2. What physical form of records are covered
In defining public writing to include "such a record as is reasonably necessary to record the business and activities . . . [of] a public officer," Stone, 404 So. 2d at 681 (emphasis in original), the Supreme Court of Alabama's interpretation of the Public Records Law arguably extends to audio-visual materials and computerized information as well as traditional paper documents.
A 1984 state attorney general's opinion concluded that a computer printout bound in book form satisfied the requirement that sheriffs keep a "well-bound book" in their offices to be subject to the inspection of the public during office hours pursuant to Alabama Code § 36-22-8 (1991). 197 Op. Att'y Gen. Ala. 21 (Nov. 16, 1984). That opinion notes that "the Legislature when enacting a statute cannot take in account modern equipment which is not in existence when a statute is written . . . . [A]s long as the purpose of the statute is carried out, there is no reason that the simplest method of achieving that purpose cannot be used." Id. at 22. In 1987, the attorney general determined that computer records maintained by a public agency are public records that are to be supplied to citizens under reasonable conditions. Ala. Att’y Gen. Op. 47 (November 4, 1987); see also Ala. Att’y Gen. Op. 157 (June 4, 1998); Ala. Att’y Gen. Op. 108 (April 1, 2004) (finding computerized mugshots are public records).
At least one trial court in Alabama has found that when a public agency keeps its records on computer, the computer records themselves are "public writings" under Alabama law. See Birmingham News Co. v. Perry, 21 Media L. Rep. (BNA) 2125, 2125-26 (Cir. Ct. Montgomery Cnty., Ala., July 22, 1993) (motor vehicle records [hereinafter "MVRs"] kept on computer) (as of Sept. 13, 1997, access to MVRs is governed by 18 U.S.C. § 2721). Some of the most recent legislation regarding public records explicitly permits access to public records in various forms. See, e.g., Ala. Code § 22-9A-21(f) (1997) (noting that when records of birth and death become "nonrestricted public records," "[t]he records may be made available for viewing in photographic, digital, electronic, or other suitable format as provided for by the rules of the [State Board of Health])”; see also Alabama Rules of Judicial Administration 31 (dissemination of computer-based court information).
"Public records" are defined in the statute to include "books, papers, files, accounts, writings, including drafts and memorializations of conversations, and other items, regardless of format or physical characteristics. Records are further defined in 2 AAC 96.900(4) to include:
any existing document, paper, memorandum, book, letter, drawing, map, plat, photo, photographic file, motion picture, film, microfilm, microphotograph, exhibit, magnetic or paper tape, punched card or other item or any other material, regardless of physical form or characteristic.
In rejecting a claim that using private email accounts to conduct official business was an obstruction of access and therefore a per se violation of the Public Records Act, the Alaska Supreme Court noted that “using private email accounts is no more an obstruction of access to public records than communicating through paper letters. … [T]he (Records Management) law requires a state employee to retrain records; whether the record exists in paper or electronic form does not change the analysis.” McLeod v. Parnell, 286 P.3d at 515.
The statute's reference to “[p]ublic records and other matters” strongly suggests that tangible records other than print material are also subject to inspection and copying under the statute. A.R.S. § 39-121 (emphasis added). In KPNX-TV v. Superior Court, the court held that “Arizona’s definition of public records can include videotapes,” as well as “all existing documents, papers, letters, maps, books, tapes, photographs, films, sound recordings or other materials, regardless of physical form or characteristics.” 183 Ariz. 589, 592, 905 P.2d 598, 601 (Ct. App. 1995); see also Star Publ’g Co. v. Pima Cty. Attorney’s Office, 181 Ariz. 432, 433-34, 891 P.2d 899, 900-01 (Ct. App. 1994) (computer backup tapes which include e-mail communication of employees are subject to public records law).
The physical form of the record is unimportant, for the FOIA applies to “writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium.” Ark. Code Ann. § 25-19-103(5)(A). Act 1653 of 2001 added the phrase “electronic or computer-based information” to emphasize that the FOIA applies to such records, even though the prior version of the act was broad enough to cover them. See, e.g., Blaylock v. Staley, 293 Ark. 26, 732 S.W.2d 152 (1987) (computer tapes); Ark. Op. Att’y Gen. Nos. 2000-096, 99-018 (electronically stored e-mail). But see Nolan v. Little, 359 Ark. 161, 196 S.W.3d 1 (2004) (refusing to apply FOIA to seed sample, stored for testing by the State Plant Board, regardless of any “genetic information” the seed contained, where extracting information would require destruction of sample); Ark. Op. Att’y Gen. No. 91-323 (recording of executive session may not be a “record” for FOIA purposes, since it can be viewed as “the embodiment of the meeting”).
(1) The FOIA applies only to existing records, Swaney v. Tilford, 320 Ark. 652, 898 S.W.2d 462 (1995), and an agency “is not required to compile information or create a record” in response to a request. Ark. Code Ann. § 25-19-105(d)(2)(C) (added by Act 1653 of 2001). Similarly, there is no requirement for an agency “to answer interrogatories or to otherwise provide raw information.” Ark. Op. Att’y Gen. No. 2000-305.
(2) Nothing in the FOIA requires an agency to maintain records in a certain medium or format. Ark. Op. Att’y Gen. No. 97-030. Indeed, the act “does not itself provide that any particular records shall be kept.” McMahan v. Board of Trustees of the Univ. of Arkansas, 255 Ark. 108, 499 S.W.2d 56 (1973). However, a record that exists in multiple media or formats must be made available on request “in any medium in which the record is readily available or in any format to which it is readily convertible with the custodian’s existing software.” Ark. Code Ann. § 25-19-105(d)(2)(B) (added by Act 1653 of 2001).
The CPRA defines "writing" as "any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds or symbols, or combination thereof, and any record thereby created, regardless of the manner in which the record has been stored." Cal. Gov't Code § 6252(g). The format of information is generally not determinative of its public record status. See Sierra Club v. Superior Court, 57 Cal. 4th 157, 165, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013). The fact that public records may be stored in a computer, for example, does not affect their status as public records. Cal. Gov't Code § 6254.9(d). See, e.g., Comm’n on Peace Officer Standards and Training v. Superior Court, 42 Cal. 4th 278, 288 n.3, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007) (recognizing that information stored in a computer database containing peace officer names, employing agency and employment dates qualified as a “writing” because “that term is defined broadly to include every ‘means of recording upon any tangible thing any form of communication or representation . . . and any record thereby created, regardless of the manner in which the record has been stored.’” (quoting Gov. Code § 6252(g)).
Section 6253.9 of the CPRA requires public agencies that have information which constitutes an identifiable public record not otherwise exempt from disclosure that is in an electronic format to make that information available in an electronic format when requested by any person. Cal. Gov't Code § 6253.9. See Sierra Club v. Superior Court, 57 Cal. 4th 157, 165, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013) (discussing provision); see, e.g., Cty. of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 89 Cal. Rptr. 3d 374 (2009) (upholding order requiring disclosure of county GIS basemap data over claims that disclosure would violate Federal Homeland Security Act and that data was exempt under the CPRA’s “catchall” provision of Gov’t Code Section 6255). This statute supersedes portions of an earlier statute (Section 6253(b)) that allowed public agencies to determine the form in which computer data would be made available. See Cal. Att'y. Gen. Ops. No. 04-1105 (2005) (parcel boundary map data maintained by county assessor in an electronic format is disclosable in that format under CPRA).
Section 6253.9 further requires agencies to make the information available in any electronic format in which it holds the information, but does not require release of records in electronic format where "release would jeopardize or compromise the security or integrity of the original record or of any proprietary software in which it is maintained." Cal. Gov't Code § 6253.9(f).
The California Supreme Court has recognized that where feasible an agency may be required to produce information in a non-native format to facilitate redaction and anonymizing to protect privacy interests even if the native format in which the data was held would not facilitate such functions. In other words, in certain circumstances, an agency may be required to create a record with responsive information where the burden of doing so is not outweighed by the interests in disclosure. See ACLU v. Superior Court, 3 Cal. 5th 1032, 1047, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017). But cf. Sander v. Superior Court, 26 Cal. App. 5th 651, 665-67, 237 Cal. Rptr. 3d 276 (2018) (holding request to State Bar of California for individually unidentifiable bar admission records required the creation of new records through data manipulation that involved recoding with new values, and thus was beyond the scope of the CPRA).
See previous subsection (defining "electronic mail"). The statute defines "public records" as "all books, papers, maps, photographs, cards, tapes, recordings or other documentary materials, regardless of physical form or characteristics." Furthermore, "writings" include "digitally stored data, including without limitation electronic mail messages, but does not include computer software." Colo. Rev. Stat. § 24-72-202(7).
FOIA provides that a "public agency which maintains public records in a computer storage system shall provide . . . a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person" if reasonably possible. Conn. Gen. Stat. §1-211(a).
District of Columbia
Public records include "all books, papers, maps, photographs, cards, tapes, recordings or other documentary materials regardless of physical form characteristics prepared, owned or used in the possession of, or retained by a public body." D.C. Code Ann. § 2-502(18); id. § 2-539. Public records include information stored in an electronic format. Id. § 2-502(18).
The issue of access to public records maintained on a computer was addressed by the Fourth District Court of Appeal in Seigle v. Barry, 422 So. 2d 63 (Fla. 4th DCA 1982). The court adopted the rule that access to computerized records shall be given through the use of programs currently in use by the public official responsible for maintaining the public records. The Florida Legislature later amended Section 119.011(12) to expressly include software and computer data, regardless of the means of transmission. See also Op. Att’y. Gen. Fla. 96-34 (1996) (official business-related e-mails sent or received by employees of government office are public records). Furthermore, the Seigle court found that all of the information in a computer, not merely that which a particular program accesses, should be available for inspection and copying. See also Op. Att’y Gen. Fla. 85-3 (1985) (Games & Fresh Water Commission has duty to permit inspection of public records, including information on computer tapes). The Legislature later amended Chapter 119 to exempt computer software that is a trade secret and was obtained by an agency under a licensing agreement. Fla. Stat. § 119.071(1)(f) (2020).
The Seigle court also found that access by use of a specially designed program prepared by or at the expense of the person requesting the information may be permitted in the discretion of the custodian of the records. If, however, the custodian refuses to permit access in this manner, the court may permit access where:
1) the available programs do not access all of the public records stored in the computer’s data banks;
2) the information in the computer accessible by use of the available programs would include exempt information which would necessitate a special program to delete such exempt items;
3) for such reasons the form in which the information is proffered does not fairly and meaningfully represent the records; or
4) the court determines that other exceptional circumstances exist warranting this special remedy.
Examples of other materials which have been found to constitute public records:
Telephone records of calls made from agency telephones. Gillum v. Times Publ’g Co., No. 91-2689 CA (6th Cir. Dade County July, 1991); Op. Att’y. Gen. Fla. 99-74 (1999).
Videotaped training film prepared by state attorney’s office. Op. Att’y Gen. Fla. 88-23.
Email messages made or received by agency employees in connection with official business. Op. Att’y Gen. Fla. 96-34 (1996).
Section 92F-3 defines a "government record" as "information maintained by an agency in written, auditory, visual, electronic, or other physical form." The key is physical form. Disclosure of Names, Ethnicity, and Home Addresses of Veterans Who Reside in the State of Haw., OIP Op. Ltr. No. 92-8 (July 16, 1992) (construing definition of "government record"). According to the OIP, "government records" include computer diskettes containing transcripts of public City Council meetings since diskettes contain information in some physical form. Real Time Captioning of City Council Meetings and Committee Meetings, OIP Op. Ltr. No. 96-1 (June 18, 1996). However, samples of live organisms (e.g., bacterial isolated from submitted food or patient specimens) kept by the Department of Health are not “government records.” Samples of Live Organisms, OIP Op. Ltr. No. 05-12 (May 5, 2005).
If an agency maintains a requested record in the form in which it is requested, it must make the record available to the requester in that form. Disclosure of Audio Cassette Tape Recordings of Public Meetings, OIP Op. Ltr. No. 97-6 (June 23, 1997) (opining that audio tape recordings are government records and audio tapes must be disclosed); Public Access to Declarations of Water Use and Electronic Mailing List of Declarants, OIP Op. Ltr. No. 90-35 (Dec. 17, 1990) (requiring disclosure in form requested if so maintained by agency); Audio Tape Recording of the Comm'n's Pub. Meeting, OIP Op. Ltr. No. 92-13 (Aug. 13, 1992) (requiring disclosure of taped meeting if available, rather than written minutes, when requested). This is a broader requirement than that of decisions construing the FOIA to only require disclosure of records in hard copy (on paper). Public Access to Declarations of Water Use and Electronic Mailing List of Declarants, OIP Op. Ltr. No. 90-35 (Dec. 17, 1990).
However, "[u]nless the information is readily retrievable by the agency in the form in which it is requested, an agency [is] not required to prepare a compilation or summary of its records." Haw. Rev. Stat. § 92F-11(c); Disclosure of Audio Cassette Tape Recordings of Public Meetings, OIP Op. Ltr. No. 97-6 (June 23, 1997) (finding that the UIPA does not require an agency create written transcripts of audio tape recordings); Form of Record; Limitations on Employer Actions, OIP Op. Ltr. No. 10-02 (Aug. 16, 2010) (University of Hawai‘i is not required to provide access to faculty e-mail addresses if the form in which such information is stored cannot be segregated from a form in which faculty members and staff have a significant privacy interest and therefore is except from disclosure). By the same token, an agency does not satisfy the UIPA disclosure requirements by providing a requester with only a summary of the requested government record in lieu of the actual record. Access to "Daily Activity Reports" Maintained by the University of Hawaii at Hilo, Auxiliary Services, OIP Op. Ltr. No. 94-3 (Mar. 23, 1994).
Any and all records regardless of physical form or characteristics are covered. 5 ILCS 140/2(c). When a person requests a copy of a record maintained in an electronic format, the public body must furnish it in the electronic format specified by the requester, if feasible. 5 ILCS 140/6(a); see Fagel v. Dept of Transp., 2013 IL App (1st) 121841, ¶ 31. If it is not feasible to furnish the public records in the specified electronic format, then the public body must furnish it in the format in which it is maintained by the public body, or in paper format at the option of the requester. 5 ILCS 140/6(a); see also AFSCME v. County of Cook, 136 Ill. 2d 334, 555 N.E.2d 361, 144 Ill. Dec 242 (1990). Requesters should be aware that repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act may be exempt as “unduly burdensome.” 5 ILCS 140/3(d); see Public Access Opinion 11-003 (available at https://perma.cc/M4JJ-NTPG (a subsequent FOIA request cannot be deemed “unduly burdensome” unless the public body has either previously disclosed the requested records or properly denied the request); see also Nat’l Ass’n of Criminal Defense Lawyers v. Chicago Police Dept., 399 Ill. App. 3d 1, 17, 924 N.E.2d 564, 577, 338 Ill. Dec. 358 (1st Dist. 2010) (“A request that is overly broad and requires the public body to locate, review, redact and arrange for inspection a vast quantity of material that is largely unnecessary to the appellants’ purpose constitutes an undue burden.”). Requesters should resolve what format they prefer before making requests and explicitly state so in the initial request. Records requests should be as precise as possible. See Kenyon v. Garrells, 184 Ill. App. 3d 28, 540 N.E.2d 11, 132 Ill. Dec. 595 (4th Dist. 1989).
At least one appellate court gave credence to a claim that release of an entire database was exempt based on an allegation that a contract’s trade secrets should be spared from disclosure. Garlick v. Naperville Twp., 2017 IL App (2d) 170025, 84 N.E.3d 607.
The definition of “public record” includes anything generated on paper, paper substitutes, photographic media, chemically based media, magnetic or machine readable media, electronically stored data, or any other material, regardless of form or characteristics. Ind. Code § 5-14-3-2. The 1995 amendments providing “enhanced access” to electronic records, see id. 5-14-3-3.5, -3.6, effectively nullified Laudig v. Marion County Bd. of Voters Registration, 585 N.E.2d 700 (Ind. App. 1992), which upheld the board’s refusal to produce computer tapes containing Marion County’s voter registration list.
“Public record” means any recorded information regardless of form or characteristics. K.S.A. 45-217 (g)(1).
Emails: The definition of open records was amended in 2016 to clarify that communications such as private emails of “any officer or employee of a public agency” that are made “pursuant to the officer's or employee's official duties and which is related to the functions, activities, programs or operations of any public agency” are subject to KORA. This amendment to the definition of public records was largely in response to controversy related to an open records request for emails sent by the governor’s budget director and a resulting attorney general opinion, Kan. Att’y Gen. Op. 2015-10. Attorney General Derek Schmidt was instrumental in drafting the legislature’s 2016 amendment which, according to the Attorney General’s legislative testimony, applies KORA to “the private email accounts of state employees” if public employees use those accounts “to do their public jobs.”
All forms of public records are covered. See Ky. Rev. Stat. 61.870(2). Agencies may provide records in either hard copy or electronic formats, depending on the preference of the requester:
Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records where the agency currently maintains the records in electronic format. Nonexempt public records used for noncommercial purposes shall be copies in standard hard copy format where agencies currently maintain records in hard copy format. Agencies are not required to convert hard copy format records to electronic formats.
Ky. Rev. Stat. 61.874(2)(a); see also 95-ORD-12 (requester has right to choose either hard or electronic format if agency has both available).
The physical forms of records covered include papers as well as photographs, tapes, microfilm, and any other documentary material "regardless of physical form or characteristics, including information contained in electronic data processing equipment. . . ." La. Rev. Stat. Ann. § 44:1; Op. Att'y Gen. 90-330; Op. Att'y Gen. 87-301 (computer records of the assessment rolls are covered by the Public Records Act); Op. Att'y Gen. 98-366 (custodian should attempt to honor all requests to review records stored in electronic imaging format during normal business hours and without charge). One opinion of the Attorney General, however, summarily concludes that a custodian is not obligated to "run any extraordinary errand or report" and is "not required to present the information in a specialized format." Op. Att'y Gen. 92-367.
All records in any physical form are covered by the Act. The FOAA applies to “any written, printed or graphic matter or any mechanical or electronic data compilation from which information can be obtained, directly or after translation into a form susceptible of visual or aural comprehension.” 1 M.R.S.A. § 402(3).
The original or any copy of a public record in any form is covered, including a card, computerized record, correspondence, drawing, film or microfilm, form, map, photograph, photostat, recording, or tape. § 4-101(j)(1)(ii); see also 81 Op. Att'y Gen. 117, 120 (1996) (printed and electronically stored versions of e-mail messages are public records if the message is related to the conduct of public business); 71 Op. Att'y Gen. 288 (1986) (tape recordings of 911 Emergency Telephone System calls are public records, except for those portions exempted from disclosure). Private documents that an agency has read and incorporated into its files are also public records. Artesian Ind. v. Dep't of Health and Human Svcs., 646 F. Supp. 1004, 1007 n.6 (D.D.C. 1986) (construing the FOIA to include such records)). Public records do not however, "include a digital photographic image or signature of an individual, or the actual stored date thereof, recorded by the Motor Vehicle Administration. § 10-611(g)(3).
Statute and regulations cover "all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics." G.L. c. 4, § 7, cl. 26; 950 CMR 32.03. This language clearly includes photographs, tapes, and computerized records, as well as traditional books, papers, and maps. All e-mail created or received by an employee of a government unit is a public record. SPR Bulletin No. 1-99 (Feb. 16, 1999; revised and reissued May 21, 2003). The Attorney General has noted that the PRL applies to “all Massachusetts government records, regardless of form, and regardless of the location of the records.” Guide to Mass. Pub. Recs. Law at 41 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf.
It should be noted that the definition of "public record" refers to "writings." "Writing" is defined to include:
[H]andwriting, typewriting, printing, photostating, photographing, photocopying, and every other means of recording, and includes letters, words, pictures, sounds, or symbols, or combinations thereof, and papers, maps, magnetic or paper tapes, photographic films or prints, microfilm, microfiche, magnetic or punched cards, discs, drums, hard drives, solid state storage components, or other means of recording or retaining meaningful content.
Mich. Comp. Laws Ann. § 15.232(l).
Stenographer notes, tape recordings, or dictaphone records have been held to qualify as writings under this section, and therefore, such methods of recording municipal meetings are public records under FOIA. 1979-80 Op. Att'y Gen. 255, 264 (1979); see also Payne v. Grand Rapids Police Chief, 178 Mich. App. 193, 443 N.W.2d 481 (1989) (tape recording of emergency 911 call to police department was "public record" under FOIA). The requester must be permitted to inspect the original document if he or she wishes; providing copies is insufficient. Hubka v. Pennfield Twp., 443 Mich. 863, 504 N.W.2d 183 (1993). But see Lapeer Cty. Abstract & Title v. Lapeer Cty. Register of Deeds, 264 Mich. App. 167, 691 N.W.2d 11 (2004) (county register not required by FOIA to provide requester with microfilm copies rather than paper copies of the records at issue).
“[V]ideo recordings are ‘writings’ within the meaning of FOIA.” Amberg v. City of Detroit, 497 Mich 28, 859 N.W.2d 674, 676 (2014).
In addition, when a requester seeks a copy of computer records, a public body cannot satisfy the request by providing hard copies of the requested information. Farrell v. City of Detroit, 209 Mich. App. 7, 530 N.W.2d 105 (1995) (newspaper entitled to computer records used to generate lists of taxpayers and their properties; public body could not satisfy request by providing printout of information contained in computer records). The court in Farrell explicitly held that the computer records "constitute public records subject to disclosure under the FOIA." Id. at 14.
However, computer software developed by and in the possession of a public body has been held not to be a record under the FOIA, since computer software is an instructional form which is an integral part of computer operation and not a writing used to record information or ideas. 1979-80 Op. Att'y Gen. 255, 264-65 (1979); see also Farrell, 209 Mich. App. at 17 (noting that the requested computer records did not require the public body's software to be "utilized or released"); City of Warren v. City of Detroit, 261 Mich. App. 165, 680 N.W.2d 57 (2004) (formula for calculating water rates kept by city on computer disk is not software and therefore is not exempt under FOIA). The recent amendments to FOIA have incorporated this interpretation into the statute. See Mich. Comp. Laws Ann. § 15.232(i) ("Public record does not include computer software.").
Photographs such as mug shots are also public records. Patterson v. Allegan Cty. Sheriff, 199 Mich. App. 638, 502 N.W.2d 638 (1993). Telephone bills for calls to and from the mayor's home and office, even though prepared by a private company, are public records. Detroit News, Inc. v. City of Detroit, 22 Med. L. Rptr., 2028 (Mich. App. 1994). Likewise, tapes containing tax information developed by a municipality and used in performing the government's official function of property tax billing, are public records subject to FOIA disclosure, even though they are in the possession of a third-party contractor. MacKenzie v. Wales Twp., 247 Mich. App. 124, 635 N.W.2d 335 (2001).
Records are covered "regardless of physical form or characteristics." § 25-61-3(b). Computerized voter registration lists and applications for registration are "records." Att'y Gen. Jan. 16, 1990 to Molpus. The 1996 legislation, codified as § 25-61-10(a), gives requesters the right to choose the format in which they want the records provided the body maintains the record in that format, and so overrules. Att'y Gen. April 17, 1991 to Lee. The requester's rights are qualified only by the agency's right to charge a reasonable fee.
The Sunshine Law applies to all public records, “whether written or electronically stored.” Mo.Rev.Stat. § 610.010(6). See also Mo.Rev.Stat. § 610.026(1)(refers to fees for access to public records maintained on computer facilities, recording tapes or discs, video tapes or films, pictures, slides, graphics, illustrations or similar audio or visual items or devices). In addition, the Sunshine Law strongly encourages public governmental bodies to keep records in electronic form, and to make information available in usable electronic formats. Mo.Rev.Stat. § 610.029.1
The Sunshine Law requires that any member of a public governmental body who transmits any message relating to public business concurrently transmit the message either to the member’s public office computer or to the custodian of records in the same format, becoming a public record (subject to the enumerated exceptions). Mo.Rev.Stat. § 610.026.1(1).
The Public Records Law does not expressly restrict public records to a particular physical form, but merely refers to “records, instruments or documents.” Mo.Rev.Stat. § 109.180. Access under the Public Records Law is subject to “reasonable rules and conditions imposed by proper authorities.” State ex rel. Gray v. Brigham, 622 S.W.2d 734, 735 (Mo.Ct.App. 1981). Therefore, if access to a public record on a computer disk is determined unreasonable by the proper authority, there may be no right of access under the Public Records Law.
Public agencies and public bodies that maintain governmental records in “electronic format” have the authority, “in lieu of providing original records, copy governmental records requested to electronic media using standard or common file formats in a manner that does not reveal information which is confidential under this chapter or any other law. If copying to electronic media is not reasonably practicable, or if the person or entity requesting access requests a different method, the public body or agency may provide a printout of governmental records requested, or may use any other means reasonably calculated to comply with the request in light of the purpose of this chapter as expressed in RSA 91-A:1. Access to work papers, personnel data, and other confidential information under RSA 91-A:5, IV shall not be provided.” RSA 91-A:4,V.
In Menge v. City of Manchester, 113 N.H. 533 (1973), the Court held that a records maintained in a computer storage system where subject to the Statute, and ruled that the city had to provide the requester with a computer tape of such records.
A custodian shall permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium. If the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium.
(See N.J.S.A. 47:1A-5(d)).
The term “record” includes information in any physical form whatsoever, “including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.” N.Y. Pub. Off. Law § 86(4) (McKinney 1988). See Russo v. Nassau Cmty. Coll., 81 N.Y.2d 690, 603 N.E.2d 294, 623 N.Y.S.2d 15 (1993) (film and film strips used in a public college and provided by the college are “records” within FOIL); Buffalo Broad. Company v. New York State Department of Correctional Services, 174 A.D.2d 212, 578 N.Y.S.2d 928 (3d Dep’t 1992), aff’d 84 N.Y.2d 488, 644 N.E.2d 277, 619 N.Y.S.2d 695 (copies of video tapes taken at Attica Correctional facility were subject to disclosure under FOIL); Gabriels v. Curiale, 216 A.D.2d 850, 628 N.Y.S.2d 882 (3d Dep’t 1995) (FOIL applies to information contained in a computer database); Guerrier v. Hernandez-Cuebas, 165 A.D.2d 218, 566 N.Y.S.2d 406 (3d Dep’t 1991) (FOIL does not differentiate between records that are maintained in written form or on computerized tapes or discs); Brownstone Publishers Inc. v. New York City Department of Buildings, 166 A.D.2d 294, 560 N.Y.S.2d 642 (1st Dep’t 1990) (information on computer ordered transferred onto computer tapes); Allen v. Strojnowski, 129 A.D.2d 700, 514 N.Y.S.2d 463 (3d Dep’t 1987), motion for leave to appeal denied, 70 N.Y.2d 871, 518 N.E.2d 5, 523 N.Y.S.2d 493 (1987) (physical evidence, such as tools and clothing, is not a “record”); Blanche v. Winn, No. 90-894, (Sup. Ct., Cayuga Cty., Sept. 17, 1990) (telephone bills and clothing were not “records”); Steele v. Dep’t of Health, 119 Misc.2d 963, 464 N.Y.S.2d 925 (Sup. Ct. 1983) (handwritten field notes and monitoring draft reports are available records); Szikszay v. Buelow, 107 Misc.2d 886, 436 N.Y.S.2d 558 (Sup.Ct. 1981) (computer format of information does not alter right of access); Babigian v. Evans, 104 Misc. 2d 140, 427 N.Y.S.2d 688 (Sup. Ct. 1980), aff’d, 97 A.D.2d 992, 469 N.Y.S.2d 834 (lst Dep’t 1983) (access to information in a computer cannot be restricted merely because it is not in printed form); Warder v. Board of Regents, 97 Misc.2d 86, 410 N.Y.S.2d 742 (Sup. Ct. 1978) (notes of Regents meetings taken by Secretary to Board of Regents are “records”); Zaleski v. Hicksville Union Free Sch. Dist., N.Y.L.J., Dec. 27, 1978 (Sup. Ct., Nassau Cty., 1978) (tape recordings of open meetings are accessible). Cf. Pennington v Clark, 194 Misc. 2d 381, 755 N.Y.S.2d 195, 2002 N.Y. Misc. LEXIS 1737 (N.Y. Sup. Ct. 2002) (videotape of a news broadcast is not a “record”).
Records contained in an indexed computer data base may be protected by the New York State Personal Privacy Protection Law (“PPPL”) which was enacted to protect against the danger to personal privacy posed by modern computerized data collection and retrieval systems. See Public Officers Law article 6-A (McKinney); Spargo v. New York State Commission on Government Integrity, 140 A.D.2d 26, 531 N.Y.S.2d 417 (3d Dep’t 1988).
From the 2008 amendments, a new section 87(5) requires an agency to “provide records on the medium requested . . .if the agency can reasonably make such copy.” This clarifies that agencies are required to make records available economically on computer tapes or disks, rather than photocopying or transferring data onto computer tapes or disks when printing the requested records would result in a copious and costly use of paper. It also specifies that records provided in a computer format shall not be encrypted. N.Y. Pub. Off Law § 89(5)(a).
The Public Records Law defines “public records” as including all “documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics.” G.S. § 132-1. Persons requesting copies of public records may elect to obtain them in any and all media in which the public agency is capable of providing them. G.S. § 132-6.2.
As noted above, record “means recorded information of any kind, regardless of the physical form or characteristic by which the information is stored, recorded, or reproduced, which is in the possession or custody of a public entity or its agent and which has been received or prepared for use in connection with public business or contains information relating to public business.” N.D.C.C. § 44-04-17.1(16).
Additionally, “[a]utomation of public records must not erode the right of access to those records.” N.D.C.C. § 44-04-18(3). “As each public entity increases its use of and dependence on electronic recordkeeping, each agency must provide reasonable public access to records electronically maintained and must ensure that exempt or confidential records are not disclosed except as otherwise permitted by law.” Id.
A "record" includes "any document, device, or item, regardless of physical form or characteristic," including those “created, generated, sent, communicated, received, or stored by electronic means.” Ohio Rev. Code §§ 149.011(G), R.C. 1306.01(G).
A public record includes microfilm, video or audio tape, email, and electronically stored documents. State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, 148 Ohio St.3d 433, 71 N.E.3d 258, 2016-Ohio-7987 (police dash-camera video recordings documenting police chase and subsequent arrest); State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St. 3d 372, 383, 899 N.E.2d 961, 973, 2008-Ohio-6253, ¶ 41 (deleted emails); State ex rel. Carr v. London Corr. Inst., 144 Ohio St.3d 211, 41 N.E.3d 1203, 2015-Ohio-2363 (emails);Lorain County Title Co. v. Essex, 53 Ohio App. 2d 274, 373 N.E.2d 1261 (1976)(microfilm); State ex rel. Harmon v. Bender, 25 Ohio St. 3d 15, 494 N.E.2d 1135 (1986)(videotapes of contempt trial); State ex rel. Multimedia Inc. v. Whalen, 48 Ohio St. 3d 41, 549 N.E.2d 167 (1990)(audiotapes of officer-involved shooting); State ex rel. Slagle v. Rogers, 103 Ohio St. 3d 89, 814 N.E.2d 55, 2004-Ohio-4354 (audiotapes of a suppression hearing); State ex rel. Data Trace Info. Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131 Ohio St. 3d 255, 263, 963 N.E.2d 1288, 1297, 2012-Ohio-753, ¶ 41(digital copies of deeds and other real estate records kept by county recorder).
Public offices are entitled to deny requests that qualify as too broad, despite amorphous judicially-created criteria for judging whether a request is too broad. But public offices must “organize and maintain public records in a manner that they can be made available for inspection or copying” and “provide the requester with an opportunity to revise the request by informing the requester of the manner in which records are maintained by the public office and accessed in the ordinary course of the public office's or person's duties.” Ohio Rev. Code § 149.43(B)(2). Plus, for electronically-stored records, public offices must “keep and make readily available to the public the machines and equipment necessary to reproduce the records and information in a readable form.” Ohio Rev. Code § 9.01.
Where a public record is recorded electronically or on some medium other than paper, a requester has a right to choose to receive a copy of the record on paper, upon the same medium on which it is kept by the public office, or on some other medium upon which the public office can reasonably duplicate the record. Ohio Rev. Code § 149.43(B)(6); State ex rel. Dispatch Printing Co. v. Morrow Cty. Prosecutor's Office, 105 Ohio St. 3d 172, 824 N.E.2d 64 (2005) (public entitled to 911 audiotape, not just a transcript).
More recent cases have analyzed relevant questions about new types of media (e.g., text messages) without specifically finding whether the content qualified as public record. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 894 N.E.2d 686, 2008-Ohio-4788, ¶ 19 (declining to decide whether text messages sent and received by a state representative were public record); State ex rel. Cincinnati Enquirer v. Deters, 148 Ohio St. 3d 595, 600, 71 N.E.3d 1076, 1081, 2016-Ohio-8195, ¶ 21 (analyzing whether requested release of police body camera footage was prompt without explicitly adjudicating that the footage was public record).
Recorded public information is supposed to be disclosed even if not organized in the format requested. State ex rel. Cater v. City of N. Olmsted, 69 Ohio St. 3d 315, 631 N.E.2d 1048 (1994) (relator who requested list of police aptitude scores was entitled to the underlying documents even when the requested list did not exist).
All physical forms of records are available for public inspection. An agency may not require execution of a contract before allowing access to records in paper form. 1999 OK AG 55. E-mails in either electronic form or paper form are subject to the Act. 2001 OK AG 7. The statutory definition includes any method of memorializing information. Fabian & Assoc., PC v. State ex rel. Dep’t of Public Safety, 2004 OK 67.
ORS 192.311(7) (formerly ORS 192.410) specifies that a “writing” includes “handwriting, typewriting, printing, photographing and every means of recording, including letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, files, facsimiles or electronic recordings.” This means that all information stored on computer or in microfiche is included. Public records may be in “machine readable or electronic form.” ORS 192.324(3) (formerly ORS 192.440(3)). E-mail is a public record, including deleted e-mail.
The Attorney General has taken the position that while public bodies are not required to develop or acquire new or additional software or programs in response to a public records request, they are required to use available software and programs to retrieve available information, even if the report or document has not existed in that form before. Attorney General’s Manual, § I.C.1.
The Law’s definition of “record” includes records in any form, including records containing “information stored or maintained electronically and a data-processed or image-processed document.” 65 Pa. Stat. Ann. § 67.102. Moreover, it states: “A record being provided to a requester shall be provided in the medium requested if it exists in that medium; otherwise, it shall be provided in the medium in which it exists.” 65 Pa. Stat. Ann. § 67.701(a). But the Law cautions that “[n]othing in this act shall be construed to require access to any computer either of an agency or individual employee of an agency.” 65 Pa. Stat. Ann. § 67.701(b).
Records as defined in the act are subject to the act "regardless of physical form or characteristics." S.C. Code Ann. § 30-4-20(c). Local governments are attempting to make a distinction between "records" and "data" in an effort to limit public access to tax map and other property information maintained as a part of a "geographic information system" or GIS. The Supreme Court of South Carolina has authorized public bodies to obtain copyrights and restrict commercial use of “specially-created data” indicating that data are public records subject to the Act. Seago v. Horry County, 663 S.E.2d 38 (S.C. 2008).
Records covered by the Act include “all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, sound recordings, or other materials regardless of physical form” made or received pursuant to law or ordinance or in connection with the transaction of official business by a governmental agency. T.C.A. § 10-7-301(6). A records custodian will be required to disclose certain information maintained in a computer database even though it does not maintain the information in the exact format in which the request has been made. The Tennessean v. Electric Power Board of Nashville, 979 S.W.2d 297 (Tenn. 1998); See Real Estate Search System Inc. v. Baltimore, 8 TAM 5-13 (Tenn. Ct. App. December 27, 1982) ("raw data" in the form of computer printouts are available under the Act).
Only records are covered by the Act: A requester cannot demand the government agency to provide information. Shabazz v. Campbell, 63 S.W.3d 776 (Tenn. Ct. App. 2001).
"[T]he form in which a governmental body stores information does not affect its availability." Tex. Att'y Gen. ORD-461 (1987). Meeting tapes are public records (Tex. Att'y Gen. ORD-491 (1988), as are computer tapes. Tex. Att'y Gen. ORD-352 (1982); see also § 552.002(c). Section 552.002(b) provides that the media on which public information is recorded include: (1) paper; (2) film; (3) a magnetic, optical, or solid state device that can store an electronic signal; (4) tape; (5) Mylar; (6) linen; (7) silk; and (8) vellum.
Section 552.002(c) adds that the "general forms in which the media containing public information exist include a book, paper, letter, document, printout, photograph, film, tape, microfiche, microfilm, photostat, sound recording, map, and drawing and a voice, data, or video representation held in computer memory."
“Record” includes “a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics . . . that is prepared, owned, received, or retained by a governmental entity or political subdivision.” Utah Code § 63G-2-103(22)(a). “Record” does not include: (i) a personal note or communication prepared or received by an employee or an officer of a governmental entity: (A) in nongovernmental capacity; or (B) that is unrelated to the conduct of the public’s business; (ii) temporary drafts prepared for the originator’s personal use or for the personal use of the originator’s supervisor; (iii) materials that are legally owned by an individual; (iv) copyrighted or patented material, where the patent or copyright is owned by someone other than the government; (v) proprietary software; (vi) junk mail; (vii-viii) books or other materials contained in public libraries; (ix) daily calendars or personal notes; (x) computer programs purchased or developed for the use of the government entity; (xi) notes or internal memoranda prepared as a part of the deliberative process by a member of the judiciary, by an administrative law judge, by a member of the Board of Pardons, or by a member of any other body charged by law with performing a quasi-judicial function; (xii) government employees’ mobile telephone numbers, provided the employee has designated at least one public business telephone number; (xiii) certain information provided by the Public Employee’s Benefit and Insurance Program to a county; (xiv) certain information that an owner of unimproved property provides to a local entity; and (xv) video or audio recordings, or transcripts, of interviews conducted at the Children’s Justice Center. See id. § 63G-2-103(22)(b).
The Freedom of Information Act applies to any conceivable physical form of "documentary materials":
'Writing' includes any books, papers, maps, photographs, card, tapes, electronic mail, recordings or other documentary materials regardless of physical form or characteristics.
W. Va. Code § 29B-1-2(5). A 1992 FOIA amendment added that "[i]f the records requested exist in magnetic, electronic or computer form, the custodian of the records shall make such copies available on magnetic or electronic media, if so requested." § 29B-1-3(3). See Veltri v. Charleston Urban Renewal Auth., 178 W. Va. 669, 363 S.E.2d 746 (1987) (ordering public body to make a tape recording of its open meeting available for public listening and copying under the FOIA).
The statutory term “record” includes all such material, “regardless of physical form or characteristics,” including but not limited to “handwritten, typed or printed pages, maps, charts, photographs, films, recordings, tapes (including computer tapes), computer printouts and optical discs.” Wis. Stat. § 19.32(2). “[A]s modern society rapidly adds to its sophisticated methods of data collection, it inevitably filters ‘the human mouth, tongue, [and] vocal cords’ through computer systems. A potent Open Records Law must remain open to technological advances so that its statutory terms remain true to the law’s intent.” State ex rel. Milwaukee Police Ass'n v. Jones, 237 Wis. 2d 840, 852, 615 N.W.2d 190, 196 (Wis. Ct. App. 2000) (holding that police department must make digital audio tape of 911 call available for inspection and copying, and that producing analog tape alone is not sufficient compliance with request).
The Open Records Law extends to all material on which information is recorded or preserved, “regardless of physical form or characteristics,” including “visual or electromagnetic information.” Wis. Stat. § 19.32(2). Further, public records custodians are required to furnish “facilities comparable to those used by its employees to inspect, copy and abstract the record during established office hours.” Wis. Stat. § 19.35(2). Thus, if a computer terminal is needed to inspect a record, and terminals are available to the public employees, the public custodian must, at its option, either provide a print-out of the information under Wis. Stat. § 19.35(1)(e), or make a terminal available to the requester.