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D. Budgets

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  • Alaska

    There is no exception in the Public Records Act restricting access to budgets, and the budgets of various governmental units will often be among the documents the public is most interest in seeing.  Certain documents generated in the budget process, however, may be privileged.  In Capital Information Group v. Office of the Governor, 923 P.2d 29 (Alaska 1996), the Alaska Supreme Court dealt with the trial court’s denial of two sets of documents sought by the Capital Information Group ("CIG"), a news organization that publishes periodicals describing the activities of the Alaska state government. The first consisted of budget proposals sent from each executive department commissioner to the Office of Management and Budget, and the second, each department's proposals for new legislation sent to the governor's legislative liaison. In each case, the requests were denied on the grounds that the documents were protected by the deliberative process privilege. The trial court required the state to submit the records requested by CIG for in camera review, and thereafter granted the state's motion for summary judgment based on the deliberative process privilege.

    In CIG, the Alaska Supreme Court found that the legislative proposals at issue were exempt from disclosure pursuant to the deliberative process privilege. The deliberative process privilege is discussed in more detail in Open Records Guide, §I.B.1.b. It said they were pre-decisional, and that arguments that they were not, because they were a one-way communication, were without merit because this did not mean that they were not deliberative. The court said that the privilege is meant to further candor and the giving of advice or opinion to the chief executive, and the governor need not respond to a document for candor to be desirable.

    By contrast, the court said that the budget impact memoranda that CIG sought, which were documents required by a specific state statute to be sent to the Office of Management and Budget, were not exempt from disclosure under the deliberative process privilege. The statute provides that these documents and other related documents are "public information" after the date they are forwarded. AS 37.07.050(g). Nonetheless, the court found that the budget impact memoranda met the threshold requirements for the deliberative process privilege. They were pre-decisional because they were submitted before the governor made his final determinations as to his proposed budget. They were deliberative because they were meant to be, and clearly were, a direct part of the deliberative process, allowing the governor to hear the needs and opinions of each of the agencies that needed to be accommodated in the budget. The court said that since the documents were pre-decisional and deliberative, it would normally proceed to question whether the demonstrated need for disclosure outweighed the government's interest in confidentiality. However, it found that in this case the legislature had already weighed those interests and resolved them in favor of public disclosure. The court found particularly compelling the fact that the document itself was created as a result of a legislative requirement, and that in mandating that the report be made and submitted to the OMB, the legislature had declared that the report should be public, implicitly determining that the need for public disclosure outweighed any risk to candor on the agency's part. It said that this determination was entitled to significant weight, given the legislature's constitutional power to allocate executive department functions and duties among the offices, departments and agencies of the state government.

    Related to this, the Office of Management and Budget provides technical assistance to the governor and legislature on a variety of governmental matters including identifying long range goals and objectives, preparing a state comprehensive development plan and assisting with coordination in preparation of agency plans and programs, reviewing planning within state government as necessary for receipt of federal and other funds, and other functions. OMB must keep a complete file of internal audit reports resulting from its audits, and a complete file of the internal audit work papers and other related supportive material. Internal audit work papers and other related supportive material are confidential, and internal audit reports are confidential until released by the governor. However, internal audit work papers and other related supportive material containing information, data, estimates, and statistics obtained during the course of an audit may be kept confidential only to the extent required by law applicable to the agency from which the material is or was obtained. AS 44.19.147.

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  • Arizona

    Water facilities districts will keep several records, including its annual budget, open to inspection by the public.  A.R.S. § 48-5913(A)(4).

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  • Arkansas

    Records and communications concerning the budget of a public entity are almost certainly public records and subject to disclosure. See Ark. Op. Att’y Gen. Nos. 2006-096 (sheriff’s budget), 2000-150 (Game and Fish Commission’s budget).

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  • California

    Public, unless preliminary and thus arguably exempt under Sections 6254(a) or 6255. Cal. Gov’t Code §§ 6254(a), 6255. If an agency subject to the Ralph M. Brown Act considered the budget in connection with any open meeting, the agency is precluded from relying on Section 6255 as a basis for its withholding. Cal. Gov’t Code § 54957.5(a).

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  • Colorado

    Open. Budgets fall within the statutory definition of a public record. See Colo. Rev. Stat. § 24-72-202(6)(a)(I).

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  • Connecticut

    There are no specific provisions or reported authorities regarding budgets.

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  • Delaware

    If they meet the definition of public records, budgets are not exempt.

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  • District of Columbia

    D.C. Code § 2-534 (a)(3) requires disclosure of "[b]udget requests, submissions and reports available electronically that agencies, boards and commissions transmit to the Office of Budget and Planning during the budget development process, as well as reports on budget implementation and execution prepared by the Office of the Chief Financial Officer, including baseline budget submissions and appeals, financial status reports and strategic plans and performance-based budget submissions."

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  • Georgia

    Budgets are not exempt from the Act’s disclosure requirements.

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  • Hawaii

    Budget information submitted by organizations granted licenses to operate special treatment facilities, and personal information about the licensee's employees and the residents in such facilities are protected from required disclosure under the UIPA. Special Treatment Facility Information, OIP Op. Ltr. No. 89-13 (Dec. 12, 1989). The budget information is confidential commercial and financial information and Haw. Rev. Stat. § 224-5 provides that information directly or indirectly identifying a person who is a patient in a special treatment facility is confidential. Id.

    A county budget ordinance must be available for public inspection and copying notwithstanding the fact that it contained the salaries paid to identified civil service employees. Kauai County Budget Ordinance, OIP Op. Ltr. No. 91-17 (Oct. 7, 1991).

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  • Idaho

    There is no provision in the Act relating to public records requests for budgets, thus they are presumed to be open to disclosure.

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  • Illinois

    Open; “[a]ll records relating to the obligation, receipt, and use of public funds of the State, units of local government, and school districts are public records subject to inspection and copying by the public.” 5 ILCS 140/2.10.

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  • Indiana

    The Act does not specifically address budgets, which are subject to disclosure under the general provisions of the statute.

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  • Iowa

    Governor’s recommendations are considered confidential until made public by the governor. Iowa Code § 8.35A(2).

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  • Kansas

    No applicable law.

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  • Kentucky

    Budgets that are prepared, owned, used, in the possession of, or retained by a public agency are open records and are not exempt from disclosure. Ky. Rev. Stat. 61.870(2).

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  • Louisiana

    Budgets are covered by the Act.  Carter v. Fench, 322 So.2d 305 (La.App. 1st Cir. 1975).

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  • Maine

    Budgets are matters of public record.  In addition, any “discussion of a budget or budget proposal” is public, regardless of whether the discussion involves particular employees’ salaries. 1 M.R.S.A. 405(6).  Maine provides certain state budget information, including payroll and vendor payment information on its website, here: http://opencheckbook.maine.gov/transparency/index.html (last visited Oct. 2, 2018.

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  • Maryland

    There is no statutory or case law addressing this issue. But see 66 Op. Att'y Gen. 98 (1981) (budget recommendations requested by and submitted to the Governor in confidence by various executive agencies are subject to Executive Privilege).

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  • Michigan

    Not specifically addressed.

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  • Nebraska

    Budget documents relating to government bodies ought to be public records, as no statutory exceptions would apply.

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  • Nevada

    There is no statutory or case law addressing the issue, but NRS 353.205 contains certain provisions regarding the confidentiality of parts of proposed state budgets.

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  • New Hampshire

    Administrative agency budget requests and income estimates are not confidential and subject to public review under RSA 91-A. Chambers v. Gregg, 135 N.H. 478 (1992).

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  • New Jersey

    N.J.S.A. 47:1A-5€ provides that “Immediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information.”

    Home News v. Board of Educ. of Borough of Spotswood, 286 N.J. Super. 380 (App. Div. 1996) involved a request for copies of the proposed school district budget and supporting documentation. The Court held that under the Right To Know Law, which preceded OPRA and defined a public record as one that is required by law to be made, maintained, or kept on file by a public body, the draft budget was not a government record, as there was no requirement that it be made, maintained or kept on file.

    OPRA amended the definition of “government record” by deleting the reference to records that are requiredto be made, maintained or kept on file. Therefore, under OPRA, draft budgets, as well as, final budgets are “government records.” However, the governing body may assert that portions of the draft budgets should be redacted, if they fall under the “advisory, consultative and deliberative” exemption from access provided for in N.J.S.A. 47:1A-1.

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  • New Mexico

    State budgets are not exempted from public disclosure under NMSA § 14-2-1(A) and are reported on the New Mexico Sunshine Portal.  See New Mexico Sunshine Portal, http://sunshineportalnm.com/ (December 20, 2017).

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  • North Carolina

    Budgets are not treated independently in the statutes but would meet the threshold definition of public records. G.S. § 132-1.

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  • North Dakota

    Please see the discussion of statutory exemptions, outlined above.

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  • Ohio

    Budgets of public offices are public records.  See State ex rel. Keating v. Skelton, Ohio App. 6th Dist. No. L-08-1414, 2009-Ohio-2052 (Apr. 23, 2009)(holding that the dog warden’s budget must be turned over where no argument was made for preventing the release).

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  • Oklahoma

    The Open Records Act provides that ever public body or public official has a duty to maintain records on the receipt and expenditure of any public funds.  51 O.S. § 24A.4.  Public officials may keep confidential personal notes and personally created materials “other than departmental budget requests.” 51 O.S. § 24A.9.

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  • Oregon

    Under ORS 291.223, the state budget is prepared by the Governor every two years but cannot be publicly disclosed until December 1 of each even-numbered year. Other than ORS 291.223, there appears to be no statutory or case law specifically addressing budgets as public records. The Oregon Attorney General’s office determined, in one case, that a budget prepared by a public university for a foundation that was not a “public body” was nonetheless a nonexempt public record. Attorney General Manual, Appendix F (Public Records Order, April 22, 1988, Peter Murphy).

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  • Rhode Island

    There is no statutory or case law addressing this issue.

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  • South Carolina

    A budget, whether a proposed budget or an adopted budget, is a public record subject to disclosure.  S.C. Code Ann. §30-4-20(3).

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  • South Dakota

    Presumably open if final product. See SDCL §1-27-1.7 regarding “recommendations.”

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  • Tennessee

    Presumably open.

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  • Texas

    Budgets are subject to public disclosure. Tex. Att’y Gen. ORD-8594 (2004). Supporting documentation also is subject to disclosure unless it is confidential under other law. Id.

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  • Utah

    Budget recommendations of the governor’s office are not public if their disclosure “would reveal the governor’s contemplated policies or contemplated courses of action before the governor has implemented or rejected those policies or courses of action or made them public.” Utah Code § 63G-2-305(29). Also confidential are “records of the Office of the Legislative Fiscal Analyst relating to budget analysis, revenue estimates, and fiscal notes of proposed legislation before issuance of the final recommendations in these areas.” Id. § 63G-2-305(30). Budget documents and financial statements of “public associations,” however, are public records if fifty percent or more of the public association’s members are elected or appointed public officials from Utah and membership dues or other financial support come from public funds. Id. § 63G-2-901.

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  • Vermont

    Records of interdepartmental and intradepartmental communications in any county, city, town, village, town school district, incorporated school district, union school district, consolidated water district, fire district, or any other political subdivision of the State are exempt from disclosure to the extent those communications include preliminary information that precedes the presentation of the budget at a public meeting. 1 V.S.A. § 317(c)(17).

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  • Virginia

    Budgets fall within the definition of "public records" and are subject to disclosure. Va. Code Ann. § 2.2-3701. Individual persons who enjoy “working papers” protection might claim that personal, preliminary records relating to budget development may be withheld.

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  • Washington

    The only provision of the PRA addressing budgets is RCW 42.56.100, which includes within the definition of “public records” budgets held by the Clerk of the State House of Representatives and of the Secretary of the Senate.  For other agencies, budgets are treated no differently than any other public record.

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  • West Virginia

    Generally, final versions of budgets of West Virginia governmental entities should be disclosed upon receipt of a FOIA request. It is possible that government bodies may claim that proposed budgets fall within exemption 8 of the FOIA, § 29B-1-4(a)(8). That exemption relates to internal pre-decisional information. See Daily Gazette v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996).

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  • Wyoming

    Budgets are open to inspection. The Wyoming Supreme Court has ruled than the public interest in access is never greater than it is in records related to the expenditure of public funds and exceptions in the statutes to public access must be “expressly textual.” Houghton v. Franscell, 870 P.2d 1050 (Wyo. 1994).

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