C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure
Criminal judicial records are subject to federal constitutional rights of access and particular required procedures for closure of such records. See Ex parte Birmingham News Co., 624 So. 2d 1117, 1132-35 (Ala. Crim. App. 1993) (required procedure for closure of criminal records set forth, applying First Amendment right of access); Ex parte Consol. Publ’g Co., 601 So. 2d 423, 433-34 (Ala. 1992).
Civil judicial records are subject to common law right of access, see Brewer v. Watson [Brewer I], 61 Ala. 310, 311 (1878), and access under Alabama's Public Records Law, see Holland v. Eads, 614 So. 2d 1012, 1015 (Ala. 1993). The Holland court held that a motion to seal civil court records can be granted only after the trial court (a) conducts a hearing and (b) makes:
a written finding that the moving party has proved by clear and convincing evidence that the information contained in the document sought to be sealed:
(1) constitutes a trade secret or other confidential commercial research or information; or
(2) is a matter of national security; or
(3) promotes scandal or defamation; or
(4) pertains to wholly private family matters, such as divorce, child custody, or adoption [citing Holcombe v. State ex rel. Chandler, 240 Ala. 590, 200 So. 739 (1941); Ex parte Balogun, 516 So. 2d 606 (Ala. 1987)];
(5) poses a serious threat of harassment, exploitation, physical intrusion or other particularized harm to the parties to the action; or
(6) poses the potential for harm to third persons not parties to the litigation.
614 So. 2d at 1016 (citations deleted; emphasis added).
A record including documents relating to a settlement agreement could not be sealed because the party seeking to have it sealed failed to show extraordinary circumstances outweighing the presumption for openness. Byrd v. First Real Estate Corp., CV-95-N-3087-S (N.D. Ala. 1998).
Nonjudicial public records in Alabama are subject to the following categories of court-derived and common law exclusions — which are precatory, not mandatory — that may justify keeping otherwise-public records confidential, despite the absence of an express statutory exclusion to the Public Records Law:
1. When undue interference or hindrance in the discharge of a public officer's duties would result. See Holcombe v. State ex rel. Chandler, 240 Ala. 590, 597, 200 So. 739, 746 (1941); see also Munger v. State Bd. for Registration of Architects, 607 So. 2d 280, 284 (Ala. Civ. App. 1992); Birmingham News Co. v. Hornsby, CV 94-103-TH (Cir. Ct. Montgomery Cnty., Ala., Mar. 18, 1994) (access to Alabama Department of Human Resources Final Decision in child abuse/neglect case denied because disclosure would unduly interfere with efficient administration of duties of the Department by chilling public's willingness to report allegations of abuse); Op. Att'y Gen. Ala. No. 1988-079 at 5 (Dec. 16, 1987); 190 Op. Att'y Gen. Ala. 33, 33 (Mar. 7, 1983).
2. When speculation or idle curiosity is the sole purpose of the request. Holcombe v. State ex rel. Chandler, 240 Ala. 590, 597, 200 So. 739, 746 (1941). As early as the Holcombe decision, however, the media were said to have such a legitimate interest in public records that this exclusion would not apply to media requests. 240 Ala. at 597-99. The "speculation or idle curiosity" exclusion has its roots in the common law principle barring requesters who do not have a "proper purpose" for their request. See Blankenship v. City of Hoover, 590 So. 2d 245, 247-48 (Ala. 1991). The "proper purpose" exclusion has, fortunately, become greatly attenuated and probably now would bar access only to those who sought access to the records in order to destroy or despoil them. See 590 So. 2d at 249-50.
3. Recorded information received in confidence by a public officer. See Stone v. Consol. Publ'g Co., 404 So. 2d 678, 681 (Ala. 1981) (a precatory, not mandatory, exclusion; subject to judicial rule of reason); see also Tuscaloosa News v. Garrison, No. CV-1999-408 (Cir. Ct. Tuscaloosa Cnty., Ala., May 31, 2000) (ruling delayed for a determination on whether resumes for school board members had been submitted under a promise of confidentiality; the court indicated those resumes so submitted would not be subject to disclosure); Birmingham News Co. v. Muse [Muse II, 2d appeal], 669 So. 2d 138, 139 (Ala. 1995) (access to Auburn University's response to NCAA letter of inquiry held properly denied where disclosure would result in breach of numerous promises of confidentiality to participants in response); 200 Op. Att'y Gen. Ala. 25, 26 (Aug. 20, 1985) (information regarding inmates that should not be public includes "information received in confidence from law enforcement agencies"); 227 Op. Att'y Gen. Ala. 42, 48 (June 3, 1992) ("[A]ddresses and telephone numbers received [by the fire district from residents] under a promise of confidentiality should not be . . . released".).
But see Bedingfield v. Birmingham News Co., 595 So. 2d 1379, 1381 (Ala. 1992) (need for confidentiality of communications in internal audit will not be presumed as necessary to ensure that public officials will be truthful); Birmingham News Co. v. Muse [Muse II, 1st appeal], 638 So. 2d 853, 861 (Ala. 1994) ("If this Court allowed a promise of confidentiality to end the inquiry, any state official could eliminate the public's rights under the Public and Private Writings Act.") (Houston, J., concurring in part and dissenting in part); Consol. Publ'g Co. v. Smith, CV 92-500197 (Cir. Ct. Calhoun Cnty., Ala., Oct. 16, 1992):
The promise of confidentiality not to disclose the terms of [a settlement] agreement [between former City employees and the City] is not sufficient to preclude disclosure . . . . Upholding a pledge of confidentiality under these circumstances would be contrary to public policy because it would allow an office policy of [the City's] insurance carrier to circumvent the Open Records Law when the records would otherwise be open.
221 Op. Att'y Gen. Ala. 24, 26-27 (Oct. 24, 1990) ("[W]hen public policy considerations in favor of disclosure are weighed against requests [by applicants for county administrator's position] to keep a resume confidential, the presumption in favor of disclosure outweighs a request of confidentiality unless the resume contains sensitive material, the release of which would cause undue harm or embarrassment to the applicant.").
4. Sensitive personnel records. See Stone v. Consol. Publ’g Co., 404 So. 2d 678, 681 (Ala. 1981) (a precatory, not mandatory, exclusion; subject to judicial rule of reason); see also Advertiser Co. v. Auburn Univ., 17 Media L. Rep. (BNA) 1907, 1909 (Cir. Ct. Lee Cnty., Ala., Mar. 29, 1990) (investigatory report by attorneys into alleged wrongdoing of public official not information "from a personnel record"; sensitivity of information sought is not dispositive); Birmingham Educ. Ass'n v. Birmingham City Bd. of Educ., CV 94-2637 at 4 (Cir. Ct. Jefferson Cnty., Ala., Nov. 15, 1995) (lists of employee names for transfer, nonrenewal of contract, cancellation of contract, suspension, or dismissal are not "sensitive personnel records" despite "potential for some embarrassment to employees whose names appear on the list"); 227 Op. Att'y Gen. Ala. 60 (June 11, 1992) (names, titles and compensation of county employees are not sensitive personnel records); Op. Att'y Gen. Ala. No. 96-00003 at 4, 1995 Ala. AG LEXIS 59 (Oct. 4, 1995) ("In general, applications, disciplinary actions, and memoranda of reprimand are documents reasonably necessary to conduct business, and thus subject to disclosure[,]" as are salary expenditure, race, current assignment, rank and type of teaching certificate, employment experience record, employee's salary, areas of endorsement, sex, date of hire, date employee attained tenure).
But see Mobile Press Register Inc. v. Jordan, CV 95-1593 at 3-4 (Cir. Ct. Mobile Cnty., Ala., June 2, 1995) (proposed organizational chart of superintendent presented to school board "as of this date is a 'sensitive personnel record'"); Blankenship v. City of Hoover, 590 So. 2d 245, 250 (Ala. 1991) (W-2 forms of public employees are sensitive personnel records in that they "would disclose whether or not an individual employee has elected to participate in income-deferral plans, insurance plans, or similar benefits which are more personal than public in nature") (quoting trial court opinion); Kendrick v. Advertiser Co., 213 So. 3d 573, 578 (Ala. 2016) (finding student financial aid records protected from disclosure by FERPA); Advertiser Co. v. Montgomery Cnty. Bd. of Educ., CV-05-389 (Cir. Ct. Montgomery Cnty., Ala., Oct. 7, 2005) (refusing to hold that names of employees put on paid administrative leave are necessarily subject to public disclosure, but recognizing that disclosure could be required in some situations); Op. Att'y Gen. Ala. No. 88-00079 at 4 (Dec. 16, 1987) ("information such as psychological evaluations, family history, religious affiliation or political opinions or activities" could be sensitive personnel records) (in dicta); 212 Op. Att'y Gen. Ala. 26, 27 (Aug. 1, 1988) (employees' home address is private matter); Op. Att'y Gen. Ala. No. 96-00003 at 4, 1995 Ala. AG LEXIS 59 (Oct. 4, 1995) (marital status, medical history, confidential recommendations for employment, and drug or alcohol testing results "will, in most cases, fall under the sensitive personnel records exception set out in Stone . . . [but] the party refusing to disclose should remember it has the burden of proving the information requested falls within an exception to the Open Records Act").
5. Records of a pending criminal investigation. See Stone v. Consol. Publ'g Co., 404 So. 2d 678, 681 (1981) (a precatory, not mandatory, exclusion; subject to judicial rule of reason); see also Ala. Code § 12-21-3.1. Public records do not become private simply because they are given to law enforcement. Water Works & Sewer Bd. v. Consol. Publ'g, Inc., 892 So. 2d 859, 866 n.4 (Ala. 2004); see also Burnham Broad. Co. v. Mobile, CV 92-2752 (Cir. Ct. Mobile Cnty., Ala., Aug. 4, 1992) (if documents sought were public records prior to being subpoenaed by grand jury, documents remain public records from the records-holder despite production of copies to grand jury).
6. Records privileged by common law. See Horne v. Patton, 291 Ala. 701, 708-09, 287 So. 2d 824, 829-30 (1973) (recognizing common law doctor-patient privilege).
The nonstatutory exceptions to the Public Records Law (often referred to as the Stone exceptions, from Stone v. Consolidated Publishing Co., 404 So. 2d 678 (Ala. 1981)), are limited by the presumptions, statutory construction, and burdens of proof that were established in Chambers v. Birmingham News Co., 552 So. 2d 854 (Ala. 1989), as follows:
a. The Public Records Law is to be liberally construed.
1. "It is clear from the wording of § 36-12-40 [the Public Records Law] that the legislature intended that the statute be liberally construed. In addition, we note, statutes intended for the public benefit are to be construed in favor of the public." 552 So. 2d at 856.
2. "[T]he judiciary has to apply the 'rule of reason.' However, it must be noted that this 'rule of reason' shall not be applied so as to hamper the liberal construction of § 36-12-40." 552 So. 2d at 856.
b. There is a presumption of disclosure under the Public Records Law.
1. "There is a presumption in favor of public disclosure of public writings and records expressed in the language of § 36-12-40." 552 So. 2d at 856.
2. "[B]ecause there is a presumption of required disclosure, the party refusing disclosure shall have the burden of proving that the writings or records sought are within an exception and warrant nondisclosure of them." 552 So. 2d at 856-57.
c. Exceptions to the Public Records Law must be narrowly construed.
1. "The exceptions set forth in Stone must be strictly construed . . . ." 552 So. 2d at 856.
2. "[T]he Stone exceptions should not come into play merely because of some perceived necessity on the part of a public official or established office policy." 552 So. 2d at 856.
3. "[W]e emphasize that these exceptions must be narrowly construed and their application limited to the circumstances stated herein, for it is the general rule, and has been the policy of this state for a number of years, to advocate open government. The Stone exceptions were not intended, nor shall they be used, as an avenue for public officials to pick and choose what they believe the public should be made aware of." 552 So. 2d at 857.
4. “[T]here is no exception under Alabama[‘s open records law] based on a public entity's own conception of relevance.” Health Care Auth. for Baptist Health v. Cent. Ala. Radiation Oncology, LLC, 292 So. 3d 623, 634 (Ala. 2019).
Two further factors weigh in the balance after a court finds that one of the Stone exceptions applies, as follows:
The exceptions set forth in Stone must be strictly construed and must be applied only in those cases where it is readily apparent that disclosure will result in undue harm or embarrassment to an individual, or where the public interest will clearly be adversely affected, when weighed against the public policy considerations suggesting disclosure.
Chambers v. Birmingham News Co., 552 So. 2d 854 (Ala. 1989) (emphasis added).
"Undue harm and embarrassment" and "adverse to the public interest" are not separate exceptions, but only factors for the court to consider after an exception to disclosure has been proven. See, e.g., Advertiser Co. v. Auburn Univ., 17 Media L. Rep. (BNA) 1907 (Cir. Ct. Lee Cnty., Ala., Mar. 29, 1990) ("The matters sought are, of course, sensitive. The disclosure of the report in this case would not be detrimental to the best interests of the public."); State ex rel. Kernells v. Ezell, 291 Ala. 440, 282 So. 2d 266 (1973), quoting and applying Excise Commission of Citronelle v. State ex rel. Skinner, 179 Ala. 654, 60 So. 812 (1912):
In the present case, . . . whatever personal embarrassments might result from the disclosure of the names of those who have signed this recommendation must be regarded as matters of private interest; and, although they might become, in some sense, matters of public concern, even so, they are wholly subordinate to that paramount public interest — the maintenance and enforcement of public law.
Id. at 660 (ordering the recommendations be disclosed) (common law case prior to Public Records Law).
But see Birmingham News Co. v. Hornsby, CV 94-103 TH (Cir. Ct. Montgomery Cnty., Ala., Mar. 18, 1994) (applying "undue harm and embarrassment" as ground for exclusion rather than balancing factor after finding ground for exclusion); see also 221 Op. Att'y Gen. Ala. 24 (Oct. 24, 1990) (applying "undue harm or embarrassment" to "sensitive personnel records" ground for exclusion); 222 Op. Att'y Gen. Ala. 48 (Mar. 20, 1991) and 223 Op. Att'y Gen. Ala. 19 (May 17, 1991) (applying "undue harm or embarrassment" to "records received in confidence" ground for exclusion); see also 223 Op. Att'y Gen. Ala. 16 (Apr. 18, 1991) (explaining "there is not a state privacy law" with respect to pistol permits on file in sheriff's office, which are public records).
The Supreme Court has recognized an "executive privilege," in Doe v. Superior Court, 721 P.2d 617 (Alaska 1986), and a "deliberative process privilege," in Capital Information Group v. Office of the Governor, 923 P.2d 29 (Alaska 1996), Gwich'in Steering Committee v. Office of the Governor, 10 P.3d 572 (Alaska 2000) ("Gwich'in "), Fuller v. City of Homer, 75 P.3d 1059, 1065 (Alaska 2003) ("Fuller I"), and Griswold v. Homer City Council, P.3d , 2018 WL 4375455, at *4-6 (Alaska, September 14, 2018). The court has ruled that these privileges are qualified, rather than absolute, and that a balancing of interests between the government and the parties seeking disclosure must be conducted. However, the court has noted that once the government has met the threshold requirements for invoking the deliberative process privilege, the burden is cast on the party seeking the records to overcome a presumption of confidentiality, and that this burden is difficult to meet. Gwich'in, 10 P.3d at 584. Also, the Court has held that the exception in AS 40.25.120(4) for records otherwise exempt from disclosure under "state law" encompasses both the state constitution and common law. In Griswold II, the Court said that although it had never addressed how the attorney-client and work-product privileges interact with the Public Records Act, the common law has long recognized the privileged nature of both. Noting that “it is clearly in the public interest for a government agency to be able to receive confidential advice from its attorneys,” the Court held “that the attorney-client and work-product privileges constitute state law exceptions to the Public Records Act.” Id. at *5. And the Court, as well as attorney general and agency rulings, have recognized that nondisclosure may be warranted in a number of circumstances due to individuals' rights under the privacy clause of the Alaska Constitution. Article I, Section 22. The AG has ruled that the privacy clause, construed together with a 1990 statute governing privacy considerations in public records, does not preclude access to the names and addresses of applicants for permanent fund dividends, even for commercial purposes. April 1, 1992, AG Op. No. 663-92-0163. The AG has suggested that the privacy clause may support establishing procedures in the Department of Labor and Workplace Development to allow individuals whose worker's compensation medical files are requested by the public to apply for a protective order. [The governor in 1991 vetoed a bill containing a provision that would have made worker's compensation medical files confidential.]
The Arizona Supreme Court has recognized three common law circumstances in which documents can be withheld: (i) confidentiality, (ii) privacy or (iii) disclosure against the best interest of the state. See Carlson, 141 Ariz. at 490, 687 P.2d at 1245. “If these interests outweigh the public’s right of inspection, the [public body] can properly refuse inspection. The [public body] has the burden of overcoming the legal presumption favoring disclosure.” See Scottsdale Unified School Dist. No. 48 of Maricopa Cty. v. KPNX Broad. Co., 191 Ariz. 297, 300, 955 P.2d 534, 537 (1998) (internal quotation marks omitted).
Arizona Courts also have on occasion looked to the exceptions contained in the federal Freedom of Information Act for guidance. Church of Scientology v. City of Phoenix Police Dep’t, 122 Ariz. 338, 340, 594 P.2d 1034, 1036 (Ct. App. 1979); see Phoenix New Times, L.L.C. v. Arpaio, 217 Ariz. 533, 539 n.3, 177 P.3d 275, 280 n.3 (Ct. App. 2008); see also Ariz. Bd. of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 258, 806 P.2d 348, 352 (1991); Salt River Pima-Maricopa Indian Cmty., 168 Ariz. at 540-41, 815 P.2d at 909-10.
Common Law Exemptions. Only the legislature can exempt records from the FOIA, and the courts are not free to fashion their own exemptions via the common law. Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968). However, public access to judicial records is governed by the common law, and the courts have inherent authority to seal their records under narrow circumstances. See Arkansas Best Corp. v. General Electric Capital Corp., 317 Ark. 238, 878 S.W.2d 708 (1994); Arkansas Dep’t of Human Services v. Hardy, 316 Ark. 119, 871 S.W.2d 352 (1994).
Administrative Regulations. Agencies may not exempt records by regulation unless expressly given that power by statute. Ark. Op. Att’y Gen. No. 92-025. See, e.g., Ark. Code Ann. § 14-51-301(b)(2)(B) & (9)(A) (municipal civil service commissions shall adopt rules protecting examinations from disclosure and copying); § 15-4-1226(b)(4) (Securities Commissioner may “[c]lassify as confidential” certain records obtained in connection with an investigation of a county or regional industrial development company); § 20-76-433(a)(1)(A) (records identifying persons participating in programs administered by the Department of Human Services “may be disclosed only as expressly authorized by law or regulation creating or implementing such programs”); § 23-2-316(b)(1) (Public Service Commission may restrict access to records “in the interest of the public” or, as to proprietary facts or trade secrets, “in the interest of the utility”). See also Ark. Code Ann. § 12-27-113(e)(2)(A) (disclosure of information in Department of Correction inmate records is unlawful “except as authorized by administrative regulation”). Administrative regulations, like statutes exempting records from the FOIA, must specifically provide for nondisclosure and will be construed narrowly by the courts. Orsini v. State, 340 Ark. 665, 13 S.W.3d 167 (2000).
Constitutional Right to Privacy. Although the FOIA provides some protection for privacy interests in the context of personnel records, it lacks a general exemption for records which, if disclosed, would constitute an invasion of personal privacy. However, the Arkansas Supreme Court has recognized a federal constitutional right to privacy which in some cases may prevent access under the FOIA. This right applies to matters that a person wants to keep and has kept private, can be kept private but for the challenged governmental action in disclosing the information, and would be harmful or embarrassing to a reasonable person if disclosed. If this test is satisfied, the question is “whether the governmental interest in disclosure under the [FOIA] outweighs the [individual’s] privacy interest in the nondisclosure of the personal matters.” McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). See Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718, opinion after remand, 371 Ark. 217, 264 S.W.3d 465 (2007) (recognizing a private individual’s standing to assert a privacy interest in the disclosure of e-mails, requiring trial court to conduct an in camera review of all e-mails a county employee exchanged with the private individual to determine if e-mails were public records under the FOIA, and affirming trial court’s ruling that the private individual had no expectation of privacy in the e-mails). See also Ark. Op. Att’y Gen. Nos. 2008-071, 98-260, 96-363, 96-308, 96-161, 93-356, 92-025, 91-208, 90-324.
The deliberative process exemption is discussed elsewhere in this guide. The California Supreme Court has recognized that the burden and expense of segregating exempt from nonexempt information or producing voluminous records may be considered under Section 6255’s balancing test. ACLU v. Superior Court, 3 Cal. 5th 1032, 1043, 221 Cal. Rprt. 3d 832, 400 P.3d 432 (2017); ACLU v. Deukmejian, 32 Cal. 3d 440, 452-53, 186 Cal. Rptr. 235, 651 P.2d 822 (1982); see also Cal. First Amendment Coal. v. Superior Court, 67 Cal. App. 4th 159, 166, 78 Cal. Rptr. 2d 847 (1998) ("A clearly framed request which requires an agency to search an enormous volume of data for a 'needle in the haystack' or, conversely, a request which compels the production of a huge volume of material may be objectionable as unduly burdensome. Records requests, however, inevitably impose some burden on government agencies. An agency is obligated to comply so long as the record can be located with reasonable effort.") (citation omitted).
Similarly, in Rosenthal v. Hansen, 34 Cal. App. 3d 754, 757, 761, 110 Cal. Rptr. 257 (1973), the court imposed a judicially created "reasonableness" standard to restrict access to public records where the request for a seven-volume, loose-leaf workbook was found to be voluminous. But see CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 909, 110 Cal. Rptr. 2d 889 (2001) (rejecting as untenable position that costs in amount of $43,000 to compile accurate list of individuals granted criminal conviction exemption to work in licensed child day care facilities was valid reason for nondisclosure).
- Court Rules.
- Limitations of Access to Court Files. A court may limit access to civil court files upon a showing by a person in interest that the public interest in access to the files is outweighed by harm to that person's privacy that access would cause. Colo. R. Civ. P. 121, 1-5. See Anderson v. Home Ins. Co., 924 P.2d 1123 (Colo. App. 1996). The court may also issue protective orders under Colo. R. Civ. P. 26(c) to restrict public access to materials obtained in discovery in civil litigation. See Bowlen v. District Court, 733 P.2d 1179 (Colo. 1987).
- Attorney Discipline Records. Records of proceedings before the Supreme Court Attorney Disciplinary Committee are confidential and not to be made public under Colo. R. Civ. P. 241.24(a). Disclosure is punishable by contempt. An exception exists if the disciplinary proceeding is based on a lawyer's public discipline in another jurisdiction or on the lawyer's conviction of a crime, Colo. R. Civ. P. 241.24(b)(1), or if the proceeding is based on allegations that have already been made public. Colo. R. Civ. P. 241.24(b)(3). The lawyer may also waive confidentiality. Colo. R. Civ. P. 241.24(b)(2).
- Grand Jury Proceedings. Grand Jury proceedings are secret until an indictment is made public or a grand jury report is issued. Colo. R. Crim. P. 6.2(a); see In re P.R. v. District Court, 637 P.2d 346 (Colo. 1981).
- Court-Made Exemptions.
Attorney-Client Privilege. Because the Open Records Act specifically authorizes denial of inspection of "privileged information" in Colo. Rev. Stat. § 24-72-204(3)(a)(IV), common law attorney-client and attorney work product privileges are incorporated into the Open Records Act. Hence, communications between attorneys and clients and materials prepared by an attorney in anticipation of litigation are not public records subject to inspection. Denver Post v. University of Colorado, 739 P.2d 874, 880-81 (Colo. App. 1987).
- Relation Between Open Records Act and Civil Discovery Rules. The Open Records Act does not limit access to any public records merely because a person is engaged in litigation with the public agency from which access to records is requested. People in Interest of A.A.T., 759 P.2d 853 (Colo. App. 1988). Thus, a court in which a civil action is pending has no jurisdiction to enter a protective order against a request under the Open Records Act. Id. And, a public agency may not deny an Open Records Act request on the ground that the rules of civil procedure governing discovery provide the exclusive means of obtaining the documents. Id. Where a party is entitled to public records, such as a personnel file, an Open Records request rather than a formal discovery request is sufficient. Ornelas v. Department of Institutions, 804 P.2d 235 (Colo. App. 1990). On the other hand, the exemptions of certain records from the public inspection provisions of the Open Records act do not ipso facto exempt such records from discovery in civil litigation. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).
In State Library v. FOIC, 50 Conn. App. 491, 717 A.2d 842 (1998), the Appellate Court held that the contract clause of the Constitution prohibited disclosure of certain transcripts. The transcripts were taken during a 1964 hearing regarding the Norwich Police Department. In 1973, the city and the public records administrator entered into an agreement which provided the state library would retain the transcripts and prevent their disclosure for 50 years. Under the facts of this particular case, the court found that the application of FOIA would not be "reasonable or appropriate" under the circumstances. Id. at 501.
1. Executive privilege. The concept of executive privilege was recognized to exclude a request for the Judicial Nominating Commission records under 29 Del. C. § 10002(o)(6) in Guy v. Judicial Nominating Commission, 659 A.2d 777 (Del. Super. 1995).
2. Social Security Numbers. The Attorney General has determined that the Social Security numbers contained in sworn payroll information required by the state prevailing wage laws could not be disclosed under the Act. Del. Op. Att’y Gen., No. 95-ib03 (Jan. 25, 1995).
3. Administrative Burden. There is some indication that the courts might deny a person disclosure to otherwise nonexempt information if the scope of the request would unduly burden the public body or if the administrative costs were too high. See Del. Op. Att’y Gen., No. 95-ib13 (Mar. 20, 1995).
4. Autopsy reports. Autopsy reports have been held exempt from the Act as investigatory files. SeeDel. Op. Att’y Gen., No. 05-ib16 (June 22, 2005); Lawson v. Meconi, 897 A.2d 740, 745 (Del. 2006) (holding that autopsy information gathered and disclosed to the police department during an investigation was confidential); 29 Del. C. § 4701. Death certificates are also similarly treated. 24 Del. C. § 3110.
5. Personal notes. Personal notes have not been subject to public access under the Act. Del. Op. Att’y Gen., No. 17-IB66 (Dec. 29, 2017); Del. Op. Att’y Gen., No. 02-ib34 (Dec. 21, 2002).
6. Draft documents. The Attorney General has opined that draft contracts under negotiation are exempt, and a deliberative process privilege exempts certain draft documents. Del. Op. Att’y Gen., No. 21-IB15 (July 1, 2021).
District of Columbia
Courts do not have the power to create additional exemptions. Barry v. Washington Post Co., 529 A.2d 319, 321 (D.C. 1987). Common law privileges are incorporated in D.C. Code Ann. § 2-534(a)(4) (allowing nondisclosure of documents that would not otherwise be available to a party in litigation).
Courts may not create common law or public policy exemptions to the Act. However, when application of the Act to specific records would violate a constitutional right, the courts must construe that statute to permit an exemption. Fla. Freedom Newspapers v. McCrary, 497 So. 2d 462 (Fla. 1st DCA 1987).
Under the Act, agencies are not required to disclose records "which by order of a court of this state . . . are specifically exempted from disclosure." O.C.G.A. § 50-18-71(a). Initially, this language was interpreted as affording courts broad discretion in particular cases to craft judicial exemptions to the Act by balancing the perceived public interest in non-disclosure against the public interest in disclosure. See, e.g., Northside Realty Ass'n v. Cmty. Relations Comm'n, 240 Ga. 432, 241 S.E.2d 189 (1978); Houston v. Rutledge, 237 Ga. 764, 229 S.E.2d 624 (1976). Since 1990, however, the Georgia Supreme Court has expressly and repeatedly held that such a balancing test may be employed only for the purpose of determining whether disclosure of the records would result in a tortious invasion of privacy. Courts are simply not empowered to craft exemptions not contained in the Act. See, e.g., Hardaway Co. v. Rives, 262 Ga. 631, 422 S.E.2d 854 (1992); Georgia Hosp. Ass'n v. Ledbetter, 260 Ga. 477, 396 S.E.2d 488 (1990); Bd. of Regents v. Atlanta Journal & Constitution, 259 Ga. 214, 378 S.E.2d 305 (1989); Hackworth v. Bd. of Educ., 214 Ga. App. 17, 447 S.E.2d 78 (1994) (privacy rights of private transportation company and school bus drivers did not outweigh the public interest in disclosure of personal records); see also Dortch v. Atlanta Journal & Constitution, 261 Ga. 350, 405 S.E.2d 43 (1991) (disclosure of employee cell phone records insufficiently offensive or objectionable to outweigh the public's interest in the operation of the government).
Probably the most significant of these is the "deliberative process privilege" protecting agencies' policymaking and adjudicative processes. See Haw. Rev. Stat. § 92F-13 (4) and (5). Also significant are evidentiary privileges shielding undiscoverable matters from disclosure. See Haw. Rev. Stat. § 92F-13(2); see also Report on Claim Against the State, OIP Op. Ltr. No. 92-14 (Aug. 13, 1992) (discussing attorney-client and attorney work product privileges as grounds supporting nondisclosure); Denial of Access to a Corporation Counsel Opinion, OIP Op. Ltr. No. F14-01 (June 5, 2014) (same).
Idaho Code § 74-113(1) provides “a person may inspect and copy the records of a public agency or independent public body corporate and politic pertaining to that person, even if the record is otherwise exempt from public disclosure.” However, the right to inspect and amend records pertaining to oneself does not include the right to review:
(a) Otherwise exempt investigatory records of a public agency or independent public body corporate and politic if the investigation is ongoing;
(b) Information that is compiled in reasonable anticipation of a civil action or proceeding which is not otherwise discoverable;
(c) The information relates to adoption records;
(d) Information which is otherwise exempt from disclosure by statute or court rule;
(e) Records of a prisoner maintained by the state or local agency having custody of the prisoner or formerly having custody of the prisoner or by the commission of pardons and parole.
Idaho Code § 74-113(3)
In Bolger v. Lance, 137 Idaho 792, 53 P.3d 1211 (2002), the Idaho Supreme Court held that the Office of the Attorney General is a law enforcement agency under the public records act and an individual does not have the right to examine investigatory records about himself during an ongoing investigation.
None. In fact, the Illinois Appellate Court, Fourth District declined to engage in a balancing test that weighs the FOIA’s policy of openness against the burden imposed by forcing a public body to comply with the Act’s requirements. See Board of Regents v. Reynard, 292 Ill. App. 3d 968, 977, 686 N.E.2d 1222, 1228, 227 Ill. Dec. 66, 72 (4th Dist. 1997) (“There is nothing in either [the Illinois Freedom of Information Act or the Illinois Open Meetings Act] that suggests a body determined to be public may be exempt from the requirements of the statutes simply because it may be a burden to comply.”).
If the document is a public record, the Access to Public Records Act applies and overrides common law prohibitions in cases where there is a conflict between a statute and the common law.
With respect to court-derived exclusions, the Act prescribes a mandatory exemption from disclosure for materials that are “declared confidential by or under rules adopted by the supreme court of Indiana.” Ind. Code § 5-14-3-4(a)(8). In 2004, the Indiana Supreme Court adopted amendments to Administrative Rule 9, which governs access to court records. The rule’s intent is to balance the societal benefits of public access with the values of individual privacy. See Commentary to Ind. Admin. R. 9(A). However, the changes which took effect on January 1, 2005, carve out exceptions to public access that have the potential to swallow the rule’s proclaimed framework of “presumptive openness.” See Ind. Admin. R. 9(G) (enumerating a non-exclusive list of information to which courts are authorized or required to bar public access). Among the myriad exemptions under the amended Rule 9 is an additional “catch-all” provision, which prohibits the disclosure of any information which is “excluded from public access by specific court order.” Ind. Admin. R. 9(G)(1)(c). Nonetheless, Rule 9 does require that, if the court prohibits access to a record, it must “use the least restrictive means and duration.” Ind. Admin. R. 9(G)(4)(d)(iv). Thus, although the potential effect of the Rule 9 amendment is quite large, more time must pass before its practical implications are known, and certain provisions of the rule may work to minimize the impact of the public access exemptions.
Additionally, Indiana recognizes several privileges against disclosure. See Ind. Code § 34-46-3-1 (recognizing privilege for attorneys, physicians, clergymen, and spouses). However, privilege in Indiana is disfavored and is strictly construed. See, e.g., Hulett v. State, 552 N.E.2d 47, 49 (Ind. Ct. App. 1990).
A public agency is not required to disclose records the disclosure of which is prohibited or restricted by federal law, state statute, or rule of the Kansas Supreme Court. K.S.A. 45-221(a)(1). Pending litigation does not itself transform Kansas Department of Transportation records into confidential or privileged communications. Kan. Att’y Gen. Op. 1995-12.
Constitutional Invasion of Privacy: Certain records may be exempt from the Public Records Act because the nature of the information is so personal that disclosure of the records would constitute an invasion of privacy in violation of article I, section 5 of the Louisiana Constitution of 1974. The leading case supporting this analysis is Trahan v. Larrivee, 365 So.2d 294 (3rd Cir. 1979) (Performance evaluation reports of public employees are exempt. The confidentiality of these evaluations serves the public interest because it promotes candidness, objectivity and accuracy. Thus, the public's "right to know" embodied in article XII, section 3 of the Louisiana Constitution of 1974 does not outweigh the privacy interests involved.). Courts generally were reluctant to identify privacy rights absent clear statutory grounding, particularly after the Louisiana Supreme Court decision in Capital City Press v. East Baton Rouge Parish Metropolitan Council, 696 So.2d 562 (La. 1997) (finding no reasonable expectation of privacy for those applying for public employment).
Historically, opinions using this analysis conclude either that there is no expectation of privacy in the requested information, or that the public's right to know outweighs the privacy interest involved. See Hilbun v. State Division of Administration, 745 So.2d 1189 (La. App. 1st Cir. 1999) (public employee has no expectation of privacy in interviews given in a state Division of Administration investigative report); Times-Picayune v. New Orleans Aviation Board, 742 So.2d 979 (La. App. 5th Cir.), writ denied, 751 So.2d 257 (La. 1999) (forms submitted in application for Disadvantaged Business Enterprise status are not exempt from disclosure); Local 100 v. Rose, 675 So.2d 11 (La. App. 1st Cir. 1996), writ denied 679 So.2d 441 (La. 1996) (public employee has no expectation of privacy in name, or home or work addresses, although he or she may request that his or her home address and telephone number remain confidential, pursuant to La. Rev. Stat. Ann. § 44:11(A)(2)-(3)); Treadway v. Jones, 583 So.2d 119 (La. App. 4th Cir. 1991) (court must determine if assertion of privacy interests is "objectively reasonable" in light of public activity involved; corporations have no predictable privacy interests); Hatfield v. Bush (II), 572 So.2d 588 (La. App. 1st Cir. 1990), writ denied, 576 So.2d 49 (1991) (district attorney's employees have no reasonable expectation of privacy with respect to their names, dates of absence, and reasons for absence, with possible exception of certain types of sick leave and reasons therefor); Gannett River States Pub. Co. v. Hussey, 557 So.2d 1154 (La. App. 2d Cir. 1990), writ denied, 561 So.2d 103 (La. 1990) (applicants for fire chief of Shreveport had no objectively reasonable expectation of privacy in applications); Plaquemines Parish Commission Council v. Delta Development Company Inc., 472 So.2d 560 (La. 1985) (public officials have a diminished right to privacy by virtue of their undertaking public office, especially concerning information that had to do with their conduct in the administration of their office and with revenues derived therefrom. But even the privacy concerns of private individuals may be overridden by the legitimate needs of the public to know. A court must attempt to balance the competing interests of the right of the public to access to information and the right of individuals to privacy. Thus, information relating to money received by public officials and their immediate families from mineral interests on public lands is ordered to be disclosed.); Op. Att'y Gen. 95-294 (information contained in an outstanding warrant is public record, and is not outweighed by privacy interests); Op. Att'y Gen. 94-87 (names and addresses of applicants for physical therapist assistant licensure who sat for testing have no expectation of privacy in their names or addresses); Op. Att'y Gen. 89-560 (disclosure of Department of Environmental Quality publication's mailing list of subscribers does not violate privacy rights of subscribers).
However, more recently, several Court of Appeal decisions and opinions of the Attorney General have used this privacy analysis to justify denying access to records: Eastbank Consol. Special Serv. Fire Prot. Dist. v. Crossen, 892 So.2d 666 (La. App. 5th Cir.), writ denied, 897 So.2d 608 (La. 2005) (determining that personnel files, including records of all disciplinary actions, reprimands, apologies or other personnel documents should remain beyond the scope of the Public Records Act); Angelo Iafrate Constr., L.L.C. v. State, 879 So.2d 250 (La. App. 1st Cir. 2004) (finding employees' expectation of privacy in employee payroll information detailing hourly wages, hours worked, deductions and net paycheck amount outweighed public interest); Local 100, SEIU v. Smith, 830 So.2d 417 (La. App. 2d. Cir.), writ dismissed, 836 So.2d 75 (La. 2003) (disclosure of employees' organizational affiliations violated employees' reasonable expectation of privacy); Broderick v. State, Department of Environmental Quality, 761 So.2d 713 (La. App. 1st Cir.), writ denied, 768 So.2d 1284 (La. 2000) (privacy interests in employee grievance records outweighs public interest in disclosure); Ellerbe v. Andrews, 623 So.2d 41 (La. App. 1st Cir. 1993) (privacy interests prevent disclosure in a civil case of a party's "rap sheet" from the State's centralized computer base); Op. Att'y Gen. 98-21 (records of incomplete investigation of sexual harassment allegation); Op. Att'y Gen. 93-445A (information regarding employees' tax exemptions, taxable wages, federal tax, FICA wages, Medicare wages, Medicare tax, state tax, and deferred compensation protected by privacy interests); Op. Att'y Gen. 00-165 (same); Op. Att'y Gen. 87-355 (information tending to disclose the income of a private individual is exempt); Op. Att'y Gen. 76-186 (personally identifiable student records are exempt); Rasier v. City of New Orleans, 222 So.3d 806 (La.App. 4th Cir. 2017) (Uber driver had reasonable expectation of privacy in his personal information that he transmitted to City, outweighing public’s right to know).
Additionally, the Louisiana Supreme Court created a novel exception to the Act by virtue of its "inherent authority," holding that bar examination model answers, any materials related to the grading guidelines or an applicants' bar examinations were also exempt from disclosure. Acknowledging that none of the exceptions enumerated under the law applied to such records and documents, the Court nevertheless reasoned that it could create an exception by virtue of the "inherent authority" vested in it by the legislature. Bester v. Louisiana Supreme Court Comm. on Bar Admissions, 779 So.2d 715 (La. 2001); see also Louisiana Supreme Court Comm. on Bar Admissions v. Roberts, 779 So.2d 726 (La. 2001) (restating rule set in Bester).
Statutory exceptions to the FOAA are to be narrowly construed in favor of public access. See, e.g., Citizens Commc’ns Co. v. Att’y Gen., 2007 ME 114 ¶ 9, 931 A.2d 503. The Law Court generally recognizes that excepting records from the public’s right-to-know is the Legislature’s prerogative. It has, however, created a judicial exception to the FOAA for documents prepared for lawful executive sessions. Blethen Me. Newspapers, Inc. v. Portland Sch. Comm., 2008 ME 69, ¶ 18, 947 A.2d 749 (“Because the executive session was lawful, documents prepared for use during the executive session and notes made during the executive session are not subject to public examination.”)
The FOAA recognizes evidentiary privileges, i.e., records "that would be within the scope of a privilege against discovery or use as evidence recognized by the courts of this State in civil or criminal trials if the records or inspection thereof were sought in the course of a court proceeding" are exempt from disclosure. 1 M.R.S.A. § 402(3)(B). Any record that would be privileged against disclosure in litigation involving a state agency is not subject to disclosure as a public record. Maine recognizes the typical common law and constitutional privileges recognized in other states. The typical privileges bearing on disclosure of public records are the privilege against self-incrimination, Moffett v. City of Portland, 400 A.2d 340 (Me. 1979), the privilege not to disclose the identity of an informer (M.R. Evid. 509), a limited lawyer-client privilege (M.R. Evid. 502), trade secrets (M.R.Evid. 507), a physician/psychotherapist potential privilege (M.R. Evid. 503), and privileges for communications to sexual assault counselors and victim and witness advocates. 16 M.R.S.A. § 53-C.
The attorney-client privilege applicable to government clients only applies to communications concerning a pending investigation, claim or action and only when disclosure would seriously impair the conduct of that investigation or proceeding. M.R.Evid. 502(d)(6); Morrell v. Bd. of Selectmen, Town of Wiscasset, Docket No. CV-01-001, (Lincoln Superior Ct., Feb. 27, 2001).
Section 4-301(a), prohibiting the disclosure of a public record that is privileged or confidential by law, is essentially a restatement of the common law attorney-client privilege, attorney work product doctrine and the grand jury secrecy doctrine. See Moberly v. Herboldsheimer, 276 Md. 211, 345 A.2d 855 (1975); 82 Op. Att'y Gen. 185 (1997) (construing the scope of the attorney-client privilege applicable to a county attorney and finding the privilege applicable to communications between the attorney and the county commissioners and their agents and employees); 62 Op. Att'y Gen. 579 (1977) (fee arrangement between Maryland Automobile Insurance Fund and defense attorney is subject to public disclosure because it is not privileged or confidential by law). Although records subject to the attorney-client privilege must be protected under § 4-301(a), the privilege may be waived by the party entitled to assert it. Caffrey v. Dep't of Liquor Control for Montgomery County, 370 Md. 272, 304, 805 A.2d 168 (2002) (where Montgomery County Charter provision effectuated limited waiver of attorney-client privilege); see also PIA Manual, at 3-5.
Section 4-301(a) also relates to the executive privilege for confidential executive communications of an advisory or deliberative nature. See Hamilton v. Verdow, 287 Md. 544, 414 A.2d 914 (1980); 66 Op. Att'y Gen. 98 (1981), Prince George's County v. Washington Post Co., 149 Md. App. 289, 318, 815 A.2d 859, 875 (2003); Stromberg Metal Works Inc., v. University of Maryland, 382 Md. 151, 161-63, 854 A.2d 1220 (2004); see also PIA Manual, at 3-5. Also, court-derived exclusions, such as the confidentiality of juvenile records, Md. Rule 11-121, and a court order to seal records override the PIA. Md. Rule 16-907(l). Moreover, although Md. Rule 19-707(f)(3) permits disclosure of information to complainants concerning the disposition of their complaints against attorneys, such information is not subject to general disclosure. Attorney Grievance Comm'n of Md. v. A.S. Abell Co., 294 Md. 680, 452 A.2d 656 (1982).
The PIA does not override other specific statutes and rules addressing production of records, such as the rules concerning grand jury secrecy. Office of the State Prosecutor v. Judicial Watch Inc., 356 Md. 118, 133, 737 A.2d 592, 600 (1999). It is doubtful that a state agency regulation or county ordinance could override the PIA disclosure requirements. See § 4-301(a) (state regulations are not among the listed categories as preempting the PIA). In fact, the Maryland Court of Appeals has established that an ordinance enacted by a local government does not constitute other "law" for purposes of § 4-301(a) and cannot by itself supply a basis for withholding a public record otherwise available under the PIA. Police Patrol Security Systems v. Prince George's County, 378 Md. 702, 710, 713-15, 838 A.2d 1191 (2003); see also PIA Manual, at 3-6. See also 86 Op. Att'y Gen. 94 (2001). Conversely, local law may not authorize release of a public record if disclosure is expressly prohibited by the PIA. Police Patrol Security Systems, 378 Md. at 712; Caffrey v. Dep't of Liquor Control for Management County, 370 Md. 272, 303, 805 A.2d 268 (2002); see also PIA Manual, at 3-7.
1. Attorney-client privilege. The Public Records Law does not abrogate the attorney-client privilege. Confidential communications between public officers and employees and governmental entities, on the one hand, and their legal counsel, on the other, “are protected under the rules of the normal attorney-client privilege” when they are “undertaken for the purpose of obtaining legal advice or assistance.” Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 870 N.E.2d 33 (2007). Because the privilege is “a matter of common law of fundamental and longstanding importance to the administration of justice,” attorney-client privileged documents may be withheld in response to a public records request, even in the absence of an applicable statutory exemption. Id. (declaring that if Legislature desired for privilege to be trumped by the public records law, “it would have made that intention unmistakably clear”). A different result, the Court said, would be to “employ the conventions of statutory construction in a mechanistic way that upends common law and fundamentally makes no sense.” Id. at 458.
Nonetheless, for the government to invoke the attorney-client privilege, it must do more than simply assert it; the government has the burden of proving the existence of the privilege and must produce “detailed indices” justifying its claim that the privilege applies to the withheld documents. Id., 449 Mass. at 450 n.9, 460, 870 N.E.2d at 38 n.9, 45-46.
2. Attorney work product.
In DaRosa v. City of New Bedford, 471 Mass. 446, 448, 30 N.E.3d 790, 793–94 (2015), Massachusetts’ highest court concluded that “opinion” work product “that was ‘prepared in anticipation of litigation or for trial by or for a party or that party's representative’ falls within the scope of exemption (d ) and therefore falls outside the definition of ‘public records’ under G.L. c. 4, § 7, Twenty-sixth.” The court also concluded “that ‘fact’ work product . . . that was prepared in anticipation of litigation or trial falls within the scope of exemption (d ), and therefore falls outside the definition of ‘public records,’ where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions.” Id.
3. Documents received in litigation, pursuant to a protective order. A public agency that is party to litigation may receive documents through the discovery process, and such documents are subject to disclosure under the Public Records Law unless an exemption applies. However, if such documents are obtained or received by the agency only subject to a court-approved and “providently entered” protective order, then they are exempt from disclosure under the Public Records Law regardless of whether the law, standing alone, would have required disclosure. See Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 214, 944 N.E.2d 1019, 1023 (2011) (construing Public Records Law so as not to “invalidate an otherwise providently entered protective order,” in order to avoid raising “serious constitutional questions” about the law’s validity).
4. Governmental privilege rejected. The Supreme Judicial Court has declined to recognize any governmental privilege broader than what is contained in the deliberative process exemption (d). See Babets v. Sec’y of Exec. Office of Human Servs., 403 Mass. 230, 239 n.8, 526 N.E,.2d 1261, 1266 n.8 (1988).
Mich. Comp. Laws Ann. §§ 15.243(l)(g) and (1)(h) also exempt records subject to the attorney-client privilege, physician-patient privilege, and other privileges "recognized by statute or court rule." See Swickard v. Wayne Cty. Med. Examiner, 438 Mich. 536, 547 (1991) (regarding physician-patient privilege).
The statute recognizing a privilege not to disclose confidential medical communications, § 13-1-21, has been said to require that certain city emergency medical services records be kept confidential. Att'y Gen. Oct. 6, 1993 to Lawrence. A statute authorizing blood tests of dead or unconscious accident victims, § 63-11-7, has been said to exempt by implication those tests from disclosure, Att'y Gen. Dec. 29, 1993 to Younger. Most medical records in a mental commitment file are exempt and not to be released absent a court order or with authorized consent. Op. Att'y Gen. December 2, 2002 to McGee.
The Montana Supreme Court has recognized that other constitutional rights must sometimes be balanced against the right to know. See Missoulian v. Montana Twenty-first Judicial Dist. Ct., 281 Mont. 285, 933 P.2d 829 (1997) (discussing balance between right to know and right to fair trial).
There are no court-derived or common law exclusions or exceptions to the public records law. But see the Nebraska Supreme Court rule dealing with sealing certain court documents in connection with closing a hearing to the public and the Nebraska Supreme Court's "Guidelines For Use By Nebraska Courts in Determining When and Under What Conditions a Hearing Before Such Court May Be Closed In Whole or In Part To The Public" (1986).
Donrey of Nevada, Inc. v. Bradshaw in 1990. 106 Nev. 630 (1990) recognized the ability of the judiciary to balance “public policy considerations when release of records other than those specifically defined as criminal history records is sought.” Id. at 635. Therefore, the Court weighed “the absence of any privacy or law enforcement policy justifications for nondisclosure against the general policy in favor of open government.” Id. at 636. Based on the specific circumstances, the Court ordered the release of the entire police investigative report.
Some recent case law regarding exemptions is outlined below:
Gilleran v. Township of Bloomfield, 227 N.J. 159 (2016)
The Supreme Court of New Jersey determined that security camera footage of municipal parking lot was exempt from access under OPRA due to the two security exemptions in OPRA.
North Jersey Media Group, Inc. v. Township of Lyndhurst et al., 229 N.J. 541 (2017)
This case dealt with access to the names of the officers involved in a fatal shooting and copies of the Use of Force Reports (UFRs), dash-cam videos, activity logs, various investigative reports, and other related items. The Supreme Court of New Jersey held, in relevant part, that because UFRs are required by an Attorney General Directive to be made, maintained, or kept on file, they fall outside of the “criminal investigatory exemption” contained in OPRA.
Paff v. Galloway Township, 229 N.J. 340 (2017)
This case involved a government record request for electronically stored information. Specifically, the request sought portions of electronic records, but not the entirety thereof. The Supreme Court of New Jersey held that such electronically stored information is itself a government record under the Open Public Records Act and remanded the case to the trial court.
Libertarians for Transparent Government v. Cumberland County, 465 N.J. Super. 11 (App. Div. 2020)
The Appellate Division held that a settlement agreement between the county and a former county employee resolving a preliminary notice of disciplinary action against the employee was not a "government record" under OPRA because the settlement agreement resolved an internal disciplinary action, involving the employee's improper fraternization with female inmates, and, as such, was a "personnel record" exempt from disclosure under N.J.S.A. § 47:1A-10.
(Note: Case was heard by NJ Supreme Court on 9/14/21 – awaiting decision).
Gannett Satellite Info. Network, LLC v. Township of Neptune, 467 N.J. Super. 385 (App. Div. 2021)
This litigation involves a newspaper’s request, under both OPRA and the common law, for internal affairs records of a former Township of Neptune Sergeant. The trial court determined that the newspaper was not entitled to access under OPRA, but was entitled to the records, as well as counsel fees, under the common law. The Appellate Division affirmed the trial court’s ruling that the records were accessible under the common law but reversed the award of counsel fees, although the Court acknowledged that counsel fees are available under the common law. The Appellate Division also affirmed the trial court’s determination that the records were not accessible under OPRA.
(Note: Gannett filed a Petition for Certification to the New Jersey Supreme Court on the denial of fees under the common law and the denial of access under OPRA. It is currently awaiting a decision on same).
There are no court-derived exclusions under FOIL. “Only where the material requested falls squarely within the ambit of one of the statutory exemptions may disclosure be withheld.” Fink v. Lefkowitz, 47 N.Y.2d 567, 393 N.E.2d 463, 419 N.Y.S.2d 467 (1979).
The common law privilege which existed prior to FOIL has been abolished. “The public policy concerning governmental disclosure is fixed by the Freedom of Information Law. The common-law interest privilege cannot protect from disclosure materials which that law requires to be disclosed.” Doolan v. Boces, 48 N.Y.2d 341, 398 N.E.2d 533, 422 N.Y.S.2d 927 (1979). Accord In Re Estate of Schwartz, 130 Misc.2d 786, 497 N.Y.S.2d 834 (Sur. Ct. 1986).
However, the attorney-client privilege may be asserted. See Rye Police Ass’n v. City of Rye, 34 A.D.3d 591, 824 N.Y.S.2d 163 (2d Dep’t 2006) (documents protected by attorney-client privilege were exempt from disclosure).
North Carolina has no court-derived exclusions or privileges, and the North Carolina appellate courts have held that there can be none. The North Carolina Court of Appeals has held that the only exemptions to the Public records law are those that are expressly provided by statute. Virmani v. Presbyterian Health Services Inc., 350 N.C. 449, 515 S.E.2d 675, 27 Media L. Rep. (BNA) 2537 (1999); McCormick v. Hanson Aggregates Southeast Inc., 164 N.C. app. 459, 596 S.E.2d 431, cert. denied and appeal dismissed, 359 N.C. 69, 603 S.E.2d 131 (2004); Advance Publications v. City of Elizabeth City, 53 N.C. app. 504 (1981).
There do not appear to be any required court-derived exclusions or common-law exceptions to the open records law. The North Dakota Supreme Court has held, “for an exception to the open-records law to exist under our 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 those provisions, may not be implied.” Hovet v. Hebron Pub. Sch. Dist., 419 N.W.2d 189, 191 (N.D. 1988).
In Northern States Power Company v. North Dakota Public Service Commission, the Supreme Court also held that privileges outlined in the North Dakota Rules of Evidence, incorporated into state agency proceedings, do not automatically create open records law exceptions for information provided to state agencies. See N. States Power Co. v. N.D. Pub. Serv. Comm’n, 502 N.W.2d 240, 244-45 (N.D. 1993).
With one clear and one possible exception, the Ohio Supreme Court has refused to recognize judicially created exemptions based on common law notions of public policy, and has recognized only statutory exemptions or exemptions derived from either the federal constitutional right of privacy or the state constitutional doctrine of separation of powers. State ex rel. James v. Ohio State Univ., 70 Ohio St. 3d 168, 169, 637 N.E.2d 911, 912 (1994)(“Exceptions to disclosure must be strictly construed against the custodian of public records, and the burden to establish an exception is on the custodian.”); State ex rel. Toledo Blade Co. v. Univ. of Toledo Foundation, 65 Ohio St. 3d 258, 602 N.E.2d 1159 (1992); State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999) (constitutional right of privacy barred access to police personnel records); State ex rel. Steffen v. Kraft, 67 Ohio St.3d 439, 619 N.E.2d 688 (1993) (judge's notes).
The clear exception is a "judicial mental process" privilege, which the Ohio Supreme Court applied to bar access to records of the adjudicatory deliberations of a local board of tax appeals. TBC Westlake Inc. v. Hamilton County Bd. of Revisions, 81 Ohio St. 3d 58, 689 N.E.2d 32 (1998). That privilege may have constitutional underpinnings because the court relied on its decision in Kraft, which stated that the constitutional doctrine of separation of powers barred access to a judge's notes taken during a hearing.
The possible exception is a “good sense” rule, suggested in dicta in several cases. State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999) (personal information regarding undercover officers should not be turned over to criminal defendants who could use it for nefarious ends), State ex rel. McCleary v. Roberts, 88 Ohio St. 3d 365, 725 N.E.2d 1144, 2000-Ohio-345 (personal information regarding children should not be revealed because it could be posted on the internet where predators could access it). However, this “rule” was very intertwined in the facts and law of those cases, that it may have no general applicability. State ex rel. Cincinnati Enquirer v. Jones-Kelly, 118 Ohio St.3d 81, 886 N.E.2d 206 (2008)(“Keller was premised upon the constitutional right of privacy.”)
Constitutional Right of Privacy
The U.S. Court of Appeals for the Sixth Circuit has recognized a constitutional right of privacy within the Due Process Clause of the Fourteenth Amendment. The court found that the disclosure of police officers' personnel file to counsel for a criminal defendant "implicate[d] a fundamental liberty interest, specifically their interest in preserving their lives and the lives of their family members, as well as preserving their personal security and bodily integrity." Kallstrom v. Columbus, 136 F.3d 1055 (1998).
But on remand, the federal district court decided that there was no liability for the claimed unconstitutional disclosure, and ordered the public office to disclose the same information to the press. Kallstrom on remand, 165 F.Supp.2d 686 (S.D. Ohio 2001) (same police officers had no constitutional privacy interest where much of the information claimed to be constitutionally-protected was already in the public domain).
Relying on the federal court of appeals' ruling in Kallstrom, the Ohio Supreme Court held that the right of privacy prevents disclosure to a criminal defendant of police officers' files that contain the names of the officers' children, spouses, parents, home addresses, telephone numbers, beneficiaries, medical information, and the like. State ex rel. Keller v. Cox, 85 Ohio St. 3d 279, 707 N.E.2d 931 (1999).
The Ohio Supreme Court has also applied the constitutional right of privacy to exempt from disclosure names of police officers wounded in a shootout with a motorcycle gang in which an alleged gang member was killed. State ex rel. Cincinnati Enquirer v. Craig, 132 Ohio St.3d 68, 969 N.E.2d 243, 2012-Ohio-1999.
When it applies, the constitutional right of privacy trumps the statutory “journalist exception” found in R.C. 149.43(B)(9) authorizing the release of information about law enforcement and other emergency responders to journalists upon request if the information is in the public interest. State ex rel. Cincinnati Enquirer v. Craig, 132 Ohio St.3d 68, 969 N.E.2d 243, 2012-Ohio-1999.
The Ohio Supreme Court also has interpreted the federal constitutional right of privacy to bar access by even "a benevolent organization posing no threat" of harm to the home addresses and telephone numbers of minors in the context of those who used recreational facilities State ex rel. McCleary v. Roberts, 88 Ohio St. 3d 365, 725 N.E.2d 1144, 2000-Ohio-345 (citing Kallstron v. Columbus, 136 F.3d at 1064).
The court has applied the same constitutional right to bar release of public records where the release poses a risk of identity theft. The court ruled that the City of Akron could bar release of the social security numbers of its employees. State ex rel. Beacon Journal Publishing Co. v. City of Akron, 70 Ohio St. 3d 605, 640 N.E.2d 164 (1994).
Waiver of exemptions
Exemptions are usually fully applicable absent evidence that the public office having custody of the records disclosed the records to the public. State ex rel. Gannett Satellite Info. Network v. Petro, 80 Ohio St. 3d 261, 685 N.E.2d 1223 (1997); see also State ex rel. Ohio Republican Party v. FitzGerald, 145 Ohio St. 3d 92, 99, 47 N.E.3d 124, 131, 2015-Ohio-5056, ¶ 29 (“Release of FitzGerald's key-card-swipe data to the press also precludes the assertion that the data are excepted from disclosure pursuant to the public-records law.”). But see State ex rel. Master v. City of Cleveland, 76 Ohio St. 3d 340, 667 N.E.2d 974 (1996) (press publicity revealing identity of "uncharged suspect" does not defeat exemption).
Audits of state offices and related papers are generally subject to disclosure. Where grand jury records are included in the audit, any exemption for those records is waived. State ex rel. Gannett Satellite Network v. Petro, 80 Ohio St. 3d 261, 685 N.E.2d 1223 (1997).
Where other persons have a privilege of confidentiality in certain public records, the government's disclosure of those records does not waive the others' privileges of confidentiality. "Hence, when someone who is not authorized to waive the privilege discloses privileged information, the information remains privileged." State ex rel. Wallace v. State Medical Board of Ohio, 89 Ohio St. 3d 431, 732 N.E.2d 960, 2000-Ohio-213.
Exemptions are not affirmative defenses that must be raised in an answer to avoid waiver. State ex rel. Nix v. Cleveland, 83 Ohio St. 3d 379, 700 N.E.2d 12 (1998).
Governor’s Qualified Privilege. The Oklahoma Supreme Court has held that the state Constitution recognizes an executive privilege to protect confidential advice from senior executive branch officials for use in the Governor’s deliberations and decision-making process. The Supreme Court upheld the lower court decision that the privilege could be found in the common law but proceeded to hold that the privilege was also found in the separation of powers clause in the Constitution. Vandelay Entertainment, LLC d.b.a. the Lost Ogle v. Fallin, 2014 OK 109.
Video Recording of Arrest. The Oklahoma Court of Civil Appeals held that a law enforcement agency’s dash cam video recording of an arrest is a record under the Act. Ward & Lee, P.L.C. v. City of Claremore, 2014 OK CIV APP 1. The Oklahoma Supreme Court held that, when a video is a record of the facts leading up to an arrest, the video must be made available to the public. Oklahoma Association of Broadcasters v. City of Norman, 2016 OK 119
Traffic Collision Reports. The Oklahoma Supreme Court has held that traffic collision reports do not fall within the specific categories enumerated under law enforcement records and thus are not public records under the Act. Cummings & Associates v. City of Oklahoma City, 1993 OK 36, 849 P.2d 1087.
Insurance Commission Records. The Oklahoma Supreme Court has held that records of a private insurance company which came into possession of the state Insurance Commissioner under a court-ordered receivership are not public records and thus do not have to be disclosed under the Act. Farrimond v. Fisher, 2000 OK 52, 8 P.3d 872.
Tape Recordings of Hearings. Tape recordings of Implied Consent Hearings before the Department of Public Safety are records under both the Open Records Act, 51 O.S. § 24A et seq., and the Records Management Act, 67 O.S. § 201 et seq., and copies must be provided for inspection. Fabian & Associates, P.C. v. State ex rel. Dep’t of Public Safety, 2004 OK 67, 100 P.3d 703.
Draft Audit Report. In finding that a “draft” audit report of a city was a record to be produced under the Open Records Act, the Oklahoma Court of Civil Appeals held that whether a document is a record depends upon “‘the totality of the circumstances surrounding the creation, maintenance, and use of the document,’ regardless of the ‘status’ of a document as ‘preliminary’ or ‘final.’” Int’l Union of Police Ass’ns v. City of Lawton, 2009 OK CIV APP 85.
The scope of records covered by the Law does not “supersede or modify the public or nonpublic nature of a record or document established in [f]ederal or [s]tate law, regulation or judicial order or decree.” 65 Pa. Stat. Ann. § 67.306; see also 65 Pa. Stat. Ann. § 67.3101.1 (“If the provisions of this act regarding access to records conflict with any other [f]ederal or [s]tate law, the provisions of this act shall not apply.”). In other words, if some other Pennsylvania or federal statute, regulation or order requires or prohibits access, the Law does not change that.
Note: In McMullan v. Wohlgemuth, the Pennsylvania Supreme Court reversed a decision ordering the Department of Public Welfare to grant reporters access to requested public-assistance information. 308 A.2d 888 (Pa. 1973). The court explained that the First Amendment to the United States Constitution does not guarantee to the press the right to gather information for news reporting that is statutorily protected from disclosure. Id. at 896-98. Further, in Capital Cities Media, Inc. v. Chester, the United States Court of Appeals for the Third Circuit (which includes Pennsylvania’s federal courts) rejected the contention that the First Amendment afforded the public a broad right of access to documents and records held by a Pennsylvania administrative agency. 797 F.2d 1164, 1175-76 (3d Cir. 1986) (en banc); see also First Amendment Coal. v. Judicial Inquiry and Review Bd., 784 F.2d 467 (3d Cir. 1986) (vacating decision finding a First Amendment violation for the non-disclosure of records relating to all judicial disciplinary proceedings, at all stages).
The Act has been construed as precluding courts from exempting records from public inspection. Memphis Publishing Co. v. Holt, 710 S.W.2d 513, 517 (Tenn. 1986). Arguably, however, the 1991 amendment to the statute now allows exemptions based upon common law. In Schneider v. City of Jackson, 226 S.W.3d 332 (Tenn. 2007), however, the Supreme Court refused to recognize a “law enforcement privilege” as a part of Tennessee’s common law. Therefore, such records of local police departments are not exempt.
Courts have adopted federal statutes requiring certain records to be kept confidential. In Seaton v. Johnson, 20 TAM 8-20 (Tenn. Ct. App. Jan. 27, 1995), the court, adopting the holding in Southern Pacific Transportation Co. v. Yarnell, 863 P. 2d 271 (Ariz. App.1993), ruled that 23 U.S.C. § 409 protected disclosure of reports compiled for the purpose of identifying potential highway or railway accident sites.
Since Section 552.101 excepts from public disclosure information deemed confidential by constitutional and statutory law and judicial decisions, federal and state court opinions describing the limits of the constitutional and common law "right of privacy" can affect application of the Texas Public Information Act. See Indus. Found. of the South v. Tex. Indus. Acct. Bd., 540 S.W.2d 668 (Tex. 1976) and Doe v. Tarrant Cty. Dist. Attorney's Office, 269 S.W.3d 147 (Tex. App.—Fort Worth 2008, no pet.). See Tex. Dep’t of Public Safety vs. Cox Newspapers, Inc., 287 S.W.3d 390, 398 (Tex. App.—Austin 2009, rev’d) (DPS failed to establish that the information contained in the travel expense vouchers of the governor’s security detail were not excepted under either a common-law right of privacy or a constitutional right of privacy).
1. Access to Addresses of Licensed Dog Owners. In Mr. Pooper Scooper Inc. v. Murray City and Sandy City, No. 02-06 (Utah State Rec. Comm. May 13, 2002), the State Records Committee ruled that disclosure of the home addresses of persons who were licensed dog owners would constitute an unwarranted invasion of personal privacy. Although other government entities had classified the addresses of licensed dog owners as public, the Records Committee upheld each city’s denial of access based on Utah Code section 63-2-302(2)(d) (renumbered as section 63G-2-302), which allows a government entity to classify records as private if disclosure would constitute a “clearly unwarranted invasion of personal privacy.” See Decision & Order, Mr. Pooper Scooper Inc. v. Murray City & Sandy City, No. 02-06 (Utah State Rec. Comm. May 13, 2002).
2. Access to State Computerized Traffic Accident Database. In The Salt Lake Tribune v. Utah Dep’t of Transp., No. 92-01 (Utah State Rec. Comm. Oct. 9, 1992), the State Records Committee ruled that the computerized traffic accident database created and maintained by the Utah Department of Transportation (“UDOT”) was a public record and that The Salt Lake Tribune was entitled to a copy of the database on 9-track computer tape. The Records Committee also ruled, however, that certain personal information in the database had to be redacted before release of the database. On appeal, the Third District Court ruled that the entire traffic accident database was a public record and ordered UDOT to provide the entire unredacted database to The Salt Lake Tribune. Utah Dep’t of Transp. v. Kearns-Tribune Corp., No. 920906153AA (Utah 3d Dist. Nov. 29, 1993).
3. Inspection of Driver’s License Records. In Deseret News Publ’g Co. v. Utah Dep’t of Public Safety, No. 92-02 (Utah State Rec. Comm. Nov. 12, 1992), the State Records Committee ruled that persons wishing to inspect public driver’s license records must pay a fee of $3 per record despite GRAMA’s express language barring fees for inspection of public records. The Records Committee reasoned that the fee was permissible under another state statute allowing a charge for “furnish[ing] a report on the driving record of any person.” See Decision & Order, Deseret News Publ’g Co. v. Utah Dep’t of Pub. Safety, No. 92-02 (Utah State Rec. Comm. Nov. 12, 1992).
4. Records of Delinquent Child Support Payments. In Jones v. U.S. Child Support Recovery, 961 F. Supp. 1518, 1520 (D. Utah 1997), defendants sent a poster to plaintiff’s employer and family members that referred to plaintiff “as a ‘Dead Beat Parent’ with a ‘well-paying job’ whose ‘own flesh and blood’ ‘wishes his mother cared about him to send the child support which the court ordered her to contribute to his care.’” The federal district court rejected defendants’ public record defense to plaintiff’s invasion of privacy claim, holding that Utah Code section 63-2-302(2)(b) (renumbered as section 63G-2-302), which classifies “records describing an individual’s finances” as private, prohibits the disclosure of records of delinquent child support payments to the general public. Id. at 1522.
5. The following cases were decided under Utah’s old open records statutes; namely, the Public and Private Writings Act, Utah Code § 78-26-1 to -3 (repealed 1992), and the Information Practices Act, Utah Code § 63-2-59 to -91 (repealed 1991). Consequently, these cases are now limited by GRAMA. However, the rules set forth in KUTV Inc. v. Utah State Bd. of Educ., 689 P.2d 1357 (Utah 1984), regarding the presumption of openness and official promises of confidentiality retain vitality and have been codified substantially by GRAMA.
a. No absolute right of access. In Redding v. Jacobsen, 638 P.2d 503 (Utah 1981), the Utah Supreme Court upheld the constitutionality of a Utah statute stating that salary data about state college professors is confidential. The court reasoned that even if there were a constitutional right of access (which the court doubted), “the public has no absolute constitutional right to immediate access to everything its government officials are doing or everything their records contain.” Id. at 507.
b. Presumption of Openness. In KUTV Inc. v. Utah State Bd. of Educ., 689 P.2d 1357 (Utah 1984), a television station sought to obtain “confidential” questionnaires in which students and teachers answered questions about sex discrimination and religious discrimination at a public high school. The Utah Supreme Court ordered the Board of Education to edit the questionnaires to delete personally identifying data, and then to release the edited questionnaires. The court noted, however, that the public’s “right to know” is not absolute; it is subject to an “implied rule of reason.” Id. at 1361. There is a presumption that government records are open to inspection, and an agency that seeks to keep a record secret bears the burden to justify its decision. See id. at 1361-62.
c. Promises of Confidentiality. In KUTV Inc. v. Utah State Bd. of Educ., 689 P.2d 1357 (Utah 1984), the Utah Supreme Court held that a state agency’s promise of confidentiality is insufficient, by itself, to preclude disclosure of a public record. “The promise [of confidentiality] would have to coincide with reasonable justification based on public policy for refusing to release the records.” Id. at 1361.
There are no exemptions, exclusions or privileges against disclosure that the Vermont courts have developed or extrapolated from the text of the Public Records Act itself. However, the statute specifically exempts records which, if made public, would cause a violation of any statutory or common law privilege. 1 V.S.A. § 317(c)(4). The Vermont Supreme Court has thus held that § 317(b)(4) “brings common-law privileges with their established burdens into the [public records] law.” Killington, Ltd. v. Lash, 153 Vt. 628, 639, 572 A.2d 1368, 1375 (Vt. 1990). In Killington, for example, the Court recognized that a claim of executive privilege may be asserted against a request for information made under the Public Records Act. Id.; see also Herald Ass’n v. Dean, 174 Vt. 350, 355-56, 816 A.2d 474-75 (Vt. 2002) (evaluating claim of executive privilege); New England Coal. for Energy Efficiency & the Env’t v. Office of the Governor, 164 Vt. 337, 339-40, 670 A.2d 815, 817 (Vt. 1995) (upholding assertion of the privilege); Browning v. State, No. 272-5-14, 2014 Vt. Super. LEXIS 106, *2 (Vt. Super. Wash. County Dec. 10, 2014) (same). Similarly, the Vermont Supreme Court has recognized that a claim of attorney-client privilege may be asserted against a request for information made under the Public Records Act. See 232511 Invs., Ltd. v. Town of Stowe Dev. Review Bd., 2005 VT 59, ¶ 1, 878 A.2d 282, 283 (Vt. 2005); see also Carnelli v. State, No. 396-6-14, 2015 Vt. Super. LEXIS 71, *3 (Vt. Super. Wash. County July 7, 2015).
Although at least one superior court judge held that the Vermont Supreme Court would recognize a “deliberative process privilege” that would allow other public agencies “to withhold from public access information of an advisory or deliberative nature that relates to the governmental decision or policy-making process,” Prof’l Nurses Serv., Inc. v. Smith, No. 732-12-04, 2005 Vt. Super. LEXIS 31, *2-3 (Vt. Super. Wash. County July 14, 2005), the Vermont legislature amended the Public Records Act in 2006 to expressly exclude the deliberative process privilege from the group of exempt privileges under 1 V.S.A. § 317(c)(4).
In Judicial Watch, Inc. v. State, 2005 VT 108, ¶ 8, 892 A.2d 191, 195-96 (Vt. 2005), the Vermont Supreme Court upheld an agreement between the Secretary of State and a retiring governor, made pursuant to the State Archives Act, to restrict public access to the governor’s official correspondence for a period of up to ten years. The court held that “notwithstanding the general right of access to public records” under the Public Records Act, the ten-year restriction was “separately authorized and controlled” by the “more specific and exacting legislative requirements” of the Archives Act as to how a retiring governor’s official correspondence shall be placed in the state archives. Id.
On the basis of the Public Records Act’s mandate that agencies disclose public records unless they fall within statutory exemptions, RCW 42.56.070(1), courts arguably should not be able to create additional exemptions. Prior to this amendment, some courts had created additional exemptions when it was thought to be in the “public interest” to protect certain documents from disclosure. In 1994, the Washington Supreme Court closed off a potential loophole in RCW 42.56.540, which states: “[E]xamination of any specific public record may be enjoined if . . . the superior court . . . finds that such examination would clearly not be in the public interest and would substantially and irreparably damage any person, or would substantially and irreparably damage vital governmental functions.”
The court held that Section 540 is simply a procedural provision allowing for an injunction suit and that parties seeking to avoid disclosure must rely on a specific statutory exemption, as well as establishing Section 540’s public interest and irreparable damage elements. Progressive Animal Welfare Soc’y v. University of Wash., 125 Wn.2d 243, 884 P.2d 592 (1994); Soter v. Cowles Publ'g Co., 162 Wn.2d 716, 174 P.3d 60 (2007).
Opponents of disclosure – typically, public employees or their unions – have periodically attempted to argue that disclosure under the PRA can violate their constitutional rights of privacy or association. Courts have rejected those arguments to date. Doe v. Reed, 130 S. Ct. 3348 (2010); Wash. Pub. Emps. Ass’n v. Wash. State Ctr. for Childhood Deafness & Hearing Loss, 194 Wn.2d 484, 450 P.3d 601 (2019).
The Supreme Court of Appeals has stated repeatedly that the specific exemptions contained in section four of the FOIA are the only exemptions from disclosure under the Act. However, while the court has never specifically decided any claim for confidentiality based upon any privilege against disclosure that existed at common law, the court has held that several common law litigation privileges are incorporated in the deliberative process exemption.
In Daily Gazette v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996), the Supreme Court explicitly discussed claims for confidentiality based upon privileges against disclosure which existed at common law. As noted above, the case involved application of the deliberative process privilege of FOIA exemption 8, W. Va. Code § 29B-1-4 (a)(8), ("Internal memoranda or letters received or prepared by any public body”). The West Virginia Court suggested that exemption 8, like its federal counterpart exemption 5, preserves to government agencies "such recognized evidentiary privileges as the attorney-client privilege, the attorney-work-product privilege, and the executive 'deliberative process' privilege."
Exemption 5 of the federal FOIA exempts from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency[.]" 5 U.S.C. '552(b)(5) (1994). In enacting Exemption 5, it was Congress' intention that the public "not be entitled to government documents which a private party could not discover in litigation with the agency." Schell v. U.S. Dept. of Health & Human Services, 843 F.2d 933, 939 (6th Cir.1988) (citations omitted).
The federal FOIA's open government policies notwithstanding, Exemption 5 preserves to government agencies "such recognized evidentiary privileges as the attorney-client privilege, the attorney work- product privilege, and the executive 'deliberative process' privilege." Schell, 843 F.2d at 939 (citing Parke, Davis & Co. v. Califano, 623 F.2d 1, 5 (6th cir.1980)). See Arthur Andersen & Co. v. I.R.S., 679 F.2d 254, 257 (D.C.Cir.1982) (footnotes omitted); Daily Gazette, 198 W. Va. at 571, 482 S.E.2d at 188.
In Daily Gazette I, the court recognized the close relationship between the federal and West Virginia FOIA. It noted “the value of federal precedents in construing our state FOIA’s parallel provisions” and that “[f]ederal precedent and legislative history of federal Exemption 5 are pertinent to our interpretation of Exemption 8 of WVFOIA.” 198 W. Va. 563, 571, 482 S.E.2d 180, 188 (1996).
The following categories of records are generally exempt from public inspection as a matter of common law: “Documentary evidence in the hands of a district attorney, minutes of a grand jury, evidence in a divorce action ordered sealed by the court,” Int’l Union v. Gooding, 251 Wis. 362, 372, 29 N.W.2d 730, 736 (1947), followed in State ex rel. Richards v. Foust, 165 Wis. 2d 429, 477 N.W.2d 608 (1991); Democratic Party of Wis. v. Wis. Dep’t of Justice, 2016 WI 100, 372 Wis. 2d 460, 888 N.W.2d 584 (videos used for training prosecutors, based on actual cases, are exempt); and information gained under an express pledge of confidentiality where the information was not otherwise available, Mayfair Chrysler-Plymouth Inc. v. Baldarotta, 162 Wis. 2d 142, 165–68, 469 N.W.2d 638, 647–48 (1991); State ex rel. Youmans, 28 Wis. 2d at 681, 137 N.W.2d at 474.
There is no Wyoming case law in this area. The Wyoming Supreme Court has rejected recognition of the so-called deliberative process privilege for now, but left open the possibility that the privilege of narrow scope might be recognized under appropriate circumstances. See Cheyenne Newspapers v. Freudenthal, discussed in the Foreword.