2. Proactive disclosure requirements

The State of Alaska and various municipalities, as well as numerous departments and agencies, are required by a variety of statues, regulations and ordinances to make certain information available on their websites, and most government agencies and entities, state and local, have useful sites with links to forms, FAQs, and substantial materials that are useful to citizens dealing with that government unit.

The FOIA requires state agencies, boards, and commissions to prepare and make available the following information:

• A description of its organization, including central and field offices, the general course and method of its operations, and the established locations, including, but not limited to, telephone numbers and street, mailing, electronic mail, and internet addresses and the methods by which the public may obtain access to public records;
• A list and general description of its records, including computer databases;
• Its regulations, rules of procedure, any formally proposed changes, and all other written statements of policy or interpretations formulated, adopted, or used by the agency, board, or commission in the discharge of its functions.
• Rules, regulations, and opinions used in this section shall refer only to substantive and material items that directly affect procedure and decision-making.
• Personnel policies, procedures, and internal policies shall not be subject to the provisions of this section.
• Surveys, polls, and fact-gathering for decision-making shall not be subject to the provisions of this section.
• Statistical data furnished to a state agency shall be posted only after the agency has concluded its final compilation and result;
• All documents composing an administrative adjudication decision in a contested matter, except the parts of the decision that are expressly confidential under state or federal law; and
• Copies of all records, regardless of medium or format, released under § 25-19-105 which, because of the nature of their subject matter, the agency, board, or commission determines have become or are likely to become the subject of frequent requests for substantially the same records.

Ark. Code Ann. § 25-19-108(a). If this information was compiled or created after July 1, 2003, it must be made publicly available, free of charge, online. Ark. Code Ann. § 25-19-108(b)(1).

The CPRA does not require public agencies to post public records to their websites. However, a public agency may comply with a request to inspect public records under Section 7922.525(a) of the Government Code by posting the record on its website and directing the requester to the location on the website where the public record is posted. Cal. Gov’t Code § 7922.545(a)s unable to access the record or copy it, the agency must make copies available to the requester upon request. Id. § 7922.545(b).

Local agencies, other than school districts, that post “open data” documents to their websites, are required to make those records accessible in an open format that meets specific requirements intended to ease use and public accessibility of the records. See Cal. Gov’t Code § 7922.680. These requirements include that the record be retrievable, downloadable, indexable and electronically searchable, and be available to the public free of charge. Id.

Local agencies, except school districts, also are required, with certain exceptions, to create and post on their websites, if they have one, a catalog of “enterprise systems” utilized by the agency. Cal. Gov’t Code § 7922.710(a). “Enterprise systems” are defined as “a software application or computer system that collects, stores, exchanges, and analyzes information that the agency uses that is both of the following. ¶(A) A multidepartmental system or system that contains information collected about the public. ¶ (B) A system of record.” Id. § 7922.700(a). A “system of record” is further defined as a system that “serves as an original source of data within an agency.” Id. § 7922.705.

A custodian may impose a fee in response to a request for the research and retrieval of public records only if the custodian has, prior to the date of receiving the request, either posted on the custodian’s web site or otherwise published a written policy that specified the applicable conditions concerning the research and retrieval of public records by the custodian, including the amount of the current fee. Colo. Rev. Stat. § 24-72-205(6)(a) (2014).

Not addressed in the FOIA.

Not addressed.

The D.C. Act provides that the following information must be made public, regardless of whether it is requested:

1) The names, salaries, title, and dates of employment of all employees and officers of a public body

2) Administrative staff manuals and instructions to staff that affect a member of the public

3) Final opinions, including concurring and dissenting opinions made in the adjudication of cases

4) Those statements of policy and interpretations of policy, acts, and rules which have been adopted by a public body

5) correspondence and materials of a public body through which the public body determines the rights of the District, the public, or any private party

6) Information in or taken from any account dealing with expenditures of public or other funds by public bodies

7) The minutes of all proceedings of all public bodies

8) All names and mailing addresses of absentee real property owners and their agents

9) Copies of all records, regardless of form or format, which have been released to any person under the D.C. Act

10) A general index of the records referred to in the D.C. Act

D.C. Code Ann. § 2-536 (Information which must be made public).

There do not appear to be any proactive disclosure requirements for public records codified within Chapter 119.

The Act has certain proactive disclosure requirements. For example, the Act requires that any computerized index of county real estate deed records must be printed for purposes of public inspection no less than every 30 days. O.C.G.A. § 50-18-71(i). The Act also requires the Department of Economic Development to post on its website notice of certain economic development projects once secured by a binding commitment and the department has committed the use of certain state funds. § 50-18-72(a)(46).

Section 92F-11 addresses affirmative agency disclosure responsibilities. Neither Section 92F-11 nor the OIP Rules require agencies to proactively disclose records prior to receiving a request.

Many state and local agencies provide access to their public records on their websites, although this is not required under the Act.

Section 8.5 allows, but does not require, public bodies to post documents on a website.  In the event of a request for those documents, the public body may simply point the requester to the website.

Beyond the Access to Public Records Act, agencies have their own unique disclosure rules in which they must publish certain information, even if they did not receive a request for said information. See, e.g., Ind. Code § 8-15.5-4-1.5(f) (stating that the Indiana Finance Authority must publish on its website the Authority’s replies to public comments submitted); Ind. Code § 8-1-8.5-10(h) (stating that the Indiana Utility Regulatory Commission must make an electricity supplier’s petition for energy plans available on the Commission’s website).

There is no specific statutory provision covering proactive disclosure requirements, and there are no reported cases.

Agencies only have to produce records upon request.  The only affirmative requirements are related to procedure rather than disclosure; e.g., the governing body of every public agency in Kansas which maintains public records "shall designate a local freedom of information officer" under K.S.A. 45-226; "An official custodian shall prominently display or distribute or otherwise make available to the public a brochure in the form prescribed by the local freedom of information officer that contains basic information about the rights of a requestor" under K.S.A. 45-227.  Also, Under the Kansas Open Meetings Act, an agency is required to furnish a meeting agenda at no charge if such an agenda exists, but again only "to any person requesting" it. K.S.A. 75-4318(d).

State agencies post certain contracts, budgets, salary and other information on Kentucky’s “Transparency” website, https://transparency.ky.gov.

None.  Governmental bodies are not required to make proactive disclosures absent a public records request.

The FOAA generally does not contain proactive requirements for the disclosure of public records on agency or public official websites, but many agencies and officials make records in high demand available on their websites as a public service.  Doing so also is also an administrative convenience as it cuts down on the number of records requests.

There are no specific categories of information a particular agency is required to make available proactively.  However, agency custodians must designate and maintain a list of the types of public records that are to be made available immediately upon request. § 4-201(c). Any governmental unit that maintains public records must designate a representative to handle requests for public records. § 4-503(a)(1). Contact information for the representative must be maintained and posted on the governmental unit’s website, if applicable. § 4-503(a)(2)-(3). The Office of the Attorney General must also post the contact information for each governmental unit’s public records representative on its website and in the PIA Manual. § 4-503(b).

Custodians must report to the Secretary certain information regarding public records requests, such as the nature of the request, date of the request and response, the fees assessed, and any use of administrative or judicial remedies. G.L. c. 66, § 6A(e).

The public can search the submitted information online at https://www.sec.state.ma.us/RequestSearchWeb/Webpages/Welcome.aspx.

Not specifically addressed.

Each government entity must prepare (1) an updated written data access policy; and (2) an updated policy addressing the rights of data subjects, by August 1 of each year. Minn. Stat. § 13.025, subds. 2 and 3. Such policies must be made “easily accessible” to the public by distributing free copies, posting in a conspicuous place at the entity’s location, or posting on the entity’s website. Minn. Stat. § 13.025, subd. 4.
With respect to the data itself, government entities are responsible for “keep[ing] records containing government data in such an arrangement and condition as to make them easily accessible for convenient use,” however, entities have no obligation to make data proactively available. Minn. Stat. § 13.03, subd. 1.

Even if a public body determines some material may be exempt, the public body must redact the exempt material and produce the non-exempt material for examination.  § 25-61-9(2).

There are no cases on this point.

Agencies are not required to post information on websites in order to facilitate examination of documents, although many state agencies do so.

Agencies and public bodies are allowed, but generally not required, to make categories of information available on a website, without request. A substantial exception to that general principle is the Taxpayer Transparency Act, Neb. Rev. Stat. § 84-602.01 to 84-602.04. That Act requires the State Treasurer to develop and maintain a website “with information on state receipts, expenditures of state funds, and contracts which is accessible by the public at no cost to access . . . .” Specifically:

(b)       The State Treasurer shall, in appropriate detail, cause to be published on the web site:

(i)        The identity, principal location, and amount of state receipts received or expended by the State of Nebraska and all of its state entities;

(ii)       The funding or expending state entity;

(iii)      The budget program source;

(iv)      The amount, date, purpose, and recipient of all expenditures of state funds; and

(v)       Such other relevant information as will further the intent of enhancing the transparency of state government financial operations to its citizens and taxpayers. The web site shall include data for fiscal year 2008-09 and each fiscal year thereafter, except that for any state entity that becomes subject to this section due to the changes made by Laws 2018, LB 851, the web site shall include data for such state entity for fiscal year 2016-17 and each fiscal year thereafter.

Neb. Rev. Stat. § 84-602.04(2)(b).

 

The Treasurer’s website must contain a link to the website of the State Department of Administrative Services, which website must contain:

(i)        A data base that includes a copy of each active contract that is a basis for an expenditure of state funds, including any amendment to such contract and any document incorporated by reference in such contract. For purposes of this subdivision, amendment means an agreement to modify a contract which has been reduced to writing and signed by each party to the contract, an agreement to extend the duration of a contract, or an agreement to renew a contract. The data base shall be accessible by the public and searchable by vendor, by state entity, and by dollar amount. All state entities shall provide to the Department of Administrative Services, in electronic form, copies of such contracts for inclusion in the data base beginning with contracts that are active on and after January 1, 2014, except that for any state entity that becomes subject to this section due to the changes made by Laws 2016, LB 851, such state entity shall provide copies of such contracts for inclusion in the data base beginning with contracts that are active on and after January 1,2017; and

(ii)       A data base that includes copies of all expired contracts which were previously included in the data base described in subdivision (4)(a)(i) of this section and which have not been disposed of pursuant to policies and procedures adopted under subdivision (4)(e) of this section. The data base required under this subdivision shall be accessible by the public and searchable by vendor, by state entity, and by dollar amount.

Neb. Rev. Stat. § 84-602.04(4)(a)(i) and (ii).  There are numerous contracts which are exempted from these requirements, and information otherwise made confidential state or federal law must be redacted from contracts.

There is no requirement under the NPRA for affirmative disclosure. There are various provisions throughout the Nevada Revised Statutes compelling certain public disclosures and posting of public records.

RSA 91-A:4, VII clarifies that there are no proactive disclosure requirements, and that the public body is only required to keep any publicly available information in the form it is normally kept or reported.

OPRA does not require the disclosure of any categories of information that have not been requested.

Numerous state agencies have reporting requirements for certain categories of information.  Although these requirements and categories are too numerous to list here, one particularly important source for agency information is the Sunshine Portal.  The Portal was created in 2011 pursuant to the Sunshine Portal Transparency Act, NMSA 1978 §§ 10-16D-1 et seq., to provide public access to state government budgets, expenditures, revenue and specific public school district information, and to make such information accessible on one central website.  New Mexico Sunshine Portal, http://sunshineportalnm.com/ (July 10, 2019).

Does not apply.

The open records statute does not address proactive disclosure requirements.

The Ohio Revised Code contains numerous provisions requiring agencies to affirmatively disclose certain documents. See, e.g., Ohio Rev. Code §§ 107.41 (governor’s performance measures required to be posted online) 113.41 (online database of state-controlled real property); 125.112(B) (searchable website containing information about state contract awards); 125.20(A)(1) (state employee compensation database); 125.20(A)(2)(tax credit database); 1701.87(F)(1) (list of domestic corporations which have filed a certificate of dissolution or had its articles of incorporation cancelled); 3517.106(I) (campaign contributions and expenditures filed with secretary of state); 3797.08(C) (sex offender registry); 5120.66(B)(2) (internet database of custodial inmates), etc.

Much of this information (and more information not subject to mandatory disclosure by statute) is available online at Ohio’s Transparency website, https://www.ohio.gov/government/transparency/.

A public body that contracts with a private vendor to provide electronic access to and reproduction of the public body’s records over the world wide web is still required to provide access to its records for inspection and copying at the public body’s office. 2005 OK AG 3.

Oregon law mandates the state, through its Chief Information Officer, to maintain a “Transparency Website” to proactively publish certain categories of state agency information. See ORS 276A.250 – ORS 276A.262 (formerly ORS 184.480 – ORS 184.488). The website includes information on such topics as public meetings, budget, tax and financial information, and state contracting. State agencies and education service districts are to furnish the information about their respective agencies and districts to the Chief Information Officer, but only where they can do so “at no additional cost” and to the “extent practicable.”

The website is found at http://www.oregon.gov/transparency/pages/index.aspx.

“Any Commonwealth agency, legislative agency or judicial agency [that] enter[s] into any contract involving any property, real, personal or mixed of any kind or description or any contract for personal services where the consideration involved in the contract is $5,000 or more” shall file said contract with the Treasury Department. 65 Pa. Con. Stat. § 67.1701.

The Law states that state-related institutions (Penn State, University of Pittsburgh, Temple, and Lincoln) must, no later than May 30 of each year, file with the Governor’s Office, the General Assembly, the Auditor General and the State Library a report containing certain information. 65 Pa. Con. Stat § 1502. The report “shall include” the following information: (1) “all information required by Form 990 or an equivalent form . . . regardless of whether the State-related institution is required to file the form . . .;” (2) “[t]he salaries of all officers and directors of the State-related institution;” (3) “[t]he highest 25 salaries paid to employees of the institution that are not included under paragraph (2).” 65 Pa. Con. Stat §1503(1)-(3). The report “shall not include information relating to individual donors.” 65 Pa. Con. Stat §1503(4). The Law requires that state-related institutions “shall maintain, for at least seven years, a copy of the report in the institution’s library and shall provide free access to the report on the institution’s Internet website.” 65 Pa. Con. Stat § 1504.

Though, “certain records of a coroner, such as autopsy reports, are exempt under Section 708(b)(20) of the RTKL, these records are available pursuant to the Coroner's Act, 16 P.S. §§ 1231-1253.”  See In re Miller v. Lancaster Cty., 2018 WL 1542110 (Pa. Off. Open Rec. 2018) (citing 65 P.S. § 67.3101.1: “If the provisions of this act regarding access to records conflict with any other . . . state law, the provisions of this act shall not apply.”).  Section 1251 of the Coroner's Act states that “[e]very coroner, within thirty (30) days after the end of each year, shall deposit all of his official records and papers for the preceding year in the office of the prothonotary for the inspection of all persons interested therein.” 16 P.S. § 1251. The Pennsylvania Supreme Court has found that records pertaining “to a duty of a coroner in his or her official capacity,” including autopsy reports, are ““official records and papers” of a coroner that are required to be deposited with the county prothonotary. See Penn Jersey Advance, Inc. v. Grim, 962 A.2d 632, 636 (Pa. 2009) (“It is clear . . . that conducting autopsies is one of the official duties of a coroner. It follows logically that a coroner's resulting autopsy reports constitute ‘official records and papers' within the meaning of Section 1251.”).

The Public Records Administration (PRA) collaborates with agencies to develop records retention schedules for records that are unique to each agency.  They are contained in the General Records Schedule, which is a document that lists and describes the records that an agency creates or receives in the course of conducting its business. Each schedule also stipulates the minimum amount of time the agency must keep each record series. The amount of time (the retention period) is set by law or determined by business needs when no law directly applies. The historical or informational value of the record is also a consideration.

After the latest revisions, public bodies must now “develop a fee schedule to be posted online” with regards to the fees association with the search, retrieval, and redaction of records pursuant to a records request. S.C. Code Ann. § 30-4-30.

Certain types of public information must be made available for public inspection and copying during the operating hours of the public body without the requestor being required to make a written request: (1) minutes of the meetings of the public body for the preceding six months; (2) law enforcement reports for at least the fourteen-day period before the current day; (3) documents identifying persons confined in a jail, detention center, or prison for the preceding three months; (4) all documents produced by the public body or its agent that were distributed to or reviewed by a member of the public body during a public meeting for the preceding six-month period. If a public body uploads these four types of records in “a form that is both convenient and practical for use on a publicly available Internet website” it will be deemed to have complied with the Act, provided that the public body also still produce records pursuant to a written request for information as well. S.C. Code Ann. § 30-4-30.

A variety of contracts are required to be displayed “on the [state’s] searchable internet website.  SDCL §1-27-46.  The state’s website is to be maintained “for the posting and access of public records and financial information” of public entities.  SDCL §1-27-45.  This appears to be more of a public accommodation that depends upon the government’s discretion regarding content.

Agencies are not required to make certain categories of information available even if it is not requested, however, certain records are available on agency websites.

Not specifically addressed.

Open meeting pending minutes must be available to the public within 30 days of holding the meeting. Id. § 52-4-203(4)(e)(i). Approved minutes must be available within three business days of approval by posting to the website and making minutes available at the public body’s primary office along with any public materials distributed at the meeting. Id. § 52-4-203(4)(e)(ii).  An audio recording of the open meeting, or a link to the recording, must be posted on the website within three business days as well.  Id. § 52-4-203(4)(e)(iii).

The Legislature must post on its website a publicly accessible repository containing email that legislators transferred. Id. § 63G-2-208. A legislator’s failure to transfer an email to the repository does not alone mean that the email is a private, protected, or controlled record. Id. § 63G-2-208(5).

The Public Records Act requires all public agencies of the executive branch that receive a written request for records under the statute to catalogue the request, including: the date it was received, the agency that received the request, the person making the request, the status of the request, the exemption asserted by the agency if the request was denied or partially fulfilled, the estimate hours necessary to respond to the request, the date the agency closed the request, and the elapsed time between the receipt of the request and the date the agency closed the request.  See 1 V.S.A. § 318a.  The Vermont Secretary of Administration is required to maintain and update a Public Records Request System on its website containing the information catalogued by each agency.  Id. at (a).  The website is available here: https://aoa.vermont.gov/statewide-public-record-requests. Each executive agency is also required to post “in a conspicuous location on their respective websites a link to the location on the Agency of Administration’s website where Public Records Request System information is maintained.”  1 V.S.A. § 318a(b)(2).

The organic laws of certain agencies require that they periodically disclose statistical, financial, or other information.  An exhaustive listing of these statutes is beyond the scope of this guide.  Generally, the laws establishing state agencies may be found in Title 2.2 of the Code of Virginia, and the governance and operation of each agency will be detailed in the Virginia Code title relevant to the agency’s subject matter. Title 15.2 of the Code of Virginia governs counties, cities and towns.  Some public bodies, depending on their budgets and sophistication, may publish information on a website, but the quality of public body websites in Virginia varies and the information may not be current.

Agencies are not required to proactively post or release public records, but are not permitted to charge for records that they routinely post on their websites.  RCW 42.56.120.

West Virginia government agencies are not required to make information available on the internet even if it is not requested. However, most state agencies post diverse categories of information on their web sites. It is advisable to make an internet search to determine if the information sought has been provided on an agency web site, prior to filing a FOIA request.

Interestingly, the FOIA was amended in 2015 to require public bodies in receipt of freedom of information requests to provide information to the Secretary of State relating to, at a minimum, "the nature of the request, the nature of the public body's response, the time frame that was necessary to comply in full with the request; and the amount of reimbursement charged to the requester for the freedom of information request." § 29B-1-3a (a). The public body need not provide to the Secretary of State the actual public records that were the subject of the FOIA request.

The Secretary of State is required to maintain a publicly available internet electronic data base containing this information provided by public bodies. The Secretary must provide a form on the website to be used by public bodies to report the results of each freedom of information request, providing the nature of the request and the public body's response thereto, whether the request was granted, and if not, the FOIA exemption asserted to deny the request. See, W. Va. Code § 29B-1-3 (f). To access the Secretary of State’s database and related information: https://apps.sos.wv.gov/FOIA/Requests.

Nothing in the Open Records Law requires proactive disclosure.

State Contracts are posted on the Wyoming Department of Administration and Information website.