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5. Electronic records (e.g., databases, metadata)

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  • Alabama

    The Alabama Public Records Law provides access to "public writings," without more definition, but recent statutes, case law, and attorney general opinions have recognized that the term includes electronic records. See, e.g., Ala. Code § 22-9A-21(f) (1997) ("The [nonrestricted public birth] records may be made available for viewing in photographic, digital, electronic, or other suitable format as provided for by rules of the [State Board of Health]."); Birmingham News Co. v. Perry, 21 Media L. Rep. (BNA) 2125 (Cir. Ct. of Montgomery County, Ala., July 22, 1993) (Alabama Department of Public Safety ordered to make computer databases of Department available to provide access to motor vehicle records in the databases) (as of Sept. 13, 1997, access to MVRs is governed by 18 U.S.C. §  2721); 227 Op. Att'y Gen. Ala. 42 (1992) (redacted data from fire district computer database due to be disclosed); 217 Op. Att'y Gen. Ala. 29 (Nov. 17, 1989) and 197 Op. Att'y Gen. Ala. 21 (Nov. 16, 1984) (computer printout of executions and sales is "well-bound book" as required by statute); 209 Op. Att'y Gen. Ala. 29 (Nov. 4, 1987) ("The reasoning applicable to documentary records in [the tax assessor's] office also applies to information provided by your office through the use of computers."); see also Ala. Att’y Gen. Opp. 157 (June 4, 1998); Ala. Att’y Gen. Opp. 108 (April 1, 2004) (finding computerized mugshots are public records).

    The trial judge in Perry articulated one of the primary reasons that computerized information is recognized as a "writing" for purposes of the Public Records Law, as follows:

    Certainly, the Department was able to carry out its business without the aid of computers before such technology was available. However, the Court recognizes that computers have added a great amount of value to our public records, and that currently the Department generates the MVRs by computers. Therefore, without the aid of the computer data base, citizens would not, as a practical matter, have access to all of the information compiled.

    21 Media L. Rep. (BNA) at 2126.

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  • Alaska

     

    The definition of public records encompasses electronic records, though it does not refer to them specifically as such. It includes all items "regardless of format or physical characteristics" with the specific exception of "proprietary software programs." The law also provides for dissemination through a state-maintained internet site of postings by state agencies called the Alaska Online Public Notice System. 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.

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  • Arizona

    (This section is blank. See the subpoints below.)

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  • Arkansas

    Until its amendment in 2001, the FOIA did not expressly mention electronic records. However, it applied to “data compilations in any form,” and this provision reached electronic records. See, e.g., Blaylock v. Staley, 293 Ark. 26, 732 S.W.2d 152 (1987). See also Ark. Op. Att’y Gen. No. 99-018 (electronically stored e-mail messages are public records), 97-115 (FOIA applies to “computerized information”). In 1999, the General Assembly created the Electronic Records Study Commission to study public access to electronic information and recommend amendments to the FOIA for consideration by the legislature in 2001. The bill drafted by the ERSC formed the basis for Act 1653 of 2001, which included “electronic or computer-based information” within the FOIA’s definition of public record, Ark. Code Ann. § 25-19-103(5)(A), and made other changes to facilitate public access to data in electronic form. ’

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  • California

    The fact that public records may be stored in a computer does not affect their status as public records. Cal. Gov't Code § 6254.9(d). 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. This statute, effective January 1, 2001, 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 Sierra Club v. Superior Court, 57 Cal. 4th 157, 165, 158 Cal. Rtpr. 3d 639, 302 P.3d 1026 (2013) (discussing provision); see, e.g., Commission on Peace Officers Standards and Training v. Superior Court, 42 Cal.4th 278, 288 n.3, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007) (noting that information stored in commission’s computer database qualified as “writing” within meaning of CPRA); County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 89 Cal. Rptr. 3d 374 (2009) (allowing for disclosure of county’s GIS basemap data); Cal. Ops. Att'y. Gen. 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 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 electronic information in a non-native format to facilitate redaction and anonymizing to protect privacy interests even if the native format in which the data is 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).

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  • Colorado

    Records maintained in electronic or digital format are declared to be "public records." Colo. Rev. Stat. § 24-72-202(7).

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  • Connecticut

    Yes. The agency shall provide the requested information on "paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made." Conn. Gen. Stat. §1-211(a).

    Based on FOIA's legislative history, the Connecticut Supreme Court has construed Conn. Gen. Stat. §1-211(a) and §1-211(b) to require an agency to perform formatting or programming functions or to contract with an outside entity to perform such tasks in order to comply with a request for electronic records. Hartford Courant Co. v. FOIC, 261 Conn. 86, 93-94, 801 A.2d 759 (2002). If an agency cannot itself comply with a request for a specific format because it does not have the technological capability to separate exempt from nonexempt data and the requester is not satisfied with an alternate medium for satisfying the request, the agency is required to offer to contract the job out and charge the requester for cost of doing so. Id. at 94-95.

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  • Delaware

    The Delaware Freedom of Information Act does not specifically address access to electronic records. However, the Act defines "public records" to include all information "regardless of the physical form or characteristic by which such information is stored, recorded or reproduced." 29 Del. C. § 10002(g). Thus, the Act reaches public records held in electronic forms, and in fact fields of electronic information have been disclosed to requesting parties.

    The Delaware Attorney General has addressed two potential problems with public access to electronic records. First, public access to computer databases that contain exempt information (such as criminal records or information the disclosure of which would violate the individuals' privacy) will not be granted. The Attorney General has recommended to one department that when designing such computer systems, the database should be segregable to permit public access to those parts not exempted by the Act or otherwise. See Del. Op. Att'y Gen., No. 91-I013 (Apr. 17, 1991). Second, a request for access to a database may present an administrative burden to screen the database for exempt material. The request may be denied as a result.

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  • Georgia

    The Act specifically defines public record to include "computer based or generated information,” “data” and “data fields,” O.C.G.A. § 50-18-70(b)(2).

    An agency’s use of electronic record-keeping systems “must not erode the public’s right of access.” § 50-18-71(f). In the case of electronic records, data and data fields, the Act provides that agencies shall produce electronic copies or, if the requester prefers, printouts of electronic records or data from data base fields that the agency maintains using the computer programs that the agency has in its possession. Id.

    An agency shall not refuse to produce such electronic records, data or data fields on the grounds that exporting data or redaction of exempted information will require inputting range, search, filter, report parameters, or similar commands or instructions into an agency's computer system so long as such commands or instructions can be executed using existing computer programs that the agency uses in the ordinary course of business to access, support, or otherwise manage the records or data. Id.

    A requester may request production in the format in which such data or electronic records are kept by the agency, or in a standard export format such as a flat file electronic American Standard Code for Information Exchange (ASCII) format, if the agency’s existing computer programs support such an export format. Id. (providing that in such instance, the data or electronic records shall be downloaded in such format onto suitable electronic media by the agency). Id.

    In lieu of providing separate printouts or copies of records or data, an agency may provide access to records through a website accessible by the public. However, if an agency receives a request for data fields, it shall not refuse to provide the responsive data on the grounds that the data is available in whole or in its constituent parts through a website if the requester seeks the data in the electronic format in which it is kept. § 50-18-71(h) (also providing that if an agency contracts with a private vendor to collect or maintain public records, the agency shall ensure that the arrangement does not limit public access to those records).

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  • Idaho

    Idaho Code § 74-102(15) provides that “[n]othing contained herein shall prevent a public agency or independent body corporate and politic from providing a copy of a public record in electronic form if the record is available in electronic form and if the person specifically requests an electronic copy.”

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  • Indiana

    Indiana Administrative Rule 9(D), the “General Access Rule,” applies to all court records, “regardless of the manner of creation, method of collection, form of storage, or the form in which the record is maintained.”

    When certain records are available in electronic form—including judgments, orders, and decrees—Courts “should FOI” to make them remotely accessible. Id. 9(E). A public agency that maintains public records in an electronic data storage system must make “reasonable efforts” to provide the requestor “a copy of all disclosable data contained in the records on paper, disk, tape, drum, or any other method of electronic retrieval if the medium requested is compatible with the agency’s data storage system.” Ind. Code § 5-14-3-3(d).

    Further, the definition of “public record” includes information generated on “magnetic or machine readable media, electronically stored data, or any other material, regardless of form or characteristics.” Ind. Code § 5-14-3-2(r). The statute was amended in 1993 and 1995 to provide “enhanced access” to electronically stored information if the public agency provides access in that manner. Ind. Code § 5-14-3-3.5. “Enhanced access” is the inspection of a public record (a) by means of an electronic device other than one provided in the office of the public agency, or (b) which requires compiling or creating a list that doesn’t result in permanent electronic storage of that information. Ind. Code § 5-14-3-2(f). A state agency or public agency “may or may not” provide enhanced access solely at its discretion. Ind. Code § 5-14-3-3(c)(1); see also Ind. Code § 5-14-3-3.6(b) (“As an additional means of inspecting and copying public records, a public agency may provide enhanced access to public records maintained by the public agency.”); § 5-14-3-3.5(a)-(b) (authorizing the same for a state agency, as defined in Ind. Code § 4-13-1-1).

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  • Iowa

    Public records include all records, documents, tape, or other information, stored or preserved in any medium. Iowa Code § 22.1(3); see United States v. Story Cty., 28 F. Supp. 3d 861, 871 (S.D. Iowa 2014) (noting there is no difference between cases that “were stored in electronic format as opposed to having been stored in hard copy format”).

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  • Kansas

    “Public record” means any recorded information regardless of form or characteristics. K.S.A. 45-217(g)(1).

    Under the previous open records law, computer data is a “record.” State ex rel. Stephan v. Harder, 230 Kan. 573, 582 (1982).  Attorney general opinions interpreting KORA concur.  See Kan. Att’y Gen. Ops. 94-104; 89-106; 88-152; and 87-137.

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  • Kentucky

    Since 1994, the Kentucky Open Records Act has treated all public records similarly, regardless of their format. A requester is entitled to obtain a hard copy of a public record or an electronic file if available. As with all public records in Kentucky, a requester intending to use the information for commercial purposes may face a higher fee.

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  • Louisiana

    "Information contained in electronic data processing equipment" is specifically included in the definition of "public records." La. Rev. Stat. Ann. § 44:1(A)(2). Electronic information therefore is subject to the general provisions of the Public Records Act. See Ops. Att'y Gen. 98-366 (records stored via electronic imaging system); 90-576 (computer records of 911 calls subject to Public Records Act), 90-576 (computer information generated by office of assessor is subject to Public Records Act), 90-398 (computer information regarding student records subject to Public Records Act). However, privacy issues may be raised. See Ops. Att'y Gen. 01-155 (monitoring and electronic recording of board members' private computer equipment under a public records request would violate individual members' right to privacy).

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  • Massachusetts

    The Massachusetts Public Records Law “clearly applies to government records generated, received, or maintained electronically.” SPR Bulletin No. 4-96 (June 7, 1996). A records custodian must furnish “copies of non-exempt portions of computerized information at the cost of reproduction, unless otherwise provided by law.”  Guide to Massachusetts Public Records, Law (Sec’y of State, rev. March 2009), at 27.

    There is no statutory public entitlement to online access to Massachusetts government records, although many records are currently available online. Nor is there any general statute requiring or authorizing the keeping of records electronically, although the practice is clearly recognized in specific statutes. See e.g., G.L. c. 66A, § 1 (defines and anticipates use of "automated personal data system"); c. 90, § 30A (limits access to computer terminals under control of Registrar of Motor Vehicles). See also 950 CMR 32.06(b) (sets fees for copies of city and town "street list," computer tapes and mailing labels).

    Many state and municipal records are now automated, and in some instances municipal officials feed information directly into state-owned computers (e.g., street lists, voter lists, juror lists). Whether a particular record or type of record is available in tape, computer disc or other automated form is usually most easily discovered by direct inquiry of the custodian. Questions relating to the maintenance and disposal of government records (including electronic records) should be directed to the Records Management Unit of the Massachusetts State Archives.

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  • Mississippi

    Electronic records are documentary materials that are subject to the act.

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  • Montana

    Electronic information is treated like printed information. Mont. Code Ann. § 2-6-1006(13).

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  • Nebraska

    “Data which is a public record in its original form shall remain a public record when maintained in computer files.” Neb. Rev. Stat. §84-712.01(1). Requesters can obtain records in the form and media in which they are maintained, including “electronic data, discs [and] tapes . . . .” Id. If a record is maintained on the custodian’s website, the custodian need not provide a copy of it so long as he provides “the location of the public record on the internet to the requester.” Id. If a requester does not have reasonable access to the internet due to lack of computer, lack of internet availability or inability to use a computer or internet, the custodian must produce copies for the requester. Id.

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  • Nevada

    The NPRA applies to electronic records. NAC 239.861.

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  • New Mexico

    Electronic mail is available under the broad definition of public record contained in NMSA 1978 Section 14-2-6(G) (2013), which includes “all documents… recordings and other materials, regardless of their physical form.” See generally American Civil Liberties Union of N.M. v. Duran, 2016-NMCA-063 (”Email correspondence by state employees constitute a public record as defined in the statute.”); Brenner v. Bd. of Cty. Comm’rs, No. 18-478 KG/KBM, 2019 WL 1060812 (D.N.M. 2019).

    New Mexico has been silent regarding whether a public social media post is public record. However, the contents of an officeholder’s campaign social media website are not public records of a public body within the scope of IPRA. Pacheco v. Hudson, 2018-NMSC-022, ¶¶ 34-36.

    The Public Records Act states that information contained in information systems or computer databases shall be a public record.  NMSA 1978 §§ 14-3-15.1 and 14-3-18(C).  There is no statutory or case law indicating specifically whether software is included.

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  • North Dakota

    The North Dakota Century Code states, “Automation of public records must not erode the right of access to those records.” N.D.C.C. § 44-04-18(3). As public entities increase their use of and dependence on electronic recordkeeping, they 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. N.D.C.C. § 44-04-18(3).

    Furthermore, public entities may not enter into a contract for the creation or maintenance of a public records database if that contract impairs the ability of the public to inspect or copy the public records of an agency, including public records online or stored in an electronic recordkeeping system used by the agency. N.D.C.C. § 44-04-18(3).

    An electronic copy of a record must be provided upon request at no cost, other than the standard costs allowed, unless the nature or volume of the public records requested to be accessed or provided requires extensive use of information technology resources. N.D.C.C. § 44-04-18(3). In that case, the agency may charge no more than the actual cost incurred for the extensive use of information technology resources incurred by the public entity. N.D.C.C. § 44-04-18(3). “Extensive” is defined as a request for copies of electronic records which take more than an hour of information technology resources to produce. N.D.C.C. § 44-04-18(3).

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  • Ohio

    To be a "public record," the recorded information must first be a "record" under R.C. 149.011(G). That provision defines a "record" as "including an electronic record" as defined in another statute, Ohio Rev. Code § 1306.01.

    Ohio Rev. Code § 1306.01 defines "electronic record" as "a record created, generated, sent, communicated, received, or stored by electronic means."

    So if a public office keeps recorded information that qualifies as an "electronic record," that information would be available to the public to the same extent it would be if the public office stored the information on paper.

    Another statute, Ohio Rev. Code § 9.01, authorizes public offices to store information electronically as well as by other means, including electronically. Section 9.01 requires all public offices using non-paper media for records storage to "keep and make readily available to the general public the machines and equipment necessary to reproduce the records and information in a readable form." Ohio Rev. Code § 9.01.

    The Ohio Supreme Court's first thorough analysis of applying the Public Records Act to electronic records was in 1992, when it ordered the City of Cleveland to make copies of magnetic computer tapes containing data about how long it took for police to respond to calls for service. State ex rel. Magolius v. City of Cleveland, 62 Ohio St.3d 456, 584 N.E.2d 665 (1992).

    Since then, the court has routinely applied the Public Records Act to order public offices to allow the public to inspect electronically-stored records. E.g., State ex rel Data Trace Info. Servs. LLC v. Cuyahoga Cty Fiscal Officer, 131 Ohio St.3d 255, 963 N.E.2d 1288, 2012-Ohio-753 (electronically-stored digital replicas of deeds and similar real estate records); State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 899 N.E.2d 961, 2008-Ohio-6253 (deleted emails); see also State ex rel. Bott Law Grp., L.L.C. v. Ohio Dep't of Nat. Res., Ohio App. 10th Dist. No. 12AP-448, 2013-Ohio-5219, ¶ 51 (Nov. 26, 2013) (ordering public office to “search its journal for responsive e-mail correspondence that were deleted in violation of its records retention policy, and … make reasonable efforts to identify all responsive records stored on the shared servers or on the personal computers").

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  • Oklahoma

    Included in the definition of "record" is "data files created by or used with computer software, computer tape, disk and record . . . regardless of physical form or characteristic." 51 O.S. § 24A.3.1. Excluded from this definition of record is "computer software."

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  • South Carolina

    recordings, or other documentary materials regardless of physical form or characteristics," which has been construed to include records in electronic media. S.C. Code Ann. § 30-4-20(c). Someone has the “right to inspect, copy, or receive an electronic transmission of any public record of a public body,” except as provided by a lawful exemption from disclosure. S.C. Code Ann. § 30-4-30(A)(1). A public body though “is not required to create an electronic version of a public record when one does not exist to fulfill a records request.” S.C. Code Ann. § 30-4-30(A)(2). The Supreme Court of South Carolina has held that a public body may obtain a copyright on “specially-created digital data” to prevent commercial use by recipients, but limited the reach of that ruling to restrict subsequent commercial use by noting that the public must be given access to the data subject to the copyright. Seago v. Horry County, 663 S.E.2d 38 (S.C. 2008).

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  • Texas

    In 2013, the Legislature deliberately extended the Act to cover electronic communications.  Section 552.002(a-2) now states: “[t]he definition of ‘public information’ . . . applies to and includes any electronic communication created, transmitted, received, or maintained on any device if the communication is in connection with the transaction of official business.”

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  • Vermont

    A public record includes “any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business.”  1 V.S.A. § 317(b) (emphasis added).

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  • West Virginia

    (This section is blank. See the subpoints below.)

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  • Wisconsin

    A custodian of public records is not required "to create a new record by extracting information from existing records and compiling the information in a new format." Wis. Stat. § 19.35(1)(L). An authority is not required to give requesters direct “access to an authority’s electronic databases to examine them, extract information from them, or copy them.” WIREdata, Inc. v. Village of Sussex, 2008 WI 69, ¶ 97, 310 Wis. 2d 397, 751 N.W.2d 736; see Media Placement Servs., Inc. v. Wis. Dep’t of Transp., 2018 WI App 34, 382 Wis. 2d 191, 913 N.W.2d 224 (news media not entitled to free access to government web portal).

    Wisconsin has not addressed this issue, but metadata likely fits the definition of “record” under Wis. Stat. § 19.32(2).

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  • Wyoming

    As previously mentioned, the statute specifically includes electronic records. Wyo. Stat. § 16-4-201(a)(v). A subsection of the Act, Wyo. Stat. § 16-4-402(d), specifically addresses records which are kept solely or primarily in an electronic format. The section requires an agency to extract information, or create a new record or document from a computer database upon request unless the creation of the new record or the compilation of the information would impair the agency's ability to fulfill its duties. The custodian may charge for the cost of creating the new record.  Further, the custodian may charge for the search and retrieval costs of providing an electronic record for inspection. Cheyenne Newspapers, Inc. v. Laramie Cty. Sch. District No. 1. 2016 WY 113.

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