C. What records are and are not subject to the act?
The scope and coverage of the Public Records Act was intended by the legislature to be very broad, and the Supreme Court has interpreted it this way. The statute was amended in 1990 to expand the definition of public records, most significantly to reaffirm that it includes drafts, memorializations of conversations, and records "developed or received by a public agency or by a public contractor for a public agency." AS 40.25.220(6). The state has adopted regulations interpreting and implementing the public records law. See 2 Alaska Administrative Code [hereinafter "AAC "] .96.100 to -.900. These apply to state executive branch agencies. They do not, by their terms, apply beyond that. 2 AAC 96.100, 2 AAC 96.900(7).
The Supreme Court has held that parties cannot immunize otherwise public documents from disclosure by entering into a confidentiality agreement. Anchorage School Dist. v. Anchorage Daily News, 779 P.2d 1191, 1193 (Alaska 1989) (school district required to disclose settlement of asbestos litigation despite agreement to keep it confidential). The Attorney General has noted that in light of the Supreme Court's repeated holdings that "exceptions" to the disclosure requirements of Alaska's public records laws are not favored, and will be narrowly construed, agencies should be cautious about the use of language on forms or in agreements that may create an expectation of "confidentiality" among members of the public as to information being gathered from them, since such language quite likely may not be sufficient to create an enforceable exception to the explicit terms of the state's public records statutes. March 16, 1995, Attorney General Opinion No. 663-95-0424. With respect to law enforcement documents based on information obtained through express or implicit confidentiality agreements, see 1994 Police Records Attorney General Opinion, § A.3(a)(ii).
One section of the Public Records Act underscores that public records must still be made available even if they are involved in litigation or law enforcement proceedings, but provides that parties to litigation should obtain copies through court discovery rules, while everyone else can get copies through normal public records act requests. “A public record that is subject to disclosure and copying under AS 40.25.110—40.25.120 remains a public record subject to disclosure and copying even if the record is used for, included in, or relevant to litigation, including law enforcement proceedings, involving a public agency, except that with respect to a person involved in litigation, the records sought shall be disclosed in accordance with the rules of procedure applicable in a court or an administrative adjudication. In this section, ‘involved in litigation’ means a party to litigation or representing a party to litigation, including obtaining public records for the party.” AS 40.25.122. This provision was added to the law at the suggestion of news organizations when the Public Records Act was revised in 1990, in response to a situation in which a reporter investigating alleged misconduct by the Governor was denied access to important documents concerning leasing of state office space. The documents sought were public records that would have been available except that when a criminal investigation of the governor was begun, the state argued they could not be released because they were being used in an ongoing criminal investigation. Section .122 was added to clarify that withholding otherwise public documents in such circumstances is improper. Representatives of the Department of Law persuaded the legislature to qualify this provision by adding the exception with respect to persons involved in litigation. The reason for this language was to ensure that attorneys representing public agencies in litigation were not blindsided by finding that their own clients’ documents, which they might not have seen or been aware of, had been obtained from the agency through a public records request rather than through the normal “discovery” channels for exchanging documents and information in lawsuits. Note that the Alaska Supreme Court has narrowly construed the litigation exemption in AS 40.25.122. See, Basey v. State, Department of Public Safety, 408 P.3d 1173, 1179 (Alaska 2017) (federal government is not a “public agency,” as that term is defined by the PRA, and exemption does not apply in a case brought against agency officials sued “in their individual capacities” without naming the agency as a defendant). Given the limited nature of the exception, there would be no reason for a public agency to withhold public records simply because a requester is litigating with different agency, or on another matter. In Doubleday v. Alaska, Commercial Fisheries Entry Commission, 238 P.3d 100 (Alaska 2010), e.g., in the context of denying a commercial fishing permit for lack of evidentiary support, the court noted that documents sought by the appellant that were relevant to his dispute with the State’s Commercial Fisheries Entry Commission could have been obtained from a separate agency and should have been pursued using the federal FOIA.
All records of included agencies are subject to the CPRA unless the Legislature has expressly provided to the contrary. ACLU v. Superior Court, 3 Cal. 5th 1032, 1038-39, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017) (quoting Williams v. Superior Court, 5 Cal. 4th 337, 346, 852 P.2d 377, 19 Cal. Rptr. 2d 882 (1993)); see also City of San Jose v. Superior Court, 2 Cal. 5th 608, 616, 214 Cal. Rprt. 3d 274, 389 P.3d 848 (2017); Sierra Club v. Superior Court, 57 Cal. 4th 157, 166, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013); International Federation of Professional and Technical Eng. v. Superior Court, 42 Cal. 4th 319, 329, 64 Cal. Rptr. 3d 693, 165 P.3d 488 (2007). "Public records" are broadly defined under the CPRA to include "any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." Cal. Gov't Code § 6252(e). “Writings” are defined broadly under the CPRA. Cal. Gov’t Code § 6252(g).
The definition of public records has four aspects: “It is (1) a writing, (2) with content relating to the conduct of the public’s business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.” City of San Jose, 2 Cal. 5th at 617. To qualify as a public record “a writing must relate in some substantive way to the conduct of the public’s business.” Id. at 618. “Generally, any ‘record … kept by an officer because it is necessary or convenient to the discharge of his official duty … is a public record.’” Id. at 618 (quoting Braun v. City of Taft, 154 Cal. App. 3d 332, 340, 201 Cal. Rptr. 654 (1984)). However, records do not have to be in the agency’s custody to be a public record as the CPRA applies to records “prepared, owned, used or retained.” Cal. Gov’t Code § 6252(e) (emphasis added). For example, in City of San Jose, the California Supreme Court held that emails sent to or from public officials through nongovernmental email accounts relating to official agency business are public records under the CPRA even though the city did not maintain the emails on its own servers. Id. at 616.
In so holding, the court recognized that an agency’s actual or constructive possession of records is deemed relevant in determining whether it has an obligation to search for, collect, and disclose material requested. See City of San Jose, 2 Cal. 5th at 623 (holding city had obligation to implement search procedures for records in possession of city employees who used personal accounts to conduct official business); see also Board of Pilot Commissioners for the Bays of San Francisco, San Pablo and Suisan v. Superior Court, 218 Cal. App. 4th 577, 598, 160 Cal. Rptr. 3d 285 (2013) (“[A]n agency has constructive possession of records if it has the right to control the records, either directly or through another person.”) (quoting Consolidated Irrigation Dist. v. Superior Court, 205 Cal. App. 4th 697, 710, 140 Cal. Rptr. 622 (2012) (holding that subconsultants’ files were not within constructive possession of city)); Community Youth Athletic Center v. City of National City, 220 Cal. App. 4th 1385, 1428, 164 Cal. Rtpr. 3d 644 (2013) (holding that agency did have constructive possession of records in consultant’s files and thus was obligated to seek to obtain them in response to CPRA request); cf. Regents of Univ. of Cal. v. Superior Court, 222 Cal. App. 4th 383, 405-07, 166 Cal. Rptr. 3d 166 (2013) (rejecting constructive possession argument where university did not prepare, own, use, or retain individual investment fund information held by private investment companies on behalf of UC Regents).
The definition of public records has been held not to include a database compiled and maintained by county public defender's office which primarily consisted of information from client files, as well as public records, because the core function of the records was to aid the public defender's office in representing indigent clients, which was a private function, not public. Coronado Police Officers Ass'n v. Carroll, 106 Cal. App. 4th 1001, 1008, 131 Cal. Rptr. 2d 553 (2003). Moreover, records maintained by a county auditor-controller for the court pursuant to contract whereby the county manages the court's budgetary and financial matters and where the contract provided that all documents shall remain the property of the court were held to fall outside the provisions of the CPRA as the courts are not subject to the CPRA. Orange County Employees Ass'n v. Superior Court, 120 Cal. App. 4th 287, 209, 15 Cal. Rptr. 3d 201 (2004); but see Crews v. Superior Court, 31 Med. L. Rptr. 1890 (Cal. App. Ct. 2003, unpublished) (holding that records used and retained by county in managing the court's finances pursuant to contract fell within the definition of public records and were required to be disclosed under CPRA).
"'Public records' in the custody of, or maintained by, the Governor's office means any writing prepared on or after January 6, 1975." Cal. Gov't Code § 6252(e).
(1) "Public Records" Defined.
"Public records" subject to the Act are defined by Colo. Rev. Stat. § 24-72-202(6)(a)(I) generally to include all records made, maintained, or kept by the state or by any agency, institution, a nonprofit corporation incorporated pursuant to section 23-5-121(2), C.R.S., or political subdivision of the state (including cities, towns, and counties), or that are set forth in Colo. Rev. Stat. § 29-1-902, and held by any local government-financed entity:
For use in the exercise of functions required or authorized by law or administrative rule; or
Involving the receipt or expenditure of public funds.
A record not made, maintained or kept by a government actor in his official capacity is not a public record. Wick Commc'ns v. Montrose Cty. Bd. of Cty. Comm'rs, 81 P.3d 360 (Colo. 2003) (County manager's private diary was held not a public record); Denver Publ'g Co. v. Bd. of Cty. Comm'rs for Arapahoe Cty., 121 P.3d 190 (Colo. 2005) (sexually explicit text messages exchanged during work hours, on government provided paging devices, are not "public records" because their content does not discuss any official government activity).
(2) A person may request copies, printout, or photographs of any public record that the Act grants the right to inspect. Colo. Rev. Stat. § 24-72-205(1).
(3) "Public records" subject to the Act include "writings," which is defined by Colo. Rev. Stat. § 24-72-202(7) as meaning and including "all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials, regardless of physical form or characteristics." "Writings" also includes digitally stored data, including electronic mail messages. Id. However, computer software is specifically excluded from the definition of "writings" in Colo. Rev. Stat. § 24-72-202(7).
(4) "Public records" also includes the "correspondence" of elected officials, Colo. Rev. Stat. § 24-72-202(6)(a)(II), which is defined by Colo. Rev. Stat. § 24-72-202(1) as a communication sent or received by one or more specifically identified individuals and that is or can be produced in written form, including communications sent via U.S. mail, private courier, and electronic mail. However, "public records" does not include correspondence that is:
Work product, as defined in Colo. Rev. Stat. § 24-72-202(6.5);
Without a demonstrable connection to the exercise of functions authorized by law and does not involve the receipt or expenditure of public funds; or
A communication from a constituent to an elected official that clearly implies by its nature or content that the constituent expects that it is confidential or a communication from the elected official in response to such a communication from a constituent. Colo. Rev. Stat. § 24-72-202(6)(a)(II).
(5) In addition, the following records are expressly designated as public records by statute:
- Disclosure Statements of Public Officials (Colo. Rev. Stat. §§ 24-6-202, et seq.).
Under Colo. Rev. Stat. § 24-6-202, a written disclosure statement must be filed with the Secretary of State within 30 days after their election or appointment by all legislators, the Governor, Lieutenant Governor, Secretary of State, Attorney General, State Treasurer, judges, district attorneys, members of the State Board of Education, Regents of the University of Colorado, and members of the Public Utility Commission.
Disclosure is to include sources of income, investments over $5,000, real estate, offices and directorships, lobbyists, creditors to whom is owed $1,000 or more, and state-regulated businesses with which the official is associated.
The disclosure is also to include the same information for the official's spouse and minor children.
Each disclosure statement is public information, available to any person upon request during normal working hours. Colo. Rev. Stat. § 24-6-202(5).
Income tax returns filed with or in lieu of disclosure statements are also public information under Colo. Rev. Stat. § 24-6-202(6).
- Lobbyist Disclosure Statements (Colo. Rev. Stat. §§ 24-6-301, et seq.).
Under Colo. Rev. Stat. § 24-6-302, all registered professional lobbyists and firms organized for professional lobbying purposes that employ such lobbyists must file a disclosure statement with the Secretary of State that contains information about all contributions received by and spent by lobbyists, gift or entertainment expenditures, names of persons who have received contributions, and other specific information required by Colo. Rev. Stat. § 24-6-301(1.9).
Lobbyists' disclosure statements are public records of the Secretary of State, and shall be open and readily accessible for public inspection. Colo. Rev. Stat. § 24-6-304(2).
- State Auditor Reports.
Reports of the State Auditor shall be open to public inspection except for portions of any report containing recommendations, comments, and any narrative statements, which are released only upon a majority vote of the audit committee. Colo. Rev. Stat. § 2-3-103(2).
Work papers of the State Auditor shall be open to public inspection only upon majority approval of the audit committee. Work papers are not open to public inspection until the completed report has been filed with the committee. Colo. Rev. Stat. § 2-3-103(3).
- Division of Labor. All proceedings of the Division of Labor are public records under Colo. Rev. Stat. § 8-1-106(3).
- Jail Records.
The keeper of the county jail is to keep daily records of the commitment and discharge of all persons delivered to his custody, including date of entrance, name, offense, sentence, fine, age, sex, citizenship, and times and conditions of commitment and discharge. The record shall be open to inspection by the public at all reasonable hours. Colo. Rev. Stat. § 17-26-118.
- County Records.
All books and records required to be in the offices of the County Sheriff, clerk and recorder, treasurer, and clerk of the district and county courts are generally open to examination by any person. Colo. Rev. Stat. § 30-10-101(1). Any officer having the custody of such books and records may make "reasonable and general regulations" concerning their inspection by the public. Colo. Rev. Stat. § 30-10-101(2).
- Court Records.
The judgment record and register of actions in all courts are declared open to public inspection during office hours by Colo. Rev. Stat. § 13-1-119. This statute provides that this information may also be presented on microfilm or computer terminal.
Pursuant to Colorado Supreme Court Chief Justice Directive 05-01, all books, records, pleadings, filings, documents, indexes, calendars, orders, judgments, decrees, minutes, registers of action, and any other materials in any court that are not declared to be private or confidential by statute or specific order shall be open to the public for reasonable inspection at reasonable times during business hours. The general policy is that court materials are open to the public unless they are closed for specific reasons by specific court order.
Although persons other than parties in interest and their attorneys may examine pleadings and other papers filed in actions pending before any court, they may do so at the discretion of the court. Times-Call Publ'g Co. v. Wingfield, 159 Colo. 172, 410 P.2d 611 (1966); see Colo. Rev. Stat. § 30-10-101(1). The Times-Call case holds that a statute that on its face limits the right of access to certain classes of persons, but does not expressly include access to others will, because of First Amendment considerations, be construed to confer discretion to permit access to the media. Moreover, where the subject matter of the action is of public interest, refusal to allow inspection is an abuse of discretion. Id. However in 2018, the Colorado Supreme Court held there is no First Amendment right of access to judicial records. People v. Owens, 420 P.3d 257 (Colo. 2018).
Records in civil cases may be sealed for privacy or similar reasons. Colo. R. Civ. P. 121, § 1-5.
In Office of State Court Administrator v. Background Info. Sys., 994 P.2d 420 (Colo. 1999), the Supreme Court upheld its own directive prohibiting disclosure of digitized court records in bulk (computerized data).
- Real Estate Records.
Records of the county clerk and recorder pertaining to interests in real property are public records under Colo. Rev. Stat. § 30-10-101(1). However, under Colo. Rev. Stat. § 30-10-101(2), the clerk may make "reasonable and general regulations" concerning the inspection of such books and papers by the public.
Torrens Titles. Records of titles to real property registered under the Torrens Title Registration Act in the office of the registrar of titles are public records. Colo. Rev. Stat. § 38-36-150.
- Professions and Occupations. The following are specifically declared to be public records:
Chiropractors. Records of the proceedings of the State Chiropractic Board and the register of all applications for licensing and all licensed chiropractors are declared to be public records under Colo. Rev. Stat. § 12-33-110.
Dentists. Records by the State Dental Board of all persons to whom dental licenses and license renewal certificates have been granted, and the numbers and dates of granting are declared by Colo. Rev. Stat. § 12-35-120 to be public records open to public inspection during ordinary hours.
Psychologists. Records by the grievance board of the names, addresses, educational qualifications, disclosure statements, therapeutic orientations or methodologies, and years of experience in each specialty area of all person practicing psychotherapy in the state are open to public inspection under Colo. Rev. Stat. § 12-43-220(1).
Real Estate Commission. Records of real estate licenses, investigations, and proceedings of the Real Estate commission kept in its office or in the Department of Regulatory Agencies are open to public inspection under Colo. Rev. Stat. § 12-61-112(1).
- Motor Vehicle Records.
Records of the Department of Revenue pertaining to motor vehicle registrations, licenses and permits are declared to be confidential, consistent with the federal Driver's Privacy Protection Act of 1994 (18 U.S.C. § 2721, et seq.). Such records may be obtained by various parties in connection with motor vehicle matters, debt collection, litigation, or "research activities . . . so long as the personal information is not published, redisclosed, or used to contact the parties in interest." Colo. Rev. Stat. § 24-72-204(7) (2004).
Accident reports made by sheriffs, police, coroners, or law enforcement officers are public records under Colo. Rev. Stat. § 42-4-1610; 42-1-206. Accident reports made by any person involved in an accident, however, are declared confidential by Colo. Rev. Stat. § 42-4-1610. Clark v. Reichman, 130 Colo. 329, 275 P.2d 952 (1954).
Mobile home titles are public records under Colo. Rev. Stat. § 42-6-141.
- Election Records.
All certificates of designation, petitions, certificates of nomination, acceptances, declinations, and withdrawals filed in connection with public elections are declared public records by Colo. Rev. Stat. § 1-4-504.
Election ballots are also subject to inspection under the conditions specified in the Act. Colo. Rev. Stat. § 24-72-205.5.
- Voter Registration Records.
Voter registration books in the custody of the county clerk and recorder are declared to be public records subject to examination during office hours under Colo. Rev. Stat. § 1-2-227.
- Division of Correctional Industries.
Records of the Division of Correctional Industries, including accounts of all monies received by and disbursed on its behalf, are public records open to inspection under Colo. Rev. Stat. § 17-24-107.
- Minutes of Meetings of State Agencies.
The minutes of a meeting of any state board, committee, commission or other policy-making or rule-making body shall be open to public inspection under Colo. Rev. Stat. § 24-6-402(d)(I).
(6) Criminal Records.
Criminal justice records are the subject of a separate part of the Open Records Act, Colo. Rev. Stat. §§ 24-72-301, et seq. Records of official actions of criminal justice agencies are declared open to inspection by any person by Colo. Rev. Stat. § 24-72-303; all other records of criminal justice agencies are open for inspection but subject to withholding at the discretion of the records custodian upon a determination that disclosure would be "contrary to the public interest."
Records of Official Actions. Records of "official actions" include records of any arrests, indictments, releases from custody, parole decisions, sentencing decisions, and dispositions of cases. Colo. Rev. Stat. § 24-72-302(7).
Other Records. All criminal justice records other than records of official actions are open to inspection by any person at reasonable times at the discretion of the official custodian. Colo. Rev. Stat. § 24-72-304(1).
- Grounds for denial of inspection.
Disclosure contrary to statute or court rule or order. Colo. Rev. Stat. § 24-72-305(1).
Disclosure "contrary to public interest." The custodian may deny access to records of investigations, intelligence information, or security procedures of any sheriff, district attorney, police, or other law enforcement agency. Colo. Rev. Stat. § 24-72-305(5). See Losavio v. Mayber, 178 Colo. 184, 496 P.2d 1032 (1972) (holding under former law that some official action records may not be available, overruling § 24-72-303).
Where the police have a legitimate interest in avoiding disclosure of potential criminal conduct not ripe for prosecution, full access may be denied to police intelligence information, including taped recordings of an informant's statements that mentioned the petitioner's name. Pretash v. City of Leadville, 715 P.2d 1272 (Colo. App. 1985).
Solicitation of Business. Criminal justice records and records of official actions are not to be used for the purpose of soliciting business for pecuniary gain. The custodian shall deny access to records unless the person making the request signs a statement affirming that the records will not be used to solicit business. Colo. Rev. Stat. § 24-72-305.5. See Lanphere & Urbaniak v. Colorado, 21 F.3d 1508 (10th Cir. 1994) (Colo. Rev. Stat. § 24-72-305.5, although a content-based restriction on commercial speech under the First Amendment, is valid under the Central Hudson framework.)
- Procedure upon denial.
The applicant can request a written statement from the custodian of the grounds for the denial of access. The statement must be provided within 72 hours and must cite the law or regulation under which access is denied or the general nature of the public interest protected. Colo. Rev. Stat. § 24-72-305(6).
The person denied access can also apply to the district court for an order directing the custodian to show cause why inspection of the record should not be allowed. The court can order the custodian to permit inspection if denial was improper, and may also award the applicant court costs, attorney fees, and a $25 per day penalty if the denial was arbitrary and capricious. Colo. Rev. Stat. § 24-72-305(7).
iii. Types of Records. "Criminal justice records" subject to inspection include books, papers, cards, photographs, tapes, recordings, and other documentary materials made, maintained, or kept by any criminal justice agency in the state for use in the exercise of functions required or authorized by law or administrative rule. Colo. Rev. Stat. § 24-72-302(4). Harris v. Denver Post Corp., 123 P.3d 1166 (Colo. 2005).
- Copies. Fees for copies are set by the agency that has the records. Colo. Rev. Stat. § 24-72-306(1). If the custodian does not have facilities for making copies, the person requesting the records is to be granted access to the records to make copies. Colo. Rev. Stat. § 24-72-306(2).
- Restricted Records. In certain areas, records of arrests, indictments, charges, and the identities of persons may be limited in release or sealed.
Sexual Assault Victims. The name of any victim of a sexual assault or alleged sexual assault is to be deleted from any criminal justice record prior to its release to any individual or agency other than a criminal justice agency when such record bears the notation "SEXUAL ASSAULT" as prescribed in Colo. Rev. Stat. § 24-72-304(4).
Authors of Correspondence. The court may order sealed any information in a criminal justice record, including basic identification information, to protect the author of any correspondence contained in the record. Colo. Rev. Stat. § 24-72-308(1.5).
Applicants in Regulated Professions or Occupations. Any division, board, commission, or person responsible for the licensing, certification, or registration functions for any governmental entity, in addition to any other authority conferred by law, may use fingerprints to access, for comparison purposes, arrest history records of any licensee, registrant, or person certified to practice a profession or occupation or applicant thereof, or any employee or prospective employee of a licensee, registrant, or person certified to practice an occupation or profession. Colo. Rev. Stat. § 24-72-305.4(1).
- Sealed Records.
Criminal records may be sealed by court order upon the petition of a person in interest upon a finding that harm to the person's privacy or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records. Colo. Rev. Stat. § 24-72-308(1)(c). See R.J.Z. v. People, 104 P.3d 278 (Colo. App. 2004); People v. Bushu, 876 P.2d 106 (Colo. App. 1994); D.W.M. v. District Court, 751 P.2d 74 (Colo. App. 1988).
Records pertaining to traffic infractions and convictions for driving under the influence of alcohol or drugs and convictions for offenses involving unlawful sexual behavior may not be sealed. Colo. Rev. Stat. § 24-72-308(3).
Basic identification information is not subject to an order to seal records. Colo. Rev. Stat. § 24-72-308(1). This includes the name, place and date of birth, last known address, Social Security number, occupation and address of employment, physical description, photograph, handwritten signature, sex, fingerprints, and any known aliases of any person. Colo. Rev. Stat. § 24-72-302(2).
Upon an order to seal records, they are deemed not to exist, and the person who is the subject of the records may lawfully deny the criminal record. Colo. Rev. Stat. §§ 24-72-308(1)(d) and 24-72-308(1)(f). See D.W.M. v. District Court, 751 P.2d 74 (Colo. App. 1988).
After records have been sealed, inspection may be permitted by the court only upon the petition of the person who is the subject of the records or by the prosecutor, and only for reasons identified in the petition. Colo. Rev. Stat. § 24-72-308(1)(e).
In general, if a person is not charged, is acquitted or the charges are dismissed, the arrest and criminal information records of that person may be sealed upon the petition of the person in interest. Colo. Rev. Stat. § 24-72-308(1)(a)(I). See People v. D.K.B., 843 P.2d 1326 (Colo. 1993) (convicted persons may not have records sealed). However, arrest and criminal records information may not be sealed if an offense is not charged due to a plea agreement in a separate case, or a dismissal occurs as part of a plea agreement in a separate case. Colo. Rev. Stat. § 24-72-308(1)(a)(II).
vii. Electronic Mail.
The status of electronic mail as a public record is addressed in Colo. Rev. Stat. § 24-72-204.5. See Vol. 25 No. 10 Colorado Lawyer p. 99 (Oct. 1996).
Every state or agency, institution, or political subdivision thereof that maintains an electronic mail communications system is required to have adopted a written policy on any monitoring of electronic mail communications and the circumstances under which it will be conducted. Colo. Rev. Stat. § 24-72-204.5(1).
The policy shall include a statement that correspondence in the form of electronic mail may be a public record under the public records law and may be subject to public inspection under Colo. Rev. Stat. § 24-72-203. Colo. Rev. Stat. § 24-72-204.5(2).
All records of state and local public agencies—and of all private persons and entities operating for or on behalf of such agencies—are subject to the Act unless specifically exempted from disclosure. The exemptions set forth in the Act, together with any other exemption located elsewhere in the Code, “shall be interpreted narrowly to exclude only those portions of records addressed by such exception.” O.C.G.A. § 50-18-70(a). “It shall be the duty of the agency having custody of a record to provide all other portions of a record for public inspection or copying.” § 50-18-72(b).
Records included are those made, maintained or kept by or in possession of any public agency or any “officer or employee of a public agency pursuant to the officer's or employee's official duties and which is related to the functions, activities, programs or operations of any public agency.” K.S.A. 45-217(g)(1)(A) and (B). Exemptions are outlined specifically in K.S.A. 45-221(a).
By statutory decree, it is declared to be the public policy of the state that public records shall be open for inspection by any person unless otherwise provided by the Kansas Open Records Act (KORA), and KORA shall be liberally construed and applied to promote such policy. K.S.A. 45-216(a). Courts are required to liberally construe and apply KORA to promote a policy of open inspection of public records. Wichita Eagle and Beacon Publ’g. Co., Inc. v. Simmons, 50 P.3d 66, 274 Kan. 194 (2002). It is state public policy that public records shall be open for inspection by any person, and KORA shall be liberally construed and applied to promote such policy. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 997 P.2d 681, 28 Media L. Rep. 1617 (2000). “The function of liberal construction is called into use where there is ambiguity in the language of the statute, or, in other words, where there are one or more interpretations which may fairly be made.” Salina Journal, et al., v. Brownback, et al., 54 Kan. App. 2d 1 (2017).
The act does not cover records owned by a private person or entity which are not related in functions, activities, programs or operations funded by public money or records made, maintained or kept by members of the legislature or other governing body. K.S.A. 45-217(g)(3)(A) and (B). However, under such circumstances, "private person" shall not include an officer or employee of a public agency who is acting pursuant to the officer's or employee's official duties. K.S.A. 45-217(g)(3)(A). It also does not include employer records relating to the employer's individually identifiable contributions made on behalf of employees for workers' compensation, social security, unemployment insurance or retirement. K.S.A. 45-217(g)(3)(C). However, employer records relating to lump-sum payments for contributions as described in K.S.A. 45-217(g) are disclosable. K.S.A. 45-217(g)(3)(A). A public agency is not required to create a record or to prepare a report or conduct an investigation upon a request for information. Kan. Att’y Gen. Op. 1993-126.
The act does not cover records which are made, maintained or kept by an individual who is a member of the legislature or of the governing body of any political or taxing subdivision of the state. K.S.A. 45-217(g)(3)(B). This is intended to “exclude records kept by individual members but not records of the governing bodies they serve. It excuses individual members of such governing bodies from the burden of producing records that they maintain personally in their performance of official duties, but the records of the governing bodies they serve are still considered public records and thus must be made available. The person seeking the records of the governing body must get them from the central office rather than from the individual.” Ted Frederickson, Letting the Sunshine In, 33 Kan. L. Rev. 205, 221 (Winter 1985).
The Kansas Open Records Act does not require provision of records based upon a standing request or prospective request for documents not yet in existence. Kan. Att’y Gen. Op. 98-51.
“The primary purpose of G.L. c. 66, § 10, is to give the public broad access to government documents. … To that end, disclosure is favored by a ‘presumption that the record sought is public.’” Harvard Crimson, Inc. v. President and Fellows of Harvard College, 445 Mass. 745, 749, 840 N.E.2d 518, 522 (2006), quoting G.L. c. 66, § 10(c).
A public record includes “all books, records, papers, accounts, letters, maps, photographs, films, cards, tapes, recording or reproductions thereof, and any other documentary materials, regardless of physical form or characteristics, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction or performance of any business, transaction, work, duty or function of any public body, or required to be maintained by any public body.” § 25-61-3(b).
The Right to Know Law requires that commonwealth and local agencies provide access to “public records,” that legislative agencies provide access to “legislative records,” and that judicial agencies provide access to “financial records.” 65 Pa. Stat. Ann. §§ 67.301-304. The Law states that such records are then “presumed to be available in accordance with the act.” 65 Pa. Stat. Ann. § 67.305; see also Edinboro Univ. of Pa. v. Ford, 18 A.3d 1278 (Pa. Commw. Ct. 2011) (holding that records are deemed “public” as soon as an agency “receives” them from a non-governmental entity). That presumption, however, “shall not apply” if the record is “exempt” under the Law, “protected by privilege,” or “exempt from disclosure under any other state or federal law or regulation or judicial order or decree.” 65 Pa. Stat. Ann. § 67.305. Further, the requester bears the burden of proving that the agency possesses or controls the relevant records. See, e.g., Office of Gov. v. Bari, 20 A.3d 634, 640 (Pa. Commw. Ct. 2011); see also Bohman v. Clinton Twp. Vol. Fire Co., 1238 C.D. 2017, 2019 WL 2399964, at *8 (Pa. Cmmw. May 8, 2019).
The Law, however, has a large list of documents exempted from disclosure. The burden rests on the commonwealth, local, legislative or judicial agency to prove that the record is exempt. 65 Pa. Stat. Ann. § 67.708(a). The exemptions are set forth at 65 Pa. Stat. Ann. § 67.708(b).
The Law also has separate provisions providing for access to certain information and records of “state-related institutions” (65 Pa. Stat. Ann. § 67.1501-1503) and to certain “state contract information” (65 Pa. Stat. Ann. § 67.1701-1702).
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 Federal or State law, regulation or judicial order or decree.” 65 Pa. Stat. Ann. § 67.306. Elsewhere the Law makes the same point clear: “If the provisions of this act regarding access to records conflict with any other Federal or State law, the provisions of this act shall not apply.” 65 Pa. Stat. Ann. § 67.3101.1. In other words, if some other Pennsylvania or federal statute, regulation or order requires or prohibits access, the Law does not change that. This is consistent with court decisions under the old act holding that “the generic definition of a ‘public record’ contained within the Right-to-Know Act [incorporates] by implication those specific definitions of public record contained in statutes allowing for public access to particular documents of particular agencies.” Marvel v. Dalrymple, 393 A.2d 494, 498 (Pa. Commw. Ct. 1978) (interpreting old act); see also Pa. State Police v. Office Open Records, 5 A.3d 473, 483 (Pa. Commw. Ct. 2010) (citations omitted); Jones v. Office of Open Records, 993 A.2d 339 (Pa. Commw. Ct. 2010) (holding 37 Pa. Code § 61.2 excludes probation and parole investigation reports from the definition of “public record”).
Under the old act, Pennsylvania courts held that even documents that are not available under the Right-to-Know act may still be subject to discovery under the Rules of Civil Procedure in a civil suit against a government agency. Commonwealth v. Kauffman, 605 A.2d 1243, 1245-46 (Pa. Super. 1992) (interpreting the old act). Compare Kauffman, with Pastore v. Commonwealth Ins. Dep’t., 558 A.2d 909, 913-14 (Pa. Commw. Ct. 1989) (where the court refused to allow documents to be discovered when they fell within the investigation exception to the Right-to-Know Law) (interpreting the old act). This principle should remain the law under the new law.
The Act covers virtually all information possessed by governmental bodies. Section 552.002 makes public "information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business" by a governmental body or for a governmental body, and the governmental body owns the information or has a right of access to it. The Texas Supreme Court has held that a document labeled "draft" is public information if, under a law or ordinance or in connection with the transaction of official business, it is collected, assembled, or maintained by or for a governmental body. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 358-59 (Tex. 2000).
Although the Act does not require governmental bodies to prepare new information (Tex. Att'y Gen. ORD-483 (1987); Tex. Att'y Gen. ORD-452 (1986); Tex. Att'y Gen. ORD-342 (1982); A & T Consultants, Inc., 904 S.W.2d at 676, some compilation may be required. See Op. Tex. Att'y Gen. No. JM-672 (1987) (suggesting that some compilation by way of a minimal computer search using an existing computer program may be required); § 552.231. A governmental body is not required under this chapter to allow the inspection of or to provide a copy of information in a commercial book or publication purchased or acquired by the governmental body for research purposes if the book or publication is commercially available to the public. § 552.027.
The Act applies to any information in a governmental body's possession, even if originally created by an outside consultant or some other entity. Tex. Att'y Gen. ORD-335 (1982); see Tex. Att'y Gen. ORD-317 (1982); Tex. Att'y Gen. ORD-192 (1978). Even information located in the office of an outside consultant may be subject to the Act if (1) the information relates to a governmental body's official duties, (2) the consultant acts as the governmental body's agent in gathering the information, and (3) the governmental body is entitled to access to the information. See Tex. Att'y Gen. ORD-585 (1991); Tex. Att'y Gen. ORD-462 (1987) (records of law firm considered “public information” because they were prepared at direction of and under substantial control by University of Houston, for which law firm was acting as agent). But see Tex. Att'y Gen. ORD-631 (1995) (noting that such information may be exempted from disclosure under Section 552.111 where it includes advice, recommendations, and opinions regarding administrative and personnel matters of broad scope that affect the governmental body's policy mission). A governmental body cannot authorize its agents to keep information confidential (even from the body) if the governmental body itself has no authority to keep such information confidential. Tex. Att'y Gen. ORD-585 (1991). However, the addition of Tex. Gov’t Code § 306.008 expands on lawmakers’ ability to keep certain information private by deeming it legislative privilege or confidential. This covers any type of private communication amongst lawmakers and their staffs that “concerns a legislative activity or function.” Tex. Gov’t Code § 306.008(a).
Every record falling within the definition of “public record” is covered by the Act if it is used in the transaction of public business. Va. Code Ann. § 2.2-3701.
Unless a record is in the custody of an entity that is categorically excluded from the operation of the Act, it is subject to the Act. The operative question is whether the public body with custody of the record may deny access in response to a request. This may occur if (a) the record is made strictly confidential by law, often by a statute not embodied in the Act itself, or (b) the record may be withheld under a discretionary exclusion embodied in the Act.
There can be considerable confusion, including confusion by the courts, about the distinctions among (a) a record being “subject to” the Act (almost always the case), (b) a record being exempt from the Act because a statute (such as a tax law) makes it strictly confidential and trumps the Act, and (c) a record being subject to discretionary withholding by a public body under one of the many exclusions set forth in the Act.