B. Other statutory exclusions
The following statutes allow or require public officials to keep records confidential. The intent is to provide a comprehensive list (of statutory, not regulatory, confidentiality provisions) so reports of omissions from this outline are welcomed. Note that the descriptions of the statutes authorizing or requiring confidentiality contained in this outline are, for the most part, summaries and paraphrases, not verbatim. Those who want the specific language of the statute, or more detailed information, can begin by consulting the Alaska Statute provisions cited in the outline.
- Agriculture and Conservation Board. The Board of Agriculture and Conservation may, by regulation, classify loan and marketing information and make some classes of loan or marketing information confidential. AS 03.09.040. Those records specified as confidential are found at 11 AAC 39.061.
- Alcoholic Beverages. The Alcoholic Beverage Control Board, after consulting with package store licensees, must create and maintain a statewide database that contains a monthly record of the alcohol purchased by, and shipped to, a person who resides in a municipality or established village that has restricted the sale of alcoholic beverages under local option provisions. Except for authorized disclosures to law enforcement, the Board, and liquor sellers and purchasers the information contained in the database is confidential and is not subject to inspection or copying under the Public Records Act. Information in the database must be purged one year after entry unless it is needed for criminal investigation or prosecution. AS 04.06.095.
- Bank Records. Bank examiners are prohibited from disclosing information they obtain about banks' assets and liabilities, except to the Department of Commerce, Community, and Economic Development, AS 06.01.015. Records of the Department obtained through the administration of laws governing examinations of financial institutions is confidential, not subject to subpoena, and may be revealed only with the consent of the Department. AS 06.01.025. Bank records pertaining to depositors and customers are confidential, with certain exceptions, including when disclosure is required by court order, or by federal or state law or regulation, or authorized by the customer. AS 06.01.028.
- Trust Company Records. Similarly, trust company records relating to customers are confidential, with certain exception including when disclosure is compelled by a court or administrative order, or required by federal or state law, or authorized by the customer. AS 06.26.610. An application for acquisition of control of a trust company is supposed to be published by the department promptly upon filing, but publication can be deferred for a month if the proposed transferee requests confidential treatment and represents that a public announcement of the tender offer and the filing of appropriate forms with the United States Securities and Exchange Commission or the appropriate federal banking agency, as applicable, will occur within the period of deferral; and the department determines that public interest will not be harmed by the requested confidential treatment. AS 06.26.460.
- Money Transmission Businesses
The Department of Commerce licenses those involved in “money services,” including currency exchange and money transmission, pursuant to AS 06.55.101 et seq. All information or reports (including examination and money laundering reports) obtained by the department from an applicant, a licensee, or an authorized delegate are confidential and not subject to disclosure under the Public Records Act, AS.06.55.407(a), except that the Department may disclose information not otherwise subject to disclosure to representatives of state or federal agencies who promise in a record that they will maintain the confidentiality of the information or if the department finds that the release is reasonably necessary for the protection of the public and in the interests of justice, and the money services licensee has been given previous notice by the department of its intent to release the information. AS.06.55.407(b). Personal financial information, like social security numbers, PIN numbers, credit and debit card numbers, and access codes cannot be disclosed without consent or a court or administrative agency order, or in other specified situations. AS.06.55.407(d, e).
- Businesses and professions.
- Disclosure of Mental Health Information. Licensed professionals may disclose otherwise confidential patient mental health information, communications and records to the Department of Health and Social Services for a variety of purposes when disclosure is authorized by law. Such information, communications and records in the possession of the department are confidential medical records of patients and are not open to public inspection and copying under the public records act. AS 08.02.040.
- Accountants. The Board of Public Accountancy may require that applicants for issuance or renewal of permits to practice public accounting, either on a uniform or random basis, undergo a quality review. A quality review report is confidential, and not a public record, unless the report becomes part of the record of a disciplinary hearing. AS 08.04.426(e). Information communicated by a client to a licensed accountant about a matter concerning which the client has employed the licensee in a professional capacity is confidential and not a public record when obtained by the Board of Public Accountancy in the course of a quality review, ethical investigations, or as discovery or evidence in administrative proceedings. AS 08.04.662(b).
- Professional Counselors. Licensed professional counselors generally may not reveal to another person a communication from a client. This prohibition does not apply to disclosures authorized by the client, or information released to the licensing board during the investigation of a complaint or as part of a disciplinary or other proceeding. Information so obtained by the board is confidential and is not subject to disclosure under the public records act. AS 08.29.200.
- Chiropractor Peer Review Committees. The Board of Chiropractic Examiners may establish a peer review committee to review complaints concerning the reasonableness or appropriateness of care, or fees or costs for services. Patient records presented to a review committee that were confidential before remain confidential. AS 08.20.185.
- Collection Agencies. Information that collection agencies are required by law to file in order to be licensed is confidential. AS 08.24.250.
- Architects, Engineers and Land Surveyors. A wide range of documents relating to architects, engineers and land surveyors is confidential, including investigation files if an investigation is still pending, exams and exam keys, letters of inquiry and reference concerning applicants, and other documents. AS 08.48.071(d).
- Guide-Outfitters and Transporters. AS 08.54.760 exempts records of guided hunts, collected and maintained by the Department of Commerce, Community, and Economic Development, from public disclosure. Guide-outfitters and transporters may not provide big game hunting or transportation services without a written contract with the client. The contract must include such information identification of the registered guide-outfitter or transporter, name of the client, the big game to be hunted, approximate time and dates of the hunt, and the amount to be paid for the big game hunting services provided. Except as necessary for disciplinary proceedings conducted by the board and as necessary for law enforcement purposes, a copy of a contract provided to the department is confidential. AS 08.54.680(c).
- Family Therapists. Information communicated to a licensed marital or family therapist by a client about a matter concerning which the client has employed the therapist in a professional capacity is generally confidential. When confidential information is obtained by the Board of Marital and Family Therapy as a part of disciplinary or other proceedings, it remains confidential and does not become public record. AS 08.63.200(c).
- Pharmacist Records. Information concerning patients in pharmacist records is confidential. AS 08.80.315.
- Psychologists, Clinical Social Workers. Communications made to psychologists or psychological associates in their professional capacity are confidential, AS 08.86.200, as are client communications to licensed social workers. AS 08.95.900. Otherwise confidential communications disclosed to the Board of Psychologists and Psychological Associate Examiners in order to enable a health professional to defend against accusations of wrongdoing remain confidential, and do not become public record. AS 08.86.200(a)(5). Similarly, the otherwise confidential information acquired by social workers may be released in certain situations, including to the Board of Social Work Examiners as part of a disciplinary or other proceeding by the board, and when a communication that indicates that another licensed practitioner of the healing arts has committed an act of unprofessional or unlawful conduct in the provision of health or mental health services, if the communication is disclosed by the social worker only to the licensing board with jurisdiction over the type of person who allegedly committed the unprofessional or unlawful conduct and the disclosure is made in good faith. Information obtained by the Board in either of these situations is confidential, and not subject to disclosure under the PRA. AS 08.95.900(c).
- Environmental Audits/Confidential Self-Evaluations. Owners and operators of a facility, operation or property that is regulated under an environmental law may disclose the part of an environmental audit report or information consisting of a confidential self-evaluation or analysis without waiving the privilege generally applicable to such documents and information if the disclosure is made under a written claim of confidentiality to a government official or agency by the owner or operator who prepared the audit report or who caused the audit report to be prepared. Documents received in this context are to be kept confidential, and are not subject to disclosure under the public records act. AS 09.25.455.
- The Alaska Corporations Code, AS 10.06.05 et seq., governs for profit corporations, including but not limited to Alaska Native for-profit corporations. These corporations must keep correct and complete books and records of account, minutes of proceedings of its shareholders, board, and committees of the board, and a record of its shareholders, containing the names and addresses of all shareholders and the number and class of the shares held by each. AS 10.06.430(a). And these corporations must make their books and records of account, or certified copies of them, reasonably available for inspection and copying by a shareholder of the corporation, upon demand, at a reasonable time and for a proper purpose. Only books and records of account, minutes, and the record of shareholders directly connected to the stated purpose of the inspection may be inspected or copied. AS 10.06.430(b). There is no provision for access to corporate books and records by the press or general public. The statute provides for a penalty on corporations that improperly withhold books and records from a shareholder, but also provides that it is a defense to an action for penalties that the person suing has within two years sold or offered for sale a list of shareholders of the corporation or any other corporation or has aided or abetted a person in procuring a list of shareholders for this purpose, or has improperly used information secured through a prior examination of the books and records of account, minutes, or record of shareholders of the corporation or any other corporation, or was not acting in good faith or for a proper purpose in making the person's demand. AS 10.06.430(c). The Alaska Supreme Court addressed this statute in Pederson v. Arctic Slope Regional Corporation, 331 P.3d 384 (Alaska 2014). It held that “books and records” includes electronically maintained books and records of accounts, and that the shareholder’s right to inspect books and records of account goes beyond mere annual reports and proxy statements—which the corporation is legally required to send to shareholders anyway—and encompasses monthly financial statements, records of receipts, disbursements and payments, accounting ledgers and other financial accounting documents, including records of individual executive compensation and transfers of corporate assets or interests to executives, because such information is “crucial to the shareholders’ ability to monitor the performance of their corporate agents and protect their interests as shareholders.” 331 P.3d at 387. The Court noted that some corporate record inspectable by shareholder stating a proper purpose “could, if released to the general public, harm the interests of the shareholders,” and that the corporation has a right to protect sensitive information but cannot deny a shareholder access to it merely because it is “of a confidential nature.” Id. at 400. Noting that “confidential information is subject to inspection only insofar as it directly relates to the shareholder's proper purpose as a shareholder,” the Court observed that one “well-established tool for protecting against the adverse dissemination of sensitive information is the ability of a court to condition the remedy of compelled disclosure of documents on reasonable confidentiality provisions.” But the court also ruled that it may be appropriate for a corporation to unilaterally demand a confidentiality agreement before producing inspectable documents provided that it (1) reasonably defines the scope of what is confidential information subject to the agreement and (2) contains confidentiality provisions that are not unreasonably restrictive in light of the shareholder's proper purpose and the corporation's legitimate confidentiality concerns. If the shareholder refuses to sign such a confidentiality agreement, the corporation may then refuse to release confidential information and either institute a declaratory action seeking a court order containing reasonable confidentiality protections or await the shareholder's exercise of legal options. Id. at 402. The Court provided some guidance as to what would be a reasonable or unreasonable confidentiality agreement. Agreements that make no attempt to differentiate confidential from non-confidential information on a reasonable basis are unreasonably broad, and, for example, a corporation could not argue that it has a confidentiality interest in the compensation it pays to its five most highly compensated officials in light of the mandatory disclosure requirements of the pertinent state regulation. Id. at 403. The Court also briefly addresses unreasonably restrictive confidentiality provisions, and strikes down restrictions as that related to executive compensation and stock interests that would have “placed a great burden on (the requesting shareholder’s) exercise of his proper purpose of making use of disclosed information to organize his fellow shareholders to restrict those types of transactions. The marginal benefits of the confidentiality restrictions to the Corporation’s interests in maintaining confidentiality regarding executive compensation did not outweigh those harms.” Id. Subsequently, in Pederson v. Arctic Slope Regional Corporation, 421 P.3d 58, 68–69 (Alaska 2018) (“Pederson II”), the Court reaffirmed that a corporation’s shareholders list may be legitimately be claimed to be confidential, and that a proper confidentiality agreement required before disclosing it to a requesting shareholder is enforceable. The court rejected the claim that shareholder lists, like compensation of top executives, were publicly available, because information about the pay of certain top executives was required by law and thus in the “public domain,” whereas disclosure of the shareholders list could be conditioned on execution of a confidentiality agreement restricting its use for proper purpose and prohibiting further dissemination.
- Investigations of corporate law violations. The commissioner of Commerce, Community, and Economic Development has authority to require corporations to answer under oath questions about whether the company is violating corporation laws. The answers are not open to public inspection except when they contain evidence to be used in criminal or other enforcement proceedings. AS 10.06.818 - .820 (for profit corporations); AS 10.20.655 to -.660 (nonprofit corporations).
- Bidcos (business and industrial development corporations). The commissioner and employees of the Department of Commerce, Community, and Economic Development may not disclose information acquired by them in the course of regulating Bidcos, except as required by law, unless the Department determines disclosure (of information other than an examination of a licensed corporation) is necessary to promote the public interest. AS 10.13.930.
- Courts; Criminal Justice Information; Medical Death Examinations and Reviews
- Criminal Justice Information Systems. Alaska has amended its statutes and regulations governing access to criminal justice information stored or processed in computers. See AS 12.62. et seq. (Criminal Justice Information Systems ["CJIS"] Privacy and Security Act), effective July 1, 1995, and 13 AAC 68.005 -.905. Similar statutes and regulations were adopted by virtually all states, as requirements of receiving Law Enforcement Assistance Administration (LEAA) grant money. They were often originally limited to systems funded in whole or in part by LEAA. These statutes purport to place off limits virtually all criminal justice information stored or processed by computer, and a few agencies have occasionally gone so far as to deny access to any information accessible through computer.
Access to information in criminal justice information systems is generally available only to qualified law enforcement agencies. The law imposes obligations on criminal justice agencies with respect to collecting, reporting, completeness, accuracy, security, updating, correcting, sealing and purging of criminal justice information, AS 12.62.110-.190, and the regulations provide detailed guidance on how these provisions are to be implemented. In general, the law applies to any "criminal justice information system," which is defined to mean "an automated data processing system used to collect, store, display or transmit criminal justice information, and that permits information within the system, without action by the agency maintaining the information, to be directly accessed by another principal department of the state, another branch of state government, an agency of another state, or the federal government, or by a political subdivision of a state or the federal government." AS 12.62.900(13). The CJIS statute provides that "criminal justice information and the identity of recipients of criminal justice information is confidential and exempt from disclosure under AS 40.25. The existence or non-existence of criminal justice information may not be released to or confirmed to any person except as specifically provided in the CJIS statutes." AS 12.62.160(a).
To understand the scope of Alaska's CJIS law and its application to particular records requires careful reading of an inter-related set of definitions. First, one must parse the definition of "criminal justice information," which itself includes several other terms with their own technical definitions, including "criminal history record information," "non-conviction information," and "correctional treatment information." The breadth of these definitions should already be evident, but looking, e.g., at "non-conviction information" one finds that it includes any "information that an identifiable person was arrested or that criminal charges were filed or considered against the person" when a prosecutor or grand jury decided more than a year ago not to initiate criminal proceedings or when criminal charges against the person have been dismissed, or the person has been acquitted and at least a year has lapsed since that action, or, if after a year since the arrest, filing of charges, or referral to a prosecutor for review, there is no indication of the disposition of the criminal charges or arrest.
The term "criminal history record information" is even more comprehensive, and contains "past conviction information" (which in turn encompasses any information showing that an identifiable person who has been unconditionally discharged has previously been convicted of a crime, including the terms of any sentence, probation, suspended imposition of sentence, or parole, and any information that a criminal conviction or sentence has been reversed, vacated, set aside, or been the subject of executive clemency), "current offender information" (which in turn includes any information showing that an identifiable person is currently under arrest for or charged with a crime, and prosecution is under review or has been deferred by written or oral agreement, a warrant exists for the person's arrest, or less than a year has elapsed since the date of the arrest or filing of the charges), and "criminal identification information" (which in turn includes fingerprints, photographs and other information or descriptions that identify a person as having been the subject of a criminal arrest or prosecution).
While a respect for and concern about privacy is obviously an important value, placing all of the foregoing information off limits would be intolerable given the traditions and experience of our society. This is so if for no other reason than that maintenance of a system of secret arrests and incarcerations is unthinkable—a point that Americans often refer to with pride to distinguish themselves from dictatorships and other totalitarian regimes. In fact, it is not all kept secret. The key to understanding why the CJIS statute does not go as far as it might seem at first blush is found in the definition of "information" in AS 12.62.900(17), which states that unless the context clearly indicates otherwise, information means "data compiled within a criminal justice information system." As a result, the term "criminal justice information" and all other terms throughout the statute that incorporate the term "information" are restricted to data "compiled within a criminal justice information system." That term, in turn, means "an automatic data processing system" that is used for certain purposes and that permits direct access by various government agencies. AS 12.62.900(13). In short, government computer systems dealing with criminal justice information. [The term "automatic data processing" is defined in a different statute, AS 44.21.170, to mean "those methods of processing data by using electrical accounting machinery (EAM) or electronic data processing equipment (EDP), and data communications devices and those systems used with automatic data processing equipment and the transmission and reception of data."]
Records maintained in other forms simply are not subject to the comprehensive confidentiality provisions of the CJIS security and privacy statute. These other records would obviously include, but not be limited to, information maintained in written and typed paper records, microfiche and microfilm, video and every other medium of storing information other than the electrical accounting machinery or electronic data processing equipment and the data communications devices used in connection with them.
There are other important exceptions to the general confidentiality requirements, even with respect to information that might otherwise be defined as criminal justice information under the CJIS statute. First, "criminal justice information" is defined to exclude any court record, record of traffic offenses maintained for the purpose of regulating drivers' licenses, or record of a juvenile subject to the jurisdiction of a court under AS 47.12. See AS 12.62.900(12). In addition, aside from the disclosures that may be made under the statute to law enforcement personnel and other officials for law enforcement and other government reasons, "current offender information" may be provided to a person for any purpose unless its release would unreasonably compromise the privacy of a minor or vulnerable adult. AS 12.62.160(b)(8). "Current offender information" is defined as information showing that an identifiable person:
(A) is currently under arrest for or is charged with a crime, and prosecution is under review or has been deferred by agreement, a warrant exists for the person's arrest, or less than a year has elapsed since the date of the arrest or filing of the charges;
(B) is currently released on bail or on other conditions imposed by a court in a criminal case, either before or after trial, including the conditions of release;
(C) is currently serving a criminal sentence or is under the custody of the Commissioner of Corrections, which includes the terms and conditions of sentence, probation, suspended imposition of sentence, discretionary or mandatory parole, furlough, executive clemency or other release, and the location of any place of incarceration, half-way house, restitution center or other correctional placement to which the person is assigned; and
(D) has had a criminal conviction or sentence reversed, vacated, set aside or has been the subject of executive clemency. These items, then, are all generally available from the computerized criminal justice information systems of various governmental units.
Past conviction information may be provided to a person for any purpose if less than ten years has elapsed since the date of unconditional discharge to the date of the request. AS 12.62.160(b)(9). "Past conviction information," as noted above, is information showing that an identifiable person who has been unconditionally discharged, has previously been convicted of a crime, and includes the terms of any sentence, probation, suspended imposition of sentence or parole, and information that a conviction of sentence has been reversed, vacated, set aside or been the subject of executive clemency. AS 12.62.900(20).
Criminal justice information may be provided if the information also is "commonly or traditionally provided by criminal justice agencies in order to identify, locate or apprehend fugitives or wanted persons or to recover stolen property, or for public reporting of recent arrests, charges and other criminal justice activity. AS 12.62.160(b)(3), and may be provided to the person who is the subject of the information. AS 12.62.160(b)(10). Notwithstanding the Public Records Act, a criminal justice agency may charge fees for processing requests for records. The nature of these fees, and certain other issues relating to access to information which is permitted by law is set forth in AS 12.62.160(c) and (d).
A person whose criminal justice information has been released or used in knowing violation of the CJIS statute or a regulation adopted pursuant to it may bring an action for damages in the superior court. In a civil or criminal action based on violation of the CJIS statute, or regulations adopted pursuant to it, it is a defense if the person relied in good faith upon the provisions of the CJIS statute or of other laws or regulations governing maintenance, release or use of criminal justice information, or upon policies or procedures established by a criminal justice agency. AS 12.62.200. Depending upon how broadly or literally the term "criminal justice information" is interpreted, the Public Records Act, and particularly that portion of it dealing with records or information compiled for law enforcement purposes, AS 40.25.120(6), would constitute an "other law governing maintenance, release or use of criminal justice information."
- Continuing Access to Criminal Record Information. “Although setting aside a conviction limits the consequences of the conviction itself, it does not change the fact that an individual was previously found guilty of committing a crime. … [W]here a conviction is set aside it ‘does not mean that the crime, and the events surrounding the crime, never occurred.’ Setting aside a conviction does not expunge the conviction from the individual's criminal record, which means that "[b]oth the conviction and the judgment setting it aside consequently remain in the public record." Thus, although the set aside indicates that the defendant has made a "substantial showing of rehabilitation," it does not erase the fact of conviction. State Board of Nursing v. Platt, 169 P.3d 595, 599 (Alaska 2007) (citing Journey v. State, 895 P.2d 955, 962 (Alaska 1995), add’l cites omitted). The only instance in which Alaska law provides that an adult may have a conviction removed from his or her criminal record is where he or she is able to show that "beyond a reasonable doubt, [the conviction] resulted from mistaken identity or false accusation." Id., citing AS 12.62.180(b). In Farmer v. State, 235 P.3d 1012 (Alaska 2010), while acknowledging that it is an open question whether Alaska courts have limited inherent authority to expunge criminal records, as federal courts do, the Supreme Court affirmed a superior court ruling that the petitioner in that case would not qualify for expungement even if such authority exists, because any such inherent judicial authority to expunge criminal records should be an exceptional or extraordinary remedy rather than a generally available one. Because the fact of conviction remains part of an individual's criminal record after a conviction is set aside, "[m]embers of the public, such as potential employers inquiring into a job applicant's criminal record, can learn of the existence of a conviction that has been set aside." Platt, 895 P.2d at 600. The court added that it was “cognizant of the fact that criminal records, even those containing convictions that have been set aside, often have ‘pernicious effects.’ We observed in Journey v. State that ‘a person with a criminal record is often burdened by social stigma, subjected to additional investigation, prejudiced in future criminal proceedings, and discriminated against by prospective employers.’ These consequences may be harsh…(b)ut they appear to be within the contemplation of the legislature that enacted (the statute regarding grounds for denial, suspension or revocation of a nursing license).” Id. “ Members of the public, such as potential employers inquiring into a job applicant's criminal record, can learn of the existence of a conviction that has been set aside. They can do this by researching court records or by requiring a person applying for employment or housing to divulge the fact of a prior conviction even if it has been set aside.” Doe v. State, 92 P.3d 398, 407 (Alaska 2004).
Similarly, in Johnson v. State, 50 P.3d 404 (Ak. App. 2002), a man convicted of kidnapping and rape, after serving his time and no longer on supervised probation and parole, moved to have the court seal the records of his criminal convictions. At the time he filed his motion in 2001, Johnson was not required to register as a sex offender because he committed his sexual offense in 1980, prior to the Legislature's 1994 enactment of the Alaska Sex Offender Registration Act, and Doe v. Otte, 259 F.3d 979, 995 (9th Cir. 2001), holding that the Alaska Sex Offender Registration Act violates the Ex Post Facto Clause of the United States Constitution when applied to defendants whose crimes were committed before enactment of the law, was still on appeal to and had not been reversed by the United States Supreme Court. The Court of Appeals affirmed the superior court's finding that the public policy reasons for allowing criminal records to remain open to the public outweighed the reasons that Johnson proffered for sealing his records. 50 P.3d at 405-406. The appellate court recited the strong state policy and history favoring open access to public records at common law and pursuant to the state's public records act. It also noted more specifically that AS 12.62.160(b)(8) provides for the use and release of this sort of criminal justice information, and that the court system’s Adminstrative Rule 37.5 presumptively requires public, absent an applicable exemption. The Court of Appeals noted that in cases where there is no express exception to the state's disclosure laws, we balance "the public interest in disclosure on the one hand, and the privacy and reputation interests of the affected individuals together with the government's interest in confidentiality, on the other." We also recognize the legislature's expressed bias in favor of public disclosure and that "doubtful cases should be resolved by permitting public inspection." Id. at 406. “In a case involving criminal records,” the Court of Appeals said, “we balance the public's right to know about an individual's past crimes against the convicted individual's right to privacy. Johnson's case is no different than any number of felons who are successfully rehabilitated yet who can point to negative events in their lives and blame the events on the disclosure of criminal records. ‘Courts, commentators and legislatures have recognized that a person with a criminal record is often burdened by social stigma, subjected to additional investigation, prejudiced in future criminal proceedings, and discriminated against by prospective employers.’" Id. The court found that state law and the court rules express a clear preference for public records to remain accessible.
- Commission on Judicial Conduct. A Commission on Judicial Conduct has been established to inquire into various allegations about judges involving criminal misconduct, disabilities that interfere with performance of judicial duties, misconduct in office, failure to perform judicial duties, and other similar problems. The commission may, after a hearing, decide to exonerate the judge of the charges, reprimand the judge publicly or privately, or refer the matter to the Supreme Court with recommendations that the judge be suspended, removed or retired from office or publicly or privately censured by the Supreme Court. If the commission decides to reprimand a judge privately, the private reprimand is confidential by law. If the commission exonerates a judge, a copy of the proceedings and report of the commission may be made public on the request of the judge. AS 22.30.011. The statute further provides that all proceedings, records, files and reports of the Commission on Judicial Conduct are confidential and may not be publicly disclosed except upon written waiver of the judge in question, or upon filing of formal charges in which case only the charges, the subsequent formal hearing, and the Commission's ultimate decision and minority report, if any, shall become public. AS 22.30.060. That section further provides that if the subject matter or the fact of the filing of charges has become public, the commission may issue a statement in order to confirm the pendency of the investigation, to clarify the procedural aspects of the proceedings, to explain the right of the judge to a fair hearing, or to state that the judge denies the allegations. Except as stated above, proceedings and records pertaining to proceedings that occur before the Commission holds a hearing are confidential, AS 22.30.011(b), and even after formal charges are filed, the deliberations of the Commission concerning the case are confidential. AS 22.30.060(b)(3).
- Jury Box and Computer List. The "jury box" (with named or numbered pieces of paper corresponding to the jury list), or the computer list (a randomly generated list of prospective jurors that may be used in place of the jury box) to be used for jury selection "may be examined by the parties or by an attorney authorized to practice law in the state within limitations and under conditions prescribed by the court." By negative implication, these records pertaining to potential jurors are not available to the press or public generally. This question would most likely be answered by reference to constitutional or common law concerning access to judicial records and juror privacy. AS 09.20.060. See also, Alaska Administrative Rule 15(j), which provides, under the section on “Juror Privacy,” that trial questionnaires and trial panel lists are confidential. These items, along with dates of birth of individuals on the trial panel list, are provided to the parties and counsel of record for use only in connection with jury selection in the case for which the questionnaires and lists were prepared. If jurors are questioned in private, the electronic record and log notes related to that questioning are confidential, but otherwise the electronic record and log notes from jury selection are public. Records of juror attendance are confidential, except for certificates of attendance for the juror’s employer.
- Opening or Publishing Contents of Sealed Letters. It is a crime for one to willfully and without authorization open or read a sealed letter not addressed to him or her, or to publish any portion of a letter knowing it was opened without authority of the writer or addressee. AS 11.76.120.
- Intercepted Private Communications. Upon proper application, and for specified reasons, authorities may obtain judicial approval for intercepting private communications. AS 12.37.010-.130. Tapes or other recordings, and any records made during the interception, and all applications made and all orders authorizing interception are sealed, and maintained as the court directs, for at least ten years. AS 12.37.070-.080.
- Medical Death Examinations; Child Fatality Review Teams. When the state medical examiner issues an investigative report containing the examiner's findings and conclusions after an investigation or inquiry is completed, the report is a privileged and confidential document, not subject to public disclosure under AS 40.25. It may be disclosed to public officers and employees for a public purpose and, when doing so will not interfere with an ongoing investigation or prosecution, to a person who is related to the deceased or who has a financial or personal interest in the estate of the deceased person. AS 12.65.020(b).
A state child fatality review team assists the state medical examiner by performing a variety of functions, including determining the cause and manner of the deaths of children under 18, and, unless the child's death is currently being investigated by a law enforcement agency, promptly reviewing the medical examiner's reports of a death of a child if the child is under 10, or the deceased child, a sibling, or a member of the deceased child's household was is in the legal or physical custody of the state, or has been the subject of a report of harm or a child abuse or neglect investigation, or if a protective order has been in effect during the previous year in the deceased child's immediate family or household, or the child's death occurred in a mental health institution, mental health treatment facility, foster home, or other residential or child care facility, including a day care facility. Further, the team must review records concerning abuse or neglect of the deceased child or another child in the deceased child's household, and the criminal history or juvenile delinquency of a person who may have caused the death of the child and of persons in the deceased child's household, and concerning a history of domestic violence involving a person who may have caused the death of the child or involving persons in the deceased child's household, including records in the central registry of protective orders. AS 12.65.130.
The state child fatality review team may (1) collect data and analyze and interpret information regarding deaths of children in this state; (2) develop state and local databases on deaths; (3) develop a model protocol for the investigation of deaths of children; and (4) periodically issue reports to the public containing statistical data and other information that does not violate federal or state law concerning confidentiality of the children and their families involved in the reviews. These reports may include identification of trends, patterns and risk factors in deaths of the children; analyses of the incidence and causes of deaths of children in this state; recommendations for improving the coordination of government services and investigations; and recommendations for prevention of future deaths of children. AS 12.65.130(b).
The child fatality review teams and their members shall have access to all information and records to which the state medical examiner has access, and must maintain the confidentiality of such information and records concerning deaths under review, except when disclosures may be necessary to enable the team to carry out its duties. However, the team and its members may not disclose a record that is confidential under federal or state law. AS 12.65.140(a). Except for public reports issued by the team, records and other information collected by the team or a member of the team related to duties are confidential and not subject to public disclosure under the public records act. AS 12.65.140(b). The state medical examiner is directed to help form local, regional, or district child fatality review teams to assist local, regional and district medical examiners in determining the cause and manner of deaths of children under 18 years of age. Any such teams have the same access to information and confidentiality requirements as the state child fatality review teams. AS 12.65.015.
- Reports on Outcome of Civil Litigation. Civil litigants whose cases are resolved by trial, dismissal, summary judgment, settlement, or otherwise must report to the Alaska Judicial Council information about the terms of the resolution or settlement, including the name, number and general description of the case, the dollar amounts and nonmonetary terms payable and the party and/or attorney to whom the amounts were paid as damages, attorney fees or otherwise. The information so received by the council is confidential. This restriction does not prevent the disclosure of summaries and statistics in a manner that does not allow the identification of particular cases or parties. AS 09.68.130
- Restitution. When restitution is ordered as part of criminal sentencing, the Department of Law is authorized to collect restitution on behalf of the recipient unless the recipient doesn't want that. Information forwarded by the court to facilitate this collection is confidential and is not open to inspection as a public record. The Department of Law or its agents may not disclose the information except as necessary to collect on the restitution. AS 12.55.051(f).
- Drug Testing for Bus Drivers. Drivers of motor vehicles used to transport school children must submit to tests for use of drugs and alcohol, and the testing program must include random testing. For a driver who is not required to have a commercial driver's license, an employer shall keep and maintain records of the testing for improper use of drugs or alcohol on a confidential basis. AS 14.09.025. This would seem to imply that records of those bus drivers who are required to have commercial licenses are not confidential.
- Employee Evaluations. School boards must adopt certified employee evaluation systems for evaluation and improvement of the performance of the district's teachers and administrators. Information provided to a school district under the school's evaluation system concerning the performance of an individual being evaluated is not a public record but the person being evaluated is entitled to a copy and can waive confidentiality. AS 14.20.149(h).
- Student Financial Aid. All information submitted in connection with a determination by educational institutions of financial need is confidential; applicants can authorize release. AS 14.43.910.
- Collective Bargaining. In collective bargaining sessions between post-secondary institutions that are public employers, and representatives of bargaining units of faculty or other employees, student representatives of those institutions may:
(1) attend and observe all meetings between the public employer and the representative of the bargaining unit which are involved with collective bargaining; and
(2) have access to all documents pertaining to collective bargaining exchanged by the employer and the representative of the bargaining unit, including copies of transcripts of the meetings.
AS 23.40.245. The statute specifically states that student representatives may not disclose information concerning the substance of collective bargaining obtained in the course of their activities as observers or participants in these meetings, unless said information is released by the employer or the representative of the bargaining unit. At least by implication, therefore, the law makes confidential the information and records maintained by the institution in the course of those same collective bargaining negotiations during the time they are underway.
- University Board of Regents. All records of meetings and proceedings of the University of Alaska Board of Regents must be open to inspection by the public and press, and findings of an executive session must be made part of the record of proceedings. AS 14.40.160(a).
- Information About University Lands. Notwithstanding the public records act, on a determination that it is in the best interest of the University of Alaska, or on the request of the person who has provided the information, the president of the university may keep the following confidential: (1) the name of a person applying for the sale, lease or other disposal of university land or an interest in university land; (2) before the issuance of a notice of intent to award a contract relating to a sale, lease or disposal of university land or an interest in university land, the names of the participants and the terms of their offers; (3) all geological, well, geophysical, engineering, architectural, sales, market, cost, appraisal, timber cruise, gross receipts, net receipts or other financial information relating to university land or an interest in university land and considered for, offered for or currently subject to disposal or a contract; (4) cost data and financial information submitted by an applicant in support of applications for bonds, leases or other information in offerings and ongoing operations relating to management of university land; (5) applications for rights-of-way or easements across university land; and (6) requests for information about or applications by public agencies for university land that is being considered for use for a public purpose. 14.40.367
- Confidentiality of Research. The public records inspection requirements of AS 40.25.110 - 40.25.121 do not apply to writings or records that consist of intellectual property or proprietary information received, generated, learned or discovered during research conducted by the University of Alaska or its agents or employees until publicly released, copyrighted or patented, or until the research is terminated, except that the university shall make available the title and a description of all research projects, the name of the researcher, and the amount and source of funding provided for each project. AS 14.40.453.
- Alaska Higher Education Savings Trust. Names, addresses and other information identifying a person as a participant in the Alaska Higher Education Savings Trust under AS 14.40.802 or the advance college tuition savings program under AS 14.40.803 - 14.40.817 are confidential. See also, AS 47.14.400(d).
- Alaska Aerospace Corporation. The Legislature in 1991 created the Alaska Aerospace Corporation as a public corporation, located for administrative purposes in the Department of Commerce, Community, and Economic Development and affiliated with the University of Alaska, but with a separate and independent legal existence. Records of the corporation are generally public, but trade secrets or other proprietary technical information supplied to the corporation is confidential unless the owner of the trade secret authorizes its release or a court orders it. AS 26.27.130.
- Elections; Voter Registration Records. The following information set out in state voter registration records is confidential and is not open to public inspection: the voter's age or date of birth; Social Security number, driver's license number; voter identification number; place of birth and signature. In addition a voter may elect in writing to keep the voter's residential address confidential and not open to public inspection if the voter provides a separate mailing address. Information may be released with consent of the voter, pursuant to court order, or in certain other limited cases. AS 15.07.195.
- Fish and Game.
- Fish Tickets. Records required by Fish and Game to be filed concerning the landings of fish, shellfish or fishery products, and annual statistical reports of buyers and processors required by regulation of the Alaska Department of Fish and Game are confidential. Records or reports received by the department that do not identify individual fishermen, buyers or processors or the specific locations where fish have been taken are public information. AS 16.05.815.
- Crab Surveys. Crab stock abundance survey information that reveals crab catch for sampling locations is confidential until the close of the season. AS 16.05.815(c).
- Wildlife Information. Except as specified, the Department of Fish and Game must keep confidential for 25 years (1) personal information contained in fish and wildlife harvest and usage data; and (2) department records concerning (A) telemetry radio frequencies of monitored species, (B) denning sites, (C) nest locations of raptors that require special attention, (D) specific capture sites used for wildlife research and management, and (E) the specific location of fish and wildlife species. AS 16.05.815(d).
- Commercial Fishing Loan Information. Information supplied by individuals to secure state loans for commercial fishing gear or vessels can be released with authorization of the borrower; by negative implication, it is confidential. AS 16.10.353.
- Aquaculture Records. Records concerning aquatic farm stocks or production, prices, and harvests of aquatic farm products and wild stocks, and annual statistical reports of individual aquatic farms or hatcheries required by statute or by a regulation adopted by the department are confidential and may not be released by the department, except that the department may release the records and reports, with limited exceptions. AS 16.40.155.
- Sport Fishing Data. Information collected by the Department of Fish and Game from sport fishing guides, including identification of vessels used in providing sport fishing guide services; the amount of fishing effort, catch and harvest by clients of a sport fishing guide; the locations fished; and other information that the department or board requires by regulation is confidential to the extent provided under AS 16.05.815.
- Limited Entry Permit Holder Information. Documents submitted to the Limited Entry Commission containing information relating to an individual's personal finances and information supplied by individuals for research purposes, produced in response to requests by the commission, are not subject to public disclosure. AS 16.43.975.
- Food and Drugs — Controlled Substances.
- Medical Research. AS 17.30.155 prohibits disclosure by medical practitioners or medical researchers of the name or identity of a patient or research subject. While the language of this subsection is very broad, the context clearly indicates it applies to dispensing controlled substances and research and education to prevent and deter abuse of controlled substances. AS 17.30.100 prohibits the Department of Public Safety, which enforces this chapter, from releasing the same information.
- Controlled substance prescription database. The Board of Pharmacy administers a controlled substance prescription database, to which pharmacists are required to report virtually every schedule II, III, or IV controlled substance under federal law dispensed in the state. AS 17.30.200. The database and the information contained within the database are confidential, are not public records, are not subject to public disclosure, and may not be shared with the federal government. AS 17.30.200(d). The Board of Pharmacy is authorized to provide unsolicited notification to a pharmacist, practitioner's licensing board, or practitioner if a patient has received one or more prescriptions for controlled substances in quantities or with a frequency inconsistent with generally recognized standards of safe practice, but any such report is confidential. AS 17.30.200(q). Also, the Board may issue to a practitioner periodic unsolicited reports that detail and compare the practitioner's opioid prescribing practice with other practitioners of the same occupation and similar specialty. AS 17.30.200(t). A report issued under this subsection is confidential and may be issued only to a practitioner.
- Medical Marijuana Registry. The confidential registry of patients who have applied for and are entitled to receive a registry identification card according to the criteria set out in this statute. The registry and the information contained within it are not subject to disclosure under the public records act. AS 17.37.010.
- Decedents’ Estates, Guardianships, Transfers, Trusts and Health Care
- Establishment of Wills and Trusts Validity Before Death. A person with requisite interest can petition the court to determine before a testator's death that a will is valid will subject only to subsequent revocation or modification, or to determine before a settlor's death that a trust is valid and enforceable under its terms. AS 13.12.530, 13.12.535. A notice of the filing of such a petition, a summary of all formal proceedings on the petition, and a dispositional order or a modification or termination of a dispositional order relating to such proceeding shall be available for public inspection. AS13.12.585(a). With limited exceptions provided in section (b) of the statute, all other information contained in the court records relating to a proceeding is confidential, although for good cause shown, the court may order confidential records to be made available to a person who is not listed in section (b). AS13.12.585(c).
- Guardianships. There are laws that provide for appointment of a guardian for someone who is incompetent to handle his or her own affairs, for a variety of reasons. Parts of the record in such proceedings are open, and parts are closed. Specifically, a notice of the filing of the petition, a summary of all formal proceedings, and a "dispositional order" or an order modifying or terminating a "dispositional order," all must be open to public inspection. All other information in the court files relating to such proceedings is confidential, and not open to public inspection. If a court finds that a petition was filed maliciously, frivolously or without just cause, the entire record can be sealed, including those items otherwise open to public inspection. In such a case, the information may be disclosed only "for good cause shown." AS 13.26.021. See also, Alaska Probate Rule 14.
Statements of wards, or respondents in cases seeking appointment of a guardian, made in the course of evaluations, examinations and treatment, are confidential. AS 13.26.241.
- Public Guardian. The public guardian has the same powers and duties with respect to the public guardian's wards and protected persons as a private guardian or conservator. 13.26.720(a). The records required to be kept and maintained in connection with the public guardian’s duties under the statute section are confidential and are not subject to inspection or copying under the public records act unless the records are relevant to an investigation or proceeding involving the public guardian or a case in which the public guardian provided guardianship or conservatorship services. 13.26.720(c).
- Wills. By law, individuals may deposit their wills with the superior court for safekeeping, and these wills remain confidential. AS 13.12.515.
- Health, Safety, Social Services.
- Access to health care records. The Department of Health and Social Services may inspect health care records that would identify cancers, birth defects or infectious disease required to be reported, and may conduct research using such health care data. Data obtained or a records inspected under this section that identify a particular individual are confidential, and are not subject to inspection or copying under the public records act. AS 18.05.042.
- Disclosure of Medical Records. Limited disclosure of medical records for purposes of providing or evaluating emergency medical care may be made so long as disclosure is limited to that considered necessary for these purposes, and no further disclosure of confidential records is made to unauthorized persons. AS 18.08.087.
- Blood Testing of Sex Offenders. Blood tests for HIV and other sexually transmitted diseases that a court orders an alleged sex offender to undergo are to be maintained as confidential, except by the test subject, and except for disclosures to the victim as necessary to obtain medical or psychological care or advice, ensure health or safety of relatives and associates, or to pursue civil remedies. AS 18.15.310.
- Medical Information Security Safeguards. The Department of Health and Social Services collects information concerning a variety of reportable diseases, contagious and otherwise, and epidemiological information, and is required to acquire, use, disclose and store identifiable health information in a confidential manner that safeguards the security of the information, and maintain the information in a physically and technologically secure environment. AS 18.15.365. Bloodborne pathogens test results of an adult or juvenile offender or a prisoner are confidential and may not be disclosed except as provided by law and as needed for the treatment or medical care of an adult or juvenile offender or a prisoner specific to a bloodborne pathogen-related illness. AS 18.15.440.
- Judicial Bypass for Minor Seeking Abortion. A 2010 voter-enacted Parental Notification Law provided for a pregnant, unmarried, unemancipated woman under 17 years of age, who wished to have an abortion without the consent of a parent, guardian or custodian to file a complaint in the superior court requesting the issuance of an order authorizing the minor to obtain the abortion without such consent. The law required that this judicial bypass hearing, and all related proceedings, be conducted in a manner that preserved the anonymity of the complainant, and provided that the complaint and all other papers and records relating to the action or any related appeal are confidential, and not disclosable as public records. AS 18.16.030. The Alaska Supreme Court held that the Parental Notification law violated the Alaska Constitution’s equal protection guarantee and cannot be enforced. (Three members of the Court also found that the law violated the Alaska Constitution’s right to privacy.) Planned Parenthood of the Great Northwest v. State, 375 P.3d 1122 (Alaska 2016). An alphabetical index of all proceedings to bypass parental consent to an abortion will be kept under the name of the petitioner, but the index is confidential. Alaska Probate Rule 3(f), (g).
- Hospitals. AS 18.20.090, concerning confidentiality of information obtained by the Department of Health and Social Services in connection with licensing hospitals and other health care facilities in a manner that identifies an individual or hospital was repealed. Related issues are addressed in AS 47.32.180, see Open Records Guide, subsection II.B.36(s).
- Health Care Review. State law establishes certain "review organizations," including the State Medical Board, hospital governing bodies and others, that are to gather and review information relating to the care and treatment of patients. The purposes for doing this include, among others, evaluating and improving health care, reducing morbidity or mortality, work or cost controls, develop professional standards and norms of care, and ruling on controversies and disputes involving insurance carriers, licensing boards and others. All data and information acquired by a review organization must be held by it in confidence. However, information, documents or records otherwise available from original sources are not immune because they were presented during proceedings of a review organization. AS 18.23.030.
- Vital Statistics. It is unlawful for a person to permit inspection of, or disclose information contained in, vital statistics records, or to copy or issue a copy of all or part of such records, except as authorized by the statute or regulations. Notwithstanding AS 40.25.120, when 100 years have elapsed from the date of birth, or 50 years after a death, marriage, divorce, dissolution or annulment, these records become public. AS 18.50.310(a), (f).
- Adoptions, Legitimations. The name and address of a biological parent of an adopted person are not disclosable to the public, AS 18.50.500(b), and the original birth certificate (which can be superseded by a new certificate in adoption or legitimation proceedings) and evidence of adoption are not subject to public inspection. AS 18.50.220(b)(1). In the case of legitimation, the original certificate and evidence of legitimation are not subject to public inspection. AS 18.50.220(b)(1).
- Workplace Safety Inspections. State law provides for an employee or employee representative to accompany a Department of Labor and Workplace Development representative during a physical inspection of a work place. The law further makes confidential any comments made by an employee or employee representative, to the labor department representative, during an inspection relating to an employer's compliance with occupational health and safety laws. It also keeps the name of any such employee or employee representative confidential. AS 18.60.087. Likewise, the law provides for an employee who believes that a health or safety violation exists that threatens physical harm or imminent danger to request a special inspection by giving notice to the labor department. The department must keep the complaining employee's name, and the names of employees referred to in the notice, confidential unless expressly agreed otherwise by the employee giving notice. AS 18.60.088. Information obtained by the labor department, in connection with health or safety inspections, that contain or might reveal trade secrets, must be kept confidential. AS 18.60.099.
- Radiation Protection. The Department of Health and Social Services is given broad powers to "develop comprehensive policies and programs for the evaluation and determination of hazards associated with radiation sources and their amelioration;" and to gather information, conduct investigations and review records relating to possible radiation hazards and related problems. The law provides that the department "may keep confidential" data obtained as a result of registration or investigation. AS 18.60.475(b).
- Sex Offender Registration. The Alaska Sex Offender Registration Act (ASORA) requires persons convicted of sex offenses or child kidnapping to register and periodically re-register with the Alaska Department of Corrections, the Alaska State Troopers, or local police, and to disclose detailed personal information, including that specified in AS 12.63.010, some of which is not otherwise public. The Department of Public Safety is required to maintain a central registry of sex offenders and child kidnappers. AS 18.65.087. Most of the disclosed information is publicly disseminated and is published by the state on the internet. Specifically, AS 18.65.087(b) provides that information about a sex offender or child kidnapper that is contained in the central registry, including sets of fingerprints, is confidential and not subject to public disclosure except as to the sex offender's or child kidnapper's name, aliases, address, photograph, physical description, description of motor vehicles, license numbers of motor vehicles, and vehicle identification numbers of motor vehicles, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, length and conditions of sentence, and a statement as to whether the offender or kidnapper is in compliance with requirements for reporting residency and other information, or cannot be located. The department, at least quarterly, shall compile a list of those persons with a duty to register under who have failed to register, whose addresses cannot be verified, or who otherwise cannot be located. The department shall post this list on the internet and request the public's assistance in locating these persons. 18.65.087(g). The name, address, and other identifying information of a member of the public who makes an information request under this section is not a public record under the Public Records Act. AS 18.65.087(e). In general, courts have upheld ASORA against legal challenges, although courts have found the registration requirement unconstitutional with respect to two classes of convicted offenders, those convicted and sentenced before the effective date of ASORA, and those whose convictions had been set aside pursuant to a suspended imposition of sentencing, before the effective date of the act. These decisions are discussed in more detail in [Open Records] §IV.N.12.
- Concealed Handgun Permits. The list of concealed handgun permittees, and all applications, permits and renewals are not public records, and may only be used for law enforcement purposes. AS 18.65.770.
- Images Captured By Unmanned Aircraft Systems. A law enforcement agency may not retain images captured by an unmanned aircraft system unless retention of the image is required as part of an investigation or prosecution, for training purposes, or by federal or state law or by municipal ordinance. Images that may not be retained are confidential, and not public records. AS 18.65.903.
- Domestic Violence Fatality Review Teams. Domestic violence fatality review teams established by the commissioner of public safety in various areas of the state, or by a municipality, investigate fatal incidents of domestic violence, and incidents of domestic violence involving serious physical injury The review may include a review of the confidential and other records of a department or agency of the state or a municipality relating to the domestic violence incident. The team and each member of it must preserve the confidentiality of any records examined. AS 18.66.400(a). Except for a public report issued by a domestic violence fatality review team that does not contain confidential information, records or other information collected by a team or any member of a team related to duties is confidential and not subject to public disclosure under the public records act. AS 18.66.400(d).
- Violent Crimes Compensation. An application for compensation from the Violent Crimes Compensation Board, and personally identifying information relating to an applicant for compensation, are confidential records and may not be released by the board. 18.67.030(c).
- Public Defender Records. Although AS 18, chapter 85, establishing the Public Defender Agency, does not expressly address confidentiality, it is implicit that information communicated to Public Defender Agency employees is confidential in the same manner as if they were made to private attorneys. Compare AS 18.85.100(a); AS 18.85.120(d).
- Human Rights Commission. Laws governing the State Commission for Human Rights require confidentiality of records of investigation, and information obtained during an investigation, into alleged violation of anti-discrimination laws. Also, the Commission may not make public the name of a person initiating a complaint or of a person alleged to have committed the unlawful practice or act. There are provisions for disclosure of information, through the parties, when and if the matter proceeds to administrative or judicial hearings. AS 18.80.115.
The state, employers, labor organizations and employment agencies must maintain records on age, sex and race to assist Human Rights Agencies in administering civil rights laws and regulations. These records themselves are confidential, but statistical information compiled from records on age, sex and race are available for public disclosure. AS 18.80.220(b).
The records and insurance filings in the office of the director of insurance, which include, among others, records of official transactions, examinations, investigations and proceedings, are open to public inspection except as provided in the insurance code. AS 21.06.060(a). Among the documents and information submitted to or obtained by the director that are deemed confidential are personally identifiable consumer information, information or records shown to be trade secrets or proprietary business information, certain analysis ratios and examination synopses. Documents designated as confidential are exempt from disclosure under the public records act. However, the director of insurance may release otherwise confidential information and records for public inspection if the person who provided the information consents or releases incomplete or misleading information on the same topic to the public. AS 21.06.060(b)(4). The director may withhold information or records from public inspection for as long as the director finds the withholding is necessary to protect a person against unwarranted injury, or is in the public interest. AS 21.06.060(g).
- Examinations. The state insurance code provides for examinations of insurance companies and agents, managers, brokers, producers, adjusters and promoters. Those examined and their employees and officers must produce or provide the insurance director with free access to their books, accounts, records, documents, files, information, assets and other matters in their possession or control relating to the subject of the examination, including all computer and other recordings relating to the property, assets, business and affairs of the person being examined. The process allows the one being examined to seek extensions and file rebuttals, provides for review by the director of the entire package, and prohibits disclosure of a preliminary examination report. Information and records obtained by the director under the statutes providing for examinations are confidential. The director may publish an examination report or a summary of it in a newspaper or electronic media in the state if the director determines that the publication is in the public interest. AS 21.06.150(g). Comparing 1992 and 1990 amendments to AS 21.06.150, and AS 21.06.060 (which makes insurance records presumptively public), it appears that the insurance director no longer has the discretion to withhold disclosure of investigation (as opposed to examination) reports. A foreign insurer is required to keep at their principal place of business a complete record of its assets, transactions, and affairs, and to provide such records as may be requested by the director. AS 21.09.320. Records inspected or examined under this subsection are confidential, but may be used by the director in a proceeding against the insurer.
- Audited Financial Reports. Insurers authorized to do business in the state must file with the Director of the Division of Insurance an annual statement of its financial condition, transactions, and affairs, and most must file an annual audited financial report. Within 60 days after filing the annual audited financial report, the insurer must file a written report on any unremediated material weakness in internal control over financial reporting noted during the audit, and the director may require the insurer to file a report from management describing internal control over financial reporting. If the director requires the submission of additional information, the insurer must supplement these reports on internal control, which reports are confidential and subject to the provisions of AS 21.06.060. AS 21.09.200(h)-(j).
- Reports Concerning Material Transactions. Domestic insurers must file reports with the director disclosing material acquisitions and dispositions of assets and material nonrenewals, cancellations or revisions of ceded reinsurance agreements as defined by the statute. Such reports obtained by or disclosed to the director are generally confidential, not disclosable without consent of the submitting insurer. However, the director may publish all or any part of such reports upon a determination, after notice to the insurer, that the interest of policyholders, shareholders or the public will be served by publication. AS 21.09.300.
- Reports About Remedying Concerns With Risk-Based Capital. Insurers operating in the state must submit to the Director of Insurance a report of their risk-based capital covering the previous calendar year, if required by the director. Also, certain events (variously prioritized under the categories of "company action level event," "regulatory action level event," "authorized control level event," and "mandatory control level event") may trigger an obligation of the insurer to file a plan containing specified information identifying the conditions that contribute to the level event, proposals for corrective action, financial projections, and other information. These reports and plans, the results or report of an examination or analysis of an insurer performed under this chapter, and a corrective order issued by the director are confidential. They may not be made public by the director or another person without the prior written consent of the insurer who is the subject of the report, plan, analysis or order. If the director, after giving the insurer and its affiliates who would be affected by publication of the information notice and opportunity to be heard, determines that the interests of policy holders, shareholders, or the public will be served by the publication of the information, a director may publish all or part of the information in the manner the director considers appropriate. AS 21.14.090.
- Assets and liabilities of insurers. A life insurer doing business in the state must annually submit to the director an opinion of a qualified actuary as to whether the reserves and related actuarial items held in support of a policy or contract are computed appropriately, are based on assumptions that satisfy contractual provisions, are consistent with prior reported amounts, and comply with the applicable laws of the state. A memorandum in support of an actuarial opinion and other supporting material provided by an insurer to the director are confidential and may not be made public. Once a portion of the memorandum or other material is cited by the insurer in its marketing, is cited before a governmental agency other than the state insurance department, or is released by the company to the news media, the remainder of the confidential memorandum or other material is no longer confidential. AS 21.18.110(m), (s).
- Other Provisions Relating to Books and Records and Disclosures. Certain filings must be made before a person can attempt to acquire or merge with an insurance company. This filing must contain detailed information about the proposed transaction, including a description of the consideration to be used to accomplish the merger or acquisition of control, and the identity of persons furnishing the consideration. However, if the source of the consideration is a loan made in the lender's ordinary course of business, the director of insurance must keep the identity of the lender confidential, if the person filing the statement asks that this be done. AS 21.22.020.
At various times, events have raised questions about the solvency and conduct of certain insurance companies doing business in Alaska, and of the oversight responsibilities of the Division of Insurance. In fact, state law requires disclosure by insurance companies to the Director of Insurance of a great deal of information. AS 21.22.060 requires every insurer that is authorized to do business in Alaska and that is a member of an insurance holding company system to register with the director and to provide current information about its capital structure, general financial condition, ownership and management, the identity of every member of the insurance holding company system, and information about various agreements, relationships and transactions concerning loans, investments, purchases, sales or exchanges of securities, purchases, sales, transactions not in the ordinary course of business, guaranties, management and service contracts, cost sharing arrangements, and reinsurance agreements, with exceptions for certain insubstantial transactions. AS 21.22.060. The Director of Insurance also has the power under certain circumstances to order a registered insurer to produce records, books or other information or papers in the possession of the insurer or its affiliates necessary to ascertain the financial condition or legality of conduct to the insurer. AS 21.22.110. The law provides that all information and documents obtained by or disclosed to the director in the course of an examination or investigation made under AS 21.22.110, all information reported under AS 21.22.060, or AS 21.22.020(b), or 21.22.085-21.22.105, and all information required to be provided before an acquisition of control is approved under AS 21.22.065, shall be "given confidential treatment" under 21.22.060 and not made public, without prior written consent of the insurer to which it pertains. AS 21.22.120. However, the law also allows the director to determine that the interests of the public (or policyholders or shareholders) would be best served by publication of the information, and in such case to do so in any manner in which the director considers appropriate after giving the insurer that would be affected by publication notice and the opportunity to be heard on the question. Id. Any reporter who is working on a story involving the insurance industry and needs this kind of detailed information about insurance companies might do well to make a pitch to the director of insurance asking that the information be disclosed in the public interest.
An insurer authorized to write property, casualty, surety, marine, wet marine, transportation, or mortgage guaranty insurance shall file annually with the director a statement of actuarial opinion, unless the insurer is exempt or otherwise not required to file an opinion in the insurer's state of domicile. AS 21.09.207(a). An actuarial report, actuarial opinion summary, or work paper provided in support of a statement of actuarial opinion and any other information provided by an insurer to the director in connection with the statement of actuarial opinion, the actuarial opinion summary, or the actuarial report issued under this section is confidential. AS 21.09.207(d).
A domestic insurer must file, and a foreign insurer may be required to file, with the director of insurance a complete affidavit of biographical information of an officer or director of the insurer. A biographical affidavit filed under this section is confidential and not subject to public inspection. AS 21.09.247.
An insurer must maintain a risk management framework to assist the insurer with identifying, assessing, monitoring, managing, and reporting on its material and relevant risks. AS 21.23.010. Documents, materials, or other information, including the own risk and solvency assessment summary report, that are obtained by, created by, or disclosed to the director or another person under this chapter are confidential and are considered trade secrets and proprietary business information. AS 21.23.060.
- Records of Licensees. Licensees of the Division of Insurance must keep detailed records of insurance transactions, including records of all insurance contracts, commissions, investigations and adjustments. AS 21.27.350(a). In addition, they must keep current accounting and financial records. AS 21.27.350(d). The director of the Division of Insurance can review any of these records. AS 21.27.350(e) provides that "accounting and financial records inspected or examined under this section are confidential when in the possession of the division." By negative implication, the records of insurance transactions are not confidential, and this reading is supported by a comparison of the 1987 and 1992 amendments to section .350. Insurance producers, agents, administrators, brokers, adjusters and managers are generally required to be licensed. Appointments of insurance producers, managing general agents and reinsurance intermediary managers representing companies continue until such appointments are terminated in writing, and when someone is accused of engaging in licensed activities after termination, the termination must be submitted to the director. The statement of reasons for termination is confidential and not subject to inspection as a public record. AS 21.27.110(f). Third-party administrators representing insurers are required to maintain separate records for each insurer. The director has access to all books, bank accounts, and records of third-party administrators, but any trade secrets contained in these books and records, including identities and addresses of policyholders and certificate holders, are confidential. AS 21.27.650(a)(5)(F).
- Surplus Lines Insurance. In many instances, insurance brokers will go to carriers outside the state and not admitted to transact insurance in the state, in order to place insurance where the funds of the primary carrier would not be sufficient for it to write the insurance. Such surplus lines insurance brokers must file regular written reports that include various information including the name and address of the insurer, the identity of each insurer and percentage of coverage, description of the subject and location of risk, and so forth. These reports are confidential, although the brokers must also file monthly affidavits, open to public inspection, regarding efforts to place the coverage with "admitted insurers" and the results of those efforts. AS 21.34.080. These affidavits must state that the insured was informed before surplus lines insurance was placed that the surplus lines insurer is not licensed in Alaska, is not subject to the state's supervision, and that in the event of insolvency losses will not be covered under the Alaska Insurance Guaranty Association Act. Id. The insurance code also provides for the formation of a surplus lines association of surplus lines brokers to provide, among other things, verification of taxes and fees paid and of all surplus lines coverages written by its members to determine whether the coverages comply with state laws and regulations. A provision that examinations to accomplish those functions are confidential was deleted in 1992. AS 21.34.090. There is a further provision for the Director of Insurance to examine the surplus lines association at least every three years, and to examine its books, records, accounts, documents and agreements governing its operation. There is no provision in the statute that makes the Director of Insurance's examination confidential.
- Insurance Fraud. Alaska law frowns on insurance fraud. Among other things, the state requires insurance carriers who have reason to believe that a fraudulent claim has been made against them to send a report to the Director of Insurance disclosing information about that. Any papers, reports, documents, and evidence received under this law, or an investigation arising out of information received under this law, are not subject to public inspection "for so long as the director considers confidentiality to be in the public interest or reasonably necessary to complete an investigation or protect the person investigated from unwarranted injury." AS 21.36.400.
- Rating Organizations. One of those "invisible hands" that controls such things as our insurance premiums is a thing called the "rating organization." It is an organization that exists to provide information about the rates to insurance companies to help determine what the appropriate rates for premiums should be, and is supported primarily if not entirely by insurance companies that are members of the organization. The insurance code states that a rating organization can provide for the examination of policies, daily reports, binders, renewal certificates, endorsements or other evidences of insurance, or the cancellation thereof, and may make reasonable rules governing their submission. All information submitted for examination by the rating organization is confidential. AS 21.39.060(f). (Note, however, that AS 21.39.090, entitled "Rights of Insureds," allows insureds affected by a rate made by the rating organization to "all pertinent information concerning the rate.") Credit history may not be used to determine personal insurance rates or premiums or to make underwriting decisions unless the insurance scoring models are filed with the director. Insurance scoring models include all attributes and factors used in the calculation of an insurance score, statistical validation, documentation, appropriate loss information, and any other relevant factors. This information relating to insurance scoring models is confidential, considered a trade secret, and not subject to public inspection. AS 21.39.035.
- Small Employer Health Insurance Plans. A small employer insurer is required to maintain a complete and detailed description of its rating practices and renewal underwriting practices. The information is available to the director of insurance, but is otherwise confidential. AS 21.56.120(c).
- Motor vehicle service contracts. Providers of motor vehicle service contracts shall keep accurate accounts, books, and records related to the sale of motor vehicle service contracts, and retain them for at least five years after the contract is expired. The director of insurance may inspect or request summary or detailed copies of records for examination by the division. Accounting and financial records inspected or examined under this section are confidential when in the possession of the division, but may be used by the director in a proceeding against the licensee. AS 21.59.190.
- Title Insurance Company Rates. Statements of title insurance companies making a rate filing, setting out the basis on which the rate was determined, and justifications for the rate filing, are open to public inspection; however, information that can be used to identify the experience of a particular title insurance limited producer is confidential. AS 21.66.380(b).
- Reinsurance Agreements. Domestic stock insurers and domestic mutual insurers may reinsure all or part of their insurance in force with another insurer by a reinsurance agreement. Such reinsurance agreements are confidential per AS 21.060.060. See AS 21.69.610, AS 21.69.620.
- Life and Health Insurance Guarantee Association. The director of insurance is required to present to the Board of Governors of the Alaska Life and Health Insurance Guarantee Association certain ratios and listings of companies that the Board may use to carry out its duties and responsibilities under provisions relating to prevention of insolvencies. This information must be kept confidential by the Board until it is made public by the director. AS 21.79.100(d). The Board may make reports and recommendations to the director relating to the solvency, liquidation, rehabilitation or conservation of a member insurer or the solvency of insurers who apply to transact insurance business in the state; the director and the board shall keep the reports and recommendations confidential. The Association is required to keep records of meetings relating to its activities, and meetings or records of the Association may be open to the public upon a majority vote of the Board. AS 21.79.040(b). Absent a court order, these records may only be made public under AS 21.70.040(b) after termination of a liquidation, rehabilitation or conservation proceeding that involves the impaired or insolvent insurer, or after the insurer is no longer impaired or insolvent. AS 21.79.110(b).
- p. Alaska Insurance Guaranty Association Act. Alaska has created a nonprofit incorporated legal entity known as the Alaska Insurance Guaranty Association, the purpose of which is to provide a mechanism for payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurance company, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of this protection among insurers. The association has a board of directors that is selected by member insurers subject to approval of the commissioner of insurance. The board is under a legal duty to notify the commissioner of Commerce, Community, and Economic Development of information indicating that a member insurer may be insolvent or in a financial condition hazardous to the policyholders or to the public. The majority of the board of directors may request the commissioner to order an examination of such an insurance company. The law provides that the examination report under this section is to be treated like other examination reports. It also provides that in no event may the examination report be released to the board of directors before it is released to the public, and that the request for an examination shall be kept on file by the commissioner but it shall not be open to public inspection before the release of the examination report to the public. AS 21.80.110.
- Fraternal Benefit Societies. Provisions concerning annual statements, annual valuation certificates, and examinations or investigations of a fraternal benefit society, including public disclosure of related statements and reports by the director of insurance previously found in AS 21.84.340-390 have been repealed, apparently without being relocated elsewhere in the statutes.
- Health Maintenance Organizations. "Health maintenance organizations," which undertake to provide or arrange for basic health care services to enrollees on a prepaid basis, come within the definition of “managed care” entities under AS 21.07.250. Records concerning these HMOs are public except for trade secrets, privileged, confidential commercial or financial information as determined by the director, and information required on annual reports showing the number, amount and disposition of malpractice claims settled during the year by the HMO, AS 21.86.270, and information concerning malpractice claims settled. AS 21.86.100(b). AS 21.86.280, providing that data or information provided to an HMO pertaining to the diagnosis, treatment or health of an enrollee or applicant is generally confidential, was repealed. It is not clear to what extent this was intended to make available information previously confidential; note that medical and financial information in the possession of a managed care entity regarding an applicant or a current or former person covered by a managed care plan is confidential and is not subject to public disclosure. AS 21.07.040(a). A domestic health maintenance organization must file, and a foreign health maintenance organization may be required to file, with the director of insurance a complete affidavit of biographical information of an officer or member of the governing body of that organization. A biographical affidavit filed under this section is confidential and not subject to public inspection. AS 21.86.045.
- Provision of Prepaid Hospital and Medical Services. Detailed rate justifications, including a rate formula, filed by hospital and medical service corporations providing prepaid services to subscribers. AS 21.087.190(b).
- Managed Care Insurance Plans. Covered persons are required to provide information for various purposes relating to managed care health insurance plans, including to secure treatment or resolve disputes. A statute that addressed confidentiality of medical and financial information in the possession of a “managed care entity,” AS 21.07.040, was repealed, and this issue is now apparently left to federal and state regulations.
- Arson Investigations. AS 21.96.050(f)(1) appears to allow fire departments or other law enforcement agencies to keep confidential certain information regarding ongoing arson investigations.
- Labor and Employment.
- Drug testing. Test results and related communications relevant to an employer's drug or alcohol impairment testing program are confidential, with limited exceptions including one affording access by the tested employee or prospective employee. AS 23.10.660.
- Employment Security Act Data. The Department of Labor and Workplace Development obtains information from employing units and individuals in the course of administering the provisions of Alaska's Employment Security Act, to determine benefit rights of individuals. This information is confidential and may not be disclosed or made open to public inspection in a manner that reveals the identity of the individual or employing unit, except for disclosures specifically authorized. The exceptions include the release of statistical and other public reports based on information obtained by the Department, so long as the reports do not reveal wage and payroll data for an employing unit or the name or number identifying an individual. The requirements of this section concerning the confidentiality of information obtained in the course of administering this chapter apply to officers and employees of a state or federal agency to whom the Department of Labor and Workplace Development provides information as authorized by this section. AS 23.20.110(a), (g) - (n). The confidentiality requirements of section .110 do not apply to disclosure of decisions and records on appeal in any matter before the department as long as the federal social security number of the claimant and the employer's federal employer identification number and federal social security number are redacted or removed before disclosure is made. AS 23.20.110(q).
- Workers Compensation Records. Medical or rehabilitation records, and the employee's name, address, social security number, electronic mail address, and telephone number contained on any record, in an employee's file maintained by the Workers Compensation Board are not public records subject to public inspection and copying under AS 40.25. See AS 23.30.107. An employee may elect to authorize the disclosure of the employee's name, address, social security number, electronic mail address, and telephone number contained in a record described in (b) of this section by signing a declaration on a form provided by the division. AS 23.30.107(d). The Worker's Compensation Appeals Commission within the Department of Labor and Workforce Development maintains, indexes and makes available for public inspection the final administrative decisions and orders of the commission and of the board. The chair of the commission may review and circulate among the other members of the relevant commission appeal panel the drafts of the panel's formal decisions and decisions upon reconsideration. These drafts are confidential documents, not subject to disclosure. AS 23.30.008(b). Papers, reports, documents and other evidence related to an investigation of fraudulent or misleading acts relating to workers' compensation matters are confidential, and the papers, reports, documents and evidence received in connection with investigations, or otherwise relating to submissions, hearings, or other matters concerning fraud and misleading acts are not subject to inspection so long as the director considers confidentiality to be in the public interest or reasonably necessary to complete an investigation or protect the person investigated from unwarranted injury. AS 23.30.280(g).
- Vocational Rehabilitation and Other Labor Department Records. AS 23.15.190 prohibits most communication of any list of names of, or information concerning, persons applying for or receiving vocational rehabilitation. Chapter 20 of the labor laws governs unemployment compensation and insurance related matters. It requires reporting of a variety of information from both employers and individuals in order to administer the unemployment laws, and provides that information obtained from either the employer or individual as to benefit rights of an individual is confidential and may not be disclosed to the public in a manner that reveals the identity of the individual or employer. AS 23.20.110.
- Collective Negotiations By Physicians. Physicians are permitted to engage in collective negotiations of certain terms and conditions with health benefit plans, subject to review of matters and documents relating to the negotiations by the Attorney General. Documents relating to such a collective negotiation described in the relevant statute that are in the possession of the Department of Law are confidential and not open to public inspection. AS 23.50.020(k).
- Legislative Research. Requests by members of the state legislature for research and bill drafting services of the Legislative Affairs Agency are confidential. AS 24.20.100.
- Reports of the Legislative Audit Division. The Legislative Audit Division has access to the books, accounts, reports and other records of every state agency, whether they are confidential or not. Audit records of the Legislative Audit Division, including audit work papers and other related supporting documentation, are confidential. AS 24.20.301. Audit reports are confidential unless and until the report has been approved for release. Id. The Legislative Budget and Audit Committee must approve reports from the audit division by a majority vote of the committee before the release. The committee must file copies of its approved audit reports including any committee recommendations with the governor, the agency concerned, and the legislature. The reports are open for public inspection after their release to the legislature. AS 24.20.311.
- Ombudsman. The ombudsman, a legislative employee, is required to maintain confidentiality with respect to all matters and the identities of the complainants or witnesses coming before him or her except insofar as disclosures may be necessary to enable him or her to carry out the duties of the job and to support his or her recommendations. The ombudsman may not disclose a confidential record obtained from an agency. AS 24.55.160(b). Before giving an opinion or recommendation that is critical of an agency or person, the ombudsman must consult with that agency or person. The ombudsman may make a preliminary opinion or recommendation available to the agency or person for review, but the preliminary opinion or recommendation is confidential and may not be disclosed to the public by the agency or person. AS 24.55.180. A report of the ombudsman's opinions and recommendations is at least initially confidential. It generally must be given to the agency under investigation, but the agency may not disclose it to the public. AS 24.55.190(c). Once notice is given that the investigation is over (to the agency, and, if the investigation was in response to a complaint, to the complainant), the ombudsman may present the report, with any reply, to the governor, the legislature, a grand jury, the public, or any of these. AS 24.55.200.
- Homeland Security. The Homeland Security and Emergency Management Subcommittee was established as a subcommittee of the Joint Armed Services Committee, to review confidential activities, plans, reports, recommendations and other materials of the Alaska division of homeland security and emergency management established in AS 26.20.025, or of other agencies or persons, relating to matters concerning homeland security and civil defense, emergencies or disasters in the state or to the state's preparedness for or ability to mount a prompt response to matters concerning homeland security and civil defense, emergencies or disasters. AS 24.20.680. Pursuant to section .680, the President of the Senate and the Speaker of the House of Representatives may condition service on the subcommittee by members upon the execution of appropriate confidentiality agreements by the members or by persons assisting those members. Information and documents received by members serving on the subcommittee or persons assisting members under a confidentiality agreement as described in this subsection were not public records and were not subject to public disclosure under the public records act. AS 24.20.680(d). AS 24.20.680 was repealed in 2009. Sec. 23-24, ch. 179 SLA 2004. The adjutant general of the Department of Military and Veterans Affairs was charged with proposing any appropriate legislation relating to this provision; as of the 2018 ed., it does not appear that section .680 had been reinstated.
Note also that a new category of records has been added to exempt from disclosure under the public records act records or information pertaining to a plan, program or procedures for establishing, maintaining or restoring security in the state, or to a detailed description or evaluation of systems, facilities or infrastructure in the state, but only to the extent that the production of the records or information (A) could reasonably be expected to interfere with the implementation or enforcement of the security plan, program or procedures; (B) would disclose confidential guidelines for investigations or enforcement and the disclosure could reasonably be expected to risk circumvention of the law; or (C) could reasonably be expected to endanger the life or physical safety of an individual or to present a real and substantial risk to the public health and welfare. AS 40.25.120(a)(10).
- Legislative Ethics. The Alaska legislature has created a Select Committee on Legislative Ethics, which now includes public members. One of the things that this committee can do is to investigate complaints concerning alleged violations of laws and rules regarding legislative ethics, including violations of "open meetings" requirements. All complaints are investigated on a confidential basis. AS 24.60.170(d). An opinion issued under this section must be issued with sufficient deletions to prevent disclosing the identity of the person or persons involved. Advisory opinion discussions and deliberations are confidential, unless the requester and anyone else named in the request who is covered by this chapter waives confidentiality. The committee's final vote on the advisory opinion is a public record. AS 24.60.160(b). The Select Committee on Legislative Ethics maintains a public online electronic database of advisory opinions interpreting the Legislative Ethics Act. AS 24.60.160(b).
The complaint and all documents produced or disclosed as a result of the committee investigation are confidential and not subject to inspection by the public, although these confidentiality provisions may be waived by the subject of the complaint. AS 24.60.170(l). Proceedings of the ethics committee relating to complaints before it are confidential until the committee determines that there is probable cause to believe that a violation has occurred. Except to the extent that the confidentiality provisions are waived by the subject of the complaint, the person filing an ethics complaint shall keep confidential the fact that the person has filed the ethics complaint as well as the contents of the complaint filed, and if the committee finds that a complainant has violated any confidentiality provision, the committee shall immediately dismiss the complaint. AS 24.60.070(l). If the committee determines that the allegations of an ethics complaint, if proven, would not give rise to a violation, that the complaint is frivolous on its face, that there is insufficient credible information that can be uncovered to warrant further investigation by the committee, or that the committee's lack of jurisdiction is apparent on the face of the complaint, the committee shall dismiss the complaint and shall notify the complainant and the subject of the complaint of the dismissal. A proceeding conducted to make this preliminary decision, documents that are part of such a proceeding, and a dismissal for these reasons are confidential as provided in (l) of this section unless the subject of the complaint waives confidentiality as provided in that subsection. AS 24.60.170(c).
If in the course of an investigation or probable cause determination the committee finds evidence of probable criminal activity, the committee must transmit a statement and factual findings limited to that activity to the appropriate law enforcement agency. If the committee finds evidence of a probable violation of AS 15.13 (governing state election campaigns), the committee must transmit a statement to that effect and factual findings limited to the probable violation to the Alaska Public Offices Commission.
All meetings of the committee before the determination of probable cause are closed to the public. A person charged by the committee with a probable ethics violation after the initial stages of this process may engage in discovery, and the committee may adopt procedures that impose reasonable restrictions on the release of information that the subject of a complaint acquires from the committee in the course of discovery, or on information obtained by use of the committee's authority, in order to protect the privacy of persons not under investigation to whom the information pertains. However, the committee may not impose restrictions on the release of information by the subject of the complaint unless the complainant has agreed to be bound by similar restrictions and has not made public the information contained in the complaint, information about the complaint, or the fact of filing the complaint. AS 24.60.170(i).
If the committee determines after investigation that there is not probable cause to believe that the subject of the complaint has violated the ethics law, the committee shall dismiss the complaint or portions of it as to which there is no probable cause there was a violation. The committee must issue a decision explaining its dismissal. The committee's deliberations and vote on the dismissal order and decision are not open to the public or to the subject of the complaint. A copy of the dismissal order and decision must be sent to the complainant and to the subject of the complaint. Notwithstanding section .170(l), a dismissal order based on lack of probable cause and decision is open to inspection and copying by the public. AS 24.60.170(f).
All documents issued by the committee after a determination of probable cause to believe that the subject of a complaint has violated this chapter, including an opinion recommending corrective action under (g) of the ethics act and a formal charge under (h) of the statute, are subject to public inspection. Hearings of the committee under section (j) are open to the public, and documents presented at a hearing, and motions filed in connection with the hearing, are subject to inspection by the public. Deliberations of the committee following a hearing, deliberations on motions filed by the subject of a charge under subsection (h) of the act, and deliberations concerning appropriate sanctions are confidential. AS 24.60.170(l) and (m). Notwithstanding subsection (l) of the Ethics Act, a dismissal based on lack of probable cause is open to public inspection.
A legislator or legislative employee may not knowingly make an unauthorized disclosure of information that is made confidential by law and that the person acquired in the course of official duties. A person who violates this section is subject to a proceeding under AS 24.60.170 and may be subject to prosecution under AS 11.56.860 or another law. AS 24.60.060(e).
Legislators and legislative employees can participate in a number of state benefit or loan programs without having to disclose it. However, they are required to disclose information regarding non-qualifying programs. If the person believes that such disclosure would be an invasion of his or her constitutional right of privacy, and the committee so finds, the committee shall publish only the fact that a person participated in the program and the amount of benefit the unnamed person received. The committee shall maintain disclosure of the person's name as confidential, and may only use the disclosure in an Ethics Committee proceeding pursuant to AS 24.60.170. If the disclosure becomes part of the record of such a proceeding, the disclosure may be made public as provided in AS 24.60.170.
Legislators and legislative employees may not receive gifts worth $250 or more, or solicit, accept or receive gifts with any monetary value from lobbyists during a legislative session. Certain gifts and benefits are not considered violations of this section, but some of them must still be disclosed. One of these categories is gifts that are not connected to the recipient's legislative status. This category of gifts must be disclosed, but the disclosures are maintained confidentially, and may only be used by the Ethics Committee and its employees and contractors in the investigation of a possible violation. If the disclosures become part of the record of an Ethics Committee proceeding under AS 24.60.170, the confidentiality provisions of that section apply to the disclosures. AS 24.60.080(d).
The Ethics Committee is required to annually recommend to the Budget and Audit Committee the programs and loans to be audited by the division of legislative audit during the following year, and the scope of the audit. The report prepared by the division of legislative audit on its findings is confidential until it is released by the Legislative Budget and Audit Committee. AS 24.60.050(f).
- Victims' Rights Advocate. The legislature has created within the legislative branch an office of victim's rights. Among other things, the victims' advocate may investigate complaints from crime victims that they have been denied their constitutional and other legal rights. Before giving an opinion or recommendation that is critical of a justice agency or person as the result of an investigation, the victims' advocate may make a preliminary opinion or recommendation available to the agency or person for review, but the preliminary opinion or recommendation is confidential and may not be disclosed to the public by the agency or person. AS 24.65.140. After conducting an investigation, the victims' advocate must report its opinion and recommendation to the justice agency being investigated if the advocate finds that the agency has denied the complainant crime victim's rights, with a request for a response concerning actions taken on the recommendations. The report thus provided to the agency is confidential, and may not be disclosed to the public by the agency. AS 24.65.150. Upon notice to the pertinent agency that the investigation has been concluded, and after receiving the written approval of the complainant to release the report, the victims' advocate may present the final opinion and recommendations, along with any reply made by the investigated agency, to the governor, the legislature, a grand jury, the public, or any of these. AS 24.65.160.
- Library Records.
- Patron Records. Records showing who checks out what from state, municipal, university, public school or other public libraries are confidential. AS 40.25.140.
- State Library Distribution and Data Access Center. Within the state library, a state library distribution and data access center exists to promote the establishment of an orderly depository library and data index distribution and access system. Each state agency shall provide for accessibility through the center of all data published or compiled by it at public expense, including automated databases, unless the data is protected by the constitutional right of privacy or is of a type stated by law to be confidential or otherwise prohibited. State agencies are required, and municipal agencies and school districts are permitted, to deposit various other publications and research, subject to the same confidentiality provisions. AS 14.56.120-.130. The center may not engage in general public distribution of state publications or lists of publications, or the index of publications and research data, but shall make its holdings available to any person upon request, pursuant to regulations and payment of fees. AS 14.56.170.
- Marital and Domestic Relations.
- Child Custody. At any stage of a proceeding involving custody of a child the court may, if it is in the best interests of the child, close the proceeding to the public or order the court records closed to the public temporarily or permanently. The court may modify or vacate such an order at any time. AS 25.20.120. If the court finds in the context of a child custody dispute that a parent or child is a victim of domestic violence, the court may order that the address and telephone number of the parent or child be kept confidential in the proceedings. AS 25.20.060(d).
- Adoption. The papers and records relating to an adoption or termination of parental rights under Alaska law that are part of the permanent record of a court are subject to inspection only upon consent of the court. The papers and records relating to an adoption or a termination of parental rights on file with the Department of Health and Social Services, an agency, or an individual are subject to inspection only with the consent of all interested persons or by order of a court for good cause shown. AS 25.23.150. Except for this or as otherwise provided in this section of the statutes, adoption records of the Bureau of Vital Statistics are subject to inspection only under the provisions of AS 18.50). Except as otherwise provided by law or as authorized in writing by the adopted child if 14 or more years of age, or by the adoptive parent or upon order of the court for good cause shown, a person may not disclose the identity or address of an adoptive parent, an adopted child, a child who is the subject of a proceeding under AS 25.23.180(c)(3) (providing for relinquishment and termination of parent and child relationships), or a biological parent whose parental rights have been terminated on grounds set out in that statute. Id.
- Paternity; Financial Responsibility. In administrative proceedings by the Child Support Enforcement Agency to determine paternity and financial responsibility, the putative father can be required to provide financial information, and all financial information provided under such order must be held confidential by the agency in accordance with its regulations. AS 25.27.165(b)(2).
- Communications with Victim Counselors. Confidential communications between a victim of domestic violence or sexual assault and a victim counselor are privileged. See AS 09.25.400, AS 18.66.200-.250.
- Assays. The state provides a public assay office to make assays and analyses of Alaskan ores and minerals. When an assay and analysis are made the person requesting them must state his or her permanent residence address, a description, as precise as possible, of the location where the sample was taken, and other information that the department may require that may be beneficial in evaluating the state's mineral resources. Information received and assay results shall be kept confidential for a period of two years. At the end of that period, the information results are open to public inspection and may be published by the department. AS 27.05.090.
- Mining Loan Fund. A person who requests a loan pursuant to statute setting up the Mining Loan Fund must prepare and submit an operating plan describing the amount of the loan requested, the nature and location of the advanced mineral exploration, development, or mining for which the loan is requested, other resources and equipment available to the person and similar information. Information acquired by the state under this section is confidential. AS 27.09.030.
- Mine Operations. Chapter 20 of the Alaska Statutes relating to mining requires various reports to be filed in order to ensure uniform safety standards, proper working conditions for mine employees, to provide for conservation of natural resources and other public interest issues relating to mining operations. AS 27.20.041 provides that the Department of Natural Resources shall keep confidential, upon the request of the person supplying the information, all reports and information required to be filed by regulations adopted under this chapter and all information deducible from filed information. The information may also be made available to the public in the form of statistical reports if the identity of any particular person or mine operator is not revealed by the reports.
- Alaska Surface Coal Mining Control and Reclamation Act. Alaska law requires those engaged in coal mining to file various applications and reports. Copies of records, permits, inspection materials or other information obtained under this chapter relating to a surface coal mining and reclamation operation must be made "immediately and conveniently available to the public" except for information that is allowed to be kept confidential. AS 27.21.100. The information that may be kept confidential is in two categories. First, information gathered from the proposed permit area pertaining to coal seams, test boring, and so forth must be made available, except that information which relates only to the analysis of the chemical and physical properties of the coal, other than information regarding the mineral or elemental content that is potentially toxic in the environment, must be kept confidential. Second, information in the applicant's reclamation plan relating to competitive rights of the applicant, including but not limited to trade secrets, commercial or financial information, and geologic information specifically identified as confidential by the applicant and determined by the commissioner to be nonessential for public review must be kept confidential. Id. AS 27.21.200(c) also provides that the commissioner shall keep certain trade secret or other competitive information confidential when it is submitted by an applicant for a coal exploration permit.
- Exploration Incentive Credits. The Commissioner of Natural Resources must grant exploration incentive credits to eligible entities, and those seeking to obtain a credit must provide a variety of information concerning their business activities. The exploration activity data provided for this purpose is confidential for 36 months after it is received by the Department, and the Department can be held liable in damages to those providing the exploration activity data if it is disclosed in violation of the statute. AS 27.30.090.
- Motor Vehicles.
- Vehicle Registration Records. The Department of Motor Vehicles is required to register vehicles and keep a record of all registrations. The DMV is permitted to make statistical data available to the public for a fee as prescribed in regulations, and "may also provide vehicle registration lists to the public for a fee as an electronic service or product under AS 40.25.115." By adding this latter provision in 1993, the legislature effectively converted motor vehicle registration records from being public records, which must be disclosed, to an electronic service or product, whose disclosure is permissive and may be conditioned upon payment of enhanced fees. AS 28.10.071.
- Personal Information Contained in Motor Vehicle Records. A 1996 amendment to the Motor Vehicle Code generally prohibits the disclosure of personal information contained in motor vehicle records maintained by the DMV. Personal information means information that identifies a person, including a name, address, telephone number, and medical or disability information, but does not include information on vehicular accidents, driving- or equipment-related violations, driver's license or registration status, or a zip code. The prohibition is subject to numerous exceptions for particular uses, or by specified individuals. AS 28.10.505. One principle exception provides that personal information contained in an individual record may be disclosed, without regard to the intended use of the personal information. Disclosure is authorized if the Department provides in a clear and conspicuous manner on forms for issuance for or renewal of registrations, titles, or identification documents, notice that personal information collected by the Department may be disclosed to a person making a request for an individual record, and has provided in a clear and conspicuous manner on the form an opportunity for a person who is the subject of a record to prohibit disclosure. AS 28.10.505(e).
- Driver's Licenses. Information and records maintained by the Department of Motor Vehicles, including driver's license applications, records of suspensions, revocations, cancellations, restrictions or denials of driver's licenses, accident reports and traffic court convictions, driver and traffic offenses, and other similar information, are confidential. AS 28.15.151(f). But an attorney general's opinion states that most, but not all, information pertaining to motor vehicles contained in Department of Transportation and Public Facilities files or the computer database is public information and should be released on request, except information on particular accidents including individual names and specific driver's license information, which must remain confidential. March 30, 1988, Op. Att'y Gen.
- Intoxicated Operators. Information regarding the condition and treatment of persons who are required by the court system to report for treatment programs as a result of operating a motor vehicle, aircraft or watercraft while intoxicated, and that is forwarded to the court system, is confidential and may be used only for purposes of sentencing persons convicted of such offenses. AS 28.35.030(d). The same rule applies to persons who are required by the court to undergo treatment as the result of other drunk driving related offenses such as refusal to submit to chemical testing for blood alcohol content. See AS 28.35.032(h).
- Oil and Gas
- Oil and Gas Wells. The state requires various information to be filed concerning oil and gas wells. Most of the reports and information required to be filed under these laws are confidential for 24 months following the filing period set forth in the statute. (Reports and information required by the law must be filed within 30 days after the completion, abandonment, or suspension of a well.) The owner of the well can give permission to release the reports and information at an earlier date. Engineering, geologic and other information that is voluntarily filed with the commission must also be kept confidential if the person filing the information so requests. This confidentiality requirement is not applicable to information submitted with or as part of a petition for a commission order or to information submitted for or as part of a hearing before the commission. AS 31.05.035.
Certain information is considered to be public, including well surface and bottom hole locations, well depth, well status and production data and production reports required after the initial 30-day filing period referred to above. Production data includes volume, gravity and gas-oil ratio of all production of oil or gas after the well begins regular production. AS 31.05.035. Also certain information that is required to be disclosed under federal law, and that is disclosed to the state under state statutes governing well production and safety, may not be kept confidential. AS 31.05.035(e).
- Interagency Records of Alaska Gasline Development Corporation. The Alaska Gasline Development Corporation may enter into confidentiality agreements necessary to acquire or provide information to carry out its functions. If a state agency determines that a law or provision of a contract to which the state agency is a party requires the state agency to preserve the confidentiality of the information and that delivering the information to the corporation would violate the confidentiality provision of that law or contract, the state agency shall (1) identify the applicable law or contract provision to the corporation; and (2) obtain the consent of the person who has the right to waive the confidentiality of the information under the applicable law or contract provision before the state agency transfers the information to the corporation. AS 31.25.090(f). The portions of records containing information acquired or provided by the corporation under a confidentiality agreement are not subject to disclosure under the Public Records Act. The corporation may enter into confidentiality agreements with a public agency, as defined in AS 40.25.220, to allow release of confidential information. The portions of the records and files of a public agency bound by a confidentiality agreement that reflect, incorporate, or analyze information subject to a confidentiality agreement under this subsection are not public records. AS 31.25.090(g). Information and trade secrets of the corporation are confidential and not subject to the Public Records Act if the corporation determines that disclosure would cause commercial or competitive harm or damage to the corporation. Information that discloses the particulars of a business or the affairs of a private enterprise, investor, advisor, consultant, counsel, or manager that is developed or obtained by the corporation and related to the development, financing, construction, or operation of an in-state natural gas pipeline project by the corporation is confidential and not subject to the Public Records Act. The corporation may waive the confidentiality described in this subsection, except for information that is confidential under another provision of state law or under a federal law or regulation and except for information acquired from another person that is subject to a confidentiality agreement, if the waiver is consistent with the interests of the state and will facilitate the development, financing, or construction of an in-state natural gas pipeline. On the date that the in-state natural gas pipeline project becomes operational, the corporation must make available, upon request under the Public Records Act, AS 40.25.100--40.25.295, records that were exempt from AS 40.25.100--40.25.295 under this section, unless the corporation determines that (1) maintaining the confidentiality of the information is necessary to protect the economic interests of the corporation or the state; or (2) disclosure of the information will violate another provision of state law, a federal law or regulation, or the terms of a confidentiality agreement or other agreement to which the corporation is a party or that is binding on the corporation. AS 31.25.090(h).
- Prisons and Prisoners.
- Pre-parole Reports. In order to determine whether a prisoner is suitable for discretionary parole, the parole board must consider a pre-parole report. This report includes the pre-sentence report to the sentencing court, recommendations made by the sentencing court, by the prosecuting attorney, by the defense attorney, and statements made by the victim or the prisoner at sentencing, the prisoner's institutional history, recommendations of the correctional facilities staff, and other things. The pre-parole report for the most part is available to pretty much everyone but the public: It may be disclosed to the parole board, the sentencing judge, the prosecuting and defense attorneys, the prisoner, the prisoner's attorney, the attorney for the parole board, the staff of the board, and others who have access to parole board information. Otherwise, however, it is confidential. It is possible that a reporter might argue the pre-parole reports should be available notwithstanding the confidentiality provision of AS 33.16.170, in light of the Ninth Circuit's decision recognizing a constitutional right of access to pre-sentence reports prepared for a judge before sentencing. See United States v. Schlette, 842 F.2d 1574 ( 9th Cir. 1988). However, this will not necessarily be the case since pre-sentence reports are prepared by employees of the judicial branch, and solely for use by the sentencing judge, and the right of access analysis has been applied generally to judicial proceedings and documents. The parole board is an executive branch agency, and the reports and records of such agencies are traditionally analyzed in terms of public records laws where such confidentiality provisions are recognized and honored as exceptions to the extent the legislature provides. If the question arises, it will probably need to be answered by the courts.
- Convict Photographs. A victim is entitled upon request to a photograph of an offender who is released or escapes from incarceration, but must keep it for personal use only and cannot distribute it. AS 33.30.013(e).
- Prisoner Data. AS 33.30.211 provides that the commissioner of Department of Corrections shall adopt regulations providing for the confidentiality of documents that are transmitted to the correctional facility with a prisoner, including the pre-sentence report, and other information of the probation office or of the court that may affect the person's rehabilitation. Presumably, this confidentiality provision cannot supersede the right of the public to have access to documents that are otherwise public, pursuant to the Schlette case or other provisions of law.
- Monitored Phone Calls. Prison officials may monitor prisoners' telephone calls to preserve security and order, and to protect the public, if they post a warning informing the prisoner that this may be done. Recordings of prisoners' telephone calls are confidential. AS 33.20.231(c).
Unclaimed Property. Persons holding personal property of others that is presumed to be abandoned are supposed to report this to the state. The Department of Revenue has the authority to examine the records of those it has reason to believe have not complied with these reporting provisions. In the course of doing this, particularly with banks and insurance companies, the Department of Revenue may obtain information that is otherwise confidential under state or federal law or regulation, and in such event this information may not be publicly disclosed. AS 34.45.290(d).
- Public Contracts.
- Employment Preferences. An employer obligated to meet resident hire requirements under Alaska law must comply with reporting provisions that the commissioner of labor determines are reasonably necessary to implement the local hire laws. Except for statistical data, all information regarding specific employees is confidential and may not be released by the Department of Labor and Workplace Development. AS 36.10.190.
- State Procurement Code. Procurement information is public except as otherwise provided by law. AS 36.30.530. The state's procurement code requires the commissioner of administration to adopt regulations providing among other things for confidentiality of technical data and trade secrets submitted by actual or prospective bidders or offerors. AS 36.30.040(b)(6).
When competitive sealed bids are opened the amount of each bid and other relevant information specified by regulations, together with the name of each bidder is recorded, and this information must be open to public inspection as soon as practicable before the notice of intent to award a contract is given. The bids themselves, however, are not open for public inspection until after the notice of intent to award a contract is given. To the extent the bidder designates and the procurement officer concurs, trade secrets and other proprietary data contained in a bid document are confidential. AS 36.30.140. If the commissioner of transportation and public facilities makes a written finding that the release of the estimated cost of a construction contract would adversely affect the state's ability to obtain the best competitive bid, the estimated cost is confidential information and may not be released to the public before bid opening. AS 36.30.110(c).
Similarly, in the code provisions for competitive sealed proposals, the procurement officer must open proposals so as to avoid disclosure of contents to competing offerors before notice of intent to award a contract is issued. A register of proposals containing the name and address of each offeror is to be prepared and the register and proposals are open for public inspection after the notice of intent to award a contract is issued. To the extent the offeror designates and the procurement officer concurs, trade secrets and other proprietary data contained in the proposal documents are confidential. AS 36.30.230. Also, discussions may be conducted with responsible offerors who submit proposals that may be selected for award in order to clarify and to assure full understanding of and responsiveness to the solicitation requirements. All those reasonably eligible to being selected for the award are to be given fair and equal treatment, but in conducting discussions, the procurement officer may not disclose information derived from proposals submitted by competing offerors. This process, including the meetings with these offerors, is not public. AS 36.30.240.
- Determination of Responsibility. It is fundamental that public contracts are awarded only to "responsible bidders." The commissioner of administration may require a bidder to show that it is responsible, and information furnished by a bidder or offeror to do so is confidential and may not be disclosed without that person's prior written consent. AS 36.30.360.
- Background Information for Contractors with Access to Federal Tax Information. Upon request of an agency, the procurement officer shall notify each contractor if a contract with the state requires access to federal tax information for performance of the contract. Each contractor with the state whose duties require access to federal tax information must submit to and pass a background investigation that includes a state and national criminal history record check, and must provide information for the background investigation. A background investigation under this section, including a state and national criminal history record check, is confidential. AS 36.30.960
- Public Finance.
- Managing Investments. The commissioner of revenue or other fiduciary investing and managing investments of state funds may declare records to be confidential and exempt from disclosure under the public records act if the records contain information that discloses the particulars of the business or the affairs of a private enterprise, investor, borrower, advisor, consultant, counsel or manager. AS 37.10.071. The Alaska Retirement Management Board may enter into confidentiality agreements that would exempt records from AS 40.25.110 and 40.25.120 if the records contain information that could affect the value of investment by the board or that could impair the ability of the board to acquire, maintain, or dispose of investments. Sec. 37.10.220(b)(4).
- Alaska Permanent Fund. Similarly, information in the possession of the Alaska Permanent Fund Corporation is a public record, except that information which discloses the particulars of the business or affairs of a private enterprise or investor is confidential. These restrictions do not prohibit the publication of statistics presented in a manner that prevents the identification of particular reports, items, persons or enterprises. AS 37.13.200. Information on each permanent fund dividend application, except the applicant's name, is confidential. The department may only release information that is confidential under this section (1) to a local, state or federal government agency; (2) in compliance with a court order; (3) to the individual who or agency that files an application on behalf of another; (4) to a banking institution to verify the direct deposit of a permanent fund dividend or correct an error in that deposit; (5) as directed to do so by the applicant; and (6) to a contractor who receives, stores or manages the information on behalf of one of these. AS 43.23.017. Notwithstanding the foregoing, the Department of Revenue may release the names and addresses of permanent fund dividend applicants to a legislator of this state and to the legislator's office staff for official legislative purposes.
- Exxon Valdez Oil Spill Trust. In August 1991, the U.S. District Court approved a Memorandum Agreement and Consent Decree entered into between the United States and the State of Alaska in settlement of claims to money received for injury, loss and destruction of the natural resources affected by the March 24, 1989, Exxon Valdez oil spill. Records of the trust in the custody or subject to the control of state officers and agencies are public records. AS 37.14.425.
- BIDCOs. In 1992, the Alaska Legislature created the "BIDCO" Fund within the Alaska Science and Technology Foundation, to assist in the formation and capitalization of certain specially licensed corporations, including risk capital for small and medium sized businesses in rural and distressed areas and minority owned business. AS 37.17.200-.390. In 2004, the Legislature repealed or renumbered the BIDCO provisions, establishing the Alaska BIDCO Fund within the state's general fund. The BIDCO Fund is administered by the Department of Commerce, Community and Economic Development under AS 37.17.500 - 37.17.690. (But note, these statutes relating to the BIDCO Fund have been repealed, effective September 13, 2018)
While a BIDCO loan is outstanding and the obligations of the BIDCO to the foundation remain undischarged, the BIDCO must allow the foundation to have a representative present at all meetings of the BIDCO's board of directors and of the BIDCO's shareholders, to receive all notices and information sent to the board of directors or the shareholders, to have the same access to information about the BIDCO as the directors have and as the shareholders have, and to receive additional reports or information from the BIDCO that the foundation reasonably requests. AS 37.17.610 (but note, this section has been repealed, effective September 13, 2018). In order to promote the purposes of AS 37.17.500 - 37.17.690, the department may establish policies under which it will keep confidential proprietary information submitted to the department by an applicant for a loan or other financial assistance under AS 37.17.500 - 37.17.690 and by a BIDCO that has received a loan or other financial assistance under AS 37.17.500 - 37.17.690. The information that is determined to be confidential under this section is not a public record under AS 40.25.110 - 40.25.220. AS 37.17.650 (but note, this confidentiality section has been repealed, effective September 13, 2018).
- Alaska Science and Technology Foundation. In 2004, the Legislature repealed the law creating the Alaska Science and Technology Foundation, which previously had, through its Board, awarded grants for research projects to enhance research capabilities for basic and applied research to the state and other specified purposes. The Board required each grant recipient to provide periodic reports and a final report, and disseminated to the scientific community and to the public, on a regular basis, the results of research sponsored by the Foundation. The Board was authorized to adopt regulations to protect trade secrets and other proprietary information submitted to the Foundation from disclosure under the Public Records Act. Also, upon written request pursuant to regulations adopted by the Board, the Board could allow information developed under a grant to be treated confidentially under the Public Records Act. AS 37.17.090(f). The Alaska Industrial Development and Export Authority, a public corporation created by the legislature within the Department of Commerce, Community, and Economic Development, but with separate and independent legal existence, oversees the administration of outstanding grants awarded by the Alaska Science and Technology Foundation under former AS 37.17.010 - 37.17.110, and also oversees administration of outstanding BIDCO assistance grants and loans made by the Alaska Science and Technology Foundation under former AS 37.17.200 - 37.17.390. AS 44.88.080(28), (29). (But note above-referenced repeal of BIDCO Fund statutes.)
- Public Lands and Resources.
- Alaska Land Act. The following records and files of the division of lands must be kept confidential upon request of the person supplying the information: (a) the name of the person nominating or applying for the sale, lease or other disposal of land by competitive bidding; (b) before the announced time of opening, the names of the bidders and the amounts of the bids; (c) all geological, geophysical and engineering data supplied, whether or not concerned with the extraction or development of natural resources; (d) cost data and financial information submitted in support of applications, bonds, leases and similar items; (e) the applications for rights of way or easements; (f) requests for information or applications by public agencies for land which is being considered for use for a public purpose. AS 38.05.035(a)(8).
The Commissioner of Natural Resources is authorized to negotiate the sale of timber for use in the manufacture of high value-added wood products, and upon request of the prospective purchaser of such timber, the Commissioner must keep data provided by the purchaser confidential in accordance with the requirements of AS 38.05.035(a)(8). AS 38.05.123(f).
The Commissioner of Natural Resources may require those applying for an oil and gas exploration license to submit information in addition to that required by the statutes concerning the prospective licensee's proposal. The Commissioner must keep confidential information described in AS 38.05.035(a)(8) that is voluntarily provided if the prospective licensee has made a written request that the information remain confidential. AS 38.05.133(e).
AS 38.05.036(b) provides that when the Department of Natural Resources or Revenue obtains or provides information that is confidential in the course of performing audits relating to royalty and net profits under oil and gas contracts, agreements or leases, it must keep that information confidential to the extent required under these agreements, contracts or leases or otherwise by law, including AS 38.05.035 (a)(8), AS 41.09.010 (d) [governing data provided for exploration incentive credits], or AS 43.05.230 [governing taxpayer information]. A lessee of state land is required to provide to the state concerning all non-interpretive data obtained from exploration for, or development or production of, oil or gas on state land is confidential, and this information is confidential. AS 38.05.180(x).
- Alaska Royalty Oil and Gas Development Advisory Board. AS 38.06.060 gives the Alaska Royal Oil and Gas Development Advisory Board the authority to provide for confidentiality of those documents and records in its possession or control which contain confidential business or marketing information the protection of which is essential to the person who has submitted them to the board or, in the judgment of the board, is essential to the best interests of the state.
- Data for Exploration Incentive Credits. The Commissioner of Natural Resources may extend to qualified applicants an exploration credit for certain geophysical work, drawing of stratigraphic test wells, or drilling exploratory wells. This incentive program is distinct from the exploration incentive credit authorized under AS 38.05, in that it is applicable regardless of whether the land is state-owned or not. Data derived from drilling a stratigraphic test well or exploratory well that is provided to the Commissioner in connection with an application for the exploration incentive credit must be kept confidential for 24 months after receipt unless the owner of the well gives written permission to the state to release the well data at an earlier date. Notwithstanding the provisions of AS 31.05.035(c), confidentiality may not be extended beyond 24 months. The provisions of AS 38.05.035(a)(8)(C) apply to other data provided to the Commissioner under this section, except that the Commissioner, under appropriate confidentiality provisions and without preference or discrimination, may display the data to interested third parties, but without giving it to them, if the Commissioner determines that limited disclosure is necessary to further the interest of the state in evaluating or developing its land. AS 41.09.010(d).
- Alaska Gasline Inducement Act. In 2007 the state established a program to encourage construction of an Alaska gasline, and to provide inducements to the entity awarded a license to build the gasline. AS 43.90.100 et seq. At the request of applicant for the license under the Alaska Gasline Inducement Act (AGIA), information submitted by the applicant that the applicant identifies and demonstrates is proprietary or is a trade secret is confidential and not subject to public disclosure under AS 40.25. After a license is awarded, all information submitted by the licensee, retained under AGIA, and not determined by the commissioners to be a proprietary or trade secret shall be made public. AS 43.90.150(a) If the commissioners determine that the information submitted by the applicant is not proprietary or is not a trade secret, the commissioners shall notify the applicant and return the information at the request of the applicant. AS 43.90.150(b)
After a license has been issued and until commencement of commercial operations of a natural gas pipeline, the AGIA licensee shall allow the state’s commissioners or their representatives to be present at all meetings of the licensee's governing body or bodies and equity holders that relate to the project; receive all relevant notices and information when and as sent to the governing body or bodies and equity holders; enjoy the same access to information about the licensee as the governing body members and equity owners receive; and receive relevant reports or information from the licensee that the commissioners reasonably request. All proprietary information, privileged information, and trade secrets received by the commissioners or their representative are not subject to public disclosure under AS 40.25. AS 43.90.220(e).
Applications received by AGIA commissioners from potential are not subject to public disclosure under the Public Records Act until the commissioners publish notice and provide a 60-day period for public review and comment on all applications determined complete. Except as provided under AS 43.90.150 all applications filed under AGIA must be made public, including applications rejected as incomplete. However, information that the commissioners have determined is proprietary or a trade secret may not be made public even after the notice is published, except as otherwise provided in AS 43.90.150. If information is proprietary or a trade secret and is held confidential under that provision, the applicant shall provide a summary of the confidential information that is satisfactory to the commissioners, and the commissioners shall make the summary of the information available to the public. AS 43.90.160(a), (b).
- Public Officers and Employees.
- State Personnel Act. An amendment slipped into the public employees statutes in 1982 reversed the presumption that state personnel records were open with certain exceptions. Now the law provides that state personnel records are presumptively closed unless specifically provided otherwise. AS 39.25.080 states that state personnel records, including employment applications and examination materials, are confidential and are not open to public inspection except as provided in that section. Specifically, it goes on to designate as information available for public inspection
1) the names and position titles of all state employees;
2) the position held by a state employee;
3) prior positions held by a state employee;
4) whether a state employee is in the classified, partially exempt or exempt service;
5) the dates of appointment and separation of a state employee; and
6) the compensation authorized for a state employee.
(7) whether a state employee has been dismissed or disciplined for a violation of AS 39.25.160 (l) (interference or failure to cooperate with the Legislative Budget and Audit Committee).
A state employee may examine his or her own files and authorize others — including a reporter — to examine those files. AS 39.25.080(c). News media have argued for, and the Supreme Court has adopted, a very restrictive reading of the restrictions in the laws governing access to state personnel records. See, e.g., Alaska Wildlife Alliance v. Rue, 948 P.2d 976, 980 (Alaska 1997), and International Ass'n of Firefighters, Local 1264 v. Municipality of Anchorage and Anchorage Daily News, 973 P.2d 1132, 1135 (Alaska 1999), in both of which the Alaska Supreme Court made clear that simply because documents or information may appear in, or be placed in, an employee's personnel file, does not mean they are exempt as "personnel records." The term "personnel record" is defined narrowly to include only information that reveals the details of an individual's personal life. These and related cases are discussed in more detail in section IV.J of this Open Records Outline. The state personnel act provides that this chapter and the rules adopted under it apply to all positions in the classified service, but to the exempt and partially exempt service only as specifically provided. See AS 39.25.090. Therefore, it has been argued that none of the positions specified in AS 39.25.110 (exempt service) or AS 39.25.120 (partially exempt service) are subject to the language stating that personnel records are not open to public inspection except as specifically provided. This interpretation was adopted by the Alaska Supreme Court in Doe v. Alaska Superior Court, 721 P.2d at 621-622, with respect to the exempt service. See also, Ericson v. University of Alaska, 1995 WL 444416 at *2, 23 Media Law Rptr. 1724 (Ak. Super. Ct., 3rd Jud. Dist. at Anchorage, May 12, 1994) (ruling by then-superior court judge Dana Fabe that AS 39.25.080’s restriction on disclosure of personnel records of state employees did not apply to “officers or employees of the University of Alaska,” since they are “exempt from the provisions of AS 39.25.080 under AS 39.25.110(5).” The result is that the general provisions of the Public Records Act, AS 40.25.110 et seq. apply, and require public disclosure of such records. The Alaska Supreme Court has also noted that AS 39.25.110’s list of state employees who are exempt from the personnel act (and its restrictions on the application of the Public Records Act) “is not an exhaustive list of exempt employees.” State, Department of Military Affairs v. Bowen, 953 P.2d 888 (Alaska 1998) (holding that exempt status could be derived from other provisions of law, including federal personnel rules and regulations).
Records relating to the following exempt positions therefore are public:
1) persons elected to public office by popular vote or appointed to fill vacancies in elected offices;
2) justices, judges, magistrates and employees of the judicial branch including employees of the Judicial Council;
3) employees of the state legislature and its agencies;
4) the head of each principal department in the executive branch;
5) officers and employees of the University of Alaska;
6) certificated teachers and noncertificated employees employed by a regional educational attendance area established and organized under AS 14.08.031-14.08. 041 to teach in, administer, or operate schools under the control of a regional educational attendance area school board;
(7) certificated teachers employed by the Department of Education and Early Development as correspondence teachers, teachers in skill centers operated by the Department of Education and Early Development or by the Department of Labor and Workforce Development, or in Mt. Edgecumbe School;
8) patients and inmates employed in state institutions;
9) persons employed in a professional capacity to make a temporary or special inquiry, study or examination as authorized by the governor;
10) members of boards, commissions or authorities;
11) the officers and employees of the following boards, commissions and authorities; (A) Alaska Gas Pipeline Financing Authority (repealed 1994); (B) Alaska Permanent Fund Corporation; (C) Alaska Industrial Development and Export Authority; (D) Alaska Commercial Fisheries Entry Commission; (E) Alaska Commission on Postsecondary Education; (F) Alaska Aerospace Corporation (repealed 2013); (G) Alaska Natural Gas Development Authority and subsidiaries of the Alaska Gasline Development Authority;
12) the executive secretary and legal counsel of the Alaska Municipal Bond Bank Authority;
13) the state medical examiner, deputy medical examiner and assistant medical examiners appointed under AS 12.65.015 and physicians licensed to practice in this state and employed by the division of mental health and developmental disabilities in the Department of Health and Social Services or by the Department of Corrections;
14) petroleum engineers and petroleum geologists employed in a professional capacity by the Department of Natural Resources and by the Alaska Oil and Gas Conservation Commission, except for those employed in the division of geological and geophysical surveys in the Department of Natural Resources;
15) [Repealed 1999, formerly listed officers, agents and employees of the Alcoholic Beverage Control Board granted limited peace officer powers by the Alcohol Beverage Control Board under AS 04.06.110];
16) persons employed by the division of marine transportation as masters and members of the crews of vessels who operate the state ferry system and who are covered by a collective bargaining agreement provided in AS 23.40.040;
17) officers and employees of the state who reside in foreign countries;
18) employees of the Alaska Seafood Marketing Institute;
19) emergency fire-fighting personnel employed by the Department of Natural Resources for a fire emergency or for fire prevention and related activities conducted under AS 41.15.030;
20) employees of the Office of the Governor and the office of the lieutenant governor, including the staff of the governor's mansion;
21) [Repealed 2004, formerly listed employees of the Citizen's Advisory Commission on Federal Areas in Alaska [AS 41.37.010]);
22) youth employed by the Department of Natural Resources under the Youth Employment and Student Intern programs;
23) [Repealed 2003, formerly listed the executive director of the Medicaid Rate Advisory Commission];
24) students employed by the state institutions in which the students are enrolled;
25) [Repealed 2004, formerly listed the executive director and staff of the Alaska Science and Technology Foundation];
26) investment officers in the Department of Revenue;
27) [Repealed 1999, formerly listed the executive director and other staff of the Alaska Tourism Marketing Council];
28) persons engaged in employment or pre-employment training programs operated by the Department of Military and Veterans' Affairs;
29) [Repealed 1989, formerly listed employees of the Alaska Amateur Sports Authority];
30) a person employed as an actuary or assistant actuary by the Division of Insurance and the Department of Commerce, Community, and Economic Development;
31) [Repealed 2004, formerly listed the chief administrative law judge and any other administrative law judge appointed to the office of tax appeals of the Department of Administration under AS 43.05.400-43.05.499];
32) a participant in the Alaska Temporary Assistance Program under AS 47.27 who holds a temporary position with the state in order to obtain job training or experience.
33) a person employed as a convener under AS 44.62.730 or as a facilitator under AS 44.62.760 related to a negotiated regulation making process under AS 44.62.710 - 44.62.800;
34) the chief executive officer and employees of the Alaska Mental Health Trust Authority employed under AS 47.30.026 (b);
35) the assistant adjutant general for space and missile defense appointed under AS 26.05.185;
36) the victims' advocate established under AS 24.65.010 and the advocate's staff;
37) employees of the Alaska mental health trust land unit established under AS 44.37.050;
38) the executive director of the Council on Domestic Violence and Sexual Assault established under AS 18.66.010;
39) the executive director and employees of the Knik Arm Bridge and Toll Authority under AS 19.75.051 and 19.75.061;
40) the chair of the Workers' Compensation Appeals Commission (AS 23.30.007).
(41) the Alaska Gasline Inducement Act coordinator appointed under AS 43.90.250;
(42) oil and gas audit masters employed in a professional capacity by the Department of Revenue and the Department of Natural Resources to collect oil and gas revenue by developing policy, conducting studies, drafting proposed regulations, enforcing regulations, and directing audits by oil and gas revenue auditors;
(43) the in-state gasline project coordinator appointed under AS 38.34.010;
(44) the executive director and employees of the Alaska State Council on the Arts employed under AS 44.27.054 and 44.27.055.
Only an exempt position was at issue in the Doe case. The Court has not specifically addressed whether the requirements of AS 39.25.080 prohibiting access, or AS 40.25.110 et seq. allowing access, apply to the partially exempt state service. State regulations governing access to personnel records treat records pertaining to classified and partially exempt employees the same, and assert confidentiality with respect to the records of applicants and current and former employees in both classes. 2 AAC 7.910. The press argues that Title 40 applies, and requires disclosure, because AS 39.25.090 applies to exempt and partially exempt service "as specifically provided," and AS 39.25.120, governing the partially exempt service, does not specifically provide for nondisclosure. This position has been upheld in litigation seeking access to such records. See, e.g., Ericson v. University of Alaska, 1995 WL 444416 at *2, 23 Media Law Rptr. 1724 (Ak. Super. Ct., 3rd Jud. Dist. at Anchorage, May 12, 1994) (ruling by then-superior court judge Dana Fabe that AS 39.25.080’s restriction on disclosure of personnel records of state employees did not apply to “officers or employees of the University of Alaska,” since they are “exempt from the provisions of AS 39.25.080 under AS 39.25.110(5).”
The partially exempt service comprises the following positions, though, as noted below the personnel board may extend the partially exempt service to include any position in the classified service that, in the judgment of the board, involves principal responsibility for the determination of policy or for the way in which policies are carried out, or in certain other circumstances. AS 39.25.130:
1) deputy and assistant commissioners of the principal departments of the executive branch, including the assistant adjutant general of the Department of Military and Veteran's Affairs;
2) the directors of the major divisions of the principal departments of the executive branch and the regional directors of the Department of Transportation and Public Facilities;
3) attorney members of the staff of the Department of Law, of the public defender agency, and of the office of public advocacy in the Department of Administration;
4) one private secretary for each head of a principal department in the executive branch;
5) employees of councils, boards or commissions established by statute in the Office of the Governor or the office of the lieutenant governor, unless a different classification is provided by statute;
6) not more than two special assistants to the commissioner of each of the principal departments of the executive branch, but the number may be increased if the partially exempt service is extended under AS 39.25.130 to include the additional special assistants;
7) the principal executive officer of the following boards, councils or commissions; (A) Alaska Public Broadcasting Commission; (B) Professional Teaching Practices Commission; (C) Parole Board; (D) Board of Nursing; (E) Real Estate Commission; (F) Alaska Royalty Oil and Gas Development Advisory Board; (G) Alaska State Council on the Arts; (H) Alaska Police Standards Council; (I) Alaskan Commission on Aging; (J) Alaska Mental Health Board; (K) State Medical Board; (L) Governor's Council on Disabilities and Special Education; (M) Advisory Board on Alcoholism and Drug Abuse; (N) Statewide Suicide Prevention Council; (O) State Board of Registration for Architects, Engineers, and Land Surveyors; (P) Alaska Health Care Commission;
8) Alaska Pioneers' Home and Alaska Veterans' Home managers;
9) hearing examiners in the Department of Revenue;
10) the comptroller in the division of treasury, Department of Revenue;
11) airport managers in the Department of Transportation and Public Facilities employed at the Anchorage and Fairbanks International Airports;
12) the deputy director of the division of tourism and the deputy director of the division of insurance in the Department of Commerce, Community, and Economic Development;
13) the executive director and staff of the Alaska Public Offices Commission;
14) the rehabilitation administrator of the Worker's Compensation Board;
15) guards employed by the Department of Public Safety for emergencies;
16) pilot coordinator of the Board of Marine Pilots;
17) guards employed by the Department of Corrections, other than in state correctional facilities, to carry out the responsibility of the Commissioner of Corrections under AS 33.30 071(b);
18) hearing officers and administrative law judges of the Regulatory Commission of Alaska;
19) the compact administrator appointed under AS 33.36.130;
20) the chief administrative law judge and administrative law judges of the office of administrative hearings;
21) the executive secretary of the Board of Public Accountancy.
- Executive Branch Ethics Act.
- i) Advisory Opinions. Like its legislative analogue, the Alaska Executive Branch Ethics Act provides for advisory opinions upon request of a designated supervisor or a board or a commission. Such a request for advice is confidential. The attorney general, who issues such advisory opinions in interpreting the ethics act, is required to publish any advisory opinions issued under this section that he or she determines to be of major import because of their general applicability to executive branch officers, after making sufficient deletions to prevent disclosure of the persons whose identities are required to be kept confidential. AS 39.52.240.
- ii) Reports of Potential Violations. Public employees and members of boards or commissions who are involved in matters that may result in violations of the Executive Branch Ethics Act are required, among other things, to immediately disclose the matter in writing to a designated supervisor. The law also provides that any person may report a public officer's potential violation of the ethics act to that officer's designated supervisor. The designated supervisor is required to submit a report each quarter to the attorney general that states the facts, circumstances and disposition of any disclosure made pursuant to these reporting requirements. This report is confidential unless formal proceedings are initiated pursuant to AS 39.52.350. This is done if the attorney general determines that there is probable cause to believe that a knowing violation of the ethics code, or a violation that cannot be corrected in accordance with provisions of the law, has occurred, or that the subject of the complaint has failed to comply with a recommendation for corrective or preventive action. The proceedings are begun by serving a copy of an accusation upon the subject of the accusation, then when this is done the accusation is a public document. If formal proceedings are initiated, the relevant portions of the report are public documents open to inspection. In addition, the attorney general is required to make available to the public a summary of the quarterly reports received, with sufficient deletions to prevent disclosure of a person's identity. AS 39.52.260.
iii) Dismissal or Resolution Before Formal Proceedings. If the attorney general determines after investigation that there is no probable cause to believe that a violation of the Executive Branch Ethics Act has occurred, she or he shall dismiss the complaint, disposition of the matter promptly to the complainant and subject of the complaint, and prepare and file a confidential summary with the personnel board. AS 39.52.320. If instead, the attorney general determines that the conduct of the complaint does not warrant a hearing but recommends action to correct or prevent a violation of the ethics code, the attorney general shall communicate the recommended action to the complainant, and to subject of the complaint who is required to comply with the recommendation. AS 39.52.330. Each month the attorney general is required to provide the personnel board with a summary updating the status of pending complaints and resolution of complaints. AS 39.52.335. This summary is confidential unless the dismissal under .320 or resolution agreed to under .330 is public, or a superior court makes the matter public as provided in the statute. If the summary is confidential, comments filed by the complainant are confidential, the personnel board's review of the summary must be in executive session, and any report issued by the personnel board must be confidential except that the board must make public an expurgated copy that does not identify the persons involved. The personnel board, after reviewing the summary, can issue a report on the disposition of the complaint that, among other things, recommends that the subject of the complaint be identified if that is determined to be in the public interest. An interested party can request that the superior court adopt the board's recommendation by making public the complaint, the attorney general's disposition of the complaint, and the personnel board report, and the court can order the matter, or portions of it, public if it determines that (1) the dismissal or resolution of the complaint was clearly contrary to the requirements of this chapter; (2) one or more of the allegations in the information to be released is supported by substantial evidence; (3) the matter concerns the public interest; and (4) release of the information will not infringe on any protected rights or liberties of the subject. AS 39.52.335.
- iv) Confidentiality of Investigations. AS 39.52.340 provides that before the initiation of formal proceedings, information regarding the investigation conducted under the Executive Branch Ethics Act, or obtained by the attorney general during the investigation, is confidential, except as provided in AS 39.52.335 as outlined in the preceding subsection. The attorney general and all persons contacted during the course of an investigation are required to maintain confidentiality regarding the existence of the investigation, and violations of this provision constitute a Class A misdemeanor. The subject of the complaint may, in writing, waive the confidentiality protection of this section. AS 39.52.340(c).
- Personnel Board Review. Formal proceedings are initially conducted before a hearing officer who makes reports and findings and recommendations to the personnel board. The personnel board can conduct a further hearing or oral argument, and must review each report submitted by a hearing officer and decide whether to adopt or amend the findings of fact, conclusions of law, and recommendations of the officer. Deliberations of the personnel board must be conducted in sessions not open to the public. AS 39.52.370.
- Conflict of Interest Statements. Sworn statements giving income sources and business interests must be filed by judicial officers, and most significant elected and appointed state and municipal officers and employees and former public officials, and candidates for public office. These conflict of interest statements are all public. AS 39.50.020-.030.
- Confidentiality of Retirement Records. Public records, including electronic services and products involving public records, containing information about a person and maintained under the laws governing the public employees' retirement systems, are confidential and not subject to inspection or copying under the public records act. AS 40.25.151.
- Background Information for Employees with Access to Federal Tax Information. In connection with an initial application or as a condition of continued employment in a position with the state for which the job duties include access to federal tax information, an agency must require a prospective or current employee to provide information for a background investigation and request a state and national criminal history record check. A background investigation under this section, including a state and national criminal history record check, is confidential. AS 39.90.210.
- Disclosures in Connection With Executive Clemency. Before granting executive clemency to an applicant for executive clemency, the governor must disclose in writing to the attorney general whether granting the clemency would benefit a personal or financial interest of the governor. The attorney general must publish a written determination whether granting executive clemency to the applicant would violate the Executive Branch Ethics Act. The written determination of the attorney general is not confidential, but information set out in that determination identifying a person, other than the applicant for clemency, who is a victim or witness in a criminal matter may not be made public. AS 39.52.225.
- Public Utilities and Carriers.
- In-State Pipeline Records and Contracts. In-state natural gas pipelines that provide transportation by contract carriage (other than those in-state natural gas pipelines subject exclusively to federal jurisdiction) are regulated by the Regulatory Commission of Alaska, and records in the possession of the Commission are presumptively public. AS 42.08.400. An in-state natural gas pipeline carrier is required to submit each of its precedent agreements for firm transportation service and any substantial amendments to the Regulatory Commission of Alaska. AS 42.08.320. A “precedent agreement” means a contractual commitment, including a presubscription agreement, to acquire firm transportation capacity, executed between an in-state natural gas pipeline carrier and another person, that establishes the rates, terms, and conditions for service. A precedent agreement negotiated with an entity that is not a public utility regulated by the commission may be filed under seal. Under AS 42.08.400, the commission must keep confidential a precedent agreement filed under seal. There are two significant categories of records excepted from the presumptive disclosure. The first is that the Commission may by regulation classify records received from an in-state natural gas pipeline carrier or in-state natural gas pipeline as privileged records that are not open to the public for inspection. The second is that a record filed with the Commission that is a “precedent agreement” between an in-state natural gas pipeline carrier and an unregulated entity is a privileged record that is not open to the public for inspection. For a record that relates to a precedent agreement, or is or relates to a contract other than a precedent agreement between an in-state natural gas pipeline carrier and an unregulated entity, if an in-state natural gas pipeline carrier identifies the provisions of the record that contain information that, if disclosed, could adversely affect the competitive position of the shipper or could cause commercial or competitive harm or damage if disclosed and the Commission agrees, the information shall be treated by the Commission as confidential. AS 42.08.400(b), (c). A person may make written objection to the public disclosure of information contained in a record filed under this chapter or of information obtained by the commission or by the attorney general under this chapter, stating the grounds for the objection. When an objection is made, the commission shall order the information withheld from public disclosure if the information adversely affects the interest of the person making written objection and disclosure is not required in the interest of the public. AS 42.08.400(d).
- Alaska Public Utilities Commission Act. The Alaska Public Utilities Commission Act was established by the Alaska Legislature in 1970 to replace the Alaska Public Service Commission, which existed from 1960 until 1970. In 1999, the Alaska Legislature replaced the APUC with the Regulatory Commission of Alaska (“RCA”). The RCA has broad authority to regulate utilities and pipeline carriers throughout the state. AS 42.05.671(a) provides for public access to records in the possession of the commission. The commission may, by regulation, classify records submitted to it by regulated utilities as privileged records, not open to inspection by the public. However, if a record involves an application or tariff filing pending before the commission, the commission shall release the record for the purpose of preparing for or making a presentation to the commission in the proceeding if the record or information derived from the record will be used by the commission in the proceeding. A person objecting to public disclosure of information contained in a record submitted under the Public Utilities Regulatory Act or of information obtained by the commission under the provisions of the Act must do so in writing and state the grounds for the objection. When an objection is made the commission may not order the information withheld from the public unless the information adversely affects the interest of the person making the written objection and disclosure is not required in the interest of the public. AS 42.05.671(c). Regulations of the RCA governing access to records are found at 3 AAC 48.040 et seq. The Alaska Supreme Court has stated that, while the requirement of the statute that information not be withheld if "required in the interest of the public" will normally prevent a conflict with constitutional due process requirements, if a conflict nevertheless occurs, the privilege of access afforded by the statute must be narrowly construed so that the constitutional due process rights of the utilities control.
- Pipeline Commission. The Alaska Pipeline Commission was established in 1972 and regulated intrastate pipelines until 1981, at which time the APC was merged into the Alaska Public Utilities Commission. In 1999, the Alaska Legislature replaced the APUC with the Regulatory Commission of Alaska (“RCA”). Records in the possession of the RCA are presumptively open to the public. One who objects to the public disclosure of information contained in a record filed pursuant to the pipeline act or to disclosure of information obtained by the commission under the provisions of the act must do so in writing, stating the grounds for the objection. When an objection is made, the commission shall order the information withheld from public disclosure if the information adversely affects the interest of the person making written objection and disclosure is not required in the interest of the public. The commission may, by regulation, classify records submitted to it by regulated pipeline carriers or pipelines as privileged records that are not open to public inspection, provided that records that would be used in proceedings concerning tariffs must be made available. In such a case, the person who filed the otherwise confidential record must be given notice and an opportunity to object before it is released. AS 42.06.445.
- Alaska Railroad Corporation. Information in the possession of the Alaska Railroad Corporation is presumptively public and open to inspection and copying at reasonable times. AS 42.40.220. Matters of a privileged or proprietary nature may be designated by rule to be withheld from public disclosure. Those matters include personnel records, communications with and work product of legal counsel, and, consistent with the standards and practices of the United States Surface Transportation Board for the protection of these matters, other information including proprietary information associated with specific shippers, divisions and contract rate agreements. (Note: On at least one occasion, the ARR took an unreasonable position in refusing to disclose public documents, claiming attorney-client communications or work product. A specific issue was access to a consent decree and related documents entered into between the attorney general's office and the railroad. Threatened with a court suit to compel access, the railroad "became reasonable" and provided the documents.) The Alaska Railroad Corporation is exempt from the normal oversight of the governor with respect to its regulations governing access to electronic products and services, and inspection and copying of public records. AS 40.25.110(g) - .115(g), - .123(a).
- Alaska Natural Gas Development Authority. Information in the possession of the Alaska Natural Gas Development Authority, a public corporation established by a ballot measure in 2002 to facilitate bringing natural gas from the North Slope to market is a public record, except that information that discloses the particulars of the business or affairs of a private enterprise or investor was confidential and not subject to disclosure under the public records act. Confidential information could be disclosed only for the purposes of an official law enforcement investigation or when its production is required in a court proceeding, publication of statistics presented in a manner that prevents the identification of particular reports, items, persons or enterprises is permitted. AS 41.41.150. This statute was repealed in 2013.
- Revenue and Taxation.
- Tax Information. Information in the possession of the Department of Revenue that discloses the particulars of the business or affairs of a taxpayer or other person is not public record. It is confidential, except that tax lists showing the names of delinquent taxpayers may be published, and taxpayer information may be presented in statistical form that does not identify particular reports or items. AS 40.25.100.
- Tax Returns and Reports. It is against the law for current or former officers, agents or employees of the state to divulge the amount of income or the particulars set out or disclosed in a report or return made under the state revenue code. Nothing in this section prohibits the publication of statistics so classified as to prevent the identification of particular returns or reports or the publication of delinquent lists showing the names of taxpayers who have failed to pay their taxes at the time and in the manner provided by law, together with other relevant information which in the opinion of the department may assist in the collection of delinquent taxes. AS 43.05.230.
- Tax Appeals. A 1983 Attorney General's Opinion states that when a taxpayer files a notice of appeal, the Department of Revenue hearing decision may be made public because the taxpayer is, in effect, waiving any right to confidentiality the taxpayer may have had. Also, the AG concluded that the Department can publish decisions that have not been appealed or for which confidentiality was not voluntarily waived if it establishes guidelines for publication to protect the taxpayer's identity. Absent an appeal, hearing decisions need not be published, even though they are technically orders of the Commissioner because of other statutory provisions which prohibit disclosure of the "particulars" of the business of a taxpayer except when in connection with investigations or court proceedings. Records, proceedings and decisions under this statute are confidential, except that they become public records and open to the public when the final administrative decision is issued and becomes final. AS 43.05.470(a). Upon a showing of good cause, an administrative law judge must issue a protective order requiring that specified parts of the records, proceeding or decision shall be kept confidential in a particular appeal, in which case the final administrative decision is made public after redacting by deletion or substitution of information as required by the protective order. AS 43.05.470(b). To promote consistency among legal determinations issued under AS 43.05.400 - 43.05.499, the chief administrative law judge may review and circulate among the other administrative law judges the drafts of formal decisions, decisions upon reconsideration, and other legal opinions of the other administrative law judges in the office. The drafts are confidential documents, not subject to disclosure under the public records act or under .470(a). AS 43.05.475(b).
- Oil and Gas Production Tax Credits. To qualify for a production tax credit based on oil and gas or gas exploration, an explorer shall agree, in writing, to submit information and evidence about the claimed exploration necessary to evaluate the validity of the explorer's claim. Notwithstanding any provision of AS 38, information provided under this paragraph will be held confidential by the Department of Natural Resources—in the case of well data, until for a specified 24-month period (unless the Commissioner finds it necessary to withhold it to protect information related to valuation of unleased acreage in the vicinity, or the well is on private land and the landowner has not given permission to release the well data), and in the case of most seismic or other geophysical data, for 10 years following the completion date (except as to data acquired from private land unless the owner or lessee of that land gives permission to release data associated with that land), at which time, in either case, the Department will release the information after 30 days' public notice AS 43.55.025(f). If the Department issues a production tax credit or credit for exploration expenditures, having found that an explorer’s claimed expenditures qualified and all required data was submitted, notwithstanding other statutory provisions prohibiting disclosure of taxpayer information, the following information is not confidential: the explorer’s name, the date of the application, the location of the well or seismic exploration, the date of the department’s issuance of the certificate, and the date on which the information required to be submitted under the tax credit statute would be released. AS 43.55.025(f)(5).
- Multistate Tax Compact. Information obtained by any audit pursuant to the Multistate Tax Compact is confidential. AS 43.19.010. Fish processors engaged in selling canned salmon must semi-annually report to the Department of Revenue the prices received for the sale of canned salmon. Information in these reports and price averages calculated by the department from the information in the reports, are public information except that information that identifies or could be used to identify a particular fish processor is confidential. AS 43.80.065.
- Stranded Gas Development Act. The Stranded Gas Development Act provides for contracts for payments in lieu of other taxes to encourage new investment to develop the state's stranded gas resources. The commissioner of revenue determines whether proposals for new investment qualify based on information and evidence submitted under this chapter. An applicant may request confidential treatment of information it provides by clearly identifying the information and the reasons supporting the request for confidential treatment. If the commissioner does not approve the request, the information is returned, the review ceases unless the returned information is deemed unnecessary. The information that is subject to the request is to be kept confidential if the applicant shows that (1) it is a trade secret or other proprietary research, development or commercial information that the applicant treats as confidential; (2) affects the applicant's competitive position; and (3) has commercial value that may be significantly diminished by public disclosure or that public disclosure is not in the long-term fiscal interests of the state. Information thus determined to be confidential is confidential only so long as is necessary to protect the competitive position of the applicant, to prevent the significant diminution of the commercial value of the information, or to protect the long-term fiscal interests of the state. The commissioner may not release information that the commissioner has previously determined to be confidential under AS 43.82.310(b) without providing the applicant notice and an opportunity to be heard. AS 43.82.310.
If the commissioner of revenue chooses to develop a contract under AS 43.82.020, the portions of the records and files of the various state and municipal agencies involved that reflect, incorporate or analyze information that is relevant to the development of the position or strategy of the commissioner of revenue, the commissioner of natural resources, or the attorney general with respect to a particular provision that may be incorporated into the contract are not public records until the commissioner of revenue gives public notice of the commissioner's preliminary findings and determination. AS 43.82.310(f). Nothing in this subsection makes a record or file of the Department of Revenue, the Department of Natural Resources, or the Department of Law a public record that otherwise would not be a public record under AS 40.25.100 - 40.25.220, affects the confidentiality of other provisions of AS 43.82.310; or abridges a privilege recognized under the laws of this state. Information that can be disclosed confidentially to other state or municipal agencies for purposes of this chapter does not become public when received by these public agencies. The confidential status of information must be maintained when copies of proposed contracts and the commissioner's preliminary finding and determination are publicly noticed, and confidential information cannot be released during the public portion of legislative committee meetings reviewing the proposed contracts and supporting data. AS 43.82.410.
- State Government/Miscellaneous.
- Permanent Dividend Applications. Information on each permanent fund dividend application, except the applicant's name, is confidential. The department may only release information that is confidential under this section (1) to a local, state or federal government agency; (2) in compliance with a court order; (3) to the individual who or agency that files an application on behalf of another; (4) to a banking institution to verify the direct deposit of a permanent fund dividend or correct an error in that deposit; (5) as directed to do so by the applicant; and (6) to a contractor who receives, stores, or manages the information on behalf of one of these. AS 43.23.017. In addition, a 2008 amendment allows the department to release the names and addresses of permanent fund dividend applicants to an Alaska legislator and to the legislator's office staff for official legislative purposes.
- Cigarette Importation Records. A person that imports into Alaska for sale or distribution here cigarettes manufactured outside of the United States must file quarterly statements identifying the brand and brand styles of the cigarettes, the quantity of each brand style of cigarettes, and the person or persons to whom the cigarettes have been shipped. These statements are confidential and not disclosable under the public records act. AS 43.50.410.
- Office of Management and Budget. The office of management and budget provides technical assistance to the governor and legislature on a variety of governmental matters including identifying long range goals and objectives, preparing a state comprehensive development plan and assisting with coordination in preparation of agency plans and programs, reviewing planning within state government as necessary for receipt of federal and other funds, and other functions. OMB must keep a complete file of internal audit reports resulting from its audits, and a complete file of the internal audit work papers and other related supportive material. Internal audit work papers and other related supportive material are confidential, and internal audit reports are confidential until released by the governor. However, internal audit work papers and other related supportive material containing information, data, estimates, and statistics obtained during the course of an audit may be kept confidential only to the extent required by law applicable to the agency from which the material is or was obtained. AS 44.19.147.
- Equal Employment Opportunity Program. The director of the division of personnel within the Department of Administration is responsible for administering the equal employment opportunity program of the executive branch. The director may not make records of a complaint or investigation public. AS 39.28.060(c). Also, the director may not make public records designated as confidential by AS 39.25.080 or otherwise that it obtains in carrying out its functions, except that it may make public statistical information compiled from confidential records. AS 39.28.080.
- Artists’ Submissions for “Art in Public Places” Funding. The state’s “art in public places fund” is managed by the Alaska State Council on the Arts to commission or purchase works of art to be made part of public buildings or buildings or facilities owned or leased by the state that have substantial public use. Artists can submit proposals for funding, and their submissions made in response to an inquiry or solicitation initiated by the Council are not subject to public inspection or disclosure under the PRA except for two categories of documents. AS 44.27.060(e). First, if the Council awards a commission for the submission, it is no longer confidential. And second, these provisions relating to don’t apply to an artist’s submission if the Council finds the artist created the submission as a work made for hire (as that term is used in the federal Copyright Act), or has transferred ownership of the artist’s copyright for the work. AS 44.27.060(f) and (g).
- DNA Identification System. A DNA identification registration system established by the Department of Public Safety to support criminal justice services is confidential, and not a public record, and may only be used for purposes specified in the statute. AS 44.41.035(f).
- Public Safety Handgun Reports Concerning Those Involuntarily Committed or Adjudicated Mentally Ill or Incompetent. With respect to persons who have been involuntarily committed or adjudicated mentally ill or mentally incompetent, the Department of Public Safety is required to make certain reports for inclusion in the National Instant Criminal Background Check System established under the Brady Handgun Violence Prevention Act. In doing so, the Department may not disclose diagnostic or treatment information regarding the person, and can’t use the information obtained or retained under this section for another purpose, other than to determine whether the person is qualified under Alaska law to receive and hold a permit to carry a concealed handgun. Information obtained or retained under this section is confidential and is not a public record. AS 44.41.05.
- Notaries Public. An address, telephone number and e-mail address submitted to the lieutenant governor by a notary public or applicant for a notary public commission is confidential if so designated by the notary public or applicant, though a notary public must provide a nonconfidential address and phone number at which he or she can be contacted. AS 45.50.071(a). Even though compilations and databases of such confidential addresses, phone numbers and e-mail addresses are also confidential, the lieutenant governor may disclose such compilations and databases if the lieutenant governor determines that disclosure is in the public interest. AS 45.50.071(b). Complaints about misconduct by a notary public can lead to action by the lieutenant governor suspending or revoking a notary public's commission, or reprimanding a notary public. Such complaints are confidential unless the lieutenant governor determines that the complaint alleges sufficient facts to constitute good cause for disciplinary action. AS 44.50.071(c).
- Negotiated Regulation Making. AS 44.62.710 - 44.62.800 establishes a framework for the conduct of negotiated regulation making to supplement normal administrative procedures to permit the direct participation of affected interests in the development of new regulations or the amendment or repeal of existing regulations. Notwithstanding AS 40.25.100 - 40.25.220, records from private persons that are requested or used by a negotiated regulation making committee and working documents prepared by the committee that analyze or incorporate information from the records shall be kept confidential if the records or working documents contain proprietary information and the owner of the records or working documents requests that the records or working documents be kept confidential. AS 44.62.795.
- Commercial Fishing and Agricultural Bank. CFAB is a bank that is a hybrid creature of the legislature. It is exempt from the banking code (AS 06.05) and generally subject to the provisions of the Alaska Cooperative Corporation Act (AS 10.15). Records of the bank that are identified with, or identifiable as being derived from the records of, a specific borrower, member of the bank, or applicant for a loan are confidential and may not be disclosed except under circumstances specified in the statute (including for example, pursuant to court order, or to another lender or bank checking credit). Other bank records "may be kept confidential by the bank." AS 44.81.260. Legislative auditors may not disclose information acquired during the course of an audit of the bank concerning the particulars of the business or affairs of a borrower of the bank or another person. AS 44.81.270(b). At least every three years, an examiner from the Department of Commerce must perform an examination of the Commercial Fishing and Agriculture Bank. During the examination, the examiner must evaluate the quality of the bank's loan portfolio on a statistical basis and on the appropriateness and effectiveness of the bank's policies, practices, and management to carry out the bank's statutory purposes, and
prepare a summary report of the examiner's findings and conclusions. The department must distribute a copy of the report to the bank and to the legislative auditor, but the records, information, and findings of the department related to the examination are otherwise confidential under AS 06.01.025. AS 44.81.275.
- The Alaska Gas Pipeline Financing Authority. The statute creating the Alaska Gas Pipeline Financing Authority, since repealed, does not specify whether its records are public or not. Reporters should simply argue that the authority is subject to the general provisions of AS 40.25.110 to -.120, since the membership of the authority consists of three individuals — each commissioners of different departments in the state government. The authority is "an instrumentality of the state within the Department of Revenue, but has a legal existence independent of and separate from the state." It is a public corporation of the state. There is no prior authority regarding the status of its records.
- Alaska Savings Program. The Department of Revenue is authorized to set up individual savings accounts for eligible individuals eligible for the savings program as distributees of funds relating to certain disabilities. The Department of Revenue is authorized to exchange information with the Department of Health and Social Services to determine whether an individual is eligible, and Revenue, DHSS and another state agency that receives information for this purpose shall maintain the confidentiality of the information they receive or exchange under this chapter about eligible individuals, designated beneficiaries, and program accounts as required by state and federal law. AS 06.65.270.
- Alaska Industrial Development Authority. The Alaska Industrial Development Authority is a public corporation of the state and "a body corporate and politic constituting a political subdivision within the Department of Commerce, Community, and Economic Development, but with separate and independent legal existence." AS 44.88.020. The statute does not specifically spell out whether the records of the AIDA are public, but it appears that they are subject to the general provisions of AS 40.25.110 et seq. AIDA is generally subject to the open meetings law, cf. AS 44.88.190, and there is a specific exemption for the confidentiality of certain information, giving rise to the implication that its records are otherwise public. In order to promote the purposes of this chapter, unless the records or information were a matter of public record before submittal to the authority, the following records and information must be kept confidential if the person supplying the records or information or the project, bond, loan, or guarantee applicant or borrower requests confidentiality and makes an adequate showing to the executive director of the authority that the records or information are (1) income tax returns; (2) financial statements, profit-and-loss statements, and cash flow projections, except the information required by the authority to calculate debt service coverage on the loan; (3) financial business plans; (4) credit reports from consumer reporting agencies and other credit information obtained from banks, creditors, or other credit reporting entities; (5) trade secrets, including confidential proprietary information and confidential information about products, pricing, or manufacturing or business processes; (6) appraisals, except the name of the appraiser, the date of the appraisal, and the fair market value determined for the property appraised; (7) market surveys and marketing strategy information; or (8) any information required to be kept confidential by a federal law or regulation or by state law. AS 44.88.215(a). Information compiled by the authority from information described in (a) of this section shall be kept confidential unless disclosure is authorized by the person supplying the information and by the project, bond, loan, or guarantee applicant or borrower. AS 44.88.215(b). The records and information that the executive director of the authority determines to be confidential under AS 44.88.215(a) or (b) are not public records under the Public Records Act. AS 44.88.215(c). Legislators can review information otherwise confidential under this section if they have a valid legislative purpose for reviewing the information and agree to maintain the confidentiality of the information. AS 44.88.215(d).
- Trade and Commerce.
- Unfair Trade Practices. Unfair Trade Practices and Consumer Protection Act gives the attorney general broad powers to investigate a broad range of unlawful acts and practices specified in the Alaska statutes. See AS 45.50.471 et seq. The attorney general may not make public the name of a person alleged to have committed an act or practice that is listed in the unfair trade practices statutes during an investigation conducted by her or him, nor are the records of the investigation or intelligence information obtained by the attorney general considered public records. They are not available for inspection by the general public. The attorney is allowed to issue public statements describing or warning of a course of conduct or a conspiracy that constitutes or will constitute an unlawful act or practice. AS 45.50.521.
- Securities Act of 1959. Various information must be submitted to the state in connection with regulation and enforcement pursuant to the Alaska Securities Act. State officials and employees may not use for personal benefit information filed or obtained under the Securities Act that is not made public, and they may not disclose this non-public information except among themselves or when necessary or appropriate in a proceeding or investigation under the Securities Act. See AS 45.55.905(b). Investigative files are confidential. AS 45.55.910.
- Trade Secrets Litigation. In 1988, the legislature adopted the Alaska Uniform Trade Secrets Act. AS 45.50.910 - 45.50.945. In actions brought under this Act, a court must preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval. AS 45.50.920.
- Sale of Business Opportunities. A person may not sell or offer to sell a business opportunity unless the person is appropriately registered as a seller with the Department of Commerce. AS 45.66.010 et seq. Except for testimony and records related to an investigation by the Department of Commerce under this chapter, the registration application form, registration renewal form, disclosure statement, bond, contract, and other documents required to be prepared or filed with the department are public records available for public inspection and copying under the Public Records Act. AS 45.66.190.
- Vital Statistics. The general public records law specifically excepts vital statistics records, and says these "shall be treated in the manner required by AS 18.50." That chapter of the statutes, in turn, says that the state registrar shall issue instructions concerning the keeping, disclosure and copying of such records. AS 18.50.100. This had led to regulations found in 7 AAC 05.010 to -.990 that govern in detail questions about creation, maintenance, dissemination and preservation of records concerning births, deaths, burial permits, divorces and adoptions. Notwithstanding AS 40.25.120, when 100 years have elapsed after the date of a birth, or 50 years have elapsed after the date of a death, marriage, divorce, dissolution of a marriage or annulment, the records of these events become public and subject to inspection and copying. AS 18.50.310.
- Water, Air, Energy and Environmental Conservation.
- Inspections. The state Department of Environmental Conservation is authorized, among other things, to enter and inspect premises with consent of the owner to investigate actual or suspected sources of pollution or contamination or to ascertain compliance with regulations; information relating to secret processes or methods of manufacture discovered during an investigation are confidential. AS 46.03.020(6).
- Hazardous Waste. A person must obtain a permit to treat, transport, store or dispose of hazardous waste. Permits, permit applications, records, reports and information obtained by the department under laws relating to this are available to the public for inspection and copying. However if the commissioner is satisfied that disclosure of such a document would divulge methods or processes entitled to protection as trade secrets, he or she shall treat the information or document as confidential. AS 46.03.311.
- Underground Storage Tanks. Financial records submitted to the Department of Environmental Conservation or Board of Storage Tank Assessment by the owner or operator of an underground petroleum storage tank system are confidential. DEC is to determine, in consultation with affected owners and operators, which information is confidential. Statistical information about the number, capacity and location of underground petroleum storage tank systems in the state is not confidential. AS 46.03.440.
- Oil Pollution Control. AS 46.04.025 authorizes the Department of Environmental Conservation to maintain the confidentiality of a manufacturer's proprietary technical information relating to chemical and biological agents used to control or mitigate the effects of an oil discharge. The department may require other state and federal agencies that request the information to receive it on the condition that they also maintain its confidentiality.
- Air Quality Control. The laws governing air pollution control provide that all or parts of records, reports and information, other than emission data, in the possession of the Department of Environmental Conservation are considered confidential records, if the owner and operator involved certifies that their public disclosure would tend to adversely affect the party's competitive position, and that they would divulge production figures, sales figures, processes, production techniques, or financial data that are entitled to protection under the Alaska Uniform Trade Secrets Act. AS 46.14.520. For a thorough analysis of this section (formerly AS 46.03.180) in the context of records concerning the Anchorage tank farms, see Dec. 4, 1991 Attorney General Opinion, 663-92-0227.
- Welfare, Social Services and Institutions.
- Public Assistance Records. When names and addresses of recipients of public assistance are furnished to or held by other government agencies or departments they are required to adopt regulations necessary to prevent the publication of the lists or their use for purposes not directly connected with the administration of public assistance, AS 47.05.020, except pursuant to regulations of the Department and for purposes directly connected with the administration of general assistance, adult public assistance, day care assistance programs, or aid to families with dependent children. No one may disclose, receive, make use of, or acquiesce in the use of a list of, or names of, or information concerning, persons applying for or receiving public assistance directly or indirectly derived from the records, papers, files or communications of the department or subdivisions or agencies of the department, or acquired in the course of the performance of official duties. AS 47.05.030. It is not a violation of this section for the Department or an employee to disclose to a state legislator financial information concerning an eligibility determination of a person applying for public assistance if the disclosure, solicitation, receipt and use are for official purposes in connection with the legislator's official functions and related to the administration of the program consistent with federal law provided that the information shall remain confidential and not further disclosed. A legislator who was not notified that the material was confidential at the time it was provided is not subject to penalty for further disclosure. AS 47.05.032. The Department of Law determined that the Anchorage Daily News was entitled to obtain from the Child Support Enforcement Division a list of child support obligors in arrears, so long as the agency, in releasing this information, does not identify AFDC-related cases. May 30, 1989, Op. Att'y Gen. No. 661-89-0405.
- Centralized Registry of Service Providers. The Department of Health and Social Services is required to provide by regulation for a centralized registry to facilitate the licensing or certification of entities and individual service providers, the authorization of payments to entities or individual service providers by the department, and the employment of individuals by entities and individual service providers. Covered are individuals or entities required by statute or regulation to be licensed or certified by the Department of Health and Social Services or that are eligible to receive payments, in whole or in part, from the department to provide for the health, safety and welfare of persons who are served by the programs administered by the department. More specifically, covered "entities" include shelters, clinics, medical and psychiatric facilities, foster, maternity and assisted living homes, hospices, child care facilities, birth centers, and a host of others providing social and medical services listed in AS 47.05.010(b) and owners, officers, directors, members or partners of these entities. "Individual service providers" include (1) public home care providers described in AS 47.05.017 (providing health care benefits); (2) providers of home and community-based waiver services financed under AS 47.07.030(c) (medical and related services); and (3) case managers to coordinate community mental health services under AS 47.30.530. The registry consists of the following information, with names of victims redacted, for an entity or individual service provider, an applicant on behalf of an entity or individual service provider, or an employee or unsupervised volunteer of an entity or individual service provider: (1) decisions, orders, judgments and adjudications finding that the applicant, employee or unsupervised volunteer committed (A) abuse, neglect or exploitation under AS 47.10, AS 47.24, AS 47.62, or a substantially similar provision in another jurisdiction; or (B) medical assistance fraud under AS 47.05.210 or a substantially similar provision in another jurisdiction; and (2) orders under a state statute or a substantially similar provision in another jurisdiction that a license or certification of the entity or individual service provider to provide services related to the health, safety and welfare of persons was denied, suspended, revoked or conditioned. Information contained in the registry is confidential and is not subject to public inspection and copying under the public records act. AS 47.05.330(h).
- Medical Assistance for Needy Students. Payments by the Department of Health and Social Services to assist needy persons eligible for medical care at public expense can be made to a school district on behalf of an eligible child with a disability for rehabilitative and other mandatory and optional services covered under the law that are furnished or paid for by the school district. Notwithstanding any contrary provision of state law, the school district must allow the department access to medical, financial and other records of the child that are in the possession of the school district in order to verify eligibility for services under this chapter, and the department must keep information received under this subsection confidential to the same extent as the school district is required to keep the information confidential under law. AS 47.07.063(b).
- Children In Need of Aid. The court system and executive branch agencies deal with the problems of children in two significantly different contexts — simplistically thought of as situations in which young people are in the system because they are accused of causing trouble, as alleged juvenile delinquents, and situations in which the system is trying to ensure that a child in need of aid receives the care, guidance, treatment and control that will promote that child's welfare. AS 47.10.005 - 47.10.990. The latter is addressed in this section, the former (AS 47.12.010 - AS 47.12.990) in the next. Proceedings relating to a child under 18 who is or is alleged to be in need of aid can arise for a variety of reasons, e.g., because the child has been abandoned, sexually abused, otherwise physically or mentally harmed, left alone or uncared for due to the parent's incarceration or substance abuse, engaging in conduct harmful to him or herself, exposed to criminal or abusive conduct by a parent or other member of the household. AS 47.10.011. Whenever circumstances subject a child to the jurisdiction of the court under AS 47.10.005 - 47.10.142, the court appoints a person or agency to determine whether the best interests of the child require that further action be taken. Depending on the outcome, further informal or formal hearings or proceedings may be conducted. Child in need of aid (CINA) hearings are presumptively open, subject to significant exceptions and unless otherwise prohibited by federal or state law, court order or court rule. Records regarding a parent who chooses to surrender a child under circumstances constituting voluntary abandonment extinguishing parental rights are confidential. AS 47.10.013(f).
The court is required to make and keep records of all cases brought before it. Within 30 days after the date of the child's 18th birthday (or after any later date on which the court releases jurisdiction over the child) the court must order all the court's official records pertaining to that child in a proceeding under this chapter sealed. These sealed records may not be used unless authorized by order of the court upon a finding of good cause. AS 47.10.090(c). The name or picture of a child under the jurisdiction of the court pursuant to the CINA statute may not be made public in connection with the child's status as a child in need of aid, in a way that identifies any particular person, unless authorized by a court order or unless to implement a permanency plan after all parental rights of custody have been terminated. AS 47.10.090(d). The court's official records under the CINA statute may be inspected only with the court's permission and only by persons having a legitimate interest in them. AS 47.10.090(e).
Agency records are likewise presumptively privileged and confidential. With certain specified exceptions for various non-public disclosures, all information and social records pertaining to a child who is subject to the CINA statute prepared by or in the possession of a federal, state or municipal agency or employee in the discharge of the agency's or employee's official duty may not be disclosed directly or indirectly to anyone without a court order. AS 47.10.093(a). The Department of Health and Social Services may release confidential information relating to children not subject to the jurisdiction of the court to a person with a legitimate interest. AS 47.10.093(f). The CINA statute directs the Department to adopt and implement regulations governing release of confidential information and identifying a "sufficient legitimate interest" under subsection .093(f). When an agency investigating a report of harm determines that agency services to protect the child are not required but identifies an appropriate community organization to provide needed support services, a referral to the organization can be made with consent of the parent or guardian, and the community organization may not disclose information from the agency to anyone not authorized to receive it. AS 47.17.093(g).
The commissioners of health and social services or administration, or their representatives, may disclose to the public, upon request, confidential information of the type related to the determination, if any, made by the department regarding the validity of a report of harm under AS 47.17 and the department's activities arising from the department's investigation of the report, when (1) the parent or guardian of a child who is the subject of a report of harm under AS 47.17 has made a public disclosure concerning the department's involvement with the family; (2) the alleged perpetrator named in the report of harm under AS 47.17 has been charged with a crime concerning the alleged abuse or neglect; or (3) a report of harm under AS 47.17 has resulted in the fatality or near fatality of that child. AS 47.10.093(i). Disclosures made pursuant to subsection .093(i) are not subject to the general prohibitions against further disclosure or publication of such previously confidential information. In making such disclosure, the agency must (1) withhold disclosure of the child's name, picture or other information that would readily lead to the identification of the child if the department determines that the disclosure would be contrary to the best interests of the child, the child's siblings, or other children in the child's household, or (2) after consultation with a prosecuting attorney, withhold disclosure of information that would reasonably be expected to interfere with a criminal investigation or proceeding or a criminal defendant's right to a fair trial in a criminal proceeding. AS 47.10.093(j).
- Delinquent Minors. Most matters involving minors are handled in a special division of the court system. The children's court, dealing with offenses by minors, generally operates outside of the public eye in order to implement public policies designed to protect minors by allowing them to bury youthful mistakes. The law concerning juvenile delinquency, AS 47.12, has been amended significantly to reflect evolving public attitudes on this subject. The legislature has specifically declared that making the juvenile justice system more open, accessible and accountable to the public is one of the purposes of the juvenile delinquency statute. AS 47.12.010.
Certain offenses are not handled in this juvenile justice system. Since the AS 47.12 and the related Alaska Delinquency Rules of the court system do not apply to these offenses, the minor is charged, held, released on bail, prosecuted, sentenced and incarcerated in the same manner as an adult in such cases, which means that judicial records and court proceedings in such cases are open as they would be in any other adult case. Specifically, this occurs when a minor who was at least 16 when one of the following offenses is charged by complaint: (1) an unclassified felony or a class A felony and the felony is a crime against the person, (2) arson in the first degree, (3) a class B felony that is a crime against a person in which the minor is alleged to have used a deadly weapon in the commission of the offense and the minor was previously adjudicated as a delinquent or convicted as an adult, as a result of an offense that involved used of a deadly weapon in the commission of a crime against a person, or (4) misconduct involving a weapon in the first degree under AS 11.62.190(a)(1), or AS 11.62.190(a)(2) when the firearm was discharged under circumstances manifesting substantial and unjustifiable risk of physical injury to a person. AS 47.12.030(a).
There are other offenses that also are handled outside the juvenile delinquency statute, so that records and proceedings are open to the extent they would be if adults were involved. With respect to these following alleged offenses, minors are treated as adults regardless of their age and must have their parent or guardian present at all proceedings: violations of (1) a traffic statute or regulation, or a traffic ordinance or regulation of a municipality, (2) AS 11.76.105, relating to underage possession of tobacco, (3) a fish and game statute or regulation under AS 16, (4) a parks and recreational facilities statute or regulation under AS 41.21, and (6) a municipal curfew ordinance, whether adopted under AS 29.35.085 or otherwise, unless the municipality provides for enforcement of its ordinance under AS 29.25.070(b) by the municipality. AS 47.12.030(b). A subsection (5), that used to treat minors as adults in cases arising under AS 04.16.050, relating to possession, control or consumption of alcohol, except for conduct constituting habitual minor consuming or in possession or control under AS 04.16.050(d), was repealed in 2016. Similarly, minors involved in driver's license proceedings under AS 28.15.185 are treated as adults, except that their parents or legal guardian must be present at all proceedings. AS 47.12.030(c). Also, if a court finds at a hearing that there is probable cause for believing that a minor is delinquent but not amenable to treatment under AS 47.12, it will order the case closed and the minor may be prosecuted as an adult. AS 47.12.100.
An order entered by the court under AS 47.12.120 that a minor or minor's parent must pay restitution is a civil judgment that remains enforceable after expiration of the court's jurisdiction over the minor. Information relating to a restitution order, including information about the minor and the recipient of the order, may be forwarded to the Department of Law for assistance in enforcing it. This information is confidential, and not subject to inspection as a public record. AS 47.12.170(c).
Court dealing with juvenile delinquency records must keep records of all cases. Except when disclosure of the name of a minor is authorized or required by AS 47.12, the name or picture of a minor under the jurisdiction of the court may not be made public in connection with the minor's status as a delinquent unless authorized by the court, AS 47.12.300(c). In the past, there have been isolated threats to employ this statute against the news media when broadcasters or print reporters have run the name or a picture of individuals involved in court proceedings who are juveniles. The statute makes violation of this provision a misdemeanor, punishable by fine or imprisonment. Any such attempt to apply the statute to prohibit or punish the news media's publication of names or pictures they have obtained is almost certainly unconstitutional. Under the First Amendment, there can be no civil or criminal liability for the publication of truthful information lawfully obtained. A practical effect of the statute is that it operates as a restraint on court officials or public employees who may be asked to provide the information or photo at issue. As noted herein, juveniles are treated as adults in connection with a variety of offenses, so the prohibitions of AS 47.12.300 against releasing names and photos do not apply on such cases.
An exception to the general rule against nondisclosure provides that when a district attorney has elected to seek imposition of a dual sentence and a petition has been filed under AS 47.12.065, or when a minor agrees as part of a plea agreement to be subject to dual sentencing, all court records must be open to the public except for predisposition reports, psychiatric and psychological reports, and other documents that the court orders to be kept confidential because the release of the documents could be harmful to the minor or could violate the constitutional rights of the victim or other persons. AS 47.12.300(g); Alaska Delinquency Rule 27(b).
Agency records pertaining to juvenile delinquency matters are also generally confidential. With certain exceptions, all information and social records pertaining to a minor who is subject to AS 47.12 or AS 47.17 prepared by or in the possession of a federal, state or municipal agency or employee in the discharge of the agency's or employee's official duty, including driver's license actions under AS 28.15.185, are privileged and may not be disclosed directly or indirectly to anyone without a court order. AS 47.12.310. A state or municipal law enforcement agency may disclose to the public information regarding a criminal offense in which the minor is a suspect, victim or witness if the minor is not identified by the disclosure, AS 47.12.310(c)(2), and may disclose to the public information regarding a case as may be necessary to protect the safety of the public. AS 47.12.310(c)(4). The department may release to a person with a legitimate interest information relating to minors not subject to the jurisdiction of the court under AS 47.12, and is required to adopt regulations governing such release and identifying sufficient legitimate interest. AS 47.12.310(f). Also, a state or municipal agency other than a law enforcement agency may disclose to the public information regarding a case as may be necessary to protect the safety of the public provided the disclosure is authorized by regulations adopted by the department. AS 47.12.310(i).
The law provides that the department may take, or be ordered to take, appropriate action to adjust matters relating to alleged juvenile delinquencies without a court hearing under circumstances set forth in AS 47.12.040(a)(1) and AS 47.12.040(a)(2), notwithstanding AS 47.12.310. In such cases, the agency shall, for a minor who is at least 13 years old at the time of the commission of the offense, disclose to the public the name of the minor, the name or names of the parent, parents or guardian of the minor, the action required by the agency to be taken to adjust the matter, and information about the offense exclusive of information that identifies the victim of the offense, if the minor was, under AS 47.12.020, previously alleged to be a delinquent minor on the basis of the minor's commission of at least one offense and, on the basis of that allegation, a state agency has, under AS 47.12.040(a), been asked to make a preliminary inquiry to determine if any action on that matter is appropriate, and, if the minor is alleged to be a delinquent minor on the basis of the minor's commission of another offense, exercise of agency jurisdiction is based on the minor's alleged commission of that other offense, and that other offense is one of the following: [A] a crime against a person punishable as a felony; [B] a crime in which the minor employed a deadly weapon in committing the crime; [C] arson; [D] burglary; [E] distribution of child pornography; [F] promoting prostitution; [G] certain misconduct involving a controlled substance. AS 47.12.315(a).
The law also provides that the department shall publicly disclose the name of a minor and the minor's parent(s) or guardian, the alleged offense exclusive of information identifying the victim, and the outcome of any delinquency proceedings before the court if the department files with the court a petition seeking adjudication of the minor as a delinquent based on one of three circumstances:  the minor's alleged commission of an offense, when 13 or older, and the minor has knowingly failed to comply with all terms and conditions required by the department or imposed by court order;  the minor's alleged commission, when 13 or older, of an offense of one of the following: [A] a crime against a person punishable as a felony; [B] a crime in which the minor employed a deadly weapon in committing the crime; [C] arson; [D] burglary; [E] distribution of child pornography; [F] sex trafficking; [G] certain misconduct involving a controlled substance, AS 47.12.315(b); or  the minor's alleged commission of a felony when 16 or older, when the minor has previously been convicted or adjudicated a delinquent minor based on the minor's commission of an offense that is a felony. AS 47.12.315(c).
If an agency or the court determines pursuant to AS 47.12 that delinquency proceedings should be dismissed and that the minor is not a delinquent, the minor may request the Department of Health and Social Services to disclose information about the matter or the case to the public. If the minor makes such a request, the agency shall disclose to the public information about the disposition of the matter or case without identifying the victim of the alleged offense. AS 47.12.315(c).
When the department or other agency discloses information as required by AS 47.12.315, it may not disclose the name of any foster parent or other out-of-home provider with whom the minor was living at the time the alleged offense was committed. AS 47.12.315(d)(1). If the information to be disclosed is maintained by electronic means that can be recovered from a computer database, the disclosing department or agency may disclose the information in that medium. AS 47.12.315(d)(2).
Subsections (e) and (g) of AS 47.12.315 address limitations on release of information based on when predicate offenses occurred, and what previous convictions or delinquency adjudications can be considered, based on passage of time, and subject to certain conduct of the minor. Subsection (f) permits the department to petition the court for an order prohibiting otherwise required disclosure based on a finding that the crime was an isolated incident and that the minor does not present any further danger to the public, or that the victim agrees that disclosure is inappropriate.
- Records Pertaining to Runaways. Records of a licensed program for runaway minors that identify a minor who has been admitted to or has sought assistance from the program are confidential and are not subject to inspection or copying under the public records act, unless (1) after being informed of the minor's right to privacy, the minor consents in writing to the disclosure of the records; (2) the records are relevant to an investigation or proceeding involving child abuse or neglect or a child in need of aid petition; or (3) disclosure of the records is necessary to protect the life or health of the minor. AS 47.10.340. If the Department of Health and Social Services requires record keeping by a shelter for runaways or by a corporation that is licensed to designate shelters for runaways, records of the shelter and the corporation that identify a runaway minor who has been sheltered in a shelter for runaways or has sought assistance from a shelter for runaways are confidential and are not subject to inspection or copying under the public records act, subject to the same three exceptions, including the minor's informed written consent. AS 47.10.396.
- Community Dispute Resolution Centers. Memoranda, work notes or products, or case files of community dispute resolution centers for matters involving minors, established under AS 47.12.450, are confidential and privileged and are not subject to disclosure in any judicial or administrative proceeding unless the court or administrative tribunal determines that the materials were submitted by a participant to the center for the purpose of avoiding discovery of the material in a subsequent proceeding. AS 47.12.450(e).
- Standardized Forms Used For Detained Juveniles. For the purpose of collecting statistics, the Department of Health and Social Services requires state and local agencies that operate a jail or other detention facility to use a standardized form established by the Department to keep a record and report the admission of a minor. The record must be limited to the name of the minor admitted, the minor's date of birth, the specific offense for which the minor was admitted, the date and time admitted, the date and time released, the sex of the minor, the ethnic origin of the minor, and other information required by federal law. Except for the notation of the date and time of the minor's release, the record shall be prepared at the time of the minor's admission. Unless otherwise provided by law, information and records obtained under this section are confidential and are not public records. They may be disclosed only for the purpose of compiling statistics and in a manner that does not reveal the identity of the minor. AS 47.14.030.
- Child Protection. The law requires various reports to be filed and investigations to be made when there is indication that harm is being done to children by parents or others. Such investigation reports and reports of harm are confidential. AS 47.17.040.
- Multidisciplinary Child Protection Teams. The Department of Health and Social Services has created multidisciplinary child protection teams to assist in the evaluation and investigation of reports made under AS 47.17 and to provide consultation and coordination for agencies involved in child protection cases under AS 47.10. Except for a public report issued by a team that does not contain confidential information, records or other information collected by the team or a member of the team related to duties under this section are confidential and not subject to public disclosure under the public records act. AS 47.14.300(d).
- Services for Developmentally Delayed or Disabled Children. Services are provided for developmentally delayed or disabled children under AS 47.20.060 - 47.20.290. The Department of Health and Social Services has established a system for compiling data on the numbers of children and their families in the state who need early intervention services, the numbers being served, the types of services provided, and other information as required under federal law for this program. Personally identifiable information obtained under this chapter is confidential for purposes of the public records act. AS 47.20.110(b).
- Protection of the Elderly. Similarly, investigation reports and reports of abandonment, exploitation, abuse, neglect or self-neglect of a vulnerable adult filed pursuant to this law are confidential, except that the Department of Health and Social Services must disclose a report of such harm if the vulnerable adult who is the subject of it consents in writing. Also, the department must upon request disclose the number of verified reports of abandonment, exploitation, abuse, neglect or self-neglect of vulnerable adults that occurred at an institution that provides care for vulnerable adults, or were the result of the actions or inactions of a public home care provider. AS 47.24.050.
- Regional Heating Assistance Program. Records pertaining to recipients of aid under the state program providing home heating assistance are confidential and not subject to disclosure under the Public Records Act. AS 47.25.626.
- Temporary Assistance Programs. The Department of Health and Social Services administers a temporary assistance program providing cash assistance, diversion payments, and self-sufficiency services to needy children and their families, establishing regional public assistance programs, establishing program standards for incentives to work, and engaging in related activities. Information received from an applicant for or participant in the Alaska temporary assistance program shall be treated as confidential by all state agencies that share the information under this section and is not open to public inspection or copying under the public records act. AS 47.27.055(b).
- Alaska Native Family Assistance Grants. The Department of Health and Social Services may award and administer Alaska Native family assistance grants in accordance with this AS 47.27.200. Records pertaining to recipients of assistance from an Alaska Native family assistance grant awarded under this section are confidential public assistance records under AS 47.05.020 and regulations adopted under AS 47.05.020. Use and misuse of these records are subject to the provisions of AS 47.05.030. AS 47.27.200(g). Regional public assistance programs can also serve eligible state residents not already covered by a federally approved tribal family assistance plan in that region. AS 47.27.300. Records pertaining to recipients of state public assistance under a contract awarded for such regional public assistance programs have the same confidential protections as are provided to recipients of assistance from Alaska Native family assistance grants under AS 47.27.200. AS 47.27.300(d).
- Mentally Ill and Insane Persons. The Department of Social Services is required to adopt regulations to ensure patient rights and to safeguard the confidential nature of records and information about recipients for state services for mentally ill and insane persons. Local community entities working with these individuals through the state are also required to develop and submit for approval a plan that adequately safeguards confidential information about these individuals. AS 47.30.660 - .915 are the Alaska civil commitment statutes, governing the legal rights of persons suffering from mental illness. These statutes cover both voluntary and involuntary admissions for treatment. AS 47.30.840 describes rights to privacy and personal possessions of individuals receiving such treatment. In part, it states that a person undergoing evaluation or treatment may not be photographed without the person's consent and that of the person's guardian if a minor. The person may be photographed upon admission to a facility for identification and for administrative purposes of the facility, but all such photographs are confidential and may only be released by the facility to the patient or pursuant to court order. An alphabetical index of all mental commitments must be kept under the name of the respondents, except those files for which the records have been expunged pursuant to AS 47.30.850 (the index of expunged files must be kept by number), but the index is confidential. Alaska Probate Rule 3(d), (g).
- Patient Records. Information and records obtained in the course of a screening investigation, evaluation, examination or treatment of patients under the state civil commitment statute are confidential, and not public records, “except as the requirements of a hearing under AS 47.30.660-47.30.915 may necessitate a different procedure”—some of these statutory provisions allow a respondent in a commitment hearing to elect a public rather than closed hearing, e.g., AS 47.30.735(b)(3), and AS 47.30.745-.750. The patient or an individual to whom the patient has given written consent can obtain patient records. AS 47.30.845. Also, a person doing research may obtain the records if anonymity of the patient is assured and the facility recognizes the project as a "bona fide research or statistical undertaking." Whether in particular circumstances a newspaper article might ever qualify for such treatment is probably a subject for negotiation with the facility or conceivably for resolution by the courts. The law also provides for sealing of all court records pertaining to proceedings following the discharge of a person from a treatment facility or the issuance of a court order denying a petition for commitment, if the court finds that such action is appropriate. AS 47.30.850. There is a useful discussion of this in the Court of Appeals’ decision in In re Mark V., 324 P.3d 1012 (Alaska 2014), but note that references to expungement are superseded by changed made to AS 46.30.850 by the Legislature in 2014.
- Community Mental Health Services. The Department of Health and Social Services is authorized to review, obtain and copy confidential and other records and information about the clients of services requested or furnished under the Community Mental Health Services Act to evaluate compliance with the act. The department may obtain the records and information regarding clients from the client or directly from an entity furnishing those services. Records so obtained are confidential medical records, exempt from public inspection and copying under the public records act. AS 47.30.590.
- Mental Health Treatment Assistance. The Department of Health and Social Services is required to provide financial assistance to qualified needy patients who have received mental health evaluation or treatment at an evaluation facility or a designated treatment facility that is not a state-operated hospital. The department is authorized to review, obtain and copy confidential and other records and information about the patients who were eligible for or were provided financial assistance to evaluate compliance with the law, from the patient or directly from the evaluation facility or the designated treatment facility. Records so obtained by the department are medical records, to be handled confidentially, and are exempt from public inspection and copying under the public records act. AS 47.31.032.
- Centralized Licensing and Related Administrative Procedures for Social Service Entities. The Legislature has established centralized licensing and related administrative procedures for the delivery of services by a host of social service entities, including shelters, clinics, medical and psychiatric facilities, foster, maternity and assisted living homes, hospices, child care facilities, birth centers and others, and addresses requirements for obtaining and keeping licenses, non-renewals or denials of or conditions on licenses, complaints against and investigations of licensees, for hearings, for reports on the results of investigations and inspections, and for enforcement actions. AS 47.32.010 - 47.32.900. Except as otherwise provided by law, complaints, investigations and inspections relating to licensed entities or other subject, or records related to a complaint, investigation or inspection, and the identity of a complainant and of individuals receiving services from an entity, are confidential and can't be disclosed to the public without a court order. With the exception of information that identifies a complainant or a recipient of services from an entity, a copy of the Department of Health and Social Services' report of investigation or inspection under AS 47.32.120, an entity's written response to the report, and information regarding any department imposition of an enforcement action under AS 47.32.130 or 47.32.140 are public records under AS 40.25. The department shall make this information available to the public for inspection and copying after the (1) entity receives its copy of the report of investigation under AS 47.32.120, if the department has determined that an enforcement action under AS 47.32.130 or 47.32.140 will not be taken regarding the entity; (2) department's notice of enforcement action under AS 47.32.130 or 47.32.140 becomes a final administrative order without a hearing under AS 47.32.130 (c) or 47.32.140(i); or (3) issuance of a decision following a hearing under AS 47.32.150. AS 47.32.180.
- Newborn and Infant Hearing Screening, Tracking, and Intervention Program. The Department of Health and Social Services is required to develop and implement a reporting and tracking system for newborns and infants screened for hearing loss. The information reported under this program must be compiled and maintained by the department in the tracking system, and must be kept confidential in accordance with the applicable provisions of 20 U.S.C. 1439 (Individuals with Disabilities Education Act), as amended by P.L. 105-17. Data collected by the department that was obtained from the medical records of the newborn or infant shall be for the confidential use of the department and are not public records subject to disclosure under Alaska’s Public Records Act. Aggregate statistical data without identifying information compiled from the information received is public information. AS 47.20.320(a), (c).
- Alcoholism, Intoxication and Drug Treatment. The laws providing for temporary protective custody of people who are intoxicated or incapacitated by alcohol state that this detention does not constitute an arrest and no entry or other record may be made to indicate that the person detained has been arrested or charged with a crime, except that a confidential record may be made which is necessary for the administrative purposes of the facility to which the person has been taken, or which is necessary for statistical purposes where the person's name may not be disclosed. AS 47.37.170. Likewise the registration and other records of treatment facilities are confidential. AS 47.37.210.
- Long Term Care Ombudsman. Records obtained or maintained by the office of the "long term care ombudsman," now under the Alaska Mental Health Trust Authority, are confidential and not subject to disclosure under the public records act, but may be disclosed at the discretion of the ombudsman provided that the identity of a complainant or an older Alaskan on whose behalf a complaint is made may not be disclosed without the consent of the identified person or the person's legal guardian, unless required by court order. AS 47.62.030.
Arizona’s Public Records Law appears all-encompassing, but numerous separate statutes reduce its impact by deeming several records “confidential.” Generally, the records of certain professional groups, legal proceedings, law enforcement agencies and health facilities are classified as confidential. Several statutes are discussed topically, but there may be other statutes that are applicable to other records.
Moreover, the Public Records Law does not require the disclosure of public records or other matters pertaining to the “location of archaeological discoveries” or “places or objects that are included on or may qualify for inclusion on the [Arizona] register of historic places[,] . . . if the officer determines that the release of the information creates a reasonable risk of vandalism, theft or other damage” to these places or items. A.R.S. § 39-125.
(1) In general. The FOIA also contains a “catch-all” provision that incorporates by reference other statutes that expressly provide for nondisclosure. Ark. Code Ann. § 25-19-105(a)(1) (records are open to inspection “[e]xcept as otherwise specifically provided by . . . laws enacted to provide otherwise.”) In order to fall within this provision, a statute must specifically provide for nondisclosure. Troutt Brothers Inc. v. Emison, 311 Ark. 27, 841 S.W.2d 604 (1992); Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986). However, the statute need not refer to the FOIA by name or statute number in order to qualify as an exemption. Ark. Op. Att’y Gen. No. 97-278. See, e.g., Byrne v. Eagle, 319 Ark. 587, 892 S.W.2d 487 (1995) (loan guarantee applications filed with the Arkansas Development Finance Authority are exempt by virtue of Ark. Code Ann. § 15-5-409, which does not mention the FOIA). The catch-all provision reaches several dozen state statutes and is also broad enough to encompass federal statutes. See Ark. Op. Att’y Gen. No. 94-265 (a record prepared by a federal agency and sent to a state agency is not subject to disclosure if it is exempt under the federal FOIA and the federal agency has asserted the exemption). Moreover, by virtue of the Supremacy Clause, a federal confidentiality requirement supersedes a state disclosure statute. Ark. Op. Att’y Gen. Nos. 96-363, 91-093.
(2) Adoption. Ark. Code Ann. § 9-9-217 (adoption records); § 9-9-406 (records of subsidized adoptions); § 9-9-506 (voluntary adoption registry); Ark. Code Ann. § 9-28-407(h) (records compiled or received by a state agency engaged in placing a child for adoption, including foster care and protective services records).
(3) Education. Ark. Code Ann. § 6-15-415 (records containing identifiable scores of students on basic competency test); § 6-15-503 (home schooling records); § 6-17-407 (superintendent’s investigation of alleged misconduct by school employees); §§ 6-17-410, 6-17-411 (criminal background checks of prospective teachers); § 6-17-414 (criminal background checks of applicants for noncertified staff positions at public schools); § 6-17-603 (scores on state teacher test); § 6-41-218 (evaluations of handicapped children); § 12-12-515 (child abuse information received from Department of Human Services).
(4) Health and Medical. Ark. Code Ann. § 16-46-105 (records of hospital medical review committees); § 17-80-106 (records compiled pursuant to investigation by various licensing agencies for health care professionals); § 17-90-508 (records of State Board of Optometry pertaining to impaired optometrists); § 17-92-707 (records of State Board of Pharmacy with respect to pharmacists impaired by chemical dependency); § 17-95-104 (reports of physician misconduct submitted to State Medical Board); § 17-95-107 (physician credentialing information obtained by State Medical Board); § 17-95-304 (records compiled pursuant to investigation by State Medical Board); § 20-7-305 (information collected pursuant to Health Data Clearing House Act that identifies individual patients, health care providers, institutions, or health plans, and patient-identifying information collected by Department of Health or Arkansas Center for Health); § 20-9-221 (Department of Health records concerning hospitals and nursing homes); § 20-9-304 (certain records of State Board of Health); § 20-10-210 (certain records of Office of Long Term Care); § 20-10-228 (records involving inspections of licensees by Office of Long Term Care); § 20-10-811 (records involving inspections of home health care agencies by Division of Health Care Facility Services); § 20-13-806 (records of Department of Health under Trauma System Act); § 20-14-506 (personally identifiable information in program for disabled children); § 20-15-203 (Cancer Registry of Arkansas); § 20-16-207 (certain records of Arkansas Reproductive Health Monitoring System); § 20-16-504 (venereal disease records of Department of Health’s Division of Health Maintenance); § 20-16-507 (records that could identify or be used to identify women tested during pregnancy); § 20-17-618 (organ donor registry); §§ 20-18-304, 20-18-305 (birth certificates, death certificates, other vital records); § 20-18-704 (putative father registry); § 20-27-1706 (records collected by Child Death Review Panel); § 20-46-103 (certain records of State Board of Health, Arkansas Medical Society); § 20-46-104 (certain records of State Hospital); § 20-78-704 (records of Prenatal & Early Childhood Nurse Home Visitation Program administered by Department of Health).
(5) Insurance. Ark. Code Ann. § 11-9-106 (active investigatory files of Insurance Department’s workers compensation fraud unit); § 23-61-107 (data and reports provided Insurance Commissioner by National Association of Insurance Commissioners); § 23-61-205 (examination and investigation reports of Insurance Commissioner); § 23-61-207 (working papers of Insurance Commissioner); § 23-62-404 (summary of basis for Insurance Commissioner’s decision refusing to issue reinsurance intermediary license); § 23-63-517 (material obtained by Insurance Commissioner under Insurance Holding Company Regulatory Act); § 23-66-507 (documents pertaining to insurance fraud investigations); § 23-67-212 (trade secrets and proprietary information submitted by insurers in connection with rate regulation); § 23-79-511 (records of Comprehensive Health Insurance Pool); § 27-14-414 (“all data and information” received by the Vehicle Insurance Database within the Revenue Division of the Department of Finance and Administration)
(6) Judicial. Ark. Code Ann. § 16-10-404 (records of Judicial Discipline & Disability Commission).
(7) Juveniles. Ark. Code Ann. § 9-27-309 (juvenile court records); § 9-27-347 (probation reports); § 9-27-502 (competency evaluations); § 9-28-208 (court’s report on juvenile committed to Division of Youth Services); § 16-87-216 (records of Juvenile Ombudsman Division of Arkansas Public Defender Commission); §§ 16-90-601 to -603, -605 (expunging records of minor non-violent first offenders and minor felony offenders subsequently pardoned).
(8) Law Enforcement. Ark. Code Ann. § 5-55-104 (records obtained by Attorney General, prosecuting attorney, or Department of Human Services under Medicaid Fraud Act); § 12-10-317 (subscriber information regarding “911” calls); §§ 12-12-211, 12-12-212, 12-12-1008 to -1011 (Arkansas Crime Information Center); § 12-12-312 (records of State Medical Examiner and crime laboratory, including autopsy reports); § 12-12-913 (information regarding sex and child offenders); § 12-12-1003 (criminal history information collected and maintained by Arkansas Crime Information Center); §§ 12-12-1114, 12-12-1115 (DNA information submitted to state crime laboratory); § 12-27-113 (inmate records of Department of Correction); § 12-12-1717 (records concerning abused adults), § 12-27-137 (emergency preparedness plans of Department of Correction); § 14-15-304 (records gathered and created during coroner’s investigation, prior to issuance of final report; medical information remains exempt, except as disclosed in the final report); § 16-82-101 (results of mandatory HIV tests performed on persons convicted of sexual offenses); § 16-85-408 (indictment issued against person not confined); § 16-90-605 (expunging records relating to a conviction for which a person has received a pardon); § 16-90-1104 (law enforcement agency shall not disclose information identifying victim of sex crime, which certain exceptions); § 16-90-1110 (address and telephone number of crime victim or immediate family member); § 16-93-202 (presentence reports, preparole reports, and supervision histories); § 16-93-303 (expunging records of first offenders); § 20-77-907 (records obtained by Department of Human Services and the Attorney General pursuant to Medicaid Fraud False Claims Act).
(9) Library. Ark. Code Ann. §§ 13-2-703, 13-2-704 (library patron records).
(10) Local Government. Ark. Code Ann. § 14-14-110 (county records involving personal privacy).
(11) Motor Vehicles. Ark. Code Ann. § 17-1-104 (name, address, and Social Security number on application for noncommercial driver’s license); § 27-14-412 (motor vehicle registration records); § 27-14-414 (“all data and information” received by the Vehicle Insurance Database within the Revenue Division of the Department of Finance and Administration); § 27-19-510 (accident report filed by drivers); §§ 27-50-906, 27-50-907 (records of convictions of moving traffic violations).
(12) State Government. Ark. Code Ann. § 2-7-202 (records received by Arkansas Farm Mediation Office); § 2-20-407 (certain records filed with Arkansas Soybean Promotion Board); § 4-28-403 (donor lists obtained by Attorney General from charitable organizations); § 10-3-305 (records of Legislative Council); § 10-4-422 (working papers of Division of Legislative Audit); § 11-2-204 (records of Mediation and Conciliation Service); § 11-9-409 (identity of employee may not be disclosed as part of job safety information system); § 11-9-905 (self-insurance reports submitted to Workers’ Compensation Commission); § 11-10-314 (certain records of Employment Security Department); § 11-10-902 (information on new employees submitted by employers to the Employment Security Department); § 15-4-606 (applications and related documents submitted to Arkansas Economic Development Commission under Industrial Revenue Bond Law); § 15-4-1226 (records obtained by State Bank Department concerning county and regional industrial development companies); § 15-5-409 (applications and supporting documents submitted to Arkansas Development Finance Authority under bond guarantee program); § 15-72-805 (reports submitted to Arkansas Energy Office under Emergency Petroleum Set-Aside Act); § 16-90-711 (certain records submitted by claimants to Crime Victims Reparations Board); § 17-1-104 (Social Security numbers of persons applying for occupational, business, or professional licenses); § 17-14-205 (sample appraisals and other work papers submitted to Appraiser Licensing and Certification Board); § 17-27-313 (criminal background checks of applicants for professional counselor’s license); § 17-86-204 (licensing examinations of State Board of Massage Therapy); § 17-90-101 (reports of malpractice claims submitted by optometrists to State Board of Optometry); § 17-90-508 (records of State Optometry Board pertaining to impaired optometrists); § 17-97-312 (criminal background checks of applicants for psychologist’s license); § 17-103-307 (criminal background checks of applicants for social worker’s license); § 18-28-220 (documents and working papers obtained or compiled by State Auditor and his or her staff in conducting examination under Unclaimed Property Act); § 19-4-105 (audit documentation and preliminary draft of audit reports by Office of Internal Audit, as well as the final report prior to its presentation to the Governor and the state’s chief fiscal officer); § 19-11-235 (information furnished by bidders under Arkansas Purchasing Law); § 19-11-711 (procurement information); § 20-13-1113 (criminal background checks of applicants for EMT certification); § 20-76-433 (records identifying persons participating in programs administered by the Department of Human Services); § 21-11-104 (names of employees who make suggestions under State Employee Suggestion System); § 21-15-105 (criminal background checks of state employees whose work requires direct contact with children); § 23-2-316 (Public Service Commission may withhold records in the public interest); § 23-42-207 (records of State Securities Commissioner, including trial preparation materials of staff attorneys); § 24-4-1003 (records of individual members of State Public Employee Retirement System and Teacher Retirement System).
(13) Taxes. Ark. Code Ann. § 26-18-303 (state tax records filed with Department of Finance & Administration, with certain enumerated exceptions); § 26-51-813 (income tax records and returns); § 26-54-105 (corporate franchise tax reports). The following non-tax information is available from franchise tax reports: the name and address of the corporation; the names of its president, vice president, secretary, treasurer, and controller; the total authorized capital stock with par value; the total issued and outstanding capital stock with par value; and the state of incorporation. Ark. Code Ann. §§ 26-18-303(b)(14), 26-54-105(h). In certain circumstances, the identities of delinquent sales taxpayers must be affirmatively published on the Internet. Ark. Code Ann. § 26-18-303(b)(18).
(14) Trade Secrets, Financial Information. Ark. Code Ann. § 2-16-418 (trade secrets and financial information submitted to State Plant Board); § 4-75-605 (records in judicial proceedings); § 4-88-111 (trade secrets and other records obtained by Attorney General’s office); §§ 8-4-207, 8-4-308, 8-7-811, 8-7-909 (trade secrets obtained by Commission on Pollution Control & Ecology and Department of Environmental Quality); § 8-7-1012 (records submitted to Department of Labor to substantiate trade secret claim under Public Employees’ Chemical Right to Know Act); § 12-10-318 (proprietary information submitted to CMRS Emergency Telephone Services Board); § 15-4-606 (applications and related documents submitted to Arkansas Economic Development Commission under Industrial Revenue Bond Law); § 15-4-1226 (records obtained by State Bank Department concerning county and regional industrial development companies); § 15-5-409 (loan guarantee applications filed with Arkansas Development Finance Authority); § 17-25-304 (financial records provided to Contractors Licensing Board); § 23-2-316 (proprietary information or trade secrets of regulated utilities submitted to Public Service Commission); § 23-42-207 (financial records of broker-dealers and investment advisers regulated by Securities Commissioner, and trade secrets of any person); § 23-46-101 (bank examination records and reports); § 23-51-187 (certain records of State Bank Department concerning trust companies); §§ 23-67-212, 23-67-219 (trade secrets and proprietary information filed with Insurance Commissioner).
Catchall/Public Interest Exemption: Under Section 6255 an agency may withhold public records if "on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record." Cal. Gov't Code § 6255.
“This ‘provision contemplates a case-by-case balancing process, with the burden of proof on the proponent of nondisclosure to demonstrate a clear overbalance on the side of confidentiality.’” ACLU v. Superior Court, 3 Cal. 5th 1032, 1043, 221 Cal. Rprt. 3d 832, 400 P.3d 432 (2017) (quoting Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 1071, 44 Cal. Rprt. 3d 663, 136 P.3d 194 (2006)). See also CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 908, 110 Rptr. 2d 889 (2001) ("The burden of proof is on the proponent of nondisclosure, who must demonstrate a 'clear overbalance' on the side of confidentiality.") (quoting City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1018, 88 Cal. Rptr. 2d 552 (1999)).
While this section does not specifically identify the public interests to be served in non-disclosure, the nature of those interests may be inferred from the specific exemptions contained in Section 6254. Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1338, 813 P.2d 240, 283 Cal. Rptr. 893 (1991). As explained by the California Supreme Court, whether a clear overbalance exists in a particular case can depend on a variety of factors, including privacy and the burden and expense of segregating exempt from non-exempt information. ACLU, 3 Cal. 5th at 1043 (citing ACLU v. Deukmejian, 32 Cal. 3d 440, 452-53,185 Cal. Rprt. 235, 651 P.2d 822 (1982)). However, “[v]ague safety concerns that apply to all officers involved in shootings are insufficient to tip the balance against disclosure of officer names.” Long Beach Police Officers Association v. City of Long Beach, 59 Cal.4th 59, 74, 172 Cal. Rptr. 3d 56, 325 P.3d 460 (2014). “A mere assertion of possible endangerment does not ‘clearly outweigh’ the public interest in access to … records.’” Id. (quoting CBS, Inc. v. Block, 42 Cal. 3d 646, 652, 230 Cal. Rptr. 362, 725 P.2d 470 (1986)). Rather, there must be a “particularized showing necessary to outweigh the public’s interest in disclosure…” Id. at 75.
In identifying the public interest in disclosure courts have looked at whether disclosure “‘would contribute significantly to public understanding of government activities’ and serve the legislative purpose of ‘shed[ding] light on an agency’s performance of its statutory duties.’” Los Angeles Unif. Sch. Dist. v. Superior Court, 228 Cal. App. 4th 222, 241, 175 Cal. Rptr. 3d 90 (2014) (quoting City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1018-19, 88 Cal. Rprt. 2d 552 (1999)). “[A]s a threshold matter, the records sought must pertain to the conduct of the people’s business.” Id. at 242. The weight to be assigned that interest “‘is proportionate to the gravity of the governmental task sought to be illuminated and the directness with which the disclosure will serve to illuminate.’” Id. at 242 (quoting Connell v. Superior Court, 56 Cal. App. 4th 601, 616, 65 Cal. Rptr. 738 (1997)). “Even where a public interest exists, if it is minimal or hypothetical, disclosure will not be compelled.” Id. at 248. Moreover, where alternative, less intrusive means of obtaining the information sought exist, the public interest may be considered “minimal.” Id.
Importantly, while the Constitutional Sunshine Amendment expressly maintains preexisting statutory exemptions such as this, the elevation of the public's right of access to constitutional stature under the Amendment must now be considered when balancing the respective interests. Cal. Const. Art. I, § 3(b)(1).
This public interest exemption, or "catchall" exemption, has been used to withhold public records not otherwise exempt under the CPRA or as an additional grounds for nondisclosure. See, e.g., ACLU, 3 Cal. 5th at 1044 (upholding trial courts determination that public’s interest in non-disclosure of unredacted/raw license plate reader data would clearly outweigh public interest in disclosure but remanding for consideration of “new balancing analysis—one that includes consideration of the feasibility of, and interests implicated by, methods of anonymization…”); Times Mirror Co., 53 Cal. 3d at 1340-47 (where court recognized that potential threat to Governor's security that would be caused by disclosure of Governor's daily and weekly schedules bolstered Court's determination that the need for confidentiality outweighed the need for disclosure); Los Angeles Unif. Sch. Dist., 228 Cal. App. 4th at 253 (concluding disclosure of names linked to teacher evaluation test scores did not outweigh the public interest in protecting the privacy interests of teachers); City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1023, 88 Cal. Rptr. 2d 552 (1999) (where court held public interest in withholding names, addresses and telephone numbers of persons who complained to city about municipal airport noise outweighed public interest served by disclosure); see also Commission on Peace Officer Standards and Training v. Superior Court, 42 Cal. 4th 278, 301, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007) (stating in dicta that if duties of peace officers, such as one operating under cover, demand anonymity, “the need to protect the officer’s safety and effectiveness” would justify the withholding of identifying information under Section 6255(a)).
Where, however, the government agency is unable to meet its burden under this exemption, it cannot justify withholding public records under it. See, e.g., Long Beach Police Officers Assn., 59 Cal. 4th at 74-75 (vaguely worded declarations making only generalized assertions about risks officers face after shooting incidents did not outweigh public interest in overseeing the conduct of its peace officers); Block, 42 Cal. 3d at 652-25 (nondisclosure of records of applications and licenses for concealed weapons did not outweigh public interest in accountability and ensuring fair application of law); County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1321, 1329, 89 Cal. Rptr. 3d 374 (2009) (holding that county failed to demonstrate a clear overbalance on the side of confidentiality in withholding GIS basemap data from the public); CBS Broad. Inc., 91 Cal. App. 4th at 908 (holding agency failed to meet burden of proof to withhold names of every individual granted a criminal conviction exemption to work in a licensed child day care facility and the identity of each facility employing such individuals); Cal. State Univ. v. Superior Court, 90 Cal. App. 4th 810, 835, 108 Cal. Rptr. 2d 870 (2001) (holding university failed to carry its burden of proof to justify withholding identity of every individual who obtained luxury suite licenses in arena being built on university property); Poway Unif. Sch. Dist. v. Superior Court, 62 Cal. App. 4th 1496, 1506, 73 Cal. Rptr.2d 777 (1998) (where court held privacy of minors submitting claim forms to public schools, which the court said were relevant to public interest in ending school hazing practices, did not justify withholding records of claims under this exemption); New York Times Co. v. Superior Court, 52 Cal. App. 4th 97, 104, 60 Cal. Rptr.2d 410 (1997) (where court held that the perceived harm to deputies from disclosure of their names as officers who fired weapons in the line of duty, which resulted in the death of a civilian, did not outweigh the public interest served by disclosure of their names); Connell v. Superior Court, 56 Cal. App. 4th 601, 612, 65 Cal. Rptr. 2d 738 (1997) (where court held pure speculative security interests or burden and expense of providing requested information did not justify withholding unpaid warrants to state vendors, which pertained to the government's conduct in managing public revenues); City of Los Angeles v. Superior Court, 41 Cal. App. 4th 1083, 1091, 49 Cal. Rptr. 2d 35 (1996) (where court held public interest in disclosure of deposition transcripts in closed action against the city, which related to claims of excessive force in the use of police dogs, outweighed the privacy interest of the litigants and could not be overcome by purported chilling effect disclosure would have on way city prepares its cases); New York Times Co. v. Superior Court, 218 Cal. App. 3d 1579, 268 Cal. Rptr. 21 (1990) (public disclosure of names of excessive users of water outweighed reputational/privacy interests of those issued citations); Register Div. of Freedom Newspapers Inc. v. County of Orange, 158 Cal. App. 3d 893, 902, 205 Cal. Rptr. 92 (1984) (where public interest in disclosure of medical records used by county in settling claim outweighed any purported privacy right in nondisclosure).
Deliberative Process Privilege Under Catchall Exemption: Disconcerting for proponents of open government, the catchall exemption has been used to engraft an expansive "deliberative process privilege" into the CPRA that would not otherwise be available under Section 6254(a)'s deliberative process exemption for preliminary drafts, notes or interagency or intra-agency memoranda, or any other specific exemption. See, e.g., Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 283 Cal. Rptr. 893, 813 P.2d 240 (1991). Whether this privilege survives the passage of the Constitutional Sunshine Amendment remains to be determined. Because this privilege has been engrafted into Section 6255 through common law and the Amendment only maintains preexisting "constitutional and statutory exemption[s]," not those created through case law, an argument can be made that this privilege does not survive passage of the Amendment. Cal. Const. Art. I, § 3(b)(5); but see Sutter’s Place v. Superior Court, 161 Cal. App. 4th 1370, 75 Cal. Rptr. 3d 9 (2008) (in dicta, court rejected argument that the Sunshine Amendment eliminated the separate mental process privilege as applied to protect the motives and thought processes of local legislators and characterizing that privilege as rooted in constitutional, as well as statutory law) Indeed, without conceding the point, former California Governor Arnold Schwarzenegger has complied with requests for his daily calendars after passage of the Amendment. See www.cfac.org/Attachments/governor_calendars.htm.
The deliberative process privilege is designed to protect essentially three policy objectives: "First, it protects creative debate and candid consideration of alternatives within an agency, and, thereby, improves the quality of agency policy decisions. Second, it protects the public from the confusion that would result from premature exposure to discussions occurring before the policies affecting it had actually been settled upon. And third, it protects the integrity of the decision-making process itself by confirming that 'officials should be judged by what they decided, not for matters they considered before making up their minds.'" Times Mirror Co., 53 Cal. 3d at 1352 (Kennard, J., dissenting) (citing Jordan v. United States Dept. of Justice, 591 F.2d 753, 772-73 (D.C. Cir. 1978)); see also California First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 170, 78 Cal. Rptr. 2d 847 (1998).
The key question in every case is "whether the disclosure of materials would expose an agency's decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." Id. at 1342. To qualify for the privilege the document sought must be both predecisional and deliberative. Id. at 1352 (Kennard, J., dissenting) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-52, 95 S. Ct. 1504, 44 .L.Ed.2d 29 (1975)). "To establish that a document is predecisional, an agency must identify an agency decision of policy to which the document contributed [citations omitted], or at least must show 'that the document is in fact part of some deliberative process' [citations omitted]." Id. (Kennard, J., dissenting). To show that a document is deliberative, a document generally must consist of opinions or recommendations. Id. As the majority in Times Mirror states, however, "[e]ven if the content of a document is purely factual, it is nonetheless exempt from public scrutiny if it is 'actually . . . related to the process by which policies are formulated.' (citations omitted) or 'inextricably intertwined' with 'policy-making processes' (citations omitted)." Id. at 1342.
In Times Mirror, the California Supreme Court traced the origins of the deliberative process privilege to "the traditional common law privilege that attached to confidential intra-agency advisory opinions, a privilege which was later codified in exemption 5 of the [federal Freedom of Information Act.]" Id. at 1339-40 n.10. Thus, in Times Mirror, the court construed a deliberative process privilege from federal decisions applying exemption 5 and from the broad language of Section 6255, which permits nondisclosure where the public interest in confidentiality clearly outweighs the interest in disclosure. Applying the privilege, the court held that the Governor's appointment schedules, calendars and notes revealing the daily activities of the Governor over a five-year period while not exempt as correspondence to and from the Governor under Section 6254(l) were nevertheless exempt under Section 6255's catchall provision. The court concluded that because "disclosing the identity of persons with whom the Governor has met and consulted is the functional equivalent of revealing the substance or direction of the Governor's judgment and mental processes" and disclosure "would indicate which interests or individuals he deemed to be of significance with respect to critical issues of the moment" the intrusion into the deliberative process was "patent." Id. at 1343. In holding that the public interest in disclosure of such information was clearly outweighed by the public interest in confidentiality, the court noted that, "[t]o disclose every private meeting or association of the Governor and expect the decision making process to function effectively, is to deny human nature and contrary to common sense and experience." Id.
The court further noted, however, that its holding did not mean the Governor's calendars, schedules or other records were beyond the reach of the public. Id. at 1345. The court recognized that given a more focused and limited request a court might properly conclude that the public interest in confidentiality does not clearly outweigh the public interest in disclosure. Id. Nevertheless, the court's holding in Times Mirror Co., paved the way for a deliberative process privilege under the CPRA that reaches well beyond the one applicable to preliminary drafts, notes, and interagency and intra-agency memoranda under Section 6254(a).
Some subsequent cases have expanded this deliberative process privilege. For example, in Humane Society of the U.S. v. Superior Court, 214 Cal. App. 4th 1233, 1238, 1267, 155 Cal. Rptr. 93 (2013), the court found that the chilling effects of disclosing prepublication research and communications relating to a university funded study on the effects of a proposed voter initiative to restrict egg-laying hen houses clearly outweighed the public interest in disclosure. While recognizing a public interest in the records, the court nevertheless discounted that interest given the existence of other means of ensuring the accuracy of the study. Id. at 1268.
In Labor and Workforce Development Agency v. Superior Court, 19 Cal. App. 5th 12, *10, 18 Cal. Daily Op. Serv. 299 (Jan. 8, 2018), the court explained that disclosure of communications between an agency drafting legislation and stakeholders (farm workers unions) regarding safe harbor provisions in proposed legislation addressing the minimum wage of certain employees would tend to dissuade stakeholders on issues subject to future legislative efforts from communicating frankly, or at all. Because these concerns were presumably implicated by the trial court’s order requiring the agency to prepare an index of responsive records that included the identities of those with whom the agency communicated, the court held that the trial court erred in ordering the agency to prepare an index. Id., *11. Relying on Times Mirror, the court stated that “disclosing the identity of persons with whom the Agency’ ‘has met and consulted is the functional equivalent of revealing the substance and direction’ of the Agency’s ‘judgment and mental processes.’” Id.,*10 (quoting Times Mirror, 53 Cal.3d at 1343).
This exemption also has been used to deny access to documents pertaining to applicants to local and county board of supervisors. See, e.g., Wilson v. Superior Court, 51 Cal. App. 4th 1136, 1143, 59 Cal. Rptr. 2d 537 (1996) (where applications for position on county board of supervisors were considered "predecisional documents whose sole purpose is to aid the Governor in selecting gubernatorial appointees. . . ."); see also Cal. First Amendment Coalition, 67 Cal. App. 4th at 172-74 (where applications and communications about applicants to county supervisor’s position maintained by Governors’ office were withheld under the deliberative process privilege despite lack of evidence Governor even reviewed applications since disclosure would likely reduce the applicant pool and discourage candor in those applying for the job, which would ultimately hinder the decision-making process).
In probably its broadest application to date, the deliberative process privilege has been used to deny access to phone billing records of city council members to show calls placed as part of official business. Rogers v. Superior Court, 19 Cal. App. 4th 469, 23 Cal. Rptr. 2d 412 (1993); see also San Joaquin Local Agency Formation Com’n v. Superior Court, 162 Cal. App. 4th 159, 76 Cal. Rptr. 3d 93 (2008) (holding in non-CPRA case that deliberative process privilege applied to local legislative bodies).
Some courts have construed the deliberative process privilege more narrowly. Most recently, for example, in ACLU v. Superior Court, 202 Cal. App. 4th 55, 76, 134 Cal. Rptr. 3d 472 (2011), the court rejected the contention that disclosure of the names of pharmaceutical companies from whom the Department of Corrections and Rehabilitation sought to acquire drugs used for state legal injections would reveal the mental processes of government employees. The department, the court held, made no showing that the substance of the deliberations related to the formation of any government policy or undermined the agency’s ability to perform its functions. Id. A declaration saying that disclosure would reveal “the government’s decisionmaking process” was held to be “manifestly inadequate” to meet the government’s burden of proof. Id.
Similarly, in Citizens for Open Government v. City of Lodi, 205 Cal. App. 4th 296, 307, 140 Cal. Rptr. 3d 459 (2012), the city sought to justify under the deliberative process privilege its withhold from the administrative record in a CEQA action emails between city staff and the city’s consultants regarding the preparation of a revised environmental impact report. It claimed such withholding was necessary to “foster candid dialogue and a testing and challenging of the approaches taken.” Id. The court stated that this showing was “simply a policy statement about why the privilege in general is necessary.” Id. Invoking the policy, the court held, was not sufficient. Id. The court also cautioned that “‘[n]ot every disclosure which hampers the deliberative process implicates the deliberative process privilege. Only if the public interest in nondisclosure clearly outweighs the public interest in disclosure does the deliberative process privilege spring into existence.” Id. at 306 (quoting California First Amendment Coalition, 67 Cal. App. 4th at 172-73).
Government Code Sections 6276.02-6276.48: In an attempt to assist members of the public and state and local agencies in identifying exemptions to the CPRA, the Legislature has compiled known exemptions from public disclosure in Article 2, Sections 6276.02 through 6276.48. Cal. Gov't Code § 6275. These sections list records or information that by statute agencies may not be required to disclose and thus may fall within Section 6254(k)'s exemption from disclosure. The records and information listed in Article 2 are not inclusive and the listing of a statute in the Article does not itself create an exemption. Cal. Gov't Code § 6275. Currently there are more than 600 categories of documents under Article 2 ranging from "Acquired Immune Deficiency Syndrome" (Section 6276.02) to "Youth Authority" (Section 6276.48). After January 1, 1999 each addition or amendment to a statute that exempts any information contained in a public record from disclosure pursuant to subdivision (k) of Section 6254 must be listed and described in Article 2. Id.
Some noteworthy exemptions contained in Article 2 include records pertaining to: (1) bids received by government agencies for public works under Section 10304 of the Public Contract Code; (2) driver's arrest for traffic violations under Section 40313 of the Vehicle Code; (3) employee personnel files under Section 1198.5 of the Labor Code; (4) firearm sales or transfers under Section 12082 of the Penal Code; (5) grand jury information or indictments under Sections 924 and 938.1 of the Penal Code; (6) hazardous waste control, notice of unlawful hazardous waste disposal under Section 25180.5 of the Health and Safety Code; (7) Insurance Commissioner information from examination or investigation under Sections 1215.7, 1433 and 1759.3 of the Insurance Code (and other provisions regarding the Insurance Commissioner and insurance); (8) Department of Motor Vehicle records under Section 1808 to 1808.7 of the Vehicle Code; (9) rap sheet information under Penal Code Sections 11075, 11105 and 13330.
A number of Colorado statutes specifically provide that certain designated records are not public records subject to the Open Records Act and are to be kept confidential. Most of these exemptions from the Open Records Act pertain to records involving children and juveniles and to health records. These and other specific exemptions are discussed below.
- Juvenile Records.
- Juvenile Delinquency Records.
- Court records.
Court records in juvenile delinquency proceedings or proceedings concerning a juvenile charged with the violation of any municipal ordinance except a traffic ordinance are open to inspection by various parties, including the juvenile, the juvenile's parent or guardian, any attorney of record, the juvenile probation department, any Colorado law enforcement agency, any person conducting a custody evaluation, and the state department of human services. Colo. Rev. Stat. § 19-1-304(1)(a). In addition, with the consent of the court, such records may be inspected by any other person having a legitimate interest in the proceedings. Colo. Rev. Stat. § 19-1-304(1)(b).
- Arrest and criminal records.
The public has access to arrest and criminal records information that concerns a juvenile who is adjudicated a juvenile delinquent or is subject to a revocation of probation for committing the crime of possession of a handgun by a juvenile, an act that would constitute a class 1, 2, 3, or 4 felony, or an act that would constitute any crime that involves the use or possession of a weapon if such act were committed by an adult. Colo. Rev. Stat. § 19-1-304(1)(b.5)(II)(A). In addition, the public has access to arrest and criminal records information that concerns a juvenile charged with any such act. Colo. Rev. Stat. § 19-1-304(1)(b.5)(II)(B).
The public also has access to arrest and criminal records information concerning a juvenile between the ages of 12 and 18 years who is charged with the commission of an offense that would constitute a violent crime if committed by an adult. Colo. Rev. Stat. § 19-1-304(5).
All other records of law enforcement officers concerning juveniles are not open to public inspection except to the juvenile, the juvenile's parent or guardian, any attorney of record, and to other law enforcement agencies who have a legitimate need for such information, and under certain circumstances, including when the court orders that the juvenile be tried as an adult criminal or when the juvenile has escaped from an institution to which such juvenile has been committed. Colo. Rev. Stat. § 19-1-304(2)(a).
Probation records. A juvenile probation officer's records are not open to inspection except to certain parties, including persons who have consent of the court, the juvenile's parent or guardian, any attorney of record, any person conducting a custody evaluation, the state department of human services, and law enforcement officers and fire investigators, who have access to limited information. Colo. Rev. Stat. § 19-1-304(1)(c).
iii. Juvenile Facilities.
All records prepared or obtained by the department of human services are confidential and privileged, and may be disclosed only to the parents, legal guardian, or attorney for the juvenile, to the extent necessary to make claims on behalf of the juvenile who is eligible to receive aid, insurance, or medical assistance, and for research or evaluation purposes. Colo. Rev. Stat. § 19-1-305(1).
- Children's Matters.
- Child Victim Records. The name and any other information that would identify any child victim of the offenses listed below must be deleted from any criminal justice record prior to the release of such record to any individual or agency other than a criminal justice agency or the named victim or victim’s designee, when such record bears the notation “CHILD VICTIM”:
- Internet sexual exploitation
- Enticement of a child
iii. Internet luring of a child
- Soliciting for child prostitution
- Pandering of a child
- Procurement of a child
vii. Keeping a place of child prostitution
viii. Pimping of a child
- Inducement of child prostitution
- Patronizing a prostituted child
- Human trafficking of a minor for involuntary servitude
xii. Human trafficking of a minor for sexual servitude
Colo. Rev. Stat. § 24-72-304(4.5) (2016).
- Child Abuse Records.
- Reports of child abuse or neglect received by the Department of Social Services or a law enforcement agency, including the name and address of the child, family or informant, along with any other identifying information, are declared confidential and not open to the public under Colo. Rev. Stat. § 19-1-307(1)(a).
- This confidentiality provision covers the entire contents of a child abuse report and related records. Consequently, such records cannot contain any "non-confidential" information that may be subject to public disclosure. Gillies v. Schmidt, 38 Colo. App. 233, 556 P.2d 82 (1976).
iii. Disclosure of reports is not prohibited when there is a death of a suspected victim of abuse or neglect and the death becomes a matter of public record, and the subject of an arrest and formal criminal charge. Colo. Rev. Stat. § 19-1-307(1)(b).
- Disclosure of confidential child abuse records by any person is a class 2 petty offense, subject to a $300 fine. Colo. Rev. Stat. § 19-1-307(1)(c).
- Child Care Centers. Records regarding children and all facts learned about children and their relatives that are required to be kept by licensed child care facilities are declared confidential by Colo. Rev. Stat. § 26-6-107(3).
- Child Custody Records. Written reports and evaluations concerning custodial arrangements for children made in child custody proceedings are considered confidential and are not available for public inspection. Colo. Rev. Stat. § 14-10-127(1)(a)(II); Colo. Rev. Stat. § 14-10-126(2).
- Adoption Records. Records and proceedings in adoption are confidential and not open to public inspection. Colo. Rev. Stat. § 19-1-309. The confidentiality provision applies to adult adoptions as well as to children's adoptions. W.D.A. v. City and County of Denver, 632 P.2d 582 (Colo. 1981).
Information provided to the state registrar of vital statistics concerning information about birth parents and adoptees shall not be disclosed under any public records law or Freedom of Information Act. Colo. Rev. Stat. § 25-2-113.5(9).
- Relinquishment Proceedings. All records and proceedings in any action for relinquishment of a child by natural parents are confidential and open to inspection by court order for good cause shown. Colo. Rev. Stat. § 19-1-309.
- Paternity Proceedings. All papers and records of proceedings in actions to establish paternity of a child are confidential and not subject to inspection except with consent of the court and all interested parties or upon court order for good cause shown. Colo. Rev. Stat. § 19-1-308.
- Health Records.
- Alcohol Treatment Records. The registration and other records of alcohol treatment facilities concerning alcoholics and intoxicated persons are confidential under Colo. Rev. Stat. § 25-1-312(1).
However, information from patients' records may be made available for purposes of research into causes and treatment of alcoholism if patients' names or other identifying information is not disclosed. Colo. Rev. Stat. § 25-1-312(2).
- Prescription Drug Records. Records of prescriptions, orders, and stocks of controlled substances kept by pharmacists are confidential and not available for public inspection. Colo. Rev. Stat. § 12-22-320.
- Tuberculosis Reports. Laboratories performing diagnostic services are required to report the names of persons whose specimens reveal the presence of tuberculosis, but such reports and records are confidential under Colo. Rev. Stat. § 25-4-505.
- AIDS Tests. Reports concerning positive tests for Acquired Immune Deficiency Syndrome (AIDS) that are required to be submitted to the State Department of Health by Colo. Rev. Stat. §§ 25-4-1402 and 25-4-1403 are declared to be strictly confidential by Colo. Rev. Stat. § 25-4-1404(1). Any physician, state employee or any other person who makes confidential AIDS information public is guilty of a misdemeanor and subject to a $5,000 fine and 2 years in jail. Colo. Rev. Stat. 25-4-1409(2).
- Mental Illness Records. Mental health records of patients of mental health facilities are declared confidential by Colo. Rev. Stat. § 27-10-120(1).
An exception to confidentiality exists for information concerning observed criminal behavior of a mental patient while receiving treatment. Colo. Rev. Stat. § 27-10-120(2).
Court-ordered mental health evaluations are deemed confidential records by Colo. Rev. Stat. § 27-10-106(5).
- Peer Review Records. Medical records produced for use in any review of a physician, surgeon or registered professional nurse by a hospital governing board, state board of medical examiners, state board of nursing, peer review committee, or other review organization do not become public records by virtue of such use. Colo. Rev. Stat. § 13-90-107(2); see also Colo. Rev. Stat. §§ 12-35-118(7), 12-36-118(10), and 12-38-120(10).
- Miscellaneous statutory confidentiality provisions.
- Accident Reports. Accident reports made by any driver, owner, or person involved in any motor vehicle accident are confidential and not public records. Colo. Rev. Stat. §§ 42-4-1610, 42-4-206. See Clark v. Reichman, 130 Colo. 329, 275 P.2d 952 (1954).
However, statements made by persons involved in an accident to law enforcement officers and contained in official reports are not confidential under Colo. Rev. Stat. § 42-4-1610. People v. Reyes, 42 Colo. App. 73, 589 P.2d 1385 (1979).
- Agricultural Records. Statistical reports concerning farm operations, crop production, etc., made to the Commissioner of Agriculture are confidential. Colo. Rev. Stat. § 35-2-106. Disclosure by a state employee is a misdemeanor punishable by a $500 fine and 1 year in jail.
Information obtained as a result of fruit and vegetable inspections by the State Agricultural Commission are not open to public inspection. Colo. Rev. Stat. § 35-23-115.
Information concerning agricultural markets prepared for the Board of Marketing Control is confidential and not subject to public disclosure. Colo. Rev. Stat. § 35-28-119(2).
- Arson Investigations. Information received by an insurance company or agency concerning arson investigations is confidential. Colo. Rev. Stat. § 10-4-1004(1).
- Banking Records. Information from records of the State Division of Banking is not open to public inspection. Colo. Rev. Stat. § 11-2-111(1).
Disclosure of information acquired by the banking board and the bank commissioner concerning banks is prohibited by Colo. Rev. Stat. § 11-2-111.5.
- Court Decisions. Decisions of a court record are confidential until publicly announced. Colo. Rev. Stat. § 13-1-128(1). Disclosure is a class 6 felony under Colo. Rev. Stat. § 13-1-128(4).
- Education Records. Department of Education records containing personal information about employment applicants, holders of teachers' certificates or letters of authorization, and pupil test scores are confidential and may not be disclosed except with written consent of the person in interest. Colo. Rev. Stat. § 22-2-111(3); see also Colo. Rev. Stat. §§ 24-72-204(3)(a)(II), (III), and (VI).
- Employer Records. Information contained in reports furnished by employer and employees to the Division of Labor is considered confidential and is not open to the public. Colo. Rev. Stat. § 8-1-115(1). Disclosure of confidential information by a division of labor employee is punishable by a $1,000 fine and disqualification from state employment. Colo. Rev. Stat. § 8-1-115(2). This includes information required to be furnished by employers to the Division of Labor under the Workers' Compensation Act. Colo. Rev. Stat. § 8-47-202. However, records of the State Compensation Insurance Authority, the state workers' compensation insurance fund, are public. Dawson v. State Compensation Ins. Auth., 811 P.2d 408 (Colo. App. 1990).
- Inquest Verdicts. If it is found in an inquest into the death of a person that a crime has been committed on the deceased, and the report names the person who the jury believes committed the crime, the inquest is not to be made public until after the suspect has been arrested. Colo. Rev. Stat. § 30-10-613.
- Judicial Discipline Records. The record of an investigation of a judge conducted by the Commission on Judicial Discipline, including all papers filed and all proceedings, is confidential. Colo. Rev. Stat. § 24-72-401; see Colo. R. Jud. Discip. 6(a). See generally Wehmhoefer, "The Confidentiality of Judicial Disciplinary Proceedings," 17 Colorado Lawyer 1043 (June 1988).
However, the Commission's recommendation for removal, censure, discipline, suspension, or retirement of a judge is not confidential after it is filed with the Supreme Court. Colo. R. Jud. Discip. 6(a). See Colo. Rev. Stat. § 24-72-401.
Willful disclosure of the contents of papers filed with or proceedings before the judicial discipline commission is a misdemeanor punishable by a $500 fine. Colo. Rev. Stat. § 24-72-402.
- Library User Records. Any record or other information of a public library which identifies a person as having requested or obtained specific materials or having otherwise used the library is confidential under Colo. Rev. Stat. § 24-90-119(1), and is excluded from the Open Records Act by Colo. Rev. Stat. § 24-72-204(3)(a)(VII).
Any library employee who discloses user information commits a class 2 petty offense and is subject to a $300 fine. Colo. Rev. Stat. § 24-90-119(3).
- Parole Records. Records containing information on parolees maintained by the Department of Corrections are not public records and are confidential. Confidential information may not be made public. Colo. Rev. Stat. § 17-2-104.
- Public Securities Records. Records of ownership of or security interests in registered public obligations (municipal or special district bonds, etc.), are not subject to public inspection or copying under the Open Records Act. Colo. Rev. Stat. § 11-57-105.
- Public Utility Property Schedules. Schedules required to be filed with the Department of Revenue by public utilities containing information about property owned by a public utility are considered private documents available only to tax officials. Colo. Rev. Stat. § 39-4-103(2).
- Savings and Loan Records. Information acquired by the state commissioner of savings and loan institutions in the discharge of official duties concerning savings and loan institutions is not to be divulged. Colo. Rev. Stat. § 11-44-107.
- Securities Records. Colo. Rev. Stat. § 11-51-703(2) of the Colorado Securities Act of 1981 provides that the securities commissioner or any of his officers or employees are not authorized to disclose information concerning securities transactions filed with the commissioner and not made public. Although records of a securities broker-dealer filed with the securities commissioner do not qualify as public records under Colo. Rev. Stat. § 24-72-204(3)(a)(IV) because they contain confidential commercial or financial information, the securities commissioner may disclose such records to other government agencies for purposes of law enforcement. Griffin v. S.W. Devanney & Co., 775 P.2d 555 (Colo. 1989).
- Tax Records. Income tax returns, documents, reports, and information obtained from tax investigations are not to be divulged by the Department of Revenue. Colo. Rev. Stat. § 39-21-113(4)(a). Violation is a misdemeanor punishable by a $1,000 fine, and if the offender is an officer or employee, he or she shall be dismissed from office under Colo. Rev. Stat. § 39-21-113(6).
Gift tax returns are declared confidential by Colo. Rev. Stat. § 39-25-114. Disclosure is unlawful.
Inheritance tax applications are declared confidential by Colo. Rev. Stat. § 39-23-168. Disclosure is unlawful.
Personal property schedules, along with accompanying exhibits or statements, filed with the tax assessor are private and confidential documents. Colo. Rev. Stat. § 39-5-120.
- Trade Secrets. Under the Uniform Trade Secrets Act, Colo. Rev. Stat. § 7-74-101, et seq., a court in which an action for misappropriation of a trade secret is pending is to preserve the secrecy of a trade secret by reasonable means, including protective orders, sealed records, and gag orders. Colo. Rev. Stat. § 7-74-106.
Information furnished by employers to the Division of Labor that contains a trade secret, or information obtained through inspections or other proceedings by the Division of Labor that might reveal a trade secret is confidential information not to be divulged by the Division of Labor under Colo. Rev. Stat. § 8-1-115.
Information relating to trade secrets or secret processes concerning water quality control furnished to the State Water Quality Control Commissioner is confidential. Colo. Rev. Stat. § 25-8-405(2). However, this section does not prohibit full disclosures of effluent (pollution) data. See CF & I Steel v. Air Pollution Control Div., 77 P.3d 933 (Colo. App. 2003).
- Welfare and Public Assistance Records. Disclosure of names or of any information concerning persons applying for or receiving public assistance and welfare is unlawful under Colo. Rev. Stat. § 26-1-114(3)(a), and is punishable by a $500 fine and 3 months in jail. Colo. Rev. Stat. § 26-1-114(5).
However, this right of privacy is surrendered when a welfare recipient becomes a criminal defendant charged with or convicted of a crime involving violation of welfare laws. Lincoln v. Denver Post, 31 Colo. App. 283, 501 P.2d 152 (1972).
- Wills. Wills deposited with a court for safekeeping during the lifetime of the person who made the will are to be kept confidential. Colo. Rev. Stat. § 15-11-515.
Request for confidentiality by person in interest
- Effective January 1, 1992, and pursuant to the procedures set forth in Colo. Rev. Stat. § 24-72-204(3.5), any person may request that the following records containing that person's address be kept confidential and exempt from public disclosure:
- Voter registration records;
- Motor vehicle registration and driver's license records; and
- Records pertaining to disclosures required to be made by public officials pursuant to Colo. Rev. Stat. § 24-6-202.
- The person requesting confidentiality must apply with the county clerk where the voter or motor vehicle records are located, or, in the case of records of disclosures by public officials, with the secretary of state, pay a fee of $5.00, and sign the following sworn statement: "I swear or affirm, under penalty of perjury, that I have reason to believe that I, or a member of my immediate family who resides in my household, will be exposed to criminal harassment, or otherwise be in danger of bodily harm, if my address is not kept confidential." Colo. Rev. Stat. § 24-72-204(3.5)(b). The request for confidentiality is itself confidential and exempt from public disclosure. Colo. Rev. Stat. § 24-72-204(3.5)(f).
- If the above application for confidentiality has been made, the custodian of records shall deny the right of inspection of the person's address contained in such records on the ground that disclosure would be contrary to the public interest. Colo. Rev. Stat. § 24-72-204(3.5)(c).
- The following persons are authorized by Colo. Rev. Stat. § 24-72-204(3.5)(c) to inspect records containing the person's address notwithstanding the request for confidentiality:
- The person in interest, or any person authorized in writing by such individual;
- Criminal justice agencies;
- State or federal governmental agencies;
- Persons required to obtain the individual's address in order to comply with state or federal law or regulations;
- Insurance companies authorized to transact business in Colorado;
- Licensed collection agencies;
- Supervised lenders, banks, trust companies, savings and loan associations, credit unions, and securities brokers-dealers;
- Attorneys licensed to practice in Colorado; and
- Vehicle manufacturers for the purpose of giving notice of product recalls or advisories.
- News Media Exception. A duly accredited representative of the news media may request the custodian of records to verify the address of any individual whose address is otherwise protected from disclosure. Verification is limited to the custodian confirming or denying that the person's address as known to the representative of the news media is the address as shown by the records. Colo. Rev. Stat. § 24-72-204(3.5)(d).
Professional review board records
Closed. Records of the following Professional Review Committees concerning disciplinary actions, hearings, investigations, and reports are declared confidential and/or exempt from the Open Records Act: State Board of Dental Examiners, Colo. Rev. Stat. § 12-35-118(7); State Board of Medical Examiners, Colo. Rev. Stat. § 12-36-118(10); State Board of Nursing, Colo. Rev. Stat. § 12-38-120(10); State Board of Psychologist Examiners, Colo. Rev. Stat. § 12-43-705(4); State Board of Registration for Professional Engineers & Professional Land Surveyors.
Complaints and results of investigation are closed to public inspection during the investigatory period. Colo. Rev. Stat. §§ 12-25-109(2), 12-25-209(2). Otherwise, the board's records and papers are subject to Colo. Rev. Stat. §§ 24-72-203 and 24-72-204.
FOIA states that records must be disclosed "[e]xcept as otherwise provided by any federal law or state statute." Conn. Gen. Stat. §1-210(a). Consequently, there are a variety of statutory provisions not specifically set forth in FOIA that have the effect of exempting records from FOIA.
- In Comm'r, Dep't of Pub. Safety v. FOIC, 204 Conn. 609, 529 A.2d 692 (1987), the Supreme Court held that information gathered by the statewide organized crime investigative task force is exempt from public disclosure under Conn. Gen. Stat. §29-170.
- In Galvin v. FOIC, 201 Conn. 448, 518 A.2d 64 (1986), the Supreme Court held that autopsy reports are exempt from disclosure under Conn. Gen. Stat. §19a-411.
- In Maher v. FOIC, 192 Conn. 310, 472 A.2d 321 (1984), the Supreme Court held that information concerning medication prescribed for state Medicaid recipients was exempt from disclosure under Conn. Gen. Stat. §17-83(b).
- In Comm'r of Consumer Prot. v. FOIC, 207 Conn. 698, 542 A.2d 321 (1988), the Supreme Court held that Conn. Gen. Stat. §21a-306 bars disclosure of information received by the Commissioner of Consumer Protection under specified statutes concerning pharmacists, prescription records, food, drugs and cosmetics, and dependency-producing drugs, and the bar is not lifted upon the holding of a compliance conference.
- In Healy v. FOIC, 18 Conn. App. 212, 557 A.2d 561 (1989), the Appellate Court held that Conn. Gen. Stat. §1-83 exempted monthly statements of expenses and income provided to high sheriffs by their deputies.
- Conn. Gen. Stat. §2-53g(b) states that certain records in the custody of, obtained by, or prepared by the legislative program review and investigations committee, or its staff, are exempt from disclosure until the investigation is completed.
- Conn. Gen. Stat. §5-200(f) provides that statements of former employers of applicants shall be considered confidential and are not open to inspection.
- In Pers. Dir., Dep't of Income Maint. v. FOIC, 214 Conn 312, 572 A.2d 312 (1990), the Supreme Court construed Conn. Gen. Stat. §§5-225 and 5-237, guaranteeing the rights of state employees to inspect promotional examination materials and service ratings, as barring disclosure to others. In Chairman, Merit Promotional Comm. v. FOIC, 4 CSCR 16 (1988), the Superior Court held that disclosure to those taking merit promotion exams of the evaluation rating forms completed by each rater, showing the name of the rater, does not violate Conn. Gen. Stat. § §5-225 or 1-210(b)(6).
- Conn. Gen. Stat. §10-151c states that records of teacher performance and evaluation are not public records. In Rose v. FOIC, 221 Conn. 217, 602 A.2d 1019 (1992), the Supreme Court held that this statute does not prevent public disclosure of the substance of votes of a public agency that happen to concern matters of personnel, teacher performance, or evaluation. In Ottochian v. FOIC, 221 Conn. 393, 604 A.2d 351 (1992), the Supreme Court held that this statute did not exempt those portions of a document concerning nonevaluative information even though the portions containing matters of teacher performance and evaluation were exempt. Disciplinary records and records of personal misconduct are not records of teacher performance and evaluation and so are not exempt from disclosure. See Carpenter v. FOIC, 59 Conn. App. 20, 755 A.2d 364 (2000), cert. denied, 254 Conn. 933, 761 A.2d 752 (2000) (records pertaining to alleged incidents of student access to pornographic material not exempt under Conn. Gen. Stat. §10-151c); Wiese v. FOIC, 82 Conn. App. 604, 847 A.2d 1004 (2004) (a "last chance agreement" between a teacher and school administrators relating to his showing of a film to students and future discipline that may be imposed is a disciplinary record and so is not exempt from disclosure); Cracco v. FOIC, Nos. CV 94-0705369S, CV 94-0705370S, CV 94-0705371S, 1995 WL 514468 (Conn. Super. Aug. 18, 1995) (copies of records of complaints filed against a local school teacher and the result of any investigation and action taken not exempt under either Conn. Gen. Stat. §10-151c or §1-210(b)(2)); Newtown Bd. of Educ. v. FOIC, No. CV 96-05558171, 1997 WL 625438 (Conn. Super. Oct. 3, 1997). See also Lieberman v. Aronow, 319 Conn. 748 (2015); New Milford Educ. Ass’n. v. FOIC, 2017 Conn. Super. Nexis 493.
- Conn. Gen. Stat. §11-25(b) states that personally identifiable information contained in the circulation records of public libraries is confidential.
- In Groppo v. FOIC, 4 CSCR 300 (1989), the Superior Court held that Conn. Gen. Stat. §12-15 exempts from disclosure applications filed with the Department of Revenue Services for tax registration numbers.
- Conn. Gen. Stat. §46a-11c states that certain reports regarding mentally retarded persons who have allegedly been abused or neglected are not public records.
- In Shulansky v. FOIC, No. CV 92-0703520, 1993 WL 410144 (Conn. Super. Oct. 8, 1993), the Superior Court held that neither Conn. Gen. Stat. §36-16(a) nor §1-210(b)(10) nor any federal statute were intended to shield from public scrutiny information generated by the Bank Commissioner about the manner in which or the frequency with which he performed his examinations. See also State of Conn. Dep't of Banking v. FOIC, No. CV 95-0554467S, 1996 WL 636472 (Conn. Super. Oct. 29, 1996) (Superior Court construed Conn. Gen. Stat. §36a-21 to apply to information obtained by the Department of Banking relating to personal business, financial and investment information of financial institutions and/or their customers, but not to administrative information obtained by the Department from its own employees, such as their home addresses).
- Conn. Gen. Stat. §17a-452 states that certain reports regarding elderly persons who have allegedly been abused or neglected are not public records.
- In Conn. Comm'n on Human Rts. & Opportunities v. FOIC, 3 CSCR 861 (1988), the Superior Court held that Conn. Gen. Stat. §46a-83(b), barring disclosure of what occurs in CHRO discrimination conciliation endeavors, exempts disclosure of an affidavit of a witness in a since-dismissed CHRO discrimination proceeding.
- Conn. Gen. Stat. §51-44a(j) states that the files and records of the judicial selection commission are not open to the public or subject to disclosure.
- Conn. Gen. Stat. §54-142c states that certain criminal records which have been erased (i.e., sealed) pursuant to statute are not to be disclosed.
- Conn. Gen. Stat. §54-142k states that criminal nonconviction information shall not be available to the public.
- Conn. Gen. Stat. § §54-76l and 54-76o state that certain records pertaining to youthful offenders are confidential and should be erased (i.e., sealed).
- Public Act No. 92-225 extended the right of privileged communications, previously accorded psychiatrists and psychologists under Conn. Gen. Stat. § §52-146c and 52-146f, to social workers and marital and family therapists. In FOI Officer v. FOIC, 318 Conn. 769 (2015), the Supreme Court held that Conn. Gen. Stat. §52-196e exempted records related to Amy Archer Gilligan for the time period 1924-1962 from disclosure. Gilligan was a patient at Connecticut Valley Hospital following her conviction for murder and was widely considered the basis for the play and movie “Arsenic and Old Lace.”
- Conn. Gen. Stat. §17a-28(b) provides that FOIA does not apply to certain records maintained by the Department of Children and Families. See Marlow v. FOIC, No. CV 99-0493141S, 1999 WL 966471 (Conn. Super. Oct. 12, 1999); Dep't of Pub. Health v. FOIC, No. CV 98-0492649S, 1999 WL 966634 (Conn. Super. Oct. 12, 1999) (records pertaining to child abuse or neglect are exempt under Conn. Gen. Stat. §17a-101k); Conn. Gen. Stat. §17a-101. See also Albright-Lazzari v. FOIC, 136 Conn. App. 76, cert. denied, 305 Conn. 927 (2012).
- Conn. Gen. Stat. §7-314(b) provides that records of a volunteer fire department are not subject to FOIA if the records "concern fraternal or social matters." Other records are open to the public. See Yantic Volunteer Fire Co. v. FOIC, 42 Conn. App. 519, 679 A.2d 989 (1996); O'Connell v. FOIC, 54 Conn. App. 373, 735 A.2d 363 (1999) (fire department's charters, by-laws, policies, procedures, and names and addresses did not concern fraternal or social matters and so were not exempt from disclosure).
- The Economic Development and Manufacturing Assistance Act states that all information contained in applications for financial assistance submitted to the Department of Economic and Community Development or the Connecticut Development Authority prior to October 1, 2000 are exempt from disclosure. Conn. Gen. Stat. §32-244a.
- Conn. Gen. Stat. §7-232a provides that a municipal utility may withhold any commercially valuable, confidential or proprietary information from public disclosure under the Freedom of Information Act.
- Conn. Gen. Stat. §7-479h states that "[t]he meetings, minutes and records of an interlocal risk management agency pertaining to claims shall not be subject to [FOIA]."
- Tenant statements provided to developers regarding their income for the purpose of certifying a housing development meets statutory affordable housing requirements are not public records under FOIA. Conn. Gen. Stat. §8-30h.
- Conn. Gen. Stat. §9-7b provides that the Elections Enforcement Commission shall be deemed a law enforcement agency for the purposes of §1-210(b)(3) under certain circumstances.
- Social Security numbers provided to the tax collector shall not be subject to disclosure under FOIA. Conn. Gen. Stat. §12-148.
- Conn. Gen. Stat. §12-659 exempts from disclosure any information contained in a report or a return required under Chapter 228b (Marijuana and Controlled Substances Tax).
- Conn. Gen. Stat. §12-810 exempts from disclosure new lottery games, serial numbers of unclaimed tickets, financial credit, and proprietary information submitted by outside parties in connection with a proposal.
- No municipal utility shall be required to disclose records "which identify or could lead to identification of the utility usage or billing information of individual customers, to the extent such disclosure would constitute an invasion of privacy." Conn. Gen. Stat. §16-262c.
- Information provided to the Commission of Transportation regarding the shipment of radioactive waste is exempt from disclosure under FOIA prior to completion of the shipment. Conn. Gen. Stat. §16a-106.
- Conn. Gen. Stat. §22a-6 exempts from disclosure under FOIA any "information relating to secret processes or methods of manufacture or production" observed by the Commission of Environmental Protection during an inspection or investigation.
- Information received by Commissioner of Environmental Protection from the U.S. Environmental Protection Agency shall be kept confidential. Conn. Gen. Stat. §22a-424.
- The location of any essential habitat or the location of any threatened or endangered species or species of special concern may be withheld by the Commissioner of Environmental Protection. Conn. Gen. Stat. §26-313.
- Records of a delinquent insurer are not subject to disclosure under FOIA. Conn. Gen. Stat. §38a-913a.
- Records of ownership of or security interest in registered public obligations are not subject to FOIA. Conn. Gen. Stat. §42b-10.
- Information and identity of a person making a complaint with the Office of the Victim Advocate is not subject to the disclosure under FOIA. Conn. Gen. Stat. §46a-13e.
- Conn. Gen. Stat. §8-360 exempts from disclosure "any information indicating the location of a shelter or transitional housing for victims of domestic violence."
- A court of probate may not disclose, except under certain circumstances, estate tax returns and estate tax return information provided to such court. Conn. Gen. Stat. §12-398.
- Conn. Gen. Stat. §2-40a provides that performance evaluations of judges shall be provided to the joint standing committee on judiciary and members of the Judicial Selection Commission and to no one else.
- Conn. Gen. Stat. §2-53g exempts information in the custody of or obtained or prepared by the Legislative Program Review and Investigations Committee during the course of an investigation.
- The Connecticut Commission on Culture and Tourism may withhold from disclosure to the public the locations of archaeological sites under consideration for listing by the Connecticut Historical Commission if disclosure would create a risk of destruction or harm to the sites. Conn. Gen. Stat. §10-409.
- Records of the performance and evaluations of faculty or professional staff which are kept on file by a board of trustees of a constituent unit of the state system of higher education are not public records and shall not be disclosed unless the faculty or staff member consents. Conn. Gen. Stat. §10a-154a.
- All financial credit and proprietary information submitted to the University of Connecticut Health Center Finance Corporation in connection with a joint venture or shared service agreement is exempt under FOIA. Conn. Gen. Stat. §10a-253. See also Conn. Gen. Stat. §32-40; Conn. Gen. Stat. §32-345; Conn. Gen. Stat. §32-601.
- Information related to actual rental and rental-related income and expenses and not a matter of public record shall not be subject to FOIA. Conn. Gen. Stat. §12-63c.
- Taxpayer information submitted to the state shall remain confidential. Conn. Gen. Stat. §12-242vv.
- Conn. Gen. Stat. §16a-14 provides that local distribution patterns of energy resources, inventories of energy resources and volume of sales of energy resources, shall be exempt from FOIA.
- Reports or complaints of abuse of a long-term care resident are not public records and not subject to FOIA. Information derived from such reports or complaints for which reasonable grounds are determined to exist after investigation may be disclosed, but the name of the resident or the complainant is not subject to disclosure unless such person specifically requests such disclosure or unless a judicial proceeding results from such report or complaint. Conn. Gen. Stat. §17b-407.
- Records obtained by the Department of Public Health in connection with an investigation of a person or faculty over which such department has jurisdiction, other than a physician, shall not be subject to disclosure. Conn. Gen. Stat. §19a-14; see also Conn. Gen. Stat. §19a-17a; Conn. Gen. Stat. §19a-87a; Conn. Gen. Stat. §19a-87e; Conn. Gen. Stat. §19a-180; Conn. Gen. Stat. §20-204a.
- Investigations of veterinarians are confidential and not subject to disclosure. If an investigation leads to a finding that grounds for disciplinary action exist, the allegation and the entire record of the investigation shall be deemed a public record. Conn. Gen. Stat. §20-204a.
- Any schedule of stocking or release of fish or animal into the wild is exempt from disclosure until such stocking or release has taken place. Conn. Gen. Stat. §26-25b.
- No person shall obtain or disclose information derived from reports of birds or animals taken by hunting or trapping. Conn. Gen. Stat. §26-67a; see also Conn. Gen. Stat. §26-157b.
- The name and address of persons issued a permit to carry or sell pistols and revolvers are confidential and not to be disclosed. Conn. Gen. Stat. §29-28. See Records Outline at IV.H; see also Peruta v. FOIC, 157 Conn. App. 684, certif. denied 319 Conn. 904 (2016) (names and addresses of persons who apply for a permit are also exempt); Conn. Gen. Stat. §53-202d (permits to carry assault weapons likewise confidential).
- Information contained in notices supplied by employers regarding the presence or elimination of hazardous materials in its establishment shall not be disclosed. Conn. Gen. Stat. §29-307a.
- Child abuse records are confidential and exempt from disclosure under Conn. Gen. Stat. §17a-101k. See Groton Police Dep't. v. FOIC, 104 Conn. App. 150, 931 A.2d 989 (2007).
- Conn. Gen. Stat. §1-217 prohibits the disclosure of the residential address of certain specified persons. In Dep't. of Public Safety v. FOIC, 2009 Conn. Super. LEXIS 2872 (2009), the court held that this exemption does not apply to the preparation and dissemination of the grand list of all personal property in a town pursuant to Conn. Gen. Stat. §12-55.
- Conn. Gen. Stat. §4-258(a)(4) exempts from disclosure "registration information" regarding a sexual offender "the dissemination of which has been restricted by court order." See also Dep't of Public Safety v. FOIC, 2009 Conn. Super. LEXIS 805 (2009) (holding that this must be determined on a case-by-case basis).
- In Comm’r of Public Health v. FOIC, 311 Conn. 262 (2014), the Supreme Court held that records received from the Federal Practitioner Data Bank and the Healthcare Data Bank about a physician are exempt from disclosure.
- In Pictometry v. FOIC, 307 Conn. 648 (2013), the Supreme Court held that to the extent the Federal Copyright Act imposes conflicting obligations, it is a federal law for purposes of the federal law exemption to the FOIA.
- In Wentzell v. FOIC, 2017 Conn. Super. LEXIS 1126, the Superior Court held that student data base records were exempt under Conn. Gen. Stat. §10-10(a).
1. Administrative Procedures Act. Certain agencies may be subject to the APA, which exempts internal procedure manuals, investigative files, and confidential and privileged material. 29 Del. C. § 10112(b)(4).
2. Antitrust — Investigative Demands. Any transcripts of oral testimony, documentary material or answers to written interrogatories provided pursuant to a demand by the Attorney General regarding knowledge concerning possible anti-trust violations shall be exempt from disclosure under the Act. 6 Del. C. § 2106(i).
3. Corporations — Transfer of Domicile. Documents submitted to the Secretary of State relating to the temporary transfer of corporate domicile to Delaware are exempted from disclosure, unless the corporation actually transfers its domicile to Delaware. 8 Del. C. § 389.
4. Collective Bargaining — Police and Firefighters, Public Employees, Public Schools. Negotiating sessions, including strategy meetings of public employers, mediation and the deliberative process of fact-finders are exempt from the Act. 19 Del. C. §§ 1313(b), 1613(b), 4013(b).
5. Engineers. The following items are specifically exempted from public disclosure under the Act:
(a) All applications to practice engineering in Delaware and associated documents except for the name and address of the applicant, the date of the application, the action of the Council on the application, and the status of the person's authorization to practice engineering in Delaware. 24 Del. C. § 2828(b)(1).
(b) Records and information received by the Council relating to charges against any person that could result in disciplinary action are not subject to the Act. However, if the information is disclosed at a public hearing or if the council issues an adverse order pursuant to the information, then the records are subject to public disclosure under the Act. 24 Del. C. § 2828(b)(2).
6. Child Placement Child Review Act. Meetings at which individual cases are discussed or records that pertain to individual cases and reviews are exempt from public disclosure. 31 Del. C. § 3816(a).
7. Hazardous Waste. The Secretary of the Department of Natural Resources may exempt certain information pertaining to hazardous waste obtained by the department if such information is proprietary or would divulge trade secrets. 7 Del. C. §§ 6304(c), 9116.
8. Health Data. Protected health information is not public information as defined at § 1002 of Title 29, and may not be disclosed without the informed consent of the individual. 16 Del. C. § 1232(a). Whenever protected health information is disclosed it shall be done in a nonidentifiable form, except when such disclosure is authorized by the individual. 16 Del. C. § 1232(a). Information collected by the State of Delaware in its health care database is exempted from the Act. Raw data is not available for public inspection and is not considered a public record under the Act. 16 Del. C. § 2006. Likewise, the results of mandatory human immunodeficiency virus tests conducted against sex offenders are not public records and are not subject to the Act. 10 Del. C. § 1077; 11 Del. C. § 3913.
9. Insurance — Reinsurance Intermediary Act. Reports prepared by the Insurance Commissioner regarding refusal to issue a reinsurance intermediary license are not subject to the Act. 18 Del. C. § 1603(e).
10. Lotteries. Information that is required to be reported, such as information pertaining to video lottery agents and financial information of licensees, is not subject to public disclosure under the Act. 29 Del. C. §§ 4805(a)(22), (23) & (b)(14), 4820(g).
11. Prison Records. Prison records are not subject to the Act. 11 Del. C. § 4322. Jenkins v. Gulledge, 1982 WL 593167 (Del. Super. Jan. 25, 1982), aff'd, 449 A.2d 207 (Del. 1982). See also 11 Del. C. § 4322(a).
12. Special Law Enforcement Assistance Fund. The purpose of this fund is to financially assist law enforcement operations targeted at organized crime and drug trafficking. The sources of the fund are derived from criminal forfeitures. The records, applications, authorizations and reports pertaining to this special fund are not subject to the Act. 11 Del. C. § 4113.
13. Sexual Offender — Registration. The documents required by the court pursuant to the sexual offender registration legislation are not subject to public disclosure except if requested by a prospective employer. 11 Del. C. § 4120(i).
14. Tax Returns. The state tax information required under Title 30 is not subject to disclosure under the Act. 30 Del. C. § 368. See also Del. Op. Att'y Gen., No. 95-ib13 (Mar. 20, 1995).
15. Victim's Bill of Rights. The address, place of employment and telephone number maintained by a court, prosecutor or law-enforcement agency of victims of certain crimes in Delaware are exempt from disclosure under the Act. 11 Del. C. § 9403(c).
16. Grand Jury Subpoenas. The Attorney General has opined that Rule 6(e) of the Federal Rules of Criminal Procedure specifically exempts the disclosure of grand jury subpoenas under Delaware's FOIA. Del. Op. Att'y Gen., No. 03-ib02 (Jan. 17, 2003).
17. Peer Review. In the medical profession, records of a review board have been said to be exempt. See 24 Del. C. § 1768.
The Act exempts records that "by law are specifically exempted from disclosure" even if the exemption is not contained in the Act itself. O.C.G.A. § 50-18-71(a). See, e.g., Emory Univ. Hosp. v. Sweeney, 220 Ga. App. 502, 469 S.E.2d 772 (1996) (Act does not require disclosure of medical peer review documents covered by O.C.G.A. § 31-7-143); Bowers v. Shelton, 265 Ga. 247, 453 S.E.2d 741 (1995) (Act does not require disclosure of tax information covered by O.C.G.A. § 48-7-60(a)); Southeastern Legal Found. v. Ledbetter, 260 Ga. 803, 400 S.E.2d 630 (1991) (Act does not require disclosure of confidential "clinical records" covered by mental health statutes); Evans v. Belth, 193 Ga. App. 757, 388 S.E.2d 914 (1989) (Act does not require disclosure of records acquired by the Insurance Commissioner from the National Association of Insurance Commissioners pursuant to statute); Napper v. Georgia Television Co., 257 Ga. 156, 356 S.E.2d 640 (1987) (Act does not require disclosure of information gained through wiretaps when statutes prohibit public disclosure). However, such exclusions may not apply where the otherwise exempt information has been incorporated into an investigatory case file or has been ordered disclosed by a court. See Napper, 257 Ga. at 156.
If another statute permits disclosure, or the rules of a particular agency do so, such provisions may be construed to prevail over any arguable exception in the Act. See, e.g., Etten v. Lane, 138 Ill. App. 3d 439, 442, 485 N.E.2d 1177, 1179, 92 Ill. Dec. 934, 936 (5th Dist. 1985) (holding that records must be disclosed under the clear language of an administrative rule; parole board rule granting an inmate access to all documents considered in making a parole decision prevailed over any arguable exception in the Act.)
The Act prohibits commercial use of lists of employees of a public agency, persons attending conferences or meetings at a state institution of higher education or persons involved in programs or activities conducted or supervised by such an institution, and students enrolled in public schools, if the school corporation has adopted a policy restricting the use of such lists. Ind. Code § 5-14-3-3(f). State agencies by administrative rule and other governmental units by ordinance may restrict the commercial use of information obtained through “enhanced access.” Ind. Code § 5-14-3-3(e).
Additionally, if a document is declared confidential by state statute, this declaration overrides the general provisions of the Access to Public Records Act. See Ind. Code § 5-14-3-4(a). The Public Access Counselor has provided a “nonexclusive list” of statutes that restrict access to certain records. The most current version of the list is available on Page 68 of the Indiana Public Access Handbook, which is available to the public on the Public Access Counselor‘s Web site at https://www.in.gov/pac/files/PAC%20Handbook%202017.pdf. The list, prepared jointly by the offices of the Public Access Counselor and the Attorney General, also contains a non-exclusive list of records that are statutorily required to be disclosed. A few examples of access restrictions from the list include: complaints and correspondence with Consumer Protection Division of the Attorney General’s Office are confidential with certain exceptions (Ind. Code § 4-6-9-4); criminal intelligence information is confidential (Ind. Code § 5-2-4-6); the Department of Revenue shall not divulge any information disclosed concerning inheritance taxes, with exceptions (Ind. Code § 6-4.1-12-12).
- Accident Reports.
If the request is filed by the driver of a vehicle involved in an accident, only the identity and address of person involved in accident is available; and only to persons involved in the accident, their insurers, agents and attorneys. Iowa Code§ 321.271. If the request is filed by law enforcement officers, it is available to any party to an accident, the party's insurer, agent, attorney or the attorney general upon written request and payment of $4 fee. Iowa Code § 321.271; 70 Op. Att'y Gen. 420, 421 (February 2, 1970).
The architectural examining board shall not disclose “[t]he contents of the examination” or “[t]he examination results other than final score except for information about the results of an examination which is given to the person who took the examination.” Iowa Code § 544A.27.
- Arrest Warrants.
Information filed with the court for the purpose of securing an arrest warrant is confidential until the arrest is made and the warrant is returned. “However, during the period of confidentiality in subsection 1, the information in the record may be disseminated, without court order, during the course of official duties to the following persons:
- A peace officer, or any other employee of a law enforcement agency if allowed access pursuant to section 692.14and if authorized in writing by the head of the agency.
- An employee of the county attorney's office.
- A judicial officer or other court employees.
- An employee of the department of corrections or judicial district department of correctional services, if authorized by the director of the department of corrections.” Iowa Code § 804.29.
- Arson Investigation Reports.
Authorized agencies or insurance companies receiving information relevant to arson prosecution must hold that information in confidence until the information is released pursuant to a criminal or civil proceeding. Iowa Code § 100A.3(1).
“A practicing attorney . . . who obtains information by reason of the person's employment . . . shall not be allowed, in giving testimony, to disclose any confidential communication properly entrusted to the person in the person's professional capacity, and necessary and proper to enable the person to discharge the functions of the person's office according to the usual course of practice or discipline.” Iowa Code § 622.10.
Members of the board of law examiners may not disclose information relating to the criminal history or prior misconduct of an applicant, examination contents, or examination results other than final score (except to the person who took the examination). Iowa Code § 602.10141.
- Bank Examinations and Records.
“The superintendent, members of the state banking council, general counsel, examiners, or other employees of the banking division shall not disclose, in any manner, to any person other than the person examined and those regulatory agencies referred to in section 524.217, subsection 2, any information relating specifically to the supervision and regulation of any state bank, persons subject to the provisions of chapter 533A, 533C, 536, or 536A, any affiliate of any state bank, or an affiliate of a person subject to the provisions of chapter 533A, 533C, 536, or 536A, except when ordered to do so by a court of competent jurisdiction and then only in those instances referred to in section 524.215, subsection 2, paragraphs ‘a’, ‘b’, ‘c’, ‘e’, and ‘f.’” Iowa Code § 524.212. See also 75 Op. Att'y Gen. 370, 371 (January 4, 1974) (Superintendent may respond to subpoena in proceeding in which FDIC is party).
"All records of the department of banking shall be public records subject to the provisions of chapter 22 [open records law], except that all papers, documents, reports, reports of examinations and other writings relating specifically to the supervision and regulation of any state bank or other person by the superintendent pursuant to the laws of this state shall not be public records and shall not be open for examination or copying by the public or for examination or publication by the news media. The superintendent, deputy superintendent, assistants or examiners shall not be subpoenaed in any cause or proceeding to give testimony concerning information relating specifically to the supervision and regulation of any state bank or other person by the superintendent pursuant to the laws of this state, nor shall the records of the banking division which relate specifically to the supervision and regulation of any such state bank or other such person be offered in evidence in any court or subject to subpoena by any party except, where relevant:
- In such actions or proceedings as are brought by the superintendent;
- In any matter in which an interested and proper party seeks review of a decision of the superintendent;
- In any action or proceeding which arises out of the criminal provisions of the laws of this state or the United States;
- In any action brought as a shareholders derivative suit against a state bank or other entity regulated by the superintendent.
- In an action brought to recover moneys for a loss in connection with an indemnity bond which was a result of embezzlement, misappropriation, or misuse of state bank funds by a director, officer, or employee of the state bank.
- In an action brought to recover moneys for a loss in connection with an indemnity bond which was a result of embezzlement, misappropriation, or misuse of funds, belonging to an entity regulated by the superintendent, by a director, officer, or employee of the entity.
Iowa Code § 524.215.
- Department of Revenue and Finance.
No bank may be required to divulge to the director information about the property of a person when that information was obtained as a part of a business transaction with the bank, in the ordinary course of bank business, and the information was necessary and proper to the discharge of the duty of the bank. Iowa Code § 421.17(7).
It is unlawful for the director or others to divulge information concerning the business affairs, income, etc., of any person examined pursuant to Chapter 422 (Property Relief Act). Iowa Code § 422.72(1).
Disclosure that a named individual has filed a return is not prohibited. 76 Op. Att'y Gen. 679 (July 27, 1976). See also Iowa Code § 422.20 (applying to present and former state employees); and 81 Op. Att'y Gen. 302, 305 (November 25, 1981) (purpose of confidentiality "to promote accurate and complete reporting of information to the agency by insuring to the taxpayer that the agency will not disclose any secrets.").
- Congenital and Inherited Disorders
“The center for congenital and inherited disorders and the department shall maintain the confidentiality of any identifying information collected, used, or maintained pursuant to this chapter in accordance with section 22.7, subsection 2.” Iowa Code § 136A.7 (2017).
- Board of Veterinary Medicine.
Members of the board may not disclose information relating to the criminal history or prior misconduct of an applicant, examination contents, or examination results other than final score except to the person who took the examination). Iowa Code § 169.6.
The identity of public bondholders is confidential and entitled to protection under Iowa Code § 22.7(17). Iowa Code § 76.11.
- Child Abuse Information.
Information is available only to health care practitioners attending a victim, department of human services investigators, certain law enforcement officers, juvenile or district courts, agencies responsible for care of the child, those doing bona fide research (but without identifying information absent consent of guardian), persons referred to in the reports, department personnel where necessary, the mandatory reporter, a multidisciplinary team where appropriate, licensing authorities and the department of public safety. Iowa Code § 235A.15(2).
- Child Day Care Facilities.
Information relevant to individuals in a child day care facility is, without written consent or court inquiry, confidential. Iowa Code § 237A.7.
- Child Foster Care.
Information concerning agencies and persons cared for by agencies is available only to designated governmental agencies and to such persons as may be in the interest of the child. Iowa Code § 238.24. Statistical analysis of data in such manner as to protect confidentiality is permissible. Id.
- Child Placing Agencies.
Information concerning agencies and persons cared for by agencies is available only to designated governmental agencies and to such persons as may be in the interest of the child. Iowa Code § 238.24.
- Citizens’ Aide.
”The ombudsman may request and receive from each agency assistance and information as necessary in the performance of the duties of the office.” Iowa Code § 2C.9. Confidential documents provided to the ombudsman by other agencies will maintain their confidential status. Id.
Citizens' aide is statutorily authorized to access investigation files of licensing boards, which are otherwise deemed privileged and confidential, in order to fulfill its role as watchdog for state administrative agencies, citizens' aide must have widespread access to agency's documentation, and licensing board's investigative files maintain their confidential status even after being obtained by citizens' aide. Citzens’ Aide/ Ombudsman v. Miller, 543 N.W.2d 899 (Iowa 1996).
Clergy may not divulge, in giving testimony, confidential communication properly entrusted in professional capacity where necessary and proper to enable clergy to discharge functions of office. Iowa Code § 622.10. The person in whose favor the prohibition is made may waive the confidence. Id.
- Coal Exploration Permits.
Information submitted and determined to be confidential concerning trade secrets or privileged commercial or financial information which relates to competitive rights is not available to the public. Iowa Code § 207.18(2).
- Commission of Veteran Affairs.
Applications, investigations and case records are privileged and confidential. Iowa Code § 35B.10. See 55 Op. Att'y Gen. 114, 117 (November 14, 1955) (Veteran's claim for payment should not be published with other claims allowed by the county board of supervisors).
- Iowa Competition Law.
Documents produced pursuant to an investigation into alleged prohibited conduct shall be kept confidential by the attorney general until an action is filed. Iowa Code § 553.9(3). Confidence may be waived by the persons being investigated. Id. Protective orders may be available with regard to trade secrets and confidential research, development and commercial information. Iowa Code § 553.11(6).
- Continuing Education.
Licensee disciplinary proceedings are privileged and confidential; but subsequent written decisions are public records. Iowa Code § 272C.6(4). Disclosure exception applies only when disciplinary proceeding initiated. Doe v. Iowa State Bd. of Physical Therapy, 320 N.W.2d 557, 559 (Iowa 1982); see Hall v. Broadlawns Med. Ctr., 811 N.W.2d 478, 484 (Iowa 2012) (“The need for frankness does not justify protecting preexisting documents because the documents were generated before the investigation commenced.”).
- "The following information regarding individuals receiving services from the department or from the judicial district departments of correctional services under chapter 905 is confidential and shall not be disseminated by the department to the public:
(1) home street address of the individual receiving services or that individual's family;
(2) department evaluations;
(3) medical, psychiatric or psychological information;
(4) names of associates or accomplices;
(5) name of employer;
(6) Social Security number;
(7) prior criminal history including information on offenses where no conviction occurred;
(8) family and personal history;
(9) financial information;
(10) information from disciplinary reports and investigations other than that identified in subsection 1, paragraph 1;
(11) investigations by the department or other agencies which are contained in the individual's file;
(12) department committee records which include any information identified in paragraphs a through k. A record containing information which is both public and confidential which is reasonably segregable shall not be confidential after deletion of the confidential information;
(13) presentence investigations as provided under chapter 901;
(14) pretrial information that is not otherwise available in public court proceedings; and
(15) correspondence directed to department officers or staff from an individual's family, victims, or employers of a personal or confidential nature. If the custodian of the record determines that the correspondence is confidential, in any proceeding under chapter 22 the burden of proof shall be on the person seeking release of the correspondence, and the writer of the correspondence shall be notified of the proceeding.
Iowa Code § 904.602(2).
- Credit Unions.
"Records of the credit union division are public records subject to the provisions of chapter 22, except that papers, documents, reports, reports of examinations and other writing relating specifically to the supervision and regulation of a specific credit union or of other persons by the superintendent pursuant to the laws of this state are not public records and shall not by open for examination or copying by the public or for examination or publication by the news media." Iowa Code § 533.108(1).
- Crime Victim Reparation Program.
"Information and records which are confidential under section 22.7 and information or records received from the confidential information or records remain confidential under this section." Iowa Code § 915.90.
- Crime Victim Registration.
Registration of a victim, victim’s family, or other interested person with the appropriate law enforcement agency is confidential. Iowa Code § 915.12. Similarly, the identity of a crime victim at a crime victim center is confidential and can only be disclosed with consent of victim or court order. 92 Op. Att'y Gen. #92-3-3 (March 12, 1992); see Iowa Code § 915.20A.
- Criminal History and Intelligence Data.
The department of public safety may disseminate criminal history data to criminal justice agencies, public agencies authorized by the director, department of human services, state racing commission, and state lottery agency. Iowa Code § 692.2(1). The class of people to whom the Department of Public Safety may provide copies of data to include "persons, public or private agenc[ies]." Id. Prosecutors are precluded from obtaining "rap sheets" for prospective jurors to use in jury selection. State v. Bessenecker, 404 N.W.2d 134, 138 (Iowa 1987). Re-dissemination is limited to official purposes in connection with prescribed duties of a criminal justice agency. Iowa Code § 692.3(1). Feeney v. Scott Cty., 290 N.W.2d 885 (Iowa 1980).
“Intelligence data in the files of the department may be disseminated only to a peace officer, criminal or juvenile justice agency, or state or federal regulatory agency, and only if the department is satisfied that the need to know and the intended use are reasonable. However, intelligence data may also be disseminated to an agency, organization, or person when disseminated for an official purpose, and in order to protect a person or property from a threat of imminent serious harm.” Iowa Code § 692.8. 81 Op. Att'y Gen. 31 (February 9, 1981).
"Intelligence data in the possession of a criminal or juvenile justice agency, state or federal regulatory agency, or peace officer, or disseminated by such agency or peace officer, are confidential records under section 22.7, subsection 55." Iowa Code § 692.18.
- Department of Human Services.
Specified information with regard to persons receiving services is confidential. Iowa Code § 217.30(1).
- Dispute Resolution.
Information relating to agreements between parties and mediator is confidential except when governmental subdivision is a party. Where government is a party, facts and circumstances surrounding dispute are not confidential. Iowa Code § 679.12.
“[M]ediation communications are confidential to the extent agreed to by the parties or provided by other law or rule of this state.” Iowa Code § 679C.108; see Iowa Code § 679C.106 (noting that mediation communication may be discoverable if the evidence is not otherwise available and the interest in obtaining evidence substantially outweighs the interest in protecting confidentiality).
- Domestic Abuse.
Information and records are confidential. Iowa Code § 236.10.
- Drug Abuse.
Registration and other records of substance abuse facilities are confidential and privileged. Iowa Code § 125.37(1). Records of the identity, diagnosis, prognosis or treatment of one which are maintained in connection with treatment for substance abuse are confidential. Iowa Code § 125.93. See also 42 U.S.C. § 201. An agency evaluation of an independent facility is, however, a public record. 76 Op. Att'y Gen. 448, 450 (Feb. 10, 1976). Records may be disclosed to medical personnel in a medical emergency without consent of patient. Iowa Code § 125.37(3).
- Engineers and Surveyors.
Members of the engineering and land surveying examiners board may not disclose information relating to the criminal history or prior misconduct of an applicant, examination contents, or examination results other than the final score (except to the person who took the examination). Iowa Code § 542B.32.
- Grain Dealers and Warehouse Operators.
Financial statements required of grain dealers pursuant to chapter 542 are confidential and may be disclosed only to law enforcement agencies, as part of an administrative proceeding, in response to a subpoena, to bonding companies, at the request of the Iowa board of accountancy, or by consent. Iowa Code § 203.16. Financial statements required of warehouse operators are similarly confidential. Iowa Code § 203C.24.
- Health Data Commission.
The health information network “involves the secure electronic sharing of health information across the boundaries of individual practice and institutional health settings and with consumers.” Iowa Code § 135D.3. “All health information technology efforts shall endeavor to represent the interests and meet the needs of consumers and the health care sector, protect the privacy of individuals and the confidentiality of individuals' information . . . .” Id.
- Health Maintenance Organizations.
The "communications in professional confidence" rules and exceptions set forth in Iowa Code § 622.10, apply to HMO's. Iowa Code § 514B.30. An HMO may not release the names of its members. Id.
- Infectious Disease Reports.
Reports of infectious diseases which identify “a person infected with or exposed to a reportable or other disease or health condition, is confidential.” Iowa Code § 139A.3(2)(b).
- Inheritance Tax Records.
Information gathered by investigation and inspection pursuant to chapter 450 is confidential and shall not be disclosed except as necessary for enforcement. Iowa Code § 450.68.
- Inspections and Appeals (performed by the department of inspections and appeals for the purpose of auditing the operations of the executive branch of state government).
Where disclosure would plainly and seriously jeopardize an investigation, information received through reports, inspections, audits, etc. shall not be disclosed in a manner which identifies individuals, corporations and others prior to issuance of results of inquiry. Iowa Code § 10A.105. Hospital records shall not be disclosed. Id.
- Judicial Qualifications Commission.
Records, papers and proceedings are confidential unless the commission applies to the supreme court to retire, discipline or remove a judicial officer. Iowa Code § 602.2103 (emphasis added).
- Mental Health Patient Information Disclosures.
Mental health information is not subject to disclosure except as follows: (1) Voluntary disclosure by an individual or his representative; (2) Administrative disclosure where necessary to facilitate provision of services; (3) Compulsory disclosure to protect human health and safety, respond to court orders, initiate commitment proceedings, or overcome claims in legal proceedings. Iowa Code §§ 228.2, 228.3, 228.5 and 228.6.
Records of involuntary hospitalization proceedings are confidential. Iowa Code § 229.24.
Psychological Test Data. “Except as otherwise provided in this section, a person in possession of psychological test material shall not disclose the material to any other person, including the individual who is a subject of the test. In addition, the test material shall not be disclosed in any administrative, judicial, or legislative proceeding. However, upon the request of an individual who is the subject of a test, all records associated with a psychological test of that individual shall be disclosed to a psychologist licensed pursuant to chapter 154B designated by the individual. An individual's request for the records shall be in writing and shall comply with the requirements of § 228.3, relating to voluntary disclosures of mental health information, except that the individual shall not have the right to inspect the test materials.” Iowa Code § 228.9.
- Morbidity and Mortality Studies.
The identity of persons whose condition or treatment is studied in connection with medical research is confidential. Iowa Code § 135.41.
- Nursing Home Administrators.
“The identity of [an applicant for a health-related profession] taking an examination shall not be disclosed during the examination . . . .” Iowa Code § 147.37.
- Peer Review Boards.
In all disciplinary actions against licensed professional where privileged and confidential information becomes part of the record, "the identity of an individual whose privilege has been involuntarily waived shall be withheld." Iowa Code § 147.135(2). Peer review records are privileged and confidential. Id.
- Physicians and Surgeons.
Members of the examining board may not disclose information relating to the criminal history or prior misconduct of an applicant, examination content, or examination results other than final score (except to the person who took the examination). Iowa Code § 147.21.
"[A] . . . physician . . . who obtains information by reason of . . . employment . . . shall not be allowed, in giving testimony, to disclose any confidential communication properly entrusted to the person in the person's professional capacity, and necessary and proper to enable the person to discharge the functions of the person's office according to the usual course of practice or discipline." Iowa Code § 622.10. The person in whose favor the prohibition is made may waive the rights conferred. Id. Section 622.10 does not apply in an action in which the condition is an element of the claim or defense. Id.
- Presentence Reports.
Presentence investigation reports are confidential. Iowa Code § 901.4; 80 Op. Att'y Gen. 895 (December 10, 1980).
- Private Investigative and Security Agencies.
All disciplinary complaints, investigations, reports and information in the possession of the department of public safety are confidential. Iowa Code § 80A.17(1). The records are, however, subject to discovery, subpoena, and other means of legal compulsion. Id.
Lists of employees and their personal histories are confidential. Iowa Code § 80A.17(2). Lists of agency names, agency owners, officers and directors, however, are public records. Id. The department of public safety may confirm that a specified individual is employed at a licensed agency. Id.
- Public Officials.
"A public officer cannot be examined as to communications made to the public officer in official confidence, when the public interests would suffer by the disclosure." Iowa Code § 622.11. Consideration is given to potential for harm to the public interest, not the interest of the officer. State Ex Rel. Shanahan v. Iowa Dist. Ct. for Iowa Cty., 356 N.W.2d 523, 527 (Iowa 1984).
- Real Estate Brokers and Salespersons.
Members of the real estate examining board may not disclose information relating to the criminal history or prior misconduct of an applicant, examination, contents, or examination results other than final score (except to the person who took the examination). Iowa Code § 543B.52.
- Search Warrants.
All information filed with the court for purposes of securing a search warrant is confidential until the warrant is executed and returned. Iowa Code § 808.13.
- Shorthand Reporters.
Members of the board of shorthand reporters examiners may not disclose information relating to the criminal history or prior misconduct of an applicant, examination content, or examination results other than final score (except to the person who took the examination). Iowa Code § 602.3301(1).
- Social Workers.
A licensed social worker may not disclose information acquired in a professional capacity except: "(1) If the information reveals the contemplation or commission of a crime; (2) If the privilege is waived by bringing charges; (3) Written consent; (4) Court testimony concerning child welfare; or (5) To seek consultation with professional colleagues." Iowa Code § 154C.5.
- Unemployment Compensation Records.
Information obtained by Iowa Workforce Development in the course of administering chapter 96 is generally confidential. Iowa Code § 96.11(6).
- Venereal Disease Records.
Reports to the Iowa Department of Health concerning persons infected with venereal disease are confidential to the extent necessary to protect the identity of persons named. Iowa Code § 139A.3.
- Veterans' Exposure to Chemicals (Agent Orange).
The applicable portions of the Iowa Code were repealed in 2017. See Iowa Code chapter 36.
- Vital Statistics.
The following vital statistics in the possession of a county registrar or state archivist may be inspected and copied (if the records are at least seventy-five years old):
(1) a record of birth if, that birth did not occur out of wedlock;
(2) a record of marriage;
(3) a record of divorce, dissolution or annulment; and
(4) a record of death, if that death was not a fetal death.
Iowa Code § 144.43.
Any other statute which specifically restricts disclosure takes precedence over the KORA. K.S.A. 45-221(a)(1). The Revisor of Statutes has identified over 350 such other statutes. There are no Kansas statutes, case law, or other provisions which provide for the overriding of KORA but there is precedent for further restricting it.
- The UCC requires the filing office to offer to sell or license to the public on a nonexclusive basis, in bulk, copies of all its filed records, in every medium from time to time. K.S.A. 84-9-523(g).
- K.S.A. 9-1712 provides for the confidentiality of all information gathered or recorded by the bank commissioner in the investigation or examination on any bank. Kan. Att’y Gen. Op. 1983-112.
- Previous legislation has been replaced by K.S.A. 8-1560d, changing which speed violations are public.
Records are "public records" except as otherwise provided in the Public Records Act "or as otherwise specifically provided by law." La. Rev. Stat. Ann. § 44:1(A)(2). Such exclusions include:
- Marketing plan for hospital service district commission: Any marketing strategy and strategic plan of a hospital service district commission and the facility owned or operated by the district is exempt from Public Records Act. See, e.g., La. Rev. Stat. Ann. § 46:1073(C). Op. Att'y Gen. 95-316.
- Records of University Foundations: Public access to records of university foundations is limited to “books and records . . . that . . . directly pertain to the receipt, investment, or expenditure of public funds.” See La. Rev. Stat. Ann. § 17:3390.
- Gaming: Public access to records of Louisiana Economic Development and Gaming Corporation is limited. See La. Rev. Stat. Ann. § 27:237.
- Obligation Bonds: The records of ownership, registration, transfer, and exchange of state general obligation bonds are exempt from Public Records Act. La. Rev. Stat. Ann. § 39:1435(C).
- Proprietary School Commission: Documents containing information provided with an application for a proprietary school license to the Louisiana Proprietary School Commission are not open to public inspection. La. Rev. Stat. Ann. § 17:3141.4.
- Pardon and Parole Records: The pre-sentence investigation report, the pre-parole report, the clemency report, the information and data gathered by the staffs of the boards of pardon and parole, the prison records, and any other information obtained by the boards or the Department of Safety and Corrections, Office of Corrections Services, in the discharge of their official duties shall be confidential and shall not be subject to public inspection, except for certain limited information which is public if an inmate applies for pardon or parole. La. Rev. Stat. Ann. § 15:574.12
- Securities Issued by a Public Entity: The records of ownership, registration, transfer and exchange of securities issued by a public entity and of persons to whom payment with respect to such securities are made are exempt from the Public Records Act. La. Rev. Stat. Ann. § 39:1435
- Contractors with Department of Highways: Information furnished by proposed contractors with the Department of Highways that indicates the financial and other capacities of the contractor to perform the proposed work is exempt from the Public Records Act. La. Rev. Stat. Ann. § 48:255.1
- Sex Offenders: The dissemination of information relating to convicted sex offenders may not be released except according to regulations established by the Parole Board pursuant to La. Rev. Stat. Ann. § 15:547(C).
- Internal Affairs Investigations: In connection with an investigation of a law enforcement officer, a law enforcement agency is prohibited from releasing an officer's home address, photograph, or other information determined to be confidential by the law enforcement agency. La. Rev. Stat. Ann. § 40:2532; Op. Att'y Gen. 93-333; Beckett v. Serpas, 112 So.3d 348 (La.App. 4th Cir. 2013). Internal Affairs investigations themselves are not exempt. City of Baton Rouge v. Capital City Press, LLC, 4 So.3d 807 (La.App. 1st Cir. 2008).
The most troublesome general exemption contained in the FOAA is the exemption for records otherwise designated confidential by statute. 1 M.R.S.A. § 402(3)(A). There are many such exemptions scattered throughout Maine statutes. A useful searchable database of exemptions not listed within the FOAA itself can be found on the Maine Legislature’s website, here. The exemptions are too numerous to list here.
There are no specific standards that must be met for another statute to override the open records provisions of the PIA. The PIA specifically provides that "[e]xcept as otherwise provided by law, a custodian shall allow a person or governmental unit to inspect any public record at any reasonable time." 4-201(a)(1). This section clearly permits another statute to override the PIA. Office of the State Prosecutor v. Judicial Watch Inc., 356 Md. 118, 133, 737 A.2d 592, 600 (1999). See, e.g., Md. Code Ann., Health-Occ. § 14-411(b) (records of the State Board of Physicians, a disciplinary panel, or any of its other investigative bodies are generally prohibited from disclosure). Therefore, although § 4-103(b) provides for a liberal construction in favor of permitting access to public records, other state and federal statutes may require or permit non-disclosure. Hammen v. Baltimore County Police Department, 373 Md. 440, 456, 818 A.2d 1125, 1135 (2003); University System of Maryland, et al. v. The Baltimore Sun Company, 381 Md. 79, 95, 847 A.2d 427, 437 (2004).
The FOIA creates a broad right of access to all public records "except as expressly provided in [Mich. Comp. Laws Ann. § 15.243]." Mich. Comp. Laws Ann. § 15.233(1). Mich. Comp. Laws Ann. § 15.243 includes in its list of exemptions a broad "catch-all" exemption that incorporates by reference other statutes which expressly exempt records or information from disclosure. Mich. Comp. Laws Ann. § 15.243(1)(d).
There is a pending bill that adds an eighth exemption to Mich. Comp. Laws 15.243: “disclos[ure] of any of the following in the case of a record pertaining to a crime of child abuse, criminal sexual conduct, sexual assault or molestation, or similar crime in which one or more victims are less than 18 years of age: (a) the name and address of any victim; (b) the names and addresses of the victim’s immediate family members of the victim’s relatives who have the same surname as that victim, other than the name and address of the accused; (c) any other information that would reveal the identity of the victim, including any reference to a victim’s familial or other relationship to the accused.” H.B. 4261, 96th Leg., 1st Sess. (Mich. 2011).
There are several separate statutory exemptions that define certain records as falling within the privacy exemption. Mont. Code Ann. § 17-5-1106 prohibits inspection of the names of individuals who own public obligations. § 27-6-703 imposes a confidentiality provision upon records of the Montana medical legal panel. The fact of filing of an attachment is not public until the attachment is actually returned pursuant to § 27-18-111. Adoption records are rendered confidential pursuant to § 40-8-126. Certain criminal justice information is confidential pursuant to §§ 44-5-103 and 44-5-302. Confidential criminal justice information is defined pursuant to include "criminal investigative information," "criminal intelligence information," fingerprints and photographs, and other criminal justice information made confidential by law. The only criminal justice information made specifically confidential by law are youth court "status offense" records. "Public criminal justice information" includes court records and proceedings, convictions, deferred sentences and deferred prosecutions, initial offense reports originated by a criminal justice agency, initial arrest records, bail records, and daily occupancy rosters. Finally, as discussed above, the state insurance commissioner may withhold certain reports done by a national auditing agency of insurance companies operating in the state under § 33-1-412(5).
In Engrav v. Cragun, 236 Mont. 260, 769 P.2d 1224 (1989), the Supreme Court determined that "confidential criminal justice information" as defined by the statute is "beyond the reach of the public sector" and protected under the statute and the Montana Constitutional Right of Privacy.
However, in the same term, the court read the Criminal Justice Information Act language "as authorized by law" (to receive such information) to include an insurance company that was searching for AIDS-infected insured. See Allstate Ins. Co. v. City of Billings, 239 Mont. 321, 780 P.2d 186 (1989). This construction was derived from the right to know provision. Under Allstate, the court will examine, on an ad hoc basis, whether there is a sufficient showing of entitlement to the information.
In Great Falls Tribune Co. Inc. v. Day, 289 Mont. 155, 959 P.2d 508 (1998), the Supreme Court struck down a statute that kept contract proposals confidential during the negotiation process, holding that the state's "(e)conomic advantage is not a privacy interest."
In Worden v. Montana Board of Pardons & Parole, 289 Mont. 459, 962 P.2d 1157 (1998), the Court struck down a statute declaring the records of the Board of Pardons confidential.
All statutory exclusions (adoption records, confidential criminal justice information, etc.) are subject to the balancing test set forth in the Montana Constitution. For example, an adoption record could be made available notwithstanding the statutory confidentiality provision imposed on those documents, if the demands of individual privacy did not clearly outweigh the rights of public disclosure. These decisions must be made on a case-by-case basis. See Lincoln County Comm'n v. Nixon, 292 Mont. 43, 968 P.2d 1141 (1998); Worden v. Montana Board of Pardons & Parole, 289 Mont. 459, 962 P.2d 1157 (1998). The Montana Constitution would override any statutory automatic closure provision.
RSA 91-A:4, I provides that public records must be made available for inspection and copying "except as otherwise prohibited by statute."
(1). Welfare records. RSA 161-B:7, (III); 167:30, 31.
(2). Child abuse reports. RSA 169:44.
(3). Records of the registry of vital statistics. RSA 126:14.
(4). Records pertaining to adoptions and parental terminations. RSA 170-B:19; 170-C:14.
(5). Physician-patient communications. RSA 329:26.
(6). Public assistance records. RSA 167:30.
(7). Certain records of the Insurance Department. RSA 400-A:25.
(8). Certain consumer protection and antitrust records of the Attorney General's Office. RSA 365:10, V; 358-A;8, VI.
(9). Hospital quality assurance committee records, RSA 151:13 et req., and patient records at health facilities operated by the state. RSA 151:21, IX.
(10). Certain records of the Department of Employment Security. RSA 282-A:118.
(11). Enhanced 911 System records. RSA 106-H:14.
(12). Records relating to guardianships. RSA 463:7-a.
(13). Motor vehicle records. RSA 260:14, II(a); DeVere v. Attorney General, 146 N.H. 762 (2001).
(14). Internal police investigation records. RSA 516:36, II.
(15). Police personnel files. RSA 105:13-b.
(16). Juvenile court records. RSA 169-B:36.
(17). Child protection court records. RSA 169-C:25.
(18). Children in need of services court records. RSA 169-D:26.
(19). Adoption records. RSA 170-B:23.
(20). Termination of parental rights records. RSA 170-C:14.
See the Attorney General’s memorandum at (https://www.doj.nh.gov/civil/documents/right-to-know.pdf) for a comprehensive list of exclusions from public disclosure.
In Asbury Park Press v. Ocean County, 374 N.J. Super. 312, (Law Div. 2004), The Law Division held that an OPRA request for a 911 tape and transcript relating to a double homicide were properly denied. The court concluded that the Legislature intended to provide protection against disclosure in those instances in which a person had a reasonable expectation of privacy. The court's decision appeared to be based on the level of distress of the caller who died at the hand of his son.
The New Mexico statutes contain more than 100 additional references to specific documents that are specifically open or closed to the public. For example, NMSA 1978 § 1-3-1(C) (1995) specifically provides that boundary maps and descriptions maintained by county clerks are public records. NMSA 1978 §61-11A-7 (1987) decrees that the names of pharmacists who enter an impairment program voluntarily are confidential.
The bulk of the specific provisions are very narrow and very specific to the substantive area of law in which they are contained. A complete collection is contained in the New Mexico Open Records Task Force, Source Materials, available through FOG. The vast majority of the separate, specific citations deeming records to be open are redundant in light of the 1993 amendments providing for a broad definition of public records and a presumption of access. See, e.g., NMSA 1978 § 21-1-16 (1889). The records of boards of regents at state colleges are open; NMSA 1978 § 3-9-5(B) (2015), absentee ballot registrations are public records.
Other provisions do provide that certain records are secret, but the bulk of the specific statutes are redundant or non-controversial. NMSA 1978 § 40-13-7.1 (2005), provides that medical or health care related information concerning domestic abuse of a person is confidential.
Some of the more significant exclusions from the Public Records Law that are set out in other statutes include the following:
- Adoption. All records created or filed in connection with an adoption, except the decree of adoption and the entry in the special proceedings index in the office of the clerk of court, and on file with or in the possession of the court, an agency, the state, a county, an attorney, or other provider of professional services, are confidential and may not be disclosed or used except as provided in this Chapter. G.S. § 48-9-102. The department shall ensure that the criminal histories of all prospective adoptive parents seeking to adopt a minor who is in the custody or placement responsibility of a county department of social services are checked prior to placement, but such reports are not public records. G.S. § 48-3-309.
- Adult Care Homes. Complaints relating to adult care homes filed with the Department of human resources are confidential, as are all resident records inspected by the department. G.S. § 131D-27.
- Agriculture. The North Carolina Department of agriculture is required to compile statistical data relating to agriculture, but such data is classified so as to prevent the identification of data received from individual farm operators. G.S. §§ 106-24 and 106.24.1.
- Amusements. The North Carolina Commissioner of Labor is required by law to inspect, and certify the safety of, carnival rides and similar amusement devices. All information reported to the commissioner in connection with these duties that constitutes a trade secret is confidential. G.S. § 95-111.17. See also G.S. § 132-1.2
5. Antifreeze. All statements furnished to the Commissioner of agriculture in connection with an application for a license or permit to sell antifreeze, stating the contents, formulas or trade secrets, are privileged and confidential. G.S. § 106-579.11.
- Archaeological resources protection. Information regarding archaeological resources, such as Indian mounds and potential archaeological sites, may be made available to the public unless the Secretary of Cultural resources determines that such disclosure would create a risk of harm to such resources or sites. G.S. § 70-18.
- Audit information. Audit reports issued by the State auditor are public records, but audit work papers are confidential. G.S. § 14764.6(d). Audit reports of the Department of Health and Human Services are public records, though internal work papers are not. G.S. § 143B-216.51.
- Autopsy Photos. Photographs and video or audio recordings made in the course of a mandatory autopsy are subject to inspection, but copies may be obtained only by law enforcement officials, district attorneys and others, such as medical researchers, deemed to have a special need or use for them. The statute, G.S. § 130a-389.1, provides that anyone denied a copy of such photographs or recordings may institute a special judicial proceeding and may be allowed to obtain copies upon a showing of good cause.
- Bail bondsmen and runners. A list of all surety bondsmen and runners appointed by insurers shall be furnished to the Commissioner of insurance annually. In the event of termination of a surety bondsman, an insurer must file written notice with the commissioner stating the reasons, if any, for the termination. This information shall be privileged and shall not be used as evidence for any action against insurer or its representatives. G.S. § 58-71-115; G.S. § 58-71-125.
- Common Carriage Shipments. It is unlawful for any common carrier or its agents engaged in intrastate commerce to disclose any information relating to the nature of property delivered to the common carrier, without the consent of such shipper, if the information could be used by a competitor to the detriment of the shipper. G.S. § 62324(a).
- Information Concerning Illegitimate Children. No district attorney, attorney-at-law appointed to assist a district attorney, or any agent or employee of such, shall disclose any information relating to an illegitimate child, or his or her parents, unless such disclosure is deemed necessary by the district attorney in the performance of his duties. G.S. § 15-155.3.
- Formulas for Commercial Feed. The formulations for commercial feeds, which must be filed with the Department of agriculture, are treated as trade secrets. Any person who discloses to persons other than authorized persons any information concerning such formulations is guilty of a misdemeanor. G.S. § 106-284.44(f).
- Commitment Records. Records of commitment hearings are confidential, and involuntary commitment hearings are to be closed to the public unless the respondent requests otherwise. G.S. § 122C-207; G.S. § 122C-267(f).
- Competency Evaluations. In a civil competency proceeding, the clerk of court may order a multidisciplinary evaluation of the respondent. Such evaluations are not public records, and can be released only by order of the clerk. G.S. § 35a-1111. In criminal proceedings, any report made to the court concerning a defendant’s capacity to stand trial is not a public record unless it is introduced into evidence. G.S. § 15a-1002(d).
- Controlled Substances - Treatment and Rehabilitation Services. Medical and other licensed practitioners may not divulge the name of any person who requests treatment and rehabilitation for drug dependence to any law enforcement agent, nor shall such information be used as evidence in court unless authorized by the person seeking the treatment. G.S. § 90-109.1(a).
- Controlled Substances - Research. The Department of human resources may withhold the names of any persons who are the subjects of research on the use and effects of controlled substances. G.S. § 90-113.3(e).
- Corporations — Information disclosed by interrogatories. The North Carolina Business Corporation act (Chapter 55 of the General Statutes), the Non-Profit Corporation act (Chapter 55a of the General Statutes) and the limited liability Company act (Chapter 57 of the General Statutes) authorize the Secretary of State to propound “interrogatories” to any corporation in order to determine whether it is subject to the act. the Secretary may disclose neither the interrogatories nor the answers unless they are required for evidence in an action by the state. G.S. § 55-1-33; G.S. § 55a-1-33; G.S. § 57-1-33.
- Credit Unions. Various information compiled by and reported to the administrator of Credit Unions — including records of audits and examinations, records that disclose the names of borrowers and records of credit union members who lodge complaints with the administrator — is confidential. G.S. § 54-109.105. However, the information contained in an application for a new credit union is public information. G.S. § 54-109.105(c). No information concerning the private business and affairs of an individual shall be disclosed by any person employed by a credit union. G.S. § 54-109.105(d).
- Dairy Farms. Certain types of information provided to the Southern Dairy Compact Commission by milk producers is confidential and cannot be disclosed except in an administrative or judicial proceeding to enforce the compact. G.S. § 106-810.
- Dental Peer Review Committees. All proceedings and records of a dental review committee shall be held in confidence, except those relating to Medicare and Medicaid charges or payments. G.S. § 9048.10.
- DNA. DNA profiles and samples submitted to the SBI DNA Database and Databank are not public records. G.S. § 15a-266.12.
- Elevators. Any information obtained by the Commissioner of Labor in connection with the inspection and supervision of elevators that contains a trade secret shall be deemed confidential, except to the extent that disclosure is necessary in carrying out the Commissioner’s duties. G.S. § 95-110.14.
- Emergency Response Plans. Emergency response plans adopted by a constituent institution of the University of North Carolina, a community college, or a public hospital are not public records. G.S. § 132-1.6.
- Employment Security Records. Any information supplied to the Employment Security Commission by an employer or an individual in filings required by statute shall be held confidential and is not to be disclosed to the public. Likewise, information obtained by the North Carolina State Employment Service Division from workers, employers, applicants, or other persons or groups of persons in the course of administering the State Public Employment Service Program is privileged, and not subject to public disclosure. G.S. § 96-4(t). The Commission shall furnish to the State Controller any information the State controller needs to prepare and publish a comprehensive annual financial report of the state. G.S. § 96-4(t)(1)(vi). Information obtained by the ESC identifying participants in job training, education or placement programs is confidential. G.S. § 96-32.
- Energy Data. The Department of Administration, which is authorized to obtain energy data such as wholesale supplies of petroleum products, is required to keep confidential any individual record containing energy data about a person and any such data shall not be subject to public disclosure. G.S. § 143-345.14(f).
- Escheats. Lists of Owners. The State Treasurer is required to deliver to each clerk of court, prior to November 1 of each year, a list of escheated and abandoned property. The supporting data and identities of apparent owners of escheated and abandoned property may remain confidential for six months. However, information may be disclosed to owners of reported property requesting information about their property. G.S. § 116B-62(f). Records of Abandoned Property. The State treasurer is authorized to examine the records of insurers, banks and other holders of escheated and abandoned property. Documents and working papers obtained or created in connection with the examination of records of abandoned property shall be considered confidential and not available to the public. G.S. § 116B-72.
- Expunged Records. If an expunction is granted, all official records are removed from public files. G.S. § 15a-146; G.S. § 90-96; G.S. § 90-113.14 (drug charges); G.S. § 15a-145 (first offenders). a person entitled to expungement may obtain an order requiring the SBI to remove his or her DNA record from the State DNA Databank. G.S. § 15a-146(b)(1) and (2).
- Fertilizer. Sellers of commercial fertilizers are required to furnish the Commissioner of Agriculture with a written statement of the tonnage of each grade of fertilizer sold in the state. Such statements are not public records. G.S. § 106-677.
- Fires and Fire Protection — Information About Suspicious Fires and Arson Investigations. Fire insurance companies are required by law to provide information about suspicious fires to fire chiefs, fire marshals, or the SBI. Any official who receives such information shall hold this information and keep it confidential until such time as the information is required for a criminal or civil proceeding. G.S. § 58-79-40. The law also provides that records of the Office of Insurance Commissioner related to the investigation of suspected arson are not public records and may be made available to the public only upon an order of court of competent jurisdiction. G.S. § 58-2-100. Fire incident reports compiled by local fire chiefs and fire marshals are public records, however. G.S. § 58-79-45.
- Forest Products. In order to collect assessments levied against the processors of forest products, the Department of Revenue is permitted to review production records of such companies. Any person who discloses information from a production report, except as necessary for collection, shall be guilty of a misdemeanor punishable by a fine not to exceed fifty dollars ($50.00) G.S. § 113a-195(f).
- General Assembly Records. The following are confidential and not subject to public disclosure: (1) a drafting request made to a legislative employee from a legislator; (2) an information request made to a legislative employee from a legislator; (3) any supporting document submitted or caused to be submitted to a legislative employee by a legislator in connection with a drafting or information request; (4) documents prepared by legislative employees upon request of legislators; and (5) a request from the Fiscal Research Division in connection with a preparation of a fiscal note. G.S. § § 120-130; 120-131; 120-131.1.
- Geologists. The North Carolina Board for Licensing of Geologists shall treat as confidential and not subject to public disclosure individual test scores and applications and material relating thereto, including letters of reference relating to an application. G.S. § 89E14(c).
- Grand Juries — Secrecy of Proceedings. — Grand jury proceedings are secret and, except as expressly provided for by law, members of the grand jury and all persons present during its sessions shall keep its secrets and refrain from disclosing anything which transpires during any of its sessions. G.S. § 15a-623(e).
- Grand Juries — Bills of Indictment. A presiding judge may direct that a bill of indictment be kept secret until a defendant is arrested or appears before the court. The clerk must seal the bill of indictment and no person, including a witness, may disclose the bill of indictment, or the proceedings leading to the finding, except when necessary for the issuance and execution of an order or arrest. G.S. § 15a-623(f).
- Health and Medical Records. All privileged patient medical records in the possession of the Department of Human Resources or local health departments shall be confidential and are not available to the public. G.S. § 130a-12. All medical records in connection with admission, treatment and discharge compiled and maintained by health care facilities are not public records. This also encompasses patient charges, accounts, credit histories and other personal financial records in a health care facility’s possession. G.S. § 131E-97. Medical records of individual patients shall be confidential and shall not be publicly disclosed unless authorized by the patient or for bona fide research purposes. G.S. § 130a-374(a). The State Center for health Statistics is required to take appropriate measures to protect the security of health data collected by the center developing a system for monitoring security. G.S. § 130a-374(b).
- Health Care Records of Teachers and Other State Employees. any medical and claims information in the possession of the executive administrator and the Board of Trustees of the Teachers’ and State Employees’ Comprehensive Major Medical Plan or its claims processor shall be confidential and exempt from public disclosure. G.S. § 135-37.
- Health Maintenance Organizations. Data or information pertaining to the diagnosis, treatment, or health of an enrollee or applicant of a health maintenance organization obtained from such person by the organization shall be held in confidence and shall not be disclosed to any person except to the extent required by law, or upon the express consent of the enrollee or applicant, or in the event of claim or litigation between such person or health maintenance organization wherein such data or information are pertinent. G.S. § 58-67-180.
- Competitive Health Care Information. Information relating to competitive health care activities by or on behalf of public health authorities and public hospitals shall be confidential and not a public record, but any contract entered into by or on behalf of a public health authority or public hospital shall be a public record unless otherwise exempted by law. G.S. § 130a-45.11; G.S. § 131E-97.3. The financial terms and other competitive health care information directly related to the financial terms in a health care services contract between a hospital or a medical school and a managed care organization, insurance company, employer, or other payer is confidential and not a public record under Chapter 132 of the General Statutes. G.S. § 131E-99.
- Hospice Patient Records. The Department of Human Resources is prohibited from disclosing any confidential or privileged information obtained from a review of the records of a hospice patient unless the patient or his legal representative authorizes such disclosure. G.S. § 131E-207.
- Industrial Commission. Records of the Industrial Commission, which adjudicates worker compensation claims, are generally confidential other than awards made by individual commissioners and reviews of awards by the full commission. G.S. § 97-84; G.S. § 97-85; G.S. § 97-92.
- Inspections of Regulated Facilities. Many records related to inspections of government-regulated facilities are exempt from the public records law, e.g., mental health facilities (G.S. § 122C-25); hospitals (G.S. § 131E-80); nursing homes (G.S. § 131E-105); home care agencies (G.S. § 131E-141); ambulatory surgical facilities (G.S. § 131E150); cardiac rehabilitation programs (G.S. § 131E-170); water and air condition inspections (G.S. § 143-215.19); local confinement facilities (G.S. § 153a-222).
- Juvenile Records — Cases Alleging Abuse, Neglect or Dependency. Court records in juvenile cases alleging abuse, neglect or dependency are not subject to public inspection and may be examined in the absence of a court order only by the juvenile, his parent, guardian, custodian, or other authorized representative. G.S. § 7B-2901(a).
- Juvenile Records — Juveniles Under Protective Custody of the Department of Social Services. Records in cases of juveniles under protective custody of the Department of Social Services are not subject to public inspection; in the absence of a court order, they may be examined only by the juvenile or by his or her guardian ad litem. G.S. § 7B-2901(b). However, certain records relating to the fatality or near fatality of a juvenile may be released. G.S. § 7B-2902.
- Juvenile Records — Delinquent and Undisciplined Juveniles. Court records in juvenile cases alleging delinquency are not subject to public inspection; in the absence of a court order they may be examined only by the juvenile; the juvenile’s parent, guardian, custodian, or other authorized representative; the prosecutor; and court counselors. G.S. § 7B-3000.
- Juvenile Records — Court Counselors’ Records and Law Enforcement Records. Juvenile records maintained by court counselors and law enforcement officials are not subject to public inspection; in the absence of a court order they may be examined only by the juvenile; the juvenile’s parent, guardian, custodian, or other authorized representative; the district attorney or prosecutor; court counselors; and law enforcement officers. G.S. § 7B-3001.
- Library User Records. Except pursuant to subpoena, court order, or as otherwise required by law, or upon written consent of the user, or if reasonably necessary for the operation of the library, library records that identify persons who have requested specific materials, information, or services, or as otherwise having used the library, may not be disclosed. G.S. § 125-19.
- Licensure Records.
Certified Public Accountants. Records containing information collected or compiled by the Board of Certified Public Accountant Examiners as a result of a complaint, investigation, inquiry, or interview in connection with an application for examination, certification, or registration, or in connection with a certificate holder’s professional ethics and conduct, are not public records. Any notice or statement of charges against a certificate holder or applicant, or any notice to a certificate holder or applicant of a hearing to be held by the board is a public record, even though it may contain information collected and compiled as a result of a complaint, investigation, inquiry, or interview conducted by the board. if any record containing information collected and compiled by the board is admitted into evidence in a hearing held by the board, it is a public record. G.S. § 93-12.2.
Dental Licensing Board. Records containing information collected or compiled by the North Carolina State Board of Dental Examiners as a result of investigations conducted in connection with a licensing or disciplinary matter are not public records. However, any notice or statement of charges against any licensee, or any notice to any licensee of a hearing in any proceeding, is a public record, notwithstanding that it may contain information collected and compiled as a result of any investigation, inquiry, or interview. If any document containing information collected and compiled by the board is received and admitted into evidence in any hearing before the board, it shall then be a public record. G.S. § 90-41(g).
Medical Review Committees. The proceedings of a medical review committee, and the records and materials it produces and considers, are confidential. Such records are not subject to discovery or introduction into evidence in any civil action against a hospital or provider of professional health services which results from matters which are the subject of evaluation or review by the committee. No person who was in attendance at a meeting of the committee can be required to testify at any civil action as to any evidence or other matters produced or presented during the proceedings of the committee. A member of the committee who testifies in a civil action may not be asked about his testimony before the committee or any opinions formed as a result of the committee hearings. G.S. § 131E-95. This provision was at the heart of a court access controversy that made its way to the N.C. Supreme Court. Virmani v. Presbyterian Health Services Inc., 350 N.C. 449, 515 S.E.2d 675, 27 Media L. Rep. (BNA) 2537 (1999). At issue was the question of whether the public has a right of access to civil court proceedings and records pertaining to medical peer review evaluations. Dr. Ron Virmani brought suit against Presbyterian Health Services Corporation following the suspension of his medical staff privileges and despite the provision prohibiting their use as evidence, his medical review records were entered into the record in his lawsuit. The court closed the courtroom during testimony about those records and sealed that portion of the file. The Supreme Court upheld a challenge to those sealing orders, finding that the trial court lawfully closed the courtroom and did not have any obligation to allow the Charlotte Observer’s request to intervene to challenge the closure. See also, G.S. § 90-21.22a(c).
Pastoral Counselors. In any proceeding or record of any hearing before the North Carolina State Board of Examiners of Fee-Based Practicing Pastoral Counselors and in any complaint or notice of charges against any certified fee-based pastoral counselor or certified fee-based pastoral counseling associate and in any decision rendered by the board, the board shall endeavor to withhold from public disclosure the identity of any counselees or clients who have not consented to the public disclosure of treatment by the certified fee-based pastoral counselor or certified fee-based pastoral counseling associate. All records containing information collected and compiled by the board as a result of investigations conducted in connection with certification or disciplinary matters are not public records. However, any notice or statement of charges against any certified fee-based pastoral counselor or certified fee-based pastoral counseling associate, any notice to any certified fee-based pastoral counselor or certified fee-based pastoral counseling associate of a hearing in any proceeding, or any decision rendered in connection with a hearing in any proceeding is a public record, except that identifying information concerning the treatment or delivery of services to a counselee or client who has not consented to the public disclosure of such treatment or services may be deleted. Any record containing information collected and compiled by or on behalf of the board that is received and admitted in evidence in any hearing before the board is a public record, subject to any deletions of identifying information concerning the treatment or delivery of pastoral counseling services to a counselee or client who has not consented to public disclosure of the treatment or services. G.S. § 90-390(c).
Physicians. All records containing information collected and compiled by the North Carolina Medical Board as a result of investigations conducted in connection with a licensing or disciplinary matter are not public records. Any notice or statement of charges against any licensee, or any notice to any licensee of a hearing in any proceeding is a public record, notwithstanding that it may contain information collected and compiled as a result of any such investigation, inquiry or interview. If any such record containing information theretofore collected and compiled by the board is received and admitted in evidence in any hearing before the board, it shall thereupon be a public record. G.S. § 90-16. The Board of Medical Examiners and its members and staff may release confidential or non-public information to any health care licensing board in this state or another state about the issuance, denial, annulment, suspension or revocation of a license, or the voluntary surrender of a license by a board-licensed physician, including the reasons for the action, or investigative report made by the board. G.S. § 90-14(d).
Psychological Professionals. The North Carolina Psychology Board may withhold from public disclosure the identity of any clients or patients who have not consented to the public disclosure of psychological services’ having been provided by the licensee or applicant. All records containing information collected and compiled by the board as a result of investigations conducted in connection with licensing or disciplinary matters are not public records. However, any notice or statement of charges against any licensee or applicant, or any notice to any licensee or applicant of a hearing in any proceeding, or any decision rendered in connection with a hearing in any proceeding, is a public record, notwithstanding that it may contain information collected and compiled as a result of such investigation, inquiry, or hearing except that identifying information concerning the treatment of or delivery of services to a patient or client who has not consented to the public disclosure of such treatment or services may be deleted. If any such record containing information theretofore collected and compiled by the board is received and admitted in evidence in any hearing before the board, it shall thereupon be a public record, subject to any deletions of identifying information concerning the treatment or delivery of psychological services to a patient or client who has not consented to the public disclosure of such treatment or services. G.S. § 90-270.15(e).
Refrigeration Contractors. All records, papers, and other documents containing information collected and compiled by the State Board of Refrigeration Contractors as a result of investigations, inquiries, or interviews conducted in connection with a licensing or disciplinary matter, are confidential. G.S. § 87-59(e).
- Medical Database Commission. The databases compiled by the North Carolina Medical Database Commission are public records, but the records of patient information furnished to the Commission by hospitals and other providers of medical services, from which the databases are compiled, are not public. G.S. § 131E-214.3.
- Court records related to involuntary commitments of persons who are mentally ill or substance abusers. — Court records made in all proceedings related to the involuntary commitment of mental health patients or substance abusers are confidential and are not open to the general public. G.S. § 122C-207.
- National Guard records. No records of the National Guard in the Department of Crime Control and Public Safety shall be disclosed or used for any purpose except for official purposes. G.S. § 127a-17.1.
- Nursing Home Complaints. the identities of persons who file complaints with the Department of Human Resources relating to nursing homes are confidential. G.S. § 131E-124(c).
- Occupational Safety and Health Inspections. Trade secrets. Information reported to or otherwise obtained by the Commissioner of Labor or his agents or representatives in connection with any safety inspection or proceeding which might reveal a trade secret shall be considered confidential. G.S. § 95-152.
- Pharmacy Records. Written prescription orders on file in a pharmacy are not public records and their contents may only be disclosed to (1) an adult patient for whom the prescription was issued or his legal guardian, (2) an emancipated minor patient for whom the prescription was ordered or his legal guardian, (3) a parent or person in loco parentis of an unemancipated minor patient for whom the prescription was issued, (4) the licensed practitioner who issued the prescription, (5) the licensed practitioner who is treating the patient for whom the prescription was issued, (6) a pharmacist who provides pharmaceutical services to the patient for whom the prescription was issued. G.S. § 90-85.36(a).
- Porcine Animal Data. A buyer of porcine animals shall keep records of the number of porcine animals purchased and the date purchased. All information or records regarding purchases of porcine animals by individual buyers shall be kept confidential by employees or agents of the Department of Agriculture and the North Carolina Pork Producers Association, and shall not be disclosed except by court order. G.S. § 106-794(d).
- Precious Metal Dealers. The files of local law enforcement agencies which contain copies of record book entries of precious metal dealers shall not be subject to inspection and examination except as necessary for law enforcement investigation or civil or criminal proceedings. G.S. § 66-169.
- Probation Records. Unless and until otherwise ordered by a judge of the court or the Secretary of Correction, all information and data obtained in the discharge of the official duty of a probation officer shall be privileged information. G.S. § 15-207.
- Public Assistance Records. Information concerning persons applying for or receiving public assistance or social services that may be directly or indirectly derived from the records, files or communications of the Department of Human Services or the county boards of social services, or county departments of social services or acquired in the course of performing official duties are not public records. G.S. § 108a-80(a).
- Public Utility Inspection Data. Except as he may be directed by the Utilities Commission or by a court or judge thereof, no agent or employee of the utilities commission shall knowingly and willfully divulge any fact or information which may come to his knowledge during the course of any examination or inspection made pursuant to his duties. G.S. § 62-316.
- Records Related to Participants in the Retirement System for Cities and Counties. Any Social Security number, current name and address, or any other information provided to the retirement system by a board, agency, department, institution, or subdivision of the state shall be treated as confidential except as may be necessary to notify the member, beneficiary, or beneficiary of the member of their rights to and accruals of benefits in the retirement system. G.S. § 128-28(q).
- Records Related to Participants in the Retirement System for Teachers and State Employees. Any Social Security number, current name and address, or any other information provided to the retirement system by a board, agency, department, institution, or subdivision of the state shall be treated as confidential except as may be necessary to notify the member, beneficiary, or beneficiary of the member of their rights to and accruals of benefits in the retirement system. G.S. § 135-6(p).
A 1979 Attorney General opinion held that “[i]nformation contained in the Retirement System account of an individual member” constitutes a public record and that there is no statutory exemption that would permit withholding the information.” 48 N.C. Opp. Atty. Gen. 129 (1979).
- Savings and Loan Associations. The following records or information of the North Carolina Banking Commission, the Commissioner of Banks or the agent(s) of either shall be confidential and shall not be disclosed except pursuant to a court order:
(1) Information obtained or compiled in preparation of or anticipation of, or during an examination, audit or investigation of any association;
(2) Information reflecting the specific collateral given by a named borrower, the specific amount of stock owned by a named stockholder, or specific withdrawable accounts held by a named member or customer;
(3) Information obtained, prepared or compiled during or as a result of an examination, audit or investigation of any association by an agency of the United States, if the records would be confidential under federal law or regulation;
(4) Information and reports submitted by associations to federal regulatory agencies, if the records or information would be confidential under federal law or regulation;
(5) Information and records regarding complaints from the public received by the division which concern associations when the complaint would or could result in an investigation, except to the management of those associations;
(6) Any other letters, reports, memoranda, recordings, charts or other documents or records which would disclose any information of which disclosure is prohibited above. G.S. § 54B-63(a) and (b).
The information contained in an application to establish a savings and loan association shall be deemed to be public information. Disclosure shall not extend to the financial statements of the incorporators nor to any further information deemed by the administrator to be confidential. G.S. 54B-63(c). Compliance review documents in the custody of an association or regulatory agency are not public records. G.S. § 54B-63.1.
- Savings Banks. The following records are not public: (1) investigatory audit information, (2) information related to collateral from a borrower, stock owned by a stockholder, a stockholder list, or deposit accounts held by members or customers; (3) confidential information submitted to federal regulatory agencies, and (5) information regarding complaints from the public concerning savings banks when the complaint would or could result in an investigation, except to the management of those savings banks; and (6) any other letters, reports, memoranda, recordings, charts or other documents or records that would disclose any information of which disclosure is prohibited in this subsection. G.S. § 54C-60.
- Sexual Predator Registry. The name, sex, address, physical description, picture, conviction date, offense for which registration was required, the sentence imposed as a result of the conviction, and registration status of adjudicated sexually violent predators is public record. The sheriff shall release any other relevant information that is necessary to protect the public concerning a specific person, but shall not release the identity of the victim of the offense that required registration. Any person may obtain a copy of an individual’s registration form, a part of the county registry, or all of the county registry, by submitting a written request for the information to the sheriff. However, the identity of the victim of an offense that requires registration shall not be released. The sheriff may charge a reasonable fee for duplicating costs and for mailing costs when appropriate. G.S. § 14-208.6a; G.S. § 14-208.10.
Juveniles found delinquent for first and second-degree rape or sexual offense who were at least 11 years old at the time of the incident may be required to register as a sexual offender if the court determines the juvenile is a danger to the community. Their registration is only available to law enforcement agencies. G.S. § 14-208.26; G.S. § 14208.29.
- Tax Information. It is unlawful for any person working in the office of the Secretary of Revenue, local tax authorities and former local tax authorities, or with the Commissioner of Insurance to divulge or make known in any manner the amount of income, income tax or other taxes of any taxpayer, or information relating thereto or from which the amount of income, income tax, or other taxes or any part that might be determined, deduced, or estimated. it shall likewise be unlawful to reveal whether or not any taxpayer has filed a return, and to abstract, compile or furnish to any person, firm or corporation not otherwise entitled, information relating to the amount of income, income tax, or other taxes of a taxpayer, or a list of names, addresses, Social Security numbers or other personal information concerning such taxpayer. G.S. § 105-259. City and county tax records that contain information about a taxpayer’s income or receipts are not public records. G.S. § 153a-148.1; § 160a-208.1
- Tax Setoffs. The Setoff Debt Collection Act, G.S. § 105a-15, permits the Secretary of Revenue to setoff against any tax refund any debt owed to the state by the refund recipient. All exchanges of information among the department, the claimant agency, and the debtor necessary to accomplish this article are lawful. Any person employed by claimant agency who discloses any information for any other purpose except as allowed by the act shall be penalized in accordance with the terms of the taxpayer confidentiality statute, G.S. § 105-259.
- Toxic substances. Emergency information — Hazardous substance lists, filed with fire chiefs by employers who store hazardous wastes, shall be confidential and shall not be disclosed to anyone other than those who will take place in pre-planning emergency response. Such persons receiving this information shall not disclose the information received and shall use such information only for the purpose of preplanning emergency response activities. G.S. § 95-194(f). Any person may request in writing a list of chemicals used or stored at a facility. The request shall include the name and address of the requester and a statement of the purpose for the request. G.S. § 95-208(a).
- University of North Carolina Liability Insurance Records. Records pertaining to the University of North Carolina’s liability insurance program shall not be considered public records and shall not be subject to discovery under the Rules of Civil Procedure. G.S. § 116-222.
- Uranium Exploration. If a person engaged in uranium exploration shows to the satisfaction of the Department of Natural Resources and Community Development that logs, surveys, plats, and reports filed pursuant to law are of a proprietary nature relating to his competitive rights, that information shall be confidential and not subject to inspection and examination for four years after receipt of the information by the department. G.S. § 74-88.
- Veterans. No records of the Division of Veterans Affairs and the Department of Administration shall be disclosed or used for any purpose except for official purposes. G.S. § 165-11.1.
- Victims Compensation Records. All medical information relating to the mental, physical, or emotional condition of a victim or claimant and all law enforcement records and information and any juvenile records shall be held confidential by the Victims Compensation Commission and Director. G.S. § 15B-8.1. Except for information held confidential under this subsection, the records of the Division are open to public inspection.
- Wage and Hour Investigations. Files and other records relating to investigations and enforcement proceedings relating to purported employment discrimination discharges shall not be subject to inspection and examination by the public while such investigations and proceedings are pending. G.S. § 95-25.20(b).
- “911” Databases. Automatic number identification and automatic location identification information that consists of the name, address, and telephone numbers of telephone subscribers which is contained in a county 911 database is confidential and is not a public record if that information is required to be confidential by the agreement with the telephone company by which the information was obtained. Dissemination of the information contained in the 911 automatic number and automatic location database is prohibited except on a call-by-call basis only for the purpose of handling emergency calls or for training. G.S. § 132-1.5.
- Law enforcement agency recordings. Recordings created by law enforcement using body-worn, dashboard or other devices are not public records or personnel records under North Carolina law. Those appearing in such recordings, or their statutorily defined personal representatives, can request to view the recordings by making a request to the head of the law enforcement agency(ies) in possession. If denied, those entitled to disclosure can petition the court without a filing fee to require disclosure be made. Third-parties seeking to view law enforcement recordings (or law enforcement seeking to release them) must file a petition for release and a $200 filing fee. Release and conditions on release are left to the sole discretion of the judge hearing the petition. G.S. § 132-1.4A.
Although government officials have attempted to read exclusions into the open records law based upon statutes that do not contain explicit exceptions, the North Dakota Supreme Court has resisted this effort. In Hovet v. Hebron Public School District, the court held “an exception to the open-records law may not be implied.” 419 N.W.2d 189, 191 (N.D. 1988). In explaining this holding, the court stated:
[F]or an exception to the open-records law to exist under out constitutional and statutory provisions, it must be specific, i.e., the Legislature must directly address the status of the record in question, for a specific exception, by the plain terms of [the constitutional and statutory] provisions, may not be implied.
The Ohio Revised Code contains more than 400 separate statutory provisions addressing public records. Many of them make specific kinds of records exempt from the mandatory public access requirements of the public records statute. Many of those exemptions are listed below.
1. Citizen reward programs. Private organizations receiving public funds and named as official county programs to reward citizens who provide tips leading to the solving of crimes. Ohio Rev. Code § 9.92(E).
2. Securities. Records of the ownership, registration, transfer, and exchange of securities are not public records, nor are the records of the financial institution or person who issued the securities. Ohio Rev. Code § 9.96(C)(5). Information obtained by the division of securities is not available except to those having a direct economic interest in the information. Ohio Rev. Code § 1707.12; 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) (complaints lodged with the Ohio Division of Securities are not public records).
3. Ohio ethics commission complaints, investigations. All papers relating the proceedings of the Ohio ethics commission are private and confidential, except where the accused person also requests that the evidence and record of a hearing before the commission be made public. Ohio Rev. Code § 102.06(F).
4. Ohio Bureau of Criminal Identification and Investigation ("BCI") records. Information and material furnished to or procured by the superintendent of BCI concerning persons convicted of crimes, and known and habitual criminals. Information acquired by the superintendent as part of the Ohio Law Enforcement Gateway which is a data processing system for the storage and retrieval of information, data, and statistics regarding criminals. Information acquired by the superintendent of BCI in investigation of potential employees of other governmental agencies is confidential. Ohio Rev. Code § 109.57(D).
5. Investigatory records of the Ohio Attorney General generated in the course of investigations to enforce consumer protection laws or investigations of charitable foundations. Ohio Rev. Code §§ 1345.05(A)(7); 109.28.
6. Preliminary audits by the Auditor of the State. Until the state auditor files an audit report with certain officials of other state agencies, the audit reports produced by the auditor are not public records. Ohio Rev. Code §§ 117.14, 117.15, 117.26.
7. Attorney-client privilege. Communications between a defendant and a public defender “fully protected by the attorney-client privilege to the same extent and degree as though counsel had been privately engaged.” Ohio Rev. Code § 120.38(B). All information obtained by the public defender in determining if a person is indigent is not public record. Ohio Rev. Code § 120.38(A). The attorney-client privilege applies to records containing communications between members of a public office and its counsel about the legal advice given. State ex rel. Thomas v. Ohio State Univ., 71 Ohio St. 3d 245, 643 N.E.2d 126 (1994). Preliminary drafts of public documents reflecting information provided by an attorney and the legal advice flowing from that information are protected. State ex rel. Benesch Friedlander, Coplan & Arnoff LLP v. City of Rossford, 140 Ohio App. 3d 149, 746 N.E.2d 1139 (Wood App. 2000). The attorney-client privilege applies to in-house counsel at state agencies, even if they do not serve under the Office of the Attorney General. State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 824 N.E.2d 990 (2005). Further, the privilege does not except the fee charged or time spent by a government attorney. State ex rel. Beacon Journal Publishing Company v. Bodiker, 134 Ohio App. 3d 415, 731 N.E.2d 245 (Franklin App. 1999).
8. Minority business loan financial data. Financial statements and data submitted for minority business enterprise loans are not public records. Ohio Rev. Code § 122.74(C)(2).
9. Retirement benefits for individual retirees. The amount of a monthly allowance or benefit paid to a retiree, beneficiary, or survivor from the public employees retirement board is not a public record, along with specified other information related to public employment retirement benefits. Ohio Rev. Code §§ 145.27, 3307.20(B) (teachers), 3309.22(A)(2) (school employees), 5505.04 (state highway patrol).
10. Personal history record (name, address, telephone, Social Security number, etc.) of any member of the Ohio Police and Firemen's Pension Fund. Ohio Rev. Code § 742.41.
11. Organized crime task force records. Information gathered by the organized crime task force is a confidential law enforcement investigatory record for purposes of the public records statute. Ohio Rev. Code § 177.03(D)(5).
12. Income, estate, and property tax returns. Except pursuant to judicial order, tax returns are confidential. Ohio Rev. Code §§ 718.13 (municipal), 5703.21 (audits), 5711.10 (submission of verified federal income tax return in lieu of listing income yielding investments), 5711.101 (financial statement or balance sheet of a business required to be filed), 5731.90 (estate taxes).
13. Geological investigations. The chief of the division of geological survey may treat the records of his investigation of geological or mineralogical conditions of the state as confidential “so that industry, commerce, education, public health, and recreation may be advanced.” Ohio Rev. Code § 1505.03.
14. Mining test borings. Results of test boring submitted by applicants to engage in surface mining are confidential, except in legal actions in which the truthfulness of the information is material. Ohio Rev. Code § 1514.02(A)(9).
15. Credit union proceedings. All conferences and administrative proceedings of the superintendent of credit unions regarding credit unions are confidential. Ohio Rev. Code § 1733.327.
16. Information acquired by an agent of the Public Utilities Common of Ohio with respect to the "transaction, property, or business" of any public utility. Ohio Rev. Code § 4901.16.
17. Records of employer's annual report to the Ohio Industrial Commission of the number of employees employed and their aggregate wages. Ohio Rev. Code § 4123.27.
18. Antitrust investigation. Materials provided to the Attorney General pursuant to an investigative demand under Ohio's antitrust law. Ohio Rev. Code § 1331.16(L).
19. Records pertaining developmentally disabled person for whom the Ohio Department of Developmental Disabilities is acting as guardian. Ohio Rev. Code § 5123.57.
20. Information that would identify a person who provides to a board of education information about theft of or damage to school property. Ohio Rev. Code § 3313.173.
21. School pupils. Personally identifiable information concerning any pupils attending public school. Ohio Rev. Code § 3319.321.
22. Farmer information. Information furnished annually to the Ohio Director of Agriculture by farmers. Ohio Rev. Code § 917.17.
23. Arrested juveniles. Records of the arrest of juveniles and their photos are not public records unless the act alleged to have been committed by the arrested juvenile would be a felony if committed by an adult. Ohio Rev. Code § 2151.313(C).
24. Juvenile probation reports. Reports and records of the probation department of juvenile courts are not public. Ohio Rev. Code 2151.14(B).
25. Juvenile court records. Juv. R. P. 37(B). But see State ex rel. Scripps Howard Broad. Co. v. Cuyahoga Common Pleas Court, Juv. Div., 73 Ohio St. 3d 19, 652 N.E.2d 179 (1995) (Juv. R. 37(B) violates state and federal constitutions by allowing juvenile court to withhold transcript of proceeding that was open to the public).
26. Victim impact statements. Statements filed with the court about the impact of a crime are not available to the public. Ohio Rev. Code §§ 2947.051(C).
27. Child abuse records. Records of complaints and investigations of child abuse and neglect are confidential. Ohio Rev. Code § 2151.421(I).
28. Hospital quality assurance and peer review records. Information made available to a quality assurance committee or utilization committee of a hospital is confidential, as are records of hospital boards or committees reviewing professional qualifications of present or prospective members of the hospital medical staff. Ohio Rev. Code §§ 2305.24, 2305.252; State ex rel. Fostoria Daily Review Co. v. Fostoria Hosp. Ass'n, 44 Ohio St. 3d 111, 541 N.E.2d 587 (1989).
29. Search warrant hearing. Any transcript or recording of a hearing over whether the statutory precondition for nonconsensual entry by a law enforcement officer may be waived is not public until the search warrant is returned. Ohio Rev. Code § 2933.231(E).
30. Tuition credits. Records identifying the purchaser or beneficiary of tuition credits or college savings bonds are not public records. Ohio Rev. Code § 3334.11(J).
31. HIV test results. The Ohio Revised Code sets forth a specialized process for obtaining records regarding HIV status from the Department of Health. Ohio Rev. Code § 3701.243. Information obtained by the Department of Health’s partner notification system in conjunction with AIDS task forces are specifically excluded from public records; disclosure of these records requires an application using the process set forth in § 3701.243. Ohio Rev. Code § 3701.241(A)(7).
32. Donor for artificial insemination. Records related to the non-spousal donor for artificial insemination are available only to the recipient and the recipient's husband. Ohio Rev. Code § 3111.94(A).
33. Trade secrets. Air pollution control processes and water pollution control processes for which confidentiality has been maintained are trade secrets. Ohio Rev. Code §§ 3704.08, 3706.20, 6111.05, 6123.20.
The Ohio Uniform Trade Secrets Act, Ohio Rev. Code §§ 1333.61 et seq. defines a "person" who can have trade secrets to include "governmental entities." Ohio Rev. Code § 1333.61(C). Accordingly, the court has held that governmental entities can have their own trade secrets, such as financial information generated by a government-owned medical system. State ex rel. Besser v. Ohio State Univ., 87 Ohio St. 3d 535, 721 N.E.2d 1044 (2000).
34. Birth records. Where a birth record is changed and a new birth record issued, the original birth record is not available for inspection except by court order. Following adoption, a new birth record is issued and the original birth record ceases to be a public record. Ohio Rev. Code §§ 3705.09(G), 3705.12.
35. Foundling [child whose parents are unknown] records. A record of a foundling child ceases to be a public record if the foundling is later identified. Ohio Rev. Code § 3705.11.
36. Prescriptions, orders, and records of dangerous drugs. Prescriptions, orders, and records of dangerous drugs and controlled substances are open only to specific officials who have duties to enforce laws relating to those drugs. Ohio Rev. Code § 3719.13.
37. Nursing home records. Personal and medical records of nursing home, adult care resident patients, and residents of community alternative homes are confidential. 3721.13(10). Records which identify a person who has made a confidential complaint about a nursing home to the are not public records. Ohio Rev. Code § 3721.031 (Department of Health); 5165.88 (Department of Medicaid or contracting agency). Records identifying persons who report or provide information about suspected abuse, neglect, or exploitation are confidential without that person’s consent. Ohio Rev. Code § 3721.25. A request for rescission of finding of neglect on behalf of a nursing home is not a public record. 3721.23(D)(2)(b). Criminal background checks of potential nursing home employees are not public records. 3721.121(E).
38. Exams, tests used by Ohio Health Director. Test material, exams, evaluative tools used in a competency evaluation program by the director of health is not a public record. Ohio Rev. Code § 3721.31.
39. Radon test results. Any information required to be reported to the director of a public health council regarding radon test results are not public records. Ohio Rev. Code § 3723.09(H).
40. Social Security numbers of public employees or others. The federal constitutional right to privacy bars the public records statute from requiring public offices to permit inspection or copying of the Social Security numbers of public employees or other individuals. State ex rel. Beacon Journal Publishing Co. v. City of Akron, 70 Ohio St. 3d 605, 640 N.E.2d 164 (1994).
41. State lottery commission meetings. Records of the meetings of the state lottery commission are available only on a showing of good cause. Ohio Rev. Code § 3770.02.
42. Drug treatment programs. Records, except judicial records, pertaining to the identity, diagnosis, or treatment of any patient maintained in connection with the performance of any drug treatment program are confidential, and the names of any pregnant women and their children in drug or alcohol treatment programs are not public records. Ohio Rev. Code §§ 5119.17, 5519.61.
43. Insurance fraud investigations. All records in the possession of the division of insurance fraud of the state insurance department that pertain to an authorized investigation are confidential law enforcement investigatory records under the public records statute until the expiration of the statute of limitations applicable to the particular offense that was investigated. Ohio Rev. Code § 3901.44.
44. Insurance audits. The audit reports of CPAs conducting insurance audits are not public records. Ohio Rev. Code § 3901.48(A).
45. Work papers of superintendent of insurance. The work papers of the superintendent of insurance are not public record. Ohio Rev. Code § 3901.48(B).
46. Insurance trade association reports. Any reports of the Ohio commercial insurance joint underwriting association in connection with an action taken are not public record. Ohio Rev. Code § 3930.10.
47. Worker's compensation claims. No employee may divulge information regarding any claim being made to the worker's compensation board except to members of the worker's compensation commission or to the employee's superior except with the authorization of the administrator of the worker's compensation board or upon authorization of the claimant or employer. Ohio Rev. Code § 4123.88(B).
48. Information furnished to the Ohio Bureau of Employment Services by employers or employees. Ohio Rev. Code § 4141.21.
49. Accountant work papers. Records and work papers of a CPA or public accountant generated in the course of performing an audit of a public office or private entity, except reports submitted by the accountant to the client, are not public records. Ohio Rev. Code § 4701.19.
50. Patient identities revealed in the course of health care regulatory investigations. Patient identities contained in the records of the state medical board and the board of nursing are confidential. Ohio Rev. Code §§ 4723.28(I), 4731.22.
51. Applications for motor vehicle salvage licenses. Applications for motor vehicle salvage licenses are not public records. Ohio Rev. Code § 4738.14.
52. Investigations by board regulating physical therapy. Records of complaint investigations made by the board regulating occupational and physical therapists and athletic trainers are confidential. Ohio Rev. Code § 4755.61(A)(7).
53. Child daycare centers. Records of enrollment, health, and attendance of children at child daycare centers is not available for public inspection and copying, but may be furnished to parents, guardians, and for administration purposes. Ohio Rev. Code § 5104.038.
54. Mental health care facilities — job applicants. The investigatory crime reports of potential employees is not a public record. Ohio Rev. Code § 5519.181(C).
56. Residents/patients of mental hospitals, Department of Developmental Disabilities facilities. Except in specified circumstances, the identities of patients of mental hospitals and residents of institutions for the developmentally disabled are confidential. Ohio Rev. Code §§ 5122.31, 5123.89, 5123.62.
57. Reports of abuse or neglect of developmentally disabled. Reports of abuse or neglect in developmental disability homes, and reports of abuse and neglect prepared by the developmental disabilities board are not public records, and are available only to specified persons in specified circumstances. Ohio Rev. Code § 5126.31(M) (effective since Sep. 29, 2018).
58. Prison records. Most prison records are not available to the public, including records about inmates, architectural or construction drawings of a prison, hostage negotiation plans, statements by inmate informants, records of individuals under the supervision of the adult parole authority. Ohio Rev. Code § 5120.21; State ex rel. Harris v. Rhodes, 54 Ohio St. 2d 41, 374 N.E.2d 641 (1978).
59. Children in custody of department of youth services. Records pertaining to children in the custody of the state department of youth services are not public record. Ohio Rev. Code § 5139.05(D).
60. Investigations of foster homes. Records of investigations of foster homes by county boards or departments for human services are confidential. Ohio Rev. Code § 5153.17.
61. Grand jury records. Transcripts of grand jury proceedings are secret, and may only be disclosed by an order from the supervising court. Ohio R. Crim. P. 6(E); State ex rel. Collins v. O'Farrell, 61 Ohio St. 3d 142, 573 N.E.2d 113 (1991).
62. Grand jury subpoenas. Ohio R. Crim. P. 6(E); State ex rel. Beacon Journal Publishing Co. v. Waters, 67 Ohio St. 3d 321, 617 N.E.2d 1110 (1993).
63. Applications to Veterans Service Commission and related financial records. Financial statements and applications for financial assistance submitted to the Veterans Service Commission, and documents used to affect whether to grant or change financial assistance. Ohio Rev. Code § 5901.09.
ORS 192.363 to ORS 192.380 contains a number of additional exceptions and limitations concerning disclosure of records containing personal information in specific circumstances.
ORS 192.363 provides specific requirements for processing requests for records under ORS 192.355(3) (concerning certain personal information about public employees) and ORS 192.365 (disclosure of personal information about operators of care facilities).
ORS 192.368 describes the procedure for individuals to request the nondisclosure of personal contact information for safety reasons.
ORS 192.371 prohibits the disclosure of identification badges of public bodies without the written consent of the employee.
ORS 192.374 prohibits the disclosure of records or information that discloses the identities of holders of concealed handgun licenses, with certain exceptions.
ORS 192.377 requires public bodies in possession of information provided in confidence that is not otherwise required by law to be submitted to redact personal information before making a disclosure described in ORS 192.355(4).
ORS 192.380 provides immunity for public bodies disclosing information in compliance with requests subject to ORS 192.355(3), ORS 192.363, or ORS 192.365, and further provides an entitlement to recover the costs of compliance with ORS 192.363 regardless of whether the public body determines that the public interest requires disclosure.
ORS 192.385 prohibits disclosure of audio or video records of internal investigations of law enforcement officers, with some exceptions.
ORS 192.398 exempts from disclosure (1) records less than 75 years old which contain certain medical and health treatment information of a living individual if disclosure would constitute an unreasonable invasion of privacy; (2) sealed records less than 75 years old; (3) individuals’ records of custody or rehabilitation for a period of 25 years if disclosure would interfere with the rehabilitation of the person, under a balancing test, and (4) student records required by state or federal law to be exempt from disclosure.
The Attorney General Manual provides a list of statutes incorporated by ORS 192.502(9) in Appendix G.
For the standards a statute must meet to override the APRA, see R.I. Gen. Laws § 38-2-2(S) (2012).
- Health Records. The Confidentiality of Health Care Information Act, R.I. Gen. Laws § 5-37.3-1 et seq., enacted in 1978, generally bars providers of health care services from providing any information relating to a patient's medical history, diagnosis, condition, treatment, or evaluation to anyone other than the patient or an authorized representative without the written consent of the patient or an authorized representative. R.I. Gen. Laws § 5-37.3-4(a) (1999). A person violating this Act is subject to civil and criminal penalties, and may be fined up to $5,000, imprisoned up to six months, or both. R.I. Gen. Laws § 5-37.3-4(a)(3).
- Mental Health. R.I. Gen. Laws § 40.1-5-26 (2010) requires that mental health care records remain confidential and be disclosed only as required for court proceedings, by mental health law, or with written consent of the patient or his/her guardian.
- Registered Public Obligations. R.I. Gen. Laws § 35-13-11(a) provides that records, with regard to the ownership of or security interests in registered public obligations, are not accessible.
- Welfare. Records pertaining to the administration of public assistance are confidential pursuant to R.I. Gen. Laws § 40-6-12. Such records are subject to production through a subpoena duces tecum properly issued by a court, but only where either the purpose for which the subpoena is sought or the litigation involved is directly connected with the administration of public assistance. The addresses of welfare recipients are also releasable to the state's “warrant squad,” so-called, if an outstanding arrest warrant or body attachment is issued. R.I. Gen. Laws § 40-6-12.1. Persons entitled to access to a list of individuals receiving public assistance shall not use such list for purposes other than administration, and shall not publish or use such list, except by express consent of the director of the Department of Human Services. R.I. Gen. Laws § 40-6-12. Violation of this section is a misdemeanor. Id.
- Alcoholism. R.I. Gen. Laws § 23-1.10-13(a) (1995) provides that registration and other records of alcoholic treatment facilities are confidential and privileged. § 23-1.10-13(b) further provides that the director of the Department of Mental Health, Retardation and Hospitals may make information from patients' records available for research purposes, but that names or other identifying information may not be disclosed.
- Child Molestation. Records concerning the identity of victims of child molestation and sexual assault are confidential pursuant to R.I. Gen. Laws § 11-37-8.5. Disclosure of identifying information may only be made by court order to the defendant charged with the assault and those directly involved with the preparation of the defense. R.I. Gen. Laws § 11-37-8.5(c).
- Criminal Convictions. R.I. Gen. Laws § 12-19.1-2 (2000) and 12-19.1-3 require the court clerks to maintain and keep for public inspection a register of all criminal convictions in chronological order.
- Family Court. R.I. Gen. Laws § 8-10-21 requires that records of the Family Court shall be public records, but for records of hearings in matters set forth in § 14-1-5, which includes proceedings concerning delinquent, wayward, dependent, neglected, and mentally defective or disordered children, adoption, paternity, and child marriages.
- Adoption. R.I. Gen. Laws § 8-10-21 and 23-3-15 together prohibit the inspection of records of an adoption proceeding unless disclosure is granted by an order of the court. In re Assalone, 512 A.2d 1383, 1385 (R.I. 1986); In re Christine, 121 R.I. 203, 206, 397 A.2d 511, 512-13 (1979). An order granting disclosure may be issued only upon a showing of good cause. Id. at 207, 397 A.2d at 513. In In re Christine, a natural mother sought records of the adoptive parents. In In re Assalone, an adult adoptee sought records of her natural parents. In both cases, the Court denied access based on the failure to establish good cause. Moreover, the Court in In re Assalone noted in dicta that once compelling reasons are shown, those who may be vitally affected by disclosure must be given the opportunity to intervene through a representative to defend their interest. 512 A.2d at 1390.
- Judicial Misconduct. Transcripts and determinations of the Commission on Judicial Tenure and Discipline are public documents, except where they relate to private reprimand involving a non-serious matter for which only a caution is given, in which case they are confidential. R.I. Gen. Laws § 8-16-5. Hearings before the Supreme Court which review the Commission’s recommendations pursuant to § 8-16-6 shall be open to the public, and the court’s decision shall be public and shall be published in the same manner as other decisions of the supreme court. R.I. Gen. Laws 8-16-6( c). Papers filed with and decisions of the Supreme Court on review of such reprimands are also confidential. R.I. Gen. Laws § 8-16-7.1. Evidence obtained by the Commission is confidential until it is introduced or becomes the subject of testimony at a public hearing. R.I. Gen. Laws § 8-16-13. Papers filed in judicial proceedings in aid of or ancillary to a non-public commission hearing are confidential. R.I. Gen. Laws § 8-16-13.1. The provisions in this chapter are expressly exempt from the operation of the APRA. R.I. Gen. Laws § 38-2-2(d)(20).
- Ethics Violations. The content and substance of all proceedings before adjudicative panels of the Ethics Commission shall remain confidential until a final decision is rendered. The hearing before the commission shall be open to the public but the deliberations of the Commission are confidential and not open to the public. R.I. Gen. Laws § 36-14-13(a)(5),(a)(9) and (f).
- Elderly Persons. Records pertaining to a person reported to be abused, neglected, exploited, abandoned or self-neglecting are confidential. R.I. Gen. Laws § 42-66-10. However, such records may be released in certain instances to assist in prosecutions or investigations, for the coordination of needed services, or for protection of elderly victims. Id.
- Pre-trial Services Program Records. Information supplied by a defendant in a criminal case to a representative of the pre-trial services program during the defendant's initial interview or subsequent contacts is deemed confidential under R.I. Gen. Laws § 12-13-24(a) and shall not be subject to subpoena or to disclosure without the written consent of the defendant under most circumstances. See R.I. Gen. Laws §§ 2-13-24(a)(1)-(6) for a complete list of these exceptions.
- AIDS Test Results. R.I. Gen. Laws § 23-6.3-7, 23-6.3-8 require health care providers, public health officials, and any other person who maintains records containing information on AIDS test results to maintain the confidentiality of such records.
- Nursing Home Patients. Under R.I. Gen. Laws § 23-17.5-14, a nursing home patient's right to privacy and confidentiality extends to all records pertaining to that patient. Accordingly, release of any records is subject to the patient's approval in most instances.
- Abused and Neglected Children. R.I. Gen. Laws § 40-11-13 mandates that all records concerning reports of child abuse and neglect shall be kept confidential. Any employee or agent of the Department of Human Services found violating this provision shall be deemed guilty of a misdemeanor, and shall be fined not more that two hundred ($200.00) dollars or shall be imprisoned for not more that six (6) months or both. See R.I. Gen. Laws § 40-11-13(b).
- Income tax return information. The amount of income or other information revealed in a return or report is not to be disclosed. S.C. Code Ann. § 12-7-1680.
- Agent Orange medical information. The identity of a veteran providing medical information to the S.C. Agent Orange Advisory Committee regarding exposure to chemical agents is confidential. S.C. Code Ann. § 44-40-50(B).
- Business information provided to State Crop Pest Commission. S.C. Code Ann. § 46-9-30.
- Child abuse and neglect reports. Reports made and information collected by the Department of Social Services and the Central Registry of Child Abuse and Neglect are confidential. S.C. Code Ann. § 20-7-690(A).
- Cooperative association reports. Annual reports by cooperative associations to the Commissioner of Agriculture are confidential. S.C. Code Ann. § 33-45-190.
- Crime victim's compensation fund records. The records of the S.C. Crime Victim's Compensation Fund are exempt from the Freedom of Information Act. S.C. Code Ann. § 16-3-1240.
- Controlled substance research subject. The names and other identifying characteristics of persons who are the subjects of research on the effects of controlled substances may be withheld. S.C. Code Ann. § 44-53-290(g).
- Forest products production reports. Reports by forest products producers for assessment purposes are not to become part of the public record. S.C. Code Ann. § 48-30-70.
- Patient-identifying information obtained by health agency. The state Department of Health and Environmental Control has the authority to obtain access to medical records and information in the possession of hospitals, physicians and registries, but the patient-identifying information contained in such records is not subject to disclosure. S.C. Code Ann. § 44-1-110 and 44-20-340.
- Records of state mental health patients. Records of patients receiving treatment in state mental health facilities are confidential. S.C. Code Ann. § 44-22-100.
- Records of infants and toddlers with disabilities. Records obtained by the Interagency Coordinating Council under the Infants and Toddlers with Disabilities Act are confidential. S.C. Code Ann. § 44-7-2590.
- Vulnerable adult abuse records. Agencies investigating complaints of abuse or neglect of vulnerable adults are not to publicly disclose information contained in investigative files. S.C. Code Ann. § 43-35-60.
- Sexually transmitted diseases. Records and information held by the state health agency relating to known or suspected sexually transmitted diseases are confidential. S.C. Code Ann. § 44-29-135.
- Birth and death certificates. Birth certificates are available only to the person, a parent, guardian or legal representative. S.C. Code Ann. § 44-63-80. For the first fifty years following a death, a death certificate may be released only to the deceased's immediate family, legal representative or other persons demonstrating a need to establish a personal or property right. S.C. Code Ann. § 44-63-84.
- Criminal pretrial intervention records. Information regarding the identity of an applicant for participation in a criminal pretrial intervention program may not be released "as public knowledge." S.C. Code Ann. § 17-22-130.
- Termination of parental rights. All papers and records relating to the judicial termination of parental rights are confidential and the court records of such a proceeding are to be sealed. S.C. Code Ann. § 20-7-1580.
- Police-worn body camera data. The 2015 law specifically provides that data recorded by those cameras “is not a public record subject to disclosure under the Freedom of Information Act.” S.C. Code Ann. § 23-1-240
Abortion trial information, specifically patient’s name (SDCL §§34-23A-7.1 and 34-23A-23);
Absence excuse certificates of students “alternatively schooled” (SDCL §13-27-9);
Adoption records (SDCL §§25-6-15.1, 26-4-9.1, and 28-1-31);
Adult services program and aging program records kept by department of social services (SDCL §28-1-45.1);
Affidavit of consent to disbarment (SDCL § 16-19-66);
Alcohol and drug abuse treatment facilities’ records (SDCL § 34-20A-90);
Banking commission records generally open, but subject to division of banking directors’ discretion (SDCL § 51A-2-35);
Board of accountancy peer review records (SDCL §36-20A-15);
Board of technical professions examination, application and investigation material (SDCL §36-18A-24);
Business information (trade secrets, commercial and financial information concerning operations) received by economic development board/office and Science and Technology Authority (SDCL §§1-16G-11 and 1-16H-28);
Business information (trade secrets, commercial and financial information concerning operations) received by economic development finance authority (SDCL §1-16B-14.1)
Campground and lodging registration information (SDCL §34-18-21);
Child support enforcement case records, including obligor’s bank records, (SDCL §§25-7A-56.6 and 56.9 and SDCL §28-1-68);
Child welfare agency records regarding children and their families (SDCL §26-6-20);
Commercial feed trade secrets (SDCL §39-14-70);
Commercial fertilizer tonnage information furnished secretary of agriculture (SDCL §38-19-12);
Communicable disease reports (SDCL §§34-22-12, 12.1 and 12.2);
County fair board contracts with performers may be kept confidential for 60 days (SDCL §7-27-20);
Court services records (SDCL §23A-27-47);
Crime victim records obtained by department of social services under crime victim compensation program (SDCL §23A-28B-36);
Crime victim’s notification of wish to participate in certain phase(s) of case (SDCL §23A-28C-2);
Criminal identification, intelligence, investigative and statistical information (SDCL §23-5-10,11,17; SDCL §23-6-16);
Cruelty to animal report may be confidential (SDCL §40-1-30);
Data or financial information made or received by Secretary of Agriculture with respect to state beef program (SDCL § 39-24-5);
Division of insurance files and records (SDCL §§58-3-22, 58-4-44, 58-23A-6, 58-29B-30, and 58-29D-9);
Division of insurance internal memos and telephone notes and medical records in general (SDCL §58-4-45);
DNA records and samples filed with state laboratory (SDCL §23-5A-23);
Drug screening test results of applicants for “safety-sensitive” law enforcement positions (SDCL §23-2-67);
Employment records obtained by the secretary of labor in administration of unemployment compensation law (SDCL §61-3-4);
Gaming commission records and information concerning gambling applicants/licensees in Deadwood (SDCL §42-7B-58);
Guardianship preliminary evaluations and financial information (SDCL § 29A-5-207,311,508);
Health care services arbitration panel — records of proceedings confidential until entry of judgment (SDCL § 21-25B-24);
Health professionals diversion program records (SDCL § 36-2A-12);
Hospital licensing and inspection information received by the department of health (SDCL § 34-12-17);
Information gathered by department of labor in connection with worker’s compensation cases (SDCL § 62-6-5).
Information in court record not accessible under federal law, state law, court rule or case law (SDCL §15-15A-7);
Insurance fraud prevention unit’s files and records (SDCL §58-4A-12);
Insurance holding company information received by director of the division of insurance in the course of examination or investigation (SDCL §58-5A-41);
Investigative materials related to discrimination complaints filed with State Commission of Human Rights (SDCL §20-13-32.2);
Juvenile delinquency case records prepared by court services officers (SDCL §26-7A-120);
Juvenile delinquency court records (SDCL §§26-7A-37 and 38);
Medical records inspected by board of medical and osteopathic examiners (SDCL §36-4-22.1);
Medical research information obtained by the department of health, state medical association, hospital staffs, etc. in the course of medical study (SDCL §34-14-1);
Mental health records, including those of law enforcement (SDCL §§27A-12-25, 25.1, 27A-12-26, and 26.1);
Mental retardation records (SDCL §27B-8-28);
Mineral lessee’s records furnished to or inspected by commissioner of school and public lands (SDCL §5-7-58);
Mining permit application information filed with state agencies (SDCL §45-6B-19);
Names of victims included in otherwise public sex offender registration records (SDCL §22-22-40);
Neglected, abused child reports (SDCL §26-8A-13);
Original birth certificates when new certificate has been issued (SDCL §§34-25-16.4,16.5);
Parental relations termination proceedings files and records (SDCL §25-5A-20);
Patient information received by ambulance service (SDCL §34-11-5.1);
Pesticide formulas (SDCL §38-20A-15);
Prearranged funeral trust contract reports filed with board of funeral service (SDCL §55-11-9);
Public assistance information filed with the department of social services (SDCL §28-1-29);
Public library records containing identification information (SDCL §14-2-51);
Records sealed by statute or court order, impounded or communicated in camera, offered in grand jury proceedings or included in presentencing reports, dependency cases or psychiatric reports” (Code of Judicial Conduct (Appendix to SDCL §16-2));
State agency information related to investigation, audit or examination of private entity (SDCL §§1-27-29,30); disclosure is a Class 1 misdemeanor (SDCL §1-27-32);
State agency information that is “derogatory to a person” (SDCL §1-26-2);
State fair commission’s contracts and negotiations with entertainers (SDCL §1-21-17);
State farm mediation board records (SDCL §54-13-18);
State lottery records, including applications, credit/security checks, audit work papers, licensees tax returns (SDCL §42-7A-50);
Tax return records and lists of taxpayers, licensees and applicants (SDCL §10-1-28.2, 28.3);
Test hole information in mineral exploration permit filings confidential for 2 years (SDCL §45-6C-14,15);
Trade secrets and financial information contained in request for financial assistance for water management or waste management business filed with department of environment and natural resources (SDCL §46A-1-98);
Trade secrets of hazardous waste disposal facility (SDCL §34A-11-22);
Trade secrets of owner/operator of air contaminant source (SDCL §34A-1-14);
Trade secrets of owner/operator of water contaminant source (SDCL §34A-2-94);
Trade secrets or financial information provided by business in request for financial assistance from municipal corporation or economic development corporation (SDCL §9-34-19);
Trust company information (SDCL §51A-6A-2);
Uranium exploration permit filings (SDCL §§45-6D-11, 15, 40, 42 and 45);
Various corporate records obtained or required under Uniform Securities Act, including private party information, trade secrets, or records obtained during audit, inspection or investigation (SDCL §47-31B-607);
Veterans’ files compiled by state agencies in connection with claims for benefits (SDCL §33-16-23);
Welfare fraud investigative records (SDCL §28-1-80);
Worker’s compensation fraud investigation records (SDCL §62-4-49);
In addition to the exemptions provided in the Act itself, more than 300 other statutes and court rules designate certain records confidential. In order to override the Act, the legislature must enact a statute that exempts the material. Memphis Publishing Co. v. Holt, 710 S.W.2d 513, 514 (Tenn. 1986) (holding that neither the expungement statute nor Rule 16(a)(2) of Tenn. R. Crim. P. was authority for denying access to closed police investigative files). But see Appman v. Worthington, 746 S.W.2d 165 (Tenn. 1986) (Tenn. R. Crim. P. 16(a)(2) was sufficient to deny access to investigative files while investigation was in progress).
The Work Product Doctrine, Rule 26.02(3) of the Tennessee Rules of Civil Procedure, protects certain documents and papers prepared by an attorney in anticipation of litigation or in preparation for trial. This doctrine extends to reports or investigations made by, or on behalf of any party, where such documents have been prepared in anticipation of litigation or in preparation for trial. Cf. Arnold v. City of Chattanooga, 19 S.W.3d 779 (Tenn. Ct. App. 1999) (City waived work product protection for a report prepared by city attorney by making the report a focal point at two public meetings). The fact that a document may have been created before a complaint was actually filed does not exempt it from the scope of the work product doctrine. Id. The possibility of avoiding litigation would not render the document any less "work product" created in anticipation of litigation than if the suit had already been filed. An attorney and client should not be disadvantaged simply because they were hoping to settle a case without filing a suit. Id. Documents considered work product may be protected from discovery under the Public Records Act. However, the holder of the documents may waive their confidentiality. One way confidentiality may be waived is if the party uses the documents to further its cause offensively, as a "sword," and also asserts the benefit of privilege as a "shield." Id. See also Coats v. Smyrna/Rutherford County Airport, 2001 Tenn. App. LEXIS 911 (Tenn. App. Dec. 13, 2001) (records concerning a lien on airport property were not protected by attorney client privilege or work product doctrine.)
In 1995, the Texas legislature added two other “exclusions:” requests from individuals who are imprisoned or confined in a correctional facility; and copies of information in resource materials made available to the public, such as library books, and inspection and copying of information in books or publications commercially available to the public that are purchased or acquired by the governmental body for research purposes. Tex. Gov’t Code §§ 552.027-.028. However, a governmental body must allow the inspection of such information if it is part of or referred to in a rule or policy of a governmental body. Tex. Gov’t Code § 552.027(c).
In 1999, the Texas legislature further limited a governmental body’s obligation to disclose information so as to not require disclosure of information in response to repetitious or redundant requests although the governmental body must certify to the requestor that all or part of the requested information was previously furnished to the requestor or made available. Tex. Gov’t Code § 552.232(b).
GRAMA states that records may be exempt from disclosure if access is otherwise restricted by statute, by federal regulation, or by court rule. See Utah Code § 63G-2-201(3)(b). Examples of records to which access is restricted include the following:
1. Health and human service records.
a. Records concerning an individual’s eligibility for certain welfare benefits are private. Id. § 63G-2-302(1)(a).
b. Health Department records may be provided to such authorized persons as local health departments, the Divisions of Substance Abuse and Mental Health, the Utah Medical Association, peer review committees, etc., but otherwise are not subject to GRAMA. Id. § 26-25-1(2).
c. Communicable disease information relating to an individual is confidential and may be released only in accordance with enumerated requirements. Id. § 26-6-27.
d. Health Care Facility License Department information is available to the public, except that information shall not be disclosed if disclosure would constitute an unwarranted invasion of privacy or if it identifies any individual other than the owner or operator of a health care facility. Id. § 26-21-9(2). Information received by the department from a health care facility pertaining to the facility’s accreditation by a voluntary accrediting organization shall be private. Id. § 26-21-9(3).
e. Child abuse reports are not subject to GRAMA but may be available to authorized persons. Id. § 62A-4a-412(1).
f. Inquiries made regarding missing persons are confidential and are only available to law enforcement agencies, agencies responsible for the child, the courts, the office of the public prosecutor, a person engaged in bona fide research when approved by the director of the division, or other authorized persons. Id. § 53-10-204.
g. The Department of Health may not disclose any identifiable health data unless the individual, his next of kin if deceased, his parent or guardian, or a person holding a power of attorney on his behalf has consented to the disclosure, or unless the disclosure is to a state or government entity or to an individual or organization for certain confidential research or statistical purposes, or to a government entity for the purpose of conducting an audit or evaluation. Id. § 26-3-7; see also id. § 26-3-10 (requiring that the Department of Health protect the security of its identifiable health data).
h. The Utah Health Advisory Council shall observe confidential requirements placed on the Department of Health in the use of provided information. Id. § 26-1-7.5(7).
i. An individual who desires to examine a payment for services offered by the Division of Family Services shall sign a statement using a form prescribed by the division and shall indicate that the individual is a taxpayer and a resident, and that the individual will not use the information for commercial or political purposes. Id. § 62A-4a-112(1). In addition, the Division of Family Services “shall establish policies and rules to govern the custody and disclosure of confidential information, as well as to provide access to information regarding payments for services offered by the division.” Id. § 62A-4a-112(2). The statute does not prohibit the Division of Family Services and its agencies from “making special studies or from issuing or publishing statistical material and reports of a general character.” Id. § 62A-4a-112(3). The Division also may release information to local, state, and federal agencies. The statute states that access to the Division of Family Services records shall be governed by GRAMA. Id. § 62A-4a-112.
j. A pharmacist may not release any information contained in a prescription or patient’s medication profile to anyone except federal or state drug enforcement officers and their agencies, the patient himself, the patient’s legal representatives, a third-party payment program, a pharmacist or physician providing professional services to the patient, or a pharmacy patient’s attorney upon written authorization. Id. § 58-17b-604(2), (4).
k. A mental health therapist may not disclose any confidential communications with a patient without the express consent of the patient, of the patient’s parent or legal guardian, or of the patient’s authorized representative. Id. § 58-60-114(1). A therapist may disclose confidential communications if permitted or required to do so under a state or federal law, rule, regulation, or order, under an exemption from evidentiary privilege, or under a generally recognized professional or ethical standard. Id. § 58-60-114(2).
l. Information obtained, or complaints reviewed by, an ombudsman under the Long-term Care Ombudsman Program shall be kept confidential unless the complainant or elderly resident, or a legal representative of either, consents in writing to the disclosure; a court orders the disclosure; or the disclosure is made to an authorized agency. Id. § 62A-3-207. Unauthorized disclosure of any confidential information submitted pursuant to the Long-term Care Ombudsman Program is a Class B misdemeanor. Id. § 62A-3-208.
m. In any proceeding to commit involuntarily a mentally retarded individual to a mental retardation facility, the court may exclude from the hearing all persons not necessary to conduct the proceeding, but the individual's attorney shall have access to all documented information gathered on the individual at the time of and prior to the hearing. Id. § 62A-5-312(11), (12).
n. A physician or a surgeon cannot, without the patient’s consent, be examined in a civil action as to information acquired by the doctor while attending a patient and that was necessary to enable the doctor to prescribe or act for the patient. Id. § 78B-1-137(4); see also Utah R. Evid. 506.
o. A patient or a patient’s personal representative may inspect or receive a copy of the patient’s records from a health care provider when the health care provider is governed by the Standards for Privacy of Individually Identifiable Health Information. When the health care provider is not governed by Standards for Privacy of Individually Identifiable Health Information, “a patient or a patient’s personal representative may inspect or receive a copy of the patient’s records unless access to the records is restricted by law or judicial order.” Id. § 78B-5-618.
p. A person who discloses or uses personally identifiable information obtained from state sources concerning individuals applying for vocational rehabilitation services is guilty of a misdemeanor, unless the individual consents to such disclosure. Id. § 35A-13-106.
2. Health insurance records.
a. Auditors performing state-ordered insurance audits of an organization shall have access to patients’ medical records, but such information shall remain confidential. See Utah Code § 31A-8-404.
b. Medical records of enrollees of an organization and annual audits are to be kept confidential, unless otherwise ordered by a court. See id. § 31A-8-405.
c. Health insurance enrollees’ medical records are confidential. See id. § 31A-22-617(4)(c).
d. Third Party Administrators’ records, which include trade secrets or the identity of policyholders, are confidential, except that the insurance commissioner may use such information in any proceeding against the administrator. See id. § 31A-25-302(3).
e. All records pertaining to a hearing under the Delinquency Administrative Action Provisions are confidential, with some exceptions. See id. §§ 31A-27-503, -504.
3. State and local miscellaneous records.
a. Alternative Dispute Resolution records are confidential. See Utah Code § 78B-6-208(5).
b. Every appointed or elected officer or municipal employee who is also an officer, director, agent, employee, or owner of a substantial interest in any business entity that is subject to the regulation of the municipality must disclose the position held by the officer and the nature and value of his interest upon first becoming appointed, elected, or employed, and at any time thereafter if his position in the business entity changes significantly or if the value of his interest increases significantly. The municipality’s mayor shall report the substance of all such disclosure statements to the members of the municipality’s governing body or may provide to the members of the governing body copies of the disclosure statements within 30 days after the mayor receives the statement. See id. § 10-3-1306.
c. A public officer may not be examined as a witness about communications made to him or her in official confidence when the public interests would suffer by the disclosure. See id. § 78B-1-137(5).
d. No elected or appointed county officer shall disclose confidential information acquired by reason of his or her official position. See id. § 17-16a-4(1)(a).
e. The governor shall deliver a “confidential draft copy” of his proposed budget recommendations to the Office of the Legislative Fiscal Analyst. Id. § 63J-1-201(1).
f. “The governing body of each municipality shall keep a journal of its proceedings. The books, records, accounts and documents of each municipality . . . shall be open and available to the public during regular business hours for examination and copying.” Id. § 10-3-603.
g. The governing body of each city having 65,000 or more inhabitants must provide the results of an annual examination of the city’s finances to the city newspapers and to any person upon request. See id. § 10-3-604; see also id. § 10-2-301 (describing the classifications of municipalities based on population numbers of inhabitants).
h. Unless otherwise classified as a private record, “all instruments of record and all indexes [in the county recorder’s office] are open to public inspection during office hours.” Id. § 17-21-19(1). “Upon payment of the applicable fee, a person may obtain copies of a public record.” Id. § 17-21-19(2).
i. Maps of boundary surveys in the county surveyor’s office are public records. See id. § 17-23-17(2)(c).
4. Taxation and revenue records.
a. State tax returns are to be kept confidential, except by court order or in other official proceedings. See Utah Code § 59-1-403. For all taxes except individual income tax and corporate franchise tax, the commission may, by rule, provide the identity and other information of taxpayers who failed to file tax returns or to pay the tax due. Id. § 59-1-403(3)(c).
b. Under the Multistate Tax Compact, information obtained in an audit is to be kept confidential and available only to party states, their subdivisions, or the United States. See id. § 59-1-801.5 (Art. VIII, sec. 6).
c. Property tax audit reports are confidential, although the statistical information based on the audits may be public. See id. § 59-2-705(1).
d. Sales and Use tax returns and other information are confidential under Utah Code section 59-1-403. See id. § 59-12-109.
e. The records of ownership, registration, transfer, and exchange of most Revenue Bonds, and of persons to whom payment is made with respect to such obligations, generally are classified as private or protected under GRAMA. See id. § 63B-1b-402(8)(b).
5. Records of other governmental agencies.
a. All records of the Utah Horse Racing Commission are subject to GRAMA. Utah Code § 4-38-106.
b. Financial reports filed with the lieutenant governor pursuant to the Lobbyist Disclosure and Regulation Act are public. Id. § 36-11-106(2).
c. Records of the Division of Motor Vehicles that identify nonconforming vehicles are public. Id. § 41-1a-522(2).
d. Abstracts of judgment received by the Driver License Division for violations of motor vehicle laws shall be classified and disclosed by the division pursuant to Utah Code Section 53-3-109. Id. § 77-7-25(6).
e. Notices of a juvenile court’s decision regarding a minor charged with a violent felony may be provided to a district superintendent or to the school or transferee school “for purposes of the minor’s supervision and student safety.” Id. § 78A-6-113(4)(e)(ii).
f. Records provided by any pawnbroker or pawnshop to a law enforcement agency in accordance with Utah law are classified as protected under GRAMA. See id. § 63G-2-305(46).
Two additional statutory exemptions address unique concerns raised by hazardous wastes and endangered species.
Hazardous Waste. Disclosure of information and documents concerning facilities and sites for the treatment, storage and disposal of hazardous wastes is governed in “substantially the same manner” as under RCRA, 42 U.S.C. chap. 82, and the federal FOIA, 5 U.S.C. § 552 et seq. See 1 V.S.A. § 316(k).
Endangered Species. “The Secretary shall not disclose information regarding the specific location of threatened or endangered species sites except that the Secretary shall disclose information regarding the location of the threatened or endangered species to:
(1) the owner of land upon which the species is located;
(2) a potential buyer of land upon which the species is located who has a bona fide contract to buy the land and applies to the Secretary for disclosure of threatened or endangered species information; or
(3) qualified individuals or organizations, public agencies and nonprofit organizations for scientific research or for preservation and planning purposes when the Secretary determines that the preservation of the species is not further endangered by the disclosure.”
10 V.S.A. § 5410.
The Virginia Code contains dozens of specific statutory provisions operating outside of the Act that make information confidential. This subsection identifies important or frequently used provisions that are not cross-referenced in the Act. It is always wise to perform an electronic search of the entire Code to confirm that information is not subject to a statute that makes it non-public.
Attorney disciplinary matters, governed by Rules of the Supreme Court of Virginia Part 6 § IV, Par. 13-30.
Circuit Court Judge evaluation program, governed by Rules of the Supreme Court of Virginia, Rule 9:2.
Concealed firearms carry information, governed by Va. Code Ann. §§ 18.2-308.02.D, 18.2-308.07.C.
Department of Elections registered voter and voter lists, governed by Va. Code Ann. §§ 24.2-405, 406.
Department of Motor Vehicles records, governed by Va. Code Ann. § 46.2-208.
Fusion Intelligence Center Information, governed by Va. Code Ann. § 52-48.
Government Data Collection and Dissemination Practices Act, found at Va. Code Ann. § 2.2-3800 et seq.
Insurance code provisions governing confidential information are found throughout Title 38.2.
Personal Information Privacy Act, found at Va. Code Ann. § 59.1-442 et seq.
Tax information is protected by several provisions in Title 58.1; the general provision protecting such information is Va. Code Ann. § 58.1-3.
The Public Records Act also exempts from disclosure any record for which disclosure is prohibited by another statute. RCW 42.56.070(1). There are dozens of such “other statutes” under state and federal law. Examples include:
- Criminal Records Privacy Act. The Act restricts access to pre-conviction and nonconviction records generally but not post-conviction records. Records of entry are accessible on a chronological basis, and records of those currently in the criminal justice system are not exempt. RCW 10.97.
- Juvenile Records. Juvenile offender hearings are presumed open (but may be judicially closed for good cause). RCW 13.40.140(6), 13.50.010 and .050(2), (11). Juvenile dependency hearings and records, on the other hand, are presumptively closed. RCW 13.34.110. Court records other than the official file in a juvenile offender proceeding may not be released, except to those engaged in legitimate research for educational, scientific or public purposes where the anonymity of those mentioned in the records is preserved.
- Coroner Records. Coroner records that identify the deceased may be withheld for 48 hours or until the next of kin is notified, although the official may exercise discretion to release the records earlier to aid in identifying the deceased. RCW 68.50.300.
- Trade secrets. The Uniform Trade Secret Act (RCW ch. 19.08) operates as an “other statute” exemption. The Washington Supreme Court has held that the Public Records Act “is simply an improper means to acquire knowledge of a trade secret.” Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 884 P.2d 592 (1994). As a general matter, a matter is protected as a trade secret if it derives economic value from not being generally known or readily ascertainable by others, and is the subject of reasonable efforts to maintain its secrecy.
As stated, statutory provisions preserve the confidentiality of certain court records such as divorce (W. Va. Code § 48-2-27), adoption (W. Va. Code § 48-4-10), and certain juvenile proceedings (W. Va. Code § 49-5-17); tax information (W. Va. Code § 11-10-5d); etc. However, for any other state statute to nullify the public's right of access to public records, the statute must "specifically" exempt the particular information from disclosure, W. Va. Code § 29B-1-4(5), and "the party claiming exemption . . . has the burden of showing the express applicability of such exemption to the material requested." Syl. Pt. 2, Daily Gazette v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996). See e.g., Syl. Pt. 7, Garden State Newspapers v. Hoke, 520 S.E.2d 186 (W. Va. 1999) (recognizing "a compelling public policy of protecting the confidentiality of juvenile information in all court proceedings").