purposes including pending investigative files, pretrial and presentence investigations and child custody and adoption files where there is no criminal complaint at issue." See Nasir v. Oberly, 1985 WL 189324 (Del. Super. Dec. 5, 1985) appeal dismissed, 508 A.2d 470 (Del. 1986) (statements of witnesses in robbery investigation); News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980) (investigation files of professional engineers not public). See also Del. Op. Att'y Gen., No. 04-iB20 (Nov. 16, 2004) (exempting an accident report); Del. Op. Att'y Gen. No. 99-ib14 (Nov. 5, 1999) (exempting documents pertaining to a police complaint relating to an unregistered motor vehicle). The exception applies even after the file has been closed. Del. Op. Att'y Gen., No. 99-ib14 (Nov. 5, 1999); News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980).

    d. 29 Del. C. § 10002(g)(4): "Criminal files and criminal records, the disclosure of which would constitute an invasion of personal privacy. Any person may, upon proof of identity, obtain a copy of the person's personal criminal record. All other criminal records and files are closed to public scrutiny. Agencies holding such criminal records may delete any information, before release, which would disclose the names of witnesses, intelligence personnel and aids or any other information of a privileged and confidential nature."

    e. 29 Del. C. § 10002(g)(5): "Intelligence files compiled for law-enforcement purposes, the disclosure of which could constitute an endangerment to the local, state or national welfare and security."

    f. 29 Del. C. § 10002(g)(6): "Any records specifically exempted from public disclosure by statute or common law."  See Guy v. Judicial Nominating Comm'n, 659 A.2d 777 (Del. Super. 1995) (holding that the confidential records of an appointed commission are protected by constitutional and common law doctrine of executive privilege, exempting the records from disclosure); Del. Op. Att'y Gen., No. 02-ib24 (Oct. 1, 2002) (holding that the common law work product privilege can except disclosure); Jacobs v. City of Wilmington, 2002 WL 27817 (Del. Ch. Jan. 3, 2002) (holding nonmandatory traffic accident reports were not public records). See also Mell v. New Castle County, 2004 WL 1790140 (Del. Super. Aug. 4, 2004).

    g. Delaware courts have recognized a common law right of informational privacy, which guards against disclosure by the government of personal information about citizens. See Del. Op. Att'y Gen., No. 01-ib17 (Nov. 19, 2001) (determining that Delaware's FOIA protects the names and addresses of retired public employees because disclosure of that information would invade their privacy). For example, public employees' right of privacy in the records of a legal settlement has been found to outweigh the public interest in disclosure. Del. Op. Att'y Gen., No. 02-ib24 (Oct. 1, 2002). See also Del. Op. Att'y Gen., No. 99-ib02 (Apr. 16, 1999).

    h. 29 Del. C. § 10002(g)(7): "Any records which disclose the identity of the contributor of a bona fide and lawful charitable contribution to the public body whenever public anonymity has been requested of the public body with respect to said contribution by the contributor."

    i. 29 Del. C. § 10002(g)(8): "Any records involving labor negotiations or collective bargaining." The purpose behind this exception is that each side in a negotiation situation wishes to obtain the most favorable terms in the ultimate agreement. Del. Op. Att'y Gen., No. 04-ib16 (Oct. 13, 2004). The disclosure to the public of discussions and proposals that take place on one side during the course of negotiations would obviously entail the disclosure of those strategic matters to the other party with whom negotiations are taking place. Id. (exempting copies of proposed or pending contracts and other documents between the Brandywine School District and Brandywine Education Association).

    j. 29 Del. C. § 10002(g)(9): "Any records pertaining to pending or potential litigation which are not records of any court." FOIA's pending/potential litigation exemption is intended to prevent litigants from using "FOIA as a means to obtain discovery which is not available under the court's rules of procedure." Mell v. New Castle County, 835 A.2d 141, 147 (Del. Super. 2003). Del. Op. Att'y Gen., No. 03-ib21 (Oct. 6, 2003).

    The pending litigation exemption "turns on the identity of the requestor and the purpose of the request." Att'y Gen. Op. 03-ib21 (Oct. 6, 2003). The exemption applies when "[i]t is exclusively about litigators and litigants looking for materials that might help them in court." Office of the Public Defender v. Delaware State Police, 2003 WL 1769758, at *3 (Del. Super. Mar. 31, 2003). See Del. Op. Att'y Gen., No. 02-ib32 (Dec. 20, 2002) (concluding that the potential litigation exception does not cover a presuit exchange of letters between potential parties); Del. Op. Att'y Gen., No. 04-ib04 (Feb. 5, 2004) (extending the pending litigation exception to Quasi-Judicial proceeding including arbitration); Del. Op. Att'y Gen., No. 03-ib10 (May 6, 2003); Mell v. New Castle County, 835 A.2d 141 (Del. Super. 2003) (exempting documents under the pending litigation exception) See also Del. Op. Att'y Gen., No. 03-ib26 (Nov. 13, 2003).

    For the potential litigation exemption to apply, "FOIA requires a two-part analysis: first, litigation must be likely or reasonably foreseeable; and second, there must be a clear nexus between the documents requested under FOIA and the subject matter of the potential litigation." Del. Op. Att'y Gen., No. 03-ib21 (Oct. 6, 2003). "A realistic and tangible threat of litigation is one that can be characterized with reference to objective factors such as: (1) a formal demand letter or some comparable writing that represents the party's claim and manifests a solemn attempt to sue; (2) previous or pre-existing litigation between the parties or proof of ongoing litigation concerning similar claims; or (3) proof that a party has retained counsel with respect to the claim at issue and has expressed an intent to sue." Id. See also Del. Op. Att'y Gen., No. 02-ib32 (Dec. 20, 2002) (concluding that the potential litigation exception does not cover a presuit exchange of letters between potential parties). To invoke this provision there must be a discussion of "litigation strategy." Anticipation of litigation is not enough. Chem. Indus. Council of Delaware, Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994). Mere possibility that documents may be involved in potential litigation does not shield those documents from public disclosure under this exemption. See Del. Op. Att'y Gen., No. 93-I005 (Mar. 3, 1993).

    k. 29 Del. C. § 10002(g)(10): "[M]inutes of executive sessions [and] any record of discussions held in executive session [so long as public disclosure would defeat the lawful purpose for the executive session]." See 29 Del. C. § 10004(f). Chem. Indus. Council of Delaware, Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994). This exemption is related to the open meeting requirements of the Act.

    l. 29 Del. C. § 10002(g)(11): "Any records which disclose the identity or address of any person holding a permit to carry a concealed deadly weapon; provided, however, all records relating to such permits shall be available to all bona fide law-enforcement officers."

    m. 29 Del. C. § 10002(g)(12): "Any records of a public library which contain the identity of a user and the books, documents, films, recordings or other property of the library which a patron has used."

    n. 29 Del. C. § 10002(g)(13): "Any records in the possession of the Department of Correction where disclosure is sought by an inmate in the Department's custody."

    o. 29 Del. C. § 10002(d)(14): "Investigative files compiled or maintained by the Violent Crimes Compensation Board."

    p. 29 Del. C. § 10002(g)(15): "Any photographs, video recordings or audio recordings of a postmortem examination in the possession of the office of the Chief Medical Examiner."

    q. 29 Del. C. § 10002(g)(17)a: Certain enumerated categories of records which, "if copied or inspected, could jeopardize the security of any structure owned by the State or any of its political subdivisions, or could facilitate the planning of a terrorist attack, or could endanger the life or physical safety of an individual." The General Assembly enacted this exemption in 2002 in response to the terrorist attacks of Sept. 11. See Del. Op. Att'y Gen., No. 05-ib19 (Aug. 1, 2005) (stating that the exemption covers law enforcement manuals such as check point guidelines and the Wilmington Police Department's Police Officer's Manual to the extent they contain information that would disclose investigative techniques and procedures or endanger the life and safety of citizens or law enforcement officers).

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  • District of Columbia

    a. Trade Secrets and Commercial or Financial Information (D.C. Code Ann. § 2-534(a)(1)) — Like the federal statute, the D.C. Act contains a provision exempting disclosure of trade secrets and confidential commercial or financial information obtained from outside the government. The D.C. Act, however, is more restrictive in what material may be withheld by an agency. See Food and Allies Services Traders, AFL-CIO v. Barry, No. 3809-88, slip. op. at 5-7 (D.C. Super. Ct. Jan. 9, 1987). Under the D.C. Act, this exemption applies only if "the party from whom the information was obtained faces actual competition." Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d at 522.

    In addition, the D.C. Act exempts such information only "to the extent that disclosure would result in substantial harm to the competitive position of the person from whom the information was obtained." D.C. Code Ann. § 2-534(a)(1). Under the D.C. Act, an association that does not itself engage in business, and therefore cannot show harm to its competitive position, cannot claim that documents it prepared for a D.C. government agency fall within the trade secrets exemption. Belth, 115 Daily Washington Legal Rptr. at 2281 (ordering disclosure of insurance reports prepared by the National Association of Insurance Commissioners).

    Accordingly, opinions from the Mayor's office pursuant to FOIA appeals have held that:

    A party asserting that its competitive position would be harmed by the disclosure of commercial information must show a specific likelihood of injury; a generalized invocation of the language of the statute is not enough to justify nondisclosure. Shaw Coalition Redevelopment Corp. v. Office of the Assistant City Administrator for Economic Dev., FOIA App. No. 90-20 (Office of the Mayor, July 17, 1994).

    Certain financial terms and conditions, including rental fee amounts, rental deposit amounts, electrical fee amounts, and an estimate of total kilowatt consumption, between the Washington Convention Center and promoters do not fall within the trade secret exemption because fee amounts are "unique for each particular live event" and do not affect the competitive bargaining power of other promoters. In re Appeal of John R. Risher, Esq., for Disclosure of Certain Rental Agreements and Related Documents, FOIA App. No. 90-1 (Office of the Mayor, Aug. 1, 1991).

    The D.C. Act's language was based on the Judiciary Committee's reading of the D.C. Circuit's opinion in National Parks & Conservation Association v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). Comm. on Judiciary Report at 8. In National Parks, however, the D.C. Circuit held that information was "confidential" within the meaning of the federal FOIA's exemption 4 not only if its disclosure would harm a person's competitive position, but also if disclosure would impair the government's interest in obtaining information in the future. See Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d at 523. In addition, National Parks left open the question whether governmental interests other than obtaining future information would justify withholding information under exemption 4. See National Parks, 498 F.2d at 770 n.17. Although this question was answered in the affirmative in Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 830 F.2d 278, 282-87 (D.C. Cir. 1987), that decision should not affect the interpretation of the D.C. Act.

    b. Privacy (D.C. Code Ann. § 2-534(a)(2)) — The D.C. Act exempts information of a personal nature, when disclosure would constitute a clearly unwarranted invasion of privacy. For example, the Act exempts the release of presentence reports, academic records, mental health assessments and other records pertaining to prison inmates' applications for minimum sentence reductions. See Hines v. Board of Parole, 567 A.2d 909, 913 (D.C. 1989). And the Act exempts personal information of public employees, unless the requestor shows that "the withheld information will shed light on an agency's performance of its statutory duties or otherwise let citizens know what the government is up to." Fraternal Order of Police v. D.C., No. 13-CV-1333, 2015 WL 5474117, at *5 (D.C. Sept. 17, 2015) (internal quotation marks omitted). D.C. courts have held that when this privacy exemption does not apply and the D.C. statute authorizes disclosure of information, litigants cannot then base an invasion of privacy claim upon the government's dissemination of information. See Wolf v. Regardie, 553 A.2d 1213, 1218-19 & n.10 (D.C. 1989).

    The language of the D.C. Act's privacy exemption is broader than that of federal law. Unlike the language of the federal statute, which limits its comparable exemption to personnel, medical and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, see 5 U.S.C.A. § 552(b)(6), the D.C. Act exempts all information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of privacy. However, when information collected for law enforcement purposes is at issue, this difference between the privacy exceptions of the two statutes diminishes. The federal statute exempts disclosure of investigatory records compiled for law enforcement purposes that could reasonably be expected to constitute an unwarranted invasion of personal privacy. See 5 U.S.C.A. § 552(b)(7)(C). The Supreme Court has interpreted this privacy exemption covering information relating to law enforcement as more expansive than the federal statute's personnel, medical and similar files privacy exemption. See United States v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755-56 (1989) (exempting disclosure of FBI rap sheets).

    The Mayor's office (and now the Office of the Secretary) has consistently relied on the Reporters Committee rule in performing the requisite balancing test under this exemption: the individual's privacy interest in the material at issue must be balanced against the public interest in disclosing it, and this public interest must serve the "core purpose of shedding light on an agency's performance of its statutory duties." Foster v. Univ. of the District of Columbia, FOIA App. No. 92-8 (Office of the Mayor, Oct. 30, 1995) (refusing to release the personnel records and curriculum vitae of a U.D.C. employee because disclosure would impinge upon the employee's privacy rights and serve no "core" public purpose); see also In re Appeal of The Washington Post Co., Matter No. 01-170008, 48 D.C. Reg. 8629 (Office of the Secretary, Sept. 7, 2001) (holding that the privacy interests of students and teachers under investigation for the consumption of alcohol substantially outweighs the public interest in their identifying information); Emily Yinger, Esq. v. Metro. Police Dep't, FOIA App. No. 93-25 (Office of the Mayor, Oct. 5, 1994) (holding that no "core" public purpose is served when individual seeks police officers' personnel records for use in a civil suit against officers); Velrey Props. Inc. v. Dep't of Human Servs., FOIA App. No. 94-45 (Office of the Mayor, May 17, 1995) (refusing to disclose address of district resident who has not otherwise made her address and telephone number public, where plaintiff wanted address for use in a civil lawsuit); In re Appeal of Walter Thomas, Matter No. 04-409467, 51 D.C. Reg. 6969 (Office of the Secretary, June 21, 2004) (ordering disclosure of names, professional qualifications, and work experiences of successful job applicants, but refusing to disclose other private information, such as home telephone numbers and addresses, Social Security numbers, marital status and personal references, about successful applicants or any information regarding unsuccessful job applicants).  The D.C. Court of Appeals applies the same test.  Vining v. Council of D.C., 140 A.3d 439, 449 (D.C. 2016)

    In accordance with other jurisprudence pertaining to corporations, the Mayor's office has ruled that corporations have no privacy rights under exemption (a)(2). Washington Post Co. v. Metro. Police Dep't, FOIA App. No. 92-5 (Sept. 24, 1993) (refusing to disclose on privacy grounds names and addresses of registered gun owners, but agreeing to release information regarding licensed gun dealers because corporations have no privacy interests).

    D.C. Code Section 2-536, specifically makes certain information public, but does so "without limiting the meaning of other sections of this subchapter." Despite what appear to be specific and mandatory disclosure requirements under § 2-536, the Mayor's office has construed this limiting language to mean that if the privacy exemption is implicated by a record that falls within § 2-536, the record can be withheld. Thus, in the view of the Mayor's office, the names of members of the police department, although required to be made public under § 2-536, do not have to be released because "by virtue of the nature of their work, MPD personnel have substantial privacy interests that militate against public revelation of their names." Mike R. Atraqchi v. Metro. Police Dep't, FOIA App. No. 94-17 (Office of the Mayor, July 28, 1994).

    c. Investigatory and Law Enforcement Records (D.C. Code Ann. § 2-534(a)(3)) — Like the federal law, the D.C. Act exempts certain investigatory records compiled for law enforcement purposes (including the records of Council investigations). The exemption allows nondisclosure when disclosure would interfere with enforcement proceedings or Council investigations, deprive a person of a fair trial, constitute an unwarranted invasion of privacy, disclose the identity of a confidential source, disclose investigation techniques or endanger the lives of law enforcement officers. § 2-534(a)(3). The exemption applies only to investigatory records that are compiled in the course of specific investigations and that focus on specific individuals and acts. See Fraternal Order of Police, Metro. Labor Committee v. D.C., 82 A.3d 803, 815 (D.C. 2014) (holding that records concerning use of breathalyzer were exempt only if "(1) the documents requested . . . [were] compiled for law enforcement purposes, and (2) disclosure of those documents would interfere with enforcement proceedings."); Barry v. Washington Post Co., 529 A.2d at 321-22. Such records are exempt, however, only if their release would also result in the interference with enforcement proceedings or cause one of the other results described in § 2-534(a)(3). See In re Appeal of Ernest Middleton, Matter No. 01-171746, 48 D.C. Reg. 9022 (Office of the Secretary, Sept. 19, 2001); In re Appeal of Mark W. Howes, Esq., Matter No. 00-10587, 48 D.C. Reg. 7827 (Office of the Secretary, Aug. 13, 2001). The D.C. Act "seeks to strike a balance for maximum disclosure even of law enforcement information, but not in cases where the information would endanger people, interfere with due process or severely hamper law enforcement effort." Comm. on Judiciary Report, at 7. The Mayor's office has ruled that investigatory records in a 6-year-old murder case are exempt from disclosure if charges and criminal litigation are still possibilities. Glenn A. Stanko, Esq. v. Metro. Police Dep't, FOIA App. No. 92-24 (Feb. 24, 1995).

    The Mayor's office appears to be highly deferential to departments or agencies that invoke this exemption. The Office has held that: the privacy interests of police and the crime victim's family militate against releasing a videotaped murder confession that was never admitted into evidence against the accused when the tape was sought by a news reporter, In re Appeal of Molly Pauker, Esq., (unnumbered FOIA appeal) (Office of the Mayor, Nov. 3, 1989). The Office has also held that disclosing a police officer's records regarding an investigation into her alleged drug abuse, when no disciplinary charges were brought and absent allegations that the investigation was mishandled, would serve no public purpose, Pretext Services Inc. v. Metro. Police Dep't, FOIA App. No. 92-10 (Office of the Mayor, March 8, 1995).

    It should be noted that another D.C. statute, D.C. Code Ann. § 5-113.06, provides that all complaints and other specific police records shall be open for inspection. See also § 2-534(c) ("This section shall not operate to permit nondisclosure of information of which disclosure is authorized or mandated by other law."). Therefore, the names of some 70 police officers and information about criminal charges filed against them were required to be disclosed under § 5-113.06 [formerly D.C. Code § 4-135]. Washington Post v. Metro. Police Dep't, FOIA App. No. 93-15 (Office of the Mayor, March 11, 1994).

    d. Interagency Memos and Letters (D.C. Code Ann. § 2-534(a)(4)) — This exemption is virtually identical to the exemption in the federal statute, exempting inter-agency and intra-agency memorandums or letters (including memorandums or letters generated or received by the staff or members of the Council), which would not be available by law to a party in litigation with a public body. Compare § 2-534(a)(4) with 5 U.S.C.A. § 552(b)(5). As a matter of policy, reports and analyses prepared by an organization outside the government, even if they are used in an agency's deliberative process, do not fall within the exemption. Belth, 115 Daily Washington Legal Rptr. at 2281 ("To hold otherwise would be to rule that the independently initiated, prepared and funded reports of a private organization . . . which that organization desires to withhold from public scrutiny and discussion but to have used by a governmental agency as the basis for important public policy decisions, would be immunized from disclosure . . . .").

    The D.C. Act expressly provides that the deliberative process privilege, the attorney work product privilege, and the attorney-client privilege are incorporated into the exemption in § 2-534(a)(4). D.C. Code Ann. § 2-534(e). Prior to this language being added to the statute, the Mayor's office and the Office of the Secretary had already relied on the common law deliberative process privilege to find documents are exempt from disclosure under § 2-534(a)(4) because they would not be available to a party in litigation with the agency. Shaw Coalition Redevelopment Corp. v. Office of the Assistant City Adm'r for Econ. Dev., FOIA App. No. 90-20 (Office of the Mayor, July 17, 1994) (withholding documents related to an executive decision about real estate development); Alonzo L. Williams v. Office of Superintendent, FOIA App. No. 95-10 (Office of the Mayor, Aug. 11, 1995) (withholding memoranda from a hearing examiner whose recommendation was rejected by the Superintendent of Schools, the final arbiter of the decision at issue); see also In re Appeal of the ACLU (National Prison Project), Matter No. 00-118630, 48 D.C. Reg. 2407 (Office of the Secretary, Mar. 6, 2001) (remanding case to D.C. Department of Corrections to determine whether requested memorandum is of a "predecisional" and "deliberative" character).

    e. Test Questions and Answers (D.C. Code Ann. § 2-534(a)(5)) — This exemption does not appear in the federal act. It exempts test questions and answers to be used in future license, employment or academic examinations. It does not exempt previously administered exams or answers thereto.

    However, if information regarding an exam — for example, a job applicants' test answers and general scoring protocols — would "compromise the legitimacy and fairness of an examination process by revealing test answers to be used in future exams," such information will fall within this exemption. Francesca A. Clark v. Metro. Police Dep't, FOIA App. No. 94-43 (Office of the Mayor, Sept. 29, 1995).

    f. Information Exempted by Other Statutes (D.C. Code Ann. § 2-534(a)(6)) — This exemption is identical to the federal exemption. Compare § 2-534(a)(6) with 5 U.S.C.A. § 552(b)(3). It requires that information be specifically exempted from disclosure by another statute. Such exemption will not be inferred. Riley v. Fenty, 7 A.3d 1014, 1017 (D.C. 2010) (holding that juvenile records were not subject to disclosure because another statute prohibited their release); Wemhoff v. D.C., 887 A.2d 1004, 1009 (D.C. 2005) (holding that attorney could not obtain driving records for solicitation purposes because another statute barred those records' release); Barry v. Washington Post Co., 529 A.2d at 322. The exemption does not apply to certain ordinances, or other laws that are not "statutes." Newspapers Inc., 546 A.2d at 997-1001; see also In re Appeal of Grayson & Assocs., P.C., Matter No. 00-00240, 47 D.C. Reg. 4585 (Office of the Secretary, May 16, 2000) (Section 42-231 of the D.C. Unclaimed Property Act qualifies as a nondisclosure statute under § 2-534(a)(6)); Velrey Props. Inc. v. Dep't of Human Servs., FOIA App. No. 94-45 (Office of the Mayor, May 17, 1995) (federal regulations are not statutes within the meaning of the Act); In re Appeal of Clifton Jackson for Release of Inheritance Tax Return Form FR-19, FOIA App. No. 90-7 (Office of the Mayor, May 19, 1991) (Inheritance and Estate Tax Revision Act, D.C. Code Ann. § 45-3719(a) & (c), is a statute within the meaning of the act, requiring nondisclosure of certain tax records).

    g. Information Exempted By Federal Law Because Of National Defense Or Foreign Policy Concerns (D.C. Code Ann. § 2-534(a)(7)) — This exemption is virtually identical to the exemption in the federal act. Compare D.C. Code Ann. § 2-534(a)(7) with 5 U.S.C.A. § 552(b)(1)(A).

    h. Information Gained in Civil Antitrust Actions (D.C. Code Ann. § 2-534(a)(8)) — This provision does not appear in the federal act. It exempts certain information gained by the D.C. Government during discovery or investigations carried out pursuant to local antitrust laws, D.C. Code Ann. § 28-4505.

    i. Information Disclosed In Arson Investigations (D.C. Code Ann. § 2-534(a)(9)) — This exemption also does not appear in the federal act. It exempts information gained pursuant to local arson reporting laws, D.C. Code Ann. § 5-417.

    j. Specific Response Plans and Vulnerability Assessments (D.C. Code Ann. § 2-534(a)(10)) — The D.C. Act exempts specific response plans for public emergency preparedness and prevention and specific vulnerability assessments that are intended to prevent or to mitigate an act of terrorism.

    k. Information Submitted to Business License Center (D.C. Code Ann. § 2-534(a)(11)) — Information submitted to the Business License Center within the Department of Consumer and Regulatory Affairs, such as applications for business licenses, are exempted by the D.C. Act. A person, however, may be provided with information submitted to the Business License Center for one registrant based upon the submission of either the name or address of the registrant; persons are limited to one such request per day. Federal Employer Identification numbers and Social Security numbers shall not be released except if requested by a law enforcement agency or directed by court order.

    l. Information That Would Disclose the Identity of a Whistleblower (D.C. Code Ann. § 2-534(a)(12)) — Information, the disclosure of which would reveal the name of an employee providing information under the whistleblower protection provisions of the D.C. Code, § 1-615.51 et seq. and § 2-223.01 et seq., is exempt unless the name of the employee is already known to the public.

    m. Vital Records (D.C. Code Ann. § 2-534(d)) — This exemption is unique to the D.C. Act. It provides that the provisions of the D.C. Act do not apply to the Vital Records Act of 1981, D.C. Code Ann. §  7-201. Unlike other exemptions, this exemption is not discretionary. Vital records include certificates or reports on birth, death, marriage, divorce, annulment and data related thereto. §  7-201(15). The Vital Records Act prohibits disclosure of those records except as provided by that chapter. §  7-219(a). Under the Vital Records Act, disclosure is permissible only to a person with a direct, tangible interest in the record. Such a person is defined as (1) a person about whom the information is gathered, and his or her immediate family, guardian or legal representative; or (2) a person who needs the information to determine or protect a personal or property right. The Vital Records Act contains criminal penalties for violations of its provisions. §  7-225.

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  • Georgia

    Records specifically required by federal statute or regulation to be kept confidential.

    O.C.G.A. § 50-18-72(a)(1) permits compliance with federal government non-disclosure statutes or rules. Non-disclosure is permitted, however, only of federal records in the hands of state agencies that are required by federal law to be kept confidential. See City of Atlanta v. Corey Entertainment Inc., 278 Ga. 474, 604 S.E.2d 140 (2004) (tax returns not exempt from disclosure where they relate to a "legitimate public inquiry" and do not involve an unauthorized invasion of privacy). There is no requirement "that a report generated by or used by the state for state purposes be exempted from disclosure merely because that report would be kept confidential if generated or used by the federal government for federal purposes." Georgia Hosp. Ass'n v. Ledbetter, 260 Ga. 477, 479, 396 S.E.2d 488 (1990). Additionally, agencies subject to the Act may not evade its disclosure requirements by contracting with a federal agency unless the contract provision prohibiting disclosure is mandated by federal law or regulation. 2005 Ga. Att'y Gen. LEXIS 2 (2005).

    Medical or veterinary records and similar files, the disclosure of which would be an invasion of personal privacy.

    Provision is made in O.C.G.A. § 50-18-72(a)(2) for the exclusion of private medical records from the Act. The invasion of personal privacy encompassed by this exemption is to be determined in accordance with the tort action of invasion of privacy. Board of Regents v. Atlanta Journal and Constitution, 259 Ga. 214, 378 S.E.2d 305 (1989). The right of privacy, which is protected under tort law, extends only to unnecessary public scrutiny. Therefore, the exemption "is not meant to exclude 'legitimate inquiry into the operation of a government institution and those employed by it.'" Dortch v. Atlanta Journal and Constitution, 261 Ga. 350, 405 S.E.2d 43 (1991); see also City of Atlanta v. Corey Entertainment Inc., 278 Ga. 474, 604 S.E.2d 140 (2004) (financial records submitted to obtain special business certification were legitimate objects of public scrutiny); Fincher v. State, 231 Ga. App. 49, 497 S.E.2d 632 (1998) (where requested report involved investigation into alleged improper conduct by employee of State Board of Pardons and Paroles, the public had a legitimate interest in the conduct that outweighed the employee's interest in non-disclosure); but cf. Cabaniss v. Hipsley, 114 Ga. App. 367, 151 S.E.2d 496 (1966) (elements essential to recovery for invasion of personal privacy include: (a) the disclosure of private facts must be a public disclosure; (b) the facts disclosed to the public must be private, secluded or secret facts and not public ones; and (c) the matter made public must be offensive to a reasonable person of ordinary sensibilities under the circumstances).

    Applying these principles, Georgia courts have consistently rejected attempts to prevent disclosure of records on privacy grounds. For example, in Dortch, the Georgia Supreme Court held that "[e]ven if we were to hold that publication of unlisted telephone numbers [contained in cellular telephone bills of city employees paid by the city] involved disclosure of secret or private facts, we cannot say . . . that such disclosure would be so offensive or objectionable to a reasonable man as to constitute the tort of invasion of privacy." 261 Ga. at 352.

    In Board of Regents, the Georgia Supreme Court, in holding that a public university's presidential search records must be disclosed, noted that "it would make for a strange rule, indeed, to hold that a person who applies for a public position — to serve the public and to be paid by the public — has the right to keep secret from the public the very existence of such an application." 259 Ga. at 217 n.6. See also Hackworth v. Board of Ed., 214 Ga. App. 17, 447 S.E.2d 78 (1994); City of St. Mary's v. Camden Newspapers, 20 Med. L. Rep. 1131 (Camden County. Super. Ct.), aff'd mem. (Ga. 1991) (complaint filed by city employee alleging harassment by city council member must be publicly disclosed); Doe v. Sears, 245 Ga. 83, 263 S.E.2d 119 (1980) (records containing names and addresses of public housing tenants delinquent on their rent are public records and must be disclosed); Athens Observer v. Anderson, 245 Ga. 63, 263 S.E.2d 128 (1980) (report commissioned by state university evaluating mathematical sciences program is public record and must be disclosed).

    Confidential source, surveillance or investigation law enforcement records.

    O.C.G.A. § 50-18-72(a)(3) exempts from disclosure law enforcement records that if revealed would be reasonably likely to disclose the identity of a confidential source, confidential investigative or prosecution material which would endanger the life or physical safety of any person or persons, or the existence of a confidential surveillance or investigation.

    Pending investigation or prosecution records of law enforcement, prosecution or regulatory agencies and mug shots.

    The Act limits access to certain pending investigation or prosecution records of law enforcement, prosecution or regulatory agencies.  O.C.G.A. § 50-18-72(a)(4).  The exemption, however, specifically provides that "initial police arrest reports and initial incident reports" are public records and must be disclosed. It further provides that “an investigation or prosecution shall no longer be deemed to be pending when all direct litigation involving such investigation and prosecution has become final or otherwise terminated.”   And it clarifies that the exception “shall not apply to records in the possession of an agency that is the subject of the pending investigation or prosecution.”  Finally, it permits the release of booking photographs—mug shots—only in accordance with certain statutory procedures designed to prohibit their use on websites that permit removal or deletion in return for payment of a fee.  See § 35-1-18.

    “Under the ‘pending investigation’ exemption, a seemingly inactive investigation which has not yet resulted in a prosecution logically ‘remains undecided,’ and is therefore ‘pending,’ until it ‘is concluded and the file closed.’ Only at that point has an investigation, in the absence of any prosecution, reached a decision with a high level of finality, even though it could possibly be reopened thereafter.”  Evans v. Georgia Bureau of Investigation, 297 Ga. 318, 320, 773 S.E.2d 725, 728 (2015), quoting Unified Gov't v. Athens Newspapers, LLC, 284 Ga. 192, 195(1), 663 S.E.2d 248 (2008).

    Motor vehicle accident reports.

    In 1999, the General Assembly limited access to individual Uniform Motor Vehicle Accident reports to those parties named in the report or those that otherwise have a "need" for the report as defined by statute. O.C.G.A. § 50-18-72(a)(5). Among the parties with a "need" for accident reports are those "gathering information as a representative of a news media organization." § 50-18-72(a)(5)(I).

    Jury list data.

    The Act limits access to personal identifying information that is collected and used to create, compile and maintain certain master statewide and county jury lists.  O.C.G.A. § 50-18-72(a)(6).

    Confidential evaluations of public officers and employees.

    The Act permits non-disclosure of (1) confidential evaluations submitted to a governmental agency, prepared in connection with the appointment or hiring of a public officer or employee; or (2) examinations prepared by a governmental agency in connection with the appointment or hiring of a public officer or employee.  O.C.G.A. § 50-18-72(a)(7).

    Material obtained in investigations relating to the suspension, firing or investigation of complaints against public officers or employees.

    The Act permits agencies to withhold disclosure of material obtained in investigations related to the suspension, firing, or investigation of complaints against public officers or employees but only “until ten days after the same has been presented to the agency or an officer for action or the investigation is otherwise concluded or terminated.”  O.C.G.A. § 50-18-72(a)(8).  City of St. Mary's v. Camden Newspapers, 20 Med. L. Rep. 1131 (Camden County Super. Ct.), aff'd mem. (Ga. 1991) (city employee's written complaint alleging sexual harassment by city council member must be publicly disclosed under O.C.G.A. § 50-18-72(a)(5) after 10 days have passed); Fincher v. State, 231 Ga. App. 49, 497 S.E.2d 632 (1998) (investigation into alleged improper conduct by employee of State Board of Pardons and Paroles had to be released after ten days had passed).

    Real estate acquisition records.

    The Act permits non-disclosure of "[r]eal estate appraisals, engineering or feasibility estimates, or other records made for or by the state or local agency relative to the acquisition of real property until such time as the property has been acquired or the proposed transaction has been terminated or abandoned.”  O.C.G.A. § 50-18-72(a)(9).  Appraisals of property sought to be condemned are exempt from disclosure under the Act until litigation involving the condemnation has been completed. Black v. Georgia Dep't of Transp., 262 Ga. 342, 417 S.E.2d 655 (1992).

    Pending, rejected or deferred sealed bids or proposals and cost estimates.

    The Act permits non-disclosure of “pending, rejected, or deferred sealed bids or sealed proposals and detailed cost estimates related thereto until such time as the final award of the contract is made, the project is terminated or abandoned, or the agency in possession of the records takes a public vote regarding the sealed bid or sealed proposal, whichever comes first.”  O.C.G.A. § 50-18-72(a)(10).

    Executive search records.

    The Act permits an agency to withhold those portions of records which would identify persons applying for or under consideration for employment or appointment as executive head of an agency or of a unit of the state university system. O.C.G.A. § 50-18-72(a)(11). However, at least 14 calendar days prior to the meeting at which final action or vote is to be taken on the position of executive head of an agency or five business days prior to the meeting at which final action or vote is to be taken on the position of president of a unit of the University System of Georgia, all documents concerning as many as three persons under consideration whom the agency has determined to be the best qualified for the position shall be subject to inspection and copying.  Id.  Prior to the release of these documents, an agency may allow such a person to decline being considered further for the position rather than have documents pertaining to such person released.  Id.  In that event, the agency shall release the documents of the next most qualified person under consideration who does not decline the position.  Id.  If an agency has conducted its hiring or appointment process without conducting interviews or discussing or deliberating in executive session in a manner otherwise consistent with the Open Meetings Act, it shall not be required to delay final action on the position.  Id.  The agency shall not be required to release such records of other applicants or persons under consideration, except at the request of any such person.  Id.  Upon request, the hiring agency shall furnish the number of applicants and the composition of the list by such factors as race and sex.  Id.  The agency shall not be allowed to avoid the provisions of this paragraph by the employment of a private person or agency to assist with the search or application process.  Id.

    General Assembly.

    The Act exempts records related to the provision of staff services to individual members of the General Assembly by the Legislative and Congressional Reapportionment Office, the Senate Research Office, or the House Budget and Research Office. O.C.G.A. § 50-18-72(a)(12). However, this specific exemption does not apply to records related to the provision of staff services to committees or subcommittees, or to any records which are or have been previously publicly disclosed pursuant to the direction of an individual member of the General Assembly. Id.

    Restricted library and archival records.

    Records that are of historical research value that are granted to academic libraries, public libraries, or public archives can be restricted in accordance with the donor's request for a period of up to 75 years. O.C.G.A. § 50-18-72(a)(13). This exemption is inapplicable, however, to any records prepared in the course of the operation of state or local governments. Id.

    Records of the Department of Natural Resources relating to historic properties.

    Disclosure of any entry in the Department of Natural Resources inventory and register of historic properties can be restricted if its release might create a substantial risk of harm, theft, or destruction of the property. O.C.G.A. § 50-18-72(a)(14).

    Records of individual farm water use.

    Disclosure of records of farm water use by individual farms as determined by certain water-measuring devices can be restricted. O.C.G.A. § 50-18-72(a)(15). However, compilations of such records that do not reveal farm water use by individual farms are subject to disclosure.  Id.

    Certain critical infrastructure agricultural or food system records.

    The Act permits restriction of access to certain agricultural or food system records, data, or information that are considered by the Department of Agriculture to be a part of the critical infrastructure.  O.C.G.A. § 50-18-72(a)(16).

    National animal identification system records.

    The Act exempts from disclosure records, data, or information collected, recorded, or otherwise obtained that is deemed confidential by the Department of Agriculture for the purposes of the national animal identification system.  O.C.G.A. § 50-18-72(a)(17).

    Rare species of plants and animals records.

    Disclosure of records containing site specific information regarding the occurrence or the location of the natural habits of rare species of plants and animals can be restricted if their release would create a substantial risk of harm, theft, or destruction to the species or habitats of the area. O.C.G.A. § 50-18-72(a)(18). However, owners of private property upon which rare species occur or upon which natural habitats are located are entitled to such information. Id.

    Neighborhood watch and public safety and alarm system records.

    The Act exempts records that reveal certain identifying and other information developed, collected, or received by counties or municipalities in connection with neighborhood watch or public safety notification programs or relating to electronic security systems; provided, however, that initial police reports and initial incident reports shall remain subject to disclosure.  O.C.G.A. § 50-18-72(a)(19).

    Records reflecting certain sensitive individual identifying information.

    With a variety of exceptions, including to news media representatives willing to certify compliance with certain non-disclosure restrictions, the Act exempts an individual's Social Security number, mother's birth name, debit and credit card information, bank account information, financial data or information, insurance or medical information, etc. in all records. O.C.G.A. § 50-18-72(a)(20).

    Records reflecting certain public employee sensitive individual identifying information.

    The Act likewise restricts, without a news media exception, access to certain sensitive identifying information concerning public employees.  O.C.G.A. § 50-18-72(a)(21).

    Records of the Department of Early Care and Learning containing sensitive identifying information.

    The Act exempts certain records identifying children, parents and individuals who report violations.  O.C.G.A. § 50-18-72(a)(22).

    Electronic signature information.

    The Act exempts certain electronic signature information.  O.C.G.A. § 50-18-72(a)(23).

    Records from carpooling or ridesharing.

    The Act exempts records acquired by an agency for the purpose of implementing or assisting in the implementation of a carpooling program to the extent those records would reveal the name, home address, employment address, home telephone number, employment telephone number or hours of employment of any individual or would otherwise identify any individual who is participating, or who has expressed an interest in participating in any such program. O.C.G.A. § 50-18-72(a)(24).

    Records related to homeland security.

    The Act exempts records, the disclosure of which would compromise security against sabotage or criminal or terrorist acts and the non-disclosure of which is necessary for the protection of life, safety, or public property. O.C.G.A. § 50-18-72(a)(25). This exemption is specifically limited to security plans and vulnerability assessment for certain structures; plans for protection against terrorist or other attacks, the effectiveness of which depends in part on a lack of general public knowledge of the details; documents related to the existence, nature, location, or function of security devices; any plan or other material which, if made public, could compromise security against sabotage, criminal, or terroristic acts; as well as training records. Id. In the event of a challenge to official nondisclosure of records under this exemption, the court may review the documents in question in camera and condition any disclosure upon such measures as the court finds necessary to protect against the endangerment of life, safety, or public property. Id.

    Emergency system call records.

    The Act permits access to public records of an emergency "911" system, except information that would reveal the name, address, or telephone number of a person placing a call to a public safety answering point if redaction of such information is necessary to protect the identity of a confidential source, to prevent disclosure of information that would endanger the life or safety of any persons, or to prevent disclosure of the existence of a confidential investigation. O.C.G.A. § 50-18-72(a)(26).

    The Act also places restrictions on access to audio recordings of 911 calls that contain “the speech in distress or cries in extremis of a caller who died during the call or the speech or cries of a person who was a minor at the time of the call,” § 50-18-72(a)(26.1), and to “audio and video recordings from devices used by law enforcement officers in a place where there is a reasonable expectation of privacy when there is no pending investigation,” § 50-18-72(a)(26.2).

    Athletic records identifying children under 12 years of age.

    The Act exempts otherwise public records of athletic or recreational programs that include information identifying children 12 years of age or younger by name, address, telephone number, or emergency contact, unless such information has been redacted. O.C.G.A. § 50-18-72(a)(27).

    State Road and Tollway Authority records.

    The Act exempts records that would reveal the financial accounts or travel history of any §cc. Personal information concerning donors to the state’s public postsecondary educational institutions and associated foundations.

    “Personal information concerning donors or potential donors” to “public postsecondary educational institutions in this state and associated foundations of such institutions” is exempt from the Act, provided “that the name of any donor and the amount of donation made by such donor shall be subject to disclosure if such donor or any entity in which such donor has a substantial interest transacts business with the public postsecondary educational institution to which the donation is made within three years of the date of such donation.”  O.C.G.A. § 50-18-72(a)(29).

    MARTA records.

    The Act exempts records that would reveal the financial accounts or travel history of any individual who is the purchaser of a travel card from a public transit system, including the Metropolitan Atlanta Rapid Transit Authority.  O.C.G.A. § 50-18-72(a)(30).

    Building mapping information.

    The Act exempts records building mapping information produced and maintained by statute for the use of first responders in disaster scenarios.  O.C.G.A. § 50-18-72(a)(31).

    Child pornography evidence and investigatory materials.

    The Act exempts evidence and investigatory materials that are evidence of alleged violations of child pornography statutes in the possession, custody, or control of law enforcement, prosecution, or regulatory agencies.  O.C.G.A. § 50-18-72(a)(32).

    Public retirement benefit information expressly exempt from public inspection.

    The Act exempts certain public retirement system information otherwise expressly exempt from public inspection.  O.C.G.A. § 50-18-72(a)(33), citing §§ 47-1-14, 47-7-127); § 50-18-72(a)(48), citing § 47-20-87.

    Trade secrets and proprietary information.

    The Act is not applicable to "[a]ny trade secrets obtained from a person or business entity that are required, regulation, bid, or request for proposal to be submitted to an agency.”  O.C.G.A. § 50-18-72(a)(34). An entity submitting records containing trade secrets that wishes to keep such records confidential is required to submit and attach to the records an affidavit affirmatively declaring that specific information in the records constitute trade secrets under Georgia law. If the entity attaches such an affidavit, before producing such records in response to a request under this article, the agency shall notify the entity of its intention to produce such records as set forth in this paragraph. If the agency makes a determination that the specifically identified information does not in fact constitute a trade secret, it shall notify the entity submitting the affidavit of its intent to disclose the information within ten days unless prohibited from doing so by an appropriate court order. In the event the entity wishes to prevent disclosure of the requested records, the entity may file an action in superior court to obtain an order that the requested records are trade secrets exempt from disclosure. The entity filing such action shall serve the requestor with a copy of its court filing. If the agency makes a determination that the specifically identified information does constitute a trade secret, the agency shall withhold the records, and the requester may file an action in superior court to obtain an order that the requested records are not trade secrets and are subject to disclosure.  Id.  See, e.g., Ga. Dept. of Natural Resources v. Theragenics Corp., 273 Ga. 724, 725, 545 S.E.2d 904 (2001) (a corporation had the right to enjoin a state agency from allowing a third-party competitor to review the agency's file on the corporation, which included some of the corporation's trade secrets, after the third party filed a request with the agency under the Open Records Act).

    Conclusory assertions of trade secret status are insufficient to permit a trial court to enjoin public disclosure of an otherwise public record.  State Rd. & Tollway Auth. v. Elec. Transaction Consultants Corp., 306 Ga. App. 487, 490, 702 S.E.2d 486, 489 (2010).

    Research records.

    The Act exempts data, records or information of a proprietary nature produced or collected by or for faculty or staff of state institutions of higher learning, or other governmental agencies, in the conduct of, or as a result of, study or research on commercial, scientific, technical, or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or private concern, where such data, records, or information has not been publicly released, published, copyrighted, or patented.  O.C.G.A. § 50-18-72(a)(35).

    The Act further exempts any data, records, or information developed, collected, or received by or on behalf of faculty, staff, employees, or students of an institution of higher education or any public or private entity supporting or participating in the activities of an institution of higher education in the conduct of, or as a result of, study or research on medical, scientific, technical, scholarly, or artistic issues, whether sponsored by the institution alone or in conjunction with a governmental body or private entity, until such information is published, patented, otherwise publicly disseminated, or released to an agency whereupon the request must be made to the agency. O.C.G.A. § 50-18-72(a)(36). The exemption specifically includes information provided by participants in research, research notes and data, discoveries, research projects, methodologies, protocols, and creative works.  Id.

    Buckley Amendment.

    The Act exempts any record that would not be subject to disclosure, or the disclosure of which would jeopardize the receipt of federal funds, under the federal Family Educational Rights and Privacy Act aka the Buckley Amendment.  O.C.G.A. § 50-18-72(a)(37).

    Educational records constituting a test that derives value from being unknown to the test taker.

    The Act exempts, unless otherwise provided by law, records consisting of questions, scoring keys, and other materials constituting a test that derives value from being unknown to the test taker prior to administration which is to be administered by an agency, including, but not limited to, any public school, any unit of the Board of Regents of the University System of Georgia, any public technical school, the State Board of Education, the Office of Student Achievement, the Professional Standards Commission, or a local school system, if reasonable measures are taken by the owner of the test to protect security and confidentiality.  O.C.G.A. § 50-18-72(a)(38). However, the Act provides that the State Board of Education may establish procedures whereby a person may view, but not copy, such records if viewing will not, in the judgment of the board, affect the result of administration of such test. The Act further provides that the exemption shall not be interpreted by any court of law to include or otherwise exempt from inspection the records of any athletic association or other nonprofit entity promoting intercollegiate athletics.  Id.

    Records disclosing sensitive information of research participants.

    The Act exempts from public disclosure records disclosing the identity or personally identifiable information of any person participating in research on commercial, scientific, technical, medical, scholarly, or artistic issues conducted by the Department of Community Health, the Department of Public Health, the Department of Behavioral Health and Developmental Disabilities, or a state institution of higher education whether sponsored by the institution alone or in conjunction with a governmental body or private entity.  O.C.G.A. § 50-18-72(a)(39).

    Weapons carry licenses.

    The Act exempts from public disclosure any permanent records maintained by a judge of the probate court relating to weapons carry licenses, or pursuant to any other requirement for maintaining records relative to the possession of firearms.  O.C.G.A. § 50-18-72(a)(40).

    Attorney client privileged and work product records.

    The Act requires disclosure of the factual findings of an attorney conducting an internal investigation on behalf of an agency unless the investigation relates to a judicial action brought or to be brought by or against the agency, or the agency is a hospital authority attempting to ensure compliance with state or federal law.  The Act otherwise generally exempts attorney work product and communications subject to the attorney-client privilege. O.C.G.A. § 50-18-72(a)(41) & (42).  A trial court property held that records concerning internal investigation of allegations that members of hospital authority's human resources department had engaged in sexual misconduct were not attorney work product and must be disclosed in response to a request under the Act.  Fulton DeKalb Hosp. Auth. v. Miller & Billips, 293 Ga. App. 601, 603, 667 S.E.2d 455, 458 (2008) (nothing that the Authority commenced the internal investigation not in response to any claim or threat of litigation, but because it received several anonymous complaints regarding inappropriate sexual activity).

    Confidential tax information.

    The Act exempts records containing tax matters or tax information that is confidential under state or federal law.  O.C.G.A. § 50-18-72(a)(43).

    Computer programs and software.

    The Act exempts records consisting of any computer program or computer software used or maintained in the course of the operation of a public office or agency.  O.C.G.A. § 50-18-72(a)(44).

    Insurance rating information.

    The Act exempts records pertaining to the rating plans, rating systems, underwriting rules, surveys, inspections, statistical plans, or similar proprietary information used to provide or administer liability insurance or self-insurance coverage to any agency.  O.C.G.A. § 50-18-72(a)(45).

    Department of Economic Development project records.

    The Act exempts records maintained by the Department of Economic Development pertaining to an economic development project until the project is secured by a “binding commitment” or the project has been terminated.  O.C.G.A. § 50-18-72(a)(46). The Act also exempts records related to any statutory “quick start” training program that would disclose such a project until a binding commitment has been secured.  § 50-18-72(a)(47). No later than five business days after the Department of Economic Development secures a binding commitment and the department has committed the use of state funds, the department must post on its website notice of the project and a copy of records documenting the commitment and its negotiation.  The department must also publish notice of the project and the participating parties in the legal organ of each county in which the economic development project is to be located. “Economic development project” for purposes of these exceptions means “a plan or proposal to locate a business, or to expand a business, that would involve an expenditure of more than $25 million by the business or the hiring of more than 50 employees.”  § 50-18-72(a)(46).

    Child actor and performer labor investigation records.

    The Act exempts records and information acquired by the Commissioner of Labor or the Department of Labor as part of any statutory investigation relating to minors employed as actors or performers.  O.C.G.A. § 50-18-72(a)(49), citing § 39-2-18.

    Records held for or on behalf of superior court clerks.

    The Act exempts records held by the Georgia Superior Court Clerks' Cooperative Authority or any other public or private entity for and on behalf of a clerk of superior court.  O.C.G.A. § 50-18-72(a)(50).

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  • Hawaii

    Section 92F-13 enumerates five grounds for exempting government records from disclosure, inspection, and/or duplication upon request. More than one ground for exemption may apply to any particular record. These grounds for exempting disclosure can never be used to preclude disclosure of the specific types and categories of documents listed in Section 92F-12.

    a. Government records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy. Haw. Rev. Stat. § 92F-13(1) (1996).

    Under Section 92-50 (repealed), public records did not include records deemed to invade any unconvicted individual's right of privacy. Now, under Section 92F-2 and Section 92F-14, privacy interests do not determine whether a record is a "public record"; instead, government records to which privacy interests attach are "personal records." Haw. Rev. Stat. § 92F-3. An individual's privacy interest and the public's interest in access are weighed against each other to determine whether the record is exempted from disclosure. Accordingly, while personal records of convicted individuals may be protected from disclosure, disclosure of a record may not constitute a clearly unwarranted invasion of personal privacy if the public interest outweighs the privacy interest of the individual. Id. § 92F-14(a). An "individual" is defined by statute as a natural person. Id. § 92F-3; Whether Private Donor Records of the University of Hawaii Foundation Are Subject to Public Disclosure, OIP Op. Ltr. No. 97-3 (Apr. 7, 1997) (finding that individual donors were "individuals" who had privacy interests under the UIPA, but corporations, partnerships, business trusts and associations were not "individuals"). Moreover, generally only a living individual to whom a record refers may have a privacy interest in that record. Photograph of Deceased Former Employee, OIP Op. Ltr. No. 97-2 (Mar. 1, 1997); Toxicology Report, OIP Op. Ltr. No. F15-01 (Sept. 15, 2014) (surviving family members of deceased motorists did not have a significant privacy interest in the decedents’ toxicology report).

    Section 92F-14(b) lists some examples of information in which individuals have a significant privacy interest. These include:

    Information relating to medical, psychiatric, or psychological history, diagnosis, condition, treatment, or evaluation, other than directory information while an individual is present at such facility;

    Information identifiable as part of an investigation into a possible violation of criminal law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;

    Information relating to eligibility for social services or welfare benefits or to the determination of benefit levels;

    Information in an agency's personnel file, or applications, nominations, recommendations, or proposals for public employment or appointment to a governmental position, except information relating to the status of any formal charges against the employee and disciplinary action taken or information disclosed under Section 92F-12(a)(14) [name, job title, compensation, etc.] and specific information related to employment misconduct that results in employee suspension or discharge;

    Information relating to an individual's non-governmental employment history except as necessary to demonstrate compliance with requirements for a particular government position;

    Information describing an individual's finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or credit worthiness;

    Information compiled as part of an inquiry into an individual's fitness to be granted or to retain a license, except: (A) the record of any proceeding resulting in the discipline of a licensee and the grounds for discipline; (B) information on the current place of employment and required insurance coverage of licensees; and (C) the record of complaints including all dispositions;

    Information comprising a personal recommendation or evaluation;

    Social security numbers; and

    Information that if disclosed would create a substantial and demonstrable risk of physical harm to an individual.”

    Haw. Rev. Stat. § 92F-14(b).

    The OIP's written advisory opinions have frequently considered privacy interests of individuals in determining whether denial of access to agency records is supportable. See, e.g., Public Access to City Ethics Commission Advisory Opinions, OIP Op. Ltr. No. 96-2 (July 16, 1996) (identities of persons referred to in City Ethics Commission advisory opinions and identities of requesters of such opinions are protected from disclosure); Ethics Advisory, OIP Op. Ltr. No. 07-09 (May 11, 2007) (requiring disclosure of Ethics Commission’s advisory opinion identifying employee whom the Commission concluded had violated ethics laws, where employee was not suspended or discharged for that misconduct); Workers’ Compensation Records, OIP Op. Ltr. No. 10-05 (Dec. 3, 2010) (with the exception of disputed claims on which a final decision has been issued, an individual has a significant privacy interest in the fact that he or she has filed a workers’ compensation claim).

    Occasionally, the OIP recommends redaction of personal information whose disclosure would constitute an unwarranted invasion of privacy and disclosure of the remaining portions of government records. See, e.g., Senior Mailing List, OIP Op. Ltr. No. 99-6 (Oct. 25, 1999) (disclosing home addresses of senior citizens would constitute an unwarranted invasion of personal privacy and would not shed light on the workings of the government); Applicant Waiting Lists for Section 8 Program Rent-Subsidized Housing, OIP Op. Ltr. No. 92-11 (Aug. 12, 1992) (individuals have a significant privacy interest in information that would reveal that their income is equal to or less than the minimum required for subsidized rent); Public Access to Names and Locations of Inmates Confined in State Correctional Facilities, OIP Op. Ltr. No. 89-14 (Dec. 15, 1989) (disclosing Social Security numbers would say nothing concerning inmates' presence at a facility nor conduct of Corrections Department). But see Status of Certified Payroll Records on Public Works Contracts, OIP Op. Ltr. No. 89-8, at 4 (Nov. 20, 1989) (requiring disclosure without sanitization of certified payroll records pursuant to Section 92F 12(a)(9)), reconfirmed by Reconsideration of OIP Opinion Letter No. 89-8, OIP Op. Ltr. No. 97-7 (July 18, 1997).

    b. Government records pertaining to the prosecution or defense of any judicial or quasi-judicial action to which the State or any county is or may be a party, to the extent that such records would not be discoverable. Haw. Rev. Stat. § 92F-13(2).

    The exception allows withholding of traffic accident data that was compiled or collected for purposes of a federal program identified in section 409 of Title 23 of the United States Code to which the discovery and evidentiary privilege would apply. Traffic Accident Data, OIP Op. Ltr. No. 10-04 (Nov. 3, 2010).

    The OIP has interpreted this exception to encompass the state's refusal to disclose settlement agreements with some but not all of the defendants in ongoing litigation concerning Aloha Stadium (site of the Pro Bowl). Public Access to Aloha Stadium Litig. Settlement Agreements, OIP Op. Ltr. No. 89-10 (Dec. 12, 1989) (requiring final resolution before disclosure to media). More recently, however, the OIP noted that this exception does not protect from disclosure records that an agency merely fears will be used in future litigation. Document Reviews Prepared by the Comm'n on Persons With Disabilities, OIP Op. Ltr. No. 92-5 (June 16, 1992) (refusing to validate denial of access to reports based on agency's concern that documents would be used in litigation against government agencies failing to comply with federal physical access laws).

    Nor does the exception prevent disclosure of general policies of law enforcement conduct, including standards for police conduct, HPD Standards of Conduct, OIP Op. Ltr. No. 91-3 (Mar. 22, 1991), and for state corrections officials, Standards of Conduct of the Dep't of Corrections, OIP Op. Ltr. No. 92-1 (Feb. 21, 1992) (holding disclosure does not frustrate legitimate government function).

    However, the OIP has opined that the agency is not required to disclose internal memoranda nor an internal work order which contain information protected by attorney work product privilege. Request for Records Containing Attorney Work Product, OIP Op. Ltr. No. 98-3 (May 11, 1998) (finding that the documents were work product that would not be discoverable pursuant to Rule 26 of the Hawaii Rules of Civil Procedure and thus, exempt from disclosure under Section 92F-13(2)); Denial of Access to a Corporation Counsel Opinion, OIP Op. Ltr. No. F14-01 (June 5, 2014) (finding that a memorandum issued by the Department of Corporation Counsel, City & County of Honolulu to the Department of Planning and Permitting contained confidential information protected by the attorney-client privilege and thus was exempt from disclosure under Section 93F-13(2)-(4)).

    c. Government records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function. Haw. Rev. Stat. § 92F-13(3).

    A government agency has the discretion to withhold from public disclosure information that it maintains as part of its decision-making function pursuant to the frustration of a legitimate government function exception under Section 92F-13(3). Request for Advisory Letter, OIP Op. Ltr. No. 00-01 (Apr. 12, 2000). In recognizing the decision-making function of the agencies, the OIP has opined that disclosure of records that are both pre-decisional and deliberative would frustrate agency decision-making functions. Drafts of Correspondence and Staff Notes, OIP Op. Ltr. No. 90-8 (Feb. 12, 1990). A record is pre-decisional if it is made "antecedent to the adoption of an agency policy." Financial and Compliance Audit Prepared by Private Consultant, OIP Op. Ltr. No. 90-21 (June 20, 1990) (citing Jordan v. Dept. of Justice, 591 F.2d 753, 744 (D.C. Cir. 1978)).            Further, a record is deliberative if it is "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal policy matters." Id. (citing Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975)). The OIP, however, has recognized three categories of records that are not protected under the frustration of a legitimate government function exception. Those categories are: (1) post-decisional documents; (2) certain factual materials and (3) excepted records that are incorporated or adopted in an agency's final decision. Id.

    An agency, however, may easily waive the privilege if it initiates discussion of the deliberative processes involved. Intra-Agency Memoranda Cited or Identified at a Pub. Meeting, OIP Op. Ltr. No. 91-22 (Nov. 25, 1991) (discussing at a public meeting an internal agency memo detailing current status of complaints held to waive agency's right to maintain confidentiality of memo pursuant to exception for disclosure likely to frustrate a legitimate government function).

    Under certain circumstances, an agency may deny access to its internal policies to avoid frustration of a legitimate government function. Upon examination of general orders of the Hawaii County Police Department, the OIP invoked the following two-part test from Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C Cir. 1981) for determining whether sensitive material is exempt from mandatory disclosure: (1) requested document is "predominately internal" and (2) disclosure "significantly risks circumvention of agency regulations or statutes." Public Access to General Order Nos. 528, 601, 602, 604, 606, 804, and 805, OIP Op. Ltr. No. 95-13 (May 8, 1995). In applying the Crooker test, the OIP determined that disclosure of general orders relating to motor vehicle pursuit tactics and procedures for the use of chemical agents to disable violent subjects could significantly risk the circumvention of the law and undermine the effectiveness of such procedures. Id.

    An agency may also deny access to the identity of persons complaining of civil law violations on the grounds that public disclosure would likely chill the agency's legitimate government function of investigating and enforcing possible violations of law because individuals would be less likely to come forward with information. See, e.g., Identities of Informants, OIP Op. Ltr. No. 99-8 (Nov. 29, 1999) (Department of Land and Natural Resources could withhold the identities of informants); Identities of Complainants to Department of Health Alleging Violations of Hawaii Labeling Laws, OIP Op. Ltr. No. 99-7 (Nov. 3, 1999) (Department of Health could withhold identities of informants by redacting the name and any information that could lead to the identification of the individual); Public Requests for City Ethics Commission Advisory Opinions, OIP Op. Ltr. No. 98-1 (Jan. 16, 1998) (finding that when an advisory opinion about a specifically named individual has been requested no amount of segregation can protect the identity of the people involved in the opinion, thus advising the City Ethics Commission to provide copies of all advisory opinions that have already been segregated for public disclosure).

    In a case where the Office of State Planning had obtained confidential business information — compilation of data on the geographic location and status of rare species and ecosystems in Hawaii — from an outside source, the OIP opined that disclosure of the information would result in the impairment of the agency's ability to obtain such information and in substantial competitive harm to the outside source. Access to Information Contained in State Geographic Information System Database, OIP Op. Ltr. No. 97-9 (Dec. 17, 1997). Under those circumstances, the OIP found that such information was exempt from disclosure because the agency's inability to obtain the information would frustrate its ability to effectively carry out its planning and environmental functions. Id.

    The OIP has determined that agency opinion surveys containing statistical and aggregate reports generated from opinion surveys are largely factual compilations that must be made available to the public. State of Hawaii Management Study Reports Compiled by SMS Research & Marketing Services Inc., OIP Op. Ltr. No. 95-24 (Oct. 6, 1995). In contrast, the OIP stated that verbatim comments and opinions set forth in survey reports should be withheld under the UIPA's frustration of a legitimate government function exception because the verbatim comments are linked to individual survey respondents and would likely chill free and candid responses to survey questions. Id. Similarly, the OIP has concluded an agency may withhold commercial or financial information voluntarily submitted to it in response to a survey to the extent that the submitters themselves do not customarily release the information to the public, because release of such information would impair the agency’s ability to get such information in the future and thus frustrate a legitimate function of the agency. Information From Survey Responses, OIP Op. Ltr. No. 05-13 (May 23, 2005).

    When the government invokes this exception to the UIPA's general rule mandating disclosure, it is important to weigh against its assertion the public policies supporting disclosure, which aim to facilitate oversight of government operations. Applicability of UIPA to State Fin. Assistance Programs Records, OIP Op. Ltr. No. 89-5 (Nov. 20, 1989) (balancing relationship of government with loan applicants-which government alleged was threatened by the release of financial information concerning private sector companies receiving publicly financed loans-against the public's prevailing interest in its ability to scrutinize government agencies' handling of public funds).

    The OIP has also opined that this exemption and the exemption under Section 92F-13(4) allows an agency to withhold access to government records that are within the scope of the attorney-client privilege or attorney work-product doctrine. Access to Timesheets of Deputy Attorneys General, OIP Op. Ltr. No. 96-3 (Aug. 12, 1996) (finding that timesheets prepared by state deputy attorneys must be made available for inspection and copying after segregating the specific nature of the work); Denial of Access to a Corporation Counsel Opinion, OIP Op. Ltr. No. F14-01 (June 5, 2014) (finding that a memorandum issued by the Department of Corporation Counsel, City & County of Honolulu to the Department of Planning and Permitting contained confidential information protected by the attorney-client privilege and thus was exempt from disclosure under Sections 93F-13(2)-(4)).

    Also in the litigation context, OIP has opined that an agency may withhold the terms of an agency’s settlement agreement under this exception, but only while the agency is engaged in ongoing settlement negotiations with similarly situated defendants. See Aloha Stadium Settlement Agreements, OIP Op. Ltr. No. 89-10 (Dec. 12, 1989). The exception ceases to apply once a settlement is final. See id. OIP applied such reasoning to conclude that the disclosure is required of amounts paid by Kauai County under its private liability insurance policies to settle claims against the County related to the Ka Loko Dam breach. Settlement Proceeds paid by County’s Private Insurers, OIP Op. Ltr. No. 10-01 (July 28, 2010). The disclosure requirement is not diminished by the fact that the settlement proceeds were paid out of private insurance proceeds as opposed to money from the County’s coffers, nor that the settlement agreement contained a confidentiality clause. Id.

    While records requests place an administrative burden on agencies, according to the OIP, those administrative burdens do not constitute a frustration of a legitimate government purpose. Monthly Outstanding Checks Reports, OIP Op. Ltr. No. 98-4 (June 17, 1998); see State Org. of Police Officers v. Soc'y of Professional Journalists, 83 Haw. 378, 394-96, 927 P.2d 386, 402-04 (1996) (stating that the UIPA contains no exception from disclosure for requests that an agency deems too burdensome).

    d. Government records which, pursuant to state or federal law including an order of any state or federal court, are protected from disclosure. Haw. Rev. Stat. § 92F-13(4).

    The OIP has construed this exemption to include confidentiality rules promulgated under the state constitutional provision that protects the Judicial Selection Commission's deliberative processes. Judicial Selection Comm'n's List of Nominees to Fill Judicial Vacancy, OIP Op. Ltr. No. 92-3 (Mar. 19, 1992) (upholding Haw. Const. art. VI, § 4 as state law protecting the Commission's deliberative processes and nominee lists submitted to the governor from disclosure but suggesting – without asserting jurisdiction to make such a decision – that non-deliberative records of the Commission should be disclosed notwithstanding the priority of the constitutional provision over the UIPA).

    Court orders frequently bar disclosure otherwise sanctioned by the UIPA. Although the OIP recommended disclosure of records pertaining to sexual harassment charges filed against a University of Hawaii faculty member, Disclosure of Sexual Harassment Complaint and Disciplinary Action Taken Against Univ. of Haw. Faculty Member, OIP Op. Ltr. No. 90-12 (Feb. 26, 1990), a court subsequently ordered the university administration not to disclose the identity of the individual faculty member against whom charges had been filed and disciplinary action taken. The basis for the court's order, superseding disclosure otherwise mandated by the UIPA, lay in the collective bargaining agreement between the faculty union and the university administration. Order Granting Preliminary Injunction, Feb. 7, 1991, Hawaii Gov't Employees' Ass'n v. University of Haw., Civ. No. 91-0074-01 (Haw. 1st Cir., filed Jan. 11, 1991).

    e. Inchoate and draft working papers of legislative committees including budget worksheets and unfiled committee reports; work product; records or transcripts of an investigating committee of the legislature which are closed by rules adopted pursuant to [S]ection 21-4 and personal files of members of the legislature. Haw. Rev. Stat. § 92F-13(5).

    This provision clearly protected from disclosure a Senate committee report which a majority of the committee members had refused to endorse. Unfiled Senate Comm. Report, OIP Op. Ltr. No. 90-19 (May 23, 1990).

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  • Idaho

    These are the specific exemptions as detailed in Idaho Code §§ 74-104 through 74-111 and 74-124.

    "(1) Investigatory records compiled for law enforcement purposes by a law enforcement agency.
    However, this exemption from disclosure applies only to the extent that the production of such records would:

    (a) Interfere with enforcement proceedings;

    (b) Deprive a person of a right to a fair trial or an impartial adjudication;

    (c) Constitute an unwarranted invasion of personal privacy;

    (d) Disclose the identity of a confidential source or confidential information furnished only by a confidential source;

    (e) Disclose investigative techniques and procedures; or

    (f) Endanger the life or physical safety of law enforcement personnel.

    In addition, the exemption does not apply to reports prepared by a law enforcement agency in connection with a motor vehicle collision if the report is being requested by any person involved in the collision, their legal representative, or insurer."

    Idaho Code § 74-124(1)-(2).

    A recent Idaho Court of Appeals decision interpreting this language held that there is no categorical exemption for all records related to ongoing police investigations. Hymas v. Meridian Police Dept., 156 Idaho 739, 330 P.3d 1097 (Ct. App. 2014). The court concluded that the ongoing nature of an investigation into a death from apparent carbon monoxide poisoning was not a sufficient basis for police department to categorically deny the plaintiff’s public records request in its entirety and not provide any documents until the investigation was complete. 156 Idaho at 746. Thus, the law enforcement agency had a duty to examine the documents subject to the request and separate the exempt and nonexempt material and make the nonexempt material available to the requestor, regardless of whether the investigation was active or inactive. Id.

    (2) Any public record exempt from disclosure by federal or state law or federal regulations to the extent specifically provided for by such law or regulation. Idaho Code § 74-104(1).

    (3) Records contained in Court files of judicial proceedings, the disclosure of which is prohibited by or under rules adopted by the Idaho Supreme Court, but only to the extent that confidentiality is provided under such rules, and any drafts or any working memoranda related to judicial decision making. However, this exemption does not apply to the extent that such records or information are necessary for a background check required by federal law regulating the sale of firearms, guns, or ammunition. Idaho Code § 74-104(2).

    (4) Investigatory records of law enforcement agency as defined in Idaho Code § 74-101(7) under the conditions set forth in Idaho Code § 74-124. Idaho Code § 74-105(1).

    (5) Juvenile records, except that facts contained in such records shall be furnished upon request in a manner determined by the Court to persons in governmental and private agencies and institutions conducting pertinent research studies having a legitimate interest in protection, welfare and treatment of the juvenile who is 13 years of age or younger. If the juvenile is charged with the offense which would be a criminal offense if committed by an adult, the name, offense of which the juvenile is petitioned or charged and the disposition of the Court shall be subject to disclosure as provided in Idaho Code § 20-525. Additionally, any facts requested by a school district where the juvenile is enrolled or seeking enrollment shall be furnished. Idaho Code § 74-105(2).

    (6) Records of the custody review board of the Idaho department of juvenile corrections, including records containing the names, addresses and written statements of victims and family members of juveniles. Idaho Code § 74-105(3).

    (7) Any records of the department of corrections which the public interest in confidentiality, public safety, security and habilitation clearly outweighs the public interest in disclosure (74-105(4)(a)(i)), records that contain any identifying information, or any information that would lead to the identification of any victims or witnesses (74-105(4)(a)(ii)), records that reflect future transportation or movement of a prisoner (74-105(4)(a)(iii)), records gathered during the course of the presentence investigation (74-105(4)(a)(iv)), and records of a prisoner or probationer shall not be disclosed to any other prisoner or probationer, and are exempt from disclosure. Idaho Code § 74-105(a)(v). Records of buildings, facilities, infrastructure and systems held by or in the custody of any public agency are exempt if the disclosure of such information would jeopardize the safety or persons or the public safety. Idaho Code § 74-105(4)(b). Records of commissions or pardons and parole, along with names, addresses and written statements of victims are exempt from disclosure. Idaho Code 74-105(4)(c).

    (8) Voting records of the sexual offender classification board. The written record of the vote to classify an offender as a violent sexual predator by each board member and each case reviewed by that board member shall be made available upon request only to the Governor, chairman of the Senate Judiciary and Rules Committee, and the chairman of the House of Representatives Judiciary, Rules and Administration Committee, for all lawful purpose. Idaho Code § 74-105(5).

    (9) Records of the sheriff or Idaho state police received or maintained pursuant to section 18-3302H and 18-3302K, Idaho Code, relating to an applicant or licensee except that any law enforcement officer and law enforcement agency, whether inside or outside the state of Idaho, may access information maintained in the license record system as set forth in section 18-3302K(16), Idaho Code. Idaho Code § 74-105(6).

    (10) Records of investigations prepared by the department of health and welfare dealing with protection of children, rehabilitation of youth, adoptions and commitment of mentally ill persons. However, for reasons of health and safety, best interests of the child or public interest, the department of health and welfare may provide for the disclosure of records of investigations associated with actions pursuant to the provisions of chapter 16, title 16, Idaho Code, prepared by the department of health and welfare pursuant to its statutory responsibilities dealing with the protection of children except any such records regarding adoptions shall remain exempt from disclosure. Idaho Code § 74-105(7).

    (11) Records including, but not limited to, investigative reports resulting from investigations into complaints of discrimination conducted by the Idaho human rights commission, unless the public interest in allowing the inspection and copying of such records outweighs the legitimate public or private interests in maintaining confidentiality of such records. However, a person may inspect and copy documents from an investigative file to which he or she is a named party if such documents are not otherwise prohibited from disclosure by federal law or regulation or state law. In addition, the confidentiality of this exemption no longer applies to any record used in any judicial proceeding brought by a named party to the complaint or investigation, or by the Idaho human rights commission, relating to the complaint of discrimination. Idaho Code § 74-105(8).

    (12) Records containing information obtained by the manager of the Idaho State Insurance Fund pursuant to chapter 9, title 72, Idaho Code, from or on behalf of employers or employees contained in underwriting in claims for benefit files. Idaho Code § 74-105(9).

    (13) Worker's compensation records of the Idaho industrial commission provided that the industrial commission shall make such records available:

    (a) To parties in any worker's compensation claim and to the Industrial Special Indemnity Fund of Idaho; or

    (b) To employers or prospective employers subject to the provisions of the Americans with disabilities act, 42 U.S.C. 12112, or other statutory limitations, who certify that the information is being requested with respect to a worker to whom the employer has extended an offer of employment and will be used in accordance with the provisions of the Americans with disabilities act, 42 U.S.C. 12112, or other statutory limitations; or

    (c) To employers and prospective employers not subject to provisions of the Americans with Disabilities Act, 42 U.S.C. 12111, or other statutory limitations, provided the employer presents written authorization from the person to whom the records pertain; or

    (d) To others who demonstrate that the public interest in allowing inspection and copying of such records outweighs the public or private interest in maintaining the confidentiality of such records, determined by a civil court of competent jurisdiction; or

    (e) Although a claimant’s records maintained by the industrial commission, including medical and rehabilitation records, are otherwise exempt, the quoting or discussing of medical or rehabilitation records contained within the industrial commission’s records during a hearing for compensation or in a written decision issued by the industrial commission shall be permitted except that that true identities of the parties shall be exempt.

    Idaho Code § 74-105(10)(a)-(e).

    (14) Records of investigations compiled by the commission on aging involving vulnerable adults, as defined in section 18-1505, Idaho Code, alleged to be abused neglected or exploited. Idaho Code § 74-105(11).

    (15) Criminal history records and fingerprints, as defined by section 67-3001, Idaho Code, compiled by the Idaho State Police. Such records shall be released only in accordance with chapter 30, title 67, Idaho Code. Idaho Code § 74-105(12).

    (16) Records furnished or obtained pursuant section 41-1019, Idaho Code, regarding termination of an appointment, employment, contract or other insurance business relationship between an insurer and a producer. Idaho Code § 74-105(13).

    (17) Records of a prisoner or former prisoner in the custody of any state or local correctional facility, when the request is made by another prisoner in the custody of any state or local correctional facility. Idaho Code § 74-105(14). [Note: this exemption appears to duplicate, in large part, the exemption found in Idaho Code § 74-105(4)(a)(v).]

    (18) Except as provided in section 72-1007, Idaho Code, records of the Idaho industrial commission relating to compensation for crime victims under chapter 10, title 72, Idaho Code. Idaho Code § 74-105(15).

    (19) Records or information identifying a complainant maintained by the department of health and welfare pursuant to section 39-3556, Idaho Code, relating to certified family homes, unless the complainant consents in writing to the disclosure or disclosure of the complainant’s identity is required in any administrative or judicial proceeding. Idaho Code § 74-105(16).

    (20) Records of any certification or notification required by federal law to be made in connection with the acquisition or transfer of a firearm, including a firearm as defined in 26 U.S.C. 5845(a). Idaho Code § 74-105(17).

    (21) Records related to the administration of the extraordinary litigation fund by the state public defense commission, pursuant to section 19-850(2)(e), Idaho Code, to the extent that such records contain information protected by, or exempted from disclosure by, or under rules adopted by the Idaho supreme court, attorney work product or as attorney-client privileged communication. This exemption does not include the amount awarded based upon an application for extraordinary litigation funds. Idaho Code § 74-105(18).

    (22) All personnel records of a current or former public official other than the public official's public service or employment history, classification, pay grade and step, longevity, gross salary and salary history, status, workplace and employing agency. All other personnel information relating to a public employee or applicant including, but not limited to, information regarding sex, race, marital status, birth date,’ home address and telephone number, applications, testing and scoring materials, grievances, correspondence and performance evaluations, shall not be disclosed to the public without the employee's or applicant's written consent. Names of applicants to classified or merit system positions shall not be disclosed to the public without the applicant's written consent. Disclosure of names as part of a background check is permitted. Names of the five (5) final applicants to all other positions shall be available to the public. If such group is less than five (5) finalists, then the entire list of applicants shall be available to the public. However, a public official or authorized representative may inspect and copy his or her personnel records, except for material used to screen and test for employment. Idaho Code § 74-106(1).

    (23) Retired employees and retired public officials’ home addresses, home telephone numbers and other financial and non-financial membership records; active and inactive member, financial and membership records and mortgage portfolio loan documents maintained by the public employee retirement system. Financial statements prepared by the retirement system staff, funding agents and custodians concerning the investment of assets that public employees retirement system of Idaho are not considered confidential under this chapter. Idaho Code § 74-106(2).

    (24) Information and records submitted to the Idaho state lottery for the performance of background investigations of employees, lottery retailers and major procurement contractors; validation and security tests of the state lottery for lottery games; business records and information submitted pursuant to section 67-7412(8) and (9), Idaho Code, and such documents and information obtained and held for the purpose of lottery security and investigative action as determined by lottery rules unless the public interest in disclosure substantially outweighs the private need for protection from public disclosure. Idaho Code § 74-106(3).

    (25) Records of a personal debt filed with a public agency or independent public body pursuant to law; personal bank records compiled by a public depositor for the purpose of public funds transactions conducted pursuant to law; records of ownership or financial obligations and instruments of a public agency or independent public body, such as bonds, compiled by public agency or independent public body pursuant to law; records, with regard to ownership of, and for security interest in, registered public obligations; vital statistic records; and military records as described in and pursuant to section 65-301, Idaho Code. Idaho Code § 74-106(4)(a)-(f).

    (26) Information in an income or other tax return measured by items of income or sales, which is gathered by a public agency for the purpose of administering the tax, except such information to the extent disclosed in a written decision of the tax commission pursuant to a taxpayer protest of a deficiency determination by the tax commission under the provisions of section 63-3045B, Idaho Code. Idaho Code § 74-106(5).

    (27) Records of a personal nature related directly or indirectly to the application for and provision of state statutory services rendered to persons applying for public care for the elderly, indigent, or mentally or physically handicapped, or participation in an environmental or a public health study. However, this exemption shall not apply to the extent that such records or information are necessary for a background check required by federal law regulating the sale of firearms, guns or ammunition. Idaho Code § 74-106(6).

    (28) Employment security information, except that a person may agree, through written, informed consent, to waive the exemption so that a third party may obtain information pertaining to the person, unless access to the information by the person is restricted by subsection (3)(a), (3)(b) or (3)(d) of section 74-113, Idaho Code. Notwithstanding the provisions of section 74-113, Idaho Code, a person may not review identifying information concerning an informant who reported to the department of labor a suspected violation by the person of the employment security law, chapter 13, title 72, Idaho Code, under an assurance of confidentiality. As used in this section and in chapter 13, title 72, Idaho Code, “employment security information” means any information descriptive of an identifiable person or persons that is received by, recorded by, prepared by, furnished to or collected by the department of labor or the industrial commission in the administration of the employment security law. Idaho Code § 74-106(7).

    (29) Any personal records, other than names, business addresses and business phone numbers, such as parentage, race, religion, sex, height, weight, tax identification and Social Security numbers, financial worth or medical conditions submitted to any public agency or independent public body, pursuant to a statutory requirement for licensing, certification, permit or bonding. Idaho Code § 74-106(8).

    (30) Unless otherwise provided by agency rule, information obtained as part of an inquiry into a person’s fitness to be granted or retain a license, certificate, permit, privilege, or commission or position, private association or peer review committee records authorized in title 54, Idaho Code, unless provided by agency rule. Any agency which has records exempt from disclosure under the provisions of this subsection shall annually make available a statistical summary of the number and types of matters considered and their disposition. Idaho Code § 74-106(9).

    (31) The records, findings, determinations and decisions of any pre-litigation screening panel formed under chapter 10 and 23, title 6, Idaho Code. Idaho Code § 74-106(10).

    (32) Complaints received by the Board of Medicine and investigations and informal proceedings, including informal proceedings of any committee of the Board of Medicine, pursuant to chapter 18, title 54, Idaho Code, and rules adopted thereunder. Idaho Code § 74-106(11).

    (33) Records of the department of health and welfare or public health district that identify a person infected with a reportable disease. Idaho Code § 74-106(12).

    (34) Records of hospital care, medical records, including prescriptions, drug orders, records or any other prescription information that specifically identifies an individual patient, prescription records maintained by the board of pharmacy under sections 37-2726 and 37-2730A, Idaho Code, or records of psychiatric care or treatment and professional counseling records relating to an individual condition, diagnosis, care or treatment, provided the provisions of this subsection making records exempt from disclosure shall not apply to the extent that such records or information contained in those records are necessary for a background check on an individual that is required by federal law regulating the sale of firearms, guns or ammunition. Idaho Code § 74-106(13).

    (35) Information collected pursuant to the directory of new hires act, chapter 16, title 72, Idaho Code. Idaho Code § 74-106(14).

    (36) Personal information contained in motor vehicle and driver records that is exempt from disclosure under the provisions of chapter 2, title 49, Idaho Code. Idaho Code § 74-106(15).

    (37) Records of the financial status of prisoners pursuant to section 20-607(2), Idaho Code. Idaho Code § 74-106(16).

    (38) Records of Idaho state police or department of correction received or maintained pursuant to section 19-5514, Idaho Code, relating to DNA databases and databanks. Idaho Code § 74-106(17).

    (39) Records of the department of health and welfare relating to a survey, resurvey or complaint investigation of a licensed nursing facility shall be exempt from disclosure. Such records shall, however, be subject to disclosure as public records as soon as the facility in question has received the report, and no later than the fourteenth day following the date that the department of health and welfare representatives officially exit the facility pursuant to federal regulations. Provided, however, that for purposes of confidentiality, no records shall be released under this section which specifically identifies any nursing facility resident. Idaho Code § 74-106(18).

    (40) Records and information contained in the registry of immunizations against childhood diseases maintained in the department of health and welfare, including information disseminated to others from the registry by the department of health and welfare. Idaho Code § 74-106(19).

    (41) Records of the Idaho Housing and Finance Association ("IHFA") relating to the following:

    (a) Records containing personal, financial, family, health or similar personal information submitted to or otherwise obtained by the IHFA;

    (b) Records submitted to or otherwise obtained by the IHFA with regard to obtaining and servicing mortgage loans and all records related to the review, approval or rejection by the IHFA of said loans;

    (c) Mortgage portfolio loan documents;

    (d) Records of a current or former employee other than the employee’s duration of employment with an association, position held and location of employment. This exemption from disclosure does not include the contracts of employment or any remuneration, including reimbursement of expenses, of the executive director, executive officers or commissioners of the association. All other personnel information relating to an association employee or applicant including, but not limited to, information regarding sex, race, marital status, birth date, home address and telephone number, applications, testing and scoring materials, grievances, correspondence, retirement plan information and performance evaluations, shall not be disclosed to the public without the employee’s or applicant’s written consent. An employee or authorized representative may inspect and copy that employee's personnel records, except for material used to screen and test for employment or material not subject to disclosure elsewhere in the Idaho public records act.

    Idaho Code § 74-106(20)(a)-(d).

    (42) Records of the department of health and welfare related to child support services in cases in which there is reasonable evidence of domestic violence, as defined in chapter 63, title 39, Idaho Code, that can be used to locate any individuals in the child support case except in response to a court order. Idaho Code § 74-106(21).

    (43) Records of the Idaho state bar lawyer assistance program pursuant to chapter 49, title 54, Idaho Code, unless a participant in the program authorizes the release pursuant to subsection (4) of section 54-4901, Idaho Code. Idaho Code § 74-106(22).

    (44) Records and information contained in the trauma registry created by chapter 20, title 57, Idaho Code, together with any reports, analyses and compilations created from such information and records. Idaho Code § 74-106(23).

    (45) Records contained in the court files, or other records prepared as part of the proceedings for judicial authorization of sterilization procedure pursuant to chapter 39, title 39, Idaho Code. Idaho Code § 74-106(24).

    (46) The physical voter registration application on file in the county clerk’s office; however, a redacted copy of said application shall be made available consistent with the requirements of this section. Information from the voter registration application maintained in the statewide voter registration database, including age, will be made available except for the voter’s driver’s license number, date of birth and, upon a showing that the voter comes within the provisions of subsection 30 of this section [enumerated exception (51) of this article] or upon showing of good cause by the voter to the county clerk in consultation with the county prosecuting attorney, the physical residence address of the voter. For the purposes of this subsection good cause shall include the protection of life and property and protection of victims of domestic violence and similar crimes. Idaho Code § 74-106(25).

    (47) File numbers, passwords and information in the files of the health care directive registry maintained by the secretary of state under section 39-4515, Idaho Code, are confidential and shall not be disclosed to any person other than to the person who executed the health care directive or the revocation thereof and that person's legal representatives, to the person who registered the health care directive or revocation thereof, and to physicians, hospitals, medical personnel, nursing homes, and other persons who have been granted file number and password access to the documents within that specific file. Idaho Code § 74-106(26).

    (48) Records in an address confidentiality program participant’s file as provided for in chapter 57, title 19, Idaho Code, other than the address designated by the secretary of state, except under the following circumstances:

    (a) If requested by a law enforcement agency, to the law enforcement agency; or

    (b) If directed by a Court order, to a person identified in the order.
    Idaho Code § 74-106(27).

    (49) Except as otherwise provided by law relating to the release of information to a governmental entity or law enforcement agency, any personal information including, but not limited to, names, personal and business addresses and phone numbers, sex, height, weight, date of birth, social security and driver’s license numbers, or any other identifying numbers and/or information related to any Idaho fish and game licenses, permits and tags unless written consent is obtained from the affected person. Idaho Code § 74-106(28).

    (50) Documents and records related to alternatives to discipline that are maintained by the Idaho board of veterinary medicine under the provisions of section 54-2118(1)(b), Idaho Code, provided the requirements set forth therein are met. Idaho Code § 74-106 (29).

    (51) The Idaho residential street address and telephone number of an eligible law enforcement officer and such officer’s residing household member(s) as provided for in chapter 58, title 19, Idaho Code, except under the following circumstances:

    (a) If directed by a court order, to a person identified in the court order;

    (b) If requested by a law enforcement agency, to the law enforcement agency;

    (c) If requested by a financial institution or title company for business purposes, to the requesting financial institution or title company; or

    (d) If the law enforcement officer provides written permission for disclosure of such information.

    Idaho Code § 74-106(30).

    (52) All information exchanged between the Idaho transportation department and insurance companies, any database created, all information contained in the verification system and all reports, responses or other information generated for the purposes of the verification system, pursuant to section 49-1234, Idaho Code. Idaho Code § 74-106(31).

    (53) Personal information including, but not limited to, property values, personal and business addresses, phone numbers, dates of birth, social security and driver’s license numbers or any other identifying numbers or information maintained by the administrator of the unclaimed property law set forth in chapter 5, title 14, Idaho Code. Nothing in this subsection shall prohibit the release of names, last know city of residence, property value ranges and general property information by the administrator for the purpose of reuniting unclaimed property with its owner. Idaho Code Ann. § 74-106(33).

    (54) Trade secrets including those contained in response to public agency or independent public body corporate and politic requests for proposal, requests for clarification, requests for information and similar requests. “Trade secrets” as used in this section means information, including a formula, pattern, compilation, program, computer program, device, method, technique, process or unpublished or in-progress research that:

    (a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and

    (b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
    Idaho Code § 74-107(1).

    (55) Production records, housing production, rental and financing records, sale or purchase records, catch records, mortgage portfolio loan documents, or similar business records of a private concern or enterprise required by law to be submitted to or inspected by a public agency or submitted to or otherwise obtained by an independent public body corporate and politic. Nothing in this subsection shall limit the use which can be made of such information for regulatory purposes or its admissibility in any enforcement proceeding. Idaho Code § 74-107(2).

    (56) Records relating to the appraisal of real property, timber or mineral rights prior to its acquisition, sale, or lease by a public agency or independent public body corporate and politic. Idaho Code § 74-107(3).

    (57) Any estimate prepared by a public agency or independent public body corporate and politic that details the cost of a public project until such time as disclosed or bids are opened, or upon award of the contract for construction of the public project. Idaho Code § 74-107(4).

    (58) Examination, operating or condition reports and all documents relating thereto, prepared by or supplied to any public agency or independent public body corporate and politic responsible for the regulation or supervision of financial institutions including, but not limited to, banks, savings and loan associations, regulated lenders, business and industrial development corporations, credit unions, and insurance companies, or for the regulation or supervision of the issuance of securities. Idaho Code § 74-107(5).

    (59) Records gathered by a local agency or the Idaho department of commerce, as described in chapter 47, title 67, Idaho Code, for the specific purpose of assisting a person to locate, maintain, invest in, or expand business operations in the state of Idaho. Idaho Code § 74-107(6).

    (60) Shipping and marketing records of commodity commissions used to evaluate marketing and advertising strategies and the names and addresses of growers and shippers maintained by commodity commissions. Idaho Code § 74-107(7).

    (61) Financial statements and business information and reports submitted by a legal entity to a port district organized under title 70, Idaho Code, in connection with a business agreement, or with a development proposal or with a financing application for any industrial, manufacturing, or other business activity within a port district. Idaho Code § 74-107(8).

    (62) Names and addresses of seed companies, seed crop growers, seed crop consignees, locations of seed crop fields, variety name and acreage by variety. Upon the request of the owner of the proprietary variety, this information shall be released to the owner. Provided however, that if a seed crop has been identified as diseased or has been otherwise identified by the Idaho department of agriculture, other state departments of agriculture, or the United States department of agriculture to represent a threat to that particular seed or commercial crop industry or to individual growers, information as to test results, location, acreage involved and disease symptoms of that particular seed crop, for that growing season, shall be available for public inspection and copying. This exemption does not supersede the provisions of section 22-436, Idaho Code, nor shall this exemption apply to information regarding specific property locations subject to an open burning of crop residue pursuant to section 39-114, Idaho Code, names of persons responsible for the open burn, acreage and crop type to be burned, and time frames for burning. Idaho Code § 74-107(9).

    (63) Information obtained from books, records and accounts required in chapter 47, title 22, Idaho Code, to be maintained by the Idaho oilseed commission and pertaining to the individual production records of oil seed growers. Idaho Code § 74-107(10).

    (64) Records of any risk retention or self insurance programs prepared in anticipation of litigation or for analysis or settlement of potential or actual money damage claims against a public entity and its employees or against the industrial special indemnity fund except as otherwise discoverable under the Idaho or federal rules of civil procedure. These records shall include, but are not limited to, claims evaluations, investigatory records, computerized reports of losses, case reserves, internal documents and correspondence relating thereto. At the time any claim is concluded, only statistical data and actual amounts paid in settlement shall be deemed public records unless otherwise ordered to be sealed by a court of competent jurisdiction. Provided, however, nothing in this subsection is intended to limit the attorney client privilege or attorney work produce privilege otherwise available to public agency or independent public body corporate and politic. Idaho Code § 74-107(11).

    (65) Records of laboratory test results provided by or retained by the Idaho food quality assurance laboratory. Nothing in this subsection shall limit the use which caan be made, or availability of such information if used, for regulatory purposes or its admissibility in any enforcement proceeding. Idaho Code § 74-107(12).

    (66) Reports required to be filed under chapter 13, title 62, Idaho Code, identifying electrical or natural or manufactured gas consumption data for the individual customer or account. Idaho Code § 74-107(13).

    (67) Voluntarily prepared environmental audits, and voluntary disclosures of information submitted on or before December 31, 1997, to an environmental agency which are claimed to be confidential business information. Idaho Code § 74-107(14).

    (68) Computer programs developed or purchased by or for any public agency or independent public body corporate and politic for its own use. As used in this subsection, “computer program” means a series of instructions or statements which permit the functioning of a computer system in a manner designed to provide storage, retrieval and manipulation of data from the computer system, and any associated documentation and source material that explain how to operate the computer program. Computer program does not include:

    (a) The original data including, but not limited to, numbers, text, voice, graphics and images;

    (b) Analysis, compilation and other manipulated forms of the original data produced by use of the program; or

    (c) The mathematical or statistical formulas that would be used if the manipulated forms of the original data were to be produced manually.
    Idaho Code § 74-107(15).

    (69) Active investigative records and trademark usage audits of the Idaho potato commission specifically related to the enforcement of chapter 12, title 22, Idaho Code, until the commencement of formal proceedings as provided by the rules of the commission; purchase and sales information submitted to the Idaho potato commission during a trademark usage audit, and investigation or enforcement proceedings. Inactive investigatory records shall be disclosed unless the disclosure would violate the standards set forth in subsection (1)(a) through (f) of section 74-124, Idaho Code. Nothing in this subsection shall limit the use which can be made, or availability of such information if used, for regulatory purposes or its admissibility in any enforcement proceeding. Idaho Code § 74-107(16).

    (70) All records copied or obtained by the director of the department of agriculture of his designee as a result of an inspection pursuant to section 25-3806, Idaho Code, except:

    (a) Records otherwise deemed to be public records not exempt from disclosure pursuant to this chapter; and

    (b) Inspection reports, determinations of compliance or noncompliance and all other records created by the director of his designee pursuant to section 25-3806, Idaho Code.
    Idaho Code § 74-107(17).

    (71) All data and information collected by the division of animal industries or the state brand board pursuant to the provisions of section 25-207B, Idaho Codes, or rules promulgated thereunder. Idaho Code § 74-107(18).

    (72) Records disclosed to a county official by the state tax commission pursuant to subsection (4)(c) of section 63-3029B, Idaho Code. Idaho Code § 74-107(19).

    (73) Records, data, information and materials collected, developed, generated, ascertained or discovered during the course of academic research at public institutions of higher education if the disclosure of such could reasonably affect the conduct or outcome of the research, or the ability of the public institution of higher education to patent or copyright the research or protect intellectual property. Idaho Code § 74-107(20).

    (74) Records, data, information and materials collected or utilized during the course of academic research at public institutions of higher education provided by any person or entity other than the public institution of higher education or a public agency. Idaho Code § 74-107(21).

    (75) The exemptions from disclosure provided in subsections (20) and (21) of this section [referred to as exemptions 73 and 74 above] shall apply only until the academic research is publicly released, copyrighted or patented, or until the academic research is completed or terminated. At such time, the records, data, information, and materials shall be subject to public disclosure unless: (a) another exemption in this chapter applies; (b) such information was provided to the institution subject to a written agreement of confidentiality; or (c) public disclosure would pose a danger to persons or property. Idaho Code § 74-107(22).

    (76) The exemptions from disclosure provided in subsections (20) and (21) of this section [referred to as exemptions 73 and 74 above] do not include basic information about a particular research project that is otherwise subject to public disclosure, such as the nature of the academic research, the name of the researcher, and the amount and source of the funding provided for the project. Idaho Code § 74-107(23).

    (77) Records of a county assessor, the state tax commission, a county board of equalization or the state board of tax appeals containing the following information: (i) lists of personal property required to be filed pursuant to section 63-302, Idaho Code, and operating statements required to be filed pursuant to section 63-404, Idaho Code, and (ii) confidential commercial or financial information including trade secrets. Except with respect to lists of personal property required to be filed pursuant to section 63-302, Idaho Code, and the operator statements required to be filed pursuant to section 63-404, Idaho Code, it shall be the responsibility of the taxpayer to give notice of its claim to exemption by stamping or marking each page or the first page of each portion of documents so claimed. No records that are exempt pursuant to this subsection shall be disclosed without the consent of the taxpayer except as follows:

    (a) To any officer, employee or authorized representative of the state or the United States, under a continuing claim of confidentiality, as necessary to carry out the provisions of state or federal law or when relevant to any proceeding thereunder.

    (b) In the publication of statistics or reports as long as the statistics or reports do not reasonably lead to the identification of the specific taxpayer or information submitted by taxpayers exempt pursuant to this subsection.

    (c) To the board of tax appeals or the district court as evidence or otherwise in connection with an appeal of the taxpayer's property tax assessment, but only if the board or the court, as applicable, has entered a protective order specifying that the taxpayer information may not be disclosed by any person conducting or participating in the action or proceeding, except as authorized by the board or the court in accordance with applicable law.

    (d) Nothing in this subsection shall prevent disclosure of the following information:
    (i) Name and mailing address of the property owner;

    (ii) A parcel number;

    (iii) A legal description of real property;

    (iv) The square footage and acreage of real property;

    (v) The assessed value of taxable property;

    (vi) The tax district and the tax rate; and

    (vii) The total property tax assessed.
    Idaho Code § 74-107(24).

    (78) Results of laboratory tests which have no known adverse impacts to human health conducted by the Idaho state department of agriculture animal health laboratory, related to diagnosis of animal diseases of individual animals or herds, on samples submitted by veterinarians or animal owners unless:

    (a) The laboratory test results indicate the presence of a state or federally reportable or regulated disease in animals;

    (b) The release of the test results is required by state or federal law; or

    (c) The test result is identified as representing a threat to animal or human health or to the livestock industry by the Idaho state department of agriculture or the United States department of agriculture. Nothing in this subsection shall limit the use which can be made, or availability of such information if used, for regulatory purposes or its admissibility in any enforcement proceeding, or the duty of any person to report contagious or infectious diseases as required by state or federal law. Idaho Code § 74-107(25).

    (79) Results of laboratory tests conducted by the Idaho state department of agriculture seed laboratory on samples submitted by seed producers or seed companies. Nothing in this subsection shall limit the use which can be made, or availability of such information pursuant to the provisions of subsections (9) and (10) of section 22-418, Idaho Code. Idaho Code § 74-107(26).

    (80) For policies that are owned by private persons, and not by a public agency of the state of Idaho, records of policies, endorsements, affidavits and any records that discuss policies, endorsements and affidavits that may be required to be filed with or by a surplus line association pursuant to chapter 12, title 41, Idaho Code. Idaho Code § 74-107(27).

    (81) Individual financial statements of a postsecondary educational institution or a proprietary school submitted to the state board of education, its director or a representative thereof, for the purpose of registering the postsecondary educational institution or proprietary school pursuant to section 33-2402 or 33-2403, Idaho Code, or provided pursuant to an administrative rule of the board adopted pursuant to such sections. Idaho Code § 74-107(28).

    (82) Information submitted by insurance companies pursuant to section 41-612(17), Idaho Code. Idaho Code § 74-107(29).

    (83) Documents, materials or other information submitted to the director of the department of insurance as provided in chapter 64, title 41, Idaho Code. Idaho Code § 74-107(30).

    (84) Reports, information and other materials exempted by chapter 63, title 41, Idaho Code. Idaho Code § 74-107(31).

    (85) Records, maps or other records identifying the location of archeological or geophysical sites or endangered species, if not already known to the general public. Idaho Code § 74-108(1).

    (86) Archeological and geological records concerning exploratory drilling, logging, mining, and other excavation, when such records are required to be filed by statute for the time provided by statute. Idaho Code § 74-108(2).

    (87) Documents and data related to oil and gas production submitted to the department of lands or the oil and gas conservation commission under the provisions of chapter 3, title 47, Idaho Code, provided that the records qualify for confidential status under section 47-327, Idaho Code, under the conditions and for the time provided by statute. Idaho Code § 74-108(3).

    (87) The records of a library, which when examined alone, or when examined with other public records, would reveal the identity of the library patron checking out, requesting, or using an item from a library. Idaho Code § 74-108(4).

    (88) The material of a library, museum or archive that has been contributed to by a private person, to the extent of any limitation that is a condition on the contribution. Idaho Code § 74-108(5).

    (89) Test questions, scoring keys and other data used to administer a licensing examination, employment, academic or other examination or testing procedure before the examination is given if the examination is to be used again. Records establishing procedures for and instructing persons administering, grading or evaluating examination or testing procedures are included in this exemption, to the extent the disclosure would create a risk that the result might be affected. Idaho Code § 74-108(6).

    (90) Land management plans required for voluntary stewardship agreements entered into pursuant to law and written agreements relating to the conservation of all species of sage grouse entered into voluntarily by owners or occupiers of land with a soil conservation district. Idaho Code § 74-108(7).

    (91) Records consisting of draft legislation and documents specifically related to such draft legislation or research requests submitted to the legislative services office by a member of the Idaho legislature for the purpose of placing such draft legislation into a form suitable for introduction as official proposed legislation, unless the individual legislator having submitted or requested such records or research agrees to waive the provisions of confidentiality provided by this subsection. Idaho Code § 74-109(1).

    (92) All papers, physical and electronic records and correspondence or other supporting materials comprising the work papers in the possession of the legislative services office or the director of the legislative performance evaluations prior to the release of the related final audit, and all other records or material in possession of the legislative services office or the director of the legislative performance evaluations that would otherwise be confidential or exempt from disclosure. Idaho Code § 74-109(2).

    (93) Records consisting of draft congressional legislative redistricting plans and documents specifically related to such draft redistricting plans or research requests submitted to the commission staff by a member of the commission for reapportionment for the purpose of placing such draft redistricting plan in a form suitable for presentation to the full membership of the commission, unless the individual commission member having submitted or requested such plans or research agrees to waive the provisions of confidentiality provided by this subsection. Idaho Code § 74-109(3).

    (94) Records that identify the method by which the Idaho state tax commission selects tax returns for audit review. Idaho Code § 74-109(4).

    (95) Records that identify the method by which the administrator of the unclaimed property law set forth in chapter 5, title 14, Idaho Code, selects reports for audit review or conducts audit review of such reports and the identity of individuals or entities under audit. Idaho Code § 74-109(5).

    (96) Underwriting and claims records of the Idaho petroleum clean water trust fund obtained pursuant to section 41-4905, 41-4909, 41-4911A, 41-4912A, Idaho Code. Provided however, that this subsection shall not prevent the Idaho petroleum clean water trust fund’s submittal to the Idaho department of environmental quality, or other regulatory agencies of information necessary to satisfy an insured’s correction action requirement under applicable federal or state standards in the event of a release in to the environment from a petroleum storage tank; and provided further that nothing in this subsection shall prevent the Idaho petroleum clean water trust fund from providing auditing, reporting, or actuarial information as otherwise required of it pursuant to section 41-4919, 41-4925A, 41-4928, 41-4930, 41-4932, 41-4937 or 41-4938, Idaho Code. Idaho Code § 74-109(6).

    (97) In accordance with section 18-609A, the following records are exempt from public disclosure: all records contained in court files of judicial proceedings arising under section 18-609A, Idaho Code, are exempt from disclosure. Idaho Code § 74-110.

    (98) A record obtained or created by the director of the department of finance or a representative of the director in connection with an audit or inspection under section 30-14-411(d), Idaho Code, or an investigation under section 30-14-602, Idaho Code. Idaho Code § 74-111(1).

    (99) A part of a record filed in connection with a registration statement under section 30-14-301, Idaho Code, and sections 30-14-303 through 30-14-305, Idaho Code, or a record under section 30-13-411(d), Idaho Code, that contains trade secrets or confidential information if the person filling the registration statement or report has asserted a claim of confidentiality or privilege that is authorized by law. Idaho Code § 74-111(2).

    (100) A record that is not required to be provided to the director of the department of finance or filed under chapter 14, title 30, Idaho Code, and is provided to the director only on the condition that the records will not be subject to public examination or disclosure. Idaho Code § 74-111(3).

    (101) A nonpublic record received from a person specified in section 30-14-608(a), Idaho Code. Idaho Code § 74-111(4).

    (102) Any social security number, residential address unless used as a business address, and residential telephone number unless used as a business telephone number, contained in a record that is filed pursuant to chapter 14, title 30, Idaho Code. Idaho Code § 74-111(5).

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  • Illinois

    The following information is exempt from inspection and copying:

    1. Federal or State Law Exemption. Information specifically prohibited from disclosure from federal or state law or rules and regulations adopted under these laws. See 5 ILCS 140/7 (1)(a). In Chicago Tribune v. University of Illinois Board of Trustees, the court held that the federal Family Education Rights and Privacy Act, 20 U.S.C. 1232g (“FERPA”) did not qualify as a FOIA exemption because FERPA does not “specifically prohibit” disclosure of the information. See 5 ILCS 140/7 (1)(a) (emphasis added).  The court notes that this is a narrow ruling because FERPA was the only exemption at issue. Chicago Tribune Co. v. University of Illinois Board of Trustees, U.S. District Court, N.D. Illinois, Case No. 10 C 0568 (March 7, 2011), 2011 WL 982531; 5 ILCS 140/7(1)(a). The Appellate Court of Illinois, Fifth District, held that this exemption did not apply to a state trial court order gagging the parties to a lawsuit from disclosing the terms or conditions of a settlement agreement where the parties themselves had requested the gag order. Carbondale Convention Center Inc. v. City of Carbondale, 245 Ill. App. 3d 474, 477, 185 Ill. Dec. 405, 407, 614 N.E.2d 539, 541 (5th Dist. 1993); see also Kibort v. Westrom, 371 Ill. App. 3d 247, 862 N.E.2d 609 (2d Dist. 2007) (disclosure of election ballots, ballto box tapes and poll signature cards was prohibited by the Election Code and, thus, exempt under 5 ILCS 140/7(1)(a)). Private Information. Private information is exempt from disclosure, unless disclosure is required by another provision of this Act, a State or federal law, or a court order. See 5 ILCS 140/7(1)(b).
    2. “Private information” means unique identifiers—such as a person's social security number, driver's license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home address and personal license plates, except as otherwise provided by law or when compiled without possibility of attribution to any person.  5 ILCS 140/2(c-5).

    Private information also includes “files, documents, and other data or databases maintained by one or more law enforcement agencies and specifically designed to provide information to one or more law enforcement agencies regarding the physical or mental status of one or more individual subjects.” 5 ILCS 140/7(1)(b-5).

    Note: The Illinois Appellate Court, First Judicial District, has ruled that a school district must release the information it compiles regarding test scores where that information can be masked and scrambled in order to preserve individual student identities. See Bowie v. Evanston Cmty. Consol. School Dist. 65, 168 Ill. App. 3d 101, 522 N.E.2d 669, 119 Ill. Dec. 7 (1st Dist. 1988). The Fifth District Appellate Court ordered the production of records from the Cancer Registry maintained by the Illinois Department of Public Health. Southern Illinoisan v. Department of Public Health, 349 Ill. App. 3d 431, 812 N.E. 2d 27, 285 Ill. Dec. 438 (5th District, 2004). A newspaper had requested records for the diagnosis of neuroblastoma by date of diagnosis and ZIP code. The Illinois Supreme Court affirmed, finding that because the request did not tend to lead to the identity of patients, the documents were not exempt. 218 Ill. 2d 390, 844 N.E. 2d 1 (2006).

    1. Personal Information. When disclosure of information contained within a public record would “constitute a clearly unwarranted invasion of personal privacy” that is “highly personal or objectionable to a reasonable person and … the subject’s right to privacy outweighs any legitimate public interest in obtaining the information.” 5 ILCS 140/7(c). The public duties of a public employee or official are not considered an invasion of personal privacy. Id.

    Note: If disclosure is consented to in writing by the individual subject of the information, then disclosure is permissible.

    Note: A superintendent’s employment contract is not exempt because, “by its very nature, the superintendent’s employment contract, as a whole, constitutes information that bears on his public duties.” See Stern v. Wheaton-Warrenville Community Unit School Dist., 233 Ill.2d 396, 910 N.E.2d 85 (2009); See also Reppert v. Southern Illinois University, 375 Ill.App.3d 502, 874 N.E.2d 905 (4th Dist. 2007) (holding that employment contracts are not per se exempt). In addition, post-mortem photographs are exempt to the extent that “surviving family members have legally-recognized right in the depiction of a decedent’s remains.” The attorney general noted that family members have a right to be free from the embarrassment that may result from the public display of a loved one’s remains. See Public Access Opinion 10-003 (available at http://foia.ilattorneygeneral.net/pdf/opinions/2010/2010-003.pdf); Nat'l Ass'n of Criminal Def. Lawyers v. Chicago Police Dept., 399 Ill. App. 3d 1, 924 N.E.2d 564 (1st Dist. 2010) (release of de-identified photos used in police lineups did not invade personal privacy so as to exempt photos).

    1. Law Enforcement and Administrative Enforcement. “Records in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes,” see 5 ILCS 140/7(1)(d)), but only to the extent that disclosure would:

    (i) interfere with pending law enforcement proceedings; See 5 ILCS 140/7(1)(d)(i); See also Castro v. Brown's Chicken & Pasta Inc., 732 N.E. 2d 37 (1st Dist. 2000).

    (ii) interfere with active administrative enforcement proceedings; See 5 ILCS 140/7(1)(d)(ii).

    (iii) likely to deprive a person of a fair trial or an impartial hearing; See 5 ILCS 140/7(1)(d)(iii).

    (iv) “unavoidably disclose the identity of a confidential source or confidential information furnished only by the confidential source, persons who file complaints with or provide information to administrative, investigative, law enforcement, or penal agencies;” See 5 ILCS 140/7(1)(d)(iv). But, there are exceptions: “identities of witnesses to traffic accidents, traffic accident reports, and rescue reports shall be provided by agencies of local government” may be disclosed – unless disclosure would interfere with an active criminal investigation. Id.

    Note: In Chicago Alliance for Neighborhood Safety v. City of Chicago, the court held that the names of community liaisons with the police department are exempt. 348 Ill. App. 3d 188, 808 N.E. 2d 56, 283 Ill. Dec. 506 (1st Dist. 2004); see Nat'l Ass'n of Criminal Def. Lawyers v. Chicago Police Dept., 399 Ill. App. 3d 1, 924 N.E.2d 564 (1st Dist. 2010) (ordering disclosure, because redaction of open investigation files was not unduly burdensome to agencies and invasion of personal privacy in making disclosure of faces in photographic police lineups did not outweigh public’s interest in disclosure).

    (v) “disclose unique or specialized investigative techniques other than those generally used and known or disclose internal documents of correctional agencies related to detection, observation or investigation of incidents of crime or misconduct;” See 5 ILCS 140/7(1)(d)(v) (emphasis added). This applies only if disclosure would result in demonstrable harm to the agency or public body. Id.

    (vi) “endanger the life or physical safety of law enforcement personnel or any other person;” See 5 ILCS 140/7(d)(vi) (emphasis added).

    Note: Criminal history record information. Pursuant to section 2.15, the following documents are deemed public records subject to inspection and copying by the public: (i) court records that are public; (ii) records that are otherwise available under state or local law; and (iii) records in which the requesting party is the individual identified, except as provided under Section 7(1)(d)(vi). Arrest records must be released not withstanding the personal information exemption under Section 7(1)(c). Additionally, Section 2.15(b) provides specific circumstances when criminal history records may be released—but this is not an exclusive list. Criminal history records may be released even if they do not fit into one of the categories provided for in Section 2.15(b). The public body need not create or maintain records they would not otherwise create or maintain. See Public Access Opinion 11-001 (available at http://foia.ilattorneygeneral.net/pdf/opinions/2011/2011-001.pdf).

    (vii) obstruct an ongoing criminal investigation by the public body receiving the FOIA request. See 5 ILCS 140/7(1)(d)(vii).

    Note: The Illinois Appellate Court, First Judicial District, has ruled that sampling data and calculations compiled by a metropolitan sanitary district are investigatory records compiled for law enforcement purposes and thus not subject to disclosure where the sanitary district relied on a self-reporting system and the data sought was used to monitor compliance with the self-supporting system. The court held that disclosure would defeat the purpose of the sampling data system, which was to check on whether the targets of the program were reporting accurately. Griffith Labs. v. Metropolitan Sanitary Dist., 168 Ill. App. 3d 341, 522 N.E.2d 744, 119 Ill. Dec. 82 (1st Dist. 1988).

    1. Correctional Institutions: “Records that relate to or affect the security of correctional institutions and detention facilities.” 5 ILCS 140/7(1)(e). The names of federal prisoners held in a county jail were exempt from disclosure. Brady-Lunny v. Massey, 185 F. Supp. 2d 928 (C.D. Ill. 2002).
    2. Preliminary drafts. “Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated.” See 5 ILCS 140/7(1)(f). Exception: a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body. Id. This “extends to all those records or officers and agencies of the General Assembly that pertain to the preparation of legislative documents.” Id.

    Care should be taken to assure that a government agency does not attempt to assert that information sought is in preliminary report form when in fact it is not. This occurred in Hoffman v. Illinois Dep't of Corr., 158 Ill. App. 3d 473, 511 N.E.2d 759, 110 Ill. Dec. 582 (1st Dist. 1987). There, the plaintiff sought disclosure of information relating to the identity and procedure for administering drugs used to implement Illinois' death penalty. The Department of Corrections argued that the information sought, contained in a memorandum discussing procedures governing execution, was exempt because it was in preliminary draft form. The plaintiff invoked the provision of the Act which allows a trial court to conduct an in camera examination (private examination by the judge in the judge's chambers) of requested records. The judge found that, despite the department's assertion, the memorandum indicated that it was final, and therefore subject to disclosure.

    One federal court, interpreting the federal FOI Act, has stated that documents that reflect the "give-and-take" of the decision-making process, such as drafts or memos generated before adoption of a policy or the making of a decision, are exempt from disclosure. Marzen v. U.S. Dep't of Health & Human Servs., 632 F. Supp. 785 (N.D. Ill. 1986). Since the legislature intended that case law construing the federal Act be used to interpret the Illinois Act, Roulette v. Dep't of Cent. Mgmt. Servs., 141 Ill. App. 3d 394, 400, 490 N.E.2d 60, 64, 95 Ill. Dec. 591 (1st Dist. 1986), this case would apply to documents exempted from disclosure under this provision.

    In Hardwood v. McDonough, the court applied this exemption to a final consultant report because it was preliminary to final government action. 799 N.E.2d 859 (1st Dist. 2003).

    Subsequent cases have made clear that this exemption is limited to the expression of opinions or policy, it does not protect from disclosure the factual information on which those opinions or policies are based.  See for example Kalven v. City of Chicago, 2014 IL App (1st) 121846.

    The preliminary document exemption described here apply to all records of officers and agencies of the General Assembly that pertain to the preparation of legislative documents. See 5 ILCS 140/7(1)(f).

    1. Trade Secrets and Commercial Information. If disclosure would cause competitive harm, the following are exempt: trade secrets, commercial information, or financial information, obtained from a person or business, where the trade secrets or information are proprietary, privileged or confidential. The claim must directly apply to the requested records. See BlueStar Energy Services, Inc. v. Illinois Commerce Comm'n, 374 Ill. App. 3d 990, 871 N.E.2d 880 (1st Dist. 2007).

    Note: It is permissible consent to public disclosure. See 5 ILCS 140/7(1)(g). Legislative history indicates that trade secrets includes information that would inflict substantial competitive harm or make it more difficult for the agency to induce people to submit similar information in the future. Roulette v. Dep of Centr. Mgmt. Servs., 141 Ill. App. 3d 394, 400, 490 N.E.2d 60, 64, 95 Ill. Dec. 587, 591 (1st Dist. 1986). See discussion at 2, below. See also Cooper v. Dep't of Lottery, 266 Ill. App. 3d 1007, 640 N.E.2d 1299, 203 Ill. Dec. 926 (1994).

    1. Proposals and Bids. Proposals and bids for any contract, grant or agreement, including information that would frustrate procurement or give an advantage to someone if it were disclosed. Information prepared by or for a body is exempt until a final selection is made. See 5 ILCS 140/7(1)(h).
    2. Research Data. Valuable formulas, computer geographic systems, designs, drawings and research data obtained or produced by any public body when disclosure “could reasonably be expected to produce private gain or public loss.” See 5 ILCS 140/7(1)(I). This exemption does not apply to requests from the news media for Geographic Information Systems documents.
    3. Educational Examination Data. The following information is subject to exemption:

    (i) Test questions, scoring keys and other exam data used to administer academic examinations;

    (ii) faculty evaluations;

    (iii) student disciplinary cases—but only the identity of the student is exempt.

    (iv) and course or research materials used by faculty. 5 ILCS 140/7(1)(j). Note: Scrambled or masked test scores in which individual students' identities are unascertainable are available. See Bowie v. Evanston Cmty. Consol. School Dist. 65, 128 Ill. 2d 373, 538 N.E. 2d 557, 131 Ill. Dec. 182 (1989).

    1. Architects and Engineers. Architects and engineers' technical submissions for projects that are not developed—in whole or in part—with public funds. Projects constructed or developed with public funds are exempt when disclosure would compromise security. See 5 ILCS 140/7(1)(k).
    2. Closed Meeting Minutes. Minutes of meetings of public bodies closed to the public in the Open Meetings Act. But, the closed meeting minutes may be disclosed when the public body makes the minutes available to the public under Section 2.06 of the Open Meetings Act. See 5 ILCS 140/7(1)(l).
    3. Communications with Attorney or Auditor. Communications between a public body and an attorney, or an auditor representing the public body-- but only if the communications would not be subject to discovery in litigation. The following are also exempt: materials prepared or compiled with respect to internal audits of public bodies; and, upon the request of the public body’s attorney, materials prepared or compiled by or for a public body in anticipation of a criminal, civil, or administrative proceeding. See 5 ILCS 140/7(1)(m).

    In Illinois Education Association v. State Board of Education, 204 Ill, 2d 456, 791 N.E.2d 522, 274 Ill. Dec. 430, the court rejected the application of this exemption to materials supplied by the State Board to the Attorney General. The State Board, by the way of vague or conclusory affidavits, failed to establish a privilege.

    Note: Attorney billing records that contain explanations for legal fees or indicate the type of work done or matters discussed between the attorney and client could reveal the substance of confidential attorney-client discussions and, thus, would be subject to valid claims of attorney-client privilege or exemption under 5 ILCS 140/7(1)(n). See Ulrich v. Stukel, 294 Ill. App. 3d 193, 689 N.E.2d 319, 228 Ill. Dec. 447 (1st Dist. 1997). However, attorney billing records are not per se exempt. "It is well-recognized that information regarding a client's fees generally is not a 'confidential communication' between an attorney and client, and thus is not protected by the attorney client privilege. . . . The payment of fees is merely incidental to the attorney-client relationship and typically does not involve the disclosure of confidential communications arising from the relationship." Ulrich, 294 Ill. App. 3d at 203-04, 689 N.E.2d at 327, 228 Ill. Dec. at 455. Note also that, if attorney billing records may be exempted from disclosure, the exempted material may be redacted or deleted and any material that is not exempt, which could include hours, amount of fees, identification of attorneys and assignments, etc., must be made available for inspection and copying. See 5 ILCS 140/8.

    1. Employee Grievances or Disciplinary Cases. “Records relating to a public body’s adjudication of employee grievances or disciplinary cases.” But the final outcome of the case is not exempt when discipline is imposed. See 5 ILCS 140/7(1)(n).  See generally Gekas v. Williamson, 393 Ill. App. 3d 573, 912 N.E.2d 347 (4th Dist. 2009).
    2. Data-processing Operations. Administrative or technical information associated with automated data-processing operations. This includes—but is not limited to—software, operating protocols, computer program abstracts, file layouts, source listings, object modules, load modules, user guides, documentation pertaining to all logical and physical designs of computerized systems, employee manuals, and any other information that—if disclosed—would jeopardize the security of the system, its data, or the security of materials exempt under this section. See 5 ILCS 140/7(1)(o).
    3. Collective Bargaining Negotiations. Documents or materials relating to collective negotiating matters between public bodies and their employees or representatives. Exception: any final contract or agreement shall be subject to inspection and copying. See 5 ILCS 140/7(1)(p).
    4. Employee Examination Data. “Test questions, scoring keys, and other examination data used to determine the qualifications of an applicant for a license or employment.” See 5 ILCS 140/7(1)(q); see Kopchar v. City of Chicago, 395 Ill. App. 3d 762, 919 N.E.2d 76 (1st Dist. 2009).
    5. Real Estate. The records, documents and information relating to real estate purchase negotiations until those negotiations end. With regard to parcels involved in an eminent domain proceeding under the Eminent Domain Act, records, documents and information relating to that parcel are exempt except as may be allowed under discovery rules adopted by the Illinois Supreme Court. The records, documents and information relating to a real estate sale are exempt until a sale is consummated. See 5 ILCS 140/7(1)(r).
    6. Proprietary Insurance Information. Any proprietary information and records related to the operation of an intergovernmental risk management association, self-insurance pool, or a jointly self-administered health and accident cooperative or pool. See 5 ILCS 140/7(1)(s). In Public Access Opinion 11-004 (available at http://foia.ilattorneygeneral.net/pdf/opinions/2011/11-004.pdf), the PAC concluded that settlement agreements entered into by an intergovernmental risk management association or self-insurance pool on behalf of a public body are subject to disclosure; 5 ILCS 140/7(1)(s) does not exempt the amount of money expended to settle a claim.  Likewise, in Public Access Opinion 11-005 (available at http://foia.ilattorneygeneral.net/pdf/opinions/2011/11-005.pdf), the PAC determined that the Illinois Department of Central Management should disclose Nerve Conduction Velocity Tests results obtained with respect to workers’ compensation claims, because those test results were not protected by 5 ILCS 140/7(1)(s).
    7. Regulation Procedures for Financial Institutions. Information contained in or related to examination, operating, or condition reports that are prepared by or for the use of a public body that is responsible for the supervision of financial institutions or insurance companies. Exception: if disclosure is otherwise required by State law. See 5 ILCS 140/7(1)(t).
    8. Electronic Security. Information that would disclose or might lead to the disclosure of secret or confidential information, codes, algorithms, programs or private keys intended to be used to create electronic or digital signatures under the Electronic Commerce Security Act, see 5 ILCS 140/7(1)(u).
    9. Security Threats. Vulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent or respond to potential attacks upon a community's systems, population, facilities, or installations. This exemption applies when destruction or contamination would constitute a clear and present danger to the health or safety of the community, but only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the measures or the safety of the public or the personnel who implement the security measures. Information exempt under this subsection may include details pertaining to the mobilization or deployment of personnel or equipment, the operation of communication systems or protocols, or tactical operations. See 5 ILCS 140/7(1)(v).
    10. (left blank in statute).
    11. Power Generator Maps and Records. “Maps and other records regarding the location or security of generation, transmission, distribution, storage, gathering, treatment or switching facilities owned by a utility, by a power generator, or by the Illinois Power Agency.” 5 ILCS 140/7(x).
    12. Public Utility Documentation. Information related to proposals, bids, or negotiations that deal with electric power procurement under Section 1-75 of the Illinois Power Agency Act and Section 16-111.5 of the Public Utilities Act. It must be deemed confidential and proprietary by the Illinois Power Agency or by the Illinois Commerce Commission. See 5 ILCS 140/7(1)(y).
    13. Information about Students. “Information about students exempted from disclosure under Sections 10-20.38 or 34-18.29 of the School Code, and information about undergraduate students enrolled at an institution of higher education exempted from disclosure under Section 25 of the Illinois Credit Card Marketing Act of 2009.” 5 ILCS 140/7(1)(z).
    14. Viatical Settlements Act. “Information the disclosure of which is exempted under the Viatical Settlements Act of 2009.” See ILCS 140/7(1)(aa).
    15. Juvenile Justice Morality Review Team Act. Records and information provided to a mortality review team and records maintained by a mortality review team appointed under the Department of Juvenile Justice Mortality Review Team Act. See 5 ILCS 140/7(1)(bb).
    16. Cemetery Care Act. Information regarding interments, entombments, or inurnments of human remains that are submitted to the Cemetery Oversight Database under the Cemetery Care Act or the Cemetery Oversight Act, whichever is applicable. See 5 ILCS 140/7 (1)(cc).
    17. Illinois Public Aid Code. Correspondence and records (i) that may not be disclosed under Section 11-9 of the Illinois Public Aid Code or (ii) that pertain to appeals under Section 11-8 of the Illinois Public Aid Code. See 5 ILCS 140/7 (1)(dd).
    18. Personal Information of Minors. The names, addresses, or other personal information of persons who are minors and are also participants and registrants in programs of park districts, forest preserve districts, conservation districts, recreation agencies, and special recreation associations. See 5 ILCS 140/7 (1)(ee).
    19. Personal Information of Participants. The names, addresses, or other personal information of participants and registrants in programs of park districts, forest preserve districts, conservation districts, recreation agencies, and special recreation associations where such programs are targeted primarily to minors. See 5 ILCS 140/7 (1)(ff).
    20. Independent Tax Tribunal Act. Confidential information described in Section 1-100 of the Illinois Independent Tax Tribunal Act of 2012.1 See 5 ILCS 140/7 (1)(gg).
    21. School Security and Standards. The report submitted to the State Board of Education by the School Security and Standards Task Force under item (8) of subsection (d) of Section 2-3.160 of the School Code2 and any information contained in that report. See 5 ILCS 140/7 (1)(hh).
    22. Sexually Violent Persons Commitment Act. Records requested by persons committed to or detained by the Department of Human Services under the Sexually Violent Persons Commitment Act or committed to the Department of Corrections under the Sexually Dangerous Persons Act if those materials: (i) are available in the library of the facility where the individual is confined; (ii) include records from staff members' personnel files, staff rosters, or other staffing assignment information; or (iii) are available through an administrative request to the Department of Human Services or the Department of Corrections. See 5 ILCS 140/7 (1)(ii).
    23. Confidential Information in Civil Admin Code. Confidential information described in Section 5-535 of the Civil Administrative Code of Illinois. See 5 ILCS 140/7 (1)(jj).

    Note: Section 7 “does not authorize withholding of information or limit the availability of records to the public, except as stated in [Section 7] or otherwise provided in this Act.” See 5 ILCS 140/7(3).

    STATUTORY EXEMPTIONS UNDER SECTION 7.5

    The following are exempt from inspection and copying:

    (a) Technology Advancement Development Act. “All information determined to be confidential under Section 4002 of the Technology Advancement and Development Act.” 5 ILCS 140/7.5(a).

    (b) Library Records Confidentiality Act. Library records identifying library users with the books or other materials checked out by an individual under the Library Records Confidentiality Act. See 5 ILCS 140/7.5(b).

    (c) Organ Donation Records. “Applications, related documents, and medical records received by the Experimental Organ Transplantation Procedures Board and any and all documents or other records prepared by the Experimental Organ Transplantation Procedures Board or its staff relating to applications it has received.” 5 ILCS 140/7.5(c).

    (d) Sexually Transmissible Disease Control Act. “Information and records held by the Department of Public Health and its authorized representatives relating to known or suspected cases of sexually transmissible disease or any information the disclosure of which is restricted under the Illinois Sexually Transmissible Disease Control Act.” 5 ILCS 140/7.5(d).

    (e) Radon Industry Licensing Act. “Information the disclosure of which is exempted under Section 30 of the Radon Industry Licensing Act.” 5 ILCS 140/7.5(e).

    (f) Architectural, Engineering, and Land Surveying Qualifications Based Selection Act. “Firm performance evaluations under Section 55 of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act.” 5 ILCS 140/7.5(f).

    (g) Illinois Prepaid Tuition Act. “Information the disclosure of which is restricted and exempted under Section 50 of the Illinois Prepaid Tuition Act.” 5 ILCS 140/7.5(g).

    (h) State Officials and Employees Ethics Act. “Information the disclosure of which is exempted under the State Officials and Employees Ethics Act, and records of any lawfully created State or local inspector general's office that would be exempt if created or obtained by an Executive Inspector General's office under that Act.” 5 ILCS 140/7.5(h).

    (i) Emergency Energy Plans. “Information contained in a local emergency energy plan submitted to a municipality in accordance with a local emergency energy plan ordinance that is adopted under Section 11-21.5-5 of the Illinois Municipal Code.” 5 ILCS 140/7.5(i).

    (j) Wireless Emergency Telephone Safety Act. “Information and data concerning the distribution of surcharge moneys collected and remitted by wireless carriers under the Wireless Emergency Telephone Safety Act.” 5 ILCS 140/7.5(j).

    (k) Vehicle Code. “Law enforcement officer identification information or driver identification information compiled by a law enforcement agency or the Department of Transportation under Section 11-212 of the Illinois Vehicle Code.” 5 ILCS 140/7.5(k).

    (l) Abuse Prevention Review Team Act. “Records and information provided to a residential health care facility resident sexual assault and death review team or the Executive Council under the Abuse Prevention Review Team Act.” 5 ILCS 140/7.5(l).

    (m) Residential Real Property Disclosure Act. “Information provided to the predatory lending database created pursuant to Article 3 of the Residential Real Property Disclosure Act, except to the extent authorized under that Article.” 5 ILCS 140/7.5(m).

    (n) Capital Crimes Litigation Act. “Defense budgets and petitions for certification of compensation and expenses for court appointed trial counsel as provided under Sections 10 and 15 of the Capital Crimes Litigation Act. This subsection (n) shall apply until the conclusion of the trial of the case, even if the prosecution chooses not to pursue the death penalty prior to trial or sentencing.” 5 ILCS 140/7.5(n).

    (o) Health and Hazardous Substances Registry Act. “Information that is prohibited from being disclosed under Section 4 of the Illinois Health and Hazardous Substances Registry Act.” 5 ILCS 140/7.5(o).

    (p) Regional Transportation Authority Act and the Bi-State Transit Safety Act. “Security portions of system safety program plans, investigation reports, surveys, schedules, lists, data, or information compiled, collected, or prepared by or for the Regional Transportation Authority under Section 2.11 of the Regional Transportation Authority Act or the St. Clair County Transit District under the Bi-State Transit Safety Act.” 5 ILCS 140/7.5(p).

    (q) Personnel Records Review Act. “Information prohibited from being disclosed by the Personnel Records Review Act.” 5 ILCS 140/7.5(q).

    (r) School Student Records Act. “Information prohibited from being disclosed by the Illinois School Student Records Act.” 5 ILCS 140/7.5(r).

    (s) Public Utilities Act. “Information the disclosure of which is restricted under Section 5-108 of the Public Utilities Act.” 5 ILCS 140/7.5(s).

    (t) Health Information Exchange. “All identified or deidentified health information in the form of health data or medical records contained in, stored in, submitted to, transferred by, or released from the Illinois Health Information Exchange, and identified or deidentified health information in the form of health data and medical records of the Illinois Health Information Exchange in the possession of the Illinois Health Information Exchange Authority due to its administration of the Illinois Health Information Exchange. The terms “identified” and “deidentified” shall be given the same meaning as in the Health Insurance Accountability and Portability Act of 1996, Public Law 104-191, or any subsequent amendments thereto, and any regulations promulgated thereunder.” 5 ILCS 140/7.5(t).

    (u) Brian’s Law. Records and information provided to an independent team of experts under Brian's Law. 5 ILCS 140/7.5(u).

    (v) Firearm Concealed Carry Act. Names and information of people who have applied for or received Firearm Owner's Identification Cards under the Firearm Owners Identification Card Act or applied for or received a concealed carry license under the Firearm Concealed Carry Act, unless otherwise authorized by the Firearm Concealed Carry Act; and databases under the Firearm Concealed Carry Act, records of the Concealed Carry Licensing Review Board under the Firearm Concealed Carry Act, and law enforcement agency objections under the Firearm Concealed Carry Act. 5 ILCS 140/7.5(u).

    (w) Toll Highway Act. Personally identifiable information which is exempted from disclosure under subsection (g) of Section 19.1 of the Toll Highway Act. 5 ILCS 140/7.5(w).

    (x) Counties Code or Municipal Code. Information which is exempted from disclosure under Section 5-1014.3 of the Counties Code or Section 8-11-21 of the Illinois Municipal Code. 5 ILCS 140/7.5(x).

    (y) Adult Protective Services Act. Confidential information under the Adult Protective Services Act and its predecessor enabling statute, the Elder Abuse and Neglect Act, including information about the identity and administrative finding against any caregiver of a verified and substantiated decision of abuse, neglect, or financial exploitation of an eligible adult maintained in the Registry established under Section 7.5 of the Adult Protective Services Act. 5 ILCS 140/7.5(y).

    (z) Fatality Under Adult Protective Services Act. Records and information provided to a fatality review team or the Illinois Fatality Review Team Advisory Council under Section 15 of the Adult Protective Services Act. 5 ILCS 140/7.5(z).

    (aa) Wildlife Code. Information which is exempted from disclosure under Section 2.37 of the Wildlife Code. 5 ILCS 140/7.5(aa).

    (bb) Juvenile Court Act.  Information which is or was prohibited from disclosure by the Juvenile Court Act of 1987. 5 ILCS 140/7.5(bb).

    (cc) Law Enforcement Officer-Worn Body Camera Act. Recordings made under the Law Enforcement Officer-Worn Body Camera Act, except to the extent authorized under that Act. 5 ILCS 140/7.5(cc).

    (dd) Condominium and Common Interest Community Ombudsperson Act. Information that is prohibited from being disclosed under Section 45 of the Condominium and Common Interest Community Ombudsperson Act. 5 ILCS 140/7.5(dd).

    (ee) Pharmacy Practice Act. Information that is exempted from disclosure under Section 30.1 of the Pharmacy Practice Act. 5 ILCS 140/7.5(ee).

    (ff) Illinois Vehicle Code. Information that is prohibited from being disclosed under Section 7-603.5 of the Illinois Vehicle Code. 5 ILCS 140/7.5(ff).

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  • Indiana

    Fourteen categories of records specified by the Act are not subject to disclosure unless access is required by state or federal statute or access is ordered by a court under the rules of discovery. Ind. Code §§ 5-14-3-4(a)(1)–(12):

    (i) Those declared confidential by state statute. See Groth v. Pence, 67 N.E.3d 1104, 1118 (Ind. Ct. App. 2017) (holding that disclosure of white papers was prohibited from disclosure as a privileged attorney-client communication).

    (ii) Those declared confidential by administrative rule under specific statutory authority to classify public records as confidential.

    (iii) Those required to be kept confidential by federal law.

    (iv) Records containing trade secrets. Trade secrets are defined as: “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure and use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Ind. Code § 24-2-3-2; see also id. § 5-14-3-2(t). Whether information constitutes “trade secrets” is an issue subject to judicial interpretation. See Indiana Bell Tel. Co. v. Indiana Util. Regulatory Comm’n, 810 N.E.2d 1179, 1187 (Ind. App. 2004) (telephone service providers’ responses to an Indiana agency’s survey were public records, not protected by trade secret exemption, where not all providers requested response confidentiality and where most of the information was very general); ESPN Prods., Inc. v. Indiana Dep’t of State Revenue, 28 N.E.3d 378, 381–82 (Ind. Tax Ct. 2015) (holding that a Production Services Agreement was exempt from disclosure under the trade secrets exemption).

    (v) Confidential financial information obtained, upon request, from a person. This does not include information that is filed with or received by a public agency pursuant to state statute.

    (vi) Information concerning research, including actual research documents, conducted under the auspices of a state college or university.  See Robinson v. Indiana Univ., 659 N.E.2d 153 (Ind. Ct. App. 1995) (holding that titles of research projects in university meeting minutes fell under this exception as “information concerning research”).

    (vii) Grade transcripts and license examination scores obtained as part of a licensure process. This provision is limited to test results to the extent that the individual student can be identified. Att’y Gen. Op. 85-10 (1985).

    (viii) Records declared confidential by or under rules adopted by the Supreme Court of Indiana. See Ind. Admin. R. 9(G).

    (ix) Patient medical records and charts created by a provider, unless the patient gives written consent under Indiana Code Article 16-39 or as provided under Chapter 16-41-8.

    (x) Application information declared confidential by board of the Indiana economic development corporation under Indiana Code Chapter 5-28-16.

    (xi) A photograph, video recording or audio recording of an autopsy, except as provided in Indiana Code Section 36-2-14-10 (pertaining to coroners’ use of autopsy records). This exemption was added to the Indiana Code in 2002. See Ind. P.L. 1-2002, § 17.

    (xii) A Social Security number contained in the records of a public agency.

    (xiii) Contact information for a debtor and any document submitted to the court as part of the debtor’s loss mitigation package

    Twenty-three categories of documents may be disclosed at the discretion of the public agency. Ind. Code §§ 5-14-3-4(b)(1)–(23):

    (i) Investigatory records of law enforcement agencies. However, under Indiana Code Section 5-14-3-5, certain law enforcement information must be made available. This includes information about an individual who is arrested or jailed and also police logs of crimes, accidents, and complaints. See Althaus v. Evansville Courier Co., 615 N.E.2d 441, 446 (Ind. Ct. App. 1993) (holding that the investigatory records exception applied to the coroner’s files).

    (ii) The work product of an attorney who, pursuant to state employment or appointment to a public agency, represents a public agency, the state, or an individual.

    (iii) Test questions, scoring keys and other examination data used in administering a licensing, employment or academic examination before the examination is given or if it is to be given again.

    (iv) Scores of tests if the person is identified by name and has not consented to the release of his scores.

    (v) Records relating to negotiations involving certain enumerated agencies and commissions with industrial, research, or commercial prospects. Final offers must be released.

    (vi) Intra-agency or inter-agency advisory or deliberative materials that are expressions of opinion or are of a speculative nature that are communicated for purposes of decision-making. See Brandenburg Indus. Serv. Co. v. Indiana Dep’t of State Revenue, 26 N.E.3d 147, 154 (holding that two pages of handwritten notes of the Department of State Revenue were not barred from disclosure under this exception because the exception applies to the general public rather than the litigants) (Ind. Tax Ct. 2015); Groth v. Pence, 67 N.E.3d 1104, 1118 (Ind. Ct. App. 2017) (holding that disclosure of white papers was discretionary as deliberative material).

    (vii) Diaries, journals or other personal notes serving as the functional equivalent of a diary or a journal. See Journal Gazette v. Bd. Of Trs. of Purdue Univ., 698 N.E.2d 826, 829 (Ind. Ct. App. 1998) (holding that the compliance log fell within this exception).

    (viii) Personnel files of public employees and files of applicants for public employment. However, the following information must be disclosed: the name, compensation, job title, business address, business telephone number, job description, education and training background, previous work experience, dates of first and last employment of present or former officers or employees of the agency, information relating to the status of any formal charge against the employee, and information about disciplinary actions in which final action has been taken and resulted in the employee being disciplined. All personnel file information is available to the affected employee or his representative. See Att’y Gen. Op. 87-16 (1987) (employment contract of any public official or employee available for inspection or copying upon request); S. Bend Tribune v. S. Bend Cmty. Sch. Corp., 740 N.E.2d 937, 938–39 (Ind. Ct. App. 2000) (holding that information regarding candidates for the Superintendent fell within this exception). This subsection does not apply to disclosure of personnel information generally on all employees or for groups of employees without the request being particularized by employee name.

    (ix) Minutes or records of hospital medical staff meetings.

    (x) Administrative or technical information that would jeopardize a record-keeping or security system. See City of Elkhart v. Agenda: Open Gov’t, Inc., 683 N.E.2d 622, 626–27 (Ind. Ct. App. 1997) (holding that telephone numbers in and of themselves are neither technical nor administrative information).

    (xi) Computer programs, computer codes, computer filing systems, and other software that are owned by the public agency or entrusted to it.

    (xii) Records specifically prepared for discussion or developed during discussion in an executive session authorized by the Indiana Open Door Law, Indiana Code Section 5-14-1.5-6.1. However, this subsection does not apply to information required to be available under subsection (viii) above, pertaining to personnel files of public employees.

    (xiii) The work product of the Legislative Services Agency under personnel rules approved by the Legislative Council.

    (xiv) The work product of individual members and the partisan staffs of the General Assembly.

    (xv) The identity of a donor of a gift made to a public agency if non-disclosure is required as a condition of the gift or if the donor or the donor’s family member requests nondisclosure after the gift is made.

    (xvi) Library or archival records that can be used to identify library patrons or have been acquired by a library with specific conditions on disclosure.

    (xvii) The identity of persons who contact the Bureau of Motor Vehicles about a driver’s ability to safely operate a motor vehicle, and related records of the Drivers License Advisory Committee.

    (xviii) School safety and security measures, plans, and systems.

    (xix) A record or part of a record, the public disclosure of which would have a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack. This section was added in 2003. See Ind. P.L. 173-2003, § 5. The section includes a list of twelve types of records included under this description. See Ind. Code § 5-14-3-4(b)(19)(A)–(L).

    (xx) The following information concerning a customer of a municipally owned utility (as defined in Ind. Code § 8-1-2-1): telephone number, address and Social Security number. This section was added in 2002 as a mandatory exception to the Act under § 5-14-3-4(a), but was changed to a discretionary exemption, listed under § 5-14-3-4(b), in 2003. See Ind. P.L. 1-2002, § 17 and Ind. P.L. 173-2003, § 5.

    (xxi) The telephone number and address of a complainant in the records of a law enforcement agency, except if the address must be available if it is the location of the suspected crime or accident.

    (xxii) The name, compensation, job title, and other information about a law enforcement officer working in an undercover capacity.

    (xxiii) Records requested by an offender relating to a correctional or law enforcement officer, the victim of a crime, a judge, or a family member of any of the previous, that concern the security of a jail or correctional facility.

    (xxiv) Information concerning an individual less than eighteen years of age who participates in a conference, meeting, program, or activity conducted or supervised by a state educational institution, including certain information about the individual’s parent or guardian.

    (xxv) Criminal intelligence information.

    (xxvi) Certain information in a report of or claim for unclaimed property under Indiana Code Sections 32-34-1-26 or 32-34-1-36.

    (xxvii) Law enforcement records, except as provided under Indiana Code Section 5-14-3-4(b)(19) and under sections 5.1 and 5.2 of this chapter. But before disclosing the recording, the public agency must comply with the obscuring requirements of sections 5.1 and 5.2.

    (xxviii) Records relating to negotiations between a state educational institution and another entity concerning the establishment of a collaborative relationship or venture to advance the research, engagement, or educational mission of the state educational institution, if the records are created while negotiations are in progress. However, The terms of the final offer of public financial resources communicated by the state educational institution to an industrial, a research, or a commercial prospect shall be available for inspection and copying under section 3 of this chapter after negotiations with that prospect have terminated. This subdivision does not apply to records regarding research prohibited under IC 16-34.5-1-2 or any other law.

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  • Iowa

    a. Personal information in records regarding a student, prospective student, or former student maintained, created, collected or assembled by or for a school corporation or educational institution maintaining such records. This subsection shall not be construed to prohibit a postsecondary education institution from disclosing to a parent or guardian information regarding a violation of a federal, state, or local law, or institutional rule or policy governing the use or possession of alcohol or a controlled substance if the child is under the age of twenty-one years and the institution determines that the student committed a disciplinary violation with respect to the use or possession of alcohol or a controlled substance regardless of whether that information is contained in the student's education records. This subsection shall not be construed to prohibit a school corporation or educational institution from transferring student records electronically to the department of education, an accredited nonpublic school, an attendance center, a school district, or an accredited postsecondary institution in accordance with section 256.9, subsection 48.  Iowa Code § 22.7(1).

    (1) A student's name and address in public records in the custody of a public school is not, however, confidential. 80 Op. Att'y Gen. 720 (June 18, 1980). Cf. 20 U.S.C. § 1232g (school must allow parents opportunity to inform school they do not want this information released without prior consent). See also Iowa Code § 22.9 (provisions of Chapter 22 which would cause denial of federal funds are suspended to the extent necessary to prevent denial).

    (2) "We believe a subpoena is a sufficient court order under section 22.7(1) to allow a party to obtain possession of records to allow a court an opportunity to assess their relevancy and materiality." Poole v. Hawkeye Area Cmty. Action Program, Inc., 666 N.W.2d 560 (Iowa 2003) (subpoena served on school district for student records in tenant action against landlord alleging exposure to lead poisoning).

    (3) Under FERPA and consistent with U.S. Department of Education regulations, “educational records may be withheld in their entirety where the requester would otherwise know the identity of the referenced student[(s)] . . . even with redactions.” Press-Citizen Co. v. Univ. of Iowa, 817 N.W.2d 480, 492 (Iowa 2012).

    (4) Information in confidential personnel records revealing gender, home address, or birth date is personal information which should be kept confidential under this section. Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 44 (Iowa 1999).

    (5) Disciplinary information and job performance records are exempt from disclosure and qualify as personal information in confidential personnel records. Am. Civil Liberties Union Foundation of Iowa, Inc. v. Records Custodian, Atlantic Cmty. Sch. Dist., 818 N.W.2d 231, 232 (Iowa 2012); Des Moines Indep. Cmty. Sch. Dist. v. Des Moines Register & Tribune Co., 487 N.W.2d 666, 670 (Iowa 1992).

    (6) The amount of sick leave and vacation leave used by individual public employees is a matter of legitimate concern to the public and cannot be kept confidential. Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 44 (Iowa 1999).

    (7) The following information relating to individuals who are officials, officers, or employees of government bodies that are public records:

    (a) The name and compensation of an individual, including a written agreement establishing compensation or any other terms of employment;

    (b) The dates the individual was employed by the government body;

    (c) The positions held by the individual with the government body;

    (d) The educational institutions attended by the individual, including any diplomas and degrees earned;

    (e) The individual’s previous employers and dates of previous employment;

    (f) The fact that the individual was discharged as the result of a final disciplinary action upon the exhaustion of all applicable contractual, legal, and statutory remedies.

    Public Information Issues & Personnel Matters, Iowa Public Employment Board (Sept. 22, 2014), https://iowaperb.iowa.gov/sites/default/files/Public%20Information%20Issues%20%26%20Personnel%20Matters.pdf; City of Dubuque v. Telegraph Herald, Inc., 297 N.W.2d 523 (Iowa 1980) (stating personal information in confidential personnel records generally does not include information concerning the employee’s name, address, previous employers, education, training, and experience).

    b. Hospital records, medical records, and professional counselor records of the condition, diagnosis, care, or treatment of a patient or former patient or a counselee or former counselee, including outpatient. However, confidential communications between a crime victim and the victim's counselor are not subject to disclosure except as provided in § 915.20A. However, the Iowa department of public health shall adopt rules which provide for the sharing of information among agencies and providers concerning the maternal and child health program including but not limited to the statewide child immunization information system, while maintaining an individual's confidentiality. Iowa Code § 22.7(2).

    (1) "Outpatient," as used in § 22.7(2), means one who is "treated at a clinic or dispensary connected with a hospital who is not a hospital inmate." Head v. Colloton, 331 N.W.2d 870, 874 (Iowa 1983).

    (2) The identity of a potential bone marrow donor is a hospital record of the condition, diagnosis, care or treatment of a patient or former patient within the meaning of this section. Head, 331 N.W.2d at 876.

    (3) But, documents filed in the office of the governor which pertain to the involuntary sterilization of a county home resident were public and not confidential hospital records within the meaning of the exemption because they were not maintained by the governor as hospital or physician records. Howard v. Des Moines Register & Tribune Co., 284 N.W.2d 289, 300 (Iowa 1979).

    (4) Records pertaining to medical services, including the identity of doctors, nurses and hospitals receiving public funds for services performed, the number and kind of services performed, and statistical information about patients (so long as identity is not revealed) are not excluded from public examination. 78 Op. Att'y Gen. 677, 678 - 679 (Sept. 20, 1978). The term “hospital record,” as used in the statute, means a hospital’s medical record relating to a patient. Head, 331 N.W.2d at 875.

    c. Trade secrets which are recognized and protected as such by law. Iowa Code § 22.7(3).

    (1) "The custodian of such a record (computer program and data base), however, is required to keep it confidential if the record is a trade secret recognized and protected by law." Brown v. Iowa Legislative Council, 490 N.W.2d 551, 552 (Iowa 1992). In applying this exemption to disclosure, the courts use the definition for “trade secrets” found in Iowa’s Uniform Trade Secrets Act. Sysco Iowa, Inc. v. Univ. of Iowa, 889 N.W.2d 235, 237 (Iowa Ct. App. 2016). In order to be exempted from disclosure, there must be proof the information holds economic value—any information which protects owner’s competitive edge or advantage. US West Commc’ns, Inc. v. Office of Consumer Advocate, 498 N.W.2d 711, 714 (Iowa 1993).

    (2) "Business information may also fall within the definition of a trade secret, including such matters as maintenance of data on customer lists and needs, source of supplies, confidential costs, price data and figures." US West Commc’ns Inc., 498 N.W.2d at 714.

    (3) "A trade secret is a process or device for continuous use in the operation of a business." Basic Chems. Inc. v. Benson, 251 N.W.2d 220, 226 (Iowa 1977).

    (4) Information concerning pre-arranged funeral plans which must be filed with the county attorney in the county where the plan is located pursuant to Iowa Code Chapter 523A is not protected as a trade secret. 83 Op. Att'y Gen. 70, 71 (July 18, 1983).

    (5) But note, "[T]here is nothing in section 22.7 that suggests the legislature intended to limit the discovery rights of litigants in cases involving governmental entities." Mediacom Iowa, L.L.C. v. Inc. City of Spencer, 682 N.W.2d 62, 69 (Iowa 2004) (cable company sued city and its utilities board for its actions in establishing a competing communications system and sought order compelling discovery of information concerning existing communications system).

    (6) District court properly refused to enjoin the Iowa Department of Transportation (IDOT) from releasing test results on a manufacturer's temporary traffic signal to its competitor because the manufacturer did not show that IDOT's report was a confidential public record under Iowa Code ch. 22 as a trade secret under Iowa Code § 22.7(3) or as a report that would give the competitor an advantage under § 22.7(6). O.M.J.C. Signal, Inc. v. Iowa DOT, 2009 Iowa App. LEXIS 1645 (Iowa Ct. App. Dec. 17, 2009).

    (7) Information which would give an advantage to competitor and serves no public purpose may be included in the exemption. Compare Sysco Iowa, Inc., 889 N.W.2d at 242 (finding Sysco’s contract with the state university was a trade secret that was exempt because it contained information that had “independent economic value” that would give an unfair advantage to competitors), with Iowa Film Prod. Svcs. v. Iowa Dep’t for Econ. Dev., 818 N.W.2d 207 (Iowa 2012) (finding that investor and budget figures for films set forth in the final budget expenditure were not subject to exemption from disclosure under the Open Records Act as there was a legitimate interest in public disclosure of the reports as the public had a right to know how funds in the form of tax credits to filmmakers were spent).

    d. Records which represent and constitute the work product of an attorney, which are related to litigation or claim made by or against a public body. Iowa Code § 22.7(4).

    (1) Iowa Rule of Civil Procedure 1.503(3) provides in pertinent part that: "[A] party may obtain discovery of documents and tangible things otherwise discoverable . . . and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney . . .) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means."  See also Diercks v. Malin, 894 N.W.2d 12, 23 (Iowa Ct. App. 2016).

    e. Peace officers' investigative reports, except where disclosure is authorized elsewhere in this code. However, the date, time, specific location, and immediate facts and circumstances surrounding a crime or incident shall not be kept confidential under this section, except in those unusual circumstances where disclosure would plainly and seriously jeopardize an investigation or pose a clear and present danger to the safety of an individual. Specific portions of electronic mail and telephone billing records may only be kept confidential under this subsection if the length of time prescribed for commencement of prosecution or the finding of an indictment or information under the statute of limitations applicable to the crime that is under investigation has not expired. Iowa Code § 22.7(5).

    (1) Information about criminal activity which peace officers receive from third parties is confidential. State ex rel. Shanahan v. Iowa District Court, 356 N.W. 2d 523, 528 (Iowa 1984).

    (2) "Daily logs" prepared at the direction of law enforcement agency heads are not protected under this section. 76 Op. Att'y Gen. 559, 561 (April 26, 1976).

    (3) "Statements made by witnesses to peace officers investigating a motor vehicle accident to enable the officers to make their reports . . . [are public records]." Shannon By Shannon v. Hansen, 469 N.W.2d 412, 415 (Iowa 1991).

    (4) But see, Hawk Eye v. Jackson, 521 N.W.2d 750 (Iowa 1994) (privilege protecting peace officers' investigative reports and communications made to public officers in official confidence is qualified, and official claiming privilege must show that public officer is being examined, communication was made in official confidence, and public interest would suffer by disclosure).

    (5) State must show public interest would suffer from disclosure of criminal investigative files; concerns about what might happen are insufficient to prevent disclosure. State v. Henderson, No. 01-0295, 2002 WL 987851, at *2-3 (Iowa Ct. App. May 15, 2002).

    (6) Summary judgment was properly granted to the State in a case relating to an open records request because video recordings, use of force reports, and pursuit reports were confidential and not subject to disclosure under Iowa Code § 22.7(5). The video recording was a report; moreover, the requested materials were investigatory and did not fall within the date, time, specific location, and immediate facts, and circumstances surrounding the crime exclusion. Neer v. State, 2011 Iowa App. LEXIS 154 (Iowa Ct. App. Feb. 23, 2011).

    f. Reports to governmental agencies which, if released, would give advantage to competitors and serve no public purpose. Iowa Code § 22.7(6).

    (1) Custodians of production data from individual mines are in the best positions to judge when revelation of the data would give advantage or serve no public purpose. 73 Op. Att'y Gen. 55, 56 (February 23, 1973). The agency in possession of the information makes the preliminary decision. 79 Op. Att'y Gen. 224 (June 14, 1979).

    (2) Past grant applications are not confidential even though they would give advantage to a competitor, because public funds were involved and public has interest in seeing how its money is spent. Ne. Council on Substance Abuse Inc. v. Iowa Dept. of Public Health, Div. of Substance Abuse, 513 N.W.2d 757, 760 (Iowa 1994).

    (3) District court properly refused to enjoin the Iowa Department of Transportation (IDOT) from releasing test results on a manufacturer's temporary traffic signal to its competitor because the manufacturer did not show that IDOT's report was a confidential public record under Iowa Code ch. 22 as a trade secret under Iowa Code § 22.7(3) or as a report that would give the competitor an advantage under § 22.7(6). O.M.J.C. Signal, Inc. v. Iowa DOT, 2009 Iowa App. LEXIS 1645 (Iowa Ct. App. Dec. 17 2009).

    (4) Investor and budget figures for films set forth in final budget expenditure reports filmmakers submitted seeking tax credits were not subject to exemption from disclosure because the state did not promise filmmakers confidentiality with respect to the reports and there was a legitimate interest in public disclosure of reports. Iowa Film Prod. Svcs. v. Iowa Dep’t of Econ. Dev., 818 N.W.2d 207 (Iowa 2012).

    g. Appraisals or appraisal information concerning the sale or purchase of real or personal property for public purposes, prior to the execution of any contract for such sale or the submission of the appraisal to the property owner or other interest holders as provided in section 6B.45.  Iowa Code § 22.7(7).

    h. Economic development authority information on an industrial prospect with which the authority is currently negotiating. Iowa Code § 22.7(8).

    i. Criminal identification files of law enforcement agencies. However, records of current and prior arrests and criminal history data shall be public records. Iowa Code § 22.7(9).

    (1) Disclosure of prosecution witnesses' criminal records in a criminal case (beyond conviction list) is prohibited by this section. State v. Anderson, 410 N.W.2d 231, 235-236 (Iowa 1987).

    j. A claim for compensation and reimbursement for legal assistance and supporting documents submitted to the state public defender for payment from the indigent defense fund established in section 815.11, as provided in section 13B.4B. Iowa Code § 22.7(10).

    k.a. Personal information in confidential personnel records of government bodies relating to identified or identifiable individuals who are officials, officers, or employees of the government bodies. However, the following information relating to such individuals contained in personnel records shall be public records:

    (1) The name and compensation of the individual including any written agreement establishing compensation or any other terms of employment excluding any information otherwise excludable from public information pursuant to this section or any other applicable provision of law. For purposes of this paragraph, "compensation" means payment of, or agreement to pay, any money, thing of value, or financial benefit conferred in return for labor or services rendered by an official, officer, or employee plus the value of benefits conferred including but not limited to casualty, disability, life, or health insurance, other health or wellness benefits, vacation, holiday, and sick leave, severance payments, retirement benefits, and deferred compensation.

    (2) The dates the individual was employed by the government body.

    (3) The positions the individual holds or has held with the government body.

    (4) The educational institutions attended by the individual, including any diplomas and degrees earned, and the names of the individual's previous employers, positions previously held, and dates of previous employment.

    (5) The fact that the individual was discharged as the result of a final disciplinary action upon the exhaustion of all applicable contractual, legal, and statutory remedies.

    b. Personal information in confidential personnel records of government bodies relating to student employees shall only be released pursuant to 20 U.S.C. § 1232g. Iowa Code § 22.7(11) (as amended in 2011).

    (1) This section applies only to personal information in confidential personnel records. City of Dubuque v. Tel. Herald Inc., 297 N.W.2d 523, 526 (Iowa 1980). In determining whether information sought is personal information protected by right of privacy, balance public interest served by disclosure and private interest in protecting against invasion of privacy. Id. at 526-27, Applications for appointive city officer were not protected by this section. Id. at 527. But see Iowa Code § 22.7(18).

    (2) Ordinarily, information which includes one's name, address, employer, education, training and experience is not considered "personal." City of Dubuque v. Telegraph Herald, Inc., 297 N.W.2d 523, (Iowa 1980); 81 Op. Att'y Gen. 3, 5 (January 19, 1981).

    (3) Adjudicator decisions concerning termination of teacher contracts are protected by this section. 79 Op. Att'y Gen. 115, 118 (Apr. 27, 1991).

    (4) Lists of state employees participating in deferred compensation plans are public records, but extent of individual participation in plans is personal and confidential. 74 Op. Att'y Gen. 430, 433 (Feb. 27, 1974).

    (5) This subsection has also been construed to make settlement agreements between public bodies and employees public records. Des Moines Indep. Cmty. Sch. Dist. Public Records v. Des Moines Register & Tribune Co., 487 N.W.2d 666, 669 Iowa (1992) ("[T]he outstanding characteristic of the settlement agreement was the fact that public funds were being paid to settle a private dispute. We think the document was of the type the legislature designated for disclosure."); Doe v. Univ. of Iowa, No. 12-0357, 2013 WL 85781 (Iowa Ct. App. Jan. 9, 2013) (upholding Des Moines Independent Community School District and applying the balancing test in finding the settlement agreement between Doe and the University was not exempt). See also Iowa Code § 22.13 ("The settlement agreement and any required summary shall be a public record.”).

    (6) Decision to enjoin the city from releasing city employees' addresses, birth dates and gender affirmed. Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 48 (Iowa 1999).

    (7) Compensation allocated to and used by individual public employees, whether for salary, sick leave or vacation, is a matter of legitimate concern to the public. So long as the information disclosed does not reveal personal medical conditions or professional evaluations, the public has the right to examine it. Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 48 (Iowa 1999).

    (8) The court has also found that disciplinary records are exempt from disclosure and the balancing test, although it was applied here, is not necessary. Records Custodian, Atlantic Cmty. Sch. Dist., 818 N.W.2d at 236. Similarly, other job performance records are exempt from disclosure if the information is itself a confidential record. State v. Garrison, No. 04-0141, 2006 WL 138280, at *18-19 (Iowa 2006) (finding documents relating to the investigation and suspension of a Department of Criminal Investigation Agent who had worked the defendant’s murder case were exempt from public disclosure and contained no exculpatory information that should have been disclosed).

    l. Financial statements submitted to the department of agriculture and land stewardship pursuant to chapter 203 or chapter 203C, by or on behalf of a licensed grain dealer or warehouse operator or by an applicant for a grain dealer license or warehouse license. Iowa Code § 22.7(12).

    m. The records of a library which, by themselves or when examined with other public records, would reveal the identity of the library patron checking out or requesting an item or information from the library. The records shall be released to a criminal or juvenile justice agency only pursuant to an investigation of a particular person or organization suspected of committing a known crime. The records shall be released only upon a judicial determination that a rational connection exists between the requested release of information and a legitimate end and that the need for the information is cogent and compelling. Iowa Code § 22.7(13).

    (1) The requirements of particularity and the showing of a rational connection and need were added by amendment in 1984 to overcome the holding of the court in Brown v. Johnston, 328 N.W.2d 510 (Iowa 1983), allowing a county attorney access to library records through the vehicle of a "county attorney's subpoena" issued pursuant to Iowa R. Crim. P. 5(6).

    n. The material of a library, museum or archive which has been contributed by a private person to the extent of any limitation that is a condition of the contribution. Iowa Code § 22.7(14).

    o. Information concerning the procedures to be used to control disturbances at adult correctional institutions. Such information shall also be exempt from public inspection under § 17A.3. As used in this subsection disturbance means a riot or a condition that can reasonably be expected to cause a riot. Iowa Code § 22.7(15).

    p. Information in a report to the Iowa department of public health, to a local board of health, or to a local health department, which identifies a person infected with a reportable disease. Iowa Code § 22.7(16).

    (1) The list of "reportable diseases" is found at Iowa Admin. Code § 641-1.3 (Appendix A).

    q. Records of identity of owners of public bonds or obligations maintained as provided in § 76.10 or by the issuer of the public bonds or obligations. However, the issuer of the public bonds or obligations and a state or federal agency shall have the right of access to the records. Iowa Code § 22.7(17).

    (1) See also Iowa Code § 76.11, allowing access by state agencies.

    r. Communications not required by law, rule, procedure, or contract that are made to a government body or to any of its employees by identified persons outside of government, to the extent that the government body receiving those communications from such persons outside of government could reasonably believe that those persons would be discouraged from making them to that government body if they were available for general public examination. As used in this subsection, "persons outside of government" does not include persons or employees of persons who are communicating with respect to a consulting or contractual relationship with a government body or who are communicating with a government body with whom an arrangement for compensation exists. Notwithstanding this provision:

    a. The communication is a public record to the extent that the person outside of government making that communication consents to its treatment as a public record.

    b. Information contained in the communication is a public record to the extent that it can be disclosed without directly or indirectly indicating the identity of the person outside of government making it or enabling others to ascertain the identity of that person.

    c. Information contained in the communication is a public record to the extent that it indicates the date, time, specific location, and immediate facts and circumstances surrounding the occurrence of a crime or other illegal act, except to the extent that its disclosure would plainly and seriously jeopardize a continuing investigation or pose a clear and present danger to the safety of any person. In any action challenging the failure of the lawful custodian to disclose any particular information of the kind enumerated in this paragraph, the burden of proof is on the lawful custodian to demonstrate that the disclosure of that information would jeopardize such an investigation or would pose such a clear and present danger. Iowa Code § 22.7(18).

    (1) This section was added by amendment in 1984, subsequent to (and presumably in response to) the holding of the court in City of Dubuque v. Telegraph Herald Inc., 297 N.W.2d 523 (Iowa 1980).

    (2) The purpose of this section, as amended, is "to permit public agencies to keep confidential a broad category of useful incoming communications which might not be forthcoming if subject to public disclosure." City of Sioux City v. Press Club, 421 N.W.2d 895, 898 (Iowa 1988).

    (3) There are three exceptions to this rule of confidentiality: (a) consent of person making communication; (b) information which does not disclose, or allow others to ascertain the identity of the person making the communication; and (c) information indicating the date, time, specific location and immediate facts and circumstances surrounding the occurrence of a crime (unless disclosure would jeopardize a continuing investigation or endanger an individual).

    (4) Pursuant to the provisions of this section, employment applications for appointive city office, disclosure of which is not authorized by the applicants, may be maintained with confidentiality by the lawful custodian. City of Sioux City v. Press Club, 421 N.W.2d at 899.

    (5) Documents which can be redacted to protect the identity of outside sources must be made available. Des Moines Indep. Cmty. Sch. Dist. Public Records v. Des Moines Register & Tribune Co., 487 N.W.2d 666, 671 (Iowa 1992).

    (6) Grant of summary judgment to a school district and its board in an action brought by a mother, on behalf of her minor child, for disclosing a sexual relationship between the minor and a school coach was affirmed because Iowa Code § 22.7(18) authorized disclosure of the immediate facts and circumstances surrounding the occurrence of a crime or illegal act. V.H. v. Hampton-Dumont Cmty. Sch. Dist., 2009 Iowa App. LEXIS 1721 (Iowa Ct. App. Dec. 30, 2009)

    s. Examinations, including but not limited to cognitive and psychological examinations for law enforcement officer candidates administered by or on behalf of a governmental body, to the extent that their disclosure could reasonably be believed by the custodian to interfere with the accomplishment of the objectives for which they are administered. Iowa Code § 22.7(19).

    (1) See also, Iowa Code Chapter 228, limiting the circumstances under which mental health information may be disclosed.

    (2) This exemption is intended to protect the integrity of the examination process. DeLaMater v. Marion Civil Svc. Comm’n, 554 N.W.2d 875, 881 (Iowa 1996) (finding § 22.7(19) did not apply to prohibit the disclosure of examinees’ raw scores on each component of the test were there was no indication of the content of the questions). The court may allow a government body to redact the names of some of names of the individuals achieving the disclosed raw scores where the “public purpose may be satisfied without linking the scores to a particular candidate.”  Id. at 882.

    t. Information concerning the nature and location of any archaeological resource or site if, in the opinion of the state archaeologist, disclosure of the information will result in unreasonable risk of damage to or loss of the resource or site where the resource is located. This subsection shall not be construed to interfere with the responsibilities of the federal government or the state historic preservation officer pertaining to access, disclosure, and use of archaeological site records. Iowa Code § 22.7(20).

    u. Information concerning the nature and location of any ecologically sensitive resource or site if, in the opinion of the director of the department of natural resources after consultation with the state ecologist, disclosure of the information will result in unreasonable risk of damage to or loss of the resource or site where the resource is located. This subsection shall not be construed to interfere with the responsibilities of the federal government or the director of the department of natural resources and the state ecologist pertaining to access, disclosure, and use of the ecologically sensitive site records. Iowa Code § 22.7(21).

    v. Reports or recommendations of the Iowa insurance guaranty association filed or made pursuant to § 515B.10, subsection 1, paragraph "a", subparagraph (2). Iowa Code § 22.7(22).

    w. Information or reports collected or submitted pursuant to § 508C.12, subsections 3 and 5, and § 508C.13, subsection 2, except to the extent that release is permitted under those sections. Iowa Code § 22.7(23).

    x. Financial information, which if released would give advantage to competitors and serve no public purpose, relating to commercial operations conducted or intended to be conducted by a person submitting records containing the information to the department of agriculture and land stewardship for the purpose of obtaining assistance in business planning. Iowa Code § 22.7(25).

    y. Applications, investigation reports, and case records of persons applying for county general assistance pursuant to § 252.25. Iowa Code § 22.7(26).

    z. Marketing and advertising budget and strategy of a nonprofit corporation which is subject to this chapter. However, this exemption does not apply to salaries or benefits of employees who are employed by the nonprofit corporation to handle the marketing and advertising responsibilities. Iowa Code § 22.7(27).

    aa. The information contained in records of the centralized employee registry created in chapter 252G, except to the extent that disclosure is authorized pursuant to chapter 252G. Iowa Code § 22.7(28).

    (1) Section 22.7(28) protects social security numbers from disclosure. Schmit v. Iowa Machine Shed Co., No. 05-1927, 2006 WL 2872944, at *3 (Iowa Ct. App. Oct. 11, 2006).

    bb. Records and information obtained or held by independent special counsel during the course of an investigation conducted pursuant to § 68B.31A. Information that is disclosed to a legislative ethics committee subsequent to a determination of probable cause by independent special counsel and made pursuant to § 68B.31 is not a confidential record unless otherwise provided by law. Iowa Code § 22.7(29).

    cc. Information contained in a declaration of paternity completed and filed with the state registrar of vital statistics pursuant to § 144.12A, except to the extent that the information may be provided to persons in accordance with § 144.12A. Iowa Code § 22.7(30).

    dd. Memoranda, work products, and case files of a mediator and all other confidential communications in the possession of a mediator, as provided in chapters 86 and 216. Information in these confidential communications is subject to disclosure only as provided in § § 86.44 and 216.15B, notwithstanding any other contrary provision of this chapter. Iowa Code § 22.7(31).

    ee. Social security numbers of the owners of unclaimed property reported to the treasurer of state pursuant to section 556.11, subsection 2, included on claim forms filed with the treasurer of state pursuant to section 556.19, included in outdated warrant reports received by the treasurer of state pursuant to section 556.2C, or stored in record systems maintained by the treasurer of state for purposes of administering chapter 556, or social security numbers of payees included on state warrants included in records systems maintained by the department of administrative services for the purpose of documenting and tracking outdated warrants pursuant to section 556.2C. Iowa Code § 22.7(32).

    ff. Data processing software, as defined in § 22.3A, which is developed by a government body or developed by a nongovernment body and used by a government body pursuant to a contractual relationship with the nongovernment body. Iowa Code § 22.7(33).

    gg. A record required under the Iowa financial transaction reporting Act listed in § 529.2, subsection 9. Iowa Code § 22.7(34).

    hh. Records of the Iowa department of public health pertaining to participants in the gambling treatment program except as otherwise provided in this chapter. Iowa Code § 22.7(35).

    ii. Records of a law enforcement agency or the state department of transportation regarding the issuance of a driver's license under § 321.189A. Iowa Code § 22.7(36).

    jj. Mediation communications as defined in § 679C.102, except written mediation agreements that resulted from a mediation which are signed on behalf of a governing body. However, confidentiality of mediation communications resulting from mediation conducted pursuant to chapter 216 shall be governed by chapter 216. Iowa Code § 22.7(37).

    (1) A district court can seal court records if the parties introduced documents from an earlier mediation. Estate of Cox by Cox v. Dunakey & Klatt, P.C., 893 N.W.2d 295, 305 (Iowa 2017).

    (2) Section 679C.102 defines “mediation communication” as any statement, written or oral, “that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation.” Id. (citing Iowa Code § 679C.102 (2017)).

    kk. a. Records containing information that would disclose, or might lead to the disclosure of, private keys used in a digital an electronic signature or other similar technologies as provided in chapter 554D.

    b. Records which if disclosed might jeopardize the security of an electronic transaction pursuant to chapter 554D. Iowa Code § 22.7(38).

    ll. Information revealing the identity of a packer or a person who sells livestock to a packer as reported to the department of agriculture and land stewardship pursuant to § 202A.2. Iowa Code § 22.7(39).

    mm. The portion of a record request that contains an internet protocol number which identifies the computer from which a person requests a record, whether the person using such computer makes the request through the IowAccess network or directly to a lawful custodian. However, such record may be released with the express written consent of the person requesting the record. Iowa Code § 22.7(40).

    nn. a. Medical examiner records and reports, including preliminary reports, investigative reports, and autopsy reports.

    b. Notwithstanding paragraph “a”, the following shall be released as follows:

    (1) Medical examiner-authored records and reports, including preliminary reports, investigative reports, and autopsy reports, shall be released to a law enforcement agency that is investigating the death, upon the request of the law enforcement agency.

    (2) Preliminary reports of investigations by the medical examiner and autopsy reports for a decedent by whom an anatomical gift was made in accordance with chapter 142C shall be released to a procurement organization as defined in section 142C.2, upon the request of such procurement organization, unless such disclosure would jeopardize an investigation or pose a clear and present danger to the public safety or the safety of an individual.

    (3) Autopsy reports shall be released to the decedent's immediate next of kin, upon the request of the decedent's immediate next of kin, unless disclosure to the decedent's immediate next of kin would jeopardize an investigation or pose a clear and present danger to the public safety or the safety of an individual.

    c. Information regarding the cause and manner of death shall not be kept confidential under this subsection, unless disclosure would jeopardize an investigation or pose a clear and present danger to the public safety or the safety of an individual. Iowa Code § 22.7(41).

    (1) The Iowa Supreme Court refused to disclose an autopsy report to a decedent’s mother, determining that the “language is specific and clear that autopsy reports are exempt from disclosure except to ‘the decedent's immediate next of kin,’” which would be the decedent’s estranged wife or children, not his mother.  Simington v. Banwart, 786 N.W.2d 520 (Iowa Ct. App. 2010).

    oo. Information obtained by the commissioner of insurance in the course of an investigation as provided in § 523C.23. Iowa Code § 22.7(42).

    pp. Information obtained by the commissioner of insurance pursuant to § 502.607. Iowa Code § 22.7(43).

    qq. Information provided to the court and state public defender pursuant to section 13B.4, subsection 5; section 814.11, subsection 7; or section 815.10, subsection 5.  Iowa Code §22.7(44).

    rr. The critical asset protection plan or any part of the plan prepared pursuant to section 29C.8 and any information held by the department of homeland security and emergency management that was supplied to the department by a public or private agency or organization and used in the development of the critical asset protection plan to include, but not be limited to, surveys, lists, maps, or photographs. Communications and asset information not required by law, rule, or procedure that are provided to the director by persons outside of government and for which the director has signed a nondisclosure agreement are exempt from public disclosures. The department of homeland security and emergency management may provide all or part of the critical asset plan to federal, state, or local governmental agencies which have emergency planning or response functions if the director is satisfied that the need to know and intended use are reasonable. An agency receiving critical asset protection plan information from the department shall not redisseminate the information without prior approval of the director. Iowa Code § 22.7(45).

    ss. Military personnel records recorded by the county recorder pursuant to section 331.608.  Iowa Code § 22.7(46).

    tt. A report regarding interest held in agricultural land required to be filed pursuant to chapter 10B.  Iowa Code § 22.7(47).

    uu. Sex offender registry records under chapter 692A, except as provided in § 692A.121. Iowa Code § 22.7(48).

    vv. Confidential information, as defined in § 86.45, subsection 1, filed with the workers' compensation commissioner. Iowa Code § 22.7(49).

    ww. Information and records concerning physical infrastructure, cyber security, critical infrastructure, security procedures, or emergency preparedness developed, maintained, or held by a government body for the protection of life or property, if disclosure could reasonably be expected to jeopardize such life or property.

    a. Such information includes but is not limited to information directly related to vulnerability assessments; information contained in records relating to security measures such as security and response plans, security codes and combinations, passwords, restricted area passes, keys, and security or response procedures; emergency response protocols; and information contained in records that if disclosed would significantly increase the vulnerability of critical physical systems or infrastructures of a government body to attack.

    b. For purposes of this subsection, “cyber security information and records” include but are not limited to information and records relating to cyber security defenses, threats, attacks, or general attempts to attack cyber system operations.  Iowa Code § 22.7(50).

    xx. The information contained in the information program established in section 124.551, except to the extent that disclosure is authorized pursuant to section 124.553.  Iowa Code § 22.7(51).

    yy. a. The following records relating to a charitable donation made to a foundation acting solely for the support of an institution governed by the state board of regents, to the board of the Iowa state fair foundation when the record relates to a gift or deposit in or expenditure from the Iowa state fairgrounds trust fund as provided in section 173.22A, to a foundation acting solely for the support of an institution governed by chapter 260C, to a private foundation as defined in section 509 of the Internal Revenue Code organized for the support of a government body, or to an endow Iowa qualified community foundation, as defined in section 15E.303, organized for the support of a government body:

    (1) Portions of records that disclose a donor's or prospective donor's personal, financial, estate planning, or gift planning matters.

    (2) Records received from a donor or prospective donor regarding such donor's prospective gift or pledge.

    (3) Records containing information about a donor or a prospective donor in regard to the appropriateness of the solicitation and dollar amount of the gift or pledge.

    (4) Portions of records that identify a prospective donor and that provide information on the appropriateness of the solicitation, the form of the gift or dollar amount requested by the solicitor, and the name of the solicitor.

    (5) Portions of records disclosing the identity of a donor or prospective donor, including the specific form of gift or pledge that could identify a donor or prospective donor, directly or indirectly, when such donor has requested anonymity in connection with the gift or pledge. This subparagraph does not apply to a gift or pledge from a publicly held business corporation.

    b. The confidential records described in paragraph "a", subparagraphs (1) through (5), shall not be construed to make confidential those portions of records disclosing any of the following:

    (1) The amount and date of the donation.

    (2) Any donor-designated use or purpose of the donation.

    (3) Any other donor-imposed restrictions on the use of the donation.

    (4) When a pledge or donation is made expressly conditioned on receipt by the donor, or any person related to the donor by blood or marriage within the third degree of consanguinity, of any privilege, benefit, employment, program admission, or other special consideration from the government body, a description of any and all such consideration offered or given in exchange for the pledge or donation.

    c. Except as provided in paragraphs "a" and "b", portions of records relating to the receipt, holding, and disbursement of gifts made for the benefit of regents institutions and made through foundations established for support of regents institutions, including but not limited to written fund-raising policies and documents evidencing fund-raising practices, shall be subject to this chapter.

    d. This subsection does not apply to a report filed with the Iowa ethics and campaign disclosure board pursuant to section 8.7.  Iowa Code § 22.7(52).

    zz. Information obtained and prepared by the commissioner of insurance pursuant to section 507.14.  Iowa Code § 22.7(53).

    aaa. Information obtained and prepared by the commissioner of insurance pursuant to section 507E.5.  Iowa Code § 22.7(54).

    bbb. An intelligence assessment and intelligence data under chapter 692, except as provided in section 692.8A.  Iowa Code § 22.7(55).

    ccc. Individually identifiable client information contained in the records of the state database created as a homeless management information system pursuant to standards developed by the United States department of housing and urban development and utilized by the Iowa department of economic development.  Iowa Code § 22.7(56).

    ddd. The following information contained in the records of any governmental body relating to any form of housing assistance:

    a. An applicant's social security number.

    b. An applicant's personal financial history.

    c. An applicant's personal medical history or records.

    d. An applicant's current residential address when the applicant has been granted or has made application for a civil or criminal restraining order for the personal protection of the applicant or a member of the applicant's household.  Iowa Code § 22.7(57).

    eee. Information filed with the commissioner of insurance pursuant to sections 523A.204 and 523A.502A.  Iowa Code §.22.7(58).

    fff. The information provided in any report, record, claim, or other document submitted to the treasurer of state pursuant to chapter 556 concerning unclaimed or abandoned property, except the name and last known address of each person appearing to be entitled to unclaimed or abandoned property paid or delivered to the treasurer of state pursuant to that chapter.  Iowa Code § 22.7(59).

    ggg. Information in a record that would permit a governmental body subject to chapter 21 to hold a closed session pursuant to section 21.5 in order to avoid public disclosure of that information, until such time as final action is taken on the subject matter of that information. Any portion of such a record not subject to this subsection, or not otherwise confidential, shall be made available to the public. After the governmental body has taken final action on the subject matter pertaining to the information in that record, this subsection shall no longer apply. This subsection shall not apply more than ninety days after a record is known to exist by the governmental body, unless it is not possible for the governmental body to take final action within ninety days. The burden shall be on the governmental body to prove that final action was not possible within the ninety-day period.  Iowa Code § 22.7(60).

    (1) The court in Hall v. Broadlawns Medical Center interpreted section 22.7(61) when it included the wording that is now section 22.7(60). The internal audit of a hospital pharmacy department is not exempt from public disclosure when the ninety-day period has lapsed. Hall v. Broadlawns Med. Ctr., 811 N.W.2d 478, 485 (Iowa 2012).

    hhh. Records of the department on aging pertaining to clients served by the office of substitute decision maker.  Iowa Code § 22.7(61).

    iii. Records maintained by the department on aging or office of long-term care ombudsman that disclose the identity of a complainant, resident, tenant, or individual receiving services provided by the department on aging, an area agency on aging, or the office of long-term care ombudsman, unless disclosure is otherwise allowed under section 231.42, subsection 12, paragraph “a.” Iowa Code § 22.7(62).

    jjj. Information obtained by the superintendent of credit unions in connection with a complaint response process as provided in section 533.501, subsection 3.  Iowa Code § 22.7(63).

    kkk. Information obtained by the commissioner of insurance in the course of an examination of a cemetery as provided in section 523I.213A, subsection 7.  Iowa Code § 22.7(64).

    lll. Tentative, preliminary, draft, speculative, or research material, prior to its completion for the purpose for which it is intended and in a form prior to the form in which it is submitted for use or used in the actual formulation, recommendation, adoption, or execution of any official policy or action by a public official authorized to make such decisions for the governmental body or the government body. This subsection shall not apply to public records that are actually submitted for use or are used in the formulation, recommendation, adoption, or execution of any official policy or action of a governmental body or a government body by a public official authorized to adopt or execute official policy for the governmental body or the government body. Iowa Code § 22.7(65).

    mmm. Personal information contained on electronic driver's license or nonoperator's identification card records that is provided by the licensee or card holder to the department of transportation for use by law enforcement, first responders, emergency medical service providers, and other medical personnel responding to or assisting with an emergency. Iowa Code § 22.7(66).

    nnn. Electronic mail addresses of individuals or phone numbers of individuals, and personally identifiable information about those individuals, collected by state departments and agencies for the sole purpose of disseminating emergency or routine information and notices through electronic communications that are not prepared for a specific recipient. Iowa Code § 22.7(67).

    ooo. Information required to be provided by a disclosing entity pursuant to 42 C.F.R. §455.104, pertaining to an individual with an ownership or control interest who is an officer or director of a nonprofit corporation. Iowa Code § 22.7(68).

    ppp. The evidence of public employee support for the certification, retention and recertification, or decertification of an employee organization as defined in section 20.3 that is submitted to the public employment relations board as provided in section 20.14 or 20.15. Iowa Code § 22.7(69).

    qqq. Information indicating whether a public employee voted in a certification, retention and recertification, or decertification election held pursuant to section 20.15 or how the employee voted on any question on a ballot in such an election. Iowa Code § 22.7(70).

    rrr. Information and records related to cyber security information or critical infrastructure, the disclosure of which may expose or create vulnerability to critical infrastructure systems, held by the utilities board of the department of commerce or the department of homeland security and emergency management for purposes relating to the safeguarding of telecommunications, electric, water, sanitary sewage, storm water drainage, energy, hazardous liquid, natural gas, or other critical infrastructure systems. For purposes of this subsection, “cyber security information” includes but is not limited to information relating to cyber security defenses, threats, attacks, or general attempts to attack cyber system operations. Iowa Code § 22.7(70).

    sss. The voter verification number, as defined in section 53.2, subsection 4, paragraph “c”, that is assigned to a voter and maintained and updated in the statewide voter registration system. Iowa Code § 22.7(70).

    ttt. The personal identification number assigned by the state commissioner of elections pursuant to section 48A.10A, subsection 1. Iowa Code § 22.7(71).

    uuu. The voter verification number, as defined in section 53.2, subsection 4, paragraph “c”, that is assigned to a voter and maintained and updated in the statewide voter registration system.  Iowa Code § 22.7(72).

    vvv. The personal identification number assigned by the state commissioner of elections pursuant to section 48A.10A, subsection 1. Iowa Code § 22.7(73).

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  • Kansas

    A list of 55 exceptions to mandatory disclosure is found in K.S.A. 45-221.

    1. Records specifically prohibited or restricted from disclosure by federal law, state statute, or rule of Kansas Supreme Court. K.S.A. 45-221(a)(1). Includes tax return information. Kan. Att’y Gen. Op. 1990-20; K.S.A. 79-3614. This is the only exception that is mandatory. All other exceptions are discretionary with the public agency, but in practice, public agencies treat all exceptions as absolute.
    2. Records privileged under rules of evidence. K.S.A. 45-221(a)(2).
    3. Medical, psychiatric, psychological or alcoholism or drug dependency treatment records. K.S.A. 45-221(a)(3); Kan. Att’y Gen. Op. 1994-81.
    4. Personnel records, performance ratings or individually identifiable records pertaining to employment, but certain information such as names, positions and salaries of officers and employees of public agencies is not exempt. K.S.A. 45-221(a)(4), Kan. Att’y Gen. Op. 1987-109. 1991-50, 1992-132, 1989-50, 1994-121.
    5. Information pertaining to the identity of an undercover agent or informant. K.S.A. 45-221(a)(5).
    6. Letters of reference or recommendation that speak to the character or qualifications of an identifiable individual. K.S.A. 45-221(a)(6).
    7. Library, archive and museum materials contributed by private persons. K.S.A. 45-221(a)(7).
    8. Information concerning an individual who lawfully makes a donation to a public agency. K.S.A. 45-221(a)(8).
    9. Testing and examination materials before the test is given or individual scores, other than records which show only passage or failure. K.S.A. 45-221(a)(9).
    10. Criminal investigation records. A district court may order disclosure in an action brought under K.S.A. 45-222 (civil remedies to enforce KORA) if the court finds that disclosure: (1) is in the public interest; (2) would not interfere with any prospective law enforcement action; (3) would not reveal the identity of any confidential source or undercover agent; (4) would not reveal confidential investigation techniques or procedures not known to the general public; (5) would not endanger the life or physical safety of any person; and (6) would not reveal the name, address, phone number or any other information which specifically and individually identifies the victim of any sexual offense in Article 35 of Chapter 21 of the Kansas Statutes Annotated, and amendments thereto. K.S.A. 45-221(a)(10).

    Public interest means more than public curiosity. Public interest existed in disclosure of murder investigation files where inconsistent statements were reported and definite disagreements arose between various law enforcement agencies. See Harris Enterprises Inc. v. Moore, 241 Kan. 59, 734 P.2d 1083 (1987). Records compiled in the process of preventing, detecting or investigating violations of criminal law are not subject to mandatory disclosure. Kan. Att’y Gen. Op. 1987-25. A "jail book" listing persons placed in jail and other general information must be open for public inspection. Id. The front page of standard offense report must be open for public inspection. Id.; Kan. Att’y Gen. Op. 1998-38 (All information on the front page except for the victim's social security number is presumed to be open, and portions of the front page can only be closed if the victim was the victim of certain sex crimes or under the unusual event that disclosure would constitute a clearly unwarranted invasion of the victim's personal privacy).  Mug shots may be disclosed. Id. A permanent record of all felony offenses reported in a jurisdiction must be open for public inspection. Kan. Att’y Gen. Op. 1979-17. Reports, memoranda, or other internal government documents made by officers in connection with an investigation or prosecution are not open for public inspection. Id. Motor vehicle accident reports must be open for public inspection. Id. Municipal court DUI diversion agreements are public records under KORA and must be disclosed upon request. Kan.Att’y Gen. Op. 1994-7.

    This is the only judicial protocol for obtaining records among the 55 exceptions.

    1. Records of agencies involved in administrative adjudication or civil litigation. K.S.A. 45-221(a)(11), except certain KPERS settlement records. K.S.A. 45-217(f)(1).
    2. Emergency or security information. K.S.A. 45-221(a)(12).
    3. Contents of appraisals or engineering relative to the acquisition of property. K.S.A. 45-221(a)(13). But tax assessment records are open. Kan. Att’y Gen. Op. 1991-145.
    4. Correspondence between a public agency and a private individual. K.S.A. 45-221(a)(14).
    5. Records pertaining to employer-employee negotiation. K.S.A. 45-221(a)(15). But, c.f. State SRS v. PERB, 249 Kan. 163, 815 P.2d 66 (1991).
    6. Software programs for electronic data processing and documentation. K.S.A. 45-221(a)(16).
    7. Applications, financial statements and other information submitted in connection with applications for student financial assistance. K.S.A. 45-221(a)(17).
    8. Plans, designs, drawings or specifications which are the property of a private person. K.S.A. 45-221(a)(18).
    9. Well samples, logs or surveys which the state corporation commission requires to be filed. K.S.A. 45-221(a)(19).
    10. Notes, preliminary drafts, research data in the process of analysis, unfunded grant proposals, memoranda, recommendations or other records in which opinions are expressed or policies or actions are proposed. K.S.A. 45-221(a)(20).

    Draft minutes of a county commission meeting are "preliminary drafts" that would fall within the exception in K.S.A. 45-221(a)(20), and the board of county commissioners is not required to disclose them to the public prior to being formally approved by the board unless the draft minutes are publicly cited or identified either in an open meeting, or in an agenda of an open meeting. Kan. Att’y Gen. Op. 2013-05.

    1. Records of a public agency having legislative powers pertaining to proposed legislation. K.S.A. 45-221(a)(21).
    2. Records of a public agency having legislative powers, which pertain to research prepared for one or more members of such agency. K.S.A. 45-221(a)(22).
    3. Library patron and circulation records. K.S.A. 45-221(a)(23).
    4. Records which are compiled for census or research purposes. K.S.A. 45-221(a)(24).
    5. Records which represent and constitute the work product of an attorney. K.S.A. 45-221(a)(25). Kan. Att’y Gen. Op. 1987-149.
    6. Records of a utility or other public service pertaining to individually identifiable residential customers. K.S.A. 45-221(a)(26).
    7. Specifications for competitive bidding. K.S.A. 45-221(a)(27).
    8. Sealed bids and related documents. K.S.A. 45-221(a)(28).
    9. Correctional records pertaining to an identifiable inmate. K.S.A. 45-221(a)(29). Kan. Att’y Gen. Op.s 1984-124, 1982-226.
    10. Public records where the public disclosure would constitute an “clearly unwarranted invasion of personal privacy.” K.S.A. 45-221(a)(30). Kan. Att’y Gen. Op.s 1989-50, 1992-149. K.S.A. 45-217(b) defines this phrase to mean “revealing information that would be highly offensive to a reasonable person, including information that may pose a risk to a person or property and is not of legitimate concern to the public. This amendment was in response to the decision in Data Tree v. Meek, 109 P.3d 1226, 279 Kan. 445 (2005).
    11. Public records pertaining to prospective location of a business or industry, where previous public disclosure has not been made. K.S.A. 45-221(a)(31).
    12. Engineering and architectural estimates made by or for any public agency relative to public improvements. K.S.A. 45-221(a)(32).
    13. Financial information submitted by contractors. K.S.A. 45-221(a)(33).
    14. Records of intellectual property rights vested in state institutions. K.S.A. 45-221(a)(34).
    15. Peer review, impaired provider, and risk management records of health care providers. K.S.A. 45-221(a)(35).
    16. Records revealing the precise location of an archeological site. K.S.A. 45-221(a)(36)
    17. Certain railroad records on sale, lease or rehabilitation of property in Kansas given to public agencies. K.S.A. 45-221(a)(37).
    18. Risk-based capital reports and capital plans, corrective orders including the working papers and the results of any analysis filed with the commissioner of insurance in accordance with K.S.A. 40-2c20, and amendments thereto. K.S.A. 45-221(a)(38).
    19. Memoranda and related materials supporting the annual actuarial opinions submitted pursuant to K.S.A. 40-409(b), and amendments thereto. K.S.A. 45-221(a)(39).
    20. Disclosure reports filed with the commissioner of insurance pursuant to K.S.A. 40-2,156(a) and amendments thereto. K.S.A. 45-221(a)(40).
    21. All financial analysis ratios and examination synopses concerning insurance companies that are submitted to the commissioner by the national association of insurance commissioners' insurance regulatory information system. K.S.A. 45-221(a)(41).
    22. Any records for which disclosure is restricted or prohibited by a tribal-state gaming compact. K.S.A. 45-221(a)(42).
    23. Market research and plans, business plans and the terms and conditions of managed care or other third party contracts, developed or entered into by the University of Kansas Medical Center in the management and operation of the university hospital which the chancellor of the University of Kansas or the chancellor's designee determines would give an unfair advantage to competitors of the University of Kansas Medical Center. K.S.A. 45-221(a)(43).
    24. Amount of franchise tax paid to the secretary of state by corporations. K.S.A. 44-221(a)(44).
    25. Information with a substantial likelihood of revealing security measures of energy, water, communications, sewer and waste infrastructures. K.S.A. 45-221(a)(45).
    26. Military discharge documents (DD Form 214) recorded at a Register of Deeds. K.S.A. 45-221(a)(46).
    27. Information on location of shelters or safehouses for victims of abuse. K.S.A. 45-221(a)(47).
    28. Policy information provided by an insurance carrier listing covered individuals under group-funded worker’s compensation insurance. K.S.A. 45-221(a)(48).
    29. An individual’s e-mail, cell phone number, and other contact information given to a public agency for the purpose of public agency notifications which are widely distributed to the public. K.S.A. 45-221-(a)(49).
    30. Information that is protected under the Kansas 911 Act, K.S.A. 12-5362 et. seq.. K.S.A. 45-221(a)(50).
    31. Records of a public agency on a public website which are searchable and identify personal information of a law enforcement officer when such officer files with the custodian of the record to have the information restricted. This restriction expires after five years, but the officer may make a new request for restriction at any time. K.S.A. 45-221(a)(51).

    aaa. Records of a public agency on a public website which are searchable and identify personal information of judge or government attorney when such officer of the law files with the custodian of the record to have the information restricted. This restriction expires after five years, but the officer may make a new request for restriction at any time. K.S.A. 45-221(a)(52).

    bbb. Records of a public agency which identify contact information of a person licensed to carry concealed handguns or any person who enrolled in or completed weapons training. K.S.A. 45-221(a)(53).

    ccc. Records of a utility concerning information about cyber security threats provided to law enforcement or other federal, state or regional organizations which have responsibility for safeguarding natural resources and channels of communication. K.S.A. 45-221(a)(54).

    ddd. Records of a public agency containing information or reports by the state bank commissioner in the course of licensing or examining a person engaged in money transmission business. K.S.A. 45-221(a)(55).

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  • Kentucky

    The Kentucky Open Records Act’s exemptions were modified and renumbered when the Act was amended in 1992 and again in 1994. Judicial opinions and Attorney General opinions issued prior to these dates cite to the pre-amendment numbering of the exemptions.

    Ky. Rev. Stat. 61.878(1): "The following public records are excluded from the application of [Ky. Rev. Stat.] 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery:"

    This limitation does not prevent a non-party from using the Open Records Act to obtain public records relating to litigation involving a public agency. Department of Corrections v. Courier-Journal & Louisville Times Co., 914 S.W.2d 349 (Ky. Ct. App. 1996); see also 95-ORD-18 (discussing limitation). In Dept. of Revenue v. Wyrick, the Kentucky Supreme Court further clarified that this limitation does not prevent even a party to a lawsuit from obtaining records that are open to others. 323 S.W.3d 710, at 714 (Ky. 2010). Rather, the court held the limitation “is an explanation of a court’s authority to order inspection of documents otherwise exempted from disclosure under Ky. Rev. Stat. 61.878(1)(a)-(n). It is not an exception to an agency’s duty to disclose nonexempted records.” Id. (emphasis in original).

    Ky. Rev. Stat. 61.878(1)(a): "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."

    Kentucky courts apply a two-step balancing test when weighing whether disclosure constitutes a clearly unwarranted invasion of privacy. First, the information must be of a personal nature. If so, second,

    [G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is "clearly unwarranted" is intrinsically situational, and can only be determined within a specific context.

    Kentucky Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 327-28 (Ky. 1992).

    The Kentucky Supreme Court applied this test in Cape Publ’ns., Inc. v. Univ. of Louisville Found.,  when it held that the names of donors to a university foundation were open, except for the donors who had specifically requested anonymity and who believed, at the time of the gift, that the donation was being made to a private entity. 260 S.W.3d 818, 824 (Ky. 2008). There, the court said:

    “When weighed against the public’s interest in the source of Foundation funds – and ultimately,   University funds – we conclude that the anonymous donors’ interest in privacy are superior in this instance.”

    Id.

    The court went on to say that future donors’ names would not be closed to the public, because the court’s opinion had put donors on notice that they were giving their money to a public institution. Id.

    In applying the balancing test, the courts have given greater weight to the privacy interests of private individuals and low-level public employees than to those of high-level public officials and employees. This is because courts view the Open Records Act as being designed to monitor the activities of government, and not of private individuals:

    At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing. That purpose is not fostered however by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct.

    Zink v. Kentucky Dept. of Workers' Claims, 902 S.W.2d 825, 829 (Ky. Ct. App. 1994).

    In Zink, the court refused an attorney's request to examine injury reports submitted to the Kentucky Department of Workers' Claims. The court found this would constitute an unwarranted invasion of privacy because the records were of private citizens and included their names, marital status, dates of birth, number of dependents, salaries, Social Security numbers, home addresses and telephone numbers. Id. at 827.

    The court later distinguished Zink in Palmer v. Driggers, 60 S.W.3d 591, 598-99 (Ky. Ct. App. 2001), finding that a former Owensboro police officer's records revealing alleged misconduct in the form of an inappropriate relationship with another officer while on duty was in the public interest and therefore subject to disclosure. Id. The court held that the public had a legitimate interest in "knowing the underlying basis for a disciplinary charge against a police officer who has been charged with misconduct." Id.

    Another example of the public interest tilting toward disclosure can be found in 98-ORD-45 ("we find that complaints of sexual harassment and consequent disciplinary action, or the decision to take no action, are matters of legitimate public concern which outweigh the privacy rights of the public servant").

    Similarly, the Attorney General has held that public officials' salaries are subject to disclosure. 99-ORD-209 ("The principle that the salary of a public servant is a matter of legitimate public interest, and records reflecting a public servant's salary must be made available for inspection, is as old as the Open Records Act itself"). See also 85-94; 86-38; 87-76; 88-13; 89-97; 93-ORD-144; 97-ORD-85; and 98-ORD-184.

    With regard to settlement agreements, the exemption is not invoked by placing a confidentiality clause within the agreement. Central Kentucky News-Journal v. George, 306 S.W.3d 41, 45 (Ky. 2010); Lexington-Fayette Urban County Gov’t v. Lexington Herald-Leader Co., 941 S.W.2d 469, 473 (Ky. 1997). In Lexington-Fayette Urban County Government, the Kentucky Supreme Court held that “settlement of litigation between private citizens and a governmental entity is a matter of legitimate public concern which the public is entitled to scrutinize." 941 S.W.2d at 473. The Kentucky Supreme Court further clarified that point in Central Kentucky News-Journal, when it held that confidentiality clauses within such agreements do not make them exempt from disclosure under the personal privacy exemption to the Open Records Act. 306 S.W.3d at 45.

    If the confidentiality clause contains a provision requiring the public agency to notify the affected party upon receipt of an open records request for the settlement agreement, the public agency must do so within the three business days with which it has to comply with the open records request. 98-ORD-24.

    Ky. Rev. Stat. 61.878(1)(b): "Records confidentially disclosed to an agency and compiled and maintained for scientific research. This exemption shall not, however, apply to records the disclosure or publication of which is directed by another statute;"

    Ky. Rev. Stat. 61.878(1)(c)(1): "Upon and after July 15, 1992, records confidentially disclosed to an agency, or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records;"

    In a case of first impression, the Supreme Court determined that records of the Department of Insurance relating to health insurance rates and form filings are subject to the Open Records Act. Documents that constitute confidential or proprietary information, which would give a competitor an unfair advantage, however, are exempt from disclosure under this exception. Southeastern United Medigroup Inc. v. Hughes, 952 S.W.2d 195, 198-99 (Ky. 1997).

    Audited financial records submitted by Marina Management Services ("MMS") to the Cabinet for Tourism are exempt from the Open Records Act. Marina Management Services Inc. v. Kentucky Cabinet for Tourism, 906 S.W.2d 318 (Ky. 1995). The records were submitted in connection with MMS's license agreement with the state to operate marinas in state parks; they included asset values, rental amounts on houseboats, profit margins, net earnings and capital income. Id. at 319; see also 92-66 (withholding audit of private hospital).

    Ky. Rev. Stat. 61.878(1)(c)(2): "Upon and after July 15, 1992, records confidentially disclosed to an agency, or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which are compiled and maintained:

    1. In conjunction with an application for or the administration of a loan or grant;
    2. In conjunction with an application for or the administration of assessments, incentives, inducements and tax credits as described in Ky. Rev. Stat. Chapter 154;
    3. In conjunction with the regulation of commercial enterprise, including mineral exploration records, unpatented, secret commercially valuable plans, appliances, formulae or processes, which are used for the making, preparing, compounding, treating or processing of articles or materials which are trade commodities obtained from a person; or
    4. For the grant or review of a license to do business;"

    To successfully raise this exception an agency must establish that the records "1) are confidentially disclosed to the agency or required by the agency to be disclosed to it; 2) are generally recognized as confidential or proprietary; and 3) are compiled and maintained for the grant or review of a license to do business." 99-ORD-220.

    Financial records that General Electric submitted to the Kentucky Industrial Revitalization Authority for investment tax credits are exempt from disclosure. Hoy v. Kentucky Industrial Revitalization Authority, 907 S.W.2d 766 (Ky. 1995). The 61.878(1)(c)(2) exemption is designed "to protect those companies which participate in the revitalization and development of industry in Kentucky." Id. at 769.

    An application for a racing license does not satisfy the requirements for this exception. The agency may redact those portions of the application, however, which concern the "inner workings" of the business and are "generally recognized as confidential and proprietary." 99-ORD-220.

    Similarly, the Attorney General found that a Hardin County Drug Task Force grant application must be released in part under the Act. The agency was not required to disclose, however, the "names of investigators; geographic target areas; types of targeted substances; and strategic plans of attack." 97-ORD-132.

    A private agency's proposal to the state Department for Social Services concerning the use of refugee resettlement funds is not exempt: "We believe such records are of uniquely public interest, insofar as they substantiate that federal funds will be put to proper use, and cannot be characterized as confidential or proprietary." 93-ORD-43; see also 95-ORD-107 (stressing that exception only applies where records are confidential).

    Ky. Rev. Stat. 61.878(1)(c)(3): "The exemptions provided for in subparagraphs 1. and 2. of this paragraph shall not apply to records the disclosure or publication of which is directed by another statute;"

    Ky. Rev. Stat. 61.878(1)(d): "Public records pertaining to a prospective location of a business or industry where no previous public disclosure has been made of the business' or industry's interest in locating in, relocating within or expanding within the Commonwealth. This exemption shall not include those records pertaining to application to agencies for permits or licenses necessary to do business or to expand business operations within the state, except as provided in paragraph (c) of this subsection;"

    Ky. Rev. Stat. 61.878(1)(e): "Public records which are developed by an agency in conjunction with the regulation or supervision of financial institutions, including but not limited to, banks, savings and loan associations and credit unions, which disclose the agency's internal examining or audit criteria and related analytical methods;"

    Ky. Rev. Stat. 61.878(1)(f): "The contents of real estate appraisals, engineering or feasibility estimates and evaluations made by or for a public agency relative to acquisition or property, until such time as all of the property has been acquired. The law of eminent domain shall not be affected by this provision;"

    This exception only applies to real property, and not to personal property. See 95-ORD-98 (holding records relating to the planned acquisition of computers cannot be withheld under this exception).

    Ky. Rev. Stat. 61.878(1)(g): "Test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examination before the exam is given or if it is to be given again;"

    "Given the importance of the KIRIS exam as a tool for measuring the efficiency and improvement of [Kentucky's] schools, [the Court of Appeals held that] the KIRIS exam should not be open for general public viewing without a special showing of necessity beyond simple curiosity as to its content." Triplett v. Livingston County Board of Education, 967 S.W.2d 25, 34 (Ky. Ct. App. 1997).

    Ky. Rev. Stat. 61.878(1)(h): "Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of [Ky. Rev. Stat.] 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of [Ky. Rev. Stat.] 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by [Ky. Rev. Stat.] 61.870 to 61.884;"

    A convicted murderer may not obtain the Commonwealth Attorney's file while preparing a petition for habeas corpus: "[T]he defense of the prospective habeas corpus proceedings is a part of the 'law enforcement action' in the appellant's case." Skaggs v. Redford, 844 S.W.2d 389, 390 (Ky. 1992); see also 99-ORD-170.

    Ky. Rev. Stat. 61.878(1)(i): "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;"

    This exception and 61.878(1)(j) "are intended to insure the integrity of an agency's decision making process by protecting its pre-decisional documents." 93-ORD-37.

    Correspondence means "communication by exchange of letters" and does not apply to "oral complaints or communications recorded on an audio tape." 94-ORD-133.

    "Writings from private citizens to government agencies are not considered correspondence from private citizens where an agency is expected to rely on the correspondence to take some action, such as take a disciplinary action against a licensee, or enter into a government contract based on bids." 99-ORD-220.

    The governor's daily schedule is a preliminary document exempt from disclosure: "We view the Governor's appointment schedule as nothing more than a draft of what may or may never take place; a notation for inter or intra office use, so the daily affairs of the chief executive can be conducted with some semblance of orderliness; and all of which should be free from media interference." Courier-Journal & Louisville Times Co. v. Jones, 895 S.W.2d 6, 10 (Ky. Ct. App.1995).

    This section does not prevent the disclosure of a previous open records request and the agency's response to another requester. 92-ORD-1440.

    Ky. Rev. Stat. 61.878(1)(j): "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;"

    This exception "is intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and recommendations." Id. (citing 94-ORD-132, p.3); see also 90-97; 89-39; 88-85; 88-24; and 86-64.

    This exception includes drafts, notes and outlines. A draft is defined as "a preliminary outline, plan or version." 97-ORD-183 (citing Webster II New Riverside University Dictionary 402 (1988)). The term “note” is defined as "a brief record, especially one written down to aid the memory." Id. (citing Webster at 804). An outline is "a tentative version, sketch or outline of a formal and final written product such as the draft report dealt with in 89-34, 93-ORD-125, and 94-ORD-38." Id.

    While preliminary drafts, recommendations and memoranda are exempt under Ky. Rev. Stat. 61.878(1)(i) and Ky. Rev. Stat. 61.878(1)(j), those materials must be disclosed if the agency adopts them as part of its final action:

    The public has a right to know what complaints have been made to a public agency once final action is taken. Once notes or recommendations are adopted by the public agency as part of its action the preliminary characterization of those notes or recommendations is lost. Such records would lose their exemption . . . and would become releasable . . . .

    Kentucky State Bd. of Medical Licensure v. Courier-Journal & Louisville Times Co., 663 S.W.2d 953, 956 (Ky. Ct. App. 1983); see also University of Kentucky v. Courier-Journal, 830 S.W.2d 373, 378 (Ky. 1992) ("[I]nvestigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action.").

    Even though a memorandum may have been the final or last memorandum on a particular topic by a particular individual or department, it remains preliminary as long as the final decision maker does not incorporate that memorandum into his or her final action. For instance, a report by a police department's internal affairs department remains preliminary if the chief of police does not adopt its recommendations as part of the chief's final action — even though the report is the "final" report by the internal affairs department. See City of Louisville v. Courier-Journal & Louisville Times Co., 637 S.W.2d 658 (Ky. Ct. App. 1982); see also 94-ORD-132 (discussing the "dichotomy" between final department reports and final agency actions); 94-ORD-89 (finding a post-decisional memorandum to be preliminary).

    An example of a preliminary document that lost its preliminary status is the annual evaluation of the director of the Jefferson County Health Department by the Health Board. See 94-ORD-120. The county judge had the choice of accepting the board's evaluation or formulating his own. When he chose to go with the board's evaluation, the evaluation lost its preliminary status and was no longer exempt from disclosure. Id.

    In a second example, the Attorney General found that a use of force inquiry was no longer preliminary in nature "[b]ecause the Commissioner adopted the findings and recommendations of the investigating officer by affixing his signature to the report." 97-ORD-168.

    Ky. Rev. Stat. 61.878(1)(k): "All public records or information the disclosure of which is prohibited by federal law or regulation;"

    An example of a federal law prohibiting disclosure of information is The Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g. See 94-ORD-17 (finding Act, as incorporated by Open Records Act, prohibits disclosure of students' home addresses and telephone numbers). See also 98-ORD-1 (The Drivers' Privacy Protection Act, 18 U.S.C. § 2721 et seq. "prohibits the release and use of certain personal information from state motor vehicle records"); and 97-ORD-178 (a state correctional facility is prohibited from disclosing FBI Rap Sheets pursuant to 28 USC § 534); 05-ORD-128 (finding that pursuant to Ky. Rev. Stat. 61.878(k)(1) and by incorporation of 49 C.F.R. Part 24.9(b) federal regulation prohibits disclosure of information pertaining to financial data regarding the airport expansion program and a subsequent voluntary relocation program operated by the Louisville International Airport.)

    Ky. Rev. Stat. 61.878(1)(l): "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."

    An example of a state law prohibiting disclosure under the Open Records Act is Ky. Rev. Stat. 610.320(3), which mandates confidentiality for law enforcement records regarding juveniles. See 93-ORD-42 (discussing Ky. Rev. Stat. 610.320(3) and the Open Records Act); see also 95-ORD-121 (discussing Ky. Rev. Stat. 197.025, which permits nondisclosure of some jail records); 94-ORD-97 (discussing Ky. Rev. Stat. 365.880, the Uniform Trade Secrets Act).

    Ky. Rev. Stat. 61.878(m): "Public Records the disclosure of which would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating or responding to a terroristic act and limited to:

    1. Critical lists resulting from consequence assessments;
    2. Vulnerability assessments;
    3. Antiterrorism protective measures and plans;
    4. Counterterrorism measures and plans;
    5. Security and response needs assessment;
    6. Infrastructure records that expose vulnerability referred to in this subparagraph through the disclosure of the location, configuration or security of critical systems, including public utility critical systems. These critical systems shall include but not be limited to information technology, communication, electrical, fire suppression, ventilation, water, wastewater, sewage and gas systems."

    Ky. Rev. Stat. 61.878(n): Public or private records, including books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, having historic, literary, artistic, or commemorative value accepted by the archivist of a public university, museum, or government depository from a donor or depositor other than a public agency. This exemption shall apply to the extent that nondisclosure is requested in writing by the donor or depositor of such records, but shall not apply to records the disclosure or publication of which is mandated by another statute or by federal law.”

    Ky. Rev. Stat. 61.878(o): “Records of a procurement process under KRS Chapter 45A or 56. This exemption shall not apply after:

    1. A contract is awarded; or
    2. The procurement process is canceled without award of a contract and there is a determination that the contract will not be resolicited.”

    Ky. Rev. Stat. 61.878(p): “Communications of a purely personal nature unrelated to any governmental function.”

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  • Louisiana

    a. Records in use in an investigation by the legislature. La. Rev. Stat. Ann. § 44:2.

    b. The following records maintained by prosecutors, law enforcement officials, correctional agencies, investigators, communications districts (911 agencies), intelligence agencies, public water districts , and public health investigators. La. Rev. Stat. Ann. § 44:3(A)(l)-(7).

    (1) Records pertaining to pending or reasonably anticipated criminal litigation until such litigation has been finally adjudicated or otherwise settled. La. Rev. Stat. Ann. § 44:3(A)(l). This exception has been construed to prevent disclosure of grand jury records, Revere v. Reed, 675 So. 2d 292 (La. App. 1st Cir. 1996); Hewitt v. Webster, 118 So. 2d 688 (La. App. 2nd Cir. 1960), but see Op. Att'y Gen. 95-137 (addresses of potential and seated grand jurors are public record). The exception also has been used to prohibit disclosure of police and arrest records of the accused during his term in custody, State v. Walker, 344 So. 2d 990 (La. 1977), and police department reports, an analysis of objects found at scene of offense, copies of pictures taken of defendants at lineup, and copies of statements allegedly made by witnesses or prospective witnesses which the state intends to use at trial, State v. Ball, 328 So. 2d 81 (La. 1976). The determination of whether a specific record pertains to "pending criminal litigation" may be tested in court on a case-by-case basis. The act "requires more than a judicial acceptance of an assertion of privilege by a prosecutor; there must be an opportunity for cross examination and presentation of evidence (at an adversary hearing) to contradict the claim of privilege." Cormier v. DiGiulio, 553 So. 2d 806 (La. 1989), citing with approval, Freeman v. Guaranty Broad. Co., 498 So. 2d 218 (La. App. 1st Cir. 1986); accord, Revere v. Layrisson, 593 So. 2d 397, 399 (La. App. 1st Cir. 1991). The Second Circuit Court of Appeal held that the availability of post-conviction relief does not constitute "criminal litigation" that is either "pending" or "reasonably anticipated." Harrison v. Norris, 569 So. 2d 585 (La. App. 2d Cir. 1990), writ denied, 571 So. 2d 657 (La. 1990). In Lemmon v. Connick, 590 So. 2d 574 (La. 1991), the Supreme Court approved Harrison.

    A Court’s determination of whether criminal litigation is “reasonably anticipated” is “guided by objective factors” including “whether criminal litigation may still be initiated given the prescriptive period [statute of limitations] of the offense to be charged; the temporal and procedural posture of each case; whether criminal litigation has been finally adjudicated or otherwise settled; the assertion of the prosecutorial authority as to its intent or lack thereof to initiate criminal litigation; whether the prosecutorial authority has taken objective, positive and verifiable steps to preserve its ability to initiate criminal litigation, including, but not limited to, preserving evidence, maintaining contact with witnesses, and continuing an investigation; the time it would take to appropriately investigate and try an offense; the prosecutor’s inherent authority to determine whom, when and how he will prosecute; the severity of the crime; the availability of witnesses, victims and defendants; the spoilation of evidence; the reasonable likelihood that a missing witness or an absconded defendant might be found; and the reasonable likelihood that additional witnesses might be willing to come forward with the passage of time.”  In re Matter Under Investigation, 15 So.3d 972, 992 (La. 2009).

    This exemption applies only to records held by the specified agencies, not to the Department of Health and Hospitals or the Division of Administration.  McKay v. State, Div. of Admin., 143 So.3d 510 (La.App. 1st Cir. 2014).

    Since Lemmon, the First and Fifth Circuit Courts of Appeal have defined "criminal litigation" as "an adversarial contest begun by formal accusation and waged in judicial proceedings in the name of the State, by the district attorney on the one hand, and against the defendant on the other." Nix v. Daniel, 669 So. 2d 573 (La.  App. 1st Cir.), writ denied, 681 So. 2d 360 (La. 1996), citing Voelker v. Miller, 613 So. 2d 1143 (La. App. 5th Cir. 1993), citing Harrison, 569 So. 2d at 589. Similarly, criminal litigation is "pending" only when the formal accusation is instituted by the district attorney or grand jury, Id., and criminal litigation is "reasonably anticipated" only when the district attorney concludes that "it is probable that an arrest will be made and formal accusation will be instituted." Id. Using these definitions, the 5th Circuit has determined that Federal habeas corpus proceedings are not criminal litigation under the exception, Voelker v. Miller, 613 So. 2d 1143 (La. App. 5th Cir. 1993).

    (2) Records which would identify or which would tend to reveal the identity of a confidential source or information. La. Rev. Stat. Ann. § 44:3(A)(2). But the identity of a confidential informant is not privileged when the state police have publicly identified the person. Freeman v. Guaranty Broad. Corp., 498 So. 2d 218 (La. App. 1st Cir. 1986).  That the police may have marked a document as “confidential” is not sufficient to claim this exemption.  There must be an indication that the source requested that his identity be confidential.  Posner v. Gautreaux, 192 So.3d 120 (La. App. 1st Cir. 2016).

    (3) Records which contain investigative or security procedures or techniques, criminal intelligence information pertaining to terrorist-related activity, or threat or vulnerability assessments collected or obtained in the prevention of terrorist-related activity. La. Rev. Stat. Ann. § 44:3(A)(3). See Op. Att'y Gen. 92-552 (§ 44:3(A)(3) exemption refers to investigative procedures and techniques, not to information furnished to ABC unit in license application).

    (4) Records of the arrest of a person until the arrested party has been adjudged or pleads guilty. Exceptions: initial investigative reports, booking records, summons or citation records and bill of information records are public records, any information that would reveal undercover or intelligence operations, any information that would reveal identity of a victim of a sexual offense. A 1988 amendment to this section specifies that the initial investigative report must set forth a narrative description of the alleged offense, the name and identification of each person charged with or arrested for the alleged offense, the time and date of the alleged offense, the location of the alleged offense, the property involved, the vehicles involved, and the names of investigating officers. La. Rev. Stat. Ann. § 44:3(A)(4). Cormier v. DiGiulio, 553 So. 2d 806 (La. 1989) (initial report of officers "investigating a complaint" not limited to reports on complaints received from the public; covers initial reports on all matters police investigate, even on their own initiative); State v. McEwen, 504 So. 2d 817 (La. 1987) (initial report must include all information obtained by officer in the initial investigation of complaint; selective information cannot be placed in the initial report with the remainder placed in a separate and exempt supplemental report); State v. Shropshire, 471 So. 2d 707 (La. 1985) (labeling initial investigative report an "incident report" does not exempt it from Public Records Act); Hilliard v. Litchfield, 822 So. 2d 743 (La. App. 1st Cir. 2002) (initial report of officers investigating the complaint not a public record); Op. Att'y Gen. 91-390 (public university campus police initial reports covered); Francois v. Capitol City Press, 166 So. 2d 84 (La. App. 3rd Cir. 1964) (police log books used to record all activities and events within the jurisdiction, including records of arrests and investigations, are public records). The initial report must be released regardless whether subsequent charges are filed. Op. Att'y Gen. 94-134.

    Information that would be exempt, however, under another specific provision of section 3 (e.g., names of confidential informants or undercover officers) or that would reveal ongoing undercover or intelligence operations or the identity of the victim of a sexual offense need not be disclosed. La. Rev. Stat. Ann. 44:3(A)(4)(c), (d); State v. Campbell, 566 So. 2d 1038 (La. App. 3rd Cir. 1990) (en banc). Note: Section 9 of the Act, La. Rev. Stat. Ann. § 44:9, provides for the expungement, and in some cases destruction, of records of both misdemeanor and felony arrests if the defendant was acquitted, the charges dismissed or nol prossed, or prosecution not instituted within the applicable time limitation.

    (5) Records which contain the identity of undercover police officers. La. Rev. Stat. Ann. § 44:3(A)(5).

    (6) Records which concern status offenders as defined in the Code of Juvenile Procedure. La. Rev. Stat. Ann. § 44:3(A)(6).

    (7) Records collected and maintained by the Louisiana Bureau of Criminal Identification and Information. This exception does not apply to the central registry of sex offenders maintained by the bureau. La. Rev. Stat. Ann. § 44:3(A)(7).

    (8) Police body-camera audio or video that is found by the custodian of the records “to violate an individual’s reasonable expectation of privacy.”  La. Rev. Stat. Ann. § 44:3(A)(8).

    c. Tax returns, except for the name and address of a person who obtains an occupational license, the information on the face of the license, and the name of the person to whom the license is issued. La. Rev. Stat. Ann. § 44:4(l); Op. Att'y. Gen. 00-165 (tax returns of public employees or information taken from them are exempt). See also Op. Att'y Gen. 96-532 (Dept. of Revenue and Taxation is not prohibited from disclosing names of individuals who have not filed tax returns when requested).

    d. Records of persons receiving entitlement payments (old age, blind or dependent children payments). La. Rev. Stat. Ann. § 44:4(2).

    e. Records which pertain to a private person or firm which are in their nature confidential "in the custody or control of any officer . . . whose duties . . . are to investigate, examine, manage . . . or liquidate the business of any private person. . . ." La. Rev. Stat. Ann. § 44:4(3). Several opinions of the Attorney General conclude that this exemption includes proprietary and financial information of private persons and companies if confidential in nature, Op. Att'y Gen. 00-36; Op. Att'y Gen. 92-698, Op. Att'y Gen. 89-550, Op. Att'y Gen. 89-598, Op. Att'y Gen. 83-493, and 82-860; and of nonprofit organizations, Op. Att'y Gen. 87-320. Information which would tend to disclose the income of a private individual is also exempt from disclosure. Op. Att'y Gen. 87-355. Thus, the identities of tenants deemed eligible for low income housing also is exempt. Op. Atty'y Gen. 97-77. This exemption is said to be grounded in the Louisiana constitutional protection against invasions of privacy. La. Const. Article 1, Section 5. But see Op. Att'y Gen. 98-26 (names and salaries of public employees are not exempt, either under act or constitutional right of privacy), Op. Att'y Gen. 92-367, Op. Att'y Gen. 92-715, Op. Att'y Gen. 85-724, and Op. Att'y Gen. 81-353.

    f. Various records of financial institutions maintained by the Office of Financial Institutions. La. Rev. Stat. Ann. § 44:4(4).

    g. Daily reports and endorsements filed by insurers with the Louisiana Casualty and Surety Rating Commission. La. Rev. Stat. Ann. § 44:4(5).

    h. Records in the custody of the Supervisor of Public Funds and working papers of the internal auditor of a municipality, until the audit is complete. La. Rev. Stat. Ann. § 44:4(6).

    i. Records in the custody of the Louisiana State Board of Medical Examiners which concern a person's fitness to practice medicine or midwifery. La. Rev. Stat. Ann. § 44:4(7).

    j. Records in the custody of the Department of Conservation which concern proven or estimated reserves of petroleum, natural gas or other minerals. This exemption applies only when the record has "been declared, presented or received as confidential at the request of the lawful owner thereof. . . ." La. Rev. Stat. Ann. § 44:4(8).

    k. Records in the custody of the Louisiana State Board of Nursing, Louisiana State Board of Dentistry, Louisiana Board of Veterinary Medicine, Louisiana State Board of Social Work Examiners, Louisiana State Board of Examiners of Psychologists, Louisiana State Board of Practical Nurse Examiners, Louisiana Board of Pharmacy, Louisiana State Board of Optometry Examiners, Louisiana Licensed Professional Counselors Board of Examiners, State Licensing Board for Contractors, and Board of Examiners of Certified Shorthand Reporters relating to a person's fitness to hold a license to practice nursing, dentistry, veterinary medicine, social work, psychology, practical nursing, pharmacy, optometry, counseling, contracting, or court reporting, excluding any action taken by those Boards, and any legal grounds upon which such action is based, relative to an individual's fitness to receive or to continue to hold a license. La. Rev. Stat. Ann. § 4:4(9), (11), (12) (26), (29), (32), (35), (39), (46), (51), and (53).

    l. Records in the control or custody of the Governor and which are used in the discharge of his duties. La. Rev. Stat. Ann. § 44:5.

    m. Hospital records of individual patients and the records and proceedings of hospital committees. La. Rev. Stat. Ann. § 44:7. Op. Att'y Gen. 92-600. Generally, however, documentation submitted by a health care provider is subject to disclosure. Op. Att'y Gen. 92-367.

    n. Records received by the Department of Natural Resources where nondisclosure is required by federal law. La. Rev. Stat. Ann. § 44:4(10).

    o. Computer programs or financial or proprietary information used with any automated broker interface system or an automated manifest system conducted by any port commission. La. Rev. Stat. Ann. § 44:4(13).

    p. Records in the custody of the Department of Health and Human Resources containing trade secrets submitted by the manufacturer of a product. La. Rev. Stat. Ann. § 44:4(14).

    q. Home address and telephone numbers of public employees when the employee requests that they be confidential (La. Rev. Stat. Ann. § 44:11; Op. Att'y Gen. 00-165 and 95-243), and medical and insurance records of public employees (La. Rev. Stat. Ann. § 44:12). Employee performance evaluations are exempt. Op. Att'y Gen. 85-724; Trahan v. Larrivee, 365 So. 2d 294 (La. App. 3rd Cir. 1978), writ denied, 366 So. 2d 564 (La. 1979). But see Op. Att'y Gen. 98-26, Op. Att'y Gen. 92-367, Op. Att'y Gen. 92-715, Op. Att'y Gen. 81-353, and Op. Att'y Gen. 85-724 (names and salaries of public employees are not exempt, either under act or constitutional right of privacy). Information concerning marital status and organizational memberships of public appointees is exempt, but education and employment histories are not exempt. Op. Att'y Gen. 83-648. Transcripts, medical records, letters of recommendation and other "personally identifiable documents" of personnel are exempt. Op. Att'y Gen. 79-242.

    r. Personally identifiable student records are exempt (e.g., grades, test scores, birth dates), but statistics and reports that do not identify an individual are public records. Op. Att'y Gen. 76-186; LaPlante v. Steward, 470 So. 2d 1018 (La. App. 1st Cir.), writ denied, 476 So. 2d 352 (La. 1985). But see La. Rev. Stat. Ann. § 17:391.4(E) (pupil assessment test scores of individual students, classes, schools and school systems are exempt from the Public Records Act but may be released by school boards if they do not identify individual students, classes, and teachers).

    s. Working papers and interim reports developed in conjunction with a strategic plan prepared by private consulting firms and possessed by the Board of Commissioners of the Port of New Orleans that contain sensitive commercial data, the disclosure of which would diminish the competitive advantage of the Port of New Orleans, are not public records. Information that is confidential and proprietary in nature may be excised from the public records. Op. Att'y Gen. 86-669.

    t. Upon the request of the owner, certain electronic logs and other electronic surveys produced from wells drilled in search of oil and gas which are filed with the assistant secretary of the Office of Conservation. La. Rev. Stat. Ann. § 44.1(B)

    u. All documents filed with, and evidence and proceedings before the judicial commission. La. Rev. Stat. Ann. § 44:10.

    v. Records of any library indicating which of its materials have been loaned to or used by an identifiable individual or group of individuals and records of any library which are maintained for purposes of registration or for determining eligibility for the use of library services. La. Rev. Stat. Ann. § 44:13. Op. Att'y Gen. 98-496 (records concerning complaints about Internet usage, specifically about patrons accessing pornographic or sexually explicit material, are public records but the identity of the user of the material must be redacted from the record before release).

    w. Identifiable information on their insureds provided by law to the state Department of Health and Hospitals by those issuing health insurance. La. Rev. Stat. Ann. § 44:14.

    x. Claim files relating to pending claims in the custody of the Office of Risk Management, Division of Administration, or similar records of a municipality or parish. La. Rev. Stat. Ann. § 44:4(15). See Op. Att'y Gen. 91-98, which expresses the opinion that section 44:4(15) must be construed in pari materia with a wide range of other laws, including the work product privilege and the purported privacy rights of health care providers, and suggests that closed medical malpractice claim files are subject to item-by-item review and non-disclosure.

    y. Records of boards and institutions of higher learning involving trade secrets and commercial or financial information obtained from a person and "pertaining to research or to the commercialization of technology"; proposals and commercial or technical research by faculty "of a patentable or licensable nature"; private document collections designated by their donors as having restricted access for a specific period of time. La. Rev. Stat. Ann. § 44:4(16). One Attorney General's opinion expresses the surprising conclusion that "any information which pertains to research is deemed to be 'commercial' under section 4(16)(a) and thus is exempt until published." Op. Att'y Gen. 92-94 would extend a blanket exemption to any information obtained by a public university research center collecting "demographic information" and doing "political polling."

    z. Records required of hospitals by the Department of Health and Hospitals as a condition of licensure. La. Rev. Stat. Ann. § 44:4(17).

    aa. Records of Board of Chiropractic Examiners concerning fitness of licensees. La. Rev. Stat. Ann. § 44:4(18).

    bb. Records of Office of Public Health gathered or prepared in connection with studies and investigations to determine any "cause or condition of health." Statistics relating to morbidity and mortality may be released if they do not identify individual cases and sources of information or religious affiliations. La. Rev. Stat. Ann. § 44:4(19).

    cc. Records of Department of Wildlife and Fisheries on "rare, threatened, or endangered species or unique natural communities" and on shipments of alligators or alligator skins La. Rev. Stat. Ann. § 44:4(20), (45).

    dd. Questionnaire information concerning the timber industry received by the Department of Agriculture and Forestry. Compiled results, however, are public records. La. Rev. Stat. Ann. § 44:4(21).

    ee. Medical and vital records relating to maternal and infant mortality studies of the Commission on Perinatal Care and Prevention of Infant Mortality of the Department of Health and Hospitals. La. Rev. Stat. Ann. § 44:4(22); § 40:2018(I).

    ff. Name and address of a law enforcement officer in the custody of the registrar of voters or the commissioner of elections, if the law enforcement officer's employer agency certifies that the officer is engaging in "hazardous activities" that make it necessary for his or her name and address to be kept confidential. La. Rev. Stat. Ann. § 44:4(23).

    gg. Motor vehicle accident reports required to be submitted to the State by the driver of vehicles involved in an accident involving death, injury or more than $100 property damage. Reports are available, however, to parties to accident, insurers, attorneys, and "news-gathering organizations." La. Rev. Stat. Ann. § 44:4(24); 32:398(H). This exception was challenged on First Amendment and equal protection grounds, but was held to be constitutional. DeSalvo v. Louisiana, 624 So. 2d 897 (La. 1993), cert. denied, 510 U.S. 1117 (1994).

    hh. Records of the retired members of the state and municipal employees retirement systems except for the amount of the retired member's retirement allowance, final average compensation, years of creditable service, and the names of the agencies with which he was employed and dates employed. La. Rev. Stat. Ann. § 44:16. This information may be requested by a member of the legislature or an individual reporting to the public retirement system or group receiving benefits from the retirement system. La. Rev. Stat. Ann. 44:16(B); Op. Att'y Gen. 95-243A.

    ii. Information and records pertaining to the immunization status of persons against childhood diseases, unless the information is disclosed only for the purpose of administering or receiving vaccinations, and the information is released to one of the following individuals: (1) state health care provider; (2) private health care provider; (3) representative of a patient; or (4) a patient who is not a minor. La. Rev. Stat. Ann. § 44:17(B)-(C).

    jj. Certificates of official driving records in the custody and control of the Department of Public Safety and Corrections, office of motor vehicles, except as provided in R.S. 15:521. La. Rev. Stat. Ann. § 44:3(G).

    kk. Records of the Louisiana State Child Death Review Panel. La. Rev. Stat. Ann. § 44:4(25).

    ll. Testing instruments used by the state Department of Education or the State Board of Elementary and Secondary Education. La. Rev. Stat. Ann. § 44:4(27).

    mm. The name of any person applying for or receiving funds from the Crime Victims Reparations Fund. “In lieu of the person's name, the person's file number shall be used." La. Rev. Stat. Ann. § 44:4(28).

    nn. Proprietary information provided to a communications district by a service supplier. La. Rev. Stat. Ann. § 44:4(31), 33:9106.

    oo. Names, addresses, and telephone numbers of students in public elementary or secondary schools. La. Rev. Stat. Ann. § 44:4(33).

    pp. Social security numbers of teachers and other school employees. La. Rev. Stat. Ann. § 44:4(34).

    qq. Terms and conditions of rebates concerning prescription drug pricing, in the custody of the Louisiana Department of Health. La. Rev. Stat. Ann. § 44:4(36).

    rr. Protected health information as defined in the Louisiana Health Emergency Powers Act. La. Rev. Stat. Ann. § 44:4(37), 29:762.

    ss. Records in the custody of the Office of Conservation pertaining to pipeline security procedures. La. Rev. Stat. Ann. § 44:4(38).

    tt. Information pertaining to security systems contained in building permit files. La. Rev. Stat. Ann. § 44:4(40).

    uu. Card numbers, expiration dates, and PIN numbers for credit cards issued to public bodies. La. Rev. Stat. Ann. § 44:4(41).

    vv. Questions and answers on the notarial exam. La. Rev. Stat. Ann. § 44:4(42).

    ww. Information on applications by persons under 18 years of age for membership on the Louisiana Legislative Youth Advisory Council. La. Rev. Stat. Ann. § 44:4(43).

    xx. Louisiana Cemetery Board records pertaining to investigations. La. Rev. Stat. Ann. § 44:4(44).

    yy. Court reporter’s records. La. Rev. Stat. Ann. § 44:4(47).

    zz. Tax information in the possession of the Board of Tax Appeals. La. Rev. Stat. Ann. § 44:4(48).

    aaa. Jury questionnaires. La. Rev. Stat. Ann. § 44:4(49).

    bbb. Security surveillance video of the state capitol area and grounds. La. Rev. Stat. Ann. § 44:4(50).

    ccc. Questions and answers on contractors licensing exams. La. Rev. Stat. Ann. § 44:4(52).

    ddd. Personal information of peace officers in the custody of the Council on Peace Officer Standards and Training or the Louisiana Commission on Law Enforcement and Administration of Criminal Justice. La. Rev. Stat. Ann. § 44:4(54).

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  • Maine

    The following categories of records or information are not public records under the FOAA:

    1. Records Designated Confidential by Statute. The most troublesome general exemption contained in the FOAA is an exemption for records otherwise designated confidential by statute. 1 M.R.S.A. § 402(3)(A). There are many exemptions scattered throughout Maine statutes. Each one must be consulted individually. A useful searchable database of exemptions not listed within the FOAA itself can be found on the Maine Legislature’s website, here.
    2. Privileged Records. Records "that would be within the scope of a privilege against discovery or use as evidence recognized by the courts of this State in civil or criminal trials if the records or inspection thereof were sought in the course of a court proceeding" are exempt from disclosure. 1 M.R.S.A. § 402(3)(B). The general purpose of this exemption is to achieve consistency between rules that would be applied to government agencies and officials in a lawsuit and the FOAA. An unpublished opinion of the Attorney General's Office advised the Bureau of Consumer Protection that it need not allow inspection of records containing the names of persons who had filed complaints, relying on the state's privilege to withhold names of informers. See M.R.Evid. 508. The Maine Supreme Court subsequently discussed the exemption in Moffett v. City of Portland, 400 A.2d 340 (Me. 1979), which held that the transcripts of statements made by police officers during an internal police disciplinary investigation were protected by the Fifth Amendment privilege of the officers and therefore need not be made available for inspection by the press. On at least one occasion a municipality joined with a taxpayer in an action requesting a declaratory judgment that business records submitted in support of a property tax abatement were trade secrets and therefore privileged. The attorney-client privilege applicable to governments and government agencies only applies to communications concerning a pending investigation, claim or action and then only if disclosure would seriously impair the government's ability to conduct that investigation or proceeding in the public interest. M.R.Evid. 502(d)(6); Morrell v. Bd. of Selectmen, Town of Wiscasset, Docket No. CV-01-001, (Lincoln Superior Ct., Feb. 27, 2001). The court has held that records within the work product “privilege” are not subject to public disclosure.  Dubois v. Dept. of Envtl. Prot., 2017 ME 224 ¶¶ 16-17, 174 A.3d 314, 318–19 (Me. 2017).
    3. Legislative Papers and Reports. The open records statute contains an exemption for legislative papers and reports until they are signed and publicly distributed and records, working papers, drafts and inter-office and intra-office memoranda used or maintained by any legislator or legislative employee to prepare proposed legislative papers or reports. 1 M.R.S.A. § 402(3)(C).
    4. Labor Negotiations. Materials prepared "specifically and exclusively" for negotiations by a "public employer in collective bargaining with its employees and their designated representatives" are exempt from disclosure. 1 M.R.S.A. § 402(3)(D). The concern originally prompting this exemption arose out of collective bargaining negotiations between a public employer and its employees. The purpose was to allow the public employer to develop a bargaining strategy that would not be known by its employees in advance. Despite the plain language of the exemption, a few local governments have assumed that it may be used in other negotiations.
    5. University of Maine Faculty and Administrative Committee Records. An exemption protects "records, working papers, inter-office and intra-office memoranda used by or prepared for faculty and administrative committees of the Maine Maritime Academy and the University of Maine." 1 M.R.S.A. § 402(3)(E). The chief purpose of the exemption was to protect such records as academic examinations and tests from premature disclosure.
    6. Exemption Not Lost by Transfer to Other Governmental Entity. An exemption applies to records in the possession of local governments or intra-state organizations that would be declared confidential if they were in the possession of an agency or official of the state or a political or administrative subdivision thereof. 1 M.R.S.A. § 402(3)(F).
    7. Insurance Records. An exemption protects "materials related to the development of positions on legislation or materials that are related to insurance or insurance like protection or services which are in the possession of an association" whose membership is composed exclusively of political or administrative subdivisions of the state or of other organizations of any such subdivision. 1 M.R.S.A. § 402(3)(G).
    8. Medical Records and Reports of Municipal EMS. An exemption protects from disclosure medical records and reports of municipal ambulance, rescue and emergency medical service units. 1 M.R.S.A. § 402(3)(H).
    9. Juvenile Records. Juvenile records and reports of municipal fire departments regarding the investigation and family background of a juvenile fire setter are confidential. 1 M.R.S.A. § 402(3)(I).
    10. Gubernatorial Advisory Organizations. Working papers, including records, drafts and inter-office and intra-office memoranda, used or maintained by certain advisory boards and commissions established, authorized or organized by law or resolve or by Executive Order issued by the Governor or by any staff or members of the board or commission are confidential, unless such working paper is distributed by a member or in a public meeting. 1 M.R.S.A. § 402(3)(J).
    11. Municipal Recreation Records Concerning Minors. Personally identifying information concerning minors participating in municipal recreation and non-mandatory educational programs are confidential if the municipality enacts an ordinance specifying the circumstances in which the records will be withheld from disclosure. 1 M.R.S.A. § 402(3)(K).
    12. Security Records. An exemption protects records describing security plans, security procedures or risk assessments prepared specifically for the purpose of preventing or preparing for acts of terrorism, but only to the extent that release of information contained in the record could reasonably be expected to jeopardize the physical safety of government personnel or the public. 1 M.R.S.A. § 402(3)(L). For purposes of this paragraph, "terrorism" means conduct that is designed to cause serious bodily injury or substantial risk of bodily injury to multiple persons, substantial damage to multiple structures whether occupied or unoccupied or substantial physical damage sufficient to disrupt the normal functioning of a critical infrastructure. Id.
    13. Information Technology Infrastructure and Systems. An exemption protects records or information describing the architecture, design, access authentication, encryption or security of information technology infrastructure, systems, and software. 1 M.R.S.A. § 402(3)(M).
    14. Social Security Numbers. Social security numbers are confidential. 1 M.R.S.A. § 402(3)(N).
    15. Personal Contact Information Concerning Public Employees.  Home address, home telephone number, home facsimile number, home e-mail address and personal cellular telephone number and personal pager number information for public employees is exempt, unless that information is made public by other law.  1 M.R.S.A. § 402(3)(O). This exemption does not apply to elected officials.
    16. Geographic Information on Trails on Private Land.  Geographic information regarding recreational trails that are located on private land that are authorized voluntarily as such by the landowner with no public deed or guaranteed right of public access, unless the landowner authorizes the release of the information. 1 M.R.S.A. § 402(3)(P).
    17. Department of Corrections Security.  Security plans, staffing plans, security procedures, architectural drawings or risk assessments prepared for emergency events that are prepared for or by or kept in the custody of the Department of Corrections or a county jail if there is a reasonable possibility that public release or inspection of the records would endanger the life or physical safety of any individual or disclose security plans and procedures not generally known by the general public. Information contained in records covered by this paragraph may be disclosed to state and county officials if necessary to carry out the duties of the officials, the Department of Corrections or members of the State Board of Corrections under conditions that protect the information from further disclosure. 1 M.R.S.A. § 402(3)(Q).
    18. [intentionally omitted]
    19. Certain E-mail Mailing Lists. E-mail addresses obtained by a political subdivision of the State for the sole purpose of disseminating noninteractive notifications, updates and cancellations that are issued from the political subdivision or its elected officers to an individual or individuals that request or regularly accept these noninteractive communications. 1 M.R.S.A. § 402(3)(S).
    20. Certain Department of Marine Resources Trade Secrets. Records describing research for the development of processing techniques for fisheries, aquaculture and seafood processing or the design and operation of a depuration plant in the possession of the Department of Marine Resources. 1 M.R.S.A. § 402(3)(T).
    21. Railroad Hazardous Waste Records. Records provided by railroad companies describing certain information about hazardous materials transported by railroad. 1 M.R.S.A. § 402(3)(U).
    22. Community Well-Being Check Program Information.  The Act protects from disclosure participant application materials and other personal information obtained or maintained by a municipality or other public entity in administering a community well-being check program, except that a participant's personal information, including health information, may be made available to first responders only as necessary to implement the program. A “community well-being check program” means a voluntary program that involves daily, or regular, contact with a participant and, when contact cannot be established, sends first responders to the participant's residence to check on the participant's well-being. 1 M.R.S.A. § 402(3)(V).
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  • Maryland

    (1). Mandatory exemption of specific records — § 4-304 et seq.

    Adoption records — Public records that relate to the adoption of an individual are exempt from disclosure. § 4-305. PIA Manual, at 3-8 (citing 89 Opinions of the Attorney General 31, 43 & n.7 (2004)).

    Welfare records — Public records that relate to welfare for an individual are exempt from disclosure. § 4-307; see also 71 Opp. Att'y Gen. 368 (1986) (under certain circumstances, information regarding child abuse cases handled by the Department of Social Services may be disclosed). PIA Manual, at 3-8 (citing 89 Opinions of the Attorney General 31, 43 & n.7 (2004)).

    Personnel records — A custodian shall deny inspection of a personnel record of an individual, including an application, a performance rating, or scholastic achievement information. § 4-311(a). Inspection by the person in interest or the elected or appointed official who supervises the work of the individual is permitted. § 4-311(b).

    Letters of reference — All solicited or unsolicited letters concerning a person's fitness for public office or employment are exempt from disclosure. § 4-310; 68 Op. Att'y Gen. 335 (1983).

    Circulation records — A custodian shall prohibit inspection, use, or disclosure of a circulation record of a public library or other item, collection, or grouping of information about an individual that is maintained by a library and that contains an individual's name or the identifying number, symbol, or other identifying particular assigned to the individual, and identifies the use a patron makes of that library's materials, services or facilities. § 4-308.

    Gifts — Records concerning material given to a library, archive or museum are exempt, if the person making the gift limits disclosure as a condition of the gift. § 4-309.

    Retirement records — Individual retirement records are generally exempt from disclosure. § 4-312. This exemption does not apply if the records are requested by: (a) the person in interest; (b) the appointing authority of the individual; (c) a beneficiary, personal representative, or other person who has a valid claim to the individual's benefits after the individual has died; or (d) any law enforcement agency for the purpose of obtaining the home address of a retired employee, provided the contact is documented as necessary for official agency business. See § 4-312(b). The exemption also does not apply to county employees obtaining such records for audit purposes. §4-312(b)(1)(v). However, those employees are prohibited from disclosing information that would reveal the identity of a person in interest. §4-312(b)(2). On request, a custodian of records shall state whether an individual receives a retirement or pension allowance. § 4-312(d).

    Student records — A custodian shall deny inspection of a school district record about the home address, home telephone number, biography, family, physiology, religion, academic achievement, or physical or mental ability of a student. § 4-313(a). Inspection by the person in interest or an elected or appointed official who supervises the student is permitted. § 4-313(b).

    Hospital records — A hospital record that relates to medical administration, staff, medical care, or other medical information and contains information about one or more individuals is exempt from disclosure. § 4-306. The Legislative Auditor may have access to the records of the Department of Health and Mental Hygiene for the performance of his/her duties. 63 Op. Att'y Gen. 453 (1978).

    Risk Based Capital Reports or Plans — Subject to Section 4-310 of Maryland Code Ann., Insurance Article, all RBC reports, RBC plans, and all records that relate to those reports or plans are exempt from disclosure. § 4-323.

    Maryland Transportation Authority ("MTA") records — Photographs, videotapes or electronically recorded images of vehicles, vehicle movement records, personal financial information, credit reports or other personal or financial data created, recorded, obtained by or submitted to the MTA in connection with any electronic toll collection system are exempt from disclosure. § 4-319(a). However, the individual named in the record, the individual's attorney of record, MTA employees or agents who are investigating or proceeding against an individual for failure to pay a toll, employees or agents of third parties that have entered into agreements with the MTA to use the toll collection system for non-toll applications in the collection of revenues due to the third party, and employees or agents of an entity in another state operating or having jurisdiction over a toll facility may obtain the records. § 4-319 (b).

    Higher education investment contracts — Records disclosing the name of an account holder or qualified beneficiary of a higher education contract under Title 18, Subtitles 19 and 19A of the Annotated Code of Maryland Education Article are generally exempt from disclosure. § 4-314(a). Such records must be made available for inspection by persons in interest and may be released to eligible institutions of higher education designated by an account holder or qualified beneficiary under Subtitles 19 or 19A. § 4-314.

    Traffic-related reports — Inspection of police reports of traffic accidents, criminal charging documents before service on the defendant, and traffic citations filed in the Automated Traffic System by persons who request records for the purpose of soliciting or marketing legal services, such as an attorney who is not an attorney of record or a person employed or retained by, associated with, or acting on the behalf of such an attorney is prohibited. § 4-315.

    Arrest warrants and charging documents — Arrest warrants and charging documents cannot be made available for inspection until the arrest warrant has been served and the return of service has been filed or 90 days have elapsed since issuance of the warrant. § 4-316(a). Court files and records pertaining to an arrest warrant or charging document associated with a grand jury indictment or conspiracy investigation cannot be made available for inspection until after all arrest warrants for co-conspirators have been served and all returns of service have been filed. § 4-316(b).  Information in arrest warrants, including the name, address, birth date, driver’s license number, sex, height, and weight, may be released to the MVA in accordance with certain provisions of the Transportation Article. § 4-316(d). These provisions do not preclude release of statistical information concerning unserved warrants or of information concerning an unserved arrest warrant and the associated charging document; inspection of court files and records regarding an unserved arrest warrant and associated charging document by a judicial officer, authorized court personnel, a State's Attorney, a peace officer, a correctional officer authorized to serve the warrant, a bail bondsman or other surety who executed a bond for the individual subject to arrest under the warrant, an attorney authorized by the individual subject to arrest, the Department of Juvenile Services, or a criminal justice agency; or release of information to notify a victim. § 4-316(e).

    Recorded images from traffic control signal monitoring systems — Images are exempt from disclosure, except as required in §§ 21-202.1, 21-809, 21-810, or 24-111.3 of the Transportation Article of the Maryland Code Annotated, to any person issued a citation under such provisions or the attorney or record for that person, or to any employee or agent of an agency in an investigation or a proceeding related to the imposition of or indemnification from civil liability under those same provisions. § 4-321.

    Surveillance images — A custodian shall deny inspection of surveillance images, as that term is defined in the Criminal Law Article of the Maryland Code at Section 10-112. § 4-322(b). Inspection by the person issued a citation or that person’s attorney, an employee or agent of the Baltimore City Department of Public Words in an investigation relating to civil liability under Section 10-112 of the Criminal Law Article, or as required under that same section is permitted. § 4-322(c).

    MVA records containing personal information — Records may not be knowingly disclosed, except with the person's written consent, or for use by a federal, state, or local government, or for specifically delineated uses. § 4-320(f)(1)-(2). Licensed private detective agencies may obtain information pursuant to § 4-320(f)(3). The custodian is required to disclose personal information, inter alia, for use in connection with a civil, administrative or criminal proceeding; in connection with the execution or enforcement of judgment or orders; for the purposes of research or statistical reporting; for use by an insurer in connection with rating, underwriting, investigating and antifraud activities; for use in the normal course of business by a legitimate business entity to verify accuracy of personal information submitted by the person to the entity; and if the information submitted is inaccurate to obtain correct information. § 4-320(f).

    The Attorney General has opined that "a driver whose fitness to drive is under review because of the driver's health condition is generally entitled to inspect the MVA's records pertaining to that review" under Section 16-118(d) of the Transportation Article of the Maryland Code. 82 Op. Att'y Gen. 49, 51, (1997). Because the driver is a person in interest and entitled to a hearing on the issue, the driver may also inspect the MVA Medical Advisory Board's files about that individual. Id.; contra Md. Code Ann., Transp. § 16-118(d)(1)(i) (declaring Medical Advisory Board records confidential without exception). The driver may not inspect the letter that initiated the MVA's review if the letter would reveal the identity of a confidential source. 82 Op. Att'y Gen 49, 51 (1997); see also § 4-351(b)(4).

    Maryland Transit Administration records — Records of persons created, generated, obtained by, or submitted to the Maryland Transit Administration, its agents, or employees in connection with the use or purchase of electronic fare media provided by the Maryland Transit Administration, its agents, employees or contractors, shall not be disclosed. However, these records may be disclosed to an individual named in the record or the attorney of record of an individual named in the record. § 4-318.

    Department of Natural Resources' records containing personal information — Public records of the Department of Natural Resources containing personal information may not be disclosed. However, the personal information may be disclosed for use in the normal course of business activity by a financial institution as defined in § 1-101(i) of the Financial Institutions Article, but only to verify the accuracy of personal information submitted by the individual to that financial institution, and to correct inaccurate information for the purpose of preventing fraud by the individual, pursuing legal remedies against the individual, or recovering a debt or security interest against the individual. § 4-317.

    Applications for Renewal Energy Credit Certification or a Claim for Renewable Energy Credits - An application for renewable energy credit certification or a claim for renewable energy credits under Title 10, Subtitle 15 of the Agricultural Article shall not be disclosed. § 4-324.

    Firearm and handgun records — A custodian shall deny inspection of records of a person authorized to sell, purchase, rent or transfer regulated firearms or to carry, wear, or transport a handgun. § 4-325(a). Inspection by the individual named in the record or that individual’s attorney is permitted. § 4-325(b). The Departments of State Police and Public Safety and Correctional Services are also permitted to access firearm or gun records in the performance of official duties. § 4-325(c).

    License plate data — A custodian shall deny inspection of captured plate data collected by an automatic license plate reader system. § 4-326(b). Use or sharing of captured data in the course of the custodian’s official duties is permitted. § 4-326(c). This section does not apply to an electronic toll collection system or associated transaction system operated by the MTA. § 4-326(d).

    Shielded records — A custodian shall deny inspection of criminal and police records relating to the conviction of a crime that have been shielded under Title 10, Subtitle 3 of the Criminal Procedure Article of the Maryland Code. § 4-327(a). Only persons authorized to access such records under Section 10-302(b) of the Criminal Law Article of the Maryland Code are permitted to do so. § 4-327(b).

    (2) Mandatory exemption of specific information — § 4-328 et seq.

    Medical and psychological information — The custodian shall deny inspection of the part of the public record that contains medical or psychological information about an individual. § 4-329. For example, medical information such as the symptoms of an ill or injured individual recorded during a 911 call may not be released. PIA Manual, at 3-17 (citing to 90 Opinions of the Attorney General 45 (2005)). This exemption applies only to the part of a public record that contains information about an identified individual. § 4-329(b). This exemption does not apply to autopsy reports of a medical examiner. Id.; 63 Op. Att'y Gen. 659 (1978).

    The person in interest may have access to such records to the extent permitted by Md. Code Ann., Health-Gen. § 4-304(a). A request by a person in interest may not be denied, however, by an agency merely because the person seeks the identity of the source of infection, or because the information sought was gathered in the course of an agency's investigation of an outbreak or an infectious disease. See Haigley v. Department of Health and Mental Hygiene, 128 Md. App. 194, 228, 736 A.2d 1185, 1202-03 (1999). See also 71 Op. Att'y Gen. 297 (1986) (tape recording of involuntary admission hearing may be disclosed to patient or authorized representative). With the consent of the individual or person in interest, non-profit health service plans and insurance companies may release personal medical record information to employers who sponsor and maintain group health plans. 63 Op. Att'y Gen. 432 (1978). With respect to non-profit health services plans, consent would not be necessary if the information was released without identifying the subscriber. Id.

    A State's Attorney may obtain medical records for purposes of a criminal case if he first establishes written confidentiality procedures, determines whether compulsory process is required, identifies whether the records are covered by general or specific confidentiality categories; ascertains applicable restrictions; and decides on the appropriate type of compulsory process, depending on whether the prosecutor is conducting investigations or prosecuting cases that have been charged. 94 Op. Att'y Gen. 44 (2009).

    Commercial information — This exemption applies to trade secrets and confidential commercial, financial, geological or geophysical information obtained from or provided by a person or governmental unit. § 4-335. This exemption does not cover commercial or financial information generated by the agency itself; however, such information may be covered by other law. See Stromberg Metal Works Inc., v. University of Maryland, 382 Md. 151, 167-70, 854 A.2d 1220 (2004),  Federal Open Market Comm. v. Merrill, 443 U.S. 340 (1979) (interpreting Exemption 5 of FOIA to include a qualified privilege permitting the non-disclosure of confidential commercial information generated by the government in the process leading up to the award of a contract). Federal cases and the legislative history of the comparable FOIA exemptions regarding commercial information provide persuasive authority in interpreting § 4-335. 63 Op. Att'y Gen. 355 (1978).

    The Attorney General has adopted an objective test requiring an inquiry into whether such data is customarily considered confidential in the business and whether withholding access would serve a governmental or private purpose sufficiently compelling to overcome the state's liberal disclosure policy. 63 Op. Att'y Gen. 355, 362 (1978). In a later opinion, the Attorney General more clearly delineated the test for determining the confidential nature of commercial or financial information. See 69 Op. Att'y Gen. 231, 234 (1984). The test requires a showing that disclosure of the requested information would: (1) impair the government's future access to such information; or (2) cause substantial harm to the competitive position of the person submitting the information. Id. at 234-35.

    In addition, the PIA Manual points out that commercial or financial information voluntarily provided to the government should be considered confidential "if it is of the kind that the provider would not customarily release to the public." PIA Manual, at 3-23. The Attorney General's Office recommends that under such circumstances, the submitter should be consulted before the material is disclosed. Id.

    Coverage and premium calculations of the Maryland Automobile Insurance Fund's insureds have been held to be confidential commercial and financial data. Progressive Casualty v. MAIF, No. 83/E1074, Baltimore County Cir. Ct. (Feb. 15, 1986).

    The Maryland Attorney General has defined a trade secret as:

    [a]n unpatented secret formula or process known only to certain individuals using it in compounding some article of trade having commercial value. Secrecy is the essential element. Thus, [a] trade secret is something known to only one or a few, kept from the general public, and not susceptible of general knowledge. If the principles incorporated in a device are known to the industry, there is no trade secret which can be disclosed.

    63 Op. Att'y Gen., at 359 (footnotes and citations omitted).

    Public employees — Home addresses and telephone numbers of public employees are exempt from disclosure, unless the employee permits the disclosure or the public employer determines that disclosure is necessary to protect the public interest. § 4-331. However, public employee organizations may have access to such information under certain conditions. See Md. Code Ann., State Pers. § 21-504. Public employee's salaries, however, are not exempt from disclosure § 4-101(j)(2); see also § 4-336(a). The Maryland Attorney General has construed the term "salary" to include records reflecting individual bonuses or performance awards paid to merit system employees and appointed officials. 83 Op. Atty. Gen. 163, 164 (1998).

    Financial information — This exemption applies to information about an individual, including assets, income, liabilities, net worth, bank balances, financial history or activities, or creditworthiness. § 4-336(b). University System of Maryland, et al. v. The Baltimore Sun Company, 381 Md. 79, 105 847 A.2d 427, 442 (2004). This exemption does not apply to the person in interest; nor does it apply to the salary of a public employee. § 4-336(a).

    A hodgepodge of opinions authored by the Maryland Court of Appeals and the Attorney General shed light upon information subject to this exemption. In Kirwan v. The Diamondback, 352 Md. 74, 721 A.2d 196 (1998), the Maryland Court of Appeals rejected the University of Maryland's argument that records of traffic citations received by its head basketball coach were financial records under the Act. 352 Md. at 85, 721 A.2d at 201. In so doing, the court noted that a parking ticket is a citation charging a misdemeanor; it is not a record of indebtedness or liability. Accordingly, because the documents did not fall within the categories of documents identified as financial records within the statute, it was not exempt under the PIA. Id. The Attorney General has construed the term "salary" to include records reflecting individual bonuses or performance awards paid to merit system employees and appointed officials. 83 Op. Atty. Gen. 163, 1644 (1998). Contrarily, disclosure statements filed with county ethics commissions are filed pursuant to the financial disclosure sections of county ordinances and, thus, must be maintained as public records available for inspection and copying in their entirety. 71 Op. Att'y Gen. 282 (1986).

    The Attorney General has opined that any record that shows how much money or what type of property people have left unclaimed reveals information about the "assets" of those people. 77 Op. Att'y Gen. 233, 234 (1992). Therefore, any part of a public record that discloses the monetary value or description of property reported to the Unclaimed Property Section as abandoned property must be withheld from public disclosure. Id.

    Information systems — Information concerning the security of an information system is exempt from disclosure. § 4-338. On October 24, 1983, the Governor issued Executive Order 01.01.1983.18, establishing a State Data Security Committee regarding security measures for the protection of state agencies maintaining computerized record systems. COMAR 01.01.1983.18.

    Licensing records — Although a person's occupational or professional licensing records are generally exempt, the exemption does not apply to that part of a public record that gives the licensee's name, business address (or home address in the absence of a business address), business telephone number, educational and occupational background, professional qualifications, any orders and findings resulting from formal disciplinary actions, and any evidence that has been provided to the custodian to meet the requirements of a statute as to financial responsibility. § 4-333(b). Note that a member of the General Assembly may acquire the names and addresses of and statistical information about individuals who are licensed or, as required by a State law, registered. § 4-103(c).

    Other information may be disclosed about a licensee if the custodian finds a compelling public purpose and the rules and regulations of the official custodian permit disclosure. § 4-333(c). The Department of Labor, Licensing and Regulation has concluded that a compelling public interest is served by the disclosure of additional information to an individual who is contemplating a contract with the licensee. Such additional information includes the number, nature, and status of complaints against a licensee. COMAR 09.01.04.11.

    The person in interest may review information relating to him or herself. § 4-333(d). In addition, a custodian who sells lists of licensees must omit from the list the name of any licensee on written request of the licensee. § 4-333(e).

    Suspected collusive or anticompetitive activity — Disclosure of any part of a public record that contains information generated by the bid analysis management system concerning an investigation of a transportation contractor’s suspected collusive or anticompetitive activity  and submitted to the Maryland Department of Transportation by the U.S. Department of Transportation or another state is exempt from disclosure. § 4-337. The purpose of this section is to provide assurances of confidentiality to investigatory sources of the Maryland Department of Transportation during the course of investigations into bid-rigging. See Bill Analysis, House Bill 228 (1994) (quoted in PIA Manual, at 3-25).

    Notary publics — A custodian shall deny inspection of the part of a public record that contains information about the application and commission of a notary public. § 4-332(a). However, the notary public's name, home address, home and business telephone numbers, commission issue and expiration dates, date of taking the oath of office, and signature are not exempt from disclosure. § 4-332(b). Other information may be disclosed if the custodian finds a compelling public purpose. § 4-332(c). Inspection of the record by a notary public or any other person in interest may be denied only to the extent that the inspection could: (1) interfere with a valid and proper law enforcement proceeding; (2) deprive another person of a right to a fair trial or an impartial adjudication; (3) constitute an unwarranted invasion of personal privacy; (4) disclose the identity of a confidential source; (5) disclose an investigative technique or procedure; (6) prejudice an investigation; or (7) endanger the life or physical safety of an individual. § 4-332(d).

    In addition, on written request from the notary public, a custodian who sells lists of notaries public shall omit that person's name from the lists. § 4-332(e).

    License application containing Social Security number — A custodian shall deny inspection of the part of an application for a marriage license or a recreational license that contains a Social Security number, except to a person in interest or upon the request of the State Child Support Enforcement Administration. § 4-334.

    Personal information about a person who maintains an alarm or security system — A custodian shall deny inspection of the part of a public record that identifies or contains personal information about a person, including a commercial entity, that maintains an alarm or security system. § 4-339(a). Inspection shall, however, be permitted by the person in interest, the alarm or security system company that can document it currently provides services to the person of interest, law enforcement personnel and emergency services personnel. § 4-339(b). Personal information is defined in § 4-101(h)(2) as information identifying an individual's name, address, driver's license number or other identification number, medical or disability information, photograph or computer-generated image, Social Security number, or telephone number. Personal information does not include an individual's driver's status, driving offenses, five-digit zip code or information on vehicle accidents. § 4-101(h)(3).

    Senior citizen activity centers — A custodian shall deny inspection of any part of a public record that contains the name, address, telephone number or electronic mail address of an individual enrolled in or any member of a senior citizen activities center. § 4-340(b). Inspection by the person in interest, law enforcement personnel or emergency services personnel is permitted. § 4-340(c).

    (3) Discretionary exemption of specific records: With respect to exemptions within this category, a custodian may deny access to a part of a public record if he or she believes such disclosure to be contrary to the public interest. § 4-343. The determination of whether disclosure would be contrary to the public interest rests in the sound discretion of the official custodian. 58 Op. Att'y Gen. 563, 566. (1973).

    Interagency and intra-agency documents — This exemption applies to any part of an interagency or intra-agency letter or memorandum that would not be available by law to a private party in litigation with the unit. § 4-344; see also Maryland Comm. Against Gun Ban v. Mayor and City Council of Baltimore, 91 Md. App. 251, 603 A.2d 1364 (1992), rev'd on other grounds, 329 Md. 78, 617 A.2d 1040 (1993), Caffrey v. Dep't of Liquor Control for Montgomery County, 370 Md. 272, 297 805 A.2d 268, 282 (2002), Prince George's County v. Washington Post Co., 149 Md. App. 289, 320, 815 A.2d 859, 877 (2003). The exemption applies only to information that may be regarded as deliberative or consultative in nature, and it does not apply to information that is largely factual. See Stromberg Metal Works Inc., v. University of Maryland, et al., 382 Md. 151, 163-67, 854 A.2d 1220, 1227-1230 (2004) (holding that the University could not assert the privilege allowed in § 4-344 for numbers it redacted from a construction project budget report since those numbers were largely factual in nature. The Court noted that the number does not, therefore, constitute a memorandum that would not be available to a private party in litigation). The Maryland Court of Appeals has also made clear that § 4-344 includes information covered under the attorney work product doctrine. Caffrey, 370 Md. at 307, 805 A.2d at 289, see also PIA Manual, at 3-30.

    This exemption is substantially similar to its comparable FOIA counterpart and, thus, federal case law provides persuasive authority in interpreting its scope. Stromberg Metal Works Inc. v. University of Maryland, 382 Md. 151, 163, 854 A.2d 1220 (2004), 58 Op. Att'y Gen. 53 (1973). The FOIA exemption is "intended to preserve the process of agency decision-making from the natural muting of free and frank discussion which would occur if each voice of opinion and recommendation could be heard and questioned by the world outside the agency." PIA Manual, at 3-29 (quoting from O'Reilly, Federal Information Disclosure: Procedure; Procedures; Forms and the Law, § 15.01(3d ed. 2000). It has also been observed that the basis of the exemption is the executive privilege doctrine. The privilege arose from the common law, the rules of evidence, and the discovery rules for civil proceedings. Stromberg Metal Works Inc. v. University of Maryland, 382 Md. 151, 163, 854, A.2d 1220 (2004); see also PIA Manual, at 3-28. The Maryland Court of Appeals examined the nature of the privilege in Maryland in Hamilton v. Verdow, 287 Md. 544, 414 A.2d 914 (1980); see also 66 Op. Att'y Gen. 98 (1981).

    The exception covers only deliberative aspects of agency memoranda or letters, and not records that are purely factual, objective, or that contain scientific data. PIA Manual, at 3-30. The Attorney General's office recommends that in determining into which category a given record falls, "a presumption of disclosure should prevail, unless the responsible agency official can demonstrate specific reasons why agency decision making may be compromised if the questioned records are released." PIA Manual, at 3-31. In addition, the agency must articulate specific reasons for withholding documents. Cranford v. Montgomery County, 300 Md. 759, 481 A.2d 221 (1984).

    Examinations — Test questions, scoring keys, and other examination information that relates to the administration of licenses, employment, or academic matters may be withheld from disclosure. § 4-345(a). Mayer v. Montgomery County, 143 Md. App. 261, 291, 794 A.2d 704, 724 (2002). A person in interest shall have access to a written promotional examination and to the results of the person's examination after the examination has been given and graded, but that person shall not be permitted to copy or otherwise reproduce the examination. § 40345(b).

    Research projects — A public record that sets forth the specific details of a research project that a state institution or a political subdivision is conducting may be exempt. § 4-346(a). A custodian may not deny access to the part of a public record that gives only the name, title, expenditures, and date when the final project summary will be available. § 4-346(b); see also 58 Op. Att'y Gen. 53, 59 (1973) (applying this exemption to a consultant's report).

    For a thorough discussion of what types of activities constitute research projects within the scope of § 10-618(d), see Haigley v. Department of Health & Mental Hygiene, 128 Md. App. 194, 736 A.2d 1185 (1999). In that decision, the Maryland Court of Special Appeals addressed the interplay between the Maryland Code Health General article's provisions concerning confidentiality of medical records and § 4-346's permissive exemption of records relating to a study. The court rejected the Department's interpretation that anytime the Department gathered information concerning an outbreak of an infectious disease, it was conducting a study falling within the exemption. 128 Md. App. at 216, 736 A.2d at 1196. Rather, the court held that a study had to be academic in nature. To hold otherwise, the court noted, would allow the Department — or any other agency — to declare virtually all of its records non-disclosable "studies," an action that would violate both the spirit and the letter of the PIA. 128 Md. App. at 214, 736 A.2d at 1195.

    Site-specific location of certain plants, animals or property — With the exception of the owner of the land upon which the resource is located or any entity that could take the land through the right of eminent domain, a custodian may deny inspection of a public record that contains information concerning: (a) the site-specific location of an endangered or threatened species of plant or animal; (b) a species of plant or animal in need of conservation; (c) a cave; or (d) a historic property as defined in § 5A-301 of the State Finance and Procurement Article in the Maryland Code. § 4-350.

    Inventions owned by state public institutions of higher education — A custodian may deny disclosure of information disclosing or relating to an invention owned in whole or in part by a state public institution of higher education for four years to permit the institution to evaluate whether to patent or market the invention and pursue economic development and licensing opportunities. § 4-347(a). If the information has already been disclosed by the inventors, licensed by the institution for at least four years, or four years have elapsed since the date of written disclosure, the custodian may not deny inspection. § 4-347(b).

    Real estate appraisals — Until the State or political subdivision acquires title to property, a custodian my deny inspection of a public record that contains a real estate appraisal of the property. § 4-349(a). A custodian may not deny inspection by the owner of the appraised property. § 4-349(b).

    State-owned information - A custodian may deny inspection of that part of a public record that contains information disclosing or relating to a trade secret, commercial information, or confidential financial information owned in whole or in party by the Maryland Technology Development Corporation or a public institution of higher education, if the information is part of the institution’s activities under Section 15-107 of the Education Article of the Maryland Code. § 4-348.

    Investigatory information — A custodian may deny inspection of records of investigations conducted by the Attorney General, a State's Attorney, a municipal or county attorney, a police department, or a sheriff; an investigation file compiled for any other law enforcement, judicial, correctional, or prosecution purpose; or records that contain intelligence information or security procedures of the Attorney General, a State's Attorney, a municipal or county attorney, a police department, a State or local correctional facility, or a sheriff. § 4-351(a). A person in interest generally may inspect such records, except to the extent the inspection would interfere with a valid and proper law enforcement proceeding; deprive another person of a right to a fair trial or an impartial adjudication; constitute an unwarranted invasion of personal privacy; disclose the identity of a confidential source; disclose an investigative technique or procedure; prejudice an investigation; or endanger the life or physical safety of an individual. § 4-351(b). The person making the complaint that triggered an internal investigation is not a "person in interest." Md. Dep't of State Police v. Dashiell, 443 Md. 435 (2015).

    Emergency Management — The custodian may deny inspection of response procedures or plans prepared to prevent or respond to emergency situations, the disclosure of which would reveal vulnerability assessments, specific tactics, emergency or security procedures; building plans, blueprints, schematic drawings, diagrams, operational manuals, or any other records of ports and airports and any other mass transit facilities, bridges, tunnels, emergency response facilities or structures, buildings where hazardous materials are stored, arenas, stadiums, waste and water systems, and any other building, structure, or facility, the disclosure of which would reveal the building's, structure's, or facility's internal layout, specific location, life, safety, and support systems, structural elements, surveillance techniques, alarm or security systems or technologies, operational and transportation plans or protocols, or personnel deployments; or records prepared to prevent or respond to emergency situations and that identify or describe the name, location, pharmaceutical cache, contents, capacity, equipment, physical features, or capabilities of individual medical facilities, storage facilities, or laboratories. § 4-352(a). Disclosure may be denied only to the extent that the inspection would jeopardize the security of any building, structure or facility, facilitate the planning of a terrorist attack, or endanger the life or physical safety of an individual. § 4-352(b). Police Patrol Security Systems Inc. v. Prince George's County, 378 Md. 702, 719 838 A.2d 1191, 1201 (2003). This subsection does not apply to buildings, structures, or facilities owned by the State or any political subdivision; to any building, structure, or facility subject to a catastrophic event like a fire, explosion or natural disaster; or to an inspection or issuance of a citation concerning a building, structure, or facility by an agency of the State or any political subdivision. § 4-352(c).

    Maryland Port Administration — A custodian may deny inspection of the part of the public record containing information concerning stevedoring or terminal services or facility use rates or proposed rates; a proposal generated, received, or negotiated by the Maryland Port Administration or any private operating company created by the Administration for use of stevedoring or terminal services or facilities to increase waterborne commerce; or research or analysis related to maritime businesses or vessels compiled for the Administration or any private operating company created by the Administration to evaluate its competitive position with respect to other ports. § 4-353(a). A custodian may not deny inspection by the exclusive representative identified in the memorandum of understanding between the State and the American Federation of State, County and Municipal Employees, the memorandum of understanding between the State and the Maryland Professional Employees Council, or any successor memoranda. § 4-353(b).

    University of Maryland University College — A custodian may deny inspection of any part of a public record that relates to the University of Maryland University College's ("UMUC") competitive position with respect to other providers of education services that contains fees, tuition, charges and any information supporting same proposed, generated, received, or negotiated by UMUC, except fees, tuition, and charges published in catalogues and ordinarily charged to students; a proposal generated, received, or negotiated by UMUC for education services except proposals with its students; or any research, analysis or plans relating to UMUC operations or proposed operations. § 4-354(a).

    However, a custodian may not deny inspection if the record relates to a procurement by UMUC, if UMUC is required to develop or maintain the record by law or at the direction of the Board of Regents, if the record relates to a matter that is the subject of collective bargaining negotiations, if the exclusive representative has entered into a nondisclosure agreement with UMUC to ensure the confidentiality of the information provided. § 4-354(b).

    Public institutions of higher education — A custodian of a record kept by a public institution of higher education that contains personal information relating to a student, a former student, or an applicant may require that a request to inspect a record containing personal information be made in writing and sent by first-class mail; and deny inspection of the part of the record containing the personal information if the information is requested for commercial purposes. § 4-355(b).

    (4) Substantial injury to the public interest — Section 4-358 permits a temporary denial of inspection whenever the custodian believes that inspection of a public record otherwise subject to disclosure would cause substantial injury to the public interest. This exemption permits only a temporary denial of access and requires the official custodian to petition the court for an order permitting the continued denial of access within ten working days after the initial denial is made. § 4-358(b). The denial may continue if the court finds after a hearing that disclosure of the public record would cause substantial injury to the public interest. § 4-358(d). In addition, an official custodian who fails to petition the court for an order to continue a denial of access under § 4-358, is liable for actual damages that the court deems appropriate. § 4-362(d)(2); but see ACLU v. Leopold, 223 Md. App. 97, 123 (2015) ("actual damages" under the statute does not include emotional damages).

    The initial determination of whether disclosure is contrary to the public interest, however, is within the discretion of the custodian. 64 Op. Att'y Gen. 236 (1979). A technical disadvantage that a governmental entity might suffer in resolving a pending claim because of a disclosure is insufficient to establish a "substantial injury to the public interest" in order to qualify for the exemption. Mayor of Baltimore v. Burke, 67 Md. App. 147, 506 A.2d 683 (1985), cert. denied, 306 Md. 110, 507 A.2d 631 (1986).

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  • Michigan

    1. A public body may meet in a closed session "[t]o consider the dismissal, suspension, or disciplining of, or to hear complaints or charges brought against, or to consider a periodic personnel evaluation of, a public officer, employee, staff member, or individual agent, if the named person requests a closed hearing. Mich. Comp. Laws Ann. § 15.268(a). A person may rescind a request for a closed hearing at any time, after which the matter will be considered after the rescission only in open sessions. Mich. Comp. Laws Ann. § 15.268(a). The phrase "after the rescission" was recently added to the last sentence of Mich. Comp. Laws Ann. § 15.268(a), suggesting that matters do not need to be reheard from the beginning if a request for a closed hearing is rescinded.
    2. A public body may meet in a closed session to consider the dismissal, suspension, or disciplining of a student under two conditions: if the public body is part of the school district or institution which the student is attending, and if the student's parent or guardian requests a closed hearing. Mich. Comp. Laws Ann. § 15.268(b).
    3. "[S]trategy and negotiation sessions connected with the negotiation of a collective bargaining agreement' may be closed to the public if either negotiating party requests a closed hearing. Mich. Comp. Laws Ann. § 15.268(c). This exemption has been interpreted strictly to permit closed strategy sessions only when negotiation of a labor agreement is in progress or about to commence. Wexford County Prosecuting Attorney, supra, 268 N.W.2d at 348. Thus, a city commission's May meeting to discuss the residency policy for city employees did not qualify for exemption, since a mandatory collective bargaining subject was involved and since collective bargaining was not to begin until August for renewal of a labor contract to expire December 31. Id. "Negotiation sessions" as used in this exemption, refers to "actual collective bargaining sessions between employer and employee." Id. In Moore v. Fenville Public Schools Board of Education, 223 Mich. App. 196, 566 N.W. 2d 31 (1997), it was held that the members could meet in a closed session to reach consensus on a union's proposal because consensus reflected a goal in negotiations and not a final determination.
    4. A public body may meet in closed session "[t]o consider the purchase or lease of real property up to the time an option to purchase or lease that real property is obtained." Mich. Comp. Laws Ann. § 15.268(d). Under this section, it has been held proper for a public body to meet in closed session to vote upon rejection of an owner's offer to sell real property at a designated price, or to direct its agents as to their limits in negotiating for the purchase of real property. 1977-78 Op. Att'y Gen. 606 (1978). A public body may not hold a closed meeting for the purpose of disposing of a building through sale or lease, although it may hold a closed meeting for the purpose of acquiring or leasing a building up to the time that an option is obtained. 1977-78 Op. Att'y Gen. 389 (1978).
    5. Closed sessions may be held "[t]o consult with [an] attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body." Mich. Comp. Laws Ann. § 15.268(e); see also The Detroit News Inc. v. City of Detroit, 185 Mich. App. 296, 460 N.W.2d 312, 315 (1990) (rejecting defendant's claim that closed meeting to review consent judgment regarding City's acquisition of Chrysler/Jefferson plant was exempt because settlement had already been accepted and there was no longer any issue in dispute); Manning v. City of East Tawas, 243 Mich. App. 244, 593 N.W. 2d 649 (1999) (the attorney does not need to be the attorney who is actually responsible for the litigation). People v Whitney, 228 Mich. App. 230, 578 N.W. 2d 329 (1998) (settlement negotiations occurring before initiation of a judicial or ADR proceeding is not "pending" litigation).
    6. A public body may meet in closed session "[t]o review the specific contents of an application for employment or appointment to a public office if the candidate requests that the application remain confidential." Mich. Comp. Laws Ann. § 15.268(f). However, the public body must hold open meetings to interview such candidates. Mich. Comp. Laws Ann. § 15.268(f). The Attorney General has interpreted this "open interview" rule as applying only for those positions for which employment interviews must be conducted by the public body itself, since requiring public interviews for all positions, with all the attendant public notice requirements, would force public bodies to spend an inordinate amount of time on hiring procedures. Thus, in all other cases, where the public body itself is not required to interview the applicant, interviews for employment may be conducted in private by the staff of the public body. 1977-78 Op. Att'y Gen. 21, 38 (1977). However, under a 1996 amendment to the OMA, Mich. Comp. Laws Ann. § 15.268(f) does not apply to searches for the selection of a president of an institution of higher education established under Section 4, 5, or 6 of Article VIII of the Michigan Constitution. Instead, other rules apply to such searches. See Mich. Comp. Laws Ann. § 15.268(j). An Ingham County Circuit Court in May, 1997, ruled, however, that a university governing body must interview finalist university presidential candidates in public, and only advisory presidential selection committees may conduct preliminary interviews in closed session. Detroit Free Press v. Northern Michigan University, Ingham County Circuit Court No. 97-860046-CZ. But see, Federated Publications Inc. v. Board of Trustees of Michigan State University, supra.

    Although Mich. Comp. Laws Ann. § 15.263(5) affords members of the public an opportunity to address a public body at some point during an open meeting according to rules established and recorded by the public body, they do not have the right to ask questions of applicants for employment during open interviews. 1981-82 Op. Att'y Gen. 507 (1981).

    1. "Partisan caucuses of members of the state legislature" may meet in closed session. Mich. Comp. Laws Ann. § 15.268(g).
    2. A public body may meet in closed session "[t]o consider material exempt from discussion or disclosure by state or federal statute." Mich. Comp. Laws Ann. § 15.268(h). Thus, public bodies may meet in closed session to consider matters which are exempt from disclosure under the state or federal FOIAs. 1979-80 Op. Att'y Gen. 255, 270-71 (1979). Ridenour v. Board of Education, 111 Mich. App. 798, 314 N.W. 2d 760 (1981) (information may be discussed at a closed meeting if it is exempt from disclosure under the FOIA as information of a personal nature, the public disclosure of which would constitute a clearly unwarranted invasion of the individual's privacy); Booth Newspapers Inc. v. Regents of the University of Michigan, 93 Mich. App. 100, 286 N.W. 2d 55 (1979) (written opinion of counsel to the University Board of Regents need not have been disclosed under the FOIA, and thus was exempt from open meeting requirements even though the opinion was not rendered in regard to specific pending litigation and so did not fall under Mich. Comp. Laws Ann. § 15.268(e)). But, when faced with FOIA exempt material as applied to the OMA, a public body must state on the record those documents it deems exempt under the FOIA together with the associated FOIA exemption justifying nondisclosure, describe those documents — unless description would defeat the purpose of nondisclosure — and complete this process on the record in open session before conducting a closed session. Herald Company Inc. v. Tax Tribunal, 258 Mich. App. 78, 669 N.W.2d 862 (2003). Note, however, that the exemption contained in the FOIA regarding communications and notes within a public body or between public bodies (Mich. Comp. Laws Ann. § 15.243(l)(n)) does not constitute an exemption for purposes of the OMA, because that section specifically states that it does not constitute an exemption for purposes of section 8(h) of the OMA [Mich. Comp. Laws Ann. § 15.268(h)]. See 1979-80 Op. Att'y. Gen 496 (1979).

    Any exemption based on a claim of attorney-client privilege under OMA is narrowly construed. Closed sessions may not be held to receive oral legal opinions and a proper discussion of a written legal opinion at a closed meeting is limited to any strictly legal advice presented in a written opinion. People v Whitney, 228 Mich. App. 230, 578 N.W. 2d 329 (1998). However, one court has reasoned that the term “consider” in 15.268(h) permits discussion and deliberation with respect to matters of attorney-client privilege. Berryman v. Madison Sch. Dist., No. 265996, 2007 Mich. App. LEXIS 464, at *4 (February 22, 2007).

    Other statutes for which Mich. Comp. Laws Ann. § 15.268(h) has been held to apply are Mich. Comp. Laws Ann. § 400.9, involving administrative hearings which can be closed to the general public if the matters to be discussed involve records concerning categorical assistance, medical assistance, or federally funded assistance and service programs protected from disclosure under federal and state statutes. 1979-80 Op. Att'y Gen. 31, 33-35 (1979). Also exempt are proceedings involving the Youth Parole and Review Board pursuant to Mich. Comp. Laws Ann. § 803.308, part of which may be closed when confidential records, as defined by that section, are under discussion. 1979-80 Op. Att'y Gen. at 32-33 (1979). The meetings of several other public bodies are exempt, when they are deliberating on the merits of a case. See Mich. Comp. Laws Ann. § 15.263(8).

    1. A public body may meet in closed session "for a compliance conference conducted by the department of commerce under [Mich. Comp. Laws Ann. § 333.16231] before a complaint is issued.
    2. In another 1996 amendment to the OMA, a public body may meet in closed session "in the process of searching for and selection of a president of an institution of higher education established under Section 4, 5, or 6 of Article VIII of the Michigan Constitution, to review the specific contents of an application, to conduct an interview with a candidate, or to discuss the specific qualifications of a candidate. However, this exemption only applies if the institution's process for searching for and selecting a candidate meets all of the following requirements:

    (1) the search committee has at least one student, one faculty member, one administrator, one alumnus, and one representative of the general public. The search committee may also include one or more members of the governing board, but not a quorum of the governing board. No one of these groups can constitute a majority of the search committee.

    (2) After the search committee recommends the five final candidates, the governing board does not take a vote on a final section until at least 30 days after the five final candidates have been publicly identified by the search committee.

    (3) The deliberations and vote of the governing board of the institution on selecting the president take place in an open session of the governing board. An Ingham County Circuit Court ruling has held that this provision applies to interviews of candidates, as well.

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  • Montana

    The Montana Constitution sets the standard for exemptions. It provides that no person may be deprived of the opportunity to examine documents except when "the demand of individual privacy clearly exceeds the merits of public disclosure." Mont. Const., Art. II, § 9.

    The Montana Supreme Court has frequently addressed the privacy exemption to the right to know. In 2003, the Montana Supreme Court, in Great Falls Tribune v. Mont. Pub. Serv. Comm’n, 319 Mont. 38, 82 P.3d 876 (2003), held that the individual privacy exception to the public's right to know and the right of individual privacy in the Montana Constitution are limited to natural human beings only, do not extend to non-human entities such as corporations, and cannot serve as a basis for protecting trade secrets and other confidential proprietary information of non-human entities, overruling Mountain States, Etc. v. Dept. of Pub. Serv. Reg., 194 Mont. 277, 634 P.2d 181 (1981), and its progeny. Great Falls Tribune, 319 Mont. 38, 82 P.3d 876 (2003). The Court also held that nothing in Article II, § 9, requires disclosure of trade secrets and other confidential proprietary information where the data is protected from disclosure elsewhere in the federal or state constitutions or by statute. Id.

    In Svaldi v. Anaconda-Deer Lodge County, 325 Mont. 365, 106 P.3d 548 (2005), a retired public school teacher sued the county, alleging breach of her right to privacy and seeking damages for severe emotional distress, based upon the county attorney's disclosure of his discussions with the teacher's attorney in connection with the deferred prosecution agreement. The Montana Supreme Court held that the teacher's privacy rights were not violated by the county attorney's disclosure of discussions and the public's right to know outweighed the teacher's right to privacy.

    In Jefferson County v. Montana Standard, 318 Mont. 173, 79 P.3d 805 (2003), the Montana Supreme Court held that any expectation that a county commissioner had as to privacy of information regarding her arrest for driving under the influence was unreasonable, and thus, the right to privacy provision of the Montana Constitution did not preclude disclosure of such information to the newspaper pursuant to the "Right to Know" provision of the Montana Constitution.

    In Bryan v. Yellowstone Co. Elem. Sch. Dist. No. 2, 312 Mont. 257, 60 P.3d 381 (2002), the Montana Supreme Court held that a committee created by a school district to research a proposition and submit a recommendation to the school board was a public or governmental body subject to the “Right to Know” provision of the Montana Constitution, that a spreadsheet created by the committee was a public document subject to inspection, and that the school district violated a parent's right to examine public documents when it failed to divulge the spreadsheet upon request. The Court further held that the school board did not provide the parent with reasonable opportunity to participate at the school board meeting due to the board's partial disclosure of information. As a remedy, the Court declared the school board's closure decision null and void.

    In Montana Human Rights Division v. City of Billings, 199 Mont. 434, 649 P.2d 1283 (1982), the Supreme Court ruled that certain personnel records could be closed, including matters related to family problems, health problems, employee evaluations, military records, IQ test results, prison records, drug and alcohol problems, and information "most individuals would not willingly disclose publicly." 649 P.2d at 1287.

    Read together, these cases have imposed the following judicial guidelines by which records can be withheld from public inspection under the constitutional balancing test:

    1. Did the person involved have an actual or "subjective" expectation of privacy; and, if so

    2. Is that expectation "reasonable"?

    3. If the answers to paragraphs 1 and 2 are affirmative, then the documents containing private information may be withheld if the demands of individual privacy clearly outweigh the merits of public disclosure. If the answer to either 1 or 2 is negative, then the documents are available for public inspection.

    In Great Falls Tribune Co. Inc. v. Cascade County, 238 Mont. 103, 775 P.2d 1267 (1989), the Supreme Court held that the privacy of police officers subject to disciplinary proceedings did not outweigh the public's right to know their names and the subject of the disciplinary charges.

    Bozeman Daily Chronicle v. City of Bozeman Police Department, 260 Mont. 218, 859 P.2d 435 (1993), held that the newspaper was entitled to obtain the name of a police officer and investigative documents regarding alleged unconsented sexual intercourse with a cadet at the State Law Enforcement Academy, even though the documents were confidential criminal justice information, where the alleged misconduct went directly to the police officer's breach of a position of public trust.

    A mayor did not have a "reasonable expectation of privacy" in preventing the disclosure of a report regarding an independent investigation of his alleged sexual harassment of a city employee. Citizens to Recall v. Whitlock, 255 Mont. 517, 844 P.2d 74 (1992).

    None of these opinions involved construction of the open records act itself. However, the open records act has been the subject of several attorney general opinions. In 35 A.G. Op. 27 (1973) the attorney general ruled that the list of registered nurses and licensed practical nurses must be issued to members of the public who wish to purchase it. In 36 A.G. Op. 28 (1975) the attorney general ruled that salaries of teachers and administrators of a public school district are subject to inspection by the public.

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  • Nebraska

    The following types of records, unless previously disclosed in "an open court, open administrative proceeding, or open meeting, or disclosed by a public entity pursuant to its duties," may be withheld from the public (Neb. Rev. Stat. §84-712.05(1) to (20)):

    1. "Personal information in records regarding a student, prospective student, or former student of any educational institution or exempt school that has effectuated an election not to meet state approval or accreditation requirements pursuant to section 79-1601 when such records are maintained by and in the possession of a public entity, other than routine directory information specified and made public consistent with 20 U.S.C. 1232g, as such section existed on February 1, 2013, and regulations adopted thereunder."
    2. "Medical records, other than records of births and deaths and except as provided in subdivision (5) of this Section, in any form concerning any person, and also records of elections filed under section 44-2821 and patient safety work product under the Patient Safety Improvement Act;"
    3. "Trade secrets, academic and scientific research work which is in progress and unpublished, and other proprietary or commercial information which if released would give advantage to business competitors and serve no public purpose;"
    4. "Records which represent the work product of an attorney and the public body involved which are related to preparation for litigation, labor negotiations, or claims made by or against the public body, or which are confidential communications as defined in section 27-503 [attorney/client privilege];"
    5. "Records developed or received by law enforcement agencies and other public bodies charged with duties of investigation or examination of persons, institutions, or businesses, when the records constitute a part of the examination, investigation, intelligence information, citizen complaints or inquiries, informant identification, or strategic or tactical information used in law enforcement training, except that this subdivision shall not apply to records so developed or received relating to the presence of and amount or concentration of alcohol or drugs in any body fluid of any person;"
    6. "Appraisals or appraisal information and negotiation records, concerning the purchase or sale, by a public body, of any interest in real or personal property, prior to completion of the purchase or sale;"
    7. "Personal information in records regarding personnel of public bodies other than salaries and routine directory information;"
    8. "Information solely pertaining to protection of the security of public property and persons on or within public property, such as specific, unique vulnerability assessments or specific unique response plans, either of which is intended to prevent or mitigate criminal acts the public disclosure of which would create a substantial likelihood of endangering public safety or property; computer or communications network schemes, passwords, and user identification names; guard schedules; lock combinations; or public utility infrastructure specifications or design drawings the public disclosure of which would create a substantial likelihood of endangering public safety or property, unless otherwise provided by state or federal law;"
    9. "The security standards, procedures, policies, plans, specifications, diagrams, access lists, and other security-related records of the Lottery Division of the Department of Revenue and those persons or entities with which the division has entered into contractual relationships. Nothing in this subdivision shall allow the division to withhold from the public any information relating to amounts paid persons or entities with which the division has entered into contractual relationships, amounts of prizes paid, the name of the prize winner, and the city, village, or county where the prize winner resides;"
    10. "With respect to public utilities and except as provided in sections 43-512.06 and 70-101, personally identified private citizen account payment and customer use information, credit information on others supplied in confidence, and customer lists;"
    11. "Records or portions of records kept by a publicly funded library which, when examined with or without other records, reveal the identity of any library patron using the library's materials or services;"
    12. "Correspondence, memoranda, and records of telephone calls related to the performance of duties by a member of the Legislature. The lawful custodian of such correspondence, memoranda, and records of telephone calls, whether created prior to, on, or after April 2, 1993, upon approval of the Executive Board of the Legislative Council, shall release such correspondence, memoranda, and records of telephone calls which are not designated as sensitive or confidential in nature pursuant to subsection (3) of section 81-1120.27 to the person the Executive Board of the Legislative Council has contracted with pursuant to section 50-401.04. A member's correspondence, memoranda, and records of telephone calls related to the performance of his or her legislative duties shall only be released to any other person with the explicit approval of the member;"
    13. "Records or portions of records kept by public bodies which would reveal the location, character, or ownership of any known archaeological, historical, or paleontological site in Nebraska when necessary to protect such site from a reasonably held fear of theft, vandalism, or trespass. This section shall not apply to the release of information for the purpose of scholarly research, examination by other public bodies for the protection of the resource or by recognized tribes, the Unmarked Human Burial Sites and Skeletal Remains Protection Act, or the federal Native American Graves Protection and Repatriation Act;"
    14. "Records or portions of records kept by public bodies which maintain collections of archaeological, historical, or paleontological significance which reveal the names and addresses of donors of such articles of archaeological, historical, or paleontological significance unless the donor approves disclosure, except as the records or portions thereof may be needed to carry out the purposes of the Unmarked Human Burial Sites and Skeletal Remains Protection Act or the federal Native American Graves Protection and Repatriation Act."
    15. "Job application materials submitted by applicants, other than finalists or a priority candidate for a position described in Section 85-106.06 selected using the enhanced public scrutiny process in Section 85-106.06, who have applied for employment by any public body as defined in section 84-1409. For purposes of this subdivision, (a) job application materials means employment applications, resumes, reference letters, and school transcripts, and (b) finalist means any applicant who is not an applicant for a position described in Section 85-106 and (i) who reaches the final pool of applicants, numbering four or more, from which the successful applicant is to be selected, (ii) who is an original applicant when the final pool of applicants numbers less than four, or (iii) who is an original applicant and there are four or fewer original applicants;”
    16. “Records obtained by the Public Employees Retirement Board pursuant to Section 84-1512;”
    17. "Social security numbers, credit card, charge card, or debit card numbers and expiration dates; and financial account numbers supplied to state and local governments by citizens."
    18. “Information exchanged between a jurisdictional utility and city pursuant to section 66-1867.”
    19. “Draft records obtained by the Nebraska Retirement Systems Committee of the Legislature and the Governor from Nebraska Public Employees Retirement Systems pursuant to subsection (4) of section 84-1503;” and
    20. “All prescription drug information submitted pursuant to Section 71-2454, all data contained in the prescription drug monitoring system, and any report obtained from data contained in the prescription drug monitoring system.”
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  • Nevada

    NRS 239.0105 provides that records of a local governmental entity are confidential and not public records if they contain “(a) the name, address, telephone number or other identifying information of a natural person; and (b) [t]he natural person whose name, address, telephone number or other identifying information is contained in the records provided such information to the local governmental entity for the purpose of:

    (1) Registering with or applying to the local governmental entity for the use of any recreational facility or portion thereof that the local governmental entity offers for use through the acceptance of reservations; or

    (2) On his or her own behalf or on behalf of a minor child, registering or enrolling with or applying to the local governmental entity for participation in an instructional or recreational activity or event conducted, operated or sponsored by the local governmental entity.”

    NRS 239.013 provides that any “records of a public library or other library which contain the identity of a user and the books, documents, films, recordings or other property of the library which were used are confidential and not public books or records within the meaning of NRS 239.010.”

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  • New Hampshire

    The Statute contains specific categories of records that are exempt from its reach.

    1. Records of grand and petit juries. RSA 91-A:5, I. Grand jury transcripts are not subject to disclosure. State v. Purrington, 122 N.H. 458 (1982).
    2. Records of parole and pardon boards. RSA 91-A:5, II.
    3. Personal school records of pupils. RSA 91-A:5, III. Names and addresses of students kept by the school may not be disclosed. Brent v. Paquette, 132 N.H. 415 (1989). The exemption refers simply to "personal school records of pupils." Several decisions allow access to school-related records. Mans v. Lebanon Sch. Bd., 112 N.H. 160 (1972) (teachers' contracts); Timberlane Regional Educ. Ass'n v. Crompton, 114 N.H. 315 (1974) (names and addresses of substitute teachers).
    4. Minutes of non-public sessions of boards and agencies, if "in the opinion of 2/3 of the members present, divulgence of the information likely would affect adversely the reputation of any person other than a member of the body or agency itself. . . . [this] information may be withheld until, in the opinion of a majority of [the Board's] members," the confidentiality is no longer necessary. RSA 91-A:3, III.
    5. Catch-all exemption. RSA 91-A:5, IV. "Records pertaining to internal personnel practices; confidential, commercial or financial information; test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination; and personnel, medical, welfare, library user, videotape sale or rental, and other files whose disclosures would constitute invasion of privacy. Without otherwise compromising the confidentiality of the files, nothing in this paragraph shall prohibit a body or agency from releasing information relative to health or safety from investigative files on a limited basis to persons whose health or safety may be effected." Notwithstanding this exemption, the Supreme Court has ruled with respect to "confidential, commercial, or financial" information that "these categorical exemptions mean not that the information is per se exempt, but rather that it is sufficiently private that it must be balanced against the public's interest in disclosure." Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 553 (1997); Lamy v. N.H. Public Utilities Commission, 152 N.H. 106 (2005) (records of names and addresses of residential customers filing voltage complaints exempt from disclosure; names and addresses of business customers must be disclosed); Hounsell v. North Conway Water Precinct, 154 N.H. 1 (2006)(report of investigation of Precinct employee); Reid v. New Hampshire Attorney Gen., 169 N.H. 509 (2016)(internal personnel practices records per se exempt).
    6. Teacher certification records. In the Department of Education, including teacher certification status information. RSA 91-A:5,V.
    7. Emergency function records directly intended to thwart deliberate acts that might result in widespread or severe property damage, injury or loss of life. RSA 91-A:5,VI.
    8. Unique pupil identification information collected pursuant to RSA 193-E:5. RSA 91-A:5,VII.
    9. Personal notes made by public officials or members of public bodies that do not have an official purpose, including notes and materials they make prior to, during or after public proceedings. RSA 91-A:5,VIII.
    10. Preliminary drafts, notes, memoranda and other documents not in final form and not disclosed, circulated, or available to a quorum or a majority of public bodies. RSA 91-A:5, IX.
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  • New Jersey

    OPRA declares that all government records be subject to public access unless exempt from such access by: (i) OPRA, (ii) any other statute, (iii) resolution of either or both houses of the Legislature, (iv) regulation promulgated under the authority of any statute or Executive Order of the Governor; (v) Executive Order of the Governor; (vi) Rules of Court; (vii) any federal law; (viii) federal regulation; or (ix) court order. (See N.J.S.A. 47:1A-1).

    OPRA provides, in N.J.S.A. 47:1A-1.1:

    A government record shall not include the following information which is deemed to be confidential for the purposes of P.L. 1963, c. 73 (C. 47:1A-1 et seq.) as amended and supplemented:

    information received by a member of the Legislature from a constituent or information held by a member of the Legislature concerning a constituent, including but not limited to information in written form or contained in any e-mail or computer data base, or in any telephone record whatsoever, unless it is information the constituent is required by law to transmit;

    any memorandum, correspondence, notes, report or other communication prepared by, or for, the specific use of a member of the Legislature in the course of the member's official duties, except that this provision shall not apply to an otherwise publicly-accessible report which is required by law to be submitted to the Legislature or its members;

    any copy, reproduction or facsimile of any photograph, negative or print, including instant photographs and videotapes of the body, or any portion of the body, of a deceased person, taken by or for the medical examiner at the scene of death or in the course of a post mortem examination or autopsy made by or caused to be made by the medical examiner except:

    when used in a criminal action or proceeding in this State which relates to the death of that person,

    for the use as a court of this State permits, by order after good cause has been shown and after written notification of the request for the court order has been served at least five days before the order is made upon the county prosecutor for the county in which the post mortem examination or autopsy occurred,

    for use in the field of forensic pathology or for use in medical or scientific education or research, or

    for use by any law enforcement agency in this State or any other state or federal law enforcement agency;

    criminal investigatory records;

    victims' records, except that a victim of a crime shall have access to the victim's own records;

    any written request by a crime victim for a record to which the victim is entitled to access as provided in this section, including, but not limited to, any law enforcement agency report, domestic violence offense report, and temporary or permanent restraining order;

     

    personal firearms records, except for use by any person authorized by law to have access to these records or for use by any government agency, including any court or law enforcement agency, for purposes of the administration of justice;

     

    personal identifying information received by the Division of Fish and Wildlife in the Department of Environmental Protection in connection with the issuance of any license authorizing hunting with a firearm. For the purposes of this paragraph, personal identifying information shall include, but not be limited to, identity, name, address, social security number, telephone number, fax number, driver’s license number, email address, or social media address of any applicant or licensee;

    trade secrets and proprietary commercial or financial information obtained from any source. For the purposes of this paragraph, trade secrets shall include data processing software obtained by a public body under a licensing agreement which prohibits its disclosure;

    any record within the attorney-client privilege. This paragraph shall not be construed as exempting from access attorney or consultant bills or invoices except that such bills or invoices may be redacted to remove any information protected by the attorney-client privilege;

    administrative or technical information regarding computer hardware, software and networks which, if disclosed, would jeopardize computer security;

    emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein;

    security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software;

    information which, if disclosed, would give an advantage to competitors or bidders;

    information generated by or on behalf of public employers or public employees in connection with any sexual harassment complaint filed with a public employer or with any grievance filed by or against an individual or in connection with collective negotiations, including documents and statements of strategy or negotiating position;

    information which is a communication between a public agency and its insurance carrier, administrative service organization or risk management office;

    information which is to be kept confidential pursuant to court order;

    any copy of form DD-214, or that form, issued by the United States Government, or any other certificate of honorable discharge, or copy thereof, from active service or the reserves of a branch of the Armed Forces of the United States, or from service in the organized militia of the State, that has been filed by an individual with a public agency, except that a veteran or the veteran’s spouse or surviving spouse shall have access to the veteran’s own records;

    any copy of an oath of allegiance, oath of office or any affirmation taken upon assuming the duties of any public office, or that oath or affirmation, taken by a current or former officer or employee in any public office or position in this State or in any county or municipality of this State, including members of the Legislative Branch, Executive Branch, Judicial Branch, and all law enforcement entities, except that the full name, title, and oath date of that person contained therein shall not be deemed confidential;

    that portion of any document which discloses the social security number, credit card number, unlisted telephone number or driver license number of any person; except for use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf thereof, or any private person or entity seeking to enforce payment of court-ordered child support; except with respect to the disclosure of driver information by the New Jersey Motor Vehicle Commission as permitted by section 2 of P.L. 1997, c. 188 (C. 39:2-3.4); and except that a social security number contained in a record required by law to be made, maintained or kept on file by a public agency shall be disclosed when access to the document or disclosure of that information is not otherwise prohibited by State or federal law, regulation or order or by State statute, resolution of either or both houses of the Legislature, Executive Order of the Governor, rule of court or regulation promulgated under the authority of any statute or executive order of the Governor.

    A list of persons identifying themselves as being in need of special assistance in the event of an emergency maintained by a municipality for public safety purposes pursuant to section 1 of P.L.2017, c. 266 (C.40:48-2.67); and

     

    A list of persons identifying themselves as being in need of special assistance in the event of an emergency maintained by a county for public safety purposes pursuant to section 6 of P.L.2011, c. 178 (C.App.A:9-43.13).

    A government record shall not include, with regard to any public institution of higher education, the following information which is deemed to be privileged and confidential:

    pedagogical, scholarly and/or academic research records and/or the specific details of any research project conducted under the auspices of a public higher education institution in New Jersey, including, but not limited to research, development information, testing procedures, or information regarding test participants, related to the development or testing of any pharmaceutical or pharmaceutical delivery system, except that a custodian may not deny inspection of a government record or part thereof that gives the name, title, expenditures, source and amounts of funding and date when the final project summary of any research will be available;

    test questions, scoring keys and other examination data pertaining to the administration of an examination for employment or academic examination;

    records of pursuit of charitable contributions or records containing the identity of a donor of a gift if the donor requires non-disclosure of the donor's identity as a condition of making the gift provided that the donor has not received any benefits of or from the institution of higher education in connection with such gift other than a request for memorialization or dedication;

    valuable or rare collections of books and/or documents obtained by gift, grant, bequest or devise conditioned upon limited public access;

    information contained on individual admission applications; and

    information concerning student records or grievance or disciplinary proceedings against a student to the extent disclosure would reveal the identity of the student.

    • Biotechnology trade secrets and related confidential information as restricted by federal law. (See N.J.S.A. 47:lA-1.2.)
    • Personal information regarding the victim of a crime or the victim's family when the information is being sought by the convict who wronged the victim or by anonymous request. (See N.J.S.A. 47:1A-2.2)
    • Files maintained by the Office of the Public Defender that relate to the handling of any case. (See N.J.S.A. 47:lA-5.k.)
    • Records exempt from disclosure under any other statute; resolution of either or both Houses of the Legislature; regulation promulgated under authority of any statute or Executive Order; Executive Order; Rules of Court or; federal law, federal regulation or federal order. (See N.J.S.A. 47:lA-9.a.).
    • Records heretofore exempt from disclosure pursuant to any executive or legislative privilege or grant of confidentiality established or recognized by State Constitution of this State, statute, court rule or case law. (See N.J.S.A. 47:lA-9.b.)
    • Personnel and pension records of state and local employees except for the employee's name, title, position, salary, payroll record, length of service, date of termination, reason for termination, amount and type of pension received, and other employee background information which discloses specific experiential, educational or medical qualifications for government employment or for receipt of a public pension, but excluding detailed medical or psychological information (Byrne Executive Order No. 11 (1974));
    • Executive Orders:

    (a) Executive Order No. 9 issued by Governor Richard J. Hughes

    (b) Executive Order No. 48 issued by Governor Richard J. Hughes

    (c) Executive Order No. 11 issued by Governor Brendan Byrne

    (d) Executive Order No. 69 issued by Governor Christine Todd Whitman

    (e) Executive Order No. 18 issued by Governor James McGreevey

    (f) Executive Order No. 21 issued by Governor James McGreevey

    (g) Executive Order No. 26 issued by Governor James McGreevey

    (h) Executive Order No. 47 issued by Governor Chris Christie (note that Executive Order 47 provides in part “[a]ny provision of Executive Order No. 21 (2002) and Executive Order No. 26 (2002) that applies to any exemption initially proposed by an agency in the July 1, 2002 a New Jersey Register, is hereby rescinded.)

     

    • Regulatory Exemptions

    There is discretionary language in N.J.S.A. 47:1A-3. Specifically, where records sought pertain to an investigation in progress, access may be denied if disclosure would "be inimical to the public interest." (See N.J.S.A. 47:1A-3).

    That section also provides that “[n]otwithstanding any other provision of this subsection, where it shall appear that the information requested or to be examined will jeopardize the safety of any person or jeopardize any investigation in progress or may be otherwise inappropriate to release, such information may be withheld.”  (See N.J.S.A. 47:1A-3)

    If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.  N.J.S.A. 47:1A-5(g).

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  • New Mexico

    a. Medical records.

    Although the statute suggests the exemption from disclosure for medical records may concern (only) persons confined to public institutions, the exception has been interpreted by the New Mexico Supreme Court to exempt any medical records.  Newsome v. Alarid, 1977-NMSC-076, ¶¶ 9-10, 568 P.2d 1236 (rev’d on other grounds and separate portion of opinion superseded by statute).  See also N.M. Op. Att'y Gen. 60-155 (1960) ("[a]ny record which might fairly be called a record of examination of a patient or record of medical treatment of a patient of any institution is not a public record and need not be submitted to public scrutiny.") Cf. 1968 N.M. Op. Att'y Gen. 68-110.  Medical records that may otherwise be exempt from disclosure but are introduced into evidence in any public hearing lose their exempt status and may be inspected by the public.  N.M. Op. Att'y Gen. 88-16 (1988).

    b. Letters of reference concerning employment, licensing or permits.

    Under former law, this exception was determined to allow a public body to withhold the names of former state employees terminated for disciplinary reasons.  State ex rel., Barber v. McCotter, 1987-NMSC-046, ¶¶ 7-12, 738 P.2d 119.  It is not clear that Barber v. McCotter would be decided in the same manner after the 1993 amendments.  See City of Las Cruces v. Pub. Emp. Labor Relations Bd., 1996-NMSC-24, ¶11, 917 P.2d 451 (upholding Barber v. McCotter, stating “[a] public employee's privacy interest in his personal position regarding union representation requires protecting representation petitions from public disclosure.”); see also City of Farmington v. Daily Times, 2009-NMCA-57, ¶¶ 19, 22, 146 N.M. 349, 210 P.3d 246 (rev’d on other grounds) (requiring disclosure of applications of the position of city manager).

    c. Letters or memoranda that are matters of opinion in personnel files or students' cumulative files.

    Prior to the 1993 amendments, which created a presumption of open records, a variety of court decisions suggested a broad reading of this authority to withhold documents, a reading that is no longer warranted.  See, e.g., Spadaro v. Univ. of N.M. Bd. Of Regents, 1988-NMSC-064, ¶ 11, 107 N.M. 402, 759 P.2d 189 (1988) (complaints filed in a student job office at the University are not public records); but see Cox v. N.M. Dep’t of Pub. Safety, 2010-NMCA-096, ¶ 10, 242 P.3d 501 (holding that citizens’ complaints are pubic records and stating “[t]he Court in Spadoro applied a previous version of the IPRA which, unlike the current version, did not contain a definition of public record”).

    d. Law enforcement records that reveal confidential sources, methods, information or individuals accused, but not charged with a crime.

    Law enforcement records include evidence in any form received or compiled in connection with any criminal investigation or prosecution by any law enforcement or prosecuting agency, including inactive matters or closed investigations to the extent they contain the information listed above.  See also Arrest Record Information Act, NMSA 1978 § 29-10-1 to -8 (1975, as amended through 1999).  After the 1993 amendments, the Inspection of Public Records Act had been largely reconciled and specifically provides a wide variety of documents are now public: posters, announcements or lists identifying fugitives or wanted persons, police blotters, court records of public judicial proceedings, records of traffic defenses and accident reports, etc.  This exception has been the focus of most of the public records battle over the last few years.

    e. As provided in the Confidential Materials Act.

    This very narrow exemption covers only those documents donated to a museum, university, or other public institution wherein the grantor specifically reserves and requires confidentiality for a certain term of years. See NMSA 1978 § 14-3A-2 (1981).

    f. Trade secrets, attorney-client privileged information and strategic business plans of hospitals.

    h. Tactical response plans and procedures propounded by the state government to address terrorist threats are exempt from disclosure.

    i. Protected personal identifier information.

    j. As otherwise provided by law, meaning by regulation or other specific statutory exception.

    The Supreme Court of New Mexico has determined that regulations adopted by a public body may have the force of law.  City of Las Cruces v. Pub. Emps. Labor Relations Bd., 1996-NMSC-24, ¶¶ 5, 12, 917 P.2d 451. The case before the court concerned a labor board's promulgation of regulations to withhold representation petitions otherwise public.  The Supreme Court determined the regulations were necessary to accomplish performance functions and duties which included “protecting representation petitions from public disclosure." Id. ¶¶ 7-11. The Supreme Court resurrected the "balancing test" (State ex rel. Newsome, 1977-NMSC-076, 568 P.2d 1236) and held that public employees' privacy interests related to union representation required the protection of the representation petitions from public disclosure. Id. ¶¶ 8-11.  Given the (assumed) possibility of retaliation against employees who support labor activities and the failure of the plaintiff to offer any evidence of the benefit to the public that would outweigh the privacy interest, the court's resurrection of the balancing test, and the balancing test itself, may be more narrowly construed in the future.

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  • North Carolina

    A few exemptions are set out in the text of the Public records law.

    One exemption covers written communications from an attorney acting within the scope of the attorney-client privilege. G.S. § 1321.1(a). The exemption covers only communications from the attorney to the public body, not vice versa. Even then, such communications are excluded from the coverage of the law only for a period of three years, after which they become public records.

    A second exemption covers state and local tax information, which may not be disclosed except in limited circumstances set out in the state tax code. G.S. § 132-1.1(b).

    The law also exempts “Public Enterprise Billing information,” which includes the bills for electric power and other public utilities sent to consumers by counties and municipalities that provide such services to their citizens. G.S. § 132-1.1(c).

    G.S. § 132-1.1(d) exempts the addresses and telephone numbers of persons enrolled in a program to protect the confidentiality of a relocated victim of domestic violence, sexual offense or stalking.

    G.S. § 132-1.1(e) exempts information contained in the state’s Controlled Substances reporting System.

    G.S. § 132-1.1(f) exempts personally identifiable admissions information for the University of North Carolina and its constituent institutions.

    G.S. § 132-1.2(1) exempt information which: (1) constitutes a “trade secret” as defined in G.S. § 66-152(3); (2) is the property of a private “person” as defined in

    G.S. § 66-152(2); (3) is disclosed or furnished to the public agency in connection with the owner’s performance of a public contract or in connection with a bid, application, proposal, industrial development project, or in compliance with laws, regulations, rules, or ordinances of the United States, the state, or political subdivisions of the state and (4) is designated or indicated as “confidential” or as a “trade secret” at the time of its initial disclosure to the public agency. Note that all four criteria must be met in order for a document to be withheld lawfully.

    G.S. § 132-1.2(2) exempts account numbers for electronic payments

    G.S. § 132-1.2(3) exempts document, file number, or passwords maintained by the Secretary of State.

    G.S. § 132-1.2(4) exempts electronically capture images of an individual’s signature, date of birth, driver’s license number or social security number.

    G.S. § 132-1.2(5) exempts the seal of certain licensed professionals.

    The Public Records Law also provides that public records relating to the expansion or location of specific business or industrial projects “may be withheld so long as their inspection, examination or copying would frustrate the purpose for which such public records were created.” G.S. § 132-6(d). The section of the law setting out this exemption includes detailed provisions as to when such information must be released. This exemption does not protect records relating to general economic policies or activities.

    Public records law provides an exemption for certain records of criminal investigations conducted by law enforcement agencies or records of criminal intelligence information compiled by public law enforcement agencies. G.S. § 132-1.4.

    G.S. § 132-1.6 exempts emergency response plans of UNC, community colleges or public hospitals.

    G.S. § 132-1.7 exempts certain emergency security plans.

    In 2002, the General assembly added the following language to the Public records law under the heading “Sensitive Public Security information”:

    (a)       Public records as defined in G.S. 132-1 shall not include information containing specific details of public security plans and arrangements or the detailed plans and drawings of public buildings and infrastructure facilities.

    (b)       Public records as defined in G.S. 132-1 do not include plans to prevent or respond to terrorist activity, to the extent such records set forth vulnerability and risk assessments, potential targets, specific tactics, or specific security or emergency procedures, the disclosure of which would jeopardize the safety of governmental personnel or the general public or the security of any governmental facility, building, structure, or information storage system.

    (c)        Information relating to the general adoption of public security plans and arrangements, and budgetary information concerning the authorization or expenditure of public funds to implement public security plans and arrangements, or for the construction, renovation, or repair of public buildings and infrastructure facilities shall be public records. G.S. § 132-1.7.

    G.S. § 132-1.8 exempts photographs and audio or video recordings made pursuant to an autopsy.

    G.S. § 132-1.9 exempts certain trial preparation materials (otherwise known as litigation work product).

    G.S. § 132-1.10 exempts social security numbers and other identifying information but also puts limitations on when such information may be collected.

    G.S. § 132-1.11 temporarily exempts certain information about economic development incentives.

    G.S. § 132-1.12 exempts identifying information about minors participating in local government parks and recreation programs.

    Some other provisions of the Public records law that create exemptions or limitations on specific types of records are discussed in Sections ii(E) and iV, below.

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  • North Dakota

    The following records are exempt from the general open records statutes as set forth below.

    Court Records:

    1. Adoption records, except when the child-placing agency authorizes exchanges of information between the genetic parents, adoptive parents, and adopted child. N.D.C.C. § 14-15-16.
    2. Records of judicial hearings concerning a minor’s application to obtain an abortion without parental consent. N.D.C.C. § 14-02.1-03.1(3).
    3. The identity of a woman suing a person who conducted an abortion without informed consent and other records of the proceedings, when the court, on its own or upon motion, determines that the woman’s anonymity should be preserved. N.D.C.C. § 14-02.1-03.3.
    4. The record of any court hearing conducted under N.D.C.C. § 23-07.5-02(4), relating to testing for bloodborne pathogens. N.D.C.C. § 23-07.5-02(4).
    5. The report of genetic testing for parentage, as well as court records concerning hearings on parentage (unless the parties consent or on order of the court for good cause). N.D.C.C. §§ 14-20-35, 14-20-54.
    6. All files and records of juvenile courts. N.D.C.C. § 27-20-51. (Procedures for the disposal of juvenile court records are outlined in N.D.C.C. § 27-20-54.)
    7. Social services reports requested by judges, including social-psychological evaluations, predisposition reports, treatment, probation, and aftercare services (except as may be disclosed by the judge), as well as records of the Department of Human Services containing individually identifiable information on an individual applying for or receiving assistance or services under any program of the department. N.D.C.C. §§ 50-06-05.1(15)-(16), 50-06-15.
    8. Reports, transcripts, records, or other information relating to State Health Officer legal actions to enjoin a person with human immunodeficiency virus infection from continuing to engage in an activity that presents an imminent danger to the public. N.D.C.C. § 23-07.4-03.

    9 All information and records obtained in the course of an investigation, evaluation, examination, or treatment under the state’s civil commitment procedures and the presence or past presence of a patient in a treatment facility. N.D.C.C. § 25-03.1-43.

    1. The name of the respondent to an appeal from an order of involuntary commitment or alternative treatment, a continuing treatment order, an order denying a petition for discharge, or an order of transfer. N.D.C.C. § 25-03.1-29.
    2. Veterans discharge documents recorded by clerks of district courts, which can only be made available to designated persons. N.D.C.C. § 37-01-34.
    3. Probation records when the plea of guilty is withdrawn by the defendant or the verdict of guilty is set aside by the court, except upon the written order of the court. N.D.C.C. § 12.1-32-07.2.
    4. Statements and votes made by grand jurors and other grand jury matters, except when ordered by a court to disclose certain testimony. N.D.C.C. §§ 29-10.1-30(3), 29-10.1-31. Matters other than the deliberations and vote of any grand juror may be disclosed by the state’s attorney, prosecutor, or attorney general solely with regard to performing their duties. N.D.C.C. §§ 29-10.1-30(2). The attorney general may disclose these matters to law enforcement agencies only to the extent the attorney general deems them essential to the public interest and effective law enforcement. N.D.C.C. § 29-10.2-05(2).
    5. The testimony of a witness who is interrogated before a grand jury, or any proceedings of the grand jury in the witness’ presence, until an indictment is filed and the accused person is in custody. N.D.C.C. § 29-10.1-30.
    6. Reports or presentments of state grand juries that are not accompanied by true bills of indictment, until the individuals concerned have been furnished a copy thereof and given thirty days to file with the district court a motion to suppress or expunge the reports or those portions which are improper and unlawful. N.D.C.C. § 29-10.2-05(3). Any such motion, whether granted or denied, automatically acts as a stay of public announcement of such a report, or portion thereof, until the district court’s ruling on the motion is either affirmed or denied by an appellate court, or until the time within which such order may be so appealed has expired, whichever occurs first. Id.
    7. Sealed jury verdicts, until they have been rendered in open court. N.D.C.C. § 29-22-21.
    8. Names of qualified jurors and the contents of jury qualification forms completed by those jurors shall be made available to the public, unless the court determines in any instance that this information in the interest of justice should be kept confidential or its use limited in whole or in part. N.D.C.C. § 27-09.1-09(3). See also Forum Comm. Co. v. Paulson, 752 N.W.2d 177 (N.D. 2008).
    9. The contents of any records or papers used by the clerk in connection with the jury selection process, until after all persons selected to serve as jurors have been discharged. N.D.C.C. § 27-09.1-12(4).
    10. Wills deposited by testators or their agents with recorders for safekeeping, until the testator’s death, when the recorders deliver the wills to the persons designated to receive them or to the appropriate courts. N.D.C.C. § 30.1-11-01.
    11. Information contained in a complaint and warrant, if the magistrate orders the information confidential after a law enforcement officer articulates a reason for the confidentiality that convinces the issuing magistrate that limited confidentiality is necessary for the safety of the law enforcement officer or to enable the warrant to be properly served. N.D.C.C. §§ 29-05-32; 29-29-22. The magistrate shall limit the duration of the order to the time of arrest of the accused and shall exempt law enforcement officers in the performance of official duties. N.D.C.C. §§ 29-05-32; 29-29-

      Legislative Materials:

      21. Testimony and other evidence given or adduced at a legislative investigative hearing closed to the public, unless authorized by a majority of the members of the committee. N.D.C.C. § 54-03.2-12(7).
      22. All information of a defamatory or highly prejudicial nature received by or for a legislative committee conducting an investigation, unless the information was received at a hearing (but see exception above), a majority of the committee authorizes public release, or its use is required for judicial purposes. N.D.C.C. § 54-03.2-12(8).
      23. The following records, regardless of form or characteristic, of or relating to the legislative counsel, the legislative management, the legislative assembly, the House of Representatives, the Senate, or a member of the legislative assembly: records of a purely personal or private nature, records that are legislative council work product or legislative council-client communication, records that reveal the content of private communications between a member of the legislative assembly and any person, and (except with respect to a governmental entity determining the proper use of telephone service) records of telephone usage that identify the parties or list the telephone numbers of the parties involved, except records distributed at open meetings. N.D.C.C. § 44-04-18.6.

      State Department of Health Records and Information:

      24. The medical records of abortion facilities and hospitals in which abortions are performed and all information contained therein. N.D.C.C. § 14-02.1-07(1)(b). The records may be used by the state department of health only for gathering statistical data and ensuring compliance with the laws. N.D.C.C. § 14-02.1-07(1)(b).

      25. Records, reports, and information obtained by the department of health in its enforcement of air pollution control standards, where a satisfactory showing is made to the department that the records, reports, or information (other than emission data), if made public, would divulge trade secrets. N.D.C.C. § 23-25-06.

      26. All information, records of interviews, written reports, statements, notes, memoranda, or other data procured by the department of health (or a co-sponsoring person, agency, or organization) in connection with studies conducted for the purpose of reducing morbidity or mortality from any cause or condition of health. N.D.C.C. § 23-01-15.

      27. All Health Care Data Committee records, data, and information that could be used to identify individual patients. N.D.C.C. § 23-01.1-05.

      28. Department of health information (other than reports relating to vital statistics) concerning licensure of medical hospitals and state hospitals, except that information may be disclosed in a proceeding involving the question of licensure. N.D.C.C. § 23-16-09.

      29. Records of maternity homes and reports received therefrom. N.D.C.C. § 50-19-10.

      30. Ionizing radiation development records, reports, or information provided to the department of health under chapter 23-20.1 of the North Dakota Century Code, if the department grants confidentiality following a written request, notice of opportunity for a public hearing under chapter 28-32, and a satisfactory showing that confidentiality is required to protect trade secrets or medical and individual radiation exposure files, the disclosure of which would constitute a clear invasion of personal privacy. N.D.C.C. § 23-20.1-09.1.

      31. Reports to the department of health concerning individuals with a diagnosis of human immunodeficiency virus infection, acquired immune deficiency syndrome, or human immunodeficiency virus-related illness, including death from human immunodeficiency virus infection (with certain exceptions). N.D.C.C. § 23-07-02.2.

      32. Information contained in disease control records, including the results of laboratory tests, except as authorized by department of health rules. N.D.C.C. § 23-07-20.1.

      33. Statements of antifreeze formula and other trade secrets that must be furnished to the state health department. N.D.C.C. § 19-16.1-10.

      34. For health-related records outside of the department of health, see N.D.C.C. §§ 12-59-04 (parole records), 15-10-17(7) (state board of higher education adopted rules), 23-01-03.1 (newborn metabolic and genetic disease screening tests), 23-17-09 (state board of chiropractic examiners records), and 43-17.1-08 (board of medical examiners investigative panels records).

      Department of Human Services Records and Information:

      35. Individually identifiable information concerning an individual applying for or receiving assistance or services under any program of the department of human services. N.D.C.C. § 50-06-15(1); see also N.D. Admin. Code ch. 75-01-02 and 75-01-03.

      36. Information received by the department of human services through inspections of substance abuse treatment programs, except in a proceeding involving the issuance of a license. N.D.C.C. § 50-31-06.

      37. The contents of records of licensed foster care facilities and the records of the department of human services pertaining to the children or adults receiving care. N.D.C.C. § 50-11-05; see also North Dakota Administrative Code § . 75-03-16-27.

      38. Records and information maintained with respect to children receiving early childhood services. N.D.C.C. § 50-11.1-07.

      39. Reports to the department of human services, and any other information obtained, concerning child abuse and neglect. N.D.C.C. § 50-25.1-11.

      40. Information regarding aid to dependent children provided to state agencies and their officials, employees, and agents. N.D.C.C. § 50-09-08.2.

      41. The contents of the individual records of a treatment or care center for developmentally disabled individuals, or reports received from those records. N.D.C.C. § 25-16-07.

      42. All records and information regarding students with disabilities receiving boarding home care. N.D.C.C. § 15.1-34-10.

      43. Information supplied by the tax commissioner to certain state agencies to effectuate the intent of the setoff of income tax refund chapter. N.D.C.C. § 57-38.3-08.

      44. Records and files of state and regional long-term care ombudsmen and their authorized agents that relate to, or identify, any resident of a long-term care facility or a complainant, except where a resident or legal representative consents in writing to the release and designates to whom the information shall be disclosed, where the ombudsman authorizes a disclosure that does not reveal the identity of any complainant or resident, or where a court of competent jurisdiction orders disclosure. N.D.C.C. § 50-10.1-07.

      45. Reports and all records and information obtained or generated as a result of reports relating to vulnerable adult protection services. N.D.C.C. § 50-25.2-12.

      State Institutions and the Department of Corrections and Rehabilitation Records and Information:

      46. Records of individuals in institutions maintained by the supervising departments of institutions. N.D.C.C. § 25-01.1-13.

      47. The medical, psychological, and treatment records of the department of corrections and rehabilitation relating to individuals in the custody or under the supervision of the division of adult services of the department. N.D.C.C. § 12-47-36(2).

      48. The case history records of the department of corrections and rehabilitation are exempt records, but upon application to the district court, the court may order the inspection of a case history record unless there is a showing that a proper and legitimate reason exists for denying the inspection. N.D.C.C. § 12-47-36(1). “Case history record” includes inmate disciplinary proceedings, administrative and disciplinary segregation placements, institutional and criminal investigation reports, supervision histories, job placements, education programs, inmate financial accounts, and protective management cases. N.D.C.C. § 12-47-36(1).

      49. Additionally, the records of an applicant for commutation, reprieve, pardon, conditional pardon, or remission of fine are subject to N.D.C.C. § 12-47-36. N.D.C.C. § 12-55.1-11. The pardon clerk may permit the inspection of an application for a commutation, reprieve, pardon, conditional pardon, or remission of fine; the recommendations of the pardon advisory board, if any; and the decision of the governor, including any decision made after reconsideration or after proceedings for revocation. N.D.C.C. § 12-55.1-11.

      50. All parole records of the department of corrections and rehabilitation obtained in the discharge of official duty by any member of the parole board or employee of a division or department of the department of corrections and rehabilitation on behalf of the parole board. N.D.C.C. § 12-59-04. An application for parole and the decision of the parole board on the application are open records. N.D.C.C. § 12-59-04.

      51. Records of the division of adult services of the department of corrections and rehabilitation concerning the application for or award of compensation under the Crime Victims Compensation Act. N.D.C.C. § 54-23.4-17.

      52. Information, data, reports, and records made available to an internal quality assurance review committee of the developmental center at Grafton (except that information, documents, and records otherwise available from original sources are not immune from discovery merely because they were presented during the proceedings of the committee). N.D.C.C. § 25-04-19.

      Department of Transportation Records and Information:

      53. The following entries on a driver’s record or abstract are not open records, except for statistical purposes, other than by order of a court of competent jurisdiction: 1) Entries more than three years old; 2) After the period of suspension ceases, entries concerning a suspension under certain provisions; 3) Entries concerning suspension as the result of a person under 21 years old who has an alcohol concentration of at least two one-hundredths of one percent, but under eight one-hundredths of one percent by weight within two hours after driving or being in actual physical control of a vehicle. N.D.C.C. § 39-16-03.1.

      54. In accident report forms, the opinion (as to fault or responsibility) of the investigating officer, except upon affirmation by a party to the accident that the investigating officer’s opinion is material to a determination of liability and a payment of a five dollar fee. N.D.C.C. § 39-08-13.

      55. Department of transportation records relating to the financial condition of any party if that party has applied for prequalification as a bidder, is designated as a prequalified bidder, is an applicant under the disadvantaged business enterprise program, makes a submission in furtherance of being selected as a consultant, is selected as a consultant, or is subject to audit by the department. N.D.C.C. § 24-02-11.

      56. All accident reports made by persons involved in accidents or by garages to the department of transportation or other state agencies. N.D.C.C. § 39-08-14(1).

      57. All accident reports and supplemental information filed in connection with the administration of the laws relating to the deposit of security or proof of financial responsibility. N.D.C.C. § 39-08-14(2).

      58. Reports of the county auditors to the department of transportation listing the names of blind persons for whom a property tax exemption is claimed, except that such reports may be introduced at hearings on license suspension or revocation. N.D.C.C. § 11-13-18.

      Records of the Insurance Commissioner:

      59. Nonpublic personal information of insured individuals, as well as names and individual identification data for all owners, purchasers, and insureds. See, e.g., N.D.C.C. § 26.1-02-27; N.D.C.C. § 26.1-02-28; N.D.C.C. § 26.1-36-12.4; N.D.C.C. § 26.1-18.1-23; N.D.C.C. § 26.1-33.4-05; N.D.C.C. § 26.1-33.4-06; N.D.C.C. § 26.1-17.1-24; ; N.D.C.C. § 26.1-50-03.

      60. Any confidential documents or information received by the insurance commissioner from the national association of insurance commissioners or state, federal, or international regulatory or law enforcement officials. N.D.C.C. § 26.1-03-11.3.

      61. Any documents, materials, or other information in the possession of the insurance commissioner relating to the report or investigation of suspected or actual fraudulent insurance acts. N.D.C.C. §§ 26.1-02.1-06, 26.1-02.1-07; see also N.D.C.C. § 26.1-33.4-13.

      62. Proceedings, hearings, notices, correspondence, reports, records, and other information in the possession of the insurance commissioner or the department relating to the supervision of any insurer, unless the commissioner deems it is in the best interest of the public or the insurer to make the information public. N.D.C.C. § 26.1-06.2-04.

      63. Documents, materials, and other information in the possession of the insurance commissioner that are an actuarial report, work papers, or actuarial opinion summary provided in support of the actuarial opinion, and any other material provided by the insurance company to the commissioner in connection with the actuarial report, work papers, or actuarial opinion summary. N.D.C.C. § 26.1-03-11.1.

      64. Reports of financial examinations of insurers, for a period of fifteen days after the adoption of a report, so long as no court has stayed publication. N.D.C.C. 26.1-03-19.4(5)(a). Additionally, all working papers, recorded information, documents, and copies disclosed to the commissioner in the course of a financial examination are confidential. N.D.C.C. 26.1-03-19.4(6)(a).

      65. For purposes of any examination other than financial examinations, all preliminary data, drafts, notes, impressions, memoranda, working papers, and work product generated by the insurance commissioner or the person making the examination are confidential until the commissioner releases a final report or upon a declaration by the commissioner of nonconfidentiality. N.D.C.C. § 26.1-03-19.4(6)(b).

      66. Any information obtained by the insurance commissioner in the course of an examination relating to insurance holding company systems, unless the insurance company to which it pertains gives written consent or the commissioner, after notice and a hearing, determines that the interests of the policyholders, shareholders, or the public will be served by the publication of the information. N.D.C.C. § 26.1-10-07.

      67. In delinquency proceedings brought by the insurance commissioner, all records of the insurer, other documents, and all insurance department files and court records, so far as they pertain to or are a part of the record of the proceedings, unless and until the court orders otherwise or unless the insurer requests that the matter be made public. N.D.C.C. § 26.1-06.1-10.

      68. All examination reports, working papers, recorded information, documents, and copies obtained in the course of an examination made under the life settlements chapter or in the course of analysis or investigation by the insurance commissioner of the financial condition or market conduct of a licensee. N.D.C.C. 26.1-33.4-06(7)(b)

      69. Any memorandum in support of an actuarial opinion of reserves, and any other material provided by an insurance company to the insurance commissioner in connection therewith. N.D.C.C. § 26.1-35-01.1(1)(d)(8).

      70. Health maintenance organization enrollee clinical records available to the insurance commissioner for compliance with the quality assurance program, except upon written consent for disclosure by the enrollee or the enrollee’s authorized representative. N.D.C.C. § 26.1-18.1-06(5).

      71. Any data or information pertaining to the diagnosis, treatment, or health of any enrollee or applicant obtained by any health maintenance organization, as well as the information considered by a health care review committee and the records of their actions and related proceedings. N.D.C.C. § 26.1-18.1-23.

      72. Annual financial statements filed by government self-insurance pools and all working papers of the insurance commissioner’s staff, until the report is final, unless the commissioner declares that the material or any party of the material is not confidential. N.D.C.C. § 26.1-23.1-04.

      73. Information regarding the portion of the funds or liability reserves of a self-insured government pool established for the purposes of satisfying a specific claim or cause of action. N.D.C.C. § 26.1-23.1-06.

      74. Risk-based capital reports and plans. N.D.C.C. §§ 26.1-03.1-08; 26.1-03.2-08.

      75. Asset and agreement reports filed by insurers with the insurance commissioner. N.D.C.C. § 26.1-10.1-01.

      Job Service/Unemployment Compensation Records:

      76. Records of employers doing business in the state which are obtained by North Dakota job service in the administration of the unemployment compensation law. N.D.C.C. §§ 52-01-02, 03.

      Workers Safety and Insurance Records:

      77. Information contained in employers’ files and reports obtained by Workforce Safety and Insurance. N.D.C.C. § 65-04-15.

      78. Information contained in the claims files and records of injured employees, except the claimant’s name, date of birth, injury date, employer name, type of injury, whether the claim is accepted, denied, or pending, and whether the claim is active or inactive. N.D.C.C. § 65-05-32.

      Records of the Labor Commissioner:

      79. Information furnished to the labor commissioner by public officers and employers relating to their respective offices or businesses. See N.D.C.C. § 34-05-03.

      Records of the Tax Commissioner and Other Tax Materials:

      80. Confidential information provided to the tax commissioner. See, e.g., N.D.C.C. § 57-02-11.2 (records and information provided by the owner or occupant of commercial property with regard to income and expenses of the property); N.D.C.C. § 57-39.2-23 (information obtained in the enforcement of the sales tax); N.D.C.C. § 57-05-11 (information obtained during assessment of railroad property); N.D.C.C. § 57-37.1-22 (estate tax returns); N.D.C.C. § 57-38-57 (income tax returns).

      81. Any federal tax return or return information opened to inspection or disclosed by the United States secretary of the treasury to the state tax commissioner for the administration of the tax laws. N.D.C.C. § 57-01-14.

      Department of Financial Institutions Records and Information:

      82. Facts and information obtained by the commissioner or department of financial institutions or the department in the course of examinations, receiving reports, investigations, and receiving applications containing trade secrets, commercial, financial, personnel, medical, or examination report information. N.D.C.C. § 6-01-07.1.

      Industrial Commission Records and Information:

      83. Other pertinent information related to basic exploration data requested by the state geologist, for a period of one year, when requested by the operator (the time period may be further extended upon approval by the industrial commission). N.D.C.C. § 38-12-02(1)(b)(4).

      84. Basic exploration data of coal submitted to the state geologist, for a period of two years (the time period may be extended for one-year periods by the state geologist, for a total period not to exceed ten years, unless it is demonstrated that the time period should be further extended to prevent possible resulting harm). N.D.C.C. § 38-12.1-04(1)(b).

      85.Oil and gas well data reported to the industrial commission (if confidential treatment is requested in writing by those reporting the data), for a period not to exceed six months. N.D.C.C. 38-08-04(6).

      Bank of North Dakota Records and Information:

      86. Certain records of the Bank of North Dakota. See N.D.C.C. § 6-09-35.

      87. Certain customer information held by the Bank of North Dakota (or other financial institution). See N.D.C.C. ch. 6-08.1.

      Housing Finance Agency Records and Information:

      88. The following records of the housing finance agency: 1) Personal or financial information of a participant in any of the housing finance agency’s programs, obtained directly or indirectly, except for routine credit inquiries or as required by court order; 2) Internal or interagency memorandums or letters of a personal nature which are not available by law to a party, except insofar as they are available in litigation with the agency; 3) Personal financial statements which the industrial commission requires of any housing finance agency employee or member of the housing finance agency’s advisory board. N.D.C.C. § 54-17-07.8

      State Geologist Records and Information:

      89. Geological and geophysical data obtained by the state geologist, when requested by the seller or donor, until such time as the seller or donor notifies the state geologist that confidentiality is no longer required. N.D.C.C. § 54-17.4-08.

      Lignite Records and Information:

      90. Lignite industry materials and data submitted to, or made or received by, the industrial commission, to the extent that the commission determines (following a request by a person or entity, which is also confidential) the material or data consist of trade secrets, or commercial, financial, or proprietary information of individuals or entities applying to or contracting with the commission or receiving commission services. N.D.C.C. § 54-17.5-06.

      Public Service Commission Records and Information:

      91. Public service commission reports of the stock of crude petroleum of any particular pipeline, except the aggregate amounts held by all the pipelines making reports and their aggregate storage capacity. N.D.C.C. § 49-19-02.

      92. Specific information included in surface coal mining plans, upon request by the permit applicant and in the discretion of the public service commission, provided such information pertains only to the analysis of the chemical and physical properties of the coal (excepting information regarding such mineral or elemental contents which is potentially toxic in the environment), for a period not to exceed ten years. N.D.C.C. § 38-14.1-13.

      Records of State Boards or Commissions Regulating Professions or Industries:

      93. State chiropractic board of examiners information concerning licensing of chiropractic hospitals, except that information may be disclosed in a proceeding involving the question of licensure. N.D.C.C. § 23-17-09.

      94. Communications to the board of medical examiners investigative panels, as well as their records (except financial records). N.D.C.C. § 43-17.1-08.

      95. Information acquired by counselors licensed by the board of counselor examiners in rendering counseling services. N.D.C.C. § 43-47-09.

      96. The contents of any document, paper, or record examined by a member, officer, agent, or employee of the board of barber examiners, or any information obtained in the course of his investigation, except as disclosure is required to carry out the barber statute. N.D.C.C. § 43-04-15.

      97. Investigative files of the state board of pharmacy, until a complaint is filed or the board decides not to file a complaint. N.D.C.C. § 43-15-10(15).

      98. All data and information, including client and juvenile records, acquired by the board of social work examiners in its investigations. N.D.C.C. § 43-41-10(6) and (7).

      99. Examination or test questions, scoring keys, and other data used to administer any licensing, employment, academic, or certification examination or test, if the examination or test is to be used again in whole or in part, and records establishing examination or test procedures and instructions regarding the administration, grading, or evaluation of any examination or test, if disclosure may affect scoring outcomes. N.D.C.C. § 44-04-18.8.

      Agricultural Records and Information:

      100. Audited annual financial statements that must be filed with the department of agriculture by dairy license applicants who purchase milk from dairy producers. N.D.C.C. § 4-30-03.2.

      101. Any information created, collected, or maintained by the milk marketing board, except the board may use the information in compiling and disseminating general statistical data. N.D.C.C. § 4.1-26-29.

      102. Criminal history records listed in an application for an industrial hemp license provided to the agricultural commissioner. N.D.C.C. § 4.1-18-02.

      103. Records pertaining to pesticide application, sales, purchases, and repackaging received by the agriculture commissioner in enforcing the North Dakota Pesticide Act of 1975, except that the commissioner may disclose information where required to enforce the Act. N.D.C.C. § 4-35-24(5).

      104. Information created, collected, and maintained by the agricultural mediation service in the course of any mediation, except upon written consent of all parties to the mediation or by an order issued by a court upon a showing of good cause. N.D.C.C. § 6-09.10-10.

      105. Registered pesticide information, when the agriculture commissioner determines it contains or relates to trade secrets, or to commercial or financial information. N.D.C.C. § 19-18-04.2.

      106. Information gained by the agriculture commissioner through the use of the release that a dairy processor license applicant must file. N.D.C.C. § 4-30-02.1.

      Secretary of State Records and Information:

      107. Interrogatories propounded by the Secretary of State the answers thereto, except that the secretary may disclose facts or information obtained therefrom insofar as permitted by law or insofar as required for evidence in any criminal proceedings or in any other action by the state. N.D.C.C. §§ 10-19.1-148(2)(f) (corporations), 10-32.1-85(f) (LLCs), 10-33-141(2)(f) (nonprofit corporations), 10-35-32(2)(f) (publicly traded corporations), 10-36-09(2)(f) (nonprofit LLCs), 45-10.2-111(2)(f) (partnerships), 45-22-23(2)(f) (LLPs).

      108. Information in the Secretary of State’s registry system regarding the execution of international wills, until the death of the maker and then only to any person who presents a death certificate or other satisfactory evidence of the testator’s death to the center. N.D.C.C. § 30.1-08.2-09.

      State Auditor Records and Information:

      109. Information obtained by the state auditor, including the contents of any return, report or other information examined or any listing made therefrom by the state auditor, except when otherwise directed by judicial order or as otherwise provided by law. N.D.C.C. § 54-10-25.

      110. Working papers of the state auditor, including records kept by the auditor of the procedures applied, the tests performed, the information obtained, draft audit reports, and the pertinent conclusions reached in the engagement. N.D.C.C. § 54-10-26.Working papers may be, at the discretion of the auditor and unless otherwise prohibited by law, open records. N.D.C.C. § 54-10-26.The final, issued audit report is public information, as are the working papers of an issued audit report, subject to the auditor’s discretion to declare all or a portion of such work papers confidential. N.D.C.C. § 54-10-26. The declaration must state the reason for the confidentiality and the date when the working papers will be made public. N.D.C.C. § 54-10-26.

      State Toxicologist Records and Information:

      111. Results of toxicological or chemical testing or analysis made by the state toxicologist at the request of law enforcement agencies for criminal investigation. N.D.C.C. § 54-12-24.

      Securities Commissioner Records and Information:

      112. Securities commissioner records regarding the franchise investment law, where the commissioner withholds from public inspection any information the disclosure of which is, in the judgment of the commissioner, not necessary in the public interest or for the protection of investors. N.D.C.C. § 51-19-17(4).

      113. The information or documents obtained or prepared in the course of any investigation regarding the issuance and sale of securities, if the securities commissioner chooses to keep the information confidential, but confidential treatment is allowed only during an active and ongoing investigation. N.D.C.C. § 10-04-16.1(1)(c). If an investigation extends beyond six months, the commissioner shall, upon request, state in writing that the need for confidentiality still exists, the general reason why the need exists, and the date, as can best be determined at the time, when the need for confidentiality will cease. N.D.C.C. § 10-04-16.1(1)(c).

      Department of Veterans Affairs Records and Information:

      114. Records and papers pertaining or relating to veterans that are transmitted by the United States government to the Department of Veterans Affairs, in some cases. N.D.C.C. § 37-18-11.

      State Historical Society Records and Information:

      115. Information from the files of the State Historical Society containing data that specifically identifies the location of archaeological, historical, or paleontological sites in North Dakota, unless the director of the society is satisfied that the applicant has a reasonable need for the information contained in the files and professionally acceptable qualifications to assure that release of the information will not result in unnecessary destruction of the resource. N.D.C.C. § 55-02-07.1.

      Vital Records:

      116. Birth, death, and fetal death records, filings, data, or other information related to birth, death, and fetal death records, except as authorized. See N.D.C.C. § 23-02.1-27.

      Judicial Conduct Commission Records and Information:

      117. Before the filing and service of formal charges, all proceedings of the judicial conduct commission; after the filing and service of formal charges, all proceedings are public except incapacity proceedings. N.D.C.C. § 27-23-03(5); N.D. R. Jud. Conduct Comm. 6.

      118. Before the filing and service of formal charges, all information relating to a complaint that has not been dismissed, unless the judicial conduct commission has determined there is a need to notify another person to protect that person or to notify a government agency to protect the public or the administration of justice, or upon waiver in writing by the judge. N.D.C.C. § 27-23-03(5); N.D. R. Jud. Conduct Comm. 6.

      119. All information relating to a complaint that has been dismissed without formal charges being filed. N.D.C.C. § 27-23-03(5); N.D. R. Jud. Conduct Comm. 6.

      120. Disciplinary counsel’s work product, judicial conduct commission deliberations, and records of the commission’s deliberations. N.D.C.C. § 27-23-03(5); N.D. R. Jud. Conduct Comm. 6.

      Records of the Attorney General’s Office (Including State Fire Marshal):

      121. Arson information received by the state fire marshal, any law enforcement officer, or any insurance company, until its release is required pursuant to a criminal or civil proceeding. N.D.C.C. § 18-01-05.1(7).

      122. Testimony, correspondence, or other matter secured in an investigation by the state fire marshal. N.D.C.C. § 18-01-28.

      123. The attorney general’s or state’s attorney’s investigation and proceedings of alleged violations of the statement of interests law for public officers and candidates, until a determination has been reached by the investigating officer that enough incriminating evidence exists to bring an action and such action is commenced in the appropriate district court. N.D.C.C. § 16.1-09-06.

      For information regarding release of criminal history information by the bureau of criminal investigation, see N.D.C.C. § 12-60-16.6.

      Law Enforcement Records and Information:

      124. Active criminal intelligence information and active criminal investigative information. N.D.C.C. § 44-04-18.7

      125. Law enforcement records and files concerning children, except where the child is prosecuted as an adult, where the interests of national security require disclosure, or where the court otherwise orders disclosure in the interest of the child. N.D.C.C. § 27-20-52. Additionally, fingerprint files of children are confidential. See N.D.C.C. § 27-20-53(4).

    1. The address, telephone number, or any identifying information that, if released, could reasonably be used to locate a victim or alleged victim of domestic violence, sexual offense, or human trafficking contained in any record maintained by a law enforcement facility is exempt and may be redacted from the record before release. N.D.C.C. § 44-04-18.20.
    2. Any telephone number and the home address of a juvenile court director or probation officer, an employee of a law enforcement agency, employee of a state or local correctional facility, and an employee of the department of corrections and rehabilitation. N.D.C.C. § 44-04-18.3(1).
    3. Records or other information that would reveal the identity, or endanger the life or physical well-being, of an undercover law enforcement officer. N.D.C.C. § 44-04-18.3(2).
    4. Any record containing the work schedule of employees of a law enforcement agency. N.D.C.C. § 44-04-18.3(3).County Records:130. A report of death, an autopsy report, and any working papers, notes, images, pictures, photographs, or recordings of the medical county coroner in any form. N.D.C.C. § 11-19.1-11(4). 165.Municipality Records:

      131. Motor vehicle accident reports required by incorporated cities, towns, and other municipalities, except that a city department may disclose the identity of a person involved in an accident when such identity is unknown or when the individual denies presence at the accident. N.D.C.C. § 39-08-14.

      132. Records of libraries that provide a library patron’s name or identification sufficient to identify a patron together with the subject about which the patron requested information (in the absence of a subpoena or court order requiring disclosure). N.D.C.C. § 40-38-12.

      Education Records and Information:

      133. Certain student records and medical records. See, e.g., N.D.C.C. § 15-10-17(7) (granting the state higher board of education ability to adopt confidentiality rules for certain records); N.D.C.C. § 15.1-24-04 (records related to student’s medical treatment for chemical abuse); N.D.C.C. § 15.1-26-06 (results of general education development tests); N.D.C.C. § 15.1-34-10 (records regarding boarding home care provided to students with disabilities); see also the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g.

      134. Records of a school law enforcement unit regarding a student at a school. N.D.C.C. § 15.1-19-14.

      135. Criminal history records provided to the education standards and practices board. N.D.C.C. § 15.1-13-14.

      136. Consideration of the appointment or removal of any president, faculty head, professors, instructors, teachers, officers, and other employees of the institutions under the Board of Higher Education’s control, unless the individual involved requests that the meeting be open to other individuals or to the public. N.D.C.C. § 15-10-17(1).

      137. Fundraising and donor records of the state board of higher education, university system, and affiliated nonprofit organizations. N.D.C.C. § 44-04-18.15.

      138. Patient records at student health services and university system medical centers and clinics. N.D.C.C. § 44-04-18.16.

      Public Employee Records and Information:

      139. Any record of a public employee’s medical treatment or use of an employee assistance program. N.D.C.C. § 44-04-18.1(1).

      140. Personal and non-confidential information regarding a public employee contained in a personnel record or given to the state or a political subdivision in the course of employment is exempt. N.D.C.C. § 44-04-18.1(2).

      141. Personal information regarding a licensee maintained by an occupational or professional board, association, state agency, or commission created by law is exempt. N.D.C.C. § 44-04-18.1(4).

      142. Records and information pertaining to a public employee’s medical and dependent care reimbursement under the pretax benefits program. N.D.C.C. § 54-52.3-05.

      143. All records relating to the retirement benefits of a member or beneficiary under the teacher, Highway Patrol member, and public employee retirement funds, as well as records under the uniform group insurance program. See N.D.C.C. § 15-39.1-30 (teachers); N.D.C.C. § 39-03.1-28 (highway patrol); N.D.C.C. § 54-52-26 (public employee); N.D.C.C. § 54-52.1-11 (uniform group insurance program).

      144. The medical records and related data of the employees, retirees, and dependents obtained as a result of enrollment in the uniform group insurance program. N.D.C.C. § 54-52.1-12.

      Child Fatality Review Panel Records:

      145. All documentation and reports, except for an annual report, of the child fatality review panel. N.D.C.C. § 50-25.1-04.5.

      Attorney Work Product:

      146. Attorney work product, meaning a document or record that was prepared by an attorney representing a public entity, which reflects a mental impression, conclusion, litigation strategy, or legal theory of that attorney or the entity and was prepared exclusively for civil or criminal litigation, for adversarial administrative proceedings or in anticipation of reasonably predictable civil or criminal litigation or adversarial administrative proceedings. N.D.C.C. § 44-04-19.1. Following the final completion of the civil or criminal litigation or the adversarial administrative proceeding, including the exhaustion of all appellate remedies, attorney work product must be made available for public disclosure by the public entity, unless another exception applies, or unless disclosure would have an adverse fiscal effect on the conduct or settlement of other pending or reasonably predictable proceedings, or unless the attorney work product reflects mental impressions, opinions, conclusions, or legal theories regarding potential liability of a public entity. N.D.C.C. § 44-04-19.1.

      Economic Development Records and Information:

      147. Records and information pertaining to a prospective location of a business or industry, including the identity, nature, and location of the business or industry, when no previous public disclosure has been made by the business or industry of the interest or intent of the business or industry to locate in, relocate within, or expand within this state, or partner with a public entity to conduct research or to license a discovery or innovation. N.D.C.C. § 44-04-18.4. This exemption does not include records pertaining to the application for permits or licenses necessary to do business or to expand business operations within this state, except as otherwise provided by law. N.D.C.C. § 44-04-18.4.

      148. Trade secrets and proprietary, commercial, or financial information received from a person who is interested in or is applying for or receiving financing, technical assistance, or other forms of business assistance. N.D.C.C. § 44-04-18.4.

      Critical Incident Stress Management Team Records and Information:

      149. All records and proceedings of a critical incident stress management team in connection with its critical incident stress debriefing activities (except that information, documents, or records otherwise available from original sources are not immune from discovery because they were presented during a critical incident stress debriefing). N.D.C.C. § 32-03-50.

      Abandoned Property Records:

      150. Documentation and working papers obtained or compiled by the administrator of the state abandoned property office in the course of conducting an audit for unclaimed property, but the administrator’s final, completed audit reports are open records. N.D.C.C. § 47-30.1-30.1.

      151. Reports filed with the administrator of the state abandoned property office, until twenty-four months after the date payment or delivery is made. N.D.C.C. § 47-30.1-19.1.

      Records of Ownership in Registered Public Obligations:

      152. Records regarding ownership of or security interests in registered public obligations. N.D.C.C. § 21-03.1-09.

      Domestic Violence and Sexual Assault Program Records:

      153. Domestic violence or sexual assault program records. See N.D.C.C. § 14-07.1-18.

      154. Private information concerning a minor received by a domestic violence organization. N.D.C.C. § 14-07.3-02. The counseling center must establish procedures to provide access by a parent, guardian, or custodian of a minor to private information concerning the minor, subject to the following: 1) The counseling center may deny parental access to private information upon the request of the minor; 2) Upon receipt of the request, the counseling center must determine if honoring the request to deny parental access would be in the best interest of the minor. N.D.C.C. § 14-07.3-03.

      911 Records:

      155. Unpublished names and telephone numbers generated by or provided to an emergency services communication system coordinator or public safety answering point are confidential. N.D.C.C. § 57-40.6-07(1). Published names and telephone numbers are exempt. N.D.C.C. § 57-40.6-07(2).

      156. Records which reveal personal information or the identity, address, or telephone number of a person requesting emergency service or reporting an emergency are exempt and may be redacted before being released. N.D.C.C. § 57-40.6-07(3). Additionally, the medical condition of an individual, medical treatment provided to an individual, and the name of an individual who received medical treatment from a public entity during an emergency medical response is an exempt record. N.D.C.C. § 44-04-18.22.

      157. An audio recording of a request for emergency services or of a report of an emergency is an exempt record; however, upon request, a person may listen to the audio recording, but may not copy or record the audio. N.D.C.C. § 57-40.6-07(4). A person may also request a written transcript of the audio recording, which must be provided to the person within a reasonable time. N.D.C.C. § 57-40.6-07(4).

      Computer Software Programs:

      158. Any computer software program or component of a computer software program contracted, developed, or acquired by a public entity or state agency, institution, department, or board and for which the public entity or state agency, institution, department, or board acquires a license, copyright, or patent is exempt. N.D.C.C. § 44-04-18.5.

      Other Trade Secret, Proprietary, Commercial, and Financial Information:

      159. Trade secret, proprietary, commercial, and financial information is confidential if it is of a privileged nature and it has not been previously publicly disclosed. See N.D.C.C. § 44-04-18.4 for definitions.

      Access to Financial Account Numbers:

      160. Any credit, debit, or electronic fund transfer card or account number and any financial institution account number that a public entity, elected official, or appointed official uses or has available. N.D.C.C. § 44-04-18.9.

      Lists of Minors:

      161. Any record of a public entity that is a compilation of minors’ names, addresses, telephone numbers, or any combination thereof is exempt. N.D.C.C. § 44-04-18.13.

      Personal and Financial Information in a Consumer Complaint:

      162. Personal and financial information submitted to a state agency as part of a consumer complaint, or gathered as part of an investigation of a consumer complaint, is exempt. N.D.C.C. § 44-04-18.17.

      Autopsy Images:

      163. An autopsy photograph or other visual image or a video or audio recording of an autopsy. N.D.C.C. 44-04-18.18.

      Individual Recipients of Economic Assistance or Benefits:

      164. Records concerning individual applicants or recipients of economic assistance or support administered under the division of community services or a community action agency, including benefits or services, are exempt. N.D.C.C. § 44-04-18.19. The exempt records include applications, income or eligibility verification, assessments, or other personal, medical, or financial data. N.D.C.C. § 44-04-18.19.

      Electronic Mail Addresses and Telephone Numbers:

      165. The e-mail address or telephone number of an individual which is provided for the purpose of communicating with a public entity is an exempt record. N.D.C.C. § 44-04-18.21. The provision may not be used to shield the identity of the individual communicating with the public entity. N.D.C.C. § 44-04-18.21.

      Library, Archive, and Museum Collections:

      166. A public library, archive, or museum may designate a donated record as an exempt record if the donor of the record requests as a condition of the donation that the record not be released to the public for a specific period of time, which may not exceed twenty years beyond the death of the donor. N.D.C.C. § 44-04-18.23.

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  • Ohio

    a. Medical records: "any document or combination of documents, except births, deaths, and the fact of admission to or discharge from a hospital, that pertains to the medical history, diagnosis, prognosis, or medical condition of a patient and that is generated and maintained in the process of medical treatment." Ohio Rev. Code § 149.43(A)(3); see § 149.43(A)(1)(a).

    To be exempt, a "medical record" must be maintained or generated in the process of medical treatment. A patient care report generated by an emergency medical service squad did not qualify where the squad found the victim dead when it arrived, and thus provided no medical treatment. State ex rel. Ware v. City of Cleveland, 55 Ohio App. 3d 75, 562 N.E.2d 946 (1989).

    A psychological exam administered to candidates for public employment for the purposes of making hiring decisions is not a "medical record," and is not subject to the exemption. State ex rel. Multimedia Inc. v. Snowden, 72 Ohio St. 3d 141, 647 N.E.2d 1374 (1995)

    b. Records pertaining to parole proceedings or proceedings related to the imposition of community control sanctions and post-release control sanctions. Ohio Rev. Code § 149.43(A)(1)(b).

    c. Records of a minor female's action in juvenile court for approval of an abortion without parental notification and to appeals of those actions. Ohio Rev. Code §§ 149.43(A)(1)(c); 2151.85, 2919.121(C)(7); 2505.073. When an appeal of an action under § 2151.85 is taken in a court of appeals under § 2505.073, the public is entitled to certain information that does not directly or indirectly identify the minor or otherwise compromise the minor’s anonymity. That includes “(1) the docket number, (2) the name of the judge, and (3) the decision including, if appropriate, a properly redacted opinion. State ex rel. Cincinnati Post v. Second Dist. Court of Appeals, 65 Ohio St. 3d 378, 381 604 N.E.2d 153, 156 (1992).

    d. Records pertaining to adoption proceedings, including the contents of an adoption file maintained by the Ohio Department of Health. Ohio Rev. Code § 149.43(A)(1)(d); Ohio Rev. Code §  3705.12 et seq.

    e. Records filed with state agencies related to the putative father registry established by Ohio Rev. Code § 3107.062. The putative father registry contains the name and address of individuals for the purpose of receiving notice of a petition to adopt the minor he claims as his child  Ohio Rev. Code § 149.43(A)(1)(e).

    f. Records filed with the Ohio health department containing information identifying the biological relatives of an adopted child. Ohio Rev. Code § 149.43(A)(1)(f); Ohio Rev. Code § 3107.52(A) (Formerly § 3107.42(A)).

    g. Confidential records pertaining to mediation communications.  Ohio Rev. Code § 149.43(A)(1)(i); Ohio Rev. Code § 2710.03.

    h. Confidential records generated by the Ohio Civil Rights Commission during a preliminary investigation of alleged unlawful discriminatory practices. Ohio Rev. Code § 149.43(A)(1)(i); Ohio Rev. Code §  4112.05.

    i. DNA records of the Ohio Bureau of Criminal Identification and Investigation, which is part of the office of the Ohio Attorney General. Ohio Rev. Code § 149.43(A)(1)(j); Ohio Rev. Code §  109.573.

    j. Inmate records regarding youths released by the Ohio Department of Rehabilitation and Corrections to the Ohio Department of Youth Services or a court of record. Ohio Rev. Code § 149.43(A)(1)(k); Ohio Rev. Code §  5120.21(E).

    k. Records of the Ohio Department of Youth Services related to children in its custody that are released to the Ohio Department of Rehabilitation and Correction. Ohio Rev. Code §§ 149.43(A)(1)(l), 5139.05.

    l. "Intellectual property records," which are the work of researchers at state colleges or universities that has not yet been patented, published or publicly released. Ohio Rev. Code §§ 149.43(A)(1)(m); 149.43(A)(5).

    m. "Donor profile records," which are records "about" donors or potential donors to a state college or university. However, the names, reported addresses of actual donors, the amount donated, the dates of donations, and the conditions of donations are not exempted. Ohio Rev. Code §§ 149.43(A)(1)(n), 149.43(A)(6).

    n. Information maintained by the Ohio Department of Job and Family Services in its new hires directory. Ohio Rev. Code §§ 149.43(A)(1)(o), 3121.894.

    o. Trade secrets of a county or municipal hospital. Ohio Rev. Code § 149.43(A)(1)(q); see Ohio Revised Code § 1333.61.

    p. The address, telephone number, birth date, Social Security number, medical information and photographic image of a minor as that information pertains to the recreational activities of the minor or the obtaining of privileges to use public recreational facilities, as well as the address and phone number of the minor’s parent, guardian, or emergency contact. Ohio Rev. Code §§ 149.43(A)(1)(r), 149.43(A)(8).

    q. Various records of a child fatality review board. Ohio Rev. Code § 149.43(A)(1)(s).

    r. Certain statements provided to or by the executive director of a public children services agency or a prosecutor related to the death of a minor likely to have been caused by abuse, neglect, or other criminal conduct. Ohio Rev. Code §§ 149.43(A)(1)(t), 5153.171.

    s. Test materials, examinations, evaluation tools used in an examination to license a person as a nursing home administrator. Ohio Rev. Code § 149.43(A)(1)(u).

    t. Proprietary information related to Ohio's Venture Capital Program. Ohio Rev. Code §§ 149.43(A)(1)(w), 150.01.

    u. Financial statements and other data submitted to the Ohio housing finance agency or the controlling board related to financial assistance provided by the agency. Ohio Rev. Code § 149.43(A)(1)(x).

    v. Certain records related to day-care facilities regulated by the State. Ohio Rev. Code. § 149.43(A)(1)(y)

    w. Records filed with a county recorded related to certain military discharges. Ohio Rev. Code § 149.43(A)(1)(z).

    x. Names, addresses, and usage information for residential and commercial customers of a public utility. Ohio Rev. Code § 149.43(A)(1)(aa).

    y. Certain records related to JobsOhio, “a private non-profit corporation designed to drive job creation and new capital investment in Ohio through business attraction, retention and expansion efforts.” Ohio Rev. Code § 149.43(A)(1)(bb); Ohio Rev. Code § 187.04(C); https://jobs-ohio.com/about-jobsohio/.

    z. Certain information and records related to manufacturers and suppliers of drugs for lethal injections. Ohio Rev. Code § 149.43(A)(1)(cc); Ohio Rev. Code § 2949.221(B) and (C).

    aa. Individuals’ social security numbers, tax identifications numbers, driver’s license or other state identification number, and financial or medical account numbers. Ohio Rev. Code § 149.43(A)(1)(dd); 149.45(A)(1).

    bb. The name, address, and other personally identifiable information for individuals who have applied with the secretary of state for the address confidentiality program for certain victims of crime and other applicants who attest to fears for safety. Ohio Rev. Code § 149.43(A)(1)(ee); Ohio Rev. Code § 111.42 et seq.

    cc. Certain orders related to military service (time-limited to fifteen years after the date of the call to order). Ohio Rev. Code § 149.43(A)(1)(ff).

    dd. Home addresses, home telephone numbers, bank account numbers, and a variety of similar personal information used to administer employment benefits to and to employ a variety of public-safety officers in state and local government are exempt from mandatory disclosure. That variety of information is labeled "residential and familial" information. Ohio Rev. Code §§ 149.43(A)(1)(p), (A)(7). 

    But a journalist making a signed written request asserting that information would be in the public interest may obtain the street address of a peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, investigator of the Bureau of Criminal Identification and Investigation, or EMT's residence and certain information about their family members. Ohio Rev. Code § 149.43 (B)(9).

    Ohio Rev. Code § 149.43(B)(9)(c) defines “journalist” as “a person engaged in, connected with, or employed by any news medium, including a newspaper, magazine, press association, news agency, or wire service, a radio or television station, or a similar medium, for the purpose of gathering, processing, transmitting, compiling, editing, or disseminating information for the general public.”

    The exemption for "residential and familial" information used to exempt "any record that identifies a person's occupation as" a police officer, firefighter, or emergency medical technician, which allowed the City of Cleveland to withhold from a newspaper photographs kept by the city of several uniformed officers who had been the subject of a city-promoted "photo op" when they were honored for valor. That provision is no longer in the statute. See State ex rel. Plain Dealer Publishing Co. v. Cleveland, 106 Ohio St. 3d 70, 831 N.E.2d 987 (2005).

    v. Trial preparation records: "any record that contains information that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding, including the independent thought processes and personal trial preparation of an attorney." Ohio Rev. Code §§ 149.43(A)(1)(g), (A)(4).

    Where a public office is litigating against a private party, and obtains records from that private party in discovery, those records ordinarily qualify as "trial preparation records" during "the discovery phase of the litigation." Cleveland Clinic Found. v. Levin, 120 Ohio St. 3d 1210, 1212, 898 N.E.2d 589, 591, 2008-Ohio-6197, ¶ 10.

    “[W]hen an investigation has multiple purposes, the records of that investigation cannot be said to be trial preparation records.” State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St. 3d 392, 395–96, 31 N.E.3d 616, 621, 2015-Ohio-974, ¶ 14.

    The recording of a 911 call in which the caller says that he murdered someone is not a "trial preparation record" because all of those calls are recorded automatically, regardless of whether they have any actual or potential relation to civil or criminal litigation. So they are not "specifically complied in reasonable anticipation of" litigation. State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St. 3d 392, 395–96, 31 N.E.3d 616, 621, 2015-Ohio-974.

    Investigations that precede a decision to litigate—just "to find out what the facts were"—is not sufficiently linked to the prospect of litigation to generate "trial preparation records." State ex rel. Coleman v. Cincinnati, 57 Ohio St.3d 83, 84, 566 N.E.2d 151 (1991); Franklin Co. Sheriff's Dept. v. SERB, 63 Ohio St. 3d 498, 589 N.E.2d 24 (1992) (State Employment Relations Board had to submit its investigatory records to court to decide in camera whether they would qualify as "trial preparation records").

    Police investigations to see if a crime was committed —that precede any decision to initiate or defend litigation—"do not easily fit within" the exemption for "trial preparation records." State ex rel. Coleman v. Cincinnati, 57 Ohio St.3d 83, 84, 566 N.E.2d 151 (1991).

    Trial preparation records do not lose their exempt status merely because they were produced in discovery to a criminal defendant—even though the criminal defendant has no legal duty to keep them confidential. The criminal defendant has them, and may be free to disseminate them, but that doesn't mean that the public office must disclose them to the public upon request. State ex rel. WHIO v. Lowe, 77 Ohio St.3d 350, 673 N.E.2d 1360 (1997).

    Where the record was a public record at its inception, and later became part of the prosecutor's file, the record retains its status as a public record. So, a tape of a 911 call containing a homicide confession, which was a public record at its inception, does not become an exempt trial preparation record merely because the prosecutor has chosen to use it as evidence in a criminal prosecution. State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St. 3d 374, 662 N.E.2d 334 (1996).

    A "trial preparation record" retains its exempt status only until the completion of all trial court and appellate court proceedings. State ex rel. Steckman v. Jackson, 70 Ohio St. 3d 420, 639 N.E.2d 83 (1994), rev’d on other grounds in State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 89 N.E.3d 598, 2016-Ohio-8394.

    A record generated in anticipation of internal employee discipline is not a "trial preparation" record. State ex rel. Police Officers For Equal Rights v. Lashutka, 72 Ohio St. 3d 185, 648 N.E.2d 808 (1995).

    Settlement agreements that end a lawsuit are not "trial preparation" records. State ex rel. Kinsley v. Berea Bd. of Edn, 64 Ohio App. 3d 659, 582 N.E.2d 653 (1990); see also State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St. 3d 126, 781 N.E.2d 163 (2002) (trial preparation exemption does not apply to a proposal to settle potential litigation).

    w. Confidential law enforcement investigatory records. Ohio Rev. Code § 149.43(A)(1)(h); Ohio Rev. Code § 149.43(A)(2). Requesters often seek records that public offices insist fall within this sophisticated exemption.

    First: To qualify under this exemption, the records first must pertain to a "law enforcement matter." But enforcing a law is not confined to enforcing laws with criminal penalties. It applies also to enforcing laws that have sanctions that are treated as civil or administrative, and so have no potential imprisonment of other criminal attributes. Enforcing a regulation of the state environmental protection agency counts under this exemption because the regulation has an administrative sanction for failing to comply with the duty that it imposes.

    Deciding whether a public office is acting to enforce a law isn't always easy. When a city fires an employee for insubordination, is the city enforcing a law? Usually the answer is "no." Instead the city is exercising its right to end its informal contract to employ the discharged worker.

    Unlike a contract—where both sides agree—a law is a rule that binds the public or some portion of the public whether they agree with the rule or not. Only a government body authorized by a city charter or a state or federal constitution to produce such binding rules can produce laws. Legislatures and city councils have the power to create laws. Administrative agencies have the power to adopt regulations that are enforceable as laws, but only if a legislature or council has authorized the agency to do that. A single public official in the executive branch, such as the mayor or the public safety director or the director of human resources, rarely has the authority to make a law.

    So, when police undertake a background investigation of a prospective public employee, or when they investigate facts for an official to decide whether to discipline or fire an existing employee, police are not "enforcing" a "law." State ex rel. Multimedia v. Snowden, 72 Ohio St. 3d 141, 647 N.E.2d 1374 (1995); State ex rel. Police Officers For Equal Rights v. Lashutka, 72 Ohio St. 3d 185, 648 N.E.2d 808 (1995); State ex rel. Freedom Communications v. Elida Community Fire Company, 82 Ohio St. 3d 578, 697 N.E.2d 210 (1998) (investigation of alleged sexual assault conducted internally as personnel matter is not law enforcement matter); State ex rel. Lorain Journal Co. v. City of Lorain, 87 Ohio App. 3d 112, 621 N.E.2d 894 (1993) (results of polygraph tests given to prospective employee).

    Also, an agency cannot withhold records produced by a law enforcement investigation where that agency was not the one doing the investigating, and had no authority to undertake the investigation. State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 684 N.E.2d (1997) (records of an investigation of alleged child abuse in the custody of county ombudsman office that has no law enforcement authority).

    Second: Second, the release of the requested records must "create" a "high probability" of disclosing certain "taboo" information listed in the exemption.

    One would expect that, where the press already has publicized the "taboo" information, then releasing a record of that information could not "create" the probability of disclosing the information because that information already is in the public domain.

    But the Ohio Supreme Court has decided otherwise. An uncharged suspect's identity may be "confidential" and thus redacted—even though press coverage already has identified the suspect. State ex rel. WLWT v. Leis, 77 Ohio St.3d 357, 673 N.E.2d 1365 (1997)(overruled on other grounds in State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 89 N.E.3d 598, 2016-Ohio-8394); State ex rel. Master v. City of Cleveland, 76 Ohio St. 3d 340, 667 N.E.2d 974 (1996).

    The "taboo" information is:

    a. The identity of a suspect who has not been charged with the offense to which the record pertains. What about the record of the police arresting someone who has not been charged with an offense? The authorities have taken away that person's liberty. Does the absence of a formal charge against that person mean that police may conduct essentially secret arrests so long as they detain the person without formally charging him or her? No. The Ohio Supreme Court has ruled that the exemption does not apply to records of arrests—regardless of whether the arrested person has not been charged with any offense. State ex rel. Outlet Communications Inc. v. Lancaster Police Dept., 38 Ohio St. 3d 324, 528 N.E.2d 175 (1988); State ex rel. Moreland v. City of Dayton, 67 Ohio St. 3d 129, 616 N.E.2d 234 (1993).

    A "suspect" is a person who is a subject of investigation, but who has not been arrested, has not received a citation, and has not been indicted or named as a defendant in a criminal complaint. State ex rel. Polovischak v. Mayfield, 50 Ohio St. 3d 51, 552 N.E.2d 635 (1990).

    That the police have labeled an investigation "inactive" so that the person in question is not currently a suspect is irrelevant; the exemption still applies. State ex rel. Moreland v. City of Dayton, 67 Ohio St. 3d 129, 616 N.E.2d 234 (1993); State ex rel. Ohio Patrolmen's Benevolent Association v. City of Mentor, 89 Ohio St. 3d 440, 732 N.E.2d 969 (2000) (The "absence of pending or highly probable criminal charges is not fatal to the applicability of the uncharged-suspect exemption"); State ex rel. Musial v. North Olmsted, 106 Ohio St. 3d 459, 835 N.E.2d 1243 (2005) (rejecting argument that exemption does not apply when a grand jury declines to indict and charges are unlikely). But see, Bentkowski v. Trafis, 56 N.E.3d 230, 239, 2015-Ohio-5139, ¶ 26, (The uncharged suspect exemption does not apply “because the closed police investigation did not include the name of any suspect since no crime was committed”).

    b. The identity of an information source to whom confidentiality has been reasonably promised. The obvious choice here is a confidential police informant. The exemption applies even where police did not put a promise of confidentiality in writing. State ex rel. Martin v. City of Cleveland, 67 Ohio St. 3d 155, 616 N.E.2d 886 (1993).

    Before a promise of confidentiality can be reasonable, it must be made on the basis of an individualized determination by the official that the promise is necessary to obtain the information. State ex rel. Toledo Blade Co. v. Telb, 50 Ohio Misc. 2d 1, 552 N.E.2d 243 (1990).

    c. The identity of a witness to whom confidentiality has been reasonably promised. This part of the exemption is bad policy. For someone to qualify as a "witness," that person must have firsthand knowledge of information that is relevant to a violation of the law that authorities are trying to enforce. Despite the statutory exemption, witnesses testify publicly in open court virtually always, and their identities are placed on witness lists that are open to the public when filed with the court. Therefore, promising confidentiality to a bona fide "witness" should rarely be "reasonably" promised because the court system mandates making that person's identity public, and exceedingly rarely would abide by the promise if the law enforcement agency insisted that the witness testify in some way that conceals the witness' identity.

    The exemption did not authorize a university to promise confidentiality to employees in exchange for obtaining information for use in deciding whether to promote or give tenure to another employee. State ex rel. James v. Ohio State Univ., 70 Ohio St. 3d 168, 637 N.E.2d 911 (1994).

    Where an agency is investigating whether one of the agency's supervisors for allegedly sexually harassing subordinate employees, the investigator reasonably promised confidentiality to the alleged victims when interviewing them, and to other employees whom he interviewed. State ex rel. Yant v. Conrad, 74 Ohio St. 3d 681, 684, 660 N.E.2d 1211, 1214 (1996).

    d. Information provided by an information source or witness to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose the source's or witness' identity. State ex rel. Beacon Journal Pub. Co. v. Kent State Univ., 68 Ohio St. 3d 40, 43, 623 N.E.2d 51, 54, 1993-Ohio-146 (“If the victim's name and any identifying features are deleted, the text of the letters would not, directly or by inference, identify the informant. Thus, releasing the redacted letters creates no 'high probability of disclosure' of the confidential informant's identity.").

    e. Specific confidential investigatory techniques.

    f. Specific confidential investigatory procedures. Routine investigatory procedures do not qualify under this exemption. State ex rel. Beacon Journal Pub. Co. v. Univ. of Akron, 64 Ohio St. 2d 392, 415 N.E.2d 310 (1980).

    g. Specific investigatory work product. This is probably the most litigated part of the confidential law investigatory records exemption. It covers the records produced by investigators in the course of a law enforcement investigation. Work product “means notes, working papers, memoranda, or similar materials prepared by law-enforcement officials in anticipation of litigation.” State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St. 3d 392, 397, 31 N.E.3d 616, 622, 2015-Ohio-974, ¶ 18.

    The exemption applies to coroners' autopsy reports. State ex rel. Cincinnati Enquirer v. Pike County Coroner’s Office, __ N.E.3d __, 2017-Ohio-8988 (Ohio Supreme Court).

    But records that were public records before the investigation started retain that status even if investigators gather and keep them in the course of investigating—even if they contain evidence of a crime. State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 662 N.E.2d 334 (1996) (911 tape with confession of homicide is public record).

    Records that are unquestionably nonexempt, e.g., newspaper articles, contracts, campaign contributions, do not become exempt simply because they are the subject of grand jury subpoenas. State ex rel. Gannett Satellite Network Inc. v. Petro, 80 Ohio St. 3d 261, 685 N.E.2d 1223 (1997).

    Information gathered during an investigation is not specific investigatory work product when it is not clear that a crime has occurred, because the records are then compiled by law enforcement investigators to determine if any crime has occurred. State ex rel. Ohio Patrolmen's Benevolent Association v. City of Mentor, 89 Ohio St. 3d 440, 732 N.E.2d 969 (2000).

    When police officers first respond to a call for service, they document on a preprinted form (or digital form) what they saw and heard when they arrived at the scene of the incident. Those reports often are referred to by the press and public as "police reports." Caselaw interpreting the exemption for specific investigatory work product calls them "incident" reports or "offense/incident" reports—which often is the title that appears at the top of the form.

    Incident reports are not specific investigatory work product, and so are public records. E.g., State ex rel. Miller v. Pinkney, 149 Ohio St.3d 662, 77 N.E.3d 915, 2017-Ohio-1335.

    Because initial offense incident reports are public records, a narrative attached to an incident report must be disclosed without redaction even though it contains the name of an uncharged suspect. State ex rel. Beacon Journal Publishing Co. v. Maurer, 91 Ohio St. 3d 54, 741 N.E.2d 511, 2001-Ohio-282.

    But the Ohio Supreme Court later addressed its decision in Maurer, saying that Maurer “did not adopt a per se rule that all police offense-and-incident reports are subject to disclosure notwithstanding the applicability of any exemption.” State ex rel. Cincinnati Enquirer v. Ohio Dep't of Pub. Safety, 148 Ohio St. 3d 433, 442, 71 N.E.3d 258, 267, 2016-Ohio-7987, ¶ 44.

    The court noted that it had ruled a decade earlier that an incident report could be redacted to delete personal information about a child rape victim. State ex rel. Beacon Jrnl Pub. Co. v. City of Akron, 104 Ohio St.3d 399, 819 N.E.2d 1087, 2004-Ohio-6557.

    In the Cincinnati Enquirer case decided in 2016, the court declined to rule that all video and audio recordings from police squad car dash-cameras are per se outside the exemption for specific investigatory work product. In that case, the court ruled that some of the recording documented specific investigatory work produce, and some did not. The court ruled that the exemption applied to the part of the recording where police questioned a suspect after advising him of his Miranda rights.

    The exemption for specific investigatory work-product ceases to apply to investigatory records once the trial for which the records were generated is over. State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 89 N.E.3d 598, 2016-Ohio-8394 (overturning State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994), which held that the work-product exemption continued to apply until all trial and post-trial proceedings are over and the criminal defendant has no possibility of retrial, and State ex rel. WLWT–TV5 v. Leis, 77 Ohio St.3d 357, 360, 673 N.E.2d 1365 (1997), which held that the exemption applied “until all proceedings are fully completed.”).

    h. Information that would endanger the life or physical safety of at least one of these kinds of people:

    • law enforcement personnel;

    • a crime victim (which is almost always an accusing witness);

    • a witness (which would include the victim);

    • a confidential informant (called a "confidential information source").

    The proponent of this exemption must show that "disclosure of the records will really pose a risk." State ex rel. Lippitt v. Kovacic, 70 Ohio App. 3d 525, 591 N.E.2d 422 (Cuya. App. 1991).

    Apart from the exemption, the Ohio Supreme Court and the United States Court of Appeals for the Sixth Circuit, whose jurisdiction includes Ohio, have interpreted the 14th Amendment to the United States Constitution as barring the release of records to protect law enforcement officers from potential threats to their safety. If release of the records would place a law enforcement officer at substantial risk of death or serious bodily harm, a public office cannot release the records even if the Public Records Act would require a public office to release it. State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999); Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998); but see Kallstrom on remand, 165 F.Supp.2d 686 (S.D. Ohio 2001) (same police officers had no constitutional privacy interest where much of the information claimed to be constitutionally-protected was already in the public domain). 

    x. Records the release of which is prohibited by state law. Ohio Rev. Code § 149.43(A)(1)(v). The Ohio Revise Code contains hundreds of separate provisions excluding classes of records as "public records."

    It is possible that a protective order, issued by a judge, may qualify a confidential settlement for the state law exemption, thus maintaining the secrecy of the settlement terms. See State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St. 3d 126, 781 N.E.2d 163 (2002).

    The Ohio Supreme Court has adopted principles grounded in the constitutional separate of powers to find an executive privilege for the Ohio Governor’s internal communications. See State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 368-380, 848 N.E.2d 472, 477-487, 2006-Ohio-1825 ¶¶ 20-74.

    y. Records the release of which is prohibited by federal law. Ohio Rev. Code § 149.43(A)(1)(v).

    The Ohio Supreme Court has ruled that the federal Copyright Act barred a county engineer from releasing digital copies of public records where the county would also have to release a copy of copyright-protected software to make the records readable. State ex rel. Gambill v. Opperman, 135 Ohio St.3d 298, 986 N.E.2d 931, 2013-Ohio-761.

    The United States Court of Appeals for the Sixth Circuit and the Ohio Supreme Court have interpreted the federal constitutional right of privacy as barring release of public records if the release poses a substantial risk of death or serious bodily harm, specifically to law enforcement officers, but the principle could apply to anyone. Kallstrom v. City of Columbus, 136 F.3d 1055 (1998) (names, addresses, drivers licenses of alleged undercover police officers contained in police personnel files when requested by attorney for dangerous criminal defendants); but see Kallstrom on remand, 165 F.Supp.2d 686 (S.D. Ohio 2001) (same police officers had no constitutional privacy interest where much of the information claimed to be constitutionally-protected was already in the public domain). 

    See also State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999) (relying on the federal court of appeals' ruling in Kallstrom); State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 725 N.E.2d 1144, 2000-Ohio-345 (home addresses and telephone numbers for minors who applied for identification badges to facilitate use of municipal recreation facilities to requester who posed no demonstrated threat of harm).

    The Ohio Supreme Court also has applied the 14th Amendment right to informational privacy to social security numbers of public employees because releasing the social security numbers posed a threat that someone might use them for identity theft. State ex rel. Beacon Journal Publishing Co. v. City of Akron, 70 Ohio St.3d 605, 640 N.E.2d 164 (1994).

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  • Oklahoma

    a. Personnel records. May be kept confidential if they relate to internal personnel investigations or where disclosure would constitute a clearly unwarranted invasion of the personal privacy of the employee. Also, any college transcripts contained in the files are confidential except as to the degree obtained and the curriculum on the transcripts of certified public employees. The home address, telephone number and Social Security number of any current or former employee shall be kept confidential. 51 O.S. § 24A.7. See also 1999 OK AG 30.  The Attorney General determined that a public body has the discretion to determine whether disclosing a personnel record indicating the date of birth of an employee is an unwarranted invasion of personal privacy.  2009 OK AG 3.  However, the Supreme Court has held that release of birth dates and employee identification number of state employees would constitute a clearly unwarranted invasion of personal privacy.  Okla. Public Employees Assoc. v. State ex rel Okla. Office of Personnel Management, 2011 OK 68.   Further, the public body may keep confidential records indicating the name of an employee who has been placed on administrative leave with pay if the action is neither a “final” or “disciplinary” action. 2009 OK AG 3.

    b. Law enforcement records. May be kept confidential if they do not fit into the ten specific categories of records to be made available for public inspection or if they are not made open by other state or local laws. 51 O.S. § 24A.8(A)(1)-(10).  Access to the records may be denied unless the Court finds a public interest or individual interest outweighs the reason for denial. 51 O.S. § 24A.8.A-D. Registration maintained by the Department of Corrections pursuant to the Sex Offenders' Registration Act are open to public inspection. 51 O.S. § 24A.8.E. See also 57 O.S. § 584 E-F. Records in law enforcement officials are confidential except as specifically made public by statute. 51 O.S. § 24A.8.F-G.

    c. Personal notes. Notes prepared as an aid to memory or research leading to adoption or implementation of a public act may be kept confidential prior to the time the action is taken. However, if the materials are part of a departmental budget request the exemption does not apply. 51 O.S. § 24A.9.

    d. Bids, appraisals, etc. Bid specifications, contents of sealed bids, computer programs, appraisals of real estate and prospective locations of private business or industry may be kept confidential if disclosure would give an unfair advantage to competitors or bidders. This does not include records which would otherwise be open to inspection such as applications for permits or licenses. 51 O.S. § 24A.10.A-B.  The Oklahoma Department of Commerce, the Oklahoma Department of Career and Technology Education, the technology center school districts, the Oklahoma Film and Music and institutions within the Higher Education system may keep much of its activities confidential.  51 O.S. § 24.A.10.C.   A public body that performs billing or collection services for a utility regulated by the Corporation Commission may keep confidential any customer or individual payment data obtained or created by the public body. 51 O.S. § 24A.10.D.

    e. Market research and marketing plans.  The Oklahoma Medical Center may keep confidential certain market research and marketing plans if disclosure would give an unfair advantage to competitors of the center. 51 O.S. § 24A.10.a.

    f. Library archive or museum materials. Donated materials may be kept confidential if the donor has imposed limitations. The identity of the individual may be kept secret if anonymity is a condition of the donation. See also 2002 OK AG 27. However, if a tax deduction is claimed with the donation, the public body must make available the date of the donation, the appraised value claimed for the donation for tax purposes and a general discussion of the materials donated. 51 O.S. § 24A.11.

    g. Litigation and investigatory files. The Attorney General, District Attorneys and Municipal Attorneys may keep litigation files confidential. 51 O.S. § 24A.12. A district attorney may keep confidential records contained in litigation files. 1999 OK AG 58.   However, access to a document that would otherwise be available for inspection and copying cannot be denied because a public official or agency has taken possession of the document and placed it in a litigation file.  51 O.S. § 24A.20.

    h. Federal records.  Records coming into possession of a public body either from a federal agency or as a result of federal legislation may be kept confidential to the extent required under federal law. 51 O.S. § 24A.13. Nursing registry information required to be compiled by federal law is exempt from disclosure under the Act. 2001 OK AG 7.

    i. Communications Received by Public Official.  Personal communications made to a public official by a person exercising a state or federal constitutional right may be kept confidential except that the public official must acknowledge receipt of the communication and whether the communication is or is not a complaint. The rights secured relate only to those associated with the government’s power to redress grievances.  1988 OK AG 86.  Any official response may be kept confidential only to the extent necessary to protect the individual's identity. 51 O.S. § 24A.14.  Further, records created by a public body after receipt of the complaint must be open to the public for review with the public body taking whatever steps are necessary to protect the identity of the complainant.  Bd. of Med. Licensure v. Miglaccio, 1996 OK CIV APP 37. The Attorney General has also determined that a written request for the issuance of a formal written Attorney General Opinion made by a member of the Legislature or another public official is a record under the Act and must be made available upon request.  2015 OK AG 3.

    j. Crop and livestock reports. Reports provided by farmers, ranchers and agribusinesses to the Division of Agricultural Statistics may be kept confidential to the extent the report identifies the individual. 51 O.S. § 24A.15.

    k. Educational records and materials.  Such records may be kept confidential to the extent that the documents are individual student records, teacher lesson plans, tests and other material, and personal communications about the individual students. Statistical information which does not identify a particular student and directory information must be made available. Directory information may be withheld if the parent of the individual student notifies the school that the information should not be released. 51 O.S. § 24A.16.

    l. Donor Information.  Oklahoma State System of Higher Education may keep confidential all information pertaining to donors and prospective donors to or for the benefit of its institutions or agencies.  51 O.S. § 24A.16a.

    m. Research Records.  Information related to research done by a public body may be kept confidential when the disclosure of such information may affect the proprietary rights the public entity may have in the research and results of such research. 51 O.S. § 24A.19.

    n. Public Utilities.  Corporation Commission, and all entities regulated by the Commission, shall keep confidential those records of a public utility, its affiliates, suppliers and customers which are determined to be confidential books and records or trade secrets. 51 O.S. § 24A.22.

    o. Department of Wildlife Conservation. The Department shall keep confidential the information provided by persons, including the name and address of the person, applying for or holding any permit or license issued by the Department, to the extent the information individually identifies the person. This does not apply to information provided by persons applying for or holding a commercial hunting or fishing license. 51 O.S. § 24A.23.A.  The Department shall also disclose online or in published listings the antler description of each deer harvested and the name of the hunter who harvested the deer unless the hunter elects to not have his named released.  51 O.S. § 24A.23.D.

    p. Office of Juvenile System Oversight.  The Office may keep its investigatory records and notes confidential, unless ordered by a court of competent jurisdiction to disclose the information. 51 O.S. § 24A.24.

    q. Intergovernmental self-insurance pools.  These self-insurance pools may keep proprietary information confidential. 51 O.S. § 24.A.26.

    r. Vulnerability assessments of critical assets.  State environmental agencies or public utilities may keep confidential vulnerability assessments of critical assets in both water and wastewater systems. 51 O.S. § 24.A.27.

    s. Act or Threat of Terrorism.  When enacted in 2003, the threat of terrorism act made confidential all information relating to the investigation, deterrence, prevention or protection from an act or threat of terrorism including informational technology related to same. 51 O.S. § 24A.28.   In 2013, the Legislature added to the exclusion records received, maintained and generated by the Department of Environmental Quality that contained information regarding sources of radiation in quantities deemed significant to public health and safety.  51 O.S. § 24A.28.A.9.  In 2015, the Legislature authorized that the names of school district personnel who have designated to a carry firearm in the school be kept confidential.  25 O.S. § 24A.28.A.10.

    t. Protective Orders.  Protective orders directing the withholding or removal of pleadings or other materials from a public record may only be issued after a court has determined it is necessary in the interests of Justice. 51 O.S. § 24.A.29.   The Oklahoma Supreme Court has stated that there are no provisions in the Open Records Act that allow parties to simply agree to seal a public record and submit a summary agreed order to the court.  Shadid v. Hammond, 2013 OK 103.  See also Ober v. State ex rel. Department of Public Safety, 2016 OK CIV APP 2  (Appellate Court reversed a trial court’s issuance of a protective order that sealed the entire record and prevented public access and knowledge of a teacher convicted for driving under the influence and revocation of the teacher’s driver’s license).

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  • Oregon

    Exemptions under ORS 192.345 (formerly ORS 192.501). Each of these exemptions is conditional, that is, even if its scope applies, exemption is subject to whether “the public interest requires disclosure in the particular instance.” The burden of proving the applicability of any exemption under ORS 192.345 (formerly ORS 192.501) is on the public body. Moreover, there is always a presumption in favor of disclosure. Guard Pub. Co. v. Lane County Sch. Dist. No. 4J, 310 Or. 32, 791 P.2d 854 (1990); Turner v. Reed, 22 Or. App. 177, 538 P.2d 373 (1975). The identity of the requester and her motives are not relevant in determining whether the request falls within the scope of the exemption. They are relevant, however, if the question of the public interest is reached.

    (1) Records of a public body pertaining to litigation in which the public body is a party or where the public body shows that such litigation is reasonably likely to occur. This exemption applies only to those records compiled or acquired by the public body for use in existing or demonstrably expected litigation and not records collected in the ordinary course of business, even if subsequently relevant to litigation. Lane County School District v. Parks, 55 Or. App. 416, 637 P2d 1383 (1981). It does not apply to administrative proceedings or to litigation that has been concluded.

    (2) Trade Secrets. Trade secrets are defined by statute as non-patented formula, plans, processes, production data and similar information. In order to qualify for the exemption, the information must be known only to certain persons within an organization, be used for business purposes, have an actual potential commercial value, and give a user an opportunity to obtain a business advantage over competitors. Fee schedules and price lists may qualify. The “trade secret” definition in the Oregon statute is somewhat narrower than in the Uniform Trade Secrets Act, and this relationship is not clear.

    (3) Investigatory information compiled for criminal law purposes, other than the record of an arrest or the report of a crime, unless there is a clear need in a particular case to delay disclosure of an arrest or crime report. Disclosure of arrest information or the report of a crime may be delayed only if and for so long as a clear need is shown, including protection of the victim or complaining party. Again, this is a conditional exemption, and the public interest may require disclosure.

    (4) Test questions, scoring keys, and other licensing examinations or employment testing data. The statute also covers procedures relating to administration and grading of examinations where the result might be affected by disclosure. This exemption is designed to protect the integrity of the testing or examination process.

    (5) Production, sale or purchase records or other private records required by law to be submitted to a public agency in order to determine fees or assessments and the amounts of fees or assessments payable. This exemption applies only if the information would permit identification of a specific business concern. The exemption does not cover business records submitted in connection with an application for a license or permit because this information is not utilized to determine a fee or assessment for establishing a production quota.

    (6) Real estate appraisals provided prior to acquisition. This exemption applies where the public body is interested in acquiring or condemning (but not disposing of) real property.

    (7) Names of employees requesting representation or decertification elections. This exemption is applicable only to information on specific individuals, not to the number of employees who have voted for or against such actions.

    (8) Investigatory information relating to a complaint filed with the Bureau of Labor. This exemption does not apply to the complaint itself. The exemption ends when the complaint is resolved or a final order is issued.

    (9) Investigatory information relating to unfair labor practice complaints. Again, the complaint itself is not exempt.

    (10) Reports or information received or compiled by the Director of the Department of Consumer and Business Services. This relates to investigations and enforcements concerning debt consolidating agencies.

    (11) Information relating to location of archeological sites or objects except in cases where a governing body of an Indian tribe requests such information for purposes of the tribe’s cultural or religious activities. This exemption does not apply to commonly known and publicized tourist facilities or attractions.

    (12) Personnel discipline action or information supporting such action. This exemption relates only to records concerning a completed disciplinary action. It does not apply if an employee resigns. The Attorney General has taken the position that a public body may postpone a request for records while a disciplinary action is still pending. The public interest may in any event require disclosure.

    (13) Information developed under state statute regarding the habitat, location or population of any threatened or endangered species. This exemption is similar to the archeological site exemption, subsection (11) above.

    (14) Writings prepared by, or under the direction of, faculty of public educational institutions completed in connection with research. This exemption applies only before the information is released, copyrighted or patented.

    (15) Computer programs developed by a public body for its own use. This exemption does not pertain to original data or analyses of original data. The exemption includes information that would permit computer access.

    (16) Agricultural producers mediation records. This applies to information in connection with certain agricultural foreclosure proceedings.

    (17) Unsafe workplace investigations. This applies to workplace investigatory information but only until a final determination is made.

    (18) Operational plans regarding threats to individual or public safety. This deals with anticipated threats to individuals or to the public safety and applies where disclosure would endanger individuals or jeopardize the law enforcement activity.

    (19) Audits of a telecommunications utility. This exemption is designed to protect internal evaluations or critiques of the utility’s operations and financial statements required to be filed under state law. It does not protect an audit of a cost study that would be discoverable in a contested case dealing with rates or other matters.

    (20) The residence address of an elector (voter) where a showing of a reasonable threat to personal safety is present. The withholding of such information must be at the request of the voter, accompanied by verifiable information demonstrating the basis of the threat. This is similar to exemption under ORS 192.368 (formerly ORS 192.445).

    (21) Housing authority information submitted by applicants for and recipients of loans, grants and tax credits. This exemption applies to a variety of financial information relating to low income housing developers.

    (22) Records that, if disclosed, would allow unauthorized access to public property or would identify areas of structural or operational vulnerability allowing unlawful disruption of public services. This exemption protects the delivery of public services and permits withholding of building information and information that would allow access to public funds or information processing systems.

    (23) Records that, if disclosed, would reveal security measures relating to public employees, public buildings, computer or telecommunications services or the secured operations of the Oregon Lottery. This is a companion provision to ORS 192.345(22) (formerly ORS 192.501(22)).

    (24) Personal information held by Oregon Health Sciences University (OHSU) or referenced public universities relating to a person who has donated or is interested in donating to OHSU or the public university. The exemption applies to information that is personal in nature.

    (25) Public university donation records. This exempts the home address, professional address and telephone number of any person who has donated or is interested in donating to a state university, regardless of what public body holds that information.

    (26) Records of persons who file with or pay an assessment to certain state-created agricultural marketing groups. This exempts disclosure of the names and addresses of those filing.

    (27) Financial transfer records. This exempts all information a public body possesses in relation to fund transfers.

    (28) Social Security numbers related to marital annulment, dissolution or separation. Court records on these subjects must redact SSN information.

    (29) Student e-mail addresses. This exempts all e-mail addresses of students attending referenced public universities or OHSU.

    (30) OHSU medical researcher information. This exempts personal information and location of those conducting research using animals.

    (31) Certain personal information of public safety officers, if requested.

    (32) Personal information of certain government attorneys that is contained in deeds and records not in records of the county clerk. This exempts certain personal information if requested by prosecuting attorneys, except that certain financial, mortgage, and title companies may successfully request such information.

    (33) Certain land management plans and conservation agreements.

    (34) Sensitive records of the Oregon State Accident Insurance Fund Corporation (SAIF). This exempts sensitive business, financial, and commercial information of SAIF that is “not customarily provided to business competitors,” with certain enumerated exceptions.

    (35) Records of pending investigations by the Department of Public Safety Standards and Training. This exempts information relating to investigations conducted under ORS 181.662 or 181.878 (6), until the department issues the report described in ORS 181.662 or 181.878.

    (36) Medical examiner’s reports. This exempts a medical examiner’s report, autopsy report or laboratory test report ordered by a medical examiner under ORS 146.117.

    (37) Audit-related materials of auditors related to audits of public bodies prior to issuance of final reports, with exceptions.

    (38) Personally identifiable information concerning electronic fares related to public transit.

    (39) Personal information of civil code enforcement officers, upon request.

    (40) Police Body camera audio and video recordings of interactions with the public.

    Exemptions which either are unconditional or have a self-contained balancing test concerning the public interest. ORS 192.355 (formerly ORS 192.502).

    (1) Communications within a public body or between public bodies of an advisory nature. This exemption applies to matters which are not factual and are preliminary. It applies only if the public body demonstrates in a particular instance that the public interest in encouraging “frank communication” between public officials “clearly outweighs” the public interest in disclosure. Drafts of materials and preliminary reports are public records for purposes of this exemption. Attorney General Manual, § I.E.4.(1). Moreover, factual matters must be disclosed in any event.

    (2) Information of a personal nature, including but not limited to the type of information kept in a personal, medical or similar file, if public disclosure of the information would constitute an “unreasonable invasion of privacy.” This exemption applies only to information of a personal nature. The public body has the burden of establishing this. Moreover, it must be established that disclosure would constitute an unreasonable invasion of privacy, that is, disclosure would be “highly offensive” to a reasonable person. Even if this is shown, disclosure is appropriate if, by clear and convincing evidence, it is shown that the public interest requires it.

    (3) Public employee or volunteer addresses, birthdates, Social Security and telephone numbers maintained by a public agency. This exemption does not apply to elected officials except judges and district attorneys, or to substitute teachers when requested by the teacher’s professional union, and it does not apply when the party seeking disclosure shows by clear and convincing evidence that the public interest requires disclosure. By amendment in 2015, the party seeking disclosure must satisfy ORS 192.363 to obtain the records, and a public body must follow the specified process therein as well.

    (4) Information submitted to a public body in confidence where such information is not required by law to be submitted. This exemption employs a five-part test: first, the information was submitted on the condition it would be kept confidential; second, the information was not required by law to be submitted; third, the information should reasonably be considered confidential; fourth, the public body must have committed itself, in good faith, to keep the information confidential; and finally, the public interest would suffer if the information were disclosed.

    (5) Information or records of the Department of Corrections (including State Parole Board) to the extent that disclosure would interfere with rehabilitation. This exemption does not apply unless the public interest in confidentiality “clearly outweighs” the public interest in disclosure.

    (6) Records, reports and other information compiled by the Director of the Department of Consumer and Business Services relating to lending institutions. This exemption applies only where the interests of lending institution officers, employees and customers in preserving confidentiality outweighs public interest and disclosure.

    (7) Pre-Sentence Reports, Reports of Probation Officers and Victims Statements. This exemption incorporates statutes prohibiting disclosure.

    (8) Any records which are prohibited from disclosure by federal law or regulations. The Attorney General concludes that this exemption applies even if the federal law enforces nondisclosure only indirectly, through loss of funds.

    (9) Records or information prohibited or restricted or otherwise made confidential or privileged under Oregon law. This is an unconditional exemption relating to numerous records statutes found outside of the Public Records Law. It includes evidentiary privileges, although it includes a limitation for attorney-client privilege under certain circumstances. The Attorney General Manual gathers many of these provisions in its Appendix G.

    (10) Public records otherwise exempt which are transferred between or among public agencies. This exemption is designed to extend the exemption when records are transferred to another agency, if originally exempt or confidential. Under ORS 192.410(1), the custodian of a public record does not include a public body that has custody only as agent of another public body, unless the record is not otherwise available.

    (11) Records of the Energy Facility Siting Council concerning security programs. This exemption generally relates to security of nuclear power plants.

    (12) Employee and retiree personal information obtained by the Public Employees’ Retirement System. This relates to personal financial information to be released only to the individuals it concerns.

    (13) Records submitted by private persons or businesses to the State Treasurer or to the Oregon Investment Council relating to matters under consideration for public investment. This exemption applies only to the extent that disclosure of such records would reasonably be expected to limit the ability of the Oregon Investment Council to compete effectively in pursuit of investment objectives. This exemption does not apply to concluded transactions.

    (14) Certain investment records of or submitted to the State Treasurer, the Oregon Investment Council, the Oregon Growth Account Board or the agents of those entities relating to investments in private investment funds under ORS 293 or 348. Exempts background material such as financial statements, portfolio information, and agreements, but does not exempt information on the identity of funds and the value of investments.

    (15) Monthly reports concerning the Public Employees’ Retirement Fund and Industrial Accident Fund. This exemption applies to such records for a period of 90 days at the end of each calendar quarter.

    (16) Reports of abandoned property until such time as the Director of the Division of State Lands has provided public notice thereof. This exemption applies for two years only.

    (17) Records submitted to various economic development organizations. This exemption covers personal financial statements, certain agribusiness records, customer lists, marketing strategies, and negotiations where information is provided by applicants “for loans or services.”

    (18) Reports submitted by private concerns used for computation of a transient lodging tax where the report would allow identification of the private concern. If the tax is delinquent for more than 60 days, however, disclosure of the identifying information shall occur, along with other data about the delinquency.

    (19) Information supplied for purposes of requesting court-appointed legal counsel. Exempts personal information submitted to obtain indigent defense.

    (20) Workers’ compensation claim records. Under certain limited circumstances, these records can be released to insurers or government agencies.

    (21) Sensitive business records of Oregon Health Sciences University (OHSU). This relates to records “not customarily provided to business competitors.”

    (22) Records of OHSU regarding candidates for university president.

    (23) Library records showing use of library materials by a named person. This exemption permits, but does not require, libraries to shield information about their patrons.

    (24) Financial information submitted by applicants for, and recipients of, low income loans, grants and tax credits through the state Housing and Community Services Dept.

    (25) Geographic information submitted by private forestland owners, voluntarily and in confidence to the State Forestry Dept. not otherwise required by law to be submitted.

    (26) Sensitive business records concerning the sale or purchase of electric power, where a competitive disadvantage would result. This applies to community-owned utilities.

    (27) Sensitive business records submitted to or developed by the City of Klamath Falls relating to the Klamath Cogeneration Project.

    (28) Personally identifiable public utility customer information. This now extends to all identifying information of customers of electric utilities and those public bodies that provide water, sewer, or storm drain services.

    (29) A record of a person’s address submitted to a special district for bus, carpool, or similar public transit purposes.

    (30) Sensitive business records relating to Oregon Corrections Enterprises not customarily provided to business competitors.

    (31) Confidential submissions to the Department of Consumer and Business Services.

    (32) County election security plans. Exempts plans pursuant to ORS 254.074.

    (33) Security programs concerning utilities, petroleum, telecommunications, and data transmission.

    (34) Information concerning paternity or support judgments or orders as designated by the Chief Justice of the Supreme Court.

    (35) Employer account records of the State Accident Insurance Fund Corporation (SAIF). Exempts all records specifically related to an employer’s account records at SAIF.

    (36) Claimant files of the State Accident Insurance Fund Corporation (SAIF). Exempts all SAIF files and associated records of any person who has made a claim as defined in ORS 656.005.

    (37) Military discharge records. Exempts, except as authorized by ORS 408.425, “records that certify or verify an individual’s discharge or other separation from military service.”

    (38) Personal information related to visitors of domestic violence service and resource centers.

    (39) Certain information reported to the Oregon Health Authority concerning prescription monitoring.

    (40) Electronic mail addresses in the custody of public bodies, with the exception of e-mail addresses of employees used in their ordinary course of employment, with some exceptions. The Attorney General takes the position that the purpose of this exemption is to allow custodians to refuse requests for e-mail lists to send unsolicited e-mails or spam. Attorney General Manual § I.E.4.e(40).

    (41) Personal information of individuals certified or licensed by the Department of Public Safety Standards and Training contained in the records maintained by the department.

    (42) Personally identifiable information about veterans obtained by the Department of Veterans’ Affairs.

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  • Rhode Island

    Exemption (A)(I)(a):  All records relating to a client/attorney relationship and to a doctor/patient relationship, including all medical information relating to an individual in any files.  R.I. Gen. Laws § 38-2-2(4)(A)(I)(a) (2012).

    Exemption (A)(I)(b):  Personnel and other personal individually-identifiable records otherwise deemed confidential by federal or state law or regulation, or the disclosure of which would constitute a clearly unwarranted invasion of personal privacy pursuant to 5 U.S.C. § 552 et. seq.; provided, however, with respect to employees, and employees of contractors and subcontractors working on public works projects which are required to be listed as certified payrolls, the name, gross salary, salary range, total cost of paid fringe benefits, gross amount received in overtime, and any other remuneration in addition to salary, job title, job description, dates of employment and positions held with the state, municipality, employment contract, or public works contractor or subcontractor on public works projects work location, and/or project, business telephone number, the city or town of residence, and date of termination shall be public. For the purposes of this section “remuneration” shall include any payments received by an employee as a result of termination, or otherwise leaving employment, including, but not limited to, payments for accrued sick and/or vacation time, severance pay, or compensation paid pursuant to a contract buy-out provision.  R.I. Gen. Laws § 38-2-2(4)(A)(II)(b).

    In Rake v. Gorodetsky, 452 A.2d 1144 (R.I. 1982), the court noted that the records would not be held to fall within the exemption merely because they were stored in personnel files, regarded as personnel records by the police department, or arranged by the personnel bureau of the department.

    In Providence Journal Co. v. Kane, 577 A.2d 661 (R.I. 1990), decided prior to the 1991 amendment to this section of the APRA, the Rhode Island Supreme Court held that all personnel records identifiable to an individual employee are exempt from disclosure. The Court refused to employ a balancing test in determining whether such records should be held to be confidential under the APRA.

    In Providence Journal Co. v. Sundlun, 616 A.2d 1131 (R.I. 1992), the court held that records revealing the names and positions of state employees who were scheduled to be laid off, but were never actually laid off, were exempt from public disclosure. The court further held that Exemption (1) limits public access not only to personal information contained within an employee's personnel file, but also to any records that identify a particular employee.

    In addition, Edward A. Sherman Publishing Co. v. Carpender, 659 A.2d 1117 (R.I. 1995), the court held that the name of a teacher who receives notice of layoff is exempt from disclosure under the Act until the teacher's employment is actually terminated.

    Furthermore, the Rhode Island Attorney General determined that Exemption (1) does not permit a city to withhold information as to whether the city provided medical benefits to members of its boards or commissions, or information concerning the total cost of such benefits to city taxpayers. See Op. Att’y Gen., April 14, 1989. Additionally, the Rhode Island Supreme Court held that all police civilian complaint reports are public documents under the APRA and must be disclosed upon request in redacted form whenever final action (a final determination made by the police chief) occurs. Direct Action for Rights and Equality v. Gannon, 713 A.2d 218, 224 (1998).

    Exemption (A)(II):  Notwithstanding the provisions of this section, or any other provision of the general laws to the contrary, the pension records of all persons who are either current or retired members of any public retirement systems as well as all persons who become members of those retirement systems after June 17, 1991 shall be open for public inspection. “Pension records” as used in this section shall include all records containing information concerning pension and retirement benefits of current and retired members of the retirement systems and future members of said systems, including all records concerning retirement credits purchased and the ability of any member of the retirement system to purchase retirement credits, but excluding all information regarding the medical condition of any person and all information identifying the member's designated beneficiary or beneficiaries unless and until the member's designated beneficiary or beneficiaries have received or are receiving pension and/or retirement benefits through the retirement system.

    Exemption (B): Trade secrets and commercial or financial information obtained from a person, firm or corporation, which is of a privileged or confidential nature. This Exemption is patterned after the federal FOIA but broader in scope, exempting information of a privileged or confidential nature. See 5 U.S.C. §  552(b)(4). R.I. Gen. Laws § 38-2-2(4)(B) (1999).

    In Town of New Shoreham v. Rhode Island Public Utilities Commission, 464 A.2d 730 (R.I. 1983), the Court interpreted this Exemption as affording no right to have made public income tax returns and financial statements which were produced but sealed pursuant to a protective order by the Public Utility Commission.

    In Providence Journal Co. v. Convention Center Authority, 774 A.2d 40,47 (R.I. 2001), the Court interpreted the “confidential nature” of this Exemption to include: Any financial or commercial information whose disclosure would be likely either (1) to impair the Government's ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained. Providence Journal Co. v. Convention Center Authority, 774 A.2d 40,47 (R.I. 2001). In addition, the Court held that commercial or financial information provided on a voluntary basis is confidential for the purposes of exemption “if it is of a kind that would customarily not be released to the public by the person from whom it was obtained. Id.; see also In re New England Gas Company, 842 A.2d 545 (R.I. 2004); Interstate Navigation Co. v. Division of Public Utilities, (R.I.Super., Jan. 9, 2002), 2002 WL 169186.

    In Providence Journal Co. v. Convention Center Authority, 774 A.2d 40, 48-49 (R.I. 2001) the Court held that the APRA does not mandate the publication of documents reflecting the negotiation process because that information was exempt from disclosure under APRA § 38-2-2(4)(B).  If the final contracts contained confidential or privileged financial information that was segregable, that limited information is subject to redaction. Id. at 50.

    Procedurally, the applicability of APRA to records held by a public body is not determined by a balancing test. Providence Journal Co. v. Convention Center Authority, 774 A.2d 40 (R.I. 2001). The Supreme Court has held that to deploy a balancing test constitutes reversible error. Id. In Robinson v. Malinoff, 770 A.2d 873 (2001), the Court interpreted the APRA finding that the legislative intent is clear and is “to protect records concerning a particular individual, and in particular, when the disclosure would constitute an unwarranted invasion of that person's privacy.  Id.  Although the purpose of the APRA is suggestive of a balancing approach, the Rhode Island Supreme Court has always strictly applied both the substantive and procedural section of the APRA. Robinson, 770 A.2d at 873; Bernard v. Vose, 730 A.2d 30 (R.I. 1999) (explaining records pertaining to the individual and contained in any files of a public body are not considered public because disclosure would constitute an unwarranted invasion of that personal privacy).

    The Attorney General interpreted this exemption so as not to encompass a computer tape, which listed the names and codes of all persons filing financial statements with the Rhode Island Conflict of Interest Commission. The Attorney General reasoned that they had no reasonable expectation of privacy. See Op. Att’y Gen., September 16, 1986.

    Exemption (C): Child custody and adoption records, records of illegitimate births, and records of juvenile proceedings before the family court. R.I. Gen. Laws § 38-2-2(4)(C) (2012).

    Exemption (D): All records maintained by law enforcement agencies for criminal law enforcement and all records relating to the detection and investigation of crime, including those maintained on any individual or compiled in the course of a criminal investigation by any law enforcement agency. Provided, however, such records shall not be deemed public only to the extent that the disclosure of the records or information (a) could reasonably be expected to interfere with investigations of criminal activity or with enforcement proceedings, (b) would deprive a person of a right to a fair trial or an impartial adjudication, (c) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (d) could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority, or any private institution which furnished information on a confidential basis, or the information furnished by a confidential source, (e) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions or (f) could reasonably be expected to endanger the life or physical safety of any individual. Records relating to management and direction of a law enforcement agency and records or reports reflecting the initial arrest of an adult and the charge or charges brought against an adult shall be public.  R.I. Gen. Laws § 38-2-2(4)(D) (2012).

    In Providence Journal Co. v. Rhode Island Dept. of Public Safety ex rel. Kilmartin, 136 A.3d 1168 (R.I. 2016), the Supreme Court held that in balancing the privacy interests against the public interest in disclosure, “the usual rule that the citizen need not offer a reason for requesting the information must be inapplicable” (quoting Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 172 (2004)). Following this decision, the Attorney General opined that when a requester does not cite a “public interest” in the records, even a minimal privacy interest will exempt the records from disclosure. See Op. Att’y Gen., PR 17-49, Oct. 13, 2017; Op. Att’y Gen., PR 17-50, Oct. 16, 2017.

    The Attorney General has also based a number of opinions favoring denials of access for privacy reasons on the U.S. Supreme Court’s decision in Dep’t of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), finding that criminal and penal records about particular individuals are examples of information “that happens to be in the warehouse of Government” and not related to the operations of that government. See, e.g., Op. Att’y Gen., PR 16-45, Nov. 1, 2016.

    Prior to the 1991 amendment of this section, the Attorney General determined that pre-arrest police reports containing basic information regarding suspects cannot be withheld under the exemptions to the Act unless they are of an investigatory nature. See Opinion of Attorney General, October 7, 1987. In 1995, the Attorney General interpreted the APRA to deny public access to motor vehicle accident police records when the accident is under investigation by the police department. See Op. Att’y Gen., March 9, 1995. Additionally, the Rhode Island Supreme Court has held that all police civilian complaint reports are public documents under the APRA and must be disclosed upon request in redacted form whenever final action (a final determination made by the police chief) occurs. Direct Action for Rights and Equality v. Gannon, 713 A.2d 218, 224 (1998).

    Exemption (E): Any records which would not be available by law or rule of court to an opposing party in litigation. R.I. Gen. Laws § 38-2-2(4)(E) (2012).

    In Hydron Labs, Inc, v. Department of the Attorney General, 492 A.2d 135 (R.I. 1985), a corporation charged by the state with dumping noxious materials requested information concerning the waste-disposal site. The information was unavailable in an environmental action against the corporation under the qualified work product privilege of R.I. Rules of Civ. Proc. 34. The court held that the limitations placed on the scope of Rule 34 apply to discovery under the APRA, reasoning that the APRA was not designed to provide an alternative method of discovery for litigants.

    Exemption (F): Scientific and technological secrets and the security plans of military and law enforcement agencies, the disclosure of which would endanger the public welfare and security. R.I. Gen. Laws § 38-2-2(4)(F) (2012).

    Exemption (G): Any records which disclose the identity of the contributor of a bona fide and lawful charitable contribution to the public body whenever public anonymity has been requested of the public body with respect to the contribution by the contributor. R.I. Gen. Laws § 38-2-2(4)(G) (2012).

    Exemption (H): Reports and statements of strategy or negotiation involving labor negotiations or collective bargaining. R.I. Gen. Laws § 38-2-2(4)(H) (2012). A draft of a collective bargaining agreement is part of the negotiation process and does not become available for public inspection until it is ratified by both parties. See Op. Att’y Gen., December 27, 1990.

    Exemption (I): Reports and statements of strategy or negotiation with respect to the investment or borrowing of public funds, until such time as those transactions are entered into. R.I. Gen. Laws §  38-2-2(4)(I) (2012).

    Exemption (J): Any minutes of a meeting of a public body which are not required to be disclosed pursuant to chapter 46 of title 42. (Chapter 46 of title 42 is the Rhode Island Open Meetings Law, discussed infra. R.I. Gen. Laws §  42-46-7 requires that minutes be available to the public except where disclosure “would be inconsistent” with provisions of the law permitting meetings to be closed.) R.I. Gen. Laws §  38-2-2(4)(J) (2012).

    The Attorney General has found minutes of an open zoning board meeting, whether approved or not, to be accessible. See Op. Att’y Gen., February 19, 1987.

    Exemption (K): Preliminary drafts, notes, impressions, memoranda, working papers and work products, including public university work product; provided, however, any documents submitted at a public meeting of a public body shall be deemed public. R.I. Gen. Laws § 38-2-2(4)(K) (2012).

    This appears to be one of the most sweeping of the exemptions. Arguably inter-agency and intra-agency memoranda fall within the scope of exemption (K). The law was amended in 2017 to include papers “involving research at state institutions of higher education on commercial, scientific, artistic, technical, or scholarly issues, whether in electronic or other format.” R.I. Gen. Laws § 38-2-2(4)(K), as amended by P.L. 2017, ch. 48, § 1.

    Exemption (L): Test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or promotion or academic examinations; provided, however, that a person shall have the right to review the results of his or her examination. R.I. Gen. Laws §  38-2-2(4)(L) (2012).

    Exemption (M): Correspondence of or to elected officials with or relating to those they represent, and correspondence of or to elected officials in their official capacities. R.I. Gen. Laws § 38-2-2(4)(M) (2012).

    Exemption (N): The contents of real estate appraisals, engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned; provided the law of eminent domain shall not be affected by this provision. R.I. Gen. Laws § 38-2-2(4)(N) (2012).

    Exemption (O): All tax returns. R.I. Gen. Laws § 38-2-2(4)(O) (2012).

    Exemption (P): All investigatory records of public bodies, with the exception of law enforcement agencies, pertaining to possible violations of statute, rule, or regulation other than records of final actions taken provided that all records prior to formal notification of violations or noncompliance shall not be deemed to be public. R.I. Gen. Laws § 38-2-2(4)(P) (2012).

    Exemption (Q): Records of individual test scores on professional certification and licensing examinations; provided, however, that a person shall have the right to review the results of his or her examination. R.I. Gen. Laws § 38-2-2(4)(Q) (2012).

    Exemption (R): Requests for advisory opinions until such time as the public body issues its opinion. R.I. Gen. Laws § 38-2-2(4)(R) (2012).

    Exemption (S): Records, reports, opinions, information, and statements required to be kept confidential by federal or state law, rule of court, or by regulation. R.I. Gen. Laws § 38-2-2(4)(S) (2012).

    Note that exemption (S) does not include the federal FOIA's qualification, that the statute protecting disclosure must either leave no discretion on the issue of withholding or establish criteria for withholding. See 5 U.S.C. § 552(b)(3).

    Exemption (T): Judicial bodies are included in the definition of “public body” only in respect to their administrative function, provided that records kept pursuant to the provisions of chapter 16 of title 8 are exempt from the operation of this chapter. (Chapter 16, title 8, created the Commission On Judicial Tenure and Discipline, to investigate wrongdoing and unfitness of justices of various courts in Rhode Island). R.I. Gen. Laws § 38-2-2(4)(T) (2012).

    Exemption (U): Library records which, by themselves or when examined with other public records, would reveal the identity of the library user requesting, checking out, or using any library materials. R.I. Gen. Laws § 38-2-2(4)(U) (2012).

    Exemption (V): Printouts from telecommunication (TELE-TEXT) devices for the deaf or hearing and speech impaired. R.I. Gen. Laws § 38-2-2(4)(V) (2012).

    Exemption (W): All records received by the Insurance Division of the Department of Business Regulation from other states, either directly or through the National Association of Insurance Commissioners, if such records are accorded confidential treatment in that state. Nothing contained in this title or any other provision of law shall prevent or be construed as prohibiting the Commissioner of Insurance from disclosing otherwise confidential information to the Insurance Department of this or any other state or country, at any time, so long as such agency or office receiving the records agrees in writing to hold it confidential in a manner consistent with the laws of this state. R.I. Gen. Laws §  38-2-2(4)(W) (2012).

    Exemption (X): Credit card account numbers in the possession of state or local government are confidential and shall not be deemed public records. R.I. Gen. Laws § 38-2-2(4)(X) (2012).

    Exemption (Y): Any documentary material, answers to written interrogatories, or oral testimony provided under any subpoena issued under Rhode Island general law section 9-1.1-6. R.I. Gen. Laws §  38-2-2(4)(Y) (2012).

    Exemption (Z):  Any individually identifiable evaluations of public school teachers made pursuant to state or federal law or regulation.  R.I. Gen. Laws §  38-2-2(4)(Z) (2012).

    Exemption (AA):  All documents prepared by school districts intended to be used by school districts in protecting the safety of their students from potential and actual threats.  R.I. Gen. Laws §  38-2-2(4)(AA) (2012).

    However, any reasonably segregable portion of a public record excluded by subdivision 38-2-2(4) shall be available for public inspection after the deletion of the information which is the basis of the exclusion. If an entire document or record is deemed non-public, the public body shall state in writing that no portion of the document or record contains reasonable segregable information that is releasable.  R.I. Gen. Laws § 38-2-3(b) (2012).

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  • South Carolina

    a. Trade secrets defined as unpatented, secret, commercially valuable plans, appliances or processes including plans of public bodies who market services or products. S.C. Code Ann. § 30-4-40(a)(1). The South Carolina Court of Appeals rejected an effort by a public body to apply a broader definition of trade secret than the statute allowed to shelter records relating to financial transactions. Campbell v. Marion County. Hosp. Dist., 580 S.E.2d 163 (S.C. App. 2003)

    b. Information of a personal nature where the public disclosure of the information would constitute an unreasonable invasion of personal privacy. Specifically exempts financial information in business license tax applications and information relating to handicap or disability where the information would be used for person-to-person commercial solicitation. S.C. Code Ann. § 30-4-40(a)(2). The South Carolina Supreme Court and the Court of Appeals have ruled that this exemption does not relate to the performance of a public duty, and records relating to public activity must be disclosed. Society of Professional Journalists v. Sexton, 324 S.E.2d 313 (S.C.1984); Burton v. York County Sheriff, 594 S.E.2d 888 (S.C. App. 2004)

    c. Records compiled for law enforcement purposes where the disclosure would interfere with a prospective law enforcement proceeding; would deprive a person of a right to a fair trial or an impartial adjudication; would constitute an unreasonable invasion of personal privacy; would disclose the identity of a confidential source; would disclose current techniques and procedures for law enforcement investigations or prosecutions; would endanger the life or physical safety of any individual; or would disclose any contents of intercepted wire, oral, or electronic communications not otherwise disclosed during a trial. S.C. Code Ann. § 30-4-40(3); Newberry Pub. Co. v. Newberry County Comm'n. on Alcohol and Drug Abuse, 417 S.E.2d 870 (S.C. 1992); 20 Media L. Rep. 1420.  The Supreme Court of South Carolina has held that the law enforcement agency must prove specific harm to the agency to invoke this exemption.  Evening Post Pub. Co. v. City of N. Charleston, 611 S.E.2d 496 (S.C. 2005).

    d. Documents of and documents incidental to proposed contractual arrangements and documents of and documents incidental to proposed sales or purchases of property. These documents become subject to mandatory disclosure once a contract is entered into or the property is sold or purchased. A contract for the sale or purchase of real estate shall remains exempt from disclosure until the deed is executed or 12 months have passed from the date of sale or purchase. S.C. Code Ann. § 30-4-40(5).

    e. The amount of compensation paid by public bodies except for those persons receiving compensation of fifty thousand dollars or more annually, all part-time employees, persons paid honoraria and agency or department heads whose exact compensation shall be public. The compensation of all others is subject to disclosure within specified ranges. S.C. Code Ann. § 30-4-40(6).

    f. Correspondence or work product of legal counsel for a public body or other material subject to the attorney-client privilege. S.C. Code Ann. § 30-4-40(7).

    g. Memoranda, correspondence and working papers of members of the legislature and their staff members. S.C. Code Ann. § 30-4-40(8).

    h. Memoranda, correspondence, documents, and working papers relative to efforts of a public body to attract business or industry to invest within the state. S.C. Code Ann. § 30-4-49(9), but the exemption expires if an offer is accepted or a project announced.

    i. Standards used or to be used by the S.C. Department of Revenue for the selection of returns for examination, or data used or to be used for determining such standards if the commission determines that the disclosure would impair enforcement of the tax laws. S.C. Code Ann. § 30-4-40(10).

    j. Information relative to the identity of a donor of a gift to a public body if the donor requests anonymity. If the maker of the gift or any member of his immediate family has any business transaction with the recipient of the gift within three years prior to or following the gift, the identity of the donor is not exempt from disclosure. S.C. Code Ann. § 30-4-40(11).

    k. Records relating to plans for investing state pension funds. S.C. Code Ann. § 30-4-40(12).

    l. Material gathered in a search to fill an employment position except that the material gathered relative to "not fewer than the final three applicants under consideration" is to be made public. S.C. Code Ann. § 30-4-40(13).  The Supreme Court of South Carolina rejected a school district’s claim that it was required to release the collected information only as to its two “finalists.”  New York Times Co. v. Spartanburg County School Dist. No. 7, 649 S.E.2d 28 (S.C. 2007).

    m. Records and data relating to commercially valuable research produced or collected by faculty or staff of state institutions of higher learning where the information has not been publicly released, published, copyrighted or patented. S.C. Code Ann. § 30-4-40(14).

    n. The identity or information tending to reveal the identity of a complainant or informant to a state regulatory agency. S.C. Code Ann. § 30-4-40(15).

    o. Records relating to investment strategy for endowments of state institutions of higher learning. S.C. Code Ann. § 30-4-40(16).

    p. Structural plans for bridges. S.C. Code Ann. § 30-4-40(17) (Terrorist inspired).

    q. Autopsy photographs or videos. S.C. Code Ann. § 30-4-40(18) (Dale Earnhardt inspired).

    r. In response to terrorism-related concerns, a new section exempted from public disclosure information concerning safeguards and off-site consequence analyses for facilities containing materials or operations that posed threats to persons or the environment. S.C. Code Ann. § 30-4-45.

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  • South Dakota

    The only pertinent case law addresses SDCL §§1-27-1.5(7) and (20).  In Milstead v. Johnson, 883 N.W.2d 725 (S.D. 2016) and Milstead v. Smith, 883 N.W.2d (S.D. 2016), the South Dakota Supreme Court held the statutory protection of law enforcement personnel records is not absolute and are “not shielded from discovery when a constitutional right of an accused is implicated.”  Disclosure is dependent on a showing by defendant that personnel file is relevant, admissible and requested with “reasonable specificity.”  Further, disclosure must be “carefully tailored to the legitimate need [of the defendant].”  In Argus Leader Media v. Hogstad, 902 N.W.2d 778 (S.D. 2017) the Supreme Court rejected the City of Sioux Falls argument and lower held that despite its dubious punctuation, SDCL §1-27-1.5(20) did not allow parties, by contract, to agree to confidential settlements outside the context of actual litigation.

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  • Tennessee

    a. The medical records of patients in state institutions, including those containing the source of organ donations for transplantation and information concerning organ donors, T.C.A. § 10-7-504(a)(1);

    b. All investigative records of the Tennessee Bureau of Investigation and all criminal investigative files of the motor vehicle division of the department of safety, T.C.A. § 10-7-504(a)(2). See Abernathy v. Whitley, 838 S.W.2d 211 (Tenn. Ct. App. 1992) (court of appeals upheld denial that particular parts of records constitute investigation records of the Tennessee Bureau of Investigation);

    c. Records of the military department involving national or state security, including national guard personnel records and staff studies and investigations, T.C.A. § 10-7-504(a)(3);

    d. The academic, financial, and medical or psychological records of students in public educational institutions, T.C.A. § 10-7-504(a)(4);

    e. Books, records, and other materials in the possession of the attorney general's office relating to any pending or contemplated legal or administrative proceeding in which the office may be involved, including (1) records designated confidential or privileged by state law, (2) records related to federal investigations and designated confidential or privileged under federal law, (3) the work product of the attorney general or his subordinates, (4) communications to or by the attorney general covered by the attorney-client privilege, and (5) records available for public inspection in other departments and agencies, T.C.A. § 10-7-504(a)(5);

    f. Agency records containing opinions of the value of real and personal property intended to be acquired for public purposes, until acquisition is complete, T.C.A. § 10-7-504(a)(6);

    g. Sealed bids for the purchase of goods and services and leases of real property, until completion of evaluation, T.C.A. § 10-7-504(a)(7);

    h. All investigative records and reports of the internal affairs division of the department of corrections or department of youth development, T.C.A. § 10-7-504(a)(8);

    i. Official health certificates obtained and maintained by the state veterinarian, T.C.A. § 10-7-504(a)(9);

    j. The capital plans, marketing, and proprietary information and trade secrets submitted to the Tennessee venture capital network at Middle Tennessee State University, T.C.A. § 10-7-504(a)(10);

    k. Records of historical research value given or sold to public archival institutions or libraries when the owner or donor of such records wishes to place restrictions on access to the records, T.C.A. § 10-7-504(a)(11);

    l. Personal information contained in motor vehicle records which shall be open only pursuant to Title 55, chapter 25 (the Uniform Motor Vehicle Records Disclosure Act, which implemented the Federal Driver Privacy Protection Act) of the Tennessee Code Annotated; T.C.A. § 10-7-504(a)(12);

    m. Memoranda, work notes, case files and communications related to mental health intervention techniques conducted by mental health professionals in a group setting to provide counseling and therapy to law enforcement officers, firefighters, paramedics and other emergency medical technicians, T.C.A. § 10-7-504(a)(13);

    n. Riot, escape, and emergency transport plans of county jails and workhouses or prisons, T.C.A. § 10-7-504(a)(14);

    o. A utility department's records of address, telephone number and Social Security number that might be used to locate someone who has a protection order from a court to protect such person from violence, T.C.A. § 10-7-504(a)(15);

    p. A governmental entity's records of address, telephone number and Social Security number that might be used to locate someone who has a protection order from a court to protect such person from violence, T.C.A. § 10-7-504(a)(16);

    q. The telephone number, address and any other information which might be used to locate the whereabouts of a domestic violence shelter or rape crisis center, T.C.A. § 10-7-504(a)(17);

    r. Computer programs sold, licensed or donated to the state, T.C.A. § 10-7-504(a)(18);

    s. Credit card numbers of persons doing business with the state or any subdivision, T.C.A. § 10-7-504(a)(19);

    t. The private records of any utility, T.C.A. § 10-7-504(a)(20);

    u. Records identifying structural or operational vulnerability of a utility, T.C.A. § 10-7-504-(a)(21);

    v. the audit working papers of the comptroller of the treasury and state, county, and local government internal audit staffs. T.C.A § 10-7-504(a)(22).

    w. Records containing the results of individual teacher evaluations administered by the State Board of Education, T.C.A. § 10-7-504(a)(23).

    x. Commercial and financial information provided to the Alcoholic Beverage Commission that would give competitors an advantage over those who do not know or use such information, T.C.A. § 10-7-504(a)(24).

    y. Records related to a student’s academic performance, financial status, medical or psychological treatment, and family information maintained by a voluntary association for interscholastic sports competition of private and public secondary schools, T.C.A. § 10-7-504(a)(25).

    z. Job performance evaluations of employees in the Department of the Treasury, Secretary of State, public institutions of higher education, and the Comptroller’s Office, T.C.A. § 10-7-504(a)(26).

    aa. Email addresses collected by the Department of State’s Division of Business Services, T.C.A. § 10-7-504 (a)(27).

    bb. Proposals and statements of qualifications received by local government entities in response to a personal service, professional service, or consultant service request for proposals, T.C.A. § 10-7-504(a)(28).

    cc. Certain personally identifiable information, including social security numbers, driver’s license numbers, alien registration numbers or passport numbers, employer or taxpayer identification numbers, biometric data such as fingerprints, voice prints, retina or iris images, and unique electronic identification numbers, routing numbers, “or other personal identifying data which enables an individual to obtain a merchandise or service or otherwise financially encumber the legitimate possessor of the identifying data,” T.C.A. § 10-7-504(a)(29).

    dd. Records of employees' identity, treatment, or referral for treatment maintained by state or local government employee assistance program, T.C.A. § 10-7-504(d);

    ee. Unpublished telephone numbers in the possession of emergency communications districts, T.C.A. § 10-7-504(e);

    ff. Telephone numbers, residential addresses, Social Security numbers, bank account numbers, and driver's license information of public employees or his immediate family member, T.C.A. § 10-7-504(f);

    gg. Personnel information of undercover police officers may be restricted, T.C.A. § 10-7-504(g), however, such information is generally available. TCA § 10-7-503

    hh. Identifying information about someone who "has been or may in the future be directly involved in the process of executing a sentence of death," T.C.A. § 10-7-504(h);

    ii. Information that would allow a person to obtain unauthorized access to confidential information or government property, including electronic information processing systems T.C.A. § 10-7-504(i).

    jj. Identifying information of anyone who has requested the department of correction or the department of probation and parole to provide information regarding the status of a criminal proceeding or a convicted felon, T.C.A. § 10-7-504(j).

    kk. Addresses, phone numbers, Social Security Numbers, and the criminal offense at issue for those persons seeking compensation as crime victims, T.C.A. § 10-7-504(k)

    ll. Identifying information of those persons receiving services from the department of children’s services, T.C.A. § 10-7-504(l).

    mm. Information directly related to the security of any government building, T.C.A. § 10-7-504(m).

    nn. Documents concerning pricing and other financial arrangements submitted to the state for health related procurements or requests for proposal, T.C.A. § 10-7-504(n).

    oo. Information related to application for handgun carry permits. T.C.A. § 10-7-504(o)

    pp. Records related to school security. T.C.A. § 10-7-504(p)

    qq. Certain information related to victims of sexual assault after the defendant has been convicted and sentenced. T.C.A. § 10-7-504(q) However, in The Tennessean v. Metropolitan Gov’t of Nashville, 485 SW 3d 857 (Tenn 2016), the court indicated this protection would also apply during the pendency of the criminal proceedings.

    rr. Bank account information held by state government including debit card numbers, personal identification numbers, authorization codes, bank account numbers, and transit routing numbers. T.C.A. § 10-7-504(r)

    ss. Records of motor vehicle insurance verification held by the Department of Revenue, Department of Safety, Department of Commerce and Insurance, Law Enforcement and the Judiciary. T.C.A. § 10-7-504(s)

    tt. Certain personally identifiable information of victims of criminal offenses who are minors. T.C.A. § 10-7-504 (t)

    uu. Law enforcement body camera video, however, this provision sunsets on July 1, 2022. T.C.A. §10-7-504(u)

    vv. Test questions, answers, scoring keys, and other examination data for the purposes of licensing health care professionals. T.C.A. § 10-7-504(v)

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  • Texas

    A governmental body raising any of the exceptions has the burden of establishing that the records at issue fall within the exception. York v. Tex. Guaranteed Student Loan Corp., 408 S.W.3d 677, 688 (Tex. App.—Austin 2013). The Act supports a liberal construction of its provisions in favor of disclosure and narrow interpretation of its exceptions to disclosure. Simmons v. Kuzmich, 166 S.W.3d 342, 346 (Tex. 2005). Determining whether an exception applies under the Act to support withholding public information is a question of law. Abbott v. Texas Bd. of Nursing, No. 03-09-00154-CV, 2010 WL 392335, at *1 (Tex. App.—Austin 2010, no pet.) (mem. op.).

    1. (§ 552.101): Information deemed confidential by constitutional law, statute, or judicial decision. This includes common-law privacy. Indus. Found. of the South, 540 S.W.2d at 683 (information is confidential only if “the information contain[s] highly intimate or embarrassing facts about a person’s private affairs, such that its publication would be highly objectionable to a person of ordinary sensibilities.”) The Austin court of appeals relied on and notably extended the ruling from Tex. Comptroller of Pub. Accounts, 354 S.W.3d at 336, to hold that the dates-of-birth of members of the general public contained in records of a governmental body are excepted from disclosure under the Act under common law privacy. See Paxton v. City of Dallas, 2015 WL 3394061 (Tex. App.—Austin 2015, pet. denied).
    2. (§ 552.102) information in (1) the personnel file of a state employee the disclosure of which would constitute a clearly unwarranted invasion of personal privacy or (2) the college or graduate school transcript of a professional public school employee. The college transcript exception does not exempt information as to what degree the public school employee received or in which curriculum. Personnel files may become public record upon the death of the individual since the right of privacy dies with the individual. Tex. Att’y Gen. Op. No. H-917 (1976). The Texas Supreme Court ruled that Section 552.102 requires a balancing of interests between privacy and disclosure as found in federal FOIA Exemption 6. Application of the FOIA Exemption 6 balancing test in the context of a request for disclosure of dates-of-birth of public employees resulted in the holding that DOBs of state employees are excepted from public disclosure. Tex. Comptroller of Pub. Accounts, 354 S.W.3d at 347–48. In civil cases against a police or fire department, material placed in the department’s discretionary personnel file is generally privileged from disclosure. In re Jobe, 42 S.W.3d 174, 180 (Tex. App.—Amarillo 2001, no pet.); Tex. Loc. Gov’t Code. § 143.089(a)-(g). Material deemed to be “reasonably related to a police officer’s or fire fighter’s employment relationship” is also privileged. City of San Antonio v. San Antonio Express News, 47 S.W.3d 556, 563 (Tex. App.—San Antonio 2000, pet. denied). However, documents leading to disciplinary action against a fire fighter or police officer must be included in a discoverable file if the document is from the employing department. In re Jobe, 42 S.W.3d at 180; Tex. Loc. Gov’t Code § 143.089(a)(2).
    3. (§ 552.103) certain information concerning criminal or civil litigation (including settlement negotiations) in which the governmental body is or may be a party, or to which an officer or employee of the state or a political subdivision, as a consequence of such employment, is or may be a party. [This exception applies when the information relates to litigation that is pending or is reasonably anticipated. Univ. of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481-82 (Tex. App.—Austin 1997, no writ) (applying exception where requestor-attorney stated intent to use requested information to solicit class-action plaintiffs). To claim that information falls within this exception, the governmental body must also show that the requested information related to the litigation is such that release of the information would injure the governmental body’s legal strategy and interests. Tex. Att’y Gen. ORD-478 (1987). It is sometimes difficult to demonstrate that litigation is “reasonably anticipated.” A mere threat of a lawsuit is not enough. Tex. Att’y Gen. ORD-331 (1982). Once litigation has concluded, however, this section does not provide an exception and information must be provided unless it constitutes attorney work product which consists of information created for trial or in anticipation of civil litigation or that would tend to reveal an attorney’s mental processes, conclusions and legal theories.  Tex. Att’y Gen. ORD-647 (1996).];
    4. (§ 552.104) information that would give advantage to competitors or bidders. The Texas Supreme Court greatly expanded application of this exception in Boeing Co v. Paxton, 466 S.W.3d 831 (Tex. 2015), holding that the “test under Section 552.104 is whether knowing another bidder’s [information] would be an advantage, not whether it would be a decisive advantage.” Id. at 841. The court also held that Section 552.104 is not limited to governmental bodies, and that private third parties may therefore invoke the exception.  Id. at 842.
    5. (§ 552.105) information concerning the location of real or personal property for public purposes before public announcement of the project as well as information concerning appraisals or purchase prices of real or personal property before formal award of a contract for the property. Tex. Att’y Gen. ORD-222 (1979); Tex. Att’y Gen. ORD-234 (1980) (stating that “[s]o long as negotiations regarding the purchase of a site. . . have not been completed . . . the city may withhold all proposed plans, locations and cost estimates” but when “the transaction has been completed, all factual information relating to the project will become available to the public.”); Tex. Att’y Gen. ORD-348 (1982). This exception can apply to the names and addresses of landowners as release of such information could affect the purchase negotiations. See Heidenheimer v. Tex. Dept. of Transp., No. 03-02-00187-CV, 2003 WL 124248, at *2 (Tex. App.—Austin 2003, pet. denied).
    6. (§ 552.106) drafts or working papers involved in the preparation of proposed legislation and internal bill analyses and working papers evaluating proposed legislation prepared by the governor’s office. A city manager’s proposed budget prior to its presentation to the city council may be excepted. Tex. Att’y Gen. ORD-460 (1987). However, a state agency’s factual findings on the value of school districts’ taxable property is not excepted because it is a factual inquiry rather than one that reflects “policy judgments, recommendations, or proposals” concerning the drafting of legislation. Tex. Att’y Gen. ORD-344 (1982). Section 552.106 also exempts from disclosure internal bill analyses or working papers prepared by the governor’s office for the purpose of evaluating proposed legislation. See Tex. Att’y Gen. ORD-138 (2005) (Office of the Lieutenant Governor could withhold information constituting a comparison or analysis of factual information prepared to support proposed legislation); but see Tex. Att’y Gen. ORD-6367 (2011) (Section 552.106 did not apply where the Dallas County Commissioner’s Court failed to demonstrate that the information constituted an internal bill analysis or working paper prepared by the governor’s office for the purpose of evaluating proposed legislation).
    7. (§ 552.107) information protected from disclosure by court order or which the Attorney General or an attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Evidence, the Texas Disciplinary Rules of Professional Conduct, or by a court order. This exception basically addresses information protected by attorney-client privilege. Tex. Att’y Gen. ORD-323 (1982); Tex. Att’y Gen. ORD-462 (1987); see Harlandale Indep. Sch. Dist. v. Cornyn, 25 S.W.3d 328, 333 (Tex. App.—Austin 2000, no pet.) (holding that the attorney-client privilege prohibited disclosure of an attorney’s entire report-including the purely factual portion-made to her client, a school district). The exception also applies when there is a court order prohibiting disclosure. Tex. Att’y Gen. ORD-309 (1982); Tex. Att’y Gen. ORD-415 (1984). However, a court may not order withholding of any information listed in § 552-022 unless it is confidential under The Act or other law.
    8. (§ 552.108) records of law enforcement agencies and prosecutors dealing with detection, investigation, or prosecution of crime. Information is excepted from disclosure if (1) its release would interfere with the detection, investigation, or prosecution of a crime; (2) it deals with the detection, investigation, or prosecution of a crime only in relation to an investigation that did not result in conviction or deferred adjudication; (3) it relates to a threat against a peace officer or corrections officer; or (4) it was prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation or reflects the mental impressions or legal reasoning of an attorney representing the state. Information may be withheld under this section even in cases where a criminal investigation does not result in conviction or deferred adjudication. However, “basic information about an arrested person, an arrest, or a crime is” not excepted from disclosure (§ 552.108(c)). Although the law enforcement exception is interpreted broadly, in 2013 the Act was amended to allow news media access to “sensitive crime scene” photos held by law enforcement. Tex. Gov’t Code. § 552.1085(d).

    Article 57.02 of the Texas Code of Criminal Procedure allows victims of sex crimes to use pseudonyms in all public records concerning the offense, including in policy reports, press releases, and during testimony in court. Under this law, law enforcement officials cannot disclose the victim’s name, address or telephone number unless ordered to do so by a court.

    In order to secure the protection of this exception, the governmental body must demonstrate that release of the requested information will unduly interfere with law enforcement and crime prevention. City of San Antonio v. San Antonio Express News, 47 S.W.3d 556, 563 (Tex. App.—San Antonio 2000, pet. denied). Information relating to a pending criminal investigation or prosecution is one example of information that is excepted under sections 552.108(a)(1) and 552.108(b)(1) because release of such information would presumptively interfere with the detection, investigation, or prosecution of crime. See Houston Chronicle Publ’g Co. v. City of Houston, 531 S.W.2d 177, 184–85 (Tex. Civ. App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.).

    1. (§ 552.109) private correspondence or communications of an elected office holder relating to matters the disclosure of which would constitute an invasion of privacy. Letters from students’ parents concerning a teacher’s performance sent to school board trustees were not shielded from disclosure since nothing in the contents violated the privacy rights of the trustees as long as information which identifies students or parents is redacted. Tex. Att’y Gen. ORD-332 (1983).

    In determining whether information is exempt from disclosure under this exception, the Attorney General relies on the common-law privacy test. See Tex. Att’y Gen. GA-3538 (2005). Common-law privacy protects information if (1) the information contains highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. See id. (citing Indus. Found. of the South v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976)). The type of information that might be considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Indus. Found., 540 S.W.2d at 683.

    Exemption under Section 552.109 applies only to correspondence sent out by the elected official, not to correspondence that is received by the official. In addition, this exemption only protects the privacy interests of the public official. See Tex. Att’y Gen. ORD-473 (1987). It does not protect the privacy interests of the person discussed in the communication or the privacy of the recipient of the communication. See Tex. Att’y Gen. ORD-332 (1982). Exempt correspondence includes handwritten notes on a personal calendar, even if made by the elected official’s assistant. See Tex. Att’y Gen. ORD-145 (1976).  However, when a travel itinerary is prepared, it is available for public inspection.

    Non-exempt information includes correspondence of the governor regarding potential nominees for public office. This material is not protected by a constitutional right of privacy or a common-law right of privacy when it does not contain highly embarrassing or intimate facts and there is a legitimate public interest in the appointment process. See Tex. Att’y Gen. ORD-241 (1980).

    (§ 552.110) trade secret or commercial or financial information obtained from a person and privileged or confidential by statute or judicial decision. Also excepted is commercial or financial information for which it is demonstrated through specific factual evidence that disclosure would cause substantial competitive harm to the person from whom the information was obtained. See Tex. Att’y Gen. ORD-592 (1991) (discussing in detail the meaning of “trade secrets”).

    1. (§ 552.111) interagency or intraagency memoranda or letters that would not be available by law to a party in litigation with the agency. This exception exempts from public disclosure information that is not discoverable in a lawsuit. See Tex. Att’y Gen. Op. No. H-436 (1974); Tex. Att’y Gen. ORD-251 (1980). It is patterned after Section 552(b)(5) of the federal Freedom of Information Act, 5 U.S.C. § 552(b)(5), and exempts advice, opinion, and recommendation used in the deliberative and decision-making processes within an agency or between agencies, to encourage open and frank discussion. Id.; but see Lett v. Klein Indep. Sch. Dist., 917 S.W.2d 455, 457 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (holding that documents relating to a student’s conduct grade were not exempt from disclosure as they concerned implementation of current policy and not the deliberative process of policy formation). This is the proper exception under which to claim the attorney work product privilege once litigation for which the information was created has concluded. Tex. Att’y Gen. ORD-647 (1996). The Texas Supreme Court has limited this exception to protect only those agency communications or parts of agency communications that relate to the agency’s policymaking. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 364 (Tex. 2000) (holding that a city manager’s memorandum on reasons why to fire a city finance director was not exempt from disclosure since it did not relate to policymaking); Arlington Indep. Sch. Dist. v. Tex. Attorney Gen., 37 S.W.3d 152, 160-61 (Tex. App.—Austin 2001, no pet.) (holding that factual compilations from survey responses are not protected under this exception as they are not pre-decision memoranda related to policymaking). The exception may apply to information created for a governmental body by an outside consultant when the consultant is acting at the request of the governmental body and performing a task within the authority of that body. Tex. Att’y Gen. ORD-631 (1995);
    2. (§ 552.112) information in or related to examining, operating, or condition reports by or for agencies responsible for the regulation or supervision of financial institutions or securities, or both. Records describing the general condition of a particular type of financial institutions are not excepted. Tex. Att’y Gen. ORD-483 (1987);
    3. (§ 552.113) certain geological or geophysical information or data, including maps concerning wells (except information filed in connection with an application or proceeding before an agency), confidential “electric logs” (as defined in the Natural Resources Code), and “confidential material” filed in the General Land Office. Information filed in connection with an application or proceeding before an agency is not excepted. The purpose of this exception is to only protect commercially valuable geological and geophysical information about the exploration and development of natural resources. Tex. Att’y Gen. ORD-627 (1994);
    4. (§ 552.114) student records at educational institutions funded wholly or in part by state revenue. Records that contain information related to an identifiable student are excepted from disclosure except when requested by the student, spouse, parents, legal guardian, certain school personnel, or a person conducting a child abuse investigation as defined in the Family Code. This exception is intended to conform with the federal Family Educational Rights and Privacy Act of 1974. This federal act permits schools to release certain types of “directory information” concerning a student (such as his name, address, telephone number, date and place of birth, and major field of study) if the school has notified the student what the school has designated as “directory” and given the student reasonable time to request that such information not be released without his consent. Tex. Att’y Gen. ORD-634 (1996);
    5. (§ 552.115) birth and death records maintained by the bureau of vital statistics of the Texas Department of Health. However, birth records become public 75 years after they are filed and death records become public 25 years after they are filed. General birth and death indices established and maintained by the Bureau of Vital Statistics are not excepted from disclosure to the extent they do not reveal adoption or paternity determinations;
    6. (§ 552.116) audit working papers of the state auditor, the auditor of a state agency, an institution of higher education as defined in the Education Code, a county, a municipality, or a joint board operating under the Transportation Code;
    7. (§ 552.117) information relating to the home addresses, home telephone numbers, or Social Security numbers of current or former governmental officials and employees, current or former employees of the Texas Department of Criminal Justice, as well as certain peace officers and security officers, or information that reveals whether such persons have family members, except as otherwise provided in § 552.024. Government employees and officials can choose, in writing, whether to allow public access to such information. See Tex. Gov’t Code § 552.024; § 552.1175. The 1995 amendments added exemptions for Social Security numbers and information that reveals whether a person has family members.
    8. (§ 552.1175) information relating to the home address, home telephone number, Social Security number, or information revealing whether the individual has family members may not be revealed and applies to peace officers, county jailers, current of former employees of the Texas Department of Criminal Justice, security officers as defined in the Occupations Code, employees of a district or county attorney, any county or municipal attorney whose jurisdiction includes criminal law or child protective services, officers and employees of a community supervision and corrections department established under the Code, criminal investigators of the United States, and police officers and inspectors of the United States Federal Protective Service.
    9. (§ 552.1176) information relating to the home address, home telephone number, electronic mail address, social security number, or date of birth of a person licensed to practice law in Texas may not be disclosed if the person to whom the information relates chooses to restrict public access to the information and notifies the State Bar of Texas of the person’s choice, in writing or electronically, on a form provided by the state bar.
    10. (§ 552.118) information on or derived from a triplicate prescription form filed with the Department of Public Safety;
    11. (§ 552.119) photographs that depict certain peace officers or security officers where release would endanger their lives or physical safety unless the officer is under indictment or charged with an offense by information, is a party in a civil service hearing or a case in arbitration, or the photograph is introduced as evidence in a judicial proceeding. Such photographs may be made public only if written consent is provided by the peace officer. [The 1993 amendments broadened this exemption to include the phrase “physical safety.” The exemption ceases to apply after the death of the officer. Tex. Att’y Gen. ORD-536 (1989).];
    12. (§ 552.120) rare books or original manuscripts not created or maintained in the conduct of official business and held for historical research;
    13. (§ 552.121) oral histories, personal papers, unpublished letters, or organizational records of certain nongovernmental entities that was not created or maintained in the conduct of official business of a governmental body and that are held for historical purposes to the extent that the archival and repository and the donor agree to limit disclosure;
    14. (§ 552.122) test items of educational institutions funded wholly or in part by state revenues and test items developed by licensing agencies or governmental bodies. [The term “test item” includes any standard means through which an individual or group’s knowledge or ability is evaluated but does not encompass an employee’s job performance or suitability. Tex. Att’y Gen. ORD-626 (1994). Determinations are made on a case by case basis. See id. The 1995 amendments deleted curriculum objectives from exempt status.];
    15. (§ 552.123) the names of applicants for chief executive officer of institutions of higher education, except that the governing bodies of these institutions must give the public notice of the names of finalists at least 21 days before the meeting at which final action or vote is to be taken on the employment of the person;
    16. (§ 552.1235) the name or other information disclosing the identity of a person who makes a donation or gift to an institution of higher learning. This section does not exempt other information relating to the amount or value of a gift or donation;
    17. (§ 552.124) records of libraries or library systems, supported in whole or in part by public funds, that identify a person who requested, obtained, or used a library material or service, unless the record is disclosed: (1) because the library or library system determines that disclosure is reasonably necessary for library operation and the record is not confidential under other state or federal law, or (2) pursuant to a special right of access of confidential information under § 552.023, or (3) to a law enforcement agency or prosecutor pursuant to a court order or subpoena after a showing to a district court that disclosure of the record is necessary to protect the public safety or the record is evidence of an offense or constitutes evidence that a particular person committed an offense.
    18. (§ 552.125) any documents or information privileged under the Texas Environmental, Health and Safety Audit Privilege Act;
    19. (§ 552.126) the names of applicants for superintendent of a public school district, except that the board of trustees must give the public notice of the names of finalists at least 21 days before meeting at which final action or vote is to be taken on the employment of the person;
    20. (§ 552.127) information identifying a person as a participant in a neighborhood crime watch organization;
    21. (§ 552.128) information submitted by a potential vendor or contractor to a governmental body in connection with an application for certification as a historically under-utilized or disadvantaged business;
    22. (§ 552.129) records created during a motor vehicle emissions inspection that relate to an individual vehicle or owner of an individual vehicle;
    23. (§ 552.130) a motor vehicle operator’s or driver’s license or permit issued by a Texas agency, a motor vehicle title or registration issued by a Texas agency, or a personal identification document issued by a Texas agency or local agency authorized to issue an identification document. Information may only be released as authorized by Chapter 730 of the Transportation Code;
    24. (§ 552.131) information relating to economic development negotiations involving a governmental body and a business prospect that the government seeks to have locate, stay, or expand in or near the territory of the governmental body and the information pertains to a trade secret of the business prospect, or commercial or financial information the disclosure of which would cause substantial harm to the individual from whom the information was obtained.  However, after an agreement is made with the business prospect, information about a financial or other incentive being offered to the business prospect by the governmental body or by another person, if the financial or other incentive may directly or indirectly result in the expenditure of public funds by a governmental body or a reduction in revenue received by a governmental body from any source, is subject to the Act.
    25. (§ 552.132) a crime victim as defined by the Code of Criminal Procedure who has filed for compensation may elect to allow access to information revealing the name, Social Security number, or telephone number of the victim (however, if the crime victim is awarded compensation, as of the date of the award of compensation, the name of the crime victim and the amount of compensation awarded are public information);
    26. (§ 552.1325) information relating to a crime victim’s name, Social Security number, address, home telephone number, or any other information which may identify the victim contained in the victim’s impact statement as defined by the Code of Criminal Procedure;
    27. (§ 552.133) information relating to the public power utility’s competitive activity that if disclosed would give advantage to competitors or prospective competitors. Certain information such as that relating to the provision of distribution access service or transmission service, the distribution system pertaining to reliability and continuity of service, or service offerings, service regulations, customer protections, or customer service;
    28. (§ 552.134) information maintained by the Texas Department of Criminal Justice pertaining to an inmate. Exception does not apply to an inmate sentenced to death or statistical or other aggregated information relating to inmates confined in a facility operated or under contract with the department;
    29. (§ 552.135) information that might reveal the identity of an informant who revealed information of another person’s possible violation of criminal, civil, or regulatory law to the school district unless the informant gives consent or the informer planned, initiated, or participated in the possible violation;
    30. (§ 552.136) information relating to a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential. “Access device” is defined as any instrument or means of account access that can be used to obtain money, goods, or services, or initiate a transfer of funds;
    31. (§ 552.137) e-mail addresses of members of the public provided for the purpose of communicating electronically with a governmental body is excepted from disclosure, unless the member of the public consents to its release. E-mail addresses not excepted include those from a person who has a contractual relationship with a governmental body, a vendor who seeks to contract with the agency, a response to a request for bids or proposals, or on letterhead or other document made available to the public;
    32. (§ 552.138) information revealing the identity of clients, private donors, trustees, and board members, or the location or physical layout of family violence shelter centers and sexual assault programs are all excepted from disclosure;
    33. (§ 552.139) information relating to computer network security or to the design, operation, or defense of a computer network;
    34. (§ 552.140) military discharge records are confidential for the first 75 years following the date a record is recorded with or first comes into the possession of a governmental body. During that time, the veteran who is the subject of the record, the spouse, child, legal guardian, or parent of the veteran, the personal representative of the estate of the veteran, a person named by the veteran, or another governmental body may view the record by presenting proper identification;
    35. (§ 552.141) information relating to the Social Security number of an applicant for a marriage license maintained by a county clerk and on an application for a marriage license;
    36. (§ 552.142) information subject to an order of nondisclosure with respect to information issued under a deferred adjudication;
    37. (§ 552.1425) information relating to criminal histories compiled by private entities for compensation subject to an order of non-disclosure;
    38. (§ 552.143) information prepared or provided by a private investment fund, held by a government body, and not listed in Section 552.0225(b);
    39. (§ 552.144) the working papers and electronic communications of an administrative law judge;
    40. ((§ 552.145) a Texas no-call list as established in the Business and Commerce Code and any information received from the national no-call registry as established under federal law;
    41. (§ 552.146) written or otherwise recorded communications between a member of the legislature or the lieutenant governor and an assistant or an employee of the Legislative Budget Board. Record or memoranda of a communication occurring in public during an open meeting or public hearing conducted by the Legislative Budget Board is not exempt;
    42. (§ 552.147) the Social Security number of a living person may be redacted from any information disclosed by a government body;

    aaa. (§ 552.148) the name, address, telephone number, and social security number of a minor participating in a recreational program or activity, as well as photographs and the name of the minor’s parent or legal guardian;

    bbb. (§ 552.149) certain records of a Comptroller or Appraisal District identified under Chapter 6 of the Tax Code;

    ccc. (§552.150) information that could compromise the safety of officers or employees of a hospital district;

    ddd. (§ 552.151) certain information pertaining to biological agents or toxins identified or listed as a select agent under federal law;

    eee. (§ 552.153) proprietary records and trade secrets involved in certain partnerships;

    fff. (§ 552.154) the names of applicants for the Executive Director, Chief Investment Officer, and Chief Audit Executive positions with the Teacher Retirement System of Texas;

    ggg. (§552.155) certain property tax appraisal photographs;

    hhh. (§ 552.156) Continuity Operations plans developed under Texas Labor Code § 412.054, and related records;

    iii. (§552.157) Blank;

    jjj. (§552.158) personal information obtained by the governor or senate in connection with an application for appointment by the governor, including: the applicant’s home address, telephone number, and social security number.

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  • Utah

    Private records. The following records are private and therefore exempt from public disclosure under GRAMA:

    a. “records concerning an individual’s eligibility for unemployment insurance benefits, social services, welfare benefits, or the determination of benefit levels”;

    b. records containing an individual’s medical history;

    c. records of publicly funded libraries used to identify a patron;

    d. records received or generated by or for: (i) the Independent Ethics Commission, except for the summary data report and other documents classified as public under legislative rule; and (ii) a Senate or House Ethics Committee in relation to the review of ethics complaints, unless record is classified as public under legislative rule;

    e. records received by, or generated by or for, the Independent Executive Branch Ethics Commission, except as expressly provided in Title 63A, Chapter 14;

    f. records of a Senate confirmation committee “concerning character, professional competence, or physical or mental health of an individual: (i) if, prior to the meeting, the chair of the committee determines release of the records” will interfere with the committee’s investigation or could deprive the individual of a fair hearing and (ii) “after the meeting, if the meeting was closed to the public”;

    g. records concerning a current or former employee of, or applicant for employment with, a government entity “that would disclose that individual’s home address, home telephone number, social security number, insurance coverage, marital status, or payroll deductions”;

    h. records or parts of records that a current or former employee identifies as private according to the requirements of Section 63G-2-303;

    i. that part of a record indicating a person’s Social Security number or federal employer identification number if provided under Section 31A-23a-104, 31A-25-202, 31A-26-202, 58-1-301, 58-55-302, 61-1-4, or 61-2f-203;

    j. that part of a voter registration record identifying a voter’s driver license or identification card number, Social Security number, or last four digits of the Social Security number, email address, or date of birth;

    k. a voter registration record that is classified as a private record by the lieutenant governor or a county clerk under Subsection 20A-2-104(4)(f) or 20A-1-101.1(5)(a);

    l. a record that contains information about an individual; is voluntarily provided by the individual; and goes into an electronic database that: is designated by and administered under the authority of the Chief Information Officer; and acts as a repository of information about the individual that can be electronically retrieved and used to facilitate the individual’s online interaction with a state agency;

    m. information provided to the Commissioner of Insurance under: Subsection 31A-23a-115(3)(a); Subsection 31A-23a-302(4); or Subsection 31A-26-210(4);

    n. information obtained through a criminal background check under Title 11, Chapter 40;

    o. information provided by an offender that is: required by the registration requirements of Title 77, Chapter 41, Sex and Kidnap Offender Registry; and not required to be made available to the public under Subsection 77-41-110(4);

    p. a statement and any supporting documentation filed with the attorney general in accordance with Section 34-45-107, if the federal law or action supporting the filing involves homeland security;

    q. electronic toll collection customer account information received or collected under Section 72-6-118 and customer information described in Section 17B-2a-815 received or collected by a public transit district, including contact and payment information and customer travel data;

    r. an email address provided by a military or overseas voter;

    s. a completed military-overseas ballot that is electronically transmitted;

    t. records received by or generated by or for the Political Subdivisions Ethics Review Commission established in Section 11-49-201, except for; the commission’s summary data report that is required in Section 11-49-202; and any other document that is classified as public in accordance with Title 11, Chapter 49, Political Subdivisions Ethics Review Commission;

    u. a record described in Subsection 53A-11a-203(3) that verifies that a parent was notified of an incident or threat; and

    v. a criminal background check or credit history report conducted in accordance with Section 63A-3-201.

    Utah Code § 63G-2-302(1).

    The following records are private if properly classified as such by a government entity:

    a. “records concerning a current or former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information”;

    b. “records describing an individual’s finances, except those that are expressly classified as public”;

    c. “records of independent state agencies if the disclosure of those records would conflict with fiduciary obligations of the agency”;

    d. other records containing information on an individual, the disclosure of which constitutes a clearly unwarranted invasion of personal privacy;

    e. records provided by the United States government or a government entity outside the state, that are provided with the requirement that the records be classified as private; and

    f. any portion of a record in the custody of the Division of Aging and Adult Services that may disclose, or lead to the discovery of, the identity of a person who made a report of alleged abuse, neglect, or exploitation of a vulnerable adult; and

    g. audio and video recordings created by a body-worn camera “except for recordings that: (i) depict the commission of an alleged crime; (ii) record any encounter between a law enforcement officer and a person that results in death or bodily injury, or includes an instance when an officer fires a weapon; (iii) record any encounter that is the subject of a complaint or a legal proceeding against a law enforcement officer or law enforcement agency; (iv) contain an officer involved critical incident as defined in Section 76-2-408(1)(d); or (v) have been requested for reclassification as a public record by a subject or authorized agent of a subject featured in the recording”; and

    h. medical records unless the records are in the possession of the University of Utah Hospital and are sought (i) “in connection with any legal or administrative proceeding in which the patient’s physical, mental, or emotional condition is an element of any claim or defense,” or (ii) “after a patient's death, in any legal or administrative proceeding in which any party relies upon the condition as an element of the claim or defense.”

    Id. § 63G-2-302(2)-(3).

    A government entity shall disclose a private record to the following individuals: “(a) the subject of the record; (b) the parent or legal guardian of an unemancipated minor who is the subject of the record; (c) the legal guardian of a legally incapacitated individual who is the subject of the record”; (d) an individual who “has a power of attorney from the subject of the record”; (e) an individual who submits a notarized release from the subject of the record; (f) a health care provider if the record is a medical record and releasing the record is consistent with normal professional practice and medical ethics; and (g) “any individual to whom the record must be provided pursuant to court order or legislative subpoena.” Id. § 63G-2-202(1).

    A government entity may, in its discretion, disclose records that are classified properly as private to persons other than those specified above if the head of the government entity, or a designee, determines that the interests favoring access to the record outweigh the interests favoring restriction of access. See id. § 63G-2-201(5)(b).

    If more than one subject is included in the private record, the record shall be segregated. See id. § 63G-2-202(3).

    Private Information on Certain Government Employees. At-risk government employees—meaning former or current (i) peace officers, (ii) federal, state, and military judges, (iii) United States Attorneys and Assistant United States Attorneys, (iv) armed forces and military prosecutors, and (v) law enforcement personnel—may request that a government entity “holding a record or part of a record that would disclose the employee’s or the employee’s family member’s home address, home telephone number, Social Security number, insurance coverage, marital status, or payroll deductions” identify and classify such records as private. See Utah Code § 63G-2-303(1)-(2).

    Controlled records. The following records are controlled and therefore exempt from public disclosure under GRAMA if:

    a. “the record contains medical, psychiatric, or psychological data about an individual” (unless the record is in the possession of the University of Utah Hospital and is sought “(i) in connection with any legal or administrative proceeding in which the patient’s physical, mental, or emotional condition is an element of any claim or defense; or (ii) after a patient’s death, in any legal or administrative proceeding in which any party relies upon the condition as an element of the claim or defense”);

    b. the government entity reasonably believes that releasing the information would (i) be “detrimental to the subject’s mental health or to the safety of any individual; or (ii) releasing the information would constitute a violation of normal professional practice and medical ethics;” and

    c. “the government entity has properly classified the record.”

    Utah Code §§ 63G-2-302(3), -304.

    A government entity shall disclose a controlled record to the following individuals: (a) a physician, psychologist, certified social worker, insurance provider or agent, or a government public health agency that submits a notarized release and a signed acknowledgment from the subject of the record; and (b) any person to whom the record must be disclosed pursuant to a court order. See id. § 63G-2-202(2).

    If more than one subject is included in the controlled record, the record shall be segregated. See id. § 63-2-202(3).

    Protected records. The following records are protected if classified properly by the government entity:

    a. trade secrets;

    b. commercial information or nonindividual financial information if: (i) disclosure of the information could result in an unfair competitive injury to the person submitting the information or would impair the government from obtaining necessary future information; (ii) the person submitting the information has a greater interest in prohibiting access than the public does in obtaining access; and (iii) the person submitting the information has been properly approved for a business confidentiality claim;

    c. commercial or financial information to the extent that disclosure would lead to financial speculations in currencies, securities, or commodities that will interfere with a planned government transaction or cause financial injury to the state economy;

    d. “records the disclosure of which could cause commercial injury to, or confer a competitive advantage upon a potential or actual competitor of, a commercial project entity”;

    e. “test questions and answers to be used in future license, certification, registration, employment, or academic examinations”;

    f. records the disclosure of which would give an unfair advantage to a person proposing to enter into a contract with the government, although a person can see the contract bids after the bidding has been closed;

    g. information submitted to or by a governmental entity in response to a request for information, except after a contract directly relating to the subject of the request for information has been awarded and signed by all parties, or a final determination is made not to enter into a contract that relates to the subject of the request for information and at least two years have passed after the day on which the request for information is issued;

    h. records that would identify real property or the appraised value of personal or real property under consideration for public acquisition, unless: (i) the public’s interest in the information outweighs the government’s interest in acquiring the property on the best possible terms; (ii) the information has already been disclosed to those not required to keep the information confidential; (iii) potential sellers of the property already have learned of the government’s plans to acquire the property; (iv) the potential seller of the property already has learned of the government’s estimated value of the property; or (v) if the property in consideration is a single family residence, the government entity seeking to acquire the property has initiated negotiations to acquire the property as required by law;

    i. records prepared in contemplation of sale, exchange, lease, rental, or other compensated real or personal property transaction that, if disclosed, would reveal the estimated or appraised value of the property, unless: (i) the public’s interest in the information outweighs the government’s interest in acquiring the property on the best possible terms; or (ii) the information already has been disclosed to those not required to keep the information confidential;

    j. “records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes,” if release of the records: (i) reasonably could be expected to interfere with the investigations; (ii) reasonably could be expected to interfere with the audit, disciplinary, or enforcement proceedings; (iii) would create a danger of depriving a person of a right to a fair trial or an impartial hearing; (iv) reasonably could be expected to disclose a confidential source’s identity; or (v) reasonably could be expected to disclose audit or investigative techniques, procedures, policies, or orders not generally known outside the government entity if disclosure would interfere with enforcement or audit efforts;

    k. “records the disclosure of which would jeopardize the life or safety of an individual”;

    l. records the disclosure of which would jeopardize the security of government property, programs, or recordkeeping systems;

    m. records the disclosure of which would jeopardize the security or safety of a correctional facility or that would interfere with the control and supervision of the offender;

    n. records the disclosure of which would reveal recommendations made to the Board of Pardons and Parole by its employees or related entities;

    o. records of the State Tax Commission the disclosure of which would interfere with the audits and collections performed by the State Tax Commission;

    p. “records of a governmental audit agency relating to an ongoing or planned audit” before release of the final audit;

    q. “records of a governmental audit agency relating to an ongoing or planned audit until the final audit is released”;

    r. “records that are subject to the attorney client privilege”;

    s. records prepared for or by an attorney, consultant, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding;

    t. a legislator’s personal files, unless they include notice of legislative action or policy;

    u. records in the custody or control of the Office of Legislative Research and General Counsel that, if disclosed, would reveal a legislator’s contemplated course of action before the legislator’s final decision;

    v. research requests from a legislator to the Office of Legislative Research and General Counsel or to the Office of the Legislative Fiscal Analyst and the responses to such requests;

    w. “drafts, unless otherwise classified as public”;

    x. “records concerning a governmental entity’s strategy about collective bargaining or imminent or pending litigation”;

    y. “records of investigations of loss occurrences and analyses of loss occurrences that may be covered by the Risk Management Fund, the Employers’ Reinsurance Fund, the Uninsured Employers’ Fund, or similar divisions in other governmental entities”;

    z. records, other than personnel evaluations, that contain a personal recommendation if disclosure would constitute a clearly unwarranted invasion of personal privacy or is not in the public interest;

    aa. records that reveal the location of historic, prehistoric, paleontological, or biological resources that, if known, would jeopardize the security of those resources;

    bb. records of independent state agencies if their disclosure would violate a fiduciary duty;

    cc. records of a public institution of higher education regarding tenure evaluations, appointments, applications for admissions, retention decisions, and promotions that could be discussed properly in a legally closed meeting; however, final decision on these matters may not be classified as protected;

    dd. records of the governor’s office that would reveal the governor’s contemplated policies or actions before the governor has implemented or rejected those policies or courses of action or made them public;

    ee. “records of the Office of the Legislative Fiscal Analyst relating to budget analysis, revenue estimates, and fiscal notes of proposed legislation before issuance of the final recommendations in these areas”;

    ff. records provided by the United States government or by another state that are given to the government entity with the requirement that they be maintained as protected;

    gg. “transcripts, minutes or reports of the closed portion of a meeting,” except as otherwise provided by law;

    hh. records that reveal the contents of settlement negotiations, except for final settlements or empirical data to the extent that such settlements or data are not otherwise exempt from disclosure;

    ii. staff memoranda used in the decision-making function of any quasi-judicial body;

    jj. “records that would reveal negotiations regarding assistance or incentives offered by or requested from a governmental entity for the purpose of encouraging a person to expand or locate a business in Utah, but only if disclosure would result in actual economic harm to the person or place the governmental entity at a competitive disadvantage, but this section may not be used to restrict access to a record evidencing a final contract”;

    kk. materials to which access must be limited for purposes of securing or maintaining the government entity’s proprietary protection of intellectual property rights;

    ll. the name or other information that may reveal the identity of a donor or potential donor to a government entity, provided that: (i) the donor requests anonymity in writing; (ii) terms or conditions relating to the donation may not be classified as protected; and (iii) except for public institutions of higher education, the government unit to which the donation is made is engaged primarily in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority over the donor, a member of his immediate family, or any entity owned or controlled by the donor or his immediate family;

    mm. accident reports, except as provided by law;

    nn. notification of workers’ compensation insurance coverage as described by law;

    oo. the following records of a public institution of education that have been developed, discovered, or received by or on behalf of faculty, staff, employees, or students of the institution: unpublished lecture notes, unpublished research notes and data, unpublished manuscripts, creative works in process, scholarly correspondence, and confidential information contained in research proposals;

    pp. “records in the custody or control of the Office of Legislative Auditor General that would reveal the name of a particular legislator who requests a legislative audit prior to the date that audit is completed and made public” (although a submitted request for a legislative audit “is a public document” unless the legislator asks that the records revealing the name “be maintained as public records until the audit is completed and made public”);

    qq. records, including maps, that detail the location of an explosive or production facility;

    rr. information contained in the Division of Aging and Adult Services database or information received or maintained relating to the Identity Theft Reporting Information System;

    ss. “information contained in the Management Information System and Licensing Information System”;

    tt. information pertaining to the National Guard’s operations or activities;

    uu. records that a pawn or secondhand business provides to law enforcement or to the central database;

    vv. “information regarding food security, risk, and vulnerability assessments performed by the Department of Agriculture and Food” and Department of Agriculture and Food records relating to the National Animal Identification System or relating to livestock diseases;

    ww. records related to emergency plans prepared or maintained by the Division of Emergency Management if disclosure of the records would endanger public safety or the security of government property, government programs, or a private person’s property if that person provides information to the Division;

    xx. unsubstantiated or anonymous complaints held by the Department of Health regarding child care programs;

    yy. unless otherwise classified as public under the law, an individual’s personal contact information if the individual is required to produce such information by law or by government order and the individual has a reasonable expectation that such information will be kept confidential;

    zz. the personal and business contact information of an individual who performs or is involved in medical or scientific research involving animals if that research is conducted within the state system of higher education;

    aaa. unless otherwise made public, initial proposals under the Government Procurement Private Proposal Program;

    bbb. unless otherwise made public under the law, information collected and prepared by the Judicial Performance Evaluation Commission concerning a judge;

    ccc. “records contained in the Management Information System created in Section 62A-4a-1003”;

    ddd. records of the Public Land Policy Coordinating Office in furtherance of certain agreements;

    eee. “information requested by and provided to the 911 Division under Section 63H-7a-302”;

    fff. a management plan for water conveyance facility in the possession of the Division of Water Resources or the Board of Water Resources; or an outline of an emergency response plan possessed by state or local government;

    ggg. The following records in the custody or control of the Office of Inspector General of Medicaid services: (i) records disclosing allegations of personal misconduct which cannot be corroborated through other evidence, and the records are not relied upon in preparing a final investigation or audit report; (ii) records disclosing the identity of a person who communicated the existence of any Medicaid fraud, waste, or abuse, or a violation or suspected violation of a law, rule, or regulation, if the information was disclosed on the condition the person’s identity be protected; (iii) before the time that an investigation or audit is completed and the final investigation or final audit report is released, records or drafts circulated to a person who is not an employee or head of a governmental entity for the person’s response or information; (iv) records that would disclose an outline or part of any investigation, audit survey plan, or audit program; or (v) requests for an investigation or audit, if disclosure would risk circumvention of an investigation or audit;

    hhh. records that reveal methods used by the Office of Inspector General of Medicaid Services, the fraud unit, or the Department of Health, to discover Medicaid fraud, waste, or abuse;

    iii. information provided to the Department of Health or the Division of Occupational and Professional Licensing by law;

    jjj. a record described in Section 63G-12-210;

    kkk. captured plate data that is obtained through an automatic license plate reader system used by a governmental entity as authorized by law;

    lll. Any record in the custody of the Utah Office for Victims of Crime relating to a victim, including: (i) a victim’s application or request for benefits; (ii) a victim’s receipt or denial of benefits; and (iii) any administrative note or records created to evaluate or communicate a victim’s eligibility for or denial of benefits form the Crime Victim Reparations Fund.

    mmm. an audio or video recording created by a body-worn camera that records sound or images inside a hospital or health care facility, inside a clinic of a health care provider, or inside a human service program, except for recordings that: (i) depict the commission of an alleged crime; (ii) record any encounter between law enforcement and a person that results in death or bodily injury or includes an instance when an officer fires a weapon; (iii) record any encounter that is the subject of a legal proceeding against a law enforcement officer or agency; (iv) contains an officer involved critical incident; (v) have been requested for reclassification as a public record by a subject featured in recording, or the subject’s authorized agent; and

    nnn. records pertaining to the search process for a president of an institution of higher education, except for application materials for publicly announced finalists.

    Utah Code § 63G-2-305.

    A government entity shall disclose a protected record to the following: (a) the person who submitted the record; (b) any individual who has a power of attorney or submits a notarized release from all persons, government entities, and political subdivisions whose interests were sought to be protected by the protected classification; or (c) any person to whom the record must be disclosed pursuant to a court order or legislative subpoena. Id. § 63G-2-202(4).

    A government entity may, in its discretion, disclose records that are protected to persons other than those specified above if the head of the government entity, or a designee, determines that the interests favoring access to the record outweigh the interests favoring restriction of access. Id. § 63G-2-201(5)(b). A governmental entity may also disclose protected records if: (i) the disclosure is determined to be mutually beneficial to the subject of the record, the governmental entity, and the public; (ii) the disclosure serves a public safety or consumer protection purpose; and (iii) the record will not be used for advertising or solicitation purposes. Id. § 63G-2-201(5)(c).

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  • Vermont

    Section 317(c) of the Public Records Act exempts the following categories of public records from public inspection and copying:

     

    (1)  Records which by law are designated confidential or by a similar term.

     

    (2)  Records which by law may only be disclosed to specifically designated persons.

     

    (3)  Records which, if made public pursuant to this subchapter, would cause the custodian to violate duly adopted standards of ethics or conduct for any profession regulated by the State.

     

    (4)  Records which, if made public pursuant to this subchapter, would cause the custodian to violate any statutory or common law privilege other than the common law deliberative process privilege as it applies to the General Assembly and the Executive Branch agencies of the State of Vermont.

     

    (5)  (A) Records dealing with the detection and investigation of crime, but only to the extent that the production of such records:

    (i)  could reasonably be expected to interfere with enforcement proceedings;

    (ii)  would deprive a person of a right to a fair trial or an impartial adjudication;

    (iii)  could reasonably be expected to constitute an unwarranted invasion of personal privacy;

    (iv)  could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;

    (v)  would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecution if such disclosure could reasonably be expected to risk circumvention of the law;

    (vi)  could reasonably be expected to endanger the life or physical safety of any individual.

    (B)  Notwithstanding subdivision (A) of this subdivision (5), records relating to management and direction of a law enforcement agency; records reflecting the initial arrest of a person, including any ticket, citation, or complaint issued for a traffic violation, as that term is defined in 23 V.S.A. § 2302; and records reflecting the charge of a person shall be public.

    (C)  It is the intent of the General Assembly that in construing subdivision (A) of this subdivision (5), the courts of this State will be guided by the construction of similar terms contained in 5 U.S.C. § 552(b)(7) (Freedom of Information Act) by the courts of the United States.

    (D)  It is the intent of the General Assembly that, consistent with the manner in which courts have interpreted subdivision (A) of this subdivision (5), a public agency shall not reveal information that could be used to facilitate the commission of a crime or the identity of a private individual who is a witness to or victim of a crime, unless withholding the identity or information would conceal government wrongdoing. A record shall not be withheld in its entirety because it contains identities or information that have been redacted pursuant to this subdivision.

     

    (6)  A tax return and related documents, correspondence, and certain types of substantiating forms which include the same type of information as in the tax return itself filed with or maintained by the Vermont Department of Taxes or submitted by a person to any public agency in connection with agency business.

     

    (7)  Personal documents relating to an individual, including information in any files maintained to hire, evaluate, promote, or discipline any employee of a public agency, information in any files relating to personal finances, medical or psychological facts concerning any individual or corporation; provided, however, that all information in personnel files of an individual employee of any public agency shall be made available to that individual employee or his or her designated representative.

     

    (8)  Test questions, scoring keys, and other examination instruments or data used to administer a license, employment, or academic examination.

     

    (9)  Trade secrets, meaning confidential business records or information, including any formulae, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented, which a commercial concern makes efforts that are reasonable under the circumstances to keep secret, and which gives its user or owner an opportunity to obtain business advantage over competitors who do not know it or use it, except that the disclosures required by 18 V.S.A. § 4632 are not exempt under this subdivision.

     

    (10)  Lists of names compiled or obtained by a public agency when disclosure would violate a person’s right to privacy or produce public or private gain; provided, however, that this section does not apply to lists which are by law made available to the public, or to lists of professional or occupational licensees.

     

    (11)  Student records, including records of a home study student; provided, however, that such records shall be made available upon request under the provisions of the Federal Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, as may be amended.

    (12)  Records concerning formulation of policy where such would constitute a clearly unwarranted invasion of personal privacy, if disclosed.

     

    (13)  Information pertaining to the location of real or personal property for public agency purposes prior to public announcement of the project and information pertaining to appraisals or purchase price of real or personal property for public purposes prior to the formal award of contracts thereof.

     

    (14)  Records which are relevant to litigation to which the public agency is a party of record, provided all such matters shall be available to the public after ruled discoverable by the court before which the litigation is pending, but in any event upon final termination of the litigation.

     

    (15)  Records relating specifically to negotiation of contracts, including collective bargaining agreements with public employees.

     

    (16)  Any voluntary information provided by an individual, corporation, organization, partnership, association, trustee, estate, or any other entity in the State of Vermont, which has been gathered prior to the enactment of this subchapter, shall not be considered a public document.

     

    (17)  Records of interdepartmental and intradepartmental communications in any county, city, town, village, town school district, incorporated school district, union school district, consolidated water district, fire district, or any other political subdivision of the State to the extent that they cover other than primarily factual materials and are preliminary to any determination of policy or action or precede the presentation of the budget at a meeting held in accordance with section 312 of this title.

     

    (18)  Records of the Office of Internal Investigation of the Department of Public Safety, except as provided in 20 V.S.A. § 1923.

     

    (19)  Records relating to the identity of library patrons or the identity of library patrons in regard to library patron registration records and patron transaction records in accordance with 22 V.S.A. chapter 4.

     

    (20)  Information that would reveal the location of archaeological sites and underwater historic properties, except as provided in 22 V.S.A. § 761.

     

    (21)  Lists of names compiled or obtained by Vermont Life magazine for the purpose of developing and maintaining a subscription list, which list may be sold or rented in the sole discretion of Vermont Life magazine, provided that such discretion is exercised in furtherance of that magazine’s continued financial viability, and is exercised pursuant to specific guidelines adopted by the editor of the magazine.

     

    (22)  [Repealed.]

     

    (23)  Any data, records, or information produced or acquired by or on behalf of faculty, staff, employees, or students of the University of Vermont or the Vermont State Colleges in the conduct of study, research, or creative efforts on medical, scientific, technical, scholarly, or artistic matters, whether such activities are sponsored alone by the institution or in conjunction with a governmental body or private entity, until such data, records, or information are published, disclosed in an issued patent, or publicly released by the institution or its authorized agents. This subdivision applies to, but is not limited to, research notes and laboratory notebooks, lecture notes, manuscripts, creative works, correspondence, research proposals and agreements, methodologies, protocols, and the identities of or any personally identifiable information about participants in research. This subdivision shall not exempt records, other than research protocols, produced or acquired by an institutional animal care and use committee regarding the committee’s compliance with State law or federal law regarding or regulating animal care.

     

    (24)  Records of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity.

     

    (25)  Passwords, access codes, user identifications, security procedures, and similar information the disclosure of which would threaten the safety of persons or the security of public property.

     

    (26)  Information and records provided to the Department of Financial Regulation by a person for the purposes of having the Department assist that person in resolving a dispute with any person regulated by the Department, and any information or records provided by a person in connection with the dispute.

     

    (27)  Information and records provided to the Department of Public Service by an individual for the purposes of having the Department assist that individual in resolving a dispute with a utility regulated by the Department, or by the utility or any other person in connection with the individual’s dispute.

     

    (28)  Records of, and internal materials prepared for, independent external reviews of health care service decisions pursuant to 8 V.S.A. § 4089f and of mental health care service decisions pursuant to 8 V.S.A. § 4089a.

     

    (29)  The records in the custody of the Secretary of State of a participant in the Address Confidentiality Program described in 15 V.S.A. chapter 21, subchapter 3, except as provided in that subchapter.

     

    (30)  All State-controlled database structures and application code, including the vermontvacation.com website and Travel Planner application, which are known only to certain State departments engaging in marketing activities and which give the State an opportunity to obtain a marketing advantage over any other state, regional, or local governmental or nonprofit quasi-governmental entity, or private sector entity, unless any such State department engaging in marketing activities determines that the license or other voluntary disclosure of such materials is in the State’s best interests.

     

    (31)  Records of a registered voter’s month and day of birth, driver’s license or nondriver identification number, telephone number, e-mail address, and the last four digits of his or her Social Security number contained in a voter registration application or the statewide voter checklist established under 17 V.S.A. § 2154 or the failure to register to vote under 17 V.S.A. § 2145a.

     

    (32)  With respect to publicly owned, managed, or leased structures, and only to the extent that release of information contained in the record would present a substantial likelihood of jeopardizing the safety of persons or the security of public property, final building plans, and as-built plans, including drafts of security systems within a facility, that depict the internal layout and structural elements of buildings, facilities, infrastructures, systems, or other structures owned, operated, or leased by an agency before, on, or after the effective date of this provision; emergency evacuation, escape, or other emergency response plans that have not been published for public use; and vulnerability assessments, operation and security manuals, plans, and security codes. For purposes of this subdivision, “system” shall include electrical, heating, ventilation, air conditioning, telecommunication, elevator, and security systems. Information made exempt by this subdivision may be disclosed to another governmental entity if disclosure is necessary for the receiving entity to perform its duties and responsibilities; to a licensed architect, engineer, or contractor who is bidding on or performing work on or related to buildings, facilities, infrastructures, systems, or other structures owned, operated, or leased by the State. The entities or persons receiving such information shall maintain the exempt status of the information. Such information may also be disclosed by order of a court of competent jurisdiction, which may impose protective conditions on the release of such information as it deems appropriate. Nothing in this subdivision shall preclude or limit the right of the General Assembly or its committees to examine such information in carrying out its responsibilities or to subpoena such information. In exercising the exemption set forth in this subdivision and denying access to information requested, the custodian of the information shall articulate the grounds for the denial.

     

    (33)  The account numbers for bank, debit, charge, and credit cards held by an agency or its employees on behalf of the agency.

     

    (34)  Affidavits of income and assets as provided in 15 V.S.A. § 662 and Rule 4 of the Vermont Rules for Family Proceedings.

     

    (35)  [Repealed.]

     

    (36)  Anti-fraud plans and summaries submitted for the purposes of complying with 8 V.S.A. § 4750.

     

    (37)  Records provided to the Department of Health pursuant to the Patient Safety Surveillance and Improvement System established by 18 V.S.A. chapter 43a.

     

    (38)  Records that include prescription information containing data that could be used to identify a prescriber, except that the records shall be made available upon request for medical research, consistent with and for purposes expressed in 18 V.S.A. § 4622 or 9410, 18 V.S.A. chapter 84 or 84A, and for other law enforcement activities.

    (39)  Records held by the Agency of Human Services or the Department of Financial Regulation, which include prescription information containing patient-identifiable data, that could be used to identify a patient.

     

    (40)  Records of genealogy provided in an application or in support of an application for tribal recognition pursuant to chapter 23 of this title.

     

    (41)  Documents reviewed by the Victims Compensation Board for purposes of approving an application for compensation pursuant to 13 V.S.A. chapter 167, except as provided by 13 V.S.A. §§ 5358a(b) and 7043(c).

     

    (42)  Except as otherwise provided by law, information that could be used to identify a complainant who alleges that a public agency, a public employee or official, or a person providing goods or services to a public agency under contract has engaged in a violation of law, or in waste, fraud, or abuse of authority, or in an act creating a threat to health or safety, unless the complainant consents to disclosure of his or her identity.

    See 1 V.S.A. § 317(c).

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  • Virginia

    Exclusions from the Act are collected and organized loosely by subject matter.  Some exclusions might fairly fall into more than one category and their assignment to a particular Code section is somewhat arbitrary.  This subsection follows the organization of the Act.  Sections 3705.1 through 3705.7 address exclusions of general application (subparts a. through m., found in § 3705.1), exclusions relating to public safety (subparts n. through aa., found in § 3705.2), exclusions relating to administrative investigations (subparts bb. through mm., found in § 3705.3); exclusions relating to education and educational institutions (subparts nn. through uu., found in § 3705.4); exclusions relating to health and social services (subparts vv. through kkk., found in § 3705.5); exclusions relating to proprietary records and trade secrets (subparts lll. through rrrr., found in § 3705.6); and miscellaneous exclusions unique to certain public bodies (subparts ssss. through zzzzz., found in § 3705.7).

    Note: the language below includes some close paraphrasing and some direct quotation.  For precise, current statutory language see the Code of Virginia.

    1. Personnel information: Personnel information concerning identifiable individuals, except that access may not be denied to the person who is the subject of the information. Person above age 18 may waive this protection in writing. § 2.2-3705.1.1.
    2. Advice of counsel: Written advice of legal counsel to state, regional or local public bodies or the officers or employees of those bodies and any other information protected by the attorney-client privilege. Va. Code Ann. § 2.2-3705.1.2.
    3. Litigation work product: Legal memoranda and other work product compiled specifically for litigation or as a part of an active administrative investigation concerning a matter that is properly the subject of a closed meeting under § 2.2-3711. Va. Code Ann. § 2.2-3705.1.3.
    4. Employment and Student Examination Records: Any test or examination used, administered or prepared by any public body for purposes of evaluation of (i) any student or any student's performance (ii) any employee or employment seeker's qualifications or aptitude for employment, retention, or promotion, or (iii) qualifications for any license or certificate issued by any public body. The subject of such employment tests, however, shall be entitled to review and inspect all records relative to his performance on such employment tests. The test shall be made available when, in the reasonable opinion of such public body, it no longer has any potential for future use and will not jeopardize future tests or exams. Va. Code Ann. § 2.2-3705.1.4.
    5. Records of Closed Meetings: Records recorded in or compiled exclusively for closed meetings lawfully held pursuant to§ 2.2-3711. Va. Code Ann.§ 2.2-3705.1.5
    6. Vendor Computer Programs: Vendor proprietary information software which may be in the public records of a public body. Va. Code Ann. § 2.2-3705.1.6.
    7. Computer Software Developed by Public Bodies: Computer software developed by or for a state agency, public institution of higher education or political subdivision of the Commonwealth. Va. Code Ann. § 2.2-3705.1.7.
    8. Appraisals and Cost Estimates of Real Property: Appraisals and cost estimates of real property subject to a proposed purchase, sale or lease, prior to the completion of such purchase, sale or lease. Va. Code Ann. § 2.2-3705.1.8.
    9. Claims and claim reserves: Records concerning reserves established in specific claims administered by the Department of the Treasury through its Division of Risk Management as provided in Article 5 (§ 2.2-1832 et seq.) of Chapter 18 of this title, or by any county, city, or town; and investigative notes, correspondence and information furnished in confidence with respect to an investigation of a claim or a potential claim against a public body's insurance policy or self-insurance plan. However, nothing in this subdivision prohibits the disclosure of information taken from inactive reports upon expiration of the period of limitations for the filing of a civil suit. Va. Code Ann. § 2.3705.1.9.
    10. Personal information and email addresses: Personal information as defined in § 2.2-3801, including electronic mail addresses, furnished to a public body for the purpose of receiving electronic mail from the public body, provided that the electronic mail recipient has requested that the public body not disclose such information. However, access shall not be denied to the subject of the record. Va. Code Ann. § 2.2-3705.1.10.
    11. Virginia Administrative Dispute Resolution Act: Communications and materials required to be kept confidential pursuant to § 2.2-4119 of the Virginia Administrative Dispute Resolution Act (§ 2.2-4115 et seq.). Va. Code Ann. § 2.2-3705.1.11.
    12. Negotiation and award of a specific contract: Records relating to the negotiation and award of a specific contract where competition or bargaining is involved and where the release of such records would adversely affect the bargaining position or negotiating strategy of the public body. Such records shall not be withheld after the public body has made a decision to award or not to award the contract. In the case of procurement transactions conducted pursuant to the Virginia Public Procurement Act (§ 2.2-4300 et seq.), the provisions of this subdivision shall not apply, and any release of records relating to such transactions shall be governed by the Virginia Public Procurement Act. Va. Code Ann. § 2.2-3705.1.12.
    13. Financial account information: Account numbers or routing information for any credit or debit card, or account with a financial institution, subject to access by the person who is the subject of the information. § 2.2-3705.1.13.
    14. Rape or Battered Spouses Records: Confidential information, including victim identity, provided to or obtained by staff in a rape crisis center or a program for battered spouses. Va. Code Ann. § 2.2-3705.2.1.
    15. Data Processing Security: Information that describes design, function, operation or access control features of any security system used to control access to or use of any automated data processing or telecommunications system. Va. Code Ann. § 2.2-3705.2.2.
    16. Railway Safety: Information disclosing security aspects of plan adopted pursuant to federal regulation by the Commonwealth’s designated Rail Fixed Guideway Systems Safety Oversight Agency, the release of which would jeopardize an ongoing investigation of a rail accident or other incident threatening railway safety. Va. Code Ann. § 2.2-3705.2.3.
    17. School safety audits: Information concerning security plans and specific assessment components of school safety audits, as provided in § 22.1-279.8. Disclosure of information may be made after (i) any school building or property has been subjected to fire, explosion, natural disaster, or other catastrophic event or (ii) any person on school property has suffered or been threatened with any personal injury.  Va. Code Ann. §2.2-3705.2.4.
    18. Sexual Predator Mental Assessments: Information concerning the mental health assessment of an individual subject to commitment as a sexually violent predator under Chapter 9 (§ 37.2-900 et seq.) of Title 37.2 held by the Commitment Review Committee. Information identifying the victims of a sexually violent predator may not be disclosed. Va. Code Ann. §2.2-3705.2.5.
    19. E-911 Subscriber Data from Provider: Subscriber data provided directly or indirectly by a communications services provider to a public body that operates a 911 or E-911 emergency dispatch system or an emergency notification or reverse 911 system if the data is in a form not made available by the communications services provider to the public generally. This does not bar the disclosure of subscriber data generated in connection with specific calls to a 911 emergency system, where the requester seeks public records about the use of the system in response to a specific crime, emergency or other event as to which a citizen has initiated a 911 call. Va. Code Ann. §2.2-3705.2.6.
    20. E-911 Subscriber Data Held by Public Body: Subscriber data collected by a local governing body in accordance with the Enhanced Public Safety Telephone Services Act (§ 56-484.12 et seq.) and other identifying information of a personal, medical, or financial nature provided to a local governing body in connection with a 911 or E-911 emergency dispatch system or an emergency notification or reverse 911 system if such records are not otherwise publicly available. This does not prevent the disclosure of subscriber data generated in connection with specific calls to a 911 emergency system, where the requester is seeking to obtain public records about the use of the system in response to a specific crime, emergency or other event as to which a citizen has initiated a 911 call. Va. Code Ann. §2.2-3705.2.7.
    21. Military Base Closure Information: Information held by the Virginia Military Advisory Council or any commission created by executive order for the purpose of studying and making recommendations regarding preventing closure or realignment of federal military and national security installations and facilities located in Virginia and relocation of such facilities to Virginia, or a local or regional military affairs organization appointed by a local governing body, that would (i) reveal strategies under consideration or development by the Council or such commission or organizations to prevent the closure or realignment of federal military installations located in Virginia or the relocation of national security facilities located in Virginia, to limit the adverse economic effect of such realignment, closure, or relocation, or to seek additional tenant activity growth from the Department of Defense or federal government or (ii) disclose trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), provided to the Council or such commission or organizations in connection with their work. Submitting entity must follow procedure to invoke trade secret status at time of submission to public body. The subsection does not bar disclosure of all or part of any record, other than a trade secret that has been specifically identified, after the Department of Defense or federal agency has issued a final, unappealable decision, or a court of competent jurisdiction has entered a final, unappealable order concerning the closure, realignment, or expansion of the military installation or tenant activities, or the relocation of the national security facility, for which records are sought.  Va. Code Ann. §2.2-3705.2.8.
    22. Financial System Internal Controls: Information, as determined by the State Comptroller, that describes the design, function, operation, or implementation of internal controls over the Commonwealth's financial processes and systems, and the assessment of risks and vulnerabilities of those controls, including the annual assessment of internal controls mandated by the State Comptroller, if disclosure of such information would jeopardize the security of the Commonwealth's financial assets. Does not bar the release of records relating to the investigation of and findings concerning the soundness of any fiscal process, nor does it prohibit the Auditor of Public Accounts or the Joint Legislative Audit and Review Commission from reporting internal control deficiencies discovered during the course of an audit. Va. Code Ann. §2.2-3705.2.9.
    23. Public Safety Communications System: Information relating to the Statewide Agencies Radio System (STARS) or any other similar local or regional public safety communications system that (i) describes the design, function, programming, operation, or access control features of the overall system, components, structures, individual networks, and subsystems of the STARS or any other similar local or regional communications system or (ii) relates to radio frequencies assigned to or utilized by STARS or any other similar local or regional communications system, code plugs, circuit routing, addressing schemes, talk groups, fleet maps, encryption, or programming maintained by or utilized by STARS or any other similar local or regional public safety communications system. Va. Code Ann. §2.2-3705.2.10.
    24. Fire/EMS Pager and Telephone Numbers: Information concerning a salaried or volunteer Fire/EMS company or Fire/EMS department if disclosure of such information would reveal the telephone numbers for cellular telephones, pagers, or comparable portable communication devices provided to its personnel for use in the performance of their official duties. Va. Code Ann. §2.2-3705.2.11.
    25. Hospital and Nursing Home Disaster Plans: Information concerning the disaster recovery plans or the evacuation plans in the event of fire, explosion, natural disaster, or other catastrophic event for hospitals and nursing homes regulated by the Board of Health pursuant to Chapter 5 (§ 32.1-123 et seq.) of Title 32.1 provided to the Department of Health. This does not prevent the disclosure of information relating to the effectiveness of executed evacuation plans after the occurrence of fire, explosion, natural disaster, or other catastrophic event. Va. Code Ann. §2.2-3705.2.12.
    26. Higher Education Security and Threat Assessment: Records received by the Department of Criminal Justice Services pursuant to §§ 9.1-184, 22.1-79.4, and 22.1-279.8 or for purposes of evaluating threat assessment teams established by a public institution of higher education pursuant to § 23.1-805 or by a private nonprofit institution of higher education, to the extent such records reveal security plans, walk-through checklists, or vulnerability and threat assessment components. Va. Code Ann. §2.2-3705.2.13.
    27. Critical Infrastructure, Cybersecurity and Threat Assessment: Information contained in (i) engineering, architectural, or construction drawings; (ii) operational, procedural, tactical planning, or training manuals; (iii) staff meeting minutes; or (iv) other records that reveal any of the following, the disclosure of which would jeopardize the safety or security of any person; governmental facility, building, or structure or persons using such facility, building, or structure; or public or private commercial office, multifamily residential, or retail building or its occupants:
    28. Critical infrastructure information or the location or operation of security equipment and systems of any public building, structure, or information storage facility, including ventilation systems, fire protection equipment, mandatory building emergency equipment or systems, elevators, electrical systems, telecommunications equipment and systems, or utility equipment and systems;
    29. Vulnerability assessments, information not lawfully available to the public regarding specific cybersecurity threats or vulnerabilities, or security plans and measures of an entity, facility, building structure, information technology system, or software program;
    30. Surveillance techniques, personnel deployments, alarm or security systems or technologies, or operational or transportation plans or protocols; or
    31. Interconnectivity, network monitoring, network operation centers, master sites, or systems related to the Statewide Agencies Radio System (STARS) or any other similar local or regional public safety communications system.

    A private entity submitting this category of information to a public body may seek protection at the time of submission by following the protocol laid out in the statute.  Its submission statement shall be a public record and shall be disclosed upon request.

    Any public body receiving a request for records excluded under clauses (a) and (b) above must notify the Secretary of Public Safety and Homeland Security or his designee of such request and the response made by the public body in accordance with § 2.2-3704.

    This subdivision does not prevent the disclosure of records relating to (1) the structural or environmental soundness of any such facility, building, or structure or (2) an inquiry into the performance of such facility, building, or structure after it has been subjected to fire, explosion, natural disaster, or other catastrophic event.  Va. Code Ann. §2.2-3705.2.14.

    1. Commercial Space Flight Authority National Security: Information held by the Virginia Commercial Space Flight Authority that is categorized as classified or sensitive but unclassified, including national security, defense, and foreign policy information, provided that such information is exempt under the federal Freedom of Information Act, 5 U.S.C. § 552. Va. Code Ann. §2.2-3705.2.14.
    2. Certain Licensee and Permit Application Information: Information relating to investigations of applicants for licenses and permits, and of all licensees and permittees, made by or submitted to the Virginia Alcoholic Beverage Control Authority, the Virginia Lottery, the Virginia Racing Commission, the Department of Agriculture and Consumer Services relating to investigations and applications pursuant to Article 1.1:1 (§ 18.2-340.15 et seq.) of Chapter 8 of Title 18.2, or the Private Security Services Unit of the Department of Criminal Justice Services. Va. Code Ann. § 2.2-3705.3.1.
    3. Health Regulatory Investigations: Records of active investigations being conducted by the Department of Health Professions or by any health regulatory board in the Commonwealth pursuant to § 54.1-108. Va. Code Ann. § 2.2-3705.3.2.
    4. Employment Discrimination Complaints: Investigator notes, and other correspondence and information, furnished in confidence with respect to an active investigation of individual employment discrimination complaints made to the Department of Human Resource Management, to such personnel of any local public body, including local school boards, as are responsible for conducting such investigations in confidence, or to any public institution of higher education. This does not prevent the disclosure of information taken from inactive reports in a form that does not reveal the identity of charging parties, persons supplying the information, or other individuals involved in the investigation. Va. Code Ann. § 2.2-3705.3.3.
    5. DMAS Medicaid Investigations: Records of active investigations being conducted by the Department of Medical Assistance Services pursuant to Chapter 10 (§ 32.1-323 et seq.) of Title 32.1. Va. Code Ann. § 2.2-3705.3.4.
    6. Human Rights Act Investigations: Investigative notes and other correspondence and information furnished in confidence with respect to an investigation or conciliation process involving an alleged unlawful discriminatory practice under the Virginia Human Rights Act (§ 2.2-3900 et seq.) or under any local ordinance adopted in accordance with the authority specified in § 2.2-524, or adopted pursuant to § 15.2-965, or adopted prior to July 1, 1987, in accordance with applicable law, relating to local human rights or human relations commissions. This does not prevent the distribution of information taken from inactive reports in a form that does not reveal the identity of the parties involved or other persons supplying information. Va. Code Ann. § 2.2-3705.3.5.
    7. Virginia Lottery Investigations: Information relating to studies and investigations by the Virginia Lottery of (i) lottery agents, (ii) lottery vendors, (iii) lottery crimes under §§ 58.1-4014 through 58.1-4018, (iv) defects in the law or regulations that cause abuses in the administration and operation of the lottery and any evasions of such provisions, or (v) the use of the lottery as a subterfuge for organized crime and illegal gambling where such information has not been publicly released, published or copyrighted. All studies and investigations referred to under clauses (iii), (iv), and (v) are open to inspection and copying upon completion of the study or investigation. Va. Code Ann. § 2.2-3705.3.6.
    8. Auditors and Whistle-blowers: Investigative notes, correspondence and information furnished in confidence, and records otherwise exempted by the Act or any Virginia statute, provided to or produced by or for (i) the Auditor of Public Accounts; (ii) the Joint Legislative Audit and Review Commission; (iii) an appropriate authority as defined in § 2.2-3010 with respect to an allegation of wrongdoing or abuse under the Fraud and Abuse Whistle Blower Protection Act (§ 2.2-3009 et seq.); (iv) the Office of the State Inspector General with respect to an investigation initiated through the Fraud, Waste and Abuse Hotline or an investigation initiated pursuant to Chapter 3.2 (§ 2.2-307 et seq.); (v) internal auditors appointed by the head of a state agency or by any public institution of higher education; (vi) the committee or the auditor with respect to an investigation or audit conducted pursuant to § 15.2-825; or (vii) the auditors, appointed by the local governing body of any county, city, or town or a school board, who by charter, ordinance, or statute have responsibility for conducting an investigation of any officer, department, or program of such body. Information contained in completed investigations shall be disclosed in a form that does not reveal the identity of the complainants or persons supplying information to investigators. Unless disclosure is excluded by this subdivision, the information disclosed shall include the agency involved, the identity of the person who is the subject of the complaint, the nature of the complaint, and the actions taken to resolve the complaint. If an investigation does not lead to corrective action, the identity of the person who is the subject of the complaint may be released only with the consent of the subject person. Local governing bodies shall adopt guidelines to govern the disclosure required by this subdivision. Va. Code Ann. § 2.2-3705.3.7.
    9. jj. Zoning and Code Violation Complainants: The names, addresses, and telephone numbers of complainants furnished in confidence with respect to an investigation of individual zoning enforcement complaints or complaints relating to the Uniform Statewide Building Code (§ 36-97 et seq.) or the Statewide Fire Prevention Code (§ 27-94 et seq.) made to a local governing body. Code Ann. § 2.2-3705.3.8.
    10. DCJS Investigations of Security Services and Bail Bondsmen: Records of active investigations being conducted by the Department of Criminal Justice Services pursuant to Article 4 (§ 9.1-138 et seq.), Article 4.1 (§ 9.1-150.1 et seq.), Article 11 (§ 9.1-185 et seq.), and Article 12 (§ 9.1-186 et seq.) of Chapter 1 of Title 9.1. Va. Code Ann. § 2.2-3705.3.9.
    11. School Board Security Investigations: Information furnished to or prepared by the Board of Education pursuant to subsection D of § 22.1-253.13:3 in connection with the review or investigation of any alleged breach in security, unauthorized alteration, or improper administration of tests by local school board employees responsible for the distribution or administration of the tests. However, this section shall not prohibit the disclosure of such information to (i) a local school board or division superintendent for the purpose of permitting such board or superintendent to consider or to take personnel action with regard to an employee or (ii) any requester, after the conclusion of a review or investigation, in a form that (a) does not reveal the identity of any person making a complaint or supplying information to the Board on a confidential basis and (b) does not compromise the security of any test mandated by the Board. Va. Code Ann. § 2.2-3705.3.10.
    12. School Personnel Applications and Investigations: Information contained in (i) an application for licensure or renewal of a license for teachers and other school personnel, including transcripts or other documents submitted in support of an application, and (ii) an active investigation conducted by or for the Board of Education related to the denial, suspension, cancellation, revocation, or reinstatement of teacher and other school personnel licenses including investigator notes and other correspondence and information, furnished in confidence with respect to such investigation. This does not prohibit the disclosure of such (a) application information to the applicant at his own expense or (b) investigation information to a local school board or division superintendent for the purpose of permitting such board or superintendent to consider or to take personnel action with regard to an employee. Information contained in completed investigations shall be disclosed in a form that does not reveal the identity of any complainant or person supplying information to investigators. The completed investigation information disclosed shall include information regarding the school or facility involved, the identity of the person who was the subject of the complaint, the nature of the complaint, and the actions taken to resolve the complaint. If an investigation fails to support a complaint or does not lead to corrective action, the identity of the person who was the subject of the complaint may be released only with the consent of the subject person. No personally identifiable information regarding a current or former student shall be released except as permitted by state or federal law. Va. Code Ann. § 2.2-3705.3.11.
    13. Attorney General Investigations of Tobacco Marketing and RICO: Information provided in confidence and related to an investigation by the Attorney General under Article 1 (§ 3.2-4200 et seq.) or Article 3 (§ 3.2-4204 et seq.) of Chapter 42 of Title 3.2, Article 10 (§ 18.2-246.6 et seq.) of Chapter 6 or Chapter 13 (§ 18.2-512 et seq.) of Title 18.2, or Article 1 (§ 58.1-1000) of Chapter 10 of Title 58.1. Information related to an investigation that has been inactive for more than six months shall, upon request, be disclosed provided such disclosure is not otherwise prohibited by law and does not reveal the identity of charging parties, complainants, persons supplying information, witnesses, or other individuals involved in the investigation. Va. Code Ann. § 2.2-3705.3.12.
    14. Scholastic records containing information concerning identifiable individuals, except that such access shall not be denied to the person who is the subject thereof, or the parent or legal guardian of the student. However, no student shall have access to (i) financial records of a parent or guardian or (ii) records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto, that are in the sole possession of the maker thereof and that are not accessible or revealed to any other person except a substitute. The custodian of a scholastic record shall not release the address, phone number, or email address of a student in response to a request made under the Act without written consent. For any student who is (i) 18 years of age or older, (ii) under the age of 18 and emancipated, or (iii) attending an institution of higher education, written consent of the student shall be required.  For any other student, written consent of the parent or legal guardian of the such student shall be required.  Va. Code Ann. § 2.2-3705.4.A.1. and B.

    The parent or legal guardian of a student may prohibit, by written request, the release of any individual information regarding that student until the student reaches the age of 18 years. For scholastic records of students under the age of 18 years, the right of access may be asserted only by his legal guardian or parent, including a noncustodial parent, unless such parent's parental rights have been terminated or a court of competent jurisdiction has restricted or denied such access. For scholastic records of students who are emancipated or attending a public institution of higher education in the Commonwealth, the right of access may be asserted by the student.

    Any person who is the subject of any scholastic record and who is 18 years of age or older may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, such records shall be disclosed.

    1. Recommendation Letters: Confidential letters and statements of recommendation placed in the records of educational agencies or institutions respecting (i) admission to any educational agency or institution, (ii) an application for employment or promotion, or (iii) receipt of an honor or honorary recognition. Va. Code Ann. § 2.2-3705.4.A.2.
    2. Brown v. Board Scholarship Committee: Information held by the Brown v. Board of Education Scholarship Committee that would reveal personally identifiable information, including scholarship applications, personal financial information, and confidential correspondence and letters of recommendation. Va. Code Ann. § 2.2-3705.4.A.3.
    3. Higher Education Research: Information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education, other than the institutions' financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or a private concern, where such information has not been publicly released, published, copyrighted or patented. Applied in Am. Tradition Inst. v. Rector & Visitors of the Univ. of Va., 287 Va. 330, 756 S.E.2d 435 (2014) (construing the word “proprietary”).  Va. Code Ann. § 2.2-3705.4.A.4.
    4. Competitively Sensitive Health Care Delivery Information: Information held by the University of Virginia or the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be, that contain proprietary, business-related information pertaining to the operations of the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be, including business development or marketing strategies and activities with existing or future joint venturers, partners, or other parties with whom the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be, has formed, or forms, any arrangement for the delivery of health care, if disclosure of such information would be harmful to the competitive position of the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be. Va. Code Ann. § 2.2-3705.4.A.5.
    5. Personal Information in College Savings Plan or Trust Account: Personal information, as defined in § 2.2-3801, provided to the Board of the Virginia College Savings Plan or its employees by or on behalf of individuals who have requested information about, applied for, or entered into prepaid tuition contracts or savings trust account agreements pursuant to Chapter 7 (§ 23.1-700 et seq.) of Title 23.1, including personal information related to (i) qualified beneficiaries as that term is defined in § 23.1-700, (ii) designated survivors, or (iii) authorized individuals. This does not prevent disclosure or publication of information in a statistical or other form that does not identify individuals or provide personal information. Individuals have access to their own personal information. Va. Code Ann. § 2.2-3705.4.A.6.
    6. Higher Education Fundraising: Information maintained in connection with fundraising activities by or for a public institution of higher education that would reveal (i) personal fundraising strategies relating to identifiable donors or prospective donors or (ii) wealth assessments; estate, financial, or tax planning information; health-related information; employment, familial, or marital status information; electronic mail addresses, facsimile or telephone numbers; birth dates or social security numbers of identifiable donors or prospective donors. This does not prevent the disclosure of information relating to the amount, date, purpose, and terms of the pledge or donation, or the identity of the donor unless the donor has requested anonymity in connection with or as a condition of making a pledge or donation. It does not prevent from disclosure (i) the identities of sponsors providing grants to or contracting with the institution for the performance of research services or other work or (ii) the terms and conditions of such grants or contracts. Va. Code Ann. § 2.2-3705.4.A.7.
    7. Assessment of Individual Threats: Information held by a threat assessment team established by a local school board pursuant to § 22.1-79.4 or by a public institution of higher education pursuant to § 23.1-805 relating to the assessment or intervention with a specific individual. In the event an individual who has been under assessment commits an act, or is prosecuted for the commission of an act that has caused the death of, or caused serious bodily injury, including any felony sexual assault, to another person, such information of the threat assessment team concerning the individual under assessment shall be made available as provided in the Act, with the exception of any criminal history records obtained pursuant to § 19.2-389 or 19.2-389.1, health records obtained pursuant to § 32.1-127.1:03, or scholastic records as defined in § 22.1-289. The public body providing such information shall remove personally identifying information of any person who provided information to the threat assessment team under a promise of confidentiality. Va. Code Ann. § 2.2-3705.4.A.8.
    8. Health records: Health records, except that such records may be personally reviewed by the individual who is the subject of such records, as provided in subsection F of § 32.1-127.1:03. Where the person who is the subject of health records is confined in a state or local correctional facility, the administrator or chief medical officer of such facility may assert such confined person's right of access to the health records, and may review but not copy such records, if the administrator or chief medical officer has reasonable cause to believe that such confined person has an infectious disease or other medical condition from which other persons so confined need to be protected. Where the person who is the subject of health records is under the age of 18, his right of access may be asserted only by his guardian or his parent, including a noncustodial parent, unless such parent's parental rights have been terminated, a court of competent jurisdiction has restricted or denied such access, or a parent has been denied access to the health record in accordance with § 20-124.6. In instances where the person who is the subject thereof is an emancipated minor, a student in a public institution of higher education, or is a minor who has consented to his own treatment as authorized by § 16.1-338 or 54.1-2969, the right of access may be asserted by the subject person. Statistical summaries of incidents and statistical data, without disclosing information about specific individuals, concerning abuse of individuals receiving services compiled by the Commissioner of Behavioral Health and Developmental Services shall be disclosed. Va. Code Ann. § 2.2-3705.5.1.
    9. Licensure and scoring information: Applications for admission to examinations or for licensure and scoring records maintained by the Department of Health Professions or any board in that department on individual licensees or applicants; information required to be provided to the Department of Health Professions by certain licensees pursuant to § 54.1-2506.1; information held by the Health Practitioners' Monitoring Program Committee within the Department of Health Professions that identifies any practitioner who may be, or who is actually, impaired to the extent that disclosure is prohibited by § 54.1-2517; and information relating to the prescribing and dispensing of covered substances to recipients and any abstracts from such information that are in the possession of the Prescription Monitoring Program (Program) pursuant to Chapter 25.2 (§ 54.1-2519 et seq.) of Title 54.1 and any material relating to the operation or security of the Program. Va. Code Ann. § 2.2-3705.5.2.
    10. Department for Aging and Rehabilitative Services; Department of Social Services: Reports, documentary evidence, and other information as specified in §§ 51.5-122 and 51.5-141 and Chapter 1 (§ 63.2-100 et seq.) of Title 63.2 and information and statistical registries required to be kept confidential pursuant to Chapter 1 (§ 63.2-100 et seq.) of Title 63.2. Va. Code Ann. § 2.2-3705.5.3.
    11. Social Services and Medicaid Licensure, Inspection, Investigations: Investigative notes; proprietary information not published, copyrighted or patented; information obtained from employee personnel records; personally identifiable information regarding residents, clients or other recipients of services; other correspondence and information furnished in confidence to the Department of Social Services in connection with an active investigation of an applicant or licensee pursuant to Chapters 17 (§ 63.2-1700 et seq.) and 18 (§ 63.2-1800 et seq.) of Title 63.2; and information furnished to the Office of the Attorney General in connection with an investigation or litigation pursuant to Article 19.1 (§ 8.01-216.1 et seq.) of Chapter 3 of Title 8.01 and Chapter 9 (§ 32.1-310 et seq.) of Title 32.1. This does not prevent the disclosure of information from the records of completed investigations in a form that does not reveal the identity of complainants, persons supplying information, or other individuals involved in the investigation. Va. Code Ann. § 2.2-3705.5.4.

    aaa. Emergency Medical Services: Information collected for the designation and verification of trauma centers and other specialty care centers within the Statewide Emergency Medical Services System and Services pursuant to Article 2.1 (§ 32.1-111.1 et seq.) of Chapter 4 of Title 32.1.  Va. Code Ann. § 2.2-3705.5.5.

    bbb. Mental health Commitment Hearings: Reports and court documents relating to involuntary admission required to be kept confidential pursuant to § 37.2-818.  Va. Code Ann. § 2.2-3705.5.6.

    ccc. Family Fatality Review: Information acquired (i) during a review of any child death conducted by the State Child Fatality Review team established pursuant to § 32.1-283.1 or by a local or regional child fatality review team to the extent that such information is made confidential by § 32.1-283.2; (ii) during a review of any death conducted by a family violence fatality review team to the extent that such information is made confidential by § 32.1-283.3;  (iii) during a review of any adult death conducted by the Adult Fatality Review Team to the extent made confidential by § 32.1-283.5 or by a local or regional adult fatality review team to the extent that such information is made confidential by § 32.1-283.6., or (iv) by regional or local drug overdose fatality review teams.  Va. Code Ann. § 2.2-3705.5.7.

    ddd. Health Care Data: Patient level data collected by the Board of Health and not yet processed, verified, and released, pursuant to § 32.1-276.9, to the Board by the nonprofit organization with which the Commissioner of Health has contracted pursuant to § 32.1-276.4.  Va. Code Ann. § 2.2-3705.5.8.

    eee. Neurotrauma Advisory Board Grant Applications: Information relating to a grant application, or accompanying a grant application, submitted to the Commonwealth Neurotrauma Initiative Advisory Board pursuant to Article 12 (§ 51.5-178 et seq.) of Chapter 14 of Title 51.5 that would (i) reveal (a) medical or mental health records or other data identifying individual patients or (b) proprietary business or research-related information produced or collected by the applicant in the conduct of or as a result of study or research on medical, rehabilitative, scientific, technical, or scholarly issues, when such information has not been publicly released, published, copyrighted, or patented, and (ii) be harmful to the competitive position of the applicant.  Va. Code Ann. § 2.2-3705.5.9.

    fff. Managed Care Plan Review and Investigation: Any information copied, recorded, or received by the Commissioner of Health in the course of an examination, investigation, or review of a managed care health insurance plan licensee pursuant to §§ 32.1-137.4 and 32.1-137.5, including books, records, files, accounts, papers, documents, and any or all computer or other recordings. Va. Code Ann. § 2.2-3705.5.10.

    ggg. Birth-Related Neurological Injuries; Claim and Claimant Information:  Records of the Virginia Birth-Related Neurological Injury Compensation Program required to be kept confidential pursuant to § 38.2-5002.2.  Va. Code Ann. § 2.2-3705.5.11.

    hhh. Communicable disease; Quarantined or Isolated Persons: Information held by the State Health Commissioner relating to the health of any person subject to an order of quarantine or an order of isolation pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of Chapter 2 of Title 32.1. This does not prevent the disclosure of statistical summaries, abstracts, or other information in aggregate form.  Va. Code Ann. § 2.2-3705.5.12.

    iii. Individuals Receiving Transport Services Under ADA or TANF: The names and addresses or other contact information of persons receiving transportation services from a state or local public body or its designee under Title II of the Americans with Disabilities Act, (42 U.S.C. § 12131 et seq.) or funded by Temporary Assistance for Needy Families (TANF) created under § 63.2-600.  Va. Code Ann. § 2.2-3705.5.13.

    jjj. Medical Peer and Utilization Review Committees: Information held by certain health care committees and entities that may be withheld from discovery as privileged communications pursuant to § 8.01-581.17.  Va. Code Ann. § 2.2-3705.5.14.

    kkk. Emergency Psychiatric Admission Proceedings: Data and information specified in § 37.2-308.01 relating to proceedings provided for in Article 16 (§ 16.1-335 et seq.) of Chapter 11 of Title 16.1 and Chapter 8 (§ 37.2-800 et seq.) of Title 37.2.  Va. Code Ann. § 2.2-3705.5.15.

    lll. Hospital Emergency Department Coordination: Records of and information held by the Emergency Department Care Coordination Program required to be kept confidential pursuant to § 32.1-372.  Va. Code Ann. § 2.2-3705.5.16. [The effective date of this provision is contingent upon the receipt of federal funding for the related program.]

    mmm. Virginia Port Authority: Proprietary information gathered by or for the Virginia Port Authority as provided in § 62.1-132.4 or 62.1-134.1.  Va. Code Ann. § 2.2-3705.6.1.

    nnn. Industrial Development Financing: Financial statements not publicly available filed with applications for industrial development financings in accordance with Chapter 49 (§ 15.2-4900 et seq.) of Title 15.2.  Va. Code Ann. § 2.2-3705.6.2.

    ooo. Business Recruitment and Expansion: Proprietary information, voluntarily provided by private business pursuant to a promise of confidentiality from a public body, used by the public body for business, trade, and tourism development or retention; and memoranda, working papers, or other information related to businesses that are considering locating or expanding in Virginia, prepared by a public body, where competition or bargaining is involved and where disclosure of such information would adversely affect the financial interest of the public body.  Va. Code Ann. § 2.2-3705.6.3.

    ppp. Toxic substance Information: Information that was filed as confidential under the Toxic Substances Information Act (§ 32.1-239 et seq.), as such Act existed prior to July 1, 1992.  Va. Code Ann. § 2.2-3705.6.4.

    qqq. Fishing Vessel Identification: Fisheries data that would permit identification of any person or vessel, except when required by court order as specified in § 28.2-204.  Va. Code Ann. § 2.2-3705.6.5.

    rrr. Railroad Information Protected by Federal Law:  Confidential financial statements, balance sheets, trade secrets, and revenue and cost projections provided to the Department of Rail and Public Transportation, provided such information is exempt under the federal Freedom of Information Act or the federal Interstate Commerce Act or other laws administered by the Surface Transportation Board or the Federal Railroad Administration with respect to data provided in confidence to the Surface Transportation Board and the Federal Railroad Administration.  Va. Code Ann. § 2.2-3705.6.6.

    sss. Information Provided to Department of Mines, Minerals and Energy: Proprietary information related to inventory and sales, voluntarily provided by private energy suppliers to the Department of Mines, Minerals and Energy, used by that Department for energy contingency planning purposes or for developing consolidated statistical information on energy supplies.  Va. Code Ann. § 2.2-3705.6.7.

    ttt. Medicaid Prescription Drug Prior Authorization: Confidential proprietary information furnished to the Board of Medical Assistance Services or the Medicaid Prior Authorization Advisory Committee pursuant to Article 4 (§ 32.1-331.12 et seq.) of Chapter 10 of Title 32.1.  Va. Code Ann. § 2.2-3705.6.8.

    uuu. Confidential Information of Private Transportation  Business Protected by Federal Law: Proprietary, commercial or financial information, balance sheets, trade secrets, and revenue and cost projections provided by a private transportation business to the Virginia Department of Transportation and the Department of Rail and Public Transportation for the purpose of conducting transportation studies needed to obtain grants or other financial assistance under the Transportation Equity Act for the 21st Century (P.L. 105-178) for transportation projects if disclosure of such information is exempt under the federal Freedom of Information Act or the federal Interstate Commerce Act or other laws administered by the Surface Transportation Board or the Federal Railroad Administration with respect to data provided in confidence to the Surface Transportation Board and the Federal Railroad Administration. This exclusion does not apply to any wholly owned subsidiary of a public body.  Va. Code Ann. § 2.2-3705.6.9.

    vvv. Confidential Business Information Protected by Procurement Act: Confidential information designated as provided in subsection F of § 2.2-4342 as trade secrets or proprietary information by any person in connection with a procurement transaction or by any person who has submitted to a public body an application for prequalification to bid on public construction projects in accordance with subsection B of § 2.2-4317.  Va. Code Ann. § 2.2-3705.6.10.

    www. Government Evaluation of PPEA and PPTA Proposals: Memoranda, staff evaluations, or other information prepared by the responsible public entity, its staff, outside advisors, or consultants exclusively for the evaluation and negotiation of proposals filed under the Public-Private Transportation Act of 1995 (§ 33.2-1800 et seq.) or the Public-Private Education Facilities and Infrastructure Act of 2002 (§ 56-575.1 et seq.) where (i) if such information was made public prior to or after the execution of an interim or a comprehensive agreement, § 33.2-1820 or 56-575.17 notwithstanding, the financial interest or bargaining position of the public entity would be adversely affected and (ii) the basis for the determination required in clause (i) is documented in writing by the responsible public entity.  Va. Code Ann. § 2.2-3705.6.11.a.  This subdivision may not be construed to withhold information concerning (a) procurement records as required by § 33.2-1820 or 56-575.17; (b) information concerning the terms and conditions of any interim or comprehensive agreement, service contract, lease, partnership, or any agreement of any kind entered into by the responsible public entity and the private entity; (c) information concerning the terms and conditions of any financing arrangement that involves the use of any public funds; or (d) information concerning the performance of any private entity developing or operating a qualifying transportation facility or a qualifying project. Va. Code Ann. § 2.2-3705.6.11.b.

    xxx. Confidential Business Information in PPEA and PPTA Proposals: Information provided by a private entity to a responsible public entity, affected jurisdiction, or affected local jurisdiction pursuant to the provisions of the Public-Private Transportation Act of 1995 (§ 33.2-1800 et seq.) or the Public-Private Education Facilities and Infrastructure Act of 2002 (§ 56-575.1 et seq.) if disclosure of such information would reveal (i) trade secrets of the private entity as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.); (ii) financial information of the private entity, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise; or (iii) other information submitted by the private entity where if such information was made public prior to the execution of an interim agreement or a comprehensive agreement, the financial interest or bargaining position of the public or private entity would be adversely affected.  This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission.  Va. Code Ann. § 2.2-3705.6.11.b.

    yyy. Confidential Business Information Submitted to Virginia Resources Authority: Confidential proprietary information or trade secrets, not publicly available, provided by a private person or entity pursuant to a promise of confidentiality to the Virginia Resources Authority or to a fund administered in connection with financial assistance rendered or to be rendered by the Virginia Resources Authority where, if such information were made public, the financial interest of the private person or entity would be adversely affected.  Va. Code Ann. § 2.2-3705.6.12.

    zzz. Confidential Business Information of Prospective Municipal Franchisees: Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), or confidential proprietary information that is not generally available to the public through regulatory disclosure or otherwise, provided by a (i) bidder or applicant for a franchise or (ii) franchisee under Chapter 21 (§ 15.2-2100 et seq.) of Title 15.2 to the applicable franchising authority pursuant to a promise of confidentiality from the franchising authority, to the extent the information relates to the bidder's, applicant's, or franchisee's financial capacity or provision of new services, adoption of new technologies or implementation of improvements, where such new services, technologies, or improvements have not been implemented by the franchisee on a nonexperimental scale in the franchise area, and where, if such information were made public, the competitive advantage or financial interests of the franchisee would be adversely affected.  This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission.  Va. Code Ann. § 2.2-3705.6.13.

    aaaa. Confidential Business Information Submitted by Charitable Gaming Operators: Information of a proprietary or confidential nature furnished by a supplier or manufacturer of charitable gaming supplies to the Department of Agriculture and Consumer Services (i) pursuant to subsection E of § 18.2-340.34 and (ii) pursuant to regulations promulgated by the Charitable Gaming Board related to approval of electronic and mechanical equipment.  Va. Code Ann. § 2.2-3705.6.14.

    bbbb. Apple Producer Data Submitted to Tax Commissioner: Information related to Virginia apple producer sales provided to the Virginia State Apple Board pursuant to § 3.2-1215.  Va. Code Ann. § 2.2-3705.6.15.

    cccc. Carrier Trade Secrets Submitted in Connection with E-911 Cost Recovery: Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.) of Title 59.1, submitted by CMRS providers as defined in § 56-484.12 to the former Wireless Carrier E-911 Cost Recovery Subcommittee created pursuant to former § 56-484.15, relating to the provision of wireless E-911 service.  Va. Code Ann. § 2.2-3705.6.16.

    dddd. Confidential Business Information in Grant Applications on Innovation and Health Research: Information relating to a grant or loan application, or accompanying a grant or loan application, to the Innovation and Entrepreneurship Investment Authority pursuant to Article 3 (§ 2.2-2233.1 et seq.) of Chapter 22 of Title 2.2 or to the Commonwealth Health Research Board pursuant to Chapter 5.3 (§ 32.1-162.23 et seq.) of Title 32.1 if disclosure of such information would (i) reveal proprietary business or research-related information produced or collected by the applicant in the conduct of or as a result of study or research on medical, rehabilitative, scientific, technical, technological, or scholarly issues, when such information has not been publicly released, published, copyrighted, or patented, and (ii) be harmful to the competitive position of the applicant.  Va. Code Ann. § 2.2-3705.6.17.

    eeee. Local Public Body Telecommunications Trade Secrets: Confidential proprietary information and trade secrets developed and held by a local public body (i) providing telecommunication services pursuant to § 56-265.4:4 and (ii) providing cable television services pursuant to Article 1.1 (§ 15.2-2108.2 et seq.) of Chapter 21 of Title 15.2 if disclosure of such information would be harmful to the competitive position of the locality.  This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission.  This subdivision does not apply to any authority created pursuant to the BVU Authority Act (§ 15.2-7200 et seq.).  Va. Code Ann. § 2.2-3705.6.18.

    ffff. Local Authority Telecommunications Trade Secrets: Confidential proprietary information and trade secrets developed by or for a local authority created in accordance with the Virginia Wireless Service Authorities Act (§ 15.2-5431.1 et seq.) to provide qualifying communications services as authorized by Article 5.1 (§ 56-484.7:1 et seq.) of Chapter 15 of Title 56, where disclosure of such information would be harmful to the competitive position of the authority, except that information required to be maintained in accordance with § 15.2-2160 shall be released.  Va. Code Ann. § 2.2-3705.6.19.

    gggg. Confidential Business Information Submitted to Department of Small Business and Supplier Diversity: Trade secrets as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.) or financial information of a business, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise, provided to the Department of Small Business and Supplier Diversity as part of an application for certification as a small, women-owned, or minority-owned business in accordance with Title 2.2, Chapter 16.1 (§ 2.2-1603 et seq.).  This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission.  Va. Code Ann. § 2.2-3705.6.20.

    hhhh. Information Submitted to All-Payor Health Care Claims Database: Information of a proprietary or confidential nature disclosed by a carrier to the State Health Commissioner pursuant to §32.1-276.7:1.  Va. Code Ann. § 2.2-3705.6.21.

    iiii. Confidential Business Information Provided to State Inspector General: Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), including, but not limited to, financial information, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise, and revenue and cost projections supplied by a private or nongovernmental entity to the State Inspector General for the purpose of an audit, special investigation, or any study requested by the Office of the State Inspector General in accordance with law.  This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission.  Va. Code Ann. § 2.2-3705.6.22.

    jjjj. Confidential Business Information Submitted to Tobacco Region Revitalization Commission: Information relating to a grant application, or accompanying a grant application, submitted to the Tobacco Region Revitalization Commission that would (i) reveal (a) trade secrets as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), (b) financial information of a grant applicant that is not a public body, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise, or (c) research-related information produced or collected by the applicant in the conduct of or as a result of study or research on medical, rehabilitative, scientific, technical, technological, or scholarly issues, when such information has not been publicly released, published, copyrighted, or patented, and (ii) be harmful to the competitive position of the applicant; and memoranda, staff evaluations, or other information prepared by the Commission or its staff exclusively for the evaluation of grant applications. This exclusion applies to grants that are consistent with the powers of and in furtherance of the performance of the duties of the Commission pursuant to § 3.2-3103.  This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission.  Va. Code Ann. § 2.2-3705.6.23.

    kkkk. Commercial Space Flight Authority Rate Information: Information held by the Commercial Space Flight Authority relating to rate structures or charges for the use of projects of, the sale of products of, or services rendered by the Authority if disclosure of such information would adversely affect the financial interest or bargaining position of the Authority or a private entity providing the information to the Authority. Va. Code Ann. § 2.2-3705.6.24.a.

    llll. Confidential Business Information Submitted to Commercial Space Flight Authority: Information provided by a private entity to the Commercial Space Flight Authority if disclosure of such information would (i) reveal (a) trade secrets of the private entity as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.); (b) financial information of the private entity, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise; or (c) other information submitted by the private entity and (ii) adversely affect the financial interest or bargaining position of the Authority or private entity.  This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission.  Va. Code Ann. § 2.2-3705.6.24.b.

    mmmm. Confidential Business Information of Agricultural Landowners: Information of a proprietary nature furnished by an agricultural landowner or operator to the Department of Conservation and Recreation, the Department of Environmental Quality, the Department of Agriculture and Consumer Services, or any political subdivision, agency, or board of the Commonwealth pursuant to §§ 10.1-104.7, 10.1-104.8, and 10.1-104.9, other than when required as part of a state or federal regulatory enforcement action.  Va. Code Ann. § 2.2-3705.6.25.

    nnnn. Trade Secrets in Information Submitted to DEQ Under Waste Management Act: Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), provided to the Department of Environmental Quality pursuant to the provisions of § 10.1-1458. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission.  Va. Code Ann. § 2.2-3705.6.26.

    oooo.  Public-use Airport Information:  Information of a proprietary nature furnished by a licensed public-use airport to the Department of Aviation for funding from programs administered by the Department of Aviation or the Virginia Aviation Board, where if such information was made public, the financial interest of the public-use airport would be adversely affected.  This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission.  Va. Code Ann. § 2.2-3705.6.27.

    pppp. Confidential Business Information Submitted to Virginia Research Investment Committee:  Information relating to a grant or loan application, or accompanying a grant or loan application, submitted to the Virginia Research Investment Committee established pursuant to Article 8 (§ 23.1-3130 et seq.) of Chapter 31 of Title 23.1, to the extent that such records would (i) reveal (a) trade secrets as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.); (b) financial information of a party to a grant or loan application that is not a public body, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise; or (c) research-related information produced or collected by a party to the application in the conduct of or as a result of study or research on medical, rehabilitative, scientific, technical, technological, or scholarly issues, when such information has not been publicly released, published, copyrighted, or patented, and (ii) be harmful to the competitive position of a party to a grant or loan application; and memoranda, staff evaluations, or other information prepared by the Committee or its staff, or a reviewing entity pursuant to subsection D of § 23.1-3133, exclusively for the evaluation of grant or loan applications, including any scoring or prioritization documents prepared for and forwarded to the Committee pursuant to subsection D of § 23.1-3133.  This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission.  Va. Code Ann. § 2.2-3705.6.28.

    qqqq. Confidential Business Information Provided in Connection with Solar Services Agreement: Proprietary information, voluntarily provided by a private business pursuant to a promise of confidentiality from a public body, used by the public body for a solar services agreement, where disclosure of such information would (i) reveal (a) trade secrets of the private business as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.); (b) financial information of the private business, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise; or (c) other information submitted by the private business and (ii) adversely affect the financial interest or bargaining position of the public body or private business.  This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission.  Va. Code Ann. § 2.2-3705.6.29.

    rrrr. Engineering and construction drawings: Information contained in engineering and construction drawings and plans submitted for the sole purpose of complying with the Building Code in obtaining a building permit if disclosure of such information would identify specific trade secrets or other information that would be harmful to the competitive position of the owner or lessee. However, such information shall be exempt only until the building is completed. Information relating to the safety or environmental soundness of any building shall not be exempt from disclosure.  Va. Code Ann. § 2.2-3705.6.30.

    ssss. Trade Secrets Submitted to Department of Transportation: Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), including, but not limited to, financial information, including balance sheets and financial statements that are not generally available to the public through regulatory disclosure or otherwise, and revenue and cost projections supplied by a private or nongovernmental entity to the Virginia Department of Transportation for the purpose of an audit, special investigation, or any study requested by the Virginia Department of Transportation in accordance with law.  This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission.  Va. Code Ann. § 2.2-3705.6.31.

    tttt. Records Exempt from Disclosure Under Tax Statute: State income, business, and estate tax returns, personal property tax returns, and confidential records held pursuant to § 58.1-3.  Va. Code Ann. § 2.2-3705.7.1

    uuuu. Public Official Working Papers and Correspondence: Working papers and correspondence of the Office of the Governor, the Lieutenant Governor, or the Attorney General; the members of the General Assembly, the Division of Legislative Services, or the Clerks of the House of Delegates or the Senate of Virginia; the mayor or chief executive officer of any political subdivision of the Commonwealth; or the president or other chief executive officer of any public institution of higher education in the Commonwealth. No record otherwise open to inspection under the Act is excluded by virtue of the fact that it has been attached to or incorporated within any working paper or correspondence. Further, information publicly available or not otherwise subject to an exclusion under this chapter or other provision of law that has been aggregated, combined, or changed in format without substantive analysis or revision shall not be deemed working papers. This subdivision does not authorize the withholding of any resumes or applications submitted by persons who are appointed by the Governor pursuant to § 2.2-106 or 2.2-107.  Va. Code Ann. § 2.2-3705.7.2.  This subdivision has definitions that should be consulted, including that of “working papers.”

    See Richmond Newspapers Inc. v. Casteen, 42 Va. Cir. 505 (Richmond Cir. Ct. 1997) (determining correspondence between the president of a university and an independent auditing entity is exempt from disclosure under the Act). This executive privilege does not extend to state government officials. Griffin v. Virginia Department of Transportation, 46 Va. Cir. 399 (Richmond Cir. Ct. 1998).

    vvvv. Library Patron Identifiers: Information contained in library records that can be used to identify (i) both (a) any library patron who has borrowed material from a library and (b) the material such patron borrowed or (ii) any library patron under 18 years of age. For the purposes of clause (ii), access shall not be denied to the parent, including a noncustodial parent, or guardian of such library patron.  Va. Code Ann. § 2.2-3705.7.3.

    wwww. DOT Contract Award and Bid Monitoring Information: Contract cost estimates prepared for the confidential use of the Department of Transportation in awarding contracts for construction or the purchase of goods or services, and records and automated systems prepared for the Department's Bid Analysis and Monitoring Program.  Va. Code Ann. § 2.2-3705.7.4.

    xxxx. Political Subdivision Bondholder Lists:  Lists of registered owners of bonds issued by a political subdivision of the Commonwealth, whether the lists are maintained by the political subdivision itself or by a single fiduciary designated by the political subdivision.  Va. Code Ann. § 2.2-3705.7.5.

    yyyy. Legislator Disclosure Statements and Conduct:  Information furnished by a member of the General Assembly to a meeting of a standing committee, special committee, or subcommittee of his house established solely for the purpose of reviewing members' annual disclosure statements and supporting materials filed under § 30-110 or of formulating advisory opinions to members on standards of conduct, or both.  Va. Code Ann. § 2.2-3705.7.6.

    zzzz. Public Utility Customer Identifiers: Customer account information of a public utility affiliated with a political subdivision of the Commonwealth, including the customer's name and service address, but excluding the amount of utility service provided and the amount of money charged or paid for such utility service.  Va. Code Ann. § 2.2-3705.7.7.

    aaaaa. Housing Assistance Recipient Personal Information:  Personal information, as defined in § 2.2-3801, (i) filed with the Virginia Housing Development Authority concerning individuals who have applied for or received loans or other housing assistance or who have applied for occupancy of or have occupied housing financed, owned or otherwise assisted by the Virginia Housing Development Authority; (ii) concerning persons participating in or persons on the waiting list for federally funded rent-assistance programs; (iii) filed with any local redevelopment and housing authority created pursuant to § 36-4 concerning persons participating in or persons on the waiting list for housing assistance programs funded by local governments or by any such authority; or (iv) filed with any local redevelopment and housing authority created pursuant to § 36-4 or any other local government agency concerning persons who have applied for occupancy or who have occupied affordable dwelling units established pursuant to § 15.2-2304 or 15.2-2305.  Access to one's own information is mandated.  Va. Code Ann. § 2.2-3705.7.8.

    bbbbb. Hazardous Waste Facility Siting: Information regarding the siting of hazardous waste facilities, except as provided in § 10.1-1441, if disclosure of such information would have a detrimental effect upon the negotiating position of a governing body or on the establishment of the terms, conditions, and provisions of the siting agreement.  Va. Code Ann. § 2.2-3705.7.9.

    ccccc. Protected Lands and Endangered Species:  Information on the site-specific location of rare, threatened, endangered, or otherwise imperiled plant and animal species, natural communities, caves, and significant historic and archaeological sites if, in the opinion of the public body that has the responsibility for such information, disclosure of the information would jeopardize the continued existence or the integrity of the resource. This subdivision does not apply to requests from the owner of the land upon which the resource is located.  Va. Code Ann. § 2.2-3705.7.10.

    ddddd. Lottery Game Information:  Memoranda, graphics, video or audio tapes, production models, data, and information of a proprietary nature produced by or for or collected by or for the Virginia Lottery relating to matters of a specific lottery game design, development, production, operation, ticket price, prize structure, manner of selecting the winning ticket, manner of payment of prizes to holders of winning tickets, frequency of drawings or selections of winning tickets, odds of winning, advertising, or marketing, where such information not been publicly released, published, copyrighted, or patented. Whether released, published, or copyrighted, all game-related information shall be subject to public disclosure under the Act upon the first day of sales for the specific lottery game to which it pertains.  Va. Code Ann. § 2.2-3705.7.11.

    eeeee. Government-Held Investment Information:  Information held by the Virginia Retirement System, acting pursuant to § 51.1-124.30, or a local retirement system, acting pursuant to § 51.1-803, or by a local finance board or board of trustees of a trust established by one or more local public bodies to invest funds for post-retirement benefits other than pensions, acting pursuant to Article 8 (§ 15.2-1544 et seq.) of Chapter 15 of Title 15.2, or by the board of visitors of the University of Virginia, acting pursuant to § 23.1-2210, or by the board of visitors of the College of William and Mary, acting pursuant to § 23.1-2803 or by the Virginia College Savings Plan, acting pursuant to § 23.1-704, relating to the acquisition, holding, or disposition of a security or other ownership interest in an entity, where such security or ownership interest is not traded on a governmentally regulated securities exchange, if disclosure of such information would (i) reveal confidential analyses prepared for the board of visitors of the University of Virginia, the board of visitors of the College of William and Mary prepared by the retirement system, a local finance board or board of trustees, or the Virginia College Savings Plan, or provided to the retirement system, a local finance board or board of trustees, or the Virginia College Savings Plan under a promise of confidentiality of the future value of such ownership interest or the future financial performance of the entity and (ii) have an adverse effect on the value of the investment to be acquired, held, or disposed of by the retirement system, a local finance board or board of trustees, the board of visitors of the University of Virginia, the board of visitors of the College of William and Mary, or the Virginia College Savings Plan. This subdivision does not prevent the disclosure of information relating to the identity of any investment held, the amount invested, or the present value of such investment.  Va. Code Ann. § 2.2-3705.7.12.

    fffff. Assistive Technology Loan Fund Applicant and Recipient Information:  Financial, medical, rehabilitative, and other personal information concerning applicants for or recipients of loan funds submitted to or maintained by the Assistive Technology Loan Fund Authority under Chapter 11 (§ 51.5-53 et seq.) of Title 51.5.  Va. Code Ann. § 2.2-3705.7.13.

    ggggg. VCU Health System Authority Omnibus Exclusion: Information held by the Virginia Commonwealth University Health System Authority pertaining to any of the following: an individual's qualifications for or continued membership on its medical or teaching staffs; proprietary information gathered by or in the possession of the Authority from third parties pursuant to a promise of confidentiality; contract cost estimates prepared for confidential use in awarding contracts for construction or the purchase of goods or services; information of a proprietary nature produced or collected by or for the Authority or members of its medical or teaching staffs; financial statements not publicly available that may be filed with the Authority from third parties; the identity, accounts, or account status of any customer of the Authority; consulting or other reports paid for by the Authority to assist the Authority in connection with its strategic planning and goals; the determination of marketing and operational strategies where disclosure of such strategies would be harmful to the competitive position of the Authority; and information of a proprietary nature produced or collected by or for employees of the Authority, other than the Authority's financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical, or scholarly issues, whether sponsored by the Authority alone or in conjunction with a governmental body or a private concern, when such information has not been publicly released, published, copyrighted, or patented. This exclusion shall also apply when such information is in the possession of Virginia Commonwealth University.  Va. Code Ann. § 2.2-3705.7.14.

    hhhhh. Environmental Enforcement Information:  Information held by the Department of Environmental Quality, the State Water Control Board, the State Air Pollution Control Board, or the Virginia Waste Management Board relating to (i) active federal environmental enforcement actions that are considered confidential under federal law and (ii) enforcement strategies, including proposed sanctions for enforcement actions. Upon request, such information shall be disclosed after a proposed sanction resulting from the investigation has been proposed to the director of the agency. This subdivision does not prevent the disclosure of information related to inspection reports, notices of violation, and documents detailing the nature of any environmental contamination that may have occurred or similar documents.  Va. Code Ann. § 2.2-3705.7.15.

    iiiii. Data Collected by Toll Road Operators:  Information related to the operation of toll facilities that identifies an individual, vehicle, or travel itinerary, including vehicle identification data or vehicle enforcement system information; video or photographic images; Social Security or other identification numbers appearing on driver's licenses; credit card or bank account data; home addresses; phone numbers; or records of the date or time of toll facility use.  Va. Code Ann. § 2.2-3705.7.16.

    jjjjj. Personal Information Held by Virginia Lottery:  Information held by the Virginia Lottery pertaining to (i) the social security number, tax identification number, state sales tax number, home address and telephone number, personal and lottery banking account and transit numbers of a retailer, and financial information regarding the nonlottery operations of specific retail locations and (ii) individual lottery winners, except that a winner's name, hometown, and amount won shall be disclosed.  Va. Code Ann. § 2.2-3705.7.17.

    kkkkk. Drug Test Information of Branch Pilots:  Information held by the Board for Branch Pilots relating to the chemical or drug testing of a person regulated by the Board, where such person has tested negative or has not been the subject of a disciplinary action by the Board for a positive test result.  Va. Code Ann. § 2.2-3705.7.18.

    lllll. Unclaimed Property Holder Audit Information:  Information pertaining to the planning, scheduling, and performance of examinations of holder records pursuant to the Uniform Disposition of Unclaimed Property Act (§ 55-210.1 et seq.) prepared by or for the State Treasurer or his agents or employees or persons employed to perform an audit or examination of holder records.  Va. Code Ann. § 2.2-3705.7.19.

    mmmmm. Personal Information of Citizen Emergency Response Teams:  Information held by the Virginia Department of Emergency Management or a local governing body relating to citizen emergency response teams established pursuant to an ordinance of a local governing body that reveal the name, address, including e-mail address, telephone or pager numbers, or operating schedule of an individual participant in the program.  Va. Code Ann. § 2.2-3705.7.20.

    nnnnn.  Personal Information of Juveniles Held by Park and Recreation Entities:  Information held by state or local park and recreation departments and local and regional park authorities concerning identifiable individuals under the age of 18 years. However, nothing in this subdivision shall operate to prevent the disclosure of information defined as directory information under regulations implementing the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, unless the public body has undertaken the parental notification and opt-out requirements provided by such regulations. Access shall not be denied to the parent, including a noncustodial parent, or guardian of such person, unless the parent's parental rights have been terminated or a court of competent jurisdiction has restricted or denied such access. For such information of persons who are emancipated, the right of access may be asserted by the subject thereof. Any parent or emancipated person who is the subject of the information may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, the public body shall open such information for inspection and copying.  Va. Code Ann. § 2.2-3705.7.21.

    ooooo.  Statewide Alert Network Participant Information:  Information submitted for inclusion in the Statewide Alert Network administered by the Department of Emergency Management that reveal names, physical addresses, email addresses, computer or internet protocol information, telephone numbers, pager numbers, other wireless or portable communications device information, or operating schedules of individuals or agencies, where the release of such information would compromise the security of the Statewide Alert Network or individuals participating in the Statewide Alert Network.  Va. Code Ann. § 2.2-3705.7.22.

    ppppp. Judicial Discipline Information: Information held by the Judicial Inquiry and Review Commission made confidential by § 17.1-913.  Va. Code Ann. § 2.2-3705.7.23.

    qqqqq. Virginia and Local Retirement Systems and Virginia College Savings Plan Investments:  Information held by the Virginia Retirement System acting pursuant to § 51.1-124.30, a local retirement system acting pursuant to § 51.1-803 (hereinafter collectively referred to as the retirement system), or the Virginia College Savings Plan, acting pursuant to § 23.1-704 relating to internal deliberations of or decisions by the retirement system or the Virginia College Savings Plan on the pursuit of particular investment strategies, or the selection or termination of investment managers, prior to the execution of such investment strategies or the selection or termination of such managers, if disclosure of such information would have an adverse impact on the financial interest of the retirement system or the Virginia College Savings Plan.  Va. Code Ann. § 2.2-3705.7.24.a.

    rrrrr. Trade Secrets Submitted to Virginia or Local Retirement System or Virginia College Savings Plan:  Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), provided by a private entity to the Virginia Retirement system, a local retirement system, or the Virginia College Savings Plan if disclosure of such records would have an adverse impact on the financial interest of the retirement system or the Virginia College Savings Plan.  Va. Code Ann. § 2.2-3705.7.24.b.  This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission.  This subdivision does not prevent the disclosure of the identity or amount of any investment held or the present value and performance of all asset classes and subclasses.

    sssss. Identification of Department of Corrections Executioners:  Information held by the Department of Corrections made confidential by § 53.1-233, specifically the identities of persons designated by the Director to conduct an execution, and any information reasonably calculated to lead to the identities of such persons, including, but not limited to, their names, residential or office addresses, residential or office telephone numbers, and social security numbers.  Va. Code Ann. § 2.2-3705.7.25.

    ttttt. Local Government Investment Pool: Information maintained by the Department of the Treasury or participants in the Local Government Investment Pool (§ 2.2-4600 et seq.) and required to be provided by such participants to the Department to establish accounts in accordance with § 2.2-4602.   Va. Code Ann. § 2.2-3705.7.26.

    uuuuu. Veteran Trust Fund Personal Information: Personal information, as defined in § 2.2-3801, contained in the Veterans Care Center Resident Trust Funds concerning residents or patients of the Department of Veterans Services Care Centers, except that access shall not be denied to the person who is the subject of the information.  Va. Code Ann. § 2.2-3705.7.27.

    vvvvv. Veterans Services Foundation Donor Information:  Information maintained in connection with fundraising activities by the Veterans Services Foundation pursuant to § 2.2-2716 that reveal the address, electronic mail address, facsimile or telephone number, social security number or other identification number appearing on a driver's license, or credit card or bank account data of identifiable donors, except that access shall not be denied to the person who is the subject of the information.  This subdivision does prevent the disclosure of information relating to the amount, date, purpose, and terms of the pledge or donation or the identity of the donor, unless the donor has requested anonymity in connection with or as a condition of making a pledge or donation. This subdivision does not apply to protect from disclosure (i) the identities of sponsors providing grants to or contracting with the foundation for the performance of services or other work or (ii) the terms and conditions of such grants or contracts.  Va. Code Ann. § 2.2-3705.7.28.

    wwwww. Prosecutor Training Materials:  Information prepared for and utilized by the Commonwealth's Attorneys' Services Council in the training of state prosecutors or law-enforcement personnel, where such information is not otherwise available to the public and the disclosure of such information would reveal confidential strategies, methods, or procedures to be employed in law-enforcement activities or materials created for the investigation and prosecution of a criminal case.  Va. Code Ann. § 2.2-3705.7.29.

    xxxxx. Excludable Information Provided to Department of Aviation by Public Bodies: Information provided to the Department of Aviation by other entities of the Commonwealth in connection with the operation of aircraft where the information would not be subject to disclosure by the entity providing the information. The entity providing the information to the Department of Aviation shall identify the specific information to be protected and the applicable provision of this chapter that excludes the information from mandatory disclosure.  Va. Code Ann. § 2.2-3705.7.30.

    yyyyy. Judicial Performance Evaluation Program Information on Individual Judges:  Information created or maintained by or on the behalf of the judicial performance evaluation program related to an evaluation of any individual justice or judge made confidential by § 17.1-100.  Va. Code Ann. § 2.2-3705.7.31.

    zzzzz. Sexual Assault Team Individual Case Information:  Information reflecting the substance of meetings in which (i) individual sexual assault cases are discussed by any sexual assault team established pursuant to § 15.2-1627.4 or (ii) individual child abuse or neglect cases or sex offenses involving a child are discussed by multidisciplinary child abuse teams established pursuant to § 15.2-1627.5. The findings of any such team may be disclosed or published in statistical or other aggregated form that does not disclose the identity of specific individuals.  Va. Code Ann. § 2.2-3705.7.32.

    aaaaaa. Economic Development Planning and Strategy:  Information contained in the strategic plan, marketing plan, or operational plan prepared by the Virginia Economic Development Partnership Authority pursuant to § 2.2-2237.1 regarding target companies, specific allocation of resources and staff for marketing activities, and specific marketing activities that would reveal to the Commonwealth's competitors for economic development projects the strategies intended to be deployed by the Commonwealth, thereby adversely affecting the financial interest of the Commonwealth. The executive summaries of the strategic plan, marketing plan, and operational plan shall not be redacted or withheld pursuant to this subdivision.  Va. Code Ann. § 2.2-3705.7.33.

    bbbbbb. Criminal Records: Criminal records are addressed comprehensively in Va. Code Ann.§2.2-3706.  Generally, Virginia takes a broad view of what may be withheld and has no limits on when an investigation ends.  It does provide for release of basic incident information, arrestee photographs and arrest information, discussed in Part III.P. of this outline.

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  • Washington

    a. Clients of the State. This exemption permits nondisclosure of personal information “in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, or welfare recipients.” RCW 42.56.230(1). The exemption is limited to information maintained in the collection of individual client files that the agency necessarily maintains for the client. Lindeman v. Kelso School District, 162 Wn.2d 196, 172 P.3d 329 (2007).

    The names and addresses of property owners who contract with the city for federal HUD loans are not “clients” of the city, nor are their names and addresses “personal information” under the exemption. Walla Walla Union-Bulletin v. Walla Walla City Council, 7 Med. L. Rptr. 1858 (Walla Walla Cty. July 14, 1981). A patient of a public hospital cannot be denied access to his or her own medical records. Oliver v. Harborview Medical Ctr., 94 Wn.2d 559, 618 P.2d 76 (1980).

    Personal information of children and family members enrolled in certain childcare and recreational services is exempt from disclosure. RCW 42.56.230(2).

    b. Employees. The statute permits nondisclosure of personal information about public officials and employees “to the extent that disclosure would violate their right to privacy.” RCW 42.56.230(3). The “right to privacy” refers to matters that would be highly offensive to a reasonable person if disclosed and are not of public concern. RCW Ch. 42.56.050; Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978). Agencies must prove both prongs of the test and cannot balance the public interest against the privacy interest. See Tacoma Public Library v. Woessner, 90 Wn. App. 357, 951 P.2d 357 (1998). Disclosure of the mere fact that a public employer is investigating a public employee, or that the employee is on administrative leave, does not violate the employee’s right to privacy. Predisik v. Spokane School Dist. No. 81,182 Wash.2d 896, 346 P.3d 737 (2015). Release of records related to teacher certification revocations, particularly as they pertain to teachers’ sexual misconduct with students, does not violate the teachers’ right to privacy. Brouillet v. Cowles Publishing Co., 114 Wn.2d 788, 791 P.2d 526 (1990). However, disclosure of the identity of a teacher accused of sexual misconduct violates the teacher’s right to privacy under the statute if the allegation is not substantiated. Bellevue John Does 1-11 v. Bellevue School Dist. #405, 164 Wn.2d 199, 189 P.3d 139 (2008).

    The exemption does not cover police officer complaints about their police chief’s job performance. Columbian Publishing Co. v. City of Vancouver, 36 Wn. App. 25, 671 P.2d 280 (1983). A discharged school employee can obtain performance evaluations of other employees; however, the names of coworkers will be deleted unless there is a specific showing that the right to privacy should not apply. Ollie v. Highland School Dist., 50 Wn. App. 639, 749 P.2d 757, review denied, 110 Wn.2d 1040 (1988). Disclosure of performance evaluations, which do not discuss any specific instances of misconduct or the performance of public duties, is presumptively highly offensive to a reasonable person and not of legitimate public concern, and thus violative of the employee’s privacy rights and exempt. Dawson v. Daly, 120 Wn.2d 782, 797, 845 P.2d 995 (1993). Beltran v. DSHS, 98 Wn. App.245, 989 P.2d 604. However, evaluations of high level employees, such as city manager, have more significant public interest and are not exempt under Dawson. See Spokane Research v. City of Spokane, 99 Wn. App. 452, 994 P.2d 267 (2000).

    The legitimacy of public concern is determined by balancing the public’s interest in disclosure against the public’s interest in the efficient administration of government. Id. Thus, the public has a legitimate concern in seeing a settlement agreement between a city and one of its top employees because “[t]he fact a public body may not be able to keep the specific terms of a settlement agreement confidential does not have such a chilling effect on future settlements so as to affect the efficient administration of government.” Yakima Newspapers Inc. v. City of Yakima, 77 Wn. App. 319, 328, 890 P.2d 544 (1995).

    The state Attorney General has stated that public employee salary information is generally not personal information subject to nondisclosure, although individual employee deductions may be protected by a right to privacy. 1973 Op. Atty. Gen. No. 4. Employee identification numbers are exempt, but names must be released. See Tacoma Public Library v. Woessner, 90 Wn. App. 357, 951 P.2d 357 (1998). Information provided by job applicants for a city plumber’s job, however, including reasons for leaving the previous job, criminal convictions and handicaps, may be withheld. Washington State Human Rights Comm’n v. City of Seattle, 25 Wn. App. 364, 607 P.2d 332 (1980). In 1987, the legislature exempted all applications for public employment, including resumes and names included in those applications. RCW 42.56.250(2). The courts also have held that applications are exempt under RCW 42.56.210(1)(b). Beltran v. DSHS, 98 Wn. App. 245, 989 P.2d 604 (1999).

    In addition, residential addresses, telephone numbers, personal email addresses and other specific personal information of public employees or volunteers may be withheld from public disclosure. RCW 42.56.250(4). This exemption applies only to records held in personnel files and public employment records. Thus, a public official’s personal email address is not exempt if it appears in other types of public records. Mechling v. Monroe, 152 Wn. App. 830, 222 P.3d 808 (2009).

    An appellate court has held that public employees’ state constitutional right of privacy is violated by disclosure of public records containing their dates of birth in connection with their full name. The supreme court is reviewing the decision. Washington Public Employees Association v. Washington State Center for Childhood Deafness & Hearing Loss, 404 P.3d 111 (2017), review granted, 190 Wn.2d 1002 , 413 P.3d 15 (2018).

    Public employees who seek advice under an agency process concerning unfair labor practices, or use internal, informal anti-discrimination procedures, have the right to remain anonymous. RCW 42.56.250(5), (6).

    Also exempt are criminal history records checks for certain board staff finalist candidates. RCW 42.56.250(7).

    Photographs and birthdates of criminal justice agency employees are exempt from disclosure. This exemption does not apply to the news media. RCW 42.56.250(9).

    GPS data that would indicate the location of a public employee’s or volunteer’s residence is exempt from disclosure.  RCW 42.56.250(10).

    Even if a court orders release of documents, an employee or other person may sue the agency for common law invasion of privacy. See Corbally v. Kennewick Sch. Dist., 94 Wn. App. 736, 973 P.2d 1074 (1999); but see Corey v. Pierce County, 154 Wn. App. 752, 225 P.3d 367 (2010) (dismissed employee’s claim for “negligent dissemination of harmful information” barred as matter of law). The mere fact that records may not be disclosable under a PRA privacy-based exemption does not in itself give rise to an invasion of privacy action against media entities that report the information contained in the record. See Cawley-Herrmann v. Meredith Corp., 654 F.Supp.2d 1264 (W.D. Wash. 2009).

    c. Taxpayer, Financial and Personal License Information. Tax returns, and information that would result in unfair competitive disadvantage to the taxpayer or violate the taxpayer’s right to privacy, are generally exempt. RCW 42.56.230(4). The “right to privacy” refers to matters that would be highly offensive to a reasonable person if disclosed and are not of public concern. RCW 42.56.050; Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978). Credit/debit card numbers and other financial account numbers are also exempt. RCW 42.56.230(4), (5). Personal information contained in documents used to apply for a driver’s license or identicard is exempt under RCW 42.56.230(6).

    d. Investigative Records. This exemption applies to specific investigative records, the nondisclosure of which is essential to law enforcement or to protect a person’s right to privacy. RCW 42.56.240(1). It covers only ongoing investigations, Ashley v. Public Disclosure Comm’n, 16 Wn. App. 830, 560 P.2d 1156, review denied, 89 Wn.2d 1010 (1977), and once the investigation is complete, the records are open. Hearst, 90 Wn.2d 123. Reports generated as part of routine administrative procedure, not as the result of a specific complaint or allegation of misconduct, are not “investigative reports.” Cowles Publishing Co. v. City of Spokane, 69 Wn. App. 678, 683, 849 P.2d 1271 (police reports regarding contact by any K-9 dog with citizen, generated as matter of course, are not investigative records), review denied, 122 Wn.2d 1013, 863 P.2d 73 (1993); Wade’s Eastside Gun Shop, Inc. v. Department of Labor and Industries, 185 Wn.2d 270, 372 P.3d 97 (2016) (workplace safety investigation does not implicate this exemption).. Reports which could trigger an investigation and imposition of sanctions if warranted, but which are not themselves used for “law enforcement,” are not exempt. Id. at 684.

    Investigative records related to pending criminal matters are presumptively subject to disclosure once a suspect has been arrested and referred to the prosecutor for a charging decision.  Seattle Times Co. v. Serko, 170 Wn.2d 581, 243 P.3d 919 (2010); Cowles Pub’g Co. v. Spokane Police Dep’t, 139 Wn.2d 472, 987 P.2d 620 (1999). The state supreme court at one point created a categorical exemption for “open and active” police investigation files in which disclosure would jeopardize the ability to solve the case. Newman v. King County, 133 Wn.2d 565, 947 P.2d 712 (1997). The court later clarified that such a categorical exemption only exists for “information contained in an open, active police investigation file.” Limstrom v. Ladenburg, 136 Wn.2d 595, 963 P.2d 869 (1998) (refusing to extend a categorical exemption to work product materials under 42.56.290. In Cowles and again in Serko, the court further clarified that the concept of categorical exemption did not apply once the case was referred to the prosecutor’s office, even if the files remained technically open. See also Sargent v. Seattle Police Dept., 179 Wn.2d 376, 314 P.3d 1093 (2013).

    The “right to privacy” refers to matters that would be highly offensive to a reasonable person if disclosed and are not of public concern. RCW 42.56.050, eff. 7/1/06); Hearst, 90 Wn.2d 123. In a torturous opinion, a Washington court has held that whether statements in public records are “true” bears on whether the records are of legitimate concern to the public. City of Tacoma v. Tacoma News Inc., 65 Wn. App. 140, 827 P.2d 1094, review denied, 119 Wn.2d 1020, 838 P.2d 692 (1992) (police records of investigation based on unsubstantiated allegation of child abuse against political candidate not of legitimate public concern). But see Hudgens v. City of Renton, 49 Wn. App. 842, 746 P.2d 320 (1987) (arrest report, citation, and patrol report must be disclosed despite acquittal), review denied, 110 Wn.2d 1014 (1988). In Bellevue John Does 1-11 v. Bellevue School Dist. #405, 164 Wn.2d 199, 189 P.3d 139 (2008), the Washington Supreme Court held that the identities of teachers accused of sexual misconduct are not subject to disclosure in cases where the allegations were not substantiated.

    Police body worn camera recordings are subject to disclosure except to the extent necessary to protect a person’s “right to privacy,” under a modified version of the privacy test discussed above. Certain types of recordings are presumed to be “highly offensive,” including depictions showing the inside of medical facilities and residences, intimate images, minors and the body of a deceased person. RCW 42.56.240(14).  Public records requests for bodycam footage must also specify a particular individual involved in an incident, a specific officer, or the incident’s time and location. Id.

    Criminal records on charges that have not resulted in conviction or other adverse disposition and for which formal proceedings are over are closed to the public. RCW 10.97.050, .030(2). Internal police investigations are considered exempt, even though no criminal charges are involved and no right to privacy is violated. The Washington Supreme Court has said that public disclosure of such investigations would render law enforcement ineffective. Cowles Publishing Co. v. State Patrol, 109 Wn.2d 712, 748 P.2d 597. Nevertheless, an investigative report concerning liquor law violations at a Police Guild party is not exempt on grounds that public disclosure would render law enforcement ineffective or violate the officers’ privacy. Spokane Police Guild v. Liquor Control Bd., 112 Wn.2d 30, 769 P.2d 283. In addition, internal investigation records are not exempt if requested as part of the discovery process, because a trial court can craft a protective order to alleviate law enforcement concerns. State v. Jones, 96 Wn. App. 369, 979 P.2d 898 (1999).

    e. Identity of Witnesses, Victims, and Persons Filing Complaints. The identity of witnesses, victims, and persons who file criminal or quasi-criminal complaints with agencies other than the Public Disclosure Commission if the complainant indicates at the time of filing the complaint that the complainant desires for it to be confidential, is exempt if disclosure would endanger a person’s life, property or physical safety. RCW 42.56.240(2).

    Information revealing the identity of child victims of sexual assault who are under age 18 is confidential. RCW 42.56.240(5).

    f. Other crime/law enforcement records. License applications for concealed pistols are exempt from public disclosure. RCW 42.56.240(4). The felony firearm offense conviction database is exempt under RCW 42.56.240(10).

    The statewide gang database is exempt from disclosure. RCW 42.45.240(6).

    Data from the state pseudoephedrine sales tracking system. is system is exempt from disclosure.  RCW 42.56.240(7).

    Identifying information submitted to the statewide unified sex offender notification and registration program for the purpose of receiving notification regarding a registered sex offender is exempt from disclosure.  RCW 42.56.240(8).

    Personally identifying information collected by law enforcement from local security alarm system and crime watch programs is exempt from disclosure. RCW 42.56.240(9).

    g. Test Questions. An agency may withhold “[t]est questions, scoring keys, and other examination data used to administer a license, employment, or academic examination.” RCW 42.56.250(1).

    h. Real Estate Appraisals. Real estate appraisals made in connection with the purchase or sale of property are exempt from disclosure until the earlier of (1) three years from the date of the appraisal, or (2) consummation or abandonment of the transaction. RCW 42.56.260.

    i. Commercially Valuable Information. An agency may withhold any valuable formulae, designs, drawings or research data obtained within five years of the request for disclosure if disclosure would produce private gain and public loss. RCW 42.56.270(1). “Research data” is defined as “a body of facts and information collected for a specific purpose and derived from close, careful study, or from scholarly or scientific investigation or inquiry.” Servais v. Port of Bellingham, 127 Wn.2d 820, 832, 904 P.2d 1124 (1995) (cash flow report prepared for Port’s use in negotiations with developers exempt). Research data includes raw data and the guiding hypotheses that structure the data, Progressive Animal Welfare Soc’y v. University of Wash., 125 Wn.2d 243, 255, 884 P.2d 592 (1994), and is not limited to scientific facts. Servais, 127 Wn.2d at 831. The exemption does not cover accounting reports developed to secure a federal loan. See Spokane Research v. City of Spokane, 96 Wn. App. 569, 994 P.2d 267 (1999).

    RCW 42.56.270, which is frequently amended and updated, sets out a number of additional specific exemptions related to financial or proprietary information held by specified state boards and agencies, including certain information submitted by bidders in connection with highway or ferry system construction; loan information held by state sponsored development programs; certain private commercial information supplied to state sponsored export services and industrial development corporations, and the state Investment Board; and financial information provided by health care providers for workers compensation programs.

    j. Deliberative Process. This exemption allows nondisclosure of intra-agency deliberative materials. RCW 42.56.280. Inter-agency materials are not exempt. Columbian Publishing Co. v. City of Vancouver, 36 Wn. App. 25, 671 P.2d 280 (1983). The exemption applies to opinions, such as faculty tenure evaluations, Hafermehl v. University of Wash., 29 Wn. App. 366, 628 P.2d 846 (1981), but does not include purely factual matters, Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978), or the raw data on which a decision is based. PAWS, 125 Wn.2d at 256. Deliberative materials are exempt only until the policies or recommendations contained in such records are implemented. Dawson v. Daly, 120 Wn.2d 782, 793, 845 P.2d 995 (1993).

    k. Discovery Exemption. If an agency is a party to a lawsuit, it may withhold any records relevant to that suit that would be protected under rules of pretrial discovery. RCW 42.56.290. Civil, rather than criminal, discovery rules apply. Limstrom v. Ladenburg, 136 Wn.2d 595, 963 P.2d 869 (1998). This exemption applies to “reasonably anticipated litigation,” id. at 791, and to records created to evaluate an agency’s potential liability, Overlake Fund v. City of Bellevue, 70 Wn. App. 789, 794, 855 P.2d 706 (1993), review denied, 123 Wn.2d 1009, 869 P.2d 1084 (1994), but it does not apply where the records may only have some possible relevance to a future hypothetical dispute with a third party. Yakima Newspapers Inc. v. City of Yakima, 77 Wn. App. 319, 325, 890 P.2d 544 (1995). As reflected in the work product rule, the exemption also applies after the termination of litigation. Dawson, 120 Wn.2d at 790. A settlement agreement is not protected under the work product rule and, thus, this exemption, because it is not prepared in anticipation of litigation but in an attempt to conclude litigation. Yakima Newspapers, 77 Wn. App. at 326-27. The courts have refused to create a blanket work product exemption to everything in a prosecutor’s litigation file. Limstrom v. Ladenburg, 136 Wn.2d 595, 963 P.2d 869 (1998); but see Koenig v. Pierce County, 151 Wn. App. 221, 211 P.3d 423 (2009) (transcript of a witness statement was exempt under work product exemption because it was sought by the prosecutor in anticipation of litigation).  In Seattle Times Co. v. Serko, 170 Wn.2d 581, 243 P.3d 919 (2010), the Supreme Court held that police investigative records generally are not exempt from PRA disclosure as prosecutorial work product.  The Court expressly rejected the argument that “a law enforcement agency is merely an arm of the prosecutor’s office for purposes of a work product analysis.”

    In Morgan v. Federal Way, 166 Wn.2d 747, 213 P.3d 596 (2009), the Supreme Court held that a city’s report investigating a hostile work environment complaint against a municipal judge was subject to disclosure, and did not qualify as work product because at the time of the investigation, no litigation had been threatened or anticipated.

    l. Archaeological Site Protection. Records identifying the location of archaeological sites may be withheld to avoid looting or degradation of sites. RCW 42.56.300.

    m. Library Records. Library records that are used primarily to maintain control of library materials may be withheld to protect the identity of the user. RCW 42.56.310.

    n. Schools. Certain financial disclosures that private vocational schools must file by law may be withheld from public disclosure. RCW 42.56.320(1). Any state college, library or archive that receives a gift or grant which by its terms restricts public access to certain records may withhold such records. RCW 42.56.320(4).

    o. Utilities and Transportation Records. Certain records filed with the state Utilities and Transportation Commission that a court has determined are confidential are exempt. RCW 42.56.330(1).

    p. Utility and Transit Customers. Residential addresses and telephone numbers of customers of a public utility may be withheld from public disclosure. Personal records related to carpool programs, transit passes, toll transponders and the like are also exempt. RCW 42.56.330(2)-(9).

    q. Timeshare Condominiums. Membership lists in timeshare projects that must be filed by law may be withheld from public disclosure. RCW 42.56.340.

    r. Health Care Providers. The Social Security numbers, residential addresses, and phone numbers of health care providers may be withheld from disclosure. RCW 42.56.350. Records obtained from or on behalf of HMOs, entities providing disability insurance or health care services, pharmaceutical manufacturers, or other entities who purchase, dispense or distribute drugs may be withheld. RCW 42.56.360(1)(b). Also, records created for and maintained by a heath care provider’s quality improvement committee are exempt. RCW 42.56.360(1)(c).

    s. Domestic Violence. Client records maintained by a domestic violence shelter or rape crisis center are exempt. RCW 42.56.370.

    t. Agricultural Information. Business information related to organic food product certification is protected from public inspection and copying. RCW 42.56.380(1). Other exemptions for personal and business information submitted in connection with specified agricultural programs are set out in RCW 42.56.380(2)-(12).

    u. Medical Records. Health care information of patients is exempt except for certain directory information. RCW 42.56.360(2); RCW 70.02.

    v.. Check Casher/Seller. Residential addresses, telephone numbers, and financial statements in applications for check casher/seller licensing are exempt. RCW 42.56.450.

    wg. Impaired Physicians. Certain records involving disciplinary action under the impaired physicians program may be withheld from public disclosure. RCW 42.56.360(1)(e). x. Life Insurance Policy Holders. Names and identifying information of owners of life insurance policies regulated by the insurance commissioner are exempt. RCW 42.56.400(3). Other exemptions applicable to insurance and financial institutions are set out in RCW 42.56.400.

    y. Fireworks Records. Records produced pursuant to the state Fireworks Law are exempt from disclosure. RCW 42.56.460.

    z. Security. Portions of records assembled, prepared or maintained to prevent or respond to criminal terrorist acts and specific and unique vulnerability assessments are exempt from disclosure. RCW 42.56.420(1). Also, records obtained as a result of national security briefings with state and local government are not subject to disclosure where they are not subject to disclosure under federal law. Id. See Northwest Gas Ass'n v. Washington Utilities and Transp. Comm., 141 Wn. App. 98, 168 P.3d 443 (2007). Other information regarding security jails, schools, communications networks, and transportation system may be exempt. RCW 42.56.420(2)-(6).

    aa.  Fish and Wildlife. Specified commercial and recreational fish and wildlife data are exempt under RCW 42.56.430.

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  • West Virginia

    The West Virginia Freedom of Information Act specifically exempts from disclosure twenty-one categories of information. Each of these exemptions, and Supreme Court decisions interpreting them, are discussed below.

    1. Trade secre