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c. Does the existence of information in electronic format affect its openness?

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  • Alabama

    This question has not been addressed by legislative or judicial action in Alabama, except by implication in one set of statutes and one rule of judicial administration. In 1991, the Alabama Legislature established the Alabama Criminal Justice Information Center ("ACJIC") and mandated that a number of categories of information be sent to the Center by state and local law enforcement agencies for storage in the Center's computer database. Most of the categories of information are public records at the originating agencies, but the ACJIC Act bars public access to its computerized information except on a "need to know" and "right to know" basis. Arguably, the Legislature deems the compilation of that data in computer form to be more invasive of privacy rights than the ungathered data. See Ala. Code §§ 41-9-620 et seq. (2000). See also Ala. Code § 41-9-594 (2000) (ACJIC commission shall appoint a privacy and security committee); Ala. Code § 41-9-636 (2000) ("Provision of information [by ACJIC] shall be limited by . . . the right of privacy . . . ."); Ala. Code § 41-9-642 (2000) (ACJIC legislation gives no authority to "invade the privacy of any citizen").

    The Alabama attorney general has stated that a state agency is not required to produce information electronically that is already available in paper format.  See Op. Att'y Gen. Ala. No. 2007-001, 2006 Ala. AG LEXIS 119 (Oct. 2, 2006).  The requestor may use its own equipment to generate copies of records as long as the chosen method does not unduly interfere with the operations of the requestee.  Ala. Att’y Gen. Op. 76 (June 10, 2009).

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  • Alaska

    For the most part, experience to date seems to indicate no unusual problems with obtaining or utilizing information in electronic format. It is treated like other information. Cf., McLeod v. Parnell, 286 P.3d at 515. One notable exception is the June 2011 production of 22,000 pages of e-mails pursuant to media requests—following the 2008 selection of former governor Sarah Palin as Republican presidential nominee John McCain’s running mate—for virtually all of the e-mails to or from Palin during her tenure as governor.  In the end, these e-mails were produced in hard copy, in sets of six banker boxes of documents.  It is likely that this was a unique situation, resulting from a number of factors that included:  1) the unprecedented volume of documents sought, 2) the number of requesters, 3) the number of employees/computers whose records were to be searched and analyzed to comply with the requests, 4) the state’s need to be able to review the documents to remove or redact privileged matters, and 5) the state’s assertion of practical infeasibility with respect to carrying out these responsibilities with the document management software it used at the time. Software now in use by the state should permit the state obtain, review, redact as necessary, and produce electronic documents in their native format.

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  • Arizona

    No.  Star Publ’g, 181 Ariz. at 433-34, 891 P.2d at 900-01.  Indeed, “if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under [Arizona’s] public record laws.”  Lake, 222 Ariz. at 548, 218 P.3d at 1005.

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  • Arkansas

    No. As amended by Act 1653 of 2001, the FOIA defines the term “public record” to include “electronic or computer-based information.” Ark. Code Ann. § 25-19-103(5)(A). Thus, the question is whether the record is exempt from disclosure, not whether it is maintained in electronic form. However, the form of the record may affect the application of an exemption. For example, in Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), the Supreme Court recognized that an individual’s privacy interest in a tape recording is greater than his or her privacy interest in a transcript of that recording.

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  • California

    No. Government Code § 6254.9(d) states: "Nothing in this section is intended to affect the public record status of information merely because it is stored in a computer. Public records stored in a computer shall be disclosed as required by [the CPRA]." The California Supreme Court has recognized that “[t]he format of information is not generally determinative of the public record status of government information.” Sierra Club v. Superior Court, 57 Cal.4th 157, 165, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013); see also Commission on Peace Officers Standards and Training v. Superior Court, 42 Cal. 4th 278, 288, n.3, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007) (noting that information stored in commission’s computer database qualified as “writing” within meaning of CPRA); Cal. Ops. Att'y. Gen. 04-1105 (2005) (parcel boundary map data maintained by county assessor in an electronic format is disclosable in that format under CPRA).

    More recently, the California Supreme Court recognized that an agency even may be required to produce records in non-native formats (i.e., move electronic data to a spreadsheet) if doing so would facilitate redaction and anonymizing for privacy purposes where the native format does not accommodate such manipulations. See ACLU v. Superior Court, 3 Cal. 5th 1032, 1047, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017).

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  • Colorado

    No. Public records are defined as including all "writings" which are further defined as meaning and including "all books, papers, maps, photographs, cards, tapes, recordings or other documentary materials, regardless of physical form or characteristics." Furthermore, "writings" include "digitally stored data, including without limitation electronic mail messages, but does not include computer software." Colo. Rev. Stat. § 24-72-202(7).

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  • Connecticut

    No. The existence of information in electronic format may affect the cost to the requester, however. See Conn. Gen. Stat. §1-212(b); see also Records Outline at I.D.

    Conn. Gen. Stat. §1-211(b) provides that "no public agency shall enter into a contract with, or otherwise obligate itself to, any person if such contract or obligation impairs the right of the public under [FOIA] to inspect or copy the agency's nonexempt records existing online in, or stored on a device or medium in connection with, a computer system owned, leased or otherwise used by the agency in the course of its governmental functions." Additionally, Conn. Gen. Stat. §1-211(c) requires public agencies to consider whether any new computer system, equipment or software for the retrieval or storage of public records will "adequately provides for the rights of the public under [FOIA] at the least cost possible to the agency and to persons entitled to access nonexempt public records." In order to comply with that duty, agencies must consult with the Department of Information Technology before acquiring such a system. Conn. Gen. Stat. §1-211(c); see also Office of Health Care Access v. FOIC, Nos. CV 03-0521573S, CV 03-0521574S, 2005 WL 1095361 (Conn. Super. Apr. 19, 2005) (requiring an agency to purchase a new computer program and provide an electronic spreadsheet of data free of charge to the requesters after the agency changed to a new computer system that would not no longer permit the production of such an electronic record, in violation of Conn. Gen. Stat. §1-211(c)).

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  • Delaware

    The Act treats electronic information just like any other information. 29 Del. C. § 10002(g). The Act does not make any distinction between records distributed in manual and computer storage systems. Del. Op. Att'y Gen., No. 97-ib06 (Mar. 17, 1997).

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  • District of Columbia

    Information stored in an electronic format is expressly included in the definition of "public record" under the D.C. Act. D.C. Code Ann. § 2-502(18).

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  • Florida

    The existence of information in electronic format does not affect its openness. See Fla. Stat. §  119.011(12) (“‘Public Records’ means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material regardless of the physical form, characteristics or means of transmission. . .”) (emphasis added); Seigle, 422 So. 2d at 65 (“information stored on a computer is as much a public record as a written page in a book or a tabulation in a file stored in a cabinet”).

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  • Hawaii

    No. Section 92F-11 states the general rule that all government records are open to public inspection unless access is restricted or closed by law. A "government record" is broadly defined in Section 92F-3 as "information maintained by an agency in written, auditory, visual, electronic, or other physical form." Id

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  • Idaho

    Idaho Code § 74-101(16) defines writing to include “every means of recording, including letters, words, pictures, sounds or symbols or combination thereof, and all…magnetic or punched cards, discs, drums, or other documents.” In Cowles Publishing Co. v. Kootenai Co. Bd. of County Commissioners, 144 Idaho 259, 159 P.3d 896 (2007), the Idaho Supreme Court held that a series of e-mail messages between a county prosecutor and a public employee were public records within Idaho Code § 9-337(13) [now Idaho Code § 74-101(13)].

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  • Illinois

    No, the existence of the information in electronic form does not affect its openness. Electronic records, cards, tapes, recordings, electronic data processing records, recorded information and all other documentary materials, regardless of physical form or characteristic are included within the definition of public records under 5 ILCS 140/2(c)).  Moreover, the legislature stated that the Act should be interpreted broadly to include emerging technologies.  See 5 ILCS 140/1 (stating that the legislature “recognizes that technology may advance at a rate that outpaces its ability to address those advances legislatively. To the extent that this Act may not expressly apply to those technological advances, this Act should nonetheless be interpreted to further the declared policy of this Act that public records shall be made available upon request except when denial of access furthers the public policy underlying a specific exemption.”)

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  • Indiana

    No. In fact, the statutory mandate to separate disclosable from non-disclosable records applies with equal force to electronic records. Ind. Code § 5-14-3-6(b); see also Ind. Admin. R. 9(D)(2) and commentary (rules for public access to court records apply to all court records, no matter how the information was created, collected, or submitted to the court, and the rule applies independent of the technology or format of the information to promote the general open access policy).

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  • Iowa

    No. Iowa Code § 22.3A(2) provides: "A government body may provide, restrict, or prohibit access to data processing software developed by the government body, regardless of whether the data processing software is separated or combined with a public record. A government body shall establish policies and procedures to provide access to public records which are combined with its data processing software. A public record shall not be withheld from the public because it is combined with data processing software. A government body shall not acquire any electronic data processing system for the storage, manipulation, or retrieval of public records that would impair the government body's ability to permit the examination of a public record and the copying of a public record in either written or electronic form." (emphasis added).

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  • Kentucky

    No, not since the 1994 repeal of Kentucky’s Public Access to Governmental Databases Act.

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  • Louisiana

    According to the language of La. Rev. Stat. Ann. § 44:1, records otherwise within definition are public records "regardless of physical form or characteristics, including information contained in electronic data processing equipment." Apart from possible misapplication of the rationale that a custodian need not "create" a document, see Nungesser v. Brown, supra, the existence of information in electronic format should not affect its openness.

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  • Maine

    No. Electronic format records are public records to the same extent as paper records.  1 M.R.S.A. § 402(3).

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  • Maryland

    Not as a legal matter, but as a practicable matter, the electronic imaging of many documents by state agencies and the requirement by agencies that such documents be electronically formatted has enhanced significantly the ease with which public records are accessed. Images of many records are now available over the Internet by accessing the agency's Web site. As a matter of law, however, the original or any copy of a public record in any form is covered by the PIA, including a computerized record. § 4-101(j); see also 81 Op. Att’y Gen. 140 (1996) (printed and electronically stored versions of e-mail messages are public records). However, information concerning the security of an information system is exempt from disclosure. § 4-338. On October 24, 1983, the Governor issued Executive Order 01.01.1983.18 establishing a State Data Security Committee regarding security measures for the protection of state agencies maintaining computerized record systems. Code of Maryland Regulations (“COMAR”), 01.01.1983.18 (1983).

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  • Massachusetts

    Sometimes.  An electronic database may well contain both public and non-public information, such that, arguably at least, the segregation of the two may take additional time. See Doe v. Registrar of Motor Vehicles, The Appeals Court has bemoaned that "there is a negative public interest in placing the private affairs of so many individuals in computer banks available for public scrutiny," largely because data processing technology allows "the aggregation of pieces of personal information to large central data banks." Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 421-22, 425, 528 N.E.2d 880 (1988). While one might be tempted to deride such dicta as a relic of the pre-electronic era, in fact the public is still sometimes barred from using existing online databases.  For example, a Massachusetts statute limits access to computer terminals of the registrar of motor vehicles to government employees, law enforcement agencies, "insurance companies and their authorized agents and service carriers, . . . and the trial courts or computer manufacturers or data processing consultants under contract with the commonwealth." G.L. c. 90, § 30A. Because state tax information is exempt from the public records law, only the commissioner of revenue may authorize "public access to terminals or other data processing equipment for the purpose of copying, reading, collecting, printing, analyzing or manipulating any data or other information . . . or to authorize the release of the original or copies of tapes, cards, disc files or other methods of electronic storage." G.L. c. 59, § 52C. Wannabe hackers beware: It is a crime to obtain or attempt to obtain "any commercial computer service by false representation, false statement, unauthorized charging the account of another, by installing or tampering with any facilities or equipment or by any other means." G.L. c. 266, § 33A. The statutory definition of "commercial computer service" arguably is broad enough to include government computer programs that are available only for a fee.

    Another anachronistic sign: At least as of 2003, state government agencies were required to print out paper copies of emails and, where feasible, file them in accordance with the entity’s paper filing system procedures.  SPR Bulletin 1-99, “Electronic mail” (revised and reissued, May 21, 2003) at ¶¶ 5, 6.

    All state executive agencies, as well as all authorities created by the Legislature, must have a written information security program regarding records containing “personal information” (for security breach purposes).  SPR Bulletin 1-08, “Security Breach Protections” (undated, 2008) at ¶ 1. Because the policy should include provisions regarding document retention and destruction, as well as identification and retrieval of documents, it may prove useful to a records requester.

    Many municipalities contract with private companies to computerize and maintain their municipal records.  Even if contained in a privately created database, however, the data remain public records.  A municipality “cannot contract away its public records duties.”  SPR Bulletin 3-96, “Application of the Public Records Law to Electronic Records Access” (June 6, 1996).

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  • Michigan

    Information in electronic format is subject to disclosure under the FOIA. See Farrell, supra. See also Mich. Comp. Laws Ann. § 15.232(f) (definition of software, which is not a public record, excludes "computer-stored information or data, or a field name if disclosure of that field name does not violate a software license."); City of Warren v. City of Detroit, 261 Mich. App. 165, 680 N.W.2d 57 (2004) (formula for calculating water rates kept on computer disk is not software and is therefore not exempt from disclosure).

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  • Minnesota

    Since government data are public, regardless of their format, the storage of such information in electronic format should not affect its openness. However, agencies in Minnesota are beginning to see the problems inherent in turning over large databases to requesters. Since many programs were not designed with the Act in mind, or with complete access in mind, responses to these types of requests can complicated. If, for example, a database contains both public and non-public data, an agency cannot charge for separating the data. Minn. Stat. § 13.03, subd. 3(c). However, separating such data stored in electronic format may involve complicated programming which might slow access. And although the Minnesota Court of Appeals has refused to read an “unduly burdensome” exception into the Act with respect to complex electronic requests, the Minnesota Supreme Court declined to rule on the issue, as the aggrieved party failed to properly petition for review.  Webster v. Hennepin Cty., 910 N.W.2d 420, 433–34 (Minn. 2018).

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  • Mississippi

    No. § 25-61-2. This statute may not overrule Op. Att'y Gen. Aug. 14, 1995 to Rickey Gray, which says the electronic version of Mississippi Code does not have to be released because it is copyrighted. § 1-1-9.

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  • Nebraska

    No. Neb. Rev. Stat. §84-712.01 provides in part, "Data which is a public record in its original form shall remain a public record when maintained in computer files." Neb. Rev. Stat. §84-712(3)(b) specifically contemplates that requesters may obtain “electronic data,” although the custodian may charge “reasonably calculated added cost of computer run time, any necessary analysis and programming . . . and the production of the report in the form furnished to the requester.”

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  • New Hampshire

    No, the definition of governmental record includes information in electronic format.  RSA 91-A:1-a,III and Iv.  See Hawkins v. N.H. Dep't of Health and Human Services, 147 N.H. 376 (2001).

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  • New Jersey

    No. The definition of a "government record" includes material stored or maintained electronically. (See N.J.S.A. 47:1A-1.1).

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  • New Mexico

    No.  The Inspection of Public Records Act provides a very broad definition of public records without regard to physical form or characteristics.  NMSA 1978 § 14-2-6(G)(2013).  The 2011 amendments specifically states a custodian “shall” provide a copy of a public record in electronic format if the public record is available in electronic format.  NMSA 1978 § 14-2-9(B), (2011).  On the other hand, § 14-3-15.1 and § 14-3-18, which address information contained in information system databases, are more restrictive, and no reported appellate decisions or Attorney General's opinions indicate how these two statutes might be reconciled.  The better view is that access to public records is very broad, but access in a specific form or format may be restricted.

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  • New York

    No. The FOIL defines “record” to mean “any information kept, held, filed, produced, or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever.” N.Y. Pub. Off. Law. § 86(4). This includes computer tapes or discs. Id; Gabriels v. Curiale, 216 A.D.2d 850, 628 N.Y.S.2d 882 (3d Dep’t 1995) (FOIL applies to information contained in a computer database); Guerrier v. Hernandez-Cuebas, 165 A.D.2d 218, 566 N.Y.S.2d 406 (3d Dep’t 1991) (FOIL does not differentiate between records that are maintained in written form or on computerized tapes or discs); Brownstone Publishers Inc. v. New York City Department of Buildings, 166 A.D.2d 294, 560 N.Y.S.2d 642 (1st Dep’t 1990) (information on computer ordered transferred into computer tapes); Szikszay v. Buelow, 107 Misc.2d 886, 436 N.Y.S.2d 558 (Sup. Ct. 1981) (computer format of information does not alter right of access); Babigian v. Evans, 104 Misc.2d 140, 427 N.Y.S.2d 688 (Sup. Ct. 1980), aff’d, 97 A.D.2d 992 (1st Dep’t 1983) (access to information in a computer cannot be restricted merely because it is not in printed form).

    Records contained in an indexed computer data base may be protected by the New York State Personal Privacy Protection Law (“PPPL”) which was enacted to protect against the danger to personal privacy posed by modern computerized data collection and retrieval systems. See Public Officers Law, Art. 6-A (McKinney); Spargo v. New York State Commission on Government Integrity, 140 A.D.2d 26, 531 N.Y.S.2d 417 (3d Dep’t 1988).

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  • North Carolina

    The definition of public record in North Carolina makes clear that the format of a record has no bearing on its status as a public record. In fact, the law explicitly provides that no public agency shall “purchase, lease, create, or otherwise acquire any electronic data-processing system for the storage, manipulation, or retrieval of public records unless it first determines that the system will not impair or impede the agency’s ability to permit the public inspection and examination, and to provide electronic copies of such records.” G.S. § 132-6.1(a).

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  • North Dakota

    No. “Automation of public records must not erode the right of access to those records.” N.D.C.C. § 44-04-18(3).

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  • Ohio

    No. State ex rel. Athens County Property Owners Ass'n, Inc. v. City of Athens, 85 Ohio App. 3d 129, 619 N.E.2d 437 (Ohio App. 4th Dist. 1992); State ex rel. Margolius v. City of Cleveland, 62 Ohio St. 3d 456, 584 N.E.2d 665 (1992).

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  • Oklahoma

    "Record" is defined in the Act as "all documents . . . regardless of physical form or characteristic".   51 O.S. § 24A.3(1). See also 2001 OK AG 46 ("If the document is created in connection with the transaction of public business, the expenditure of public funds or the administering of public property, it is a 'record' and is therefore subject to the Open Records Act. This is true without regard to the physical characteristics of the document.");  Fabian & Assoc., PC v. State ex rel. Dep’t of Public Safety, 2004 OK 67 (The statutory definition includes any method of memorializing information).  The Attorney General has stated that the public's right of access to the records at times must be balanced against the obligation of an agency to protect records from destruction or alteration. 85 OK AG 36. The Attorney General found that the public body must have a system with an environment that permits electronic access and also protects the integrity of the records. Further, if the public body cannot provide the record in an electronic format and protect confidential information in the record, then the agency must provide the record in a format in which the confidential information can be redacted. 2001 OK AG 46. 

    If a public body contracts with a private vendor to provide electronic access to and reproduction of the public body's records at another location or through the internet, it is still required to provide access to its records for inspection, copying, or mechanical reproduction at the public body's office in either original or approved duplicated format. If the public body has more than one office location, its records must be maintained and made available to the public at the office where the records are located in the ordinary course of business. 2005 OK AG 3.

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  • Oregon

    No. Public records are writings relating to the public’s business “regardless of physical form or characteristics.” ORS 192.311(5)(a) and (7) (formerly ORS 192.410 and); see also ORS 192.324(3) (formerly ORS 192.440).

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  • Rhode Island

    “Nothing in [the APRA] is intended to affect the public record status of information merely because it is stored in a computer”  R.I. Gen. Laws § 38-2-3(i).

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  • South Dakota

    No.  Public entities are required, upon request, to describe the “purpose and functionality” of each electronic records system and to provide sufficient information to allow public to request information stored in the system.  SDCL §1-27-48.

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  • Tennessee

    The existence of information in electronic format does not seem to affect its openness. See T.C.A. § 10-7-121(a)(I)(A) (providing that government records kept on computer or removable computer storage media is available for public inspection, unless it is confidential according to law); T.C.A. § 6-1-126(b)(3) (providing that adoption records maintained by electronic media are confidential and must be secured as such); Op. Att'y Gen. No. 95-01, 20 TAM 6-46 (Jan. 1, 1995) (State Public Records Commission and various county public records commissions have discretion to authorize records to be stored on optical discs and destruction of such records stored in this manner would have to be in accordance with statutory requirement).

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  • Texas

    The liberal language of the Act, including its general policy statement, coupled with the fact that the Act expressly includes (1) devices that can store an electronic signal, and (2) data held in computer memory as media containing public information, provide an argument that the electronic medium on which information is contained does not affect the "openness" of the information. See Tex. Gov’t Code §§ 552.001; 552.002(b)(3), (c).

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  • Utah

    Under GRAMA, “[a] governmental entity may not use the physical form, electronic or otherwise, in which a record is stored to deny, or unreasonably hinder the rights of persons to inspect and receive copies of a record.” Utah Code § 63G-2-201(11). Original data in a computer program is normally public. See id. § 63G-2-301(3)(l).

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  • Vermont

    The fact that records are maintained in electronic format in no way affects whether the records must be produced under the statute.  A public record includes “any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business.”  1 V.S.A. § 317(b) (emphasis added).

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  • Virginia

    No. Official records maintained by a public body on a computer or other electronic data processing system shall be made available to the public at reasonable costs, not to exceed the actual cost of providing the information. Va. Code Ann. § 2.2-3704.G.

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  • Washington

    Nothing in the Washington statute suggests that the existence of information in the electronic form affects its openness. In fact, the opposite is true: electronic records fit within the definition of “records.” RCW 42.56.010.

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  • West Virginia

    To date, there has been no distinction between information in electronic format and more traditional format. State agencies routinely provide information to FOIA requesters in electronic format. There is no rational reason why the fact that information in electronic format should affect the public's right to disclosure under FOIA. Indeed, the FOIA definition of "public record" includes information in electronic format making explicit that such information stands on the same footing as paper records.

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  • Wyoming

    Only by charging search and retrieval fees for the inspection of electronic documents.

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