B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)
Agencies are permitted by the Public Records Act to withhold records or information compiled for law enforcement purposes only to the extent that the production of the law enforcement records or information could reasonably be expected to interfere with enforcement proceedings, AS 40.25.120(a)(6)(A), or otherwise comes within the exemptions specified by the Act. This exemption would often preclude access to records of ongoing investigations. Due process considerations, or other rules governing specific investigations, may provide a person or entity engaged in an ongoing dispute or investigation with a public agency a right to obtain records. This may implicate AS 40.25.122, which provides that access to records of an agency by one who is engaged in litigation or enforcement proceedings involving the agency should seek disclosure in accordance with the rules of procedure applicable in a court or an administrative adjudication. But see, Copeland v. Ballard, 210 P.3d 1197 (Alaska 2009) (DEC held to have violated intervenor appellants’ due process rights under Alaska Const. art. I, §7, by predicating their request for relevant records on completion of those records by the agency, and by dismissing them from the appeal when they did not pay preparation costs for the agency's record), and Basey v. State, Department of Public Safety, 408 P.3d at 1179 (federal government is not a “public agency,” as that term is defined by the PRA, and exemption does not apply in a case brought against agency officials sued “in their individual capacities” without naming the agency as a defendant).
Agency records are presumptively open unless subject to an exemption as suggested in the preceding section, and if the justification for withholding is no longer present—for example, if the risk of interfering with an ongoing investigation is eliminated or minimized once an investigation is closed—the records should be made available absent another applicable privilege or exemption.
“[T]he records of the Industrial Commission’s proceedings, orders and awards must be considered as public records[,] . . . [b]ut information which is not collected to serve as a memorial of an official transaction or for dissemination of information is private except as to a claimant or parties” as defined by statute. Indus. Comm’n v. Holohan, 97 Ariz. 122, 126, 397 P.2d 624, 627 (1964).
When investigating minimum wage violations, all payroll or other business records obtained by the Industrial Commission or a law enforcement officer will be kept confidential, unless required by the prosecution. A.R.S. § 23-364(D).
Both Section 6254(a), governing preliminary drafts and interagency or intra-agency memoranda, and Section 6255’s public interest balancing test encompassing through case law a deliberative process exemption are potential impediments to access to administrative enforcement records reflecting pre-decisional thought processes of the agency. Cal. Gov’t Code §§ 6254(a), 6255; see generally Citizens for a Better Environment v. Dept. of Food & Agric., 171 Cal. App. 3d 704, 217 Cal. Rptr. 504 (1985) (agency did not meet its burden under Section 6254(a) to show how the public’s interest in nondisclosure clearly outweighed the public’s interest in disclosure of reports on county’s enforcement of pesticide-use laws).
While Sections 6254(a) and 6255 may still be invoked over pre-decisional, deliberative documents, records reflecting final agency action, records considered in reaching a final determination, or records reflecting public employee wrongdoing arguably are public.
Open. Upon conclusion of a civil or administrative investigation that is closed because no further investigation, discipline, or other agency response is warranted, all records not exempt pursuant to any other law are open to inspection. Colo. Rev. Stat. § 24-72-204(2)(a)(IX)(B). Records of ongoing civil or administrative investigations conducted by a state or agency in furtherance of their statutory authority to protect the public health, welfare, or safety may be withheld as contrary to the public interest, unless the investigation focuses on a person or persons inside of the investigative agency. Colo. Rev. Stat. § 24-72-204(2)(a)(IX)(A).
District of Columbia
Under D.C. Code § 2-534 (a)(3), "[i]nvestigatory records compiled for law-enforcement purposes" may be exempt from disclosure, "only to the extent that production of such records" could interfere with enforcement proceedings, deprive a person of an impartial adjudication, invade personal privacy, disclose a confidential source, disclose investigative techniques, or endanger the life or physical safety of law enforcement personnel. See also Fraternal Order of Police, Metro. Labor Committee v. D.C., 82 A.3d 803, 815 (D.C. 2014) (holding that records concerning use of breathalyzer were exempt only if "(1) the documents requested . . . [were] compiled for law enforcement purposes, and (2) disclosure of those documents would interfere with enforcement proceedings.").
The rules for active and closed investigations have not been specifically addressed.
Administrative enforcement records are subject to the Act’s disclosure requirements unless specifically unless specially exempted by statute. Initial incident reports are subject to immediate disclosure. O.C.G.A. § 50-18-72(a)(4). Pending investigation records are exempted from disclosure. Id. Records consisting of material obtained in investigations of complaints against public officers or employees are exempt from disclosure until ten days after being presented to the agency or an officer for action or the investigation is otherwise concluded or terminated. § 50-18-72(a)(8). Investigative records are otherwise exempt from disclosure until all direct litigation regarding the investigation has become final or otherwise terminated. § 50-18-72(a)(4).
Hawaii’s occupational safety and health law, Haw. Rev. Stat. § 396-14, provides that certain records and reports created by the Department of Labor and Industrial Relations (“DLIR”) regarding the administration and enforcement of occupational safety and health laws cannot be used as evidence or as discovery in civil actions growing out of any matter mentioned in the record, determination, statement, or report. Because this information would not be discoverable during civil actions, the general public is similarly barred access to this information pursuant to Haw. Rev. Stat. § 92F-13(4), which provides an exception to disclosure for government records that are protect from disclosure under state or federal law. Accordingly, the DLIR is not required to disclose records of any determinations in Haw. Rev. Stat. § 396-11 and/or an informant’s identity and information supplied to DLIR in connection with an investigation of alleged industrial law violations. Disclosure of Occupational Safety Records, OIP Op. Ltr. 95-17 (July 26, 1995).
Per HRS § 92F-22(4), the Regulated Industries Complaints Office, Department of Commerce and Consumer Affairs may withhold access to its investigative report and other related materials where an administrative proceeding is pending. RICO Investigative Records, OIP Op. Ltr. No. 09-03 (Sept. 25, 2009).
Regarding closed investigations, there is no authority directly on point, but OIP’s opinions have narrowly construed the exception to disclosure for materials relating to an open investigation. See, e.g., RICO Investigative Records, OIP Op. Ltr. No. 09-03 (Sept. 25, 2009). This suggests that materials relating to completed investigations would be subject to disclosure.
The worker’s compensation records of the Idaho industrial commission are generally exempt, except that the industrial commission shall make such records available:
(a) To the parties in any worker’s compensation claim and to the industrial special indemnity fund of the state of Idaho; or
(b) To employers and prospective employers subject to the provisions of the Americans with disabilities act, 42 U.S.C. 12112, or other statutory limitations, who certify that the information is being requested with respect to a worker to whom the employer has extended an offer of employment and will be used in accordance with the provisions of the Americans with disabilities act, 42 U.S.C. 12112, or other statutory limitations; or
(c) To employers and prospective employers not subject to the provisions of the Americans with disabilities act, 42 U.S.C. 12112, or other statutory limitations, provided the employer presents a written authorization from the person to whom the records pertain; or
(d) To others who demonstrate that the public interest in allowing inspection and copying of such records outweighs the public or private interest in maintaining the confidentiality of such records, as determined by a civil court of competent jurisdiction; or
(e) Although a claimant’s records maintained by the industrial commission, including medical and rehabilitation records, are otherwise exempt from public disclosure, the quoting or discussing of medical or rehabilitation records contained in the industrial commission’s records during a hearing for compensation or in a written decision issued by the industrial commission shall be permitted; provided further, the true identification of the parties shall not be exempt from public disclosure in any written decision issued and released to the public by the industrial commission.
Idaho Code § 74-105(10)
Open, unless the public body can show that disclosure would cause any of the problems enumerated in 5 ILCS 140/7(1)(d). Section 7(d) exempts records in the possession of a public body created in the course of administrative enforcement proceedings “but only to the extent that disclosure would: interfere with active administrative enforcement proceedings conducted by the public body that is the recipient of the request; . . . create a substantial likelihood that a person will be deprived of a fair trial or an impartial hearing; [ ] unavoidably disclose the identity of a confidential source, confidential information furnished only by the confidential source, or persons who file complaints with or provide information to administrative, investigative . . . agencies; except that the identities of witnesses to traffic accidents, traffic accident reports, and rescue reports shall be provided by agencies of local government, except when disclosure would interfere with an active criminal investigation conducted by the agency that is the recipient of the request; [ ] disclose unique or specialized investigative techniques other than those generally used and known or disclose internal documents of correctional agencies related to detection, observation or investigation of incidents of crime or misconduct, and disclosure would result in demonstrable harm to the agency or public body that is the recipient of the request; [ ] endanger the life or physical safety of law enforcement personnel or any other person.” 5 ILCS 140/7(1)(d).
The enumerated problems listed in 5 ILCS 140/7(1)(d) are less likely to exist in connection with closed as opposed to active investigations, so as to render administrative enforcement records for closed investigations more accessible.
The statute does not specifically address worker safety and health inspections or accident investigations by agencies other than law enforcement agencies. However, Indiana Code Section 22-3-4-3(a) denies public access to industrial accident reports and reports of attending physicians, unless the Indiana Industrial Board decides access is required in the public interest.
The statute does not specifically address active investigations. However, an agency may argue this information is encompassed by the exception for “records that are intra-agency or interagency advisory or deliberative material, including material developed by a private contractor under a contract with a public agency, that are expressions of opinion or are of a speculative nature, and that are communicated for the purpose of decision making. Ind. Code § 5-14-3-4(b)(6).
Vehicle accident reports filed by a law enforcement officer are not confidential. Ind. Code § 9-26-2-3. See also Whitaker v. Apriss, 266 F.Supp. 3d 1103, 1110 (N.D. Ind. 2017) (holding that federal law prohibiting disclosure of personal information held by the Department of Motor Vehicles, does not reach police reports of vehicular accidents).
Iowa Code § 80A.17 addresses the confidentiality of records held by private investigators and security agencies. That provision reads:
“1. All complaint files, investigation files, other investigation reports, and other investigative information in the possession of the department or its employees or agents which relate to licensee discipline are privileged and confidential except that they are subject to discovery, subpoena, or other means of legal compulsion for their release to a person other than the licensee, and are admissible in evidence in a judicial or administrative proceeding other than a proceeding involving licensee discipline. In addition, investigative information in the possession of the department's employees or agents which relates to licensee discipline may be disclosed to the appropriate licensing authority in another state, the District of Columbia, or a territory or country in which the licensee is licensed or has applied for a license. If the investigative information in the possession of the department indicates a crime has been committed, the information shall be reported to the proper law enforcement agency. A final written decision and finding of fact of the department in a disciplinary proceeding is a public record.
(a) Pursuant to section 17A.19, subsection 6, the department, upon an appeal by the licensee of the decision by the department shall transmit the entire record of the contested case to the reviewing court.
(b) Notwithstanding section 17A.19, subsection 6, if a waiver of privilege has been involuntary and evidence has been received at a disciplinary hearing, the court shall order withheld the identity of the individual whose privilege was waived.
- Lists of employees of a licensed agency and their personal histories shall be held as confidential. However, the lists of the names of the licensed agencies, their owners, corporate officers and directors shall be held as public records. The commissioner may confirm that a specific individual is an employee of a licensed agency upon request and may make lists of licensed agencies' employees available to law enforcement agencies.”
Iowa Code § 80A.17.
OSHA Inspections are covered under Iowa Code § 88.12. That provision states:
“Notwithstanding any provisions of this chapter, all information reported to or otherwise obtained by the commissioner or the commissioner's representative in connection with any inspection or proceeding under this chapter which contains or might reveal a trade secret shall be considered confidential, except that such information may be disclosed to other officers or employees concerned with carrying out this chapter or when relevant to any proceeding under this chapter. In any such proceeding the commissioner, the appeal board, or the court shall issue such orders as may be appropriate to protect the confidentiality of trade secrets.” Iowa Code § 88.12
Records relating to ongoing or prospective investigations can be exempt from disclosure, depending upon the circumstances. Once the investigation is complete, the records are open to inspection. Ky. Rev. Stat. 61.878(1)(h). The statute exempts from disclosure:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of [Ky. Rev. Stat.] 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of [Ky. Rev. Stat.] 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by [Ky. Rev. Stat.] 61.870 to 61.884…
The Kentucky Supreme Court has held that the exception may be invoked “only when the agency can articulate a factual basis for applying it, only, that is, when, because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action. A concrete risk, by definition, must be something more than a hypothetical or speculative concern.” City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013).
No specific provision, but these records should be treated as a public record and should be produced to a requester absent an applicable exemption, if they otherwise fall within the definition of “public record.” The Act contains numerous exemptions for these types of records, typically phrased as exempting “records . . . concerning the fitness of any person to receive, or continue to hold, a license to practice”, e.g., medicine, nursing, dentistry, veterinary medicine, etc. La. Rev. Stat. Ann § 44:4, subsections 7, 9, 11 and 12.
Typically, the “final determination” of fitness to hold licenses to practice these occupations is a public record.
Information concerning intelligence and investigative information that is collected by or prepared at the direction of or kept in the custody of any Maine criminal justice agency is subject to the Intelligence and Investigative Record Information Act. 16 M.R.S.A. §802. The Act applies to records collected by or prepared by or at the direction of a criminal justice agency while performing the administrative of criminal justice or, for the Department of the Attorney General and the district attorneys’ offices, the administration of civil justice.
Information concerning active Department of Labor investigations is generally confidential. 26 M.R.S.A. § 3. Names of individuals, firms or corporations are confidential. 26 M.R.S.A. § 3. The director may release information and reports to other government agencies if the director believes that the information will serve to further the protection of the public or assist in the enforcement of local, state, and federal laws. 26 M.R.S.A. § 3.
Other civil administrative enforcement records are public.
NRS 618.341 provides that:
1. Except as otherwise provided in this section, the public may inspect all records of the Division which contain information regarding:
(a) An oral or written complaint filed by an employee or a representative of employees alleging the existence of an imminent danger or a violation of a safety or health standard that threatens physical harm;
(b) The manner in which the Division acted on any such complaint;
(c) Any citation issued by the Division to an employer and the reason for its issuance; and
(d) Any penalty imposed by the Division on an employer and the reason therefor.
2. The Division shall, upon oral or written request and payment of any applicable charges, provide to any person a copy of any record of the Division which is open to public inspection pursuant to subsection 1. The first six pages reproduced pursuant to each such request must be provided without charge. The charge for each additional page copied must not exceed the cost of reproduction.
3. Except as otherwise provided in subsection 4 and NRS 239.0115, the Division shall keep confidential:
(a) The name of any employee who filed any complaint against an employer or who made any statement to the Division concerning an employer; and
(b) Any information which is part of a current investigation by the Division, but the fact that an investigation is being conducted is public information.
4. The Division shall, upon the receipt of a written request from a law enforcement agency, disclose otherwise confidential information to that law enforcement agency for the limited purpose of pursuing a criminal investigation.”
Under Murray v. New Hampshire Div. of State Police, 154 N.H. 579 (2006), which reaffirmed Lodge v. Knowlton, 118 N.H. 574 (1978), the Court applies the six-prong test under the Freedom of Information Act for evaluating access to investigative files under 5 U.S.C. § 552(b)(7).
N.J.S.A. 47:1A-3(a) provides that where it appears that the requested record(s) pertain to an investigation in progress by any public agency, the right of access may be denied if access to such record(s) shall be inimical to the public interest. This provision shall not be construed to allow any public agency to prohibit access to a record of that agency that was open for public inspection, examination, or copying before the investigation commenced. Whenever a public agency, during the course of an investigation, obtains from another public agency a government record that was open for public inspection, examination or copying before the investigation commenced, the investigating agency shall provide the other agency with sufficient access to the record to allow the other agency to comply with OPRA requests.
N.J.S.A. 47:1A-1.1 provides that “criminal investigatory records” are exempt from access, regardless of whether the investigation is open or closed. A “criminal investigatory record is defined as a record that is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding.
N.J.S.A. 47:1A-3(a) only refers to investigations in progress.
N.J.S.A. 47:1A-1.1 provides that “criminal investigatory records” are exempt from access, regardless of whether the investigation is open or closed. A “criminal investigatory record is defined as a record that is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding.
The general catch-all exception to the right to inspect public records is that state or federal law may provide additional exceptions. NMSA 1978 § 14-2-1(A)(8) (2011). The rules for dissemination of administrative enforcement records vary according to specific statutes. The following are examples of state laws that address the disclosure of administrative records:
- § 69-11-2: Mining reports shall be held confidential except that they may be revealed to specified agencies.
- § 24-1-5: Health facility complaints shall not be publicly disclosed if, upon investigation, the complaint is unsubstantiated and disclosure will reveal the identity of the individuals or facilities involved.
- § 41-8-4: Information received by specified state and federal agencies regarding a fire loss investigation is confidential.
- § 50-9-21: Information obtained by the Department of Labor “in connection with an investigation under or the administration or enforcement of the provisions of the Occupational Health and Safety Act shall be made available except to the extent privileged by law.”
- § 66-7-213: Accident reports made to the state highway and transportation department are confidential, unless a specified exception states otherwise.
Rules governing active investigations vary by statute. For example, health facility complaints may not be publicly disclosed until after an investigation is complete. NMSA 1978 § 24-1-5.
Closed investigations also vary by statute. Simply because an investigation is closed does not mean that information therefrom is available for inspections. If the material reveals “confidential sources, information or individuals accused but not charged with a crime,” it will remain confidential despite the investigation being closed. See NMSA 1978 § 14-2-1(A)(4).
- Rules for active investigations.
A law enforcement officer who investigates a reportable accident must make a written report of the accident within 24 hours of the accident, and that report is a public record. G.S. § 20-166.1 (e).
- Rules for closed investigations.
The fact that an investigation is closed has no bearing on whether it is public or exempt from disclosure. Gannett Pac. Corp. v. N.C. State Bureau of Investigation, 164 N.C. App. 154, 161, 595 S.E.2d 162, 166 (2004) (“as currently enacted, the Public records act contains no exception for disclosure of records where an investigation is complete.”)
Please see the discussion of statutory exemptions, outlined in Section II(A)(2) above.
Additionally, concerning criminal investigations, the open records statute provides:
1. Active criminal intelligence information and active criminal investigative information are not subject to section 44-04-18 and section 6 of article XI of the Constitution of North Dakota. A criminal justice agency shall maintain a list of all files containing active criminal intelligence and investigative information which have been in existence for more than one year. With respect to each file, the list must contain the file’s number or other identifying characteristic and the date the file was established. The list required under this subsection is subject to section 44-04-18. Personal information of any person contained in an active or nonactive file is an exempt record as defined in subsection 5 of section 44-04-17.1.
2. “Criminal intelligence and investigative information” does not include:
a. Arrestee description, including name, date of birth, address, race, sex, physical description, and occupation of arrestee.
b. Facts concerning the arrest, including the cause of arrest and the name of the arresting officer.
c. Conviction information, including the name of any person convicted of a criminal offense.
d. Disposition of all warrants, including orders signed by a judge of any court commanding a law enforcement officer to arrest a particular person.
e. A chronological list of incidents, including initial offense report information showing the offense, date, time, general location, officer, and a brief summary of what occurred.
f. A crime summary, including a departmental summary of crimes reported and public calls for service by classification, nature, and number.
g. Radio log, including a chronological listing of the calls dispatched.
h. General registers, including jail booking information.
i. Arrestee photograph, if release will not adversely affect a criminal investigation.
3. “Criminal intelligence information” means information with respect to an identifiable person or group of persons collected by a criminal justice agency in an effort to anticipate, prevent, or monitor possible criminal activity. Criminal intelligence information must be considered “active” as long as it is related to intelligence gathering conducted with a reasonable good-faith belief it will lead to detection of ongoing or reasonably anticipated criminal activities. Criminal intelligence information also includes training materials and information obtained by a criminal justice agency regarding prospective criminal activities which impact officer safety until the information is publicly disclosed.
4. “Criminal investigative information” means information with respect to an identifiable person or group of persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission, including information derived from laboratory tests, reports of investigators or informants, or any type of surveillance. Criminal investigative information must be considered “active” as long as it is related to an ongoing investigation that is continuing with a reasonable good-faith anticipation of securing an arrest or prosecution in the foreseeable future.
5. “Criminal justice agency” means any law enforcement agency or prosecutor. The term also includes any other unit of government charged by law with criminal law enforcement duties or having custody of criminal intelligence or investigative information for the purpose of assisting law enforcement agencies in the conduct of active criminal investigations or prosecutions.
6. “Personal information” means a person’s medical records; motor vehicle operator’s identification number; social security number; any credit, debit, or electronic fund transfer card number; and any financial account numbers.
7. A computerized index created by a criminal justice agency of names included in criminal files, whether active or inactive, is an exempt record.
8. Crime scene images of a victim of a homicide or sex crime or any image of a minor victim of any crime is an exempt record as defined in subsection 5 of section 44-04-17.1.
N.D.C.C. § 44-04-18.7.
The exception applies only to active criminal intelligence information and active criminal investigative information. Certain information concerning a closed investigation may be subject to other exceptions, however.
The exemption for confidential law enforcement investigatory records applies to law enforcement actions of an “administrative nature,” and may be exempt. See State ex rel. Polovischak v. Mayfield, 50 Ohio St.3d 51, 52–53, 552 N.E.2d 635 (1990) (noting authority of Internal Security Committee of Bureau of Workers' Compensation (“BWC”) to investigate BWC employees who may have committed “criminal violations, abuse of office, or misconduct” [emphasis omitted] in determining whether committee's records of investigation of employee were exempt from disclosure); State ex rel. Mahajan v. State Med. Bd., 127 Ohio St.3d 497, 2010-Ohio-5995, 940 N.E.2d 1280, ¶ 29 (in light of investigatory power of medical board, records compiled during investigation of physician pertained to a law-enforcement matter of an administrative nature).
Records related to alleged violation of Blue Sky laws were exempt from disclosure during an active investigation, even if the records were not solicited by investigators. State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Info. Network, Inc. v. Joyce, 97 Ohio St.3d 192, 777 N.E.2d 253 (2002), Ohio Rev. Code § 1707.12.
A public body may keep personnel records confidential which relate to internal personnel investigations including examination and selection material for demotion, discipline or resignation. 51 O.S. § 24A.7.A.1. The Oklahoma Attorney General has opined that the name of an employee who has been placed on administrative leave with pay may be kept confidential if the action constitutes neither a final or disciplinary action nor a “final disciplinary action resulting in loss of pay, suspension, demotion of position or termination.” 2009 OK AG 33.
A public body must make available records relating to a final disciplinary action resulting in loss of pay, suspension, demotion of position or termination. 51 O.S. § 24A.7.B.4. See also 2009 OK AG 33.
Several conditional exemptions under ORS 192.345 (formerly ORS 192.501) exempt specific investigatory records “unless the public interest requires disclosure” in the particular instance. Specifically, ORS 192.345(8) conditionally exempts investigatory information relating to complaints filed with the Commission of the Bureau of Labor and Industries alleging unlawful employment practices or other civil rights violations. ORS 192.345(9) conditionally exempts investigatory information relating to any complaint or charge filed under certain statutes, ORS 243.676 and 663.180, which concern unfair labor practices. ORS 192.345(10) conditionally exempts information received or compiled by the Director of the Department of Consumer and Business Services with respect to investigations of debt consolidation agencies under ORS 697.732. ORS 192.345(12) conditionally exempts “[a] personnel discipline action, or materials or documents supporting that action,” but is limited to completed disciplinary actions where a sanction is imposed. City of Portland v. Rice, 308 Or. 118, 123, 775 P.2d 1371, 1374 (1989).
In one case, Oregon courts have determined that records of a school district’s investigation into alleged misuse and theft of district property were not exempt under former ORS 192.502(9), 192.502(12) or ORS 342.850(8). Oregonian Publishing Company v. Portland School District No. 1J, 144 Or. App. 180, 925 P.2d 591 (1996), modified 152 Or. App. 135, 952 P.2d 66 (1998), affirmed on other grounds 329 Or. 393, 987 P.2d 480 (1999). However, investigation reports consisting of attorney-client privileged communications are exempt under ORS 192.345(9) (former 192.502(9)). Klamath County School Dist. v. Teamey, 207 Or. App. 250, 140 P.3d 1152 (2006). ORS 192.345(17) conditionally exempts investigatory information relating to any complaint or charge filed under ORS chapter 654, which concerns workplace health and safety, such as charges filed with the Oregon Occupational Safety and Health Division during the investigation. While this exemption does not cover the complaint itself, a different statute, ORS 654.062, makes the identity of the complaining party confidential. See Attorney General Manual, § I.E.4.c.17. The Attorney General has determined that ORS 192.345(20), which exempts workers’ compensation claim records of the Department of Consumer and Business Services, prohibits a request for unredacted records of active worker’s’ compensation litigation cases. ORS 192.345(35) conditionally exempts records relating to certain investigations concerning licensing and certification by the Department of Public Safety Standards and Training. ORS 676.165 and 676.175 exempt investigatory information and issued reports concerning investigations by health professional regulatory boards.
Disclosure is required unless a law enforcement agency can show that disclosure would interfere with a prospective law enforcement action. S.C. Code Ann. §30-4-40(a)(3); Evening Post Publishing Co. v. City of N. Charleston, 611 S.E.2d 496 (S.C. 2005). Assuming another exemption within SC FOIA did not apply such as disclosure resulting in unreasonable invasion of a person’s personal privacy, disclosure would be required.
Several provisions close such records (especially health care provider disciplinary boards), but make no distinction between open and closed investigations. T.C.A. § 63-1-117. Also, records of TennCare investigations of fraud and abuse are confidential. T.C.A. § 71-5-2516. Unlike criminal prosecutions, there appears to be no distinction between open and closed investigations.
A completed report, audit, evaluation, or investigation made of, for, or by a governmental body is public information unless it qualifies as information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime where the release of the information would interfere with the detection, investigation, or prosecution of crime, pursuant to Section 552.108. Tex. Gov’t Code. §552.022.
A city inspection report on nursing homes is public unless prepared solely in connection with state licensing for and on behalf of the State Department of Health Resources on their forms and according to their standards. Tex. Atty. Gen. Op. No. ORD-138 (1976). Documents relating to inspection reports on amusement rides at the state fair are not excepted from disclosure under statute. Tex. Atty. Gen. ORD-404 (1984).
Administrative enforcement records are protected, and therefore not subject to disclosure under GRAMA, if their release:
a. reasonably could be anticipated to interfere with enforcement investigations;
b. reasonably could be anticipated to interfere with enforcement proceedings;
c. would endanger a person’s right to an impartial hearing;
d. “reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source”; or
e. “reasonably could be expected to disclose investigative . . . techniques, procedures, policies, or orders not generally known outside of government if disclosure would interfere with enforcement . . . efforts.”
Utah Code 63G-2-305(10).
GRAMA does not distinguish between active and closed administrative enforcement investigations.
Under Vermont’s Public Records Law the Department of Labor must provide the public with access to Department of Labor records, unless the records are protected from disclosure under specific exemptions in the Law. All findings, conclusions, and determinations of the Board and the records of all hearings and other proceedings, unless otherwise provided by law, shall be public records. 3 V.S.A. § 929
Records relating to the Office of Internal Investigation of the Department of Public Safety, are specifically exempt from the definition of public records. 1 V.S.A. § 317(c)(18). Title 20, section 1923 allows the state police advisory commission to have full and free access to such records and to share those records with the public “to ensure that proper action is taken in each case.” 20 V.S.A. § 1923(d)(3).
Records collected by the Vermont Patient Safety Surveillance and Improvement System created pursuant to 18 V.S.A. Chapter 43A are similarly exempt from disclosure. 1 V.S.A. § 317(c)(37). This system collects data concerning the occurrence of reportable adverse health events and aggregates and analyzes that data for the purpose of developing and implementing strategies to target and eliminate specific adverse events. 8 V.S.A. § 4089f.
The Vermont Food and Lodging Program is responsible for licensing and conducting inspections of food service establishments serving the public. The State of Vermont’s online portal provides the public with ready access to information on licensing and inspection reports. This information can be accessed at www.healthvermont.gov/health-environment/food-lodging/inspection-reports.
Similarly, the Vermont Agency of Transportation provides access to vehicle crash report data at http://apps.vtrans.vermont.gov/CrashPublicQueryTool/.
Exclusions from disclosure for administrative investigations are collected in Va. Code Ann. § 2.2-3705.3. The exclusion subdivisions are agency-specific, but generally address the distinction between ongoing and concluded investigations, and the protection in some cases of persons providing information in confidence to investigators.
The Miner’s Health, Safety and Training Act requires employers to implement drug screening programs. W. Va. Code § 22A-1A-1. The records of those substance abuse and alcohol screening tests received by the Office of Miners' Health, Safety and Training “are confidential communications and are exempt from disclosure” under the West Virginia Freedom of Information Act, with the following exceptions:
(a) Where release of the information is authorized solely pursuant to a written consent form signed voluntarily by the person tested. The consent form shall contain the following:
(1) The name of the person who is authorized to obtain the information;
(2) The purpose of the disclosure;
(3) The precise information to be disclosed;
(4) The duration of the consent; and
(5) The signature of the person authorizing the release of the information; (b) Where the release of the information is compelled by the Board of Appeals or a court of competent jurisdiction; (c) Where the release of the information is relevant to a legal claim asserted by the person tested; (d) Where the information is used by the entity conducting the substance abuse or alcohol screening test in defense of a civil or administrative action related to the testing or results, or to consult with its legal counsel; or (e) Where release of the information is deemed appropriate by the Board of Appeals or a court of competent jurisdiction in a disciplinary proceeding.
W. Va. Code § 22A-1A-3.
Under the Miner’s Health, Safety and Training Act, any individual meeting with the director to report violations or to be interviewed about an accident may request that the director keep that person’s identity and statement confidential. W. Va. Code § 22A-1-40. Once such a request has been made, the person’s identity and statement are exempt from disclosure under the West Virginia Freedom of Information Act. Id.
Other than cases construing FOIA exemptions, there have been no specific court decisions or statutory references to application of FOIA to active administrative law enforcement investigations. Worker safety and health inspections, or accident investigations arguably may be viewed as falling within the FOIA exemption for records of law-enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law-enforcement agencies that are maintained for internal use in matters relating to law enforcement W. Va. Code § 29B-1-4(a)(4).
The primary purpose of the law enforcement exemption, W. Va. Code 29B-1-4(4), is to prevent premature disclosure of investigatory materials that might be used in law enforcement action. Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985).
The fact that the document falls within the FOIA law enforcement records exemption does not automatically exclude it from disclosure under FOIA; once a document is determined to be law enforcement record, it may still be disclosed if society's interest in disclosure of the document outweighs government's interest in keeping the document confidential. Ogden Newspapers, Inc. v. City of Williamstown, 192 W. Va. 648, 453 S.E.2d 631 (1994).
Other than cases construing FOIA exemptions, there have been no specific court decisions or statutory references to application of FOIA to closed administrative law enforcement investigations.
It is unlikely that closed administrative enforcement records such as worker safety and health inspections, or accident investigations reports would fall under FOIA’s law enforcement exemption. An exception might be recognized for information of a personal nature contained in such closed files. Disclosure of personal information could be seen as constituting an unwarranted invasion of privacy under § 29B-1-4(2). To determine whether information of a personal nature in closed administrative files may be disclosed to the public, application of the five-factor analysis of Cline v. Child Protection Group would be required. Child Protection Group v Cline, 177 W. Va. at 33-34, 350 S.E.2d at 545 (1986).
In Manns v. City of Charleston Police Dep’t, 209 W. Va. 620, 550 S.E.2d 598 (W. Va. 2001), the West Virginia Supreme Court observed that records of administrative investigations of police misconduct had been found by other courts to be “similar” to “personal files” as set forth in W. Va. Code § 29B-1-4(2) (“Information of a personal nature such as that kept in a personal, medical or similar file, if the public disclosure thereof would constitute an unreasonable invasion of privacy . . .”). Agreeing with this approach, the West Virginia Court held that disclosure of records of complaints about, and investigations into, police officer misconduct depends upon the application of a five-factor balancing test that must weigh privacy and public interests. Child Protection Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541(1986).
In denying disclosure, the Manns court emphasized that "the request in this case would require the disclosure of all claims of misconduct no matter how egregious, unfounded, or potentially embarrassing." Manns, 209 W. Va. at 626, 550 S.E.2d at 604. Moreover, the court observed, "the information was obviously given with an expectation of confidentiality as the appellants’ policy and procedural manuals require all investigative reports to be 'treated with the strictest of confidence.' " Id. Importantly, the court noted that "the expectation of confidentiality is crucial to continued reports of possible misconduct." Id.
In contrast, in Charleston Gazette v. Smithers, information relating to the conduct of a state police officer while on the job "including but not limited to, patrolling, conducting arrests and searches, and investigating crimes" was held not to fall within the FOIA invasion of privacy exemption in (2012). Syl. Pt. 8, 232 W. Va. 449, 752 S.E.2d 603 (2013).
The Gazette had filed a FOIA suit against the Superintendent of the West Virginia State Police seeking disclosure of public records concerning the agency's internal review of complaints made against State Police officers. In the suit the newspaper sought "(1) Quarterly, Bi–Annual and Yearly Reports of the Internal Review Board for the last five years, with the names of the employees identified by the Early Identification System redacted; (2) data provided to the Internal Review Board that was used to assist it in determining if subordinates of certain supervisors tend to be employees frequently identified by the internal review system; and (3) a copy of the central log of complaints maintained by the West Virginia State Police Professional Standards section." Id. at 232 W. Va. 449, 456, 752 S.E.2d 603, 610 (2013).
The Smithers Court, distinguished Manns, finding that it's holding was made "in summary fashion" and "[g]iven the lack of any meaningful analysis in Manns, as well as the lack of any new law enunciated therein, the decision has limited application to the case at bar." 232 W. Va. at 468, 752 S.E.2d at 622.
The Court held that the public might access the information sought by the Gazette in limited circumstances. When a request is made under the FOIA for information from the State Police regarding an internal investigation based on an external or internal complaint of misconduct by an officer (in connection with his/her duties), the court refused to permit disclosure until completion of the investigation and after a determination is made as to whether disciplinary action is authorized by the Superintendent. See, W. Va. Code R. § 81–10–8.13 (2008). The clear intent of the legislative rule was that "the information sought to be disclosed was intended . . . to be confidential." Id.
The Court then was led to "directly confront is whether the rule and the FOIA can be reconciled; and if not, which governs the issue presented in this appeal." The court concluded that when "considering a request for disclosure of information under the FOIA and the assertion of the statutory invasion of privacy exemption" the policy disfavoring the release of information enunciated in W. Va. Code R. § 81–10–6.2 is one of the factors set forth in Cline." Child Protection Group v Cline, 350 S.E.2d at 545 (1986). Importantly, the Court found that the legislative rule was not dispositive of the issue and "the FOIA shall remain the proper analytical framework for issues of disclosure of public information." Charleston Gazette v. Smithers, 232 W. Va. 449, 468, 752 S.E.2d 603, 622 (2013).
Ultimately, the Court concluded, "the premature disclosure of information about any investigation into allegations of misconduct by state police officers before any internal investigation or inquiry takes place, could cause an unwarranted invasion of privacy." "Conversely," the Court concluded, "after an investigation has taken place and determination made by either the Superintendent or the Internal Review Board as set forth in the legislative rule, there is a compelling reason to disclose records developed and maintained by the State Police, a public agency, regarding the investigation." Charleston Gazette v. Smithers, 232 W. Va. 470, 752 S.E.2d at 624.
Thus, after the investigation and the Superintendent's determination "there is a public right to access the complaint, all documents in the case file, and the disposition." But, the Court required that the "names of complainants and any other identifying information must be redacted" as required by the agency's confidentiality rules. See, W. Va. Code R. §§ 81–10–1 to –11 (2008). Id.