Before the enactment of section 2695 of the Alabama Code of 1923, there was no statutorily protected right of access to public records in Alabama. See Excise Comm'r of Citronelle v. State ex rel. Skinner, 179 Ala. 654, 60 So. 812 (Ala. 1912). At common law, however, the records of judicial proceedings were open to inspection by any citizen, and there was a qualified common law right of access to nonjudicial records. 60 So. at 813. The Supreme Court of Alabama described the qualified right of access to nonjudicial public records as follows:
With respect to records other than judicial, no statute to the contrary intervening, the public generally have no absolute right of access or inspection. And one who demands that right can be properly required to show that he has an interest in the document which is sought, and that the inspection is for a legitimate purpose. But, for the public and for individuals showing such a right, the custodian of official documents is a trustee; and while he may and should preserve them against impertinent intrusion, he should allow ready access to those who have an interest in them, and who claim access for the purpose of promoting or protecting it.
60 So. at 813. Furthermore, the court defined "interest" broadly, as follows:
[I]f the document may furnish evidence or information relative to any action or proceeding which [the requester] is qualified to bring, or which he may be called upon to defend, whether actually pending or not, he is entitled to such inspection. And "it is not necessary that the interest be private, capable of sustaining a suit or defense on the personal behalf of the party desiring the inspection; but he has the right of inspection whenever, by reason of his relation to the common interest, he may act in such a suit as the representative of a common or public right.
60 So. at 813-14 (citations omitted); see also Brewer v. Watson [Brewer III], 71 Ala. 299, 303 (1882), which stated:
We regard it as settled, that the book kept by the auditor, in obedience to the requirement of the statute, in which he enters the accounts of tax collectors with the State, is a public writing or record, subject to the inspection of any citizen having a legitimate interest, which an inspection will subserve.
When the Alabama Code of 1923 was adopted, the state's first open records statute provided as follows: "Every citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute." Ala. Code § 2695 (1923). This provision continued unchanged until 1983, when the Alabama Legislature added a provison exempting from public access the registration and circulation records of public, public school, and college and university libraries. Another change came in 2004, when the law (hereinafter "the Public Records Law") was amended to exempt records concerning security plans, procedures, assessments, measures, or systems, and any other records relating to, or having an impact upon, the security or safety of persons, structures, facilities, or other infrastructures, including without limitation, information concerning critical infrastructure and critical energy infrastructure information, the public disclosure of which could reasonably be expected to be detrimental to the public safety or welfare, and records the disclosure of which would otherwise be detrimental to the best interests of the public. Ala. Code § 36-12-40.
When compared to other states' public records statutes, section 36-12-40 is a sweeping statement of public policy concerning the right of citizens to inspect public records. Because of its breadth, however, the law regarding access to public records in Alabama has received substantial gloss by judicial decision, with the Alabama Supreme Court recognizing a number of possible grounds for denying access even where there is no express statutory provision for doing so. See Stone v. Consol. Publ’g Co., 404 So. 2d 678 (1981) (establishing the basic grounds for possible withholding of records absent an express statutory basis for doing so). The court also has insisted that these possible grounds of exclusion be narrowly construed, however, so that the Public Records Law will continue to be liberally applied in favor of public access. See Chambers v. Birmingham News Co., 552 So. 2d 854 (Ala. 1989).
The right of access to public meetings in Alabama was first guaranteed by legislative enactment in 1915 and became sections 5254 and 5255 of the Alabama Code of 1923. Section 5254 provided that:
No executive or secret session shall be held by any of the following named boards, commissions or courts of Alabama, namely: The Alabama public service commission, school commissions of Alabama, the state board of administration, board of compromise of Alabama, state or county tax commissions of Alabama, any court of county commissioners or board of revenue, any city commission or municipal council, or any other body, board or commission in the state charged with the duty of disbursing any funds belonging to the state, county or municipality, or board, body or commission to which is delegated any legislative or judicial function; except that executive or secret sessions may be held by any of the above named boards or commissions when the character or good name of a woman or man is involved.
Section 5255 provided that persons who violated section 5254 would be guilty of a misdemeanor and would be fined not less than $10 nor more than $500. The 1923 statutes were combined into a single statute in 1975, Ala. Code § 13-5-1 (1975), and the provisions of the 1923 Code remained, almost verbatim, at section 13A-14-2 (1994) of the Alabama Code until 2005.
In March 2005, the Alabama Legislature passed the Alabama Open Meetings Act, which took effect on Oct. 1, 2005, and repealed section 13A-14-2. See Ala. Code § 36-25A-1 et seq. The Alabama Open Meetings Act provided a much higher level of detail than the former open meetings law, and while it provided more exceptions than the former law, it has also tightened judicially created loopholes in the former law.
The Open Meetings Act was further amended in 2015. See 2015 Ala. Acts 2015-340. Court decisions interpreting the 2005 Act etched away at notions of citizen standing to sue and allowed public bodies to conduct secret “serial” meetings to avoid gathering a quorum at one time. See, e.g., Slagle v. Ross, 125 So. 3d 117 (Ala. 2012) (allowing serial meetings); Ex parte Ala. Educ. Television Comm'n, 151 So. 3d 283, 288 (Ala. 2013), as modified on denial of reh'g (Jan. 24, 2014) (finding lack of standing under former Ala. Code § 35-9A-9(g)). The 2015 amendments addressed both issues and made clear that citizens had standing to sue, and serial meetings violated the Act. See Ala. Code § 36-25A-1 (prohibiting the use of serial meetings or email to circumvent the Act), 36-25A-2(13) (defining “serial meeting”); id. § 36-25A-9(a) (clarifying that citizens may file suit for enforcement of the Act if they plead a specific, personal impact of the alleged violation that is greater than the impact on the public at large). However, a plaintiff alleging a violation of the Open Meetings Act must still allege that a specific meeting has occurred that violated the Act. A suit asking for a clarification of the confines of the Act seeks an advisory opinion and lacks justiciability. Walker Cnty. Comm'n v. Kelly, 262 So. 3d 631, 638 (Ala. 2018).
In addition to these general statutes, the Alabama Code, Constitution, and Administrative Code contain specific provisions regarding access to particular records and meetings. See, e.g., 1901 Ala. Const. art. I, § 13 (stating that all courts shall be open); id. art. IV, § 57 (stating that the doors of the legislature shall be opened). Most of the specific provisions that call for public access are redundant (since the meetings and records in question would be open under the general statutes) or are circular. See, e.g., 10 Ala. Admin. Code r. 450-1-1-.09(1) (2013) (noting all public records of the Highway Department not exempted by federal or state law shall be made available for copying and inspection). The specific provisions that call for confidentiality, and many of the specific provisions that call for public access, are noted in the applicable categories of the Alabama outlines below.
The Alaska Legislature has adopted statutes assuring access to both public meetings, AS 44.62.310-.312, and public records, AS 40.25.110-.295. The Alaska Supreme Court has liberally construed these statutes to help ensure they accomplish their intended purposes. What is the intent of these laws? The state Supreme Court has noted Alaska's strong commitment to ensuring broad public access to both government records and meetings. It has repeatedly held that the public records act creates a presumption in favor of disclosure and that the act's implicit legislative policy of broad public access requires courts to narrowly construe exceptions to disclosure. The legislative findings to the 1990 amendments to the public records act explain that public access serves as an important "check and balance" that allows citizens to maintain "control of government." And the Supreme Court's decisions have characterized public access to records as a "fundamental right." Fuller v. City of Homer, 75 P.3d 1059, 1061-1062 (Alaska 2003) ("Fuller I") (footnotes omitted)
Before 1990, both the text and legislative history of the public records statutes were silent about legislative intent. The public meetings law, however, contains a strong statement of purpose, and the Supreme Court had cited this language in cases dealing with records as well. See, City of Kenai v. Kenai Peninsula Newspapers, 642 P.2d 1316, 1323 (Alaska 1982). ("There is a strong public interest in disclosure of the affairs of government generally.")
That statute includes the following:
It is the policy of the state that
(1) the governmental units mentioned in AS 44.62.310(a) exist to aid in the conduct of the people's business;
(2) it is the intent of the law that actions of those units be taken openly and that their deliberations be conducted openly;
(3) the people of this state do not yield their sovereignty to the agencies which serve them;
(4) the people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know;
(5) the people's right to remain informed shall be protected so that they may retain control over the instruments they have created.
Alaska Stat. (hereinafter "AS") § 44.62.312(a)(1)-(5). In 1990, when the Legislature amended the Public Records Act (primarily to deal with access to electronic products and services), it adopted findings that "public access to government information is a fundamental right that operates to check and balance the actions of elected and appointed officials and to maintain citizen control of government;" and that "to protect the public's right to know, public records must be available at nominal cost." § 1, ch.200, SLA 1990 in the Temporary and Special Acts.
Legislative History. The legislative history of the public records law is set out in City of Kenai v. Kenai Peninsula Newspapers, 642 P.2d at 1319-1321.
Records. Alaska's current public records law is found at AS 40.25.110 et seq. A public records statute was first enacted by Congress in 1900 for the territorial District of Alaska. The language of the statute initially adopted was similar to sections of Oregon law, which in turn had counterparts in the laws of California, Montana, Utah and Idaho. Enactment of the 1900 law was intended to codify the common law (that every interested person was entitled to inspect public records, including those of municipal corporations), and may also have been intended to eliminate the requirement that the person seeking inspection have an interest.
The public records statute remained unchanged until 1955, when a reference to public writings in recorder's offices was added. Then in 1957 the law was amended to provide for exceptions relating to medical records, juveniles, and to those records required to be kept confidential by federal or territorial law. (In 1931, Alaska had become an organized territory, and the territorial legislature enacted the forerunner of § .110 that year. It remained essentially unchanged until the early 1990’s, when an eclectic variety of exceptions were added. See, AS 40.25.120(d)(7)-(11).) After Alaska became a state in 1959, the public records statutes were repealed and re-enacted (in 1962), and codified as AS 09.25.110 et seq. (The statute was renumbered in 2000 when the Public Records Act was moved from Title 9 to Title 40 of the Alaska Statutes, but no substantive changes were made). This 1962 re-enactment was part of a comprehensive revision of the entire territorial statutory code of civil procedure. It was intended to delete procedural provisions from the state's statutes, in deference to the judicial branch's power under the new state constitution to make rules governing court procedures. The report of the House Judiciary Committee makes clear that no substantive changes in pre-existing public records law were intended by the code revisions, and no change in the scope of the public records law was affected by the re-codification. In short, the common law presumption of public access to records adopted in 1900 has not been changed since.
However, two subsequent actions by the Alaska Legislature in particular have significantly affected access to public records. First, the Victims Rights Act of 1991 restricted access to records that include the names and addresses of victims of certain offenses—primarily sexual assaults, sexual abuse and kidnapping with intent to subject the victim to serious physical injury or sexual assault—and certain identifying information about witnesses generally, see AS 12.61.100-.150. This statute has substantially impaired access to records previously available—in part because of the language of the statute itself, and in part because some law enforcement agencies and others have used the VRA as an excuse for denying and delaying access to documents not necessarily covered by that Act. The Victims Rights Act itself states that it “may not be construed to require the court to exclude the public from any stage of the criminal proceeding or to interfere with the right of news media to report information lawfully obtained.” AS 12.61.150.
Second, revisions to the public records act in 1990 made several changes affecting access to public records generally, but primarily addressed access to electronic products and services. Public records are available regardless of their format — it doesn't matter whether a document is stored on parchment or a hard drive. However, public records laws do not require public officials to create records that don't already exist. Among other things, this means that an agency is not required by traditional public records laws to manipulate data stored in computer databases to suit the needs of a particular citizen's request, even though computer programs might enable public employees to satisfy the request with little trouble. AS 40.25.115 and related provisions were crafted to balance interests of the public and government agencies, and to encourage agencies to make electronically stored information available in ways that are responsive to specific individual needs, and take advantage of evolving capabilities of new technology.
Apart from protecting citizens’ rights to obtain information by providing affirmatively for access in the Public Records Act and other statutes requiring disclosure, the Alaska Supreme Court has also protected access to information by rejecting broad claims that disclosure violates fundamental rights of the document’s author. The Court expressly rejected claims that denying confidentiality to one who sends documents to government officials relating to matters of public interest or concern would violate the author’s constitutional rights under the free speech, petition, or privacy clauses of the state constitution. Doe v. Alaska Superior Court, 721 P.2d 617 (Alaska 1986). The Court rejected an argument that free speech and the right to petition are impermissibly chilled if a person cannot express views to a government official without fear of public disclosure. Id. at 626-27. “We also reject petitioner's contention that the speech clause requires that such letters remain confidential because of the chilling effect disclosure may have on citizens' exercise of their free speech rights. Both state and federal courts have recognized that the strong public interest in open government and an election process free of taint justifies certain restrictions on free speech. Thus, laws requiring disclosure of campaign contributions, reporting requirements for lobbyists, conflict-of-interest reports by public officials, and open public meetings have been upheld despite the potential to chill speech.” Id. at 629. The Court also noted that “there is no persuasive reason for according greater or lesser protection to expression on matters of public importance depending on whether the expression consists of speaking to neighbors across the backyard fence, publishing an editorial in the local newspaper, or sending a letter to the President of the United States.” Id. at 627.
Meetings. Alaska's Open Meetings Act ("OMA") was enacted in 1959 as part of the Administrative Procedures Act adopted by the first legislature after statehood. AS 44.62.310. Its broad language was a comprehensive mandate that meetings of public agencies be open to the public. In 1972, the legislature bolstered the OMA by adding to it a strong statement of purpose codified in AS 44.62.312. A contemporaneous amendment clarified the law to underscore that the OMA was intended to cover meetings of the legislature. [This latter change was rendered meaningless by the Court's decision in Abood v. League of Women Voters, 743 P.2d 333 (Alaska 1987), holding that the constitutional separation of powers prevented enforcement of the OMA against the state legislature (see Reporters Committee Alaska Open Meetings outline, sec. I.C.2).] The law was also amended in 1985 to expressly provide for teleconference meetings.
Through the years, the Alaska Supreme Court has consistently construed the OMA liberally in order to give full effect to the letter and spirit of the law. However, after years of complaining about certain provisions they found troublesome, a coalition of municipalities and other public agencies were successful in obtaining certain restrictive amendments to the Open Meetings Act as part of significant revisions made by the legislature in 1994. Chief among these was a definition of the number of public officials necessary to constitute a meeting. Until this time, a "meeting" was not defined by statute, and the Alaska Supreme Court, agreeing with arguments made by press interests filing as friends of the court, had refused to require that a quorum was necessary to establish a meeting. It left this issue unresolved, though a 1981 attorney general's opinion had indicated that any time two or more members of a public body gathered together to conduct public business it was a meeting covered by the Open Meetings Act. Press organizations never challenged the conduct of public officials based on the "two or more" standard. The imprecise definition of a meeting was a troublesome point for many years, however, not only with respect to inappropriate activities of public officials with little concern about following the Open Meetings Act, but also for conscientious public officials who were interested in following the law but needed to know what the law required of them.
The matter came to a head as a result of two or three high profile and costly lawsuits by public employees or public officials against their colleagues or municipalities. One was an employment-related dispute, the other a political dogfight. In neither case was the press a party. Both suits were extraordinarily expensive, and in each case the trial court adopted as the definition of a meeting a gathering of "two or more" officials. The perceived need to clarify the definition of a meeting after these cases provided the impetus for legislative revision of the Open Meetings Act, and bills addressing this point provided a vehicle for interested parties to deal with other problems they had with the Open Meetings Act and its liberal construction by the courts.
Among the changes adopted by the legislature in 1994 were imposition of a 180-day time limit for bringing suits to void actions taken in violation of the Open Meetings Act (the Act itself contained no statute of limitations prior to that time, and the Alaska Supreme Court had expressly refused to apply the doctrine of laches), and exemption of certain meetings of bodies of the state university system (including, for example, faculty tenure committee meetings, which the Alaska Supreme Court had ruled were subject to the Open Meetings Act). Also, a much looser definition of what meetings are subject to coverage of the act was applied to groups meeting solely in an advisory capacity, and violations of the law by advisory groups can no longer be remedied by an action to set aside resulting decisions (reversing the effect of yet another Supreme Court decision). Although the court had previously held that a balancing of interests is required to ensure protection of the public interest, courts are now expressly required to weigh a variety of factors enumerated in the statute before they can invalidate or void action taken by a public body. The list largely codifies factors that had been articulated in Supreme Court decisions, but adds or underscores factors stressing cost or disruption to the bodies that have taken action.
As a result of significant vigilance and involvement in the legislative process by parties attempting to maximize public access, especially the press, the Alaska Newspaper Association, and the League of Women Voters, much more onerous proposed amendments were avoided (e.g., limiting the definition of a meeting to only gatherings of a quorum or more of a public body, and denying coverage of the Open Meetings Act unless a meeting was pre-arranged for the purpose of discussing public business, regardless of the fact that a meeting did occur and that public business was in fact discussed, allowing substantial decisions to be made in an executive session, and removing advisory groups and meetings of any body discussing professional qualifications or discipline). In addition, a few provisions were inserted that improved the law from the perspective of members of the press and public advocating for greater openness. A subtle but perhaps most significant change affecting the overall enforceability of the Open Meetings Act is the language strengthening AS 44.62.312(b), which now reads:
AS 44.62.310(c) [the provision for executive sessions] and (d) [the list of gatherings not covered by the Open Meetings Act at all] shall be construed narrowly in order to effectuate the policy stated in (a) of this section [the statement of policy of the Open Meetings Act] and to avoid exemptions from open meeting requirements and unnecessary executive sessions.
Future Revisions of this Outline. Those who use this outline can contribute to its usefulness and accuracy in the future by sending materials to be included in periodic revisions to: D. John McKay, 117 E. Cook Ave., Anchorage, Alaska 99501. Ph. (907) 274-3154; fax (907) 272-5646; e-mail: firstname.lastname@example.org.
Include statutes, regulations or ordinances not noted in this outline, any changes that occur with respect to provisions cited here, and interpretations of these laws by courts or public officials. Also, send court cases you are involved in or know about, and incidents involving access to meetings and records.
Arizona Public Records Law (A.R.S. §§ 39-121 to -128): The Arizona Public Records Law can be traced to territorial days, when in 1901 the law was first enacted. The Arizona Supreme Court has observed that “[h]istorically, this state has always favored open government and an informed citizenry.” Ariz. Newspapers Ass’n, Inc. v. Superior Court, 143 Ariz. 560, 564, 694 P.2d 1174, 1178 (1985); see also Phoenix Newspapers, Inc. v. Keegan, 201 Ariz. 344, 351, 35 P.3d 105, 112 (Ct. App. 2001) (“The core purpose of the public records law is to allow the public access to official records and other government information so that the public may monitor the performance of government officials and their employees.”) (citation omitted).
Arizona's statutory scheme is simple, providing “a broad right of inspection to the public.” Carlson v. Pima Cty., 141 Ariz. 487, 489, 687 P.2d 1242, 1244 (1984). By statute, “[p]ublic records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours.” A.R.S. § 39-121. Once it is determined that a record is “reasonably necessary or appropriate to maintain an accurate knowledge of . . . official activities and of any . . . activities which are supported by monies from this state or any political subdivision of this state,” the document is presumptively open to public inspection. A.R.S. § 39-121.01(B); see also Carlson, 141 Ariz. at 490, 687 P.2d at 1245. As the Arizona Supreme Court has proclaimed, the Arizona Public Records Law evinces “[a] strong policy favoring open disclosure and access.” Cox Arizona Publ’ns, Inc. v. Collins, 175 Ariz. 11, 14, 852 P.2d 1194, 1198 (1993); see also Carlson, 141 Ariz. at 491, 687 P.2d at 1246 (noting that “access and disclosure is the strong policy of the law”).
There are no statutory exceptions to disclosure found in the Arizona Public Records Law. The courts, however, have identified three major exceptions to the presumption favoring disclosure: (1) confidentiality (i.e., when some other statute or regulation specifically protects records from disclosure), (2) privacy of persons, and (3) whenever disclosure would be “detrimental to the best interests of the state.” Carlson, 141 Ariz. at 490, 687 P.2d at 1245.
Traditionally, the Arizona statutory scheme has favored reporters and other persons seeking access to public records. To date, efforts to have wholesale legislative amendments to the law have failed.
Arizona's Open Meetings Law (A.R.S. §§ 38-431 to -431.09 (“OML”)): Before enactment of open meetings legislation, Arizona provided little official access to governmental meetings. In 1962, after eight previous attempts, the Arizona Legislature finally adopted an open meetings statute. The original Act served as a framework and was not nearly as broad as the current OML. The 1962 Act remained unchanged—in fact, no judicial interpretations of the Act were reported until 1974. The 1974 amendments amplified the Act—expanding definitions, requiring notice and minutes of meetings, detailing executive sessions, allowing ratification of violations by public bodies, and providing for equitable relief and exceptions. See Ariz. Att’y Gen. Op. No. 75-5 (1975); D. Mitchell, Public Access to Governmental Records and Meetings in Arizona, 16 Ariz. L. Rev. 891 (1974).
Since 1974, the Legislature has passed numerous amendments strengthening the Act, many in response to an adverse judicial decision or attorney general's opinion. Most notably, these changes included (1) replacing the term “governing body” with the current “public body”; (2) using the word “meeting” instead of “proceeding,” “regular meeting” or “official meeting”; and (3) expanding the declaration of public policy for open meetings.
[Note: Due to the numerous substantive amendments, a practitioner must take care not to rely on case law interpreting previous versions of the OML. Because of the changes to the OML, the outline does not refer to Arizona case law regarding the OML that is irrelevant to the current form of the statute.]
Arizona’s OML also contains two unusual provisions. First, a public body may ratify actions it takes in violation of the OML. A.R.S. § 38-431.05. Second, in some circumstances, a court may remove a public officer from office as a penalty for violating the law. A.R.S. § 38-431.07(A).
Despite the numerous changes to the Act, its primary purpose has remained the same—to require multimember public bodies (such as the Legislature, city councils and school boards) to conduct their business openly. See Long v. City of Glendale, 208 Ariz. 319, 325, 93 P.3d 519, 525 (Ct. App. 2004) (stating that “the policy [of the OML] is to open the conduct of the business of government to the scrutiny of the public and to ban decision-making in secret”) (citation and internal quotation marks omitted). To that end, the law clearly and simply provides: “All meetings of any public body shall be public meetings and all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings.” A.R.S. § 38-431.01(A).
The current declaration of public policy is a strong foundation for gaining access to meetings. It states:
It is the public policy of this state that meetings of public bodies be conducted openly and that notices and agendas be provided for such meetings which contain such information as is reasonably necessary to inform the public of the matters to be discussed or decided. Toward this end, any person or entity charged with the interpretations of this article shall construe this article in favor of open and public meetings.
- 38-431.09(A). Unfortunately, although occasionally referred to by appellate courts, no appellate court has expressly relied upon this section to support a decision enforcing the OML.
Historically, the Arizona Attorney General’s Office has served as a strong proponent of the Act. When the OML was amended in 1982, the Attorney General was specifically empowered to initiate litigation to secure compliance with the law. Following the 1982 amendments, the Attorney General developed an Open Meetings Law Enforcement Task Force (“OMLET”) designed to achieve enforcement of the Act. The Attorney General's Office has cooperated with the press in pursuing legal action against violators of the Act. Attorney General Opinions, however, sometimes reflect a retraction from the OML’s general policy of access. Fortunately, Attorney General Opinions are not binding on Arizona courts. See City of Prescott v. Town of Chino Valley, 166 Ariz. 480, 483 n.2, 803 P.2d 891, 894 n.2 (1990).
The Arkansas Freedom of Information Act (“FOIA”), Ark. Code Ann. §§ 25-19-101 to 25-19-109, was enacted in 1967 at the behest of Governor Winthrop Rockefeller and the state’s journalism community. At his last press conference, Governor Rockefeller described the FOIA as his “proudest achievement” in office.
Prior to the act’s passage, Arkansas law regarding access to government records and meetings was not well developed. While scattered sections of the Arkansas code provided for public inspection of certain records, there existed no comprehensive provision permitting access to documents held by state or local bodies. Nor was the common law much help, for the judicial decisions dealt principally with election records required by statute to be open to the public. Two cases, however, took a surprisingly broad view of the common law right of access to records. Collins v. State, 200 Ark. 1027, 143 S.W.2d 1 (1940); Republican Party of Arkansas v. State ex rel. Hall, 240 Ark. 545, 400 S.W.2d 660 (1966).
With respect to open meetings, state common law prior to enactment of the FOIA was nonexistent, but constitutional and statutory provisions afforded some access. Article V, Section 13 of the Arkansas Constitution of 1874, which remains in effect today, provides that “sessions of each house and of committees of the whole shall be open, unless when the business is such as ought to be kept secret.” The secrecy exception is obviously large enough to swallow the rule of openness, and the provision does not apply to legislative committees, state agencies, or local government bodies. The first open meetings statute, passed in 1947 and amended in 1949, did not extend beyond the state level and had various other shortcomings. A broader statute reaching such political subdivisions as cities, counties, and school districts was passed in 1953, but it contained a broad exception permitting closed meetings and penalty provisions applicable only in the event of willful violations. As a result, it, too, was relatively ineffective.
Several factors coalesced in the mid-1960s to bring about enactment of the FOIA: a campaign by state journalists, notably the Little Rock chapter of Sigma Delta Chi; a study by the Arkansas Legislative Council comparing state access laws with those of other jurisdictions; controversial closed meetings by government bodies; unfavorable Attorney General’s opinions interpreting the 1953 open meetings statute; organizational efforts by the state Republican Party, including successful litigation to obtain access to voting records; the Hall case cited above, in which the Arkansas Supreme Court indicated its willingness to recognize an expansive common law right of access to public records; and the election of Winthrop Rockefeller as governor.
The bill that became the Arkansas FOIA was drafted by the Little Rock chapter of Sigma Delta Chi and was based in part on statutes in other states and a model act prepared by the national Sigma Delta Chi organization. Governor Rockefeller signed the bill into law — Act 93 of 1967 — on Valentine’s Day, commenting that “this is an historic bill, and it may well be a model bill for other states.” The FOIA has been amended sixteen times since its enactment, most recently in 2001. None of the amendments has significantly weakened the act, and many were in response to judicial decisions or to specific problems that were not anticipated when the FOIA was initially passed. Act 1653 of 2001 addressed access to electronic records and provided welcome clarity with respect to other issues.
On numerous occasions, the General Assembly has enacted separate statutes creating specific exemptions rather than amend the FOIA itself. For example, in 1987 the legislature passed a statute designed to overturn an Arkansas Supreme Court decision holding that certain corporate tax records were not exempt from disclosure under the FOIA. See Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986). A bill amending the Tax Procedure Act to exempt from public disclosure “all tax returns, . . . whether filed by individuals, corporations, partnerships or fiduciaries,” was passed over the vocal opposition of the news media. This provision was amended in 1991 to permit access to records that reflect the name of a taxpayer and the amount of any tax credit, rebate, discount, or commission for the collection of a tax received by the taxpayer under specified state tax statutes. See Ark. Code Ann. § 26-18-303.
In 1999, the legislature created the Electronic Records Study Commission to examine the Arkansas Freedom of Information Act and recommend amendments to update the FOIA for the electronic age. The commission completed its work in time for the 2001 session of the General Assembly, and the vast majority of the commission’s recommendations, as variously amended during the legislative process, were enacted into law by Act 1653 of 2001. These changes clarify the FOIA on many, though certainly not all, issues surrounding electronic access. See infra part III.
For additional information about the Arkansas FOIA, see the following sources: Office of the Attorney General, Arkansas Freedom of Information Handbook (11th ed. 2003); Watkins & Peltz, The Arkansas Freedom of Information Act (M&M Press, 4th ed. 2004); Brooks, “Adventures in Cyberspace: Computer Technology and the Arkansas Freedom of Information Act,” 17 UALR L.J. 417 (1995); Watkins, “Access to Public Records under the Arkansas Freedom of Information Act,” 37 Ark. L. Rev. 741 (1984); Watkins, “Open Meetings under the Arkansas Freedom of Information Act,” 38 Ark. L. Rev. 268 (1984); Watkins, “The Arkansas Freedom of Information Act: Time for a Change,” 44 Ark. L. Rev. 535 (1991); Watkins, “Adventures in FOIA Land, 1999 Ark. L. Notes 111; Note, 1 UALR L.J. 230 (1978); Note, 40 Ark. L. Rev. 899 (1987); Note, 12 UALR L.J. 423 (1989-90); Note, 13 UALR L.J. 725 (1991).
California's Constitutional Sunshine Amendment: On November 2, 2004, California voters overwhelmingly approved Proposition 59, an amendment to California's Constitution that elevated the public's right of access to public records and public meetings to constitutional stature. This amendment, set forth in article I, section 3(b) of the California Constitution, and commonly called the Sunshine Amendment, declares: "The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny." Cal. Const. art. I, § 3(b); see appendix for full text of the Sunshine Amendment.
The Sunshine Amendment accomplishes many things. First, it firmly establishes a fundamental constitutional right for people to scrutinize what their government is doing by mandating access to government records and meetings of government bodies. By elevating the right of access to constitutional statute, all newly enacted state laws and administrative regulations must conform to the Sunshine Amendment's provisions. Practically speaking, it brings more weight to the public's right of access because it leaves no doubt as to the importance of access to the people of California and consequently renders ineffective the assertion that access in a particular case serves no public purpose — a claim often asserted by government agencies to defeat access. Similarly, it strengthens the case for access in particular cases where, under existing statutory exemptions, records can be withheld when the public's interest in non-disclosure clearly outweighs the public's interest in disclosure. See Cal. Gov't Code § 6255. This is so because most interests in non-disclosure are not constitutionally based and thus will be of significantly less importance when weighed against a now-constitutional right of access.
Second, unlike statutory rights of access under California's Public Records Act and The Ralph M. Brown Act, the Sunshine Amendment applies not just to the executive branch of government but to the judicial and legislative branches as well. See Sander v. State Bar of Cal., 58 Cal. 4th 300, 309, 165 Cal. Rptr. 3d 250, 314 P.3d 488 (2013) (recognizing application of Sunshine Amendment to judicial branch records). While the Amendment expressly reserves existing protections for proceedings and records of the Legislature and rules adopted in furtherance of those protections, and maintains all other preexisting constitutional and statutory exemptions to the right of access to public records and meetings, these branches of government are now within the mantle of the public's constitutional right of access.
Third, the Sunshine Amendment requires that statutes, court rules, or other authority be construed broadly when they further the public's right of access and be construed narrowly when they limit the right of access — rules of construction from which many courts have strayed in recent years to the detriment of open government. Cal. Const. art. I, § 3(b)(2). See Sierra Club v. Superior Court, 57 Cal. 4th 157, 175, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013) (where terms are ambiguous the Sunshine Amendment requires an interpretation that maximizes the public’s right of access unless the Legislature has expressly provided otherwise); see also City of San Jose v. Superior Court, 2 Cal. 5th 608, 617, 214 Cal. Rptr. 3d 274, 389 P.3d 848 (2017).
Fourth, in adopting new laws, court rules, or other authority that limit the right of access, public bodies must now make express findings demonstrating the interest purportedly protected and the need for protecting that interest. Cal. Const. art. I, § 3(b)(2). Thus, the adoption of agency rules and regulations, for example, intended to impede public access will no longer be allowed on the whim of the agency's governing body but will require actual on-the-record findings demonstrating the need for secrecy and demonstrating how the exemption will achieve that need — findings similar to that required by a court before sealing a court record or closing a court proceeding.
Lastly, the Sunshine Amendment leaves intact the right of privacy guaranteed by the constitution by clarifying that it does not supersede or modify the existing constitutional right of privacy. And, disconcerting for proponents of access, the Amendment expressly does not affect existing statutory protections afforded peace officers over information concerning their official performance or professional qualifications. Id., § 3(b)(3).
California Public Records Act: California Government Code Sections 6250 through 6276.48 comprise the California Public Records Act ("CPRA"). In enacting the CPRA the Legislature expressly declared that "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." Cal. Gov't Code § 6250. Indeed, in California, "access to government records has been deemed a fundamental interest of citizenship." Int’l Fed’n of Prof’l and Technical Eng’rs v. Superior Court, 42 Cal. 4th 319, 328, 64 Cal. Rptr. 3d 693, 165 P.3d 488 (2007) (“Int’l Federation”) (quoting CBS Inc. v. Block, 42 Cal. 3d 646, 652 n.5, 230 Cal. Rptr. 362, 725 P. 2d 470 (1986)). By promoting prompt public access to government records, the CPRA is "intended to safeguard the accountability of government to the public." Register Div. of Freedom Newspapers, Inc. v. Cty. of Orange, 158 Cal. App. 3d 893, 901, 205 Cal. Rptr. 92 (1984). As the California Supreme Court recognized in International Federation:
Implicit in a democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.
Id. at 328-29 (quoting Block, 42 Cal. 3d at 651). The court has emphasized that "maximum disclosure of the conduct of governmental operations [is] to be promoted by the act." Block, 42 Cal. 3d at 651-52 (emphasis added).
In general, the CPRA creates “a presumptive right of access to any record created or maintained by a public agency that relates in any way to the business of the public agency.” Sander, 58 Cal. 4th 323 (emphasis in original); City of San Jose, 2 Cal. 5th at 616 (quoting Sander).
Public records are broadly defined to include "any writing containing information relating to the conduct of a public's business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristic[.]" Cal. Gov't Code § 6252(e). This definition 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)).
Moreover, unless the public records of a local agency are exempt from the provisions of the CPRA, they must be made available for public inspection. See ACLU v. Superior Court, 3 Cal. 5th 1032 1038-39, 221 Cal. Rptr. 832, 400 P.3d 432 (2017) (quoting Williams v. Superior Court, 5 Cal. 4th 337, 346, 19 Cal. Rptr. 2d 882, 852 P.2d 377 (1993)); see also Sierra Club, 57 Cal. 4th at 166; City of San Jose, 2 Cal. 5th at 617; Int’l Federation, 42 Cal. 4th at 329. Exemptions must be narrowly construed and the public agency bears the burden of proving that an exemption applies. Sierra Club, 57 Cal. 4th at 166 (narrow construction constitutionally mandated); City of San Jose, 2 Cal. 5th at 617 (same); BRV, Inc. v. Superior Court, 143 Cal. App. 4th 742, 755, 49 Cal. Rptr. 3d 519 (2006); Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1045, 13 Cal. Rptr. 3d 517 (2004).
Because the CPRA was modeled after the federal Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., courts may look to case law under FOIA in construing the CPRA. See Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1338, 283 Cal. Rptr. 893, 813 P.2d 240 (1991); Am. Civil Liberties Union Found. v. Deukmejian, 32 Cal. 3d 440, 447, 186 Cal. Rptr. 235, 651 P.2d 822 (1982). But see Williams, 5 Cal. 4th at 348-54 (holding that CPRA's exemption for law enforcement investigatory records did not incorporate FOIA criteria and thus courts cannot look to FOIA cases to interpret Section 6254(f) of the CPRA, but must look to the statutory language of the CPRA provision to construe the statute).
Most of the exemptions under the CPRA are set forth under Section 6254 and are specific to certain records or types of records, but under Section 6255 a general exemption exists where, on the facts of the particular case, "the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record." Cal. Gov't Code § 6255 (commonly called the "catch all" exemption). In reviewing the propriety of an agency decision to withhold records, a court is charged with ascertaining whether nondisclosure was justified under either of these statutes. Cal. Gov't Code § 6259(b).
To facilitate prompt public access to public records, court orders either directing disclosure of public records or supporting an agency's decision of nondisclosure are immediately reviewable by an appellate court by way of an emergency petition seeking issuance of an extraordinary writ. Cal. Gov't Code § 6259(c). In 1991, the California Supreme Court made clear that under this writ procedure, trial court orders are reviewable on their merits. Times Mirror Co., 53 Cal. 3d at 1336; see also State Bd. of Equalization v. Superior Court, 10 Cal. App. 4th 1177, 1185, 13 Cal. Rptr. 2d 342 (1992) (echoing the decision in Times Mirror and stating that the scope of review by a writ of review is equivalent with the scope of review on appeal). Thus, when a trial court order under the CPRA is reviewed by an appellate court, the independent review standard is employed for legal issues and factual findings made by the trial court will be upheld if they are based on substantial evidence. Times Mirror Co., 53 Cal. 3d at 1336 (citing Block, 42 Cal. 3d at 650-51).
Court Administrative Records: California Rules of Court (10.500 et. seq.) set forth a comprehensive scheme much like that of the CPRA for access to administrative records of the state trial and appellate courts, the Judicial Council, and the Administrative Office of the Courts. "‘Judicial administrative record’ means any writing containing information relating to the conduct of the people's business that is prepared, owned, used, or retained by a judicial branch entity regardless of the writing's physical form or characteristics, except an adjudicative record. The term ‘judicial administrative record’ does not include records of a personal nature that are not used in or do not relate to the people's business, such as personal notes, memoranda, electronic mail, calendar entries, and records of Internet use.” Cal. R. Ct. 10.500(c)(2). Like the CPRA, judicial administrative records, such as budget and management information relating to the administration of the courts, are open to the public unless specifically exempt. Cal. R. Ct. 10.500(e)(1)(A). The Rules contain similar exemptions as under the CPRA, such as those for personnel, medical and similar records, and adopts other exemptions unique to the specific functions of the judicial branch. The Rules require a determination as to whether the records will be made available within 10 calendar days of the request and, if disclosable, that they thereafter be made available promptly. Cal. R. Ct. 10.500(e)(6) & (7). Generally, the Rules allow for the recovery of the direct cost of duplication, but if records are intended for commercial purposes, the Rules allow for recovery of search and review costs as well. Cal. R. Ct. 10.500(e)(4). Similar to the fee recovery provisions pertaining to electronic records under the CPRA, the Rules allow for recovery of the direct cost of producing an electronic record, including computer programming, when the record is not one produced by the judicial branch at regularly scheduled intervals or its production requires data compilation or extraction, or related programming, not otherwise required under the Rules. Cal. R. Ct. 10.500(i)(2). The Rules are enforceable under the writ procedures available for enforcing access to records under the CPRA. Cal. R. Ct. 10.500(j)(2). Alternatively, they are enforceable under the writ procedures of Rule 10.803, which allow for expedited review of the petition by a hearing judge selected from a panel of appellate court justice. The justice selected to hear the matter in the superior court must be from a judicial district other than one in which the dispute arises. Cal. R. Ct. 10.803. As under the CPRA, reasonable attorneys’ fees and costs are recoverable to a prevailing plaintiff. Cal. R. Ct. 10.500(j)(6).
Open Meetings: The law in California pertaining to open meetings is set forth in three Acts, namely, the Ralph M. Brown Act ("Brown Act"), found at Sections 54950 through 54963 of the California Government Code, the Bagley-Keene Open Meeting Act ("Bagley-Keene Act"), found at Sections 11120 through 11132 of the California Government Code, and the open meeting provisions governing the State's legislative branch, found at Sections 9027 through 9031 of the California Government Code.
The Brown Act was enacted into law in 1953 to require open meetings of local agencies and "to curb misuse of the democratic process by secret legislation of public bodies." Epstein v. Hollywood Entertainment Dist. II Business Improvement Dist., 87 Cal. App. 4th 862, 867, 104 Cal. Rptr. 2d 857 (2001). The Act declares, in part:
The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.
Cal. Gov't Code § 54950. As stated by one court, "[i]t is clearly the public policy of this State that the proceedings of public agencies, and the conduct of the public's business, shall take place at open meetings, and that the deliberative process by which decisions related to the public's business shall be conducted in full view of the public." Epstein, 87 Cal. App. 4th at 867; see also Cohan v. City of Thousand Oaks, 30 Cal. App. 4th 547, 555, 35 Cal Rptr. 2d 782 (1994). The Act applies to "local agencies," defined in Section 54951 as "a county, city, whether general law or chartered, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof, or other local public agency." Cal. Gov't Code § 54950.
Under the Act, "[a]ll meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter." Cal. Gov't Code § 54953(a). A "meeting" includes "any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains." Cal. Gov't Code § 54952.2(a). The Act extends to a legislative body's "informal sessions or conferences," even if no vote is taken. Sacramento Newspaper Guild v. Sacramento Cty. Bd. of Supervisors, 263 Cal. App. 2d 41, 47, 69 Cal Rptr. 480 (1968). As explained, the Act includes "deliberation as well as action" because "deliberation and action [are] dual components of the collective decision-making process . . . ." Id. at 51.
The Act contains specific exemptions from the open meetings requirements, but these exemptions must be narrowly construed and if a specific statutory exemption does not exist, the matter must be conducted in public regardless of its sensitivity. Cal. Gov't Code § 54962. These specific provisions primarily concern real property acquisitions, pending litigation, personnel matters and labor negotiations. Cal. Gov't Code §§ 54956.8, 54956.9, 54957, 54957.6. Importantly, the Act sets forth the minimum access that is required by law. Local agencies are free to "allow greater access to their meetings than prescribed by the minimal standards set forth in [the Act]." Cal. Gov't Code § 54953.7.
In keeping with the Act's open meetings provisions, the Act contains, among other things, provisions governing when meetings must be noticed and when agendas must be prepared. Cal. Gov't Code §§ 54954, 54954.2. Additionally, before or during consideration of each agenda item, the public must be given an opportunity to comment on the item. Cal. Gov't Code § 54954.3(a). The Act prohibits agencies from requiring members of the public, as a condition to attendance, to register his or her name, provide other information, or "otherwise to fulfill any condition precedent to his or her attendance." Cal. Gov't Code § 54953.3. And, members of the public attending public meetings have the right to record the proceedings with audio or video tape recorders or still or motion picture cameras unless the agency finds that such recordings amount to a "persistent disruption of the proceedings." Cal. Gov't Code § 54953.5(a).
The Act contains provisions for civil remedies and criminal misdemeanor penalties for certain violations. Cal. Gov't Code §§ 54960, 54960.1. The nature of civil proceedings are three-fold: (1) actions to stop or prevent ongoing violations or threatened violations of the Act; (2) actions to determine the application of the Act to ongoing actions, threatened future actions, or past actions; and, (3) actions to void action taken by a legislative body in violation of certain provisions of the Act. Cal. Gov't Code §§ 54960 and 54960.1, respectively. Actions to void actions taken in violation of specified provisions of the Act require that the interested party first make a written demand to the local agency to cure or correct the action alleged to have been taken in violation the Act. Cal. Gov't Code § 54960.1(b). In actions to determine the application of the Act to past action, the Act requires that the interested party first send a cease and desist letter to the local agency. Cal. Gov’t Code § 54960.2. In civil actions, the Act allows for the recovery of costs and reasonable attorneys' fees. Cal. Gov't Code § 54960.5.
The Bagley-Keene Act was enacted in 1967 to extend the basic concept of the Brown Act to "state bodies." This Act contains many parallel provisions as are in the Brown Act. Except as otherwise exempted, state bodies means "every state board, or commission, or similar multimember body of the state that is created by statute or required by law to conduct official meetings and every commission created by executive order." Cal. Gov't Code § 11121(a). Specific bodies are excluded from this definition at Section 11121.1. With respect to the public higher education systems in California, the Bagley-Keene Act applies to meetings of the governing boards of community colleges, state universities and the Regents of the University of California, and meetings of these bodies must be open to the public. Meetings are defined as they are in the Brown Act, with varying notice provisions. Cal. Gov't Code § 11122.5(a). Closed sessions are authorized on, among other topics, specified personnel matters, real property negotiations with negotiator, labor negotiations and pending litigation. Cal. Gov't Code § 11126. The Bagley-Keene Act contains similar enforcement provisions as in the Brown Act. Gov't Code § 11130(a); 11130.3(a). And, under the Bagley-Keene Act, there is no need to serve a demand to cure or correct before seeking to nullify action taken by state bodies under Section 11130.3(a). Nor is there any requirement to serve a cease and desist letter before instituting an action passed on the state bodies past action. Cal. Gov't Code § 11130(a).
In 1973, the California Legislature enacted the Grunsky-Burton Open Meeting Act, Section 9027 of the Government Code, which provides that all meetings of the Senate and Assembly and the committees, subcommittees and conference committees were to be "conducted openly" so that the public may remain informed. That section was repealed in 1984 and replaced with Section 9926 of the Legislative Reform Act of 1983. In 1989, those provisions were repealed and replaced with similar provisions which can be found again at Sections 9027 through 9031, inclusive, of the Government Code. Because of their relatively simple language, scope and application, those provisions will be given limited attention in this outline.
This forward was written by Duffy Carolan.
Open Records. Prior to enactment of the Colorado Public Records law in 1969, access to public records in Colorado was largely a matter of discretion of the custodian, except in cases where records were specifically made confidential by statute. This was even true of court records. See Times-Call Publ'g Co. Inc. v. Wingfield, 159 Colo. 172, 410 P.2d 511 (1966).
The Colorado Public Records law was inspired by and patterned after the federal Freedom of Information Act as originally enacted, before the 1974 amendments. See Denver Post Corp. v. University of Colorado, 739 P.2d 874 (1987). The Open Records Act contains a broad legislative declaration that all public records shall be open for inspection unless otherwise specifically provided by law. Colo. Rev. Stat. § 24-72-201. Consonant with this mandate, the Colorado Supreme Court has held that a public official has no authority to deny any person access to a public record unless there is a specific statute permitting the withholding of the information requested. Denver Publ'g Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974). In several particulars, the Colorado General Assembly determined to achieve the general policy of the Public Records Law differently than did Congress in the federal Freedom of Information Act. See Colorado Legislative Council Research Publication No. 126, Open Records for Colorado (1967). For example, the Colorado statutory scheme provides that all "personnel" files are exempt from disclosure regardless of whether they would cause an invasion of an individual's privacy. Colo. Rev. Stat. § 24-72-204(3)(a)(II)(A). In addition, most of the exemptions that parallel those of the Federal FOIA are not simply exempted from the disclosure requirements, but nondisclosure is mandatory. Id. at 204(3)(a). This gives parties who are the subject of information sought the right to challenge a request for disclosure of the information, which is not the case under the federal act. See Freedom Newspapers Inc. v. City of Colorado Springs, 739 P.2d 881 (Colo. App. 1987); CFI Steel Corp. v. Office of Air Pollution Control, 77 P.3d 933 (Colo. App. 2003).
The statute was amended in 1977 by the Criminal Justice Records Act, which dealt with all law enforcement investigative records and all court records in criminal prosecutions under separate legislation. Colo. Rev. Stat. §§ 24-72-301, et seq. This legislation gives criminal justice agencies, including courts and law enforcement agencies, discretion to withhold all criminal justice information other than records of official action, such as records of arrest, detention, charging, conviction, etc. The latter records are required to be maintained and available for public inspection, but even these records are subject to limited access orders or expungement after certain periods of time. In 1988, the Criminal Justice Records Act was amended to simplify the grounds and procedure for sealing of criminal justice records, but continues the requirement that records of official action be open unless they are ordered sealed.
Open Meetings. Colorado's open meetings law, known as the "Sunshine Law," was enacted by the people pursuant to a referendum held in 1972. Colo. Rev. Stat. §§ 24-6-401, et seq. The Sunshine Law was modeled after the Florida Government in the Sunshine Law. As initially enacted, this statute applied only to the General Assembly and "state agencies," i.e., agencies having statewide jurisdiction. The Sunshine Law has been liberally construed in favor of openness and to permit non-public sessions only in relatively narrowly defined circumstances. All discussions not falling within these "executive session" categories must be held in public, and in any event the discussion leading to the final decision must occur in public. See Cole v. State, 673 P.2d 345 (Colo. 1983).
A second statutory scheme (referred to herein as the "local government open meetings law") formerly applied to cities, counties and political subdivisions not having statewide jurisdiction. See Colo. Rev. Stat. § 29-9-101 (Repealed 1991). This statute provided that "all meetings" of local governmental agencies shall be held in public, but permitted executive sessions for determination of negotiation strategy, and "for consideration of documents or testimony given in confidence." The courts gave this statute a less than liberal construction, and held that executive sessions were appropriate for "deliberations" without limitation as to subject matter, so long as final decisions were made in public. See Hudspeth v. Board of County Comm'rs, 667 P.2d 775 (Colo. App. 1983); see also Glenwood Post v. City of Glenwood Springs, 731 P.2d 761 (Colo. App. 1986).
In 1991, the Colorado General Assembly enacted S.B. 91-33, which amended the Sunshine Law to apply to local governments as well as state agencies, thereby eliminating the two-tier system of open meetings laws. However, the amended statute still maintains different presumptions of openness and different particular provisions applicable to state and local public bodies.
The Connecticut General Assembly unanimously adopted the Connecticut Freedom of Information Act ("FOIA") in 1975. Prior to that time, Connecticut had an open record and open meeting law, but FOIA was noted for making "sweeping changes" in that law so as to "mark a new era in Connecticut with respect to opening up the doors of the city and state government to the people of Connecticut." Bd. of Trustees v. FOIC, 181 Conn. 544, 550, 436 A.2d 266 (1980).
FOIA covers both access to public records and access to public meetings, and it expresses a strong legislative policy in favor of open conduct of government and free public access to government records. This policy has been found to have "strong federal constitutional underpinnings." Lieberman v. State Bd. of Labor Relations, 216 Conn. 253, 579 A.2d 505 (1990). As stated by Representative Martin B. Burke, one of the bill's sponsors:
The legislature finds and declares that . . . the people do not yield their sovereignty to the agencies which serve them. That the people in delegating authority do not give their public servants the right to decide what is good for them to know and that it is the intent of this law that actions taken by public agencies be taken openly and their deliberations be conducted openly and that the records of all public agencies be open to the public except in those instances where superior public interest requires confidentiality.
One of the cornerstones of FOIA is the creation of a specific administrative agency, the Freedom of Information Commission (the "FOIC"), that is empowered to review alleged violations of FOIA and issue appropriate orders in response to violations. This provides a relatively simple avenue for redress of violations of FOIA, and as a result, greatly strengthens the utility and effect of FOIA. Moreover, since individuals can often represent themselves before the FOIC, the FOIC truly transforms FOIA into a "people's law."
The opinions of the FOIC may be accessed on its website.
The General Assembly has amended FOIA numerous times since it was first adopted in 1975.
In 1999, the General Assembly re-codified FOIA by establishing a new Chapter 14 to Title 1 of the General Statutes. FOIA is now found at Conn. Gen. Stat. § §1-200 through 1-241.
At common law a person was entitled to inspect public records, including legislative, executive and judicial records, provided the citizen had an interest therein for some useful purpose and not for mere curiosity. C. v. C., 320 A.2d 717 (Del. 1974).
In 1977, the Delaware General Assembly adopted the Freedom of Information Act, 29 Del. C. § 10001 et seq. (the "Act" or "FOIA"). The Act's purpose is stated at the outset in what is titled the "Declaration of Policy":
It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic. Toward these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted, and shall be construed.
29 Del. C. § 10001.
In 1982 the Act was amended to delete the "grants-in-aid" exclusion, and in 1985 the Act was strengthened and clarified, limiting the available grounds for executive session, improving the procedures for notice, agenda and executive session, and adding to the powers of citizens seeking to enforce the Act. For example, in 1985 the General Assembly cured a defect in the Act by making committees of a public body open, a loophole noted by the Delaware Supreme Court in Delaware Solid Waste Authority v. News-Journal Co., 480 A.2d 628 (Del. 1984). The Delaware Supreme Court in Delaware Solid Waste Authority v. News-Journal Co. recognized that the General Assembly, through its amendments, had a continuing interest and commitment to providing a free flow of information.
On July 7, 1987, Delaware's governor signed into law an amendment to the Act permitting the court to award attorneys' fees and costs to a successful plaintiff and to a successful defendant if the court finds the action was frivolous or brought solely for the purpose of harassment. 29 Del. C. § 10005(d). The amendment also provides that a citizen can request the Attorney General to make a written determination as to whether a violation has occurred. 29 Del. C. § 10005(e). If the Attorney General finds that a violation has occurred, the citizen may bring an action or request the Attorney General's office to bring an action on behalf of the citizenry. Id. The Attorney General's office is not required to bring actions against agencies or commissions that it represents. 29 Del. C. § 10005(f). Finally, the amendment restricts the ability of public bodies to hold meetings outside the State of Delaware. 29 Del. C. § 10004(g).
The General Assembly appears receptive to curing defects in the Act as they are discovered, primarily as a result of judicial decisions. State officials, for the most part, are complying with the terms of the Act, though a number of early cases arose because state officials were unaware of the terms of the Act. Finally, though the Delaware Act was not modeled on the federal FOIA, certain fundamental language related to exemptions is identical. On occasion the Delaware courts have looked to cases under the federal Act. News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980). See also Del. Op. Att'y Gen., No. 95-ib24 (Aug. 7, 1995).
STRUCTURE OF DELAWARE'S ACT
Delaware's Act is very broad and covers both records and meetings. In order to understand the scope of the Act, it is necessary to consider four important definitions.
- Public Body. As defined by the Act, only a "public body" creates records or holds meetings that are subject to the Act.
- "Public body" includes the following groups:
Any regulatory, administrative, advisory, executive, appointive or legislative body of the state, or of any political subdivision of the state, including, but not limited to, any board, bureau, commission, department, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative committee, association, group, panel, council or any other entity or body established by an act of the General Assembly of the state, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the state or otherwise empowered by any state governmental entity. 29 Del. C. § 10002(c).
A variety of public entities have been found to be "public bodies" subject to FOIA. See, e.g., New Castle County Vocational-Technical Educ. Ass'n v. Bd. of Educ., 1978 WL 4637 (Del. Ch. Sept. 25, 1978) (school board "is unquestionably a public body"); News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980) (Delaware Association of Professional Engineers); Del. Op. Att'y Gen., No. 92-C011 (Apr. 13, 1992) (Council on Banking); Del. Op. Att'y Gen., No. 94-I025 (Aug. 23, 1994) (Thoroughbred Racing Commission).
- To qualify as a "public body," the above-listed entity must perform one of the following functions: (1) be supported in whole or in part by any public funds; (2) expend or disburse any public funds, including grants, gifts or other similar disbursals and distributions; or (3) be impliedly or specifically charged by any other public official, body or agency to advise or to make reports, investigations or recommendations. 29 Del. C. § 10002(c).
- The General Assembly of the State of Delaware is excluded from the definition of public body. 29 Del. C. § 10002(c).
- Public Business. Records or meetings that relate to the "public business" are subject to the Act. The Act defines the phrase "public business" as "any matter over which the public body has supervision, control, jurisdiction or advisory power." 29 Del. C. § 10002(e). See, e.g., Del. Op. Att'y Gen., No. 96-ib32 (Oct. 10, 1996) (addressing whether public business was conducted at a nonpublic meeting); Del. Op. Att'y Gen., No. 96-ib02 (Jan. 2, 1996) (same).
III. Public Funds. The phrase "public funds" is defined as "funds derived from the State or any political subdivision of the State." 29 Del. C. § 10002(f).
- Public Record. Only "public records" are subject to the Act.
- The act defines "public record" as "information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest, or in any way related to public purposes, regardless of the physical form or characteristic by which such information is stored, recorded or reproduced." 29 Del. C. § 10002(g). Once a document is presented to a public body for review, it becomes a public record even though it is in draft form and may be subject to further change. Del. Op. Att'y Gen., No. 05-ib13 (May 9, 2005) (finding the Town of Laurel violated the public records requirements of FOIA by not providing a copy of the draft employment contract with the Town Manager after the council voted at a public meeting to approve the contract subject to review by legal counsel).
- The open records portion of the Act contains sixteen statutory exemptions, which also include all "records specifically exempted from public disclosure by statute or common law." 29 Del. C. § 10002(g)(6). For example, Delaware Superior Court has adopted a constitutional exemption for public records that are subject to a constitutional executive privilege. Guy v. Judicial Nominating Comm'n, 659 A.2d 777 (Del. Super. 1995).
ADMINISTRATIVE PROCEDURES ACT
Delaware's Administrative Procedures Act (the "APA") contains a section dealing with release of public information that requires agencies to release most information but contains exemptions that do not appear in the Act. 29 Del. C. § 10112. For example, documents related to the agency's internal procedures and personnel practices may not be released under the APA but are subject to disclosure under the Act. However, confidential or privileged material is not required to be released under either statute. See 29 Del. C. § 10112(b)(4). The Delaware Code defines which agencies are subject to the APA. 29 Del. C. § 10161.
Because the Act is broader in scope and provides for payment of attorneys' fees, it is recommended to proceed under the Act rather than the APA.
District of Columbia
The first provision of the District of Columbia Freedom of Information Act of 1974, D.C. Code Ann. § 2-531 et seq. ("D.C. Act"), emphasizes the public policy of open government that underlies the law. The D.C. Act provides that:
"The public policy of the District of Columbia is that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. To that end, provisions of this subchapter shall be construed with the view toward expansion of public access and the minimization of costs and time delays to persons requesting information."
D.C. Code Ann. § 2-531.
This provision was included in the D.C. Act "to make clear that any actions should serve the purpose of access and that any restriction on that access should be construed narrowly." Comm. on the Judiciary and Criminal Law, Report on Bill No. 1-119, the "D.C. Freedom of Information Act of 1975," at 6 (Sept. 1, 1976) ("Comm. on Judiciary Report"). This policy of openness requires courts to construe all exemptions narrowly and to resolve all doubts in favor of disclosure. Newspapers, Inc. v. Metro. Police Dep't, 546 A.2d 990, 993 (D.C. 1988); Barry v. Washington Post Co., 529 A.2d 319, 321 (D.C. 1987).
The D.C. Act has been the subject of few reported cases. See Vining v. District of Columbia, 198 A.3d 738, 743 (D.C. 2018); Kane v. District of Columbia, 180 A.3d 1073 (D.C. 2018); Vining v. Council of District of Columbia, 140 A.3d 439 (D.C. 2016); Fraternal Order of Police v. District of Columbia, 139 A.3d 853 (D.C. 2016); Fraternal Order of Police v. District of Columbia, 124 A.3d 69 (D.C. 2015); Frankel v. D.C. Office for Planning & Econ. Dev., 110 A.3d 553, 557 (D.C. 2015), as amended (Mar. 5, 2015); Fraternal Order of Police, Metro. Labor Committee v. District of Columbia, 82 A.3d 803 (D.C. 2014); Fraternal Order of Police v. District of Columbia, 79 A.3d 347, 360 (D.C. 2013); Riley v. Fenty, 7 A.3d 1014, 1017 (D.C. 2010); Doe v. D.C. Metro. Police Dep't, 948 A.2d 1210 (D.C. 2008); Wemhoff v. District of Columbia, 887 A.2d 1004, 1009 (D.C. 2005); Donahue v. Thomas, 618 A.2d 601 (D.C. 1992); McReady v. Dep't of Consumer & Regulatory Affairs, 618 A.2d 609 (D.C. 1992); Hines v. Bd. of Parole, 567 A.2d 909 (D.C. 1989); Washington Post v. Minority Bus. Opportunity Comm'n, 560 A.2d 517 (D.C. 1989); Wolf v. Regardie, 553 A.2d 1213 (D.C. 1989); Newspapers, Inc. v. Metro. Police Dep't, 546 A.2d 990 (D.C. 1988); Barry v. Washington Post Co., 529 A.2d 319 (D.C. 1987); Dunhill v. Dir., D.C. Dep't of Transp., 416 A.2d 244 (D.C. 1980). The D.C. Act, however, is patterned on and construed in accordance with the federal Freedom of Information Act, 5 U.S.C.A. § 552. See Barry v. Washington Post Co., 529 A.2d at 321. Thus, when litigating a question involving the D.C. Act, reliance upon applicable federal law is appropriate.
The Supreme Court has reaffirmed that there is no constitutional right of access to government records. McBurney v. Young, 133 S. Ct. 1709, 1712 (2013) ("The Court has repeatedly stated that the Constitution does not guarantee the existence of FOIA laws."). This position is deeply rooted in the Court's precedent. See, e.g., Houchins v. KQED, 438 U.S. 1 (1978) ("There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy."). The Court has also asserted that there is no common law right to access such records. McBurney, 133 S. Ct. at 1718 ("No such right was recognized at common law . . . most founding-era English cases provided that only those persons who had a personal interest in non-judicial records were permitted access to them.").
Florida has the most expansive open government laws in the country. Open government law has proceeded on three different, but related, tracks: statutory public records, statutory public meetings, and judicial access decisional law. Florida’s public records law is codified at Fla. Stat. §§ 119.01 to 119.19 (2020). The open meeting statute is commonly called the Florida Sunshine Law and is codified at Fla. Stat. §§ 286.011 to 286.012 (2020). Both open government statutes have been broadly construed by the judiciary and the Florida Attorney General’s Office and reflect a comprehensive policy of open government. Access to judicial records and proceedings has similarly been broadly granted by Florida courts.
The Florida Public Records Law unequivocally states, “[i]t is the policy of this state that all state, county, and municipal records are open for a personal inspection and copying by any person.” Fla. Stat. § 119.01(1) (2020). The statute expansively defines “[p]ublic records” to include “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, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.” Fla. Stat. § 119.011(12) (2020). With equal breadth, the law defines “[a]gency” as “any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law . . . and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.” Fla. Stat. § 119.011(2) (2020).
A “public record” of an agency is subject to a broad legislated public right of inspection. Section 119.07(1)(a) provides that “[e]very person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.”
The Florida Supreme Court has held that only statutory exemptions from the inspections provision of Chapter 119 may be recognized, Wait v. Fla. Power & Light, 372 So. 2d 420 (Fla. 1979); although, courts must give effect to competing constitutional rights where inspection would otherwise compromise them. Fla. Freedom Newspapers v. McCrary, 497 So. 2d 652 (Fla. 1st DCA 1986).
The exact number of statutory exemptions to the open records law is difficult to assess and changes often, but is estimated at over 1,100. See Resources: Current Exemptions Tracker, First Amendment Found. (July 29, 2021, 9:15 AM), https://floridafaf.org/resources/. In response to criticisms that Florida’s public records law has been undermined by the many exemptions, the Florida Legislature enacted the Open Government Sunset Review Act of 1995, codified at Fla. Stat. § 119.15. This “Sunset” law provides for the periodic repeal of all exemptions, and mandates periodic review of the specific criteria which should be considered when reviewing the exemptions. Unless the legislative review demonstrates a compelling interest in retaining a particular exemption, and the legislature reenacts the exemption, it is automatically repealed.
The 1995 Sunshine Review Act incorporates the provisions of Section 119.15 as the criteria by which legislators should review Sunshine Law exemptions. Fla. Stat. § 286.0111. Under the 1995 Act, an exemption must fit within one of three categories of identifiable public purposes and must be seen as compelling enough to override the strong presumption of openness articulated in Fla. Stat. § 119.15(2). See Fla. Stat. § 119.15(6)(b) (2020).
Since the Sunshine Review Act, the legislature has exhibited a resolve to streamline exemptions, allowing confidentiality only to the extent necessary to protect important competing values.
Florida’s Government in the Sunshine Law, passed in 1967, requires that all meetings of any state, county, or municipal board or commission be open to the public, and mandates that any official action taken at the closed meeting not be binding. Fla. Stat. § 286.011 (2020). “Meeting” is construed broadly and is not confined to “formal” assemblages at which a ritualistic vote takes place. Times Publ’g Co. v. Williams, 222 So. 2d 470, 473–74 (Fla. 2d DCA 1969), overruled in part, on other grounds, Neu v. Miami Herald Publ’g Co., 462 So. 2d 821 (Fla. 1985). The legislature intended to make open the entire decision-making process by the enactment of the Sunshine Law.
Exemptions to the Sunshine Law are not nearly as numerous as exemptions to the public records law. The Open Government Sunset Review Act also applies to the open meeting statute; thus, exemptions to open meeting requirements are reviewed in the same manner as discussed above in reference to open records exemptions. Fla. Stat. § 286.0111 (2020).
Georgia courts have long recognized “the strong public policy of this state in favor of open government.” Richmond Cty. Hosp. Auth. v. Se. Newspapers Corp., 252 Ga. 19, 20, 311 S.E.2d 806, 808 (1984). The policy is expressed in the state’s two principal open government statutes—the Georgia Open Meetings Act, O.C.G.A. § 50-14-1, et seq., and the Georgia Open Records Act, O.C.G.A. § 50-18-70, et seq. As famously noted by former Georgia congressman, chief justice and Profiles in Courage honoree Charles Weltner, the policy is also underpinned by the Georgia Constitution:
“Over the past decade, as I see it, our court has breathed life into some old words that have lain dormant within our Constitution for most of their century-old existence. The words are:
Public officers are the trustees and servants of the people and are at all times amenable to them.
We have established that this is no empty phrase, but an obligation that is enforceable in a court of law. Public men and women, above all others, must act in good faith. Neither facile excuse nor clever dissimulation can serve in the stead of duty — faithfully performed. Because public men and women are amenable ‘at all times’ to the people, they must conduct the public's business out in the open.”
Excerpt from the final opinion of Hon. Charles L. Weltner, Chief Justice, Georgia Supreme Court, attached to Davis v. City of Macon, 262 Ga. 407, 419 S.E.2d 483 (1992) (citations and footnotes omitted). Chief Justice Weltner was suffering from terminal cancer at the time he wrote the opinion, which began "[t]his is the last appeal in which I will participate as a member of the Supreme Court of Georgia." He passed away shortly thereafter.
This edition contains revisions resulting primarily from the publication of opinion letters from the Hawaii Office of Information Practices through 2015.
Hawaii's initial Sunshine Law relating to public meetings and records was enacted in 1975 and is codified as chapter 92 of Hawaii Revised Statutes [Chapter 92, Sunshine Law].
In 1980, in response to the adoption of a constitutional right of privacy, Haw. Const. art. I, § 6 (adopted 1978), the Legislature enacted the Fair Information Practice Act (Confidentiality of Personal Records), Act 226, 10th Leg., Reg. Sess. (1980), reprinted in 1980 Haw. Sess. Laws at 378 [Privacy Act, Chapter 92E], which severely limited access to records. The Privacy Act substantially reduced access to government records by prohibiting access to records containing "confidential" information identifying any person whose privacy would be invaded. The Privacy Act's definition of a "public record" included records which were (1) the property of the state, the county, or a "board" (2) on which an entry was or had to be made and (3) which was or had to be received for filing.
Both the ambiguity of the confidentiality restrictions and the technical definition of "public record" in the Privacy Act led to widespread criticism of the law. In December 1987, a Governor-appointed task force issued a four-volume report containing public testimony on, analysis of, and recommendations regarding Hawaii's open records laws.
The report noted:
[T]he most criticized feature of the current law is that it simply is not a cohesive law. Chapters 92 and 92E in particular are in obvious conflict. These two laws were written at different times, for different purposes, and no real effort appears to have been made to properly link them together.
Report of the Governor's Ad Hoc Committee on Public Records and Privacy 17 (1987). The report discussed possible models for a new law, including the federal Freedom of Information Act [FOIA] and the Uniform Information Practices Code [Uniform Code]. The legislature chose to adopt the Uniform Code with modifications.
In 1988, Hawaii adopted the Uniform Information Practices Act [UIPA, Chapter 92F]. Act 262, 14th Leg., Reg. Sess. (1988), reprinted in 1988 Haw. Sess. Laws 473 (codified at Haw. Rev. Stat. ch. 92F (Supp. 1991)). The UIPA went into effect on July 1, 1989. Id. § 7, reprinted in 1988 Haw. Sess. Laws at 483. It replaced both the Sunshine Law's original provisions on public records, Haw. Rev. Stat. §§ 92-50 to 92-52, repealed by Act 262 § 3, 14th Leg., Reg. Sess. (1988), reprinted in 1988 Haw. Sess. Laws at 482, and the Privacy Act, id. ch. 92E, repealed by Act 262 § 4.
While it repealed the open records and privacy provisions of the Sunshine Law, the UIPA did not materially affect the public meetings portion of Hawaii's Sunshine Law. Neither did passage of the UIPA affect provisions in the Hawaii Administrative Procedure Act [HAPA] concerning public hearings and related procedures required for rulemaking by government agencies.
Section 92F-2 sets forth the UIPA's purpose:
In a democracy, the people are vested with the ultimate decision-making power. Governmental agencies exist to aid the people in the formation and conduct of public policy. Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest. Therefore, the legislature declares that it is the policy of this State that the formation and conduct of public policy – the discussions, deliberations, decisions, and action of governmental agencies – shall be conducted as openly as possible.
Haw. Rev. Stat. § 92F-2 (1996).
The UIPA covers all records in the possession of any unit of government. It generally applies to the judiciary and legislature. See id. §§ 92F-3 (1996) (defining agency to exclude non-administrative functions of judiciary), 92F-13(5) (exempting drafts and notes of the legislature).
There are approximately 6,800 discrete units of state government that meet the UIPA's definition of "agency." Office of Information Practices [OIP], Records Report Training Guide 40 (1992) (on file with OIP). The UIPA's broad definition of "agency" affords access to many records of entities regulated by government or performing a government function. Whether non-governmental entities fit the UIPA's definition of "agency" is a matter decided on a case-by-case basis. The Sunshine Law, by way of contrast, applies to "boards," which include agencies, but defines such entities more narrowly than the UIPA. The result is that there may be some government agencies whose records are accessible under the UIPA but whose meetings under the Sunshine Law need not be.
Reducing confusion that arose under the Privacy Act's definition of "public record," the UIPA defines a "personal record" to be "any item, collection, or grouping of information about an individual that is maintained by an agency," making such records a type of government records. Haw. Rev. Stat. § 92F-3 (1996). The UIPA explicitly grants individuals the right to inspect and correct their own personal records. Id. §§ 92F-21 to 92F-28.
The UIPA's presumption of openness and accessibility replaced the broad exception under the former Privacy Act that allowed agencies to deny access to records because disclosure might invade an individual's personal privacy. Id. § 92F-11(a) ("All government records are open to public inspection unless access is restricted or closed by law."). Nevertheless, the UIPA preserves the Privacy Act's concern for privacy by acknowledging that "[t]he policy of conducting government business as openly as possible must be tempered by a recognition of the right of the people to privacy, as embodied in section 6 and section 7 of Article I" of the Hawaii Constitution. Id. § 92F-2. When constitutional concerns arise, Chapter 92F calls for a balancing of "the individual privacy interest and the public access interest . . . unless [access] would constitute a clearly unwarranted invasion of personal privacy." Id. § 92F-2(5).
The UIPA requires that certain categories of records be disclosed, regardless of privacy considerations or other grounds for exempting disclosure. Id. § 92F-12 (listing documents for which disclosure is required "[a]ny other provision in this chapter to the contrary notwithstanding"). Past disputes involved many of these listed categories of records.
The UIPA requires government agencies to promulgate rules and regulations to implement the law. Id. § 92F-18. Its passage also funded the Office of Information Practice, which is a division of the Lieutenant Governor's Office. Haw. Rev. Stat. § 92F-41 (Supp. 1999).
The UIPA requires the OIP to disseminate information on access. Haw. Rev. Stat. § 92F-42(11) (Supp. 1999). To facilitate dissemination of information on government records to the public, the OIP maintains a computerized database of the records reports received from state agencies. Id. § 92F-18(b) (requiring agencies to submit to OIP annual reports on records they maintain and on requests for access received). This allows public users of the state's computerized information network to access statistical information, including "the percentage of each agency's records that are public or confidential, the number of written record inquiries received by the agency, and the number granted or denied in the previous fiscal year." OIP, RRS to be Available on HAWAII FYI, OIP Openline (newsletter), July 1992, at 1.
Starting in 1994, the computerized catalog of Hawaii state and county government records has been available to the public. As of June 2010, more than 29,000 sets of records have been reported on the State Record Report System (RRS). OIP 2010 Annual Report. RRS provides information concerning which government records are open to public inspections and copying. Id. Beginning in October 2004, RRS has been available on the Internet via OIP's website. Id.
The UIPA empowers the OIP to issue public advisory guidelines to agencies and to issue formal and informal advisory opinions to agencies and the public. Haw. Rev. Stat. §§ 92F-42(2), (3) (Supp. 1999). OIP also provides answers to telephone inquiries. The majority of OIP formal advisory opinions were requested by government agencies or officials.
The OIP also issues unnumbered (informal) advisory opinion letters. OIP explains that it usually issues such letters when the period in which to answer a request for advice is necessarily so short as to preclude full legal research and/or when the request involves analysis that is directly duplicative of that already contained in previously issued formal opinion letters. Although it does not provide these unnumbered advisory opinion letters to the agencies and private parties on its regular mailing list (as it routinely does with its numbered advisory opinion letters), the OIP does make its unnumbered advisory opinion letters available upon request. Most unnumbered opinions contain personal information, which the OIP redacts before releasing copies.
The UIPA also authorizes the OIP to devise an administrative appeal system and to rule on such appeals. Id. §§ 92F-42(1), (12) (Supp. 1999); see also Haw. Rev. Stat. §§ 92F-15.5 and 92F-27.5 (Supp. 1999). The OIP's rulings in such cases are "optional and without prejudice to rights of judicial enforcement." Haw. Rev. Stat. § 92F-42(1). The OIP has drafted the rules for the appeal process. See Haw. Admin. R. tit. 2, ch. 71. OIP has previously advanced the position that its opinion that a record must be disclosed – as opposed to an opinion that disclosure of a record is not required – is not subject to appeal by the agency having custody of the record. The reasoning is that the right to judicial enforcement of the UIPA is statutorily limited to a “person aggrieved by a denial of access to a government record.” Haw. Rev. Stat. § 92F-15(a). When records covered by the Sunshine Law are concerned (e.g., minutes of government board meetings), however, the Intermediate Court of Appeals has held that the agency may initiate an original action under the Sunshine Law for the determination of whether such records must be disclosed. See Haw. Rev. Stat. § 92-12(c); County of Kaua‘i v. OIP, 120 Hawai‘i 34, 43, 200 P.3d 403, 412 (2009).
OIP’s determinations as to the applicability of the UIPA, such as the definition of “agency” or “government record,” are not given deference on appeal, but rather are reviewed de novo. ‘Olelo: The Corporation For Community Television v. OIP, 116 Hawai‘i 337, 346, 173 P.3d 484, 493 (2007).
Members of the public can appeal directly to the state's circuit courts any time a government agency denies them a request for information held by the particular government agency. Haw. Rev. Stat. § 92F-15 (1996). The access provisions of the UIPA were upheld in Burnham Broad. Co. v. County of Hawaii, Civ. No. 92-0161 (Haw. 3d Cir. Mar. 1992). The case involved the refusal by a county agency, the police department, to release to media organizations records pertaining to the agency's allegedly deficient response to 911 calls connected to a widely publicized Christmas Eve rape and murder. Id. The county not only lost the lawsuit, but also ended up paying the court costs and attorneys' fees that the media plaintiffs' had incurred in their efforts to secure access to the tapes and transcripts. OIP, The Cost of Denying Public Access, OIP Openline (newsletter), May 1992, at 2.
Contrast this with the remedies available for violation of the Open Meetings law. In the case of wrongful denial of public access to meetings of government agencies, the sanction is to render null and void any decisions reached in such meetings. Haw. Rev. Stat. § 92-11. Under the Sunshine Law, parties denied access to government meetings can file suit in the state circuit courts to obtain an injunction "or other appropriate remedy." Id. § 92-12 (1996). The court can order payment of reasonable attorney fees and costs. Id. § 92-12(c). Willful violation of the Sunshine Law by a government official constitutes a misdemeanor as well as grounds for removal from the "board." Id. § 92-13.
The OIP, through its interpretations of UIPA and its efforts to disseminate information about the law, particularly to agencies, has been a constructive influence moderating tensions between agencies and the public over access issues.
Nevertheless, problems regarding access still exist, and litigation over the provisions of UIPA as well as other access laws has resulted. For example, in 1996, the Hawaii Supreme Court required the public disclosure of information concerning employment-related disciplinary actions involving police officers, as required by the UIPA; and a federal district court invalidated a state statute limiting access to voter registration records. And in the summer of 2015, the Hawaii Supreme Court heard oral arguments as to how much information the police department must publicly disclose about police disciplinary proceedings that result in an officer’s suspension but not termination. These cases, among others, demonstrate the necessity of continued vigilance to unlocking government secrets.
Jeffrey S. Portnoy and Elijah Yip are partners at Cades Schutte LLP. John Duchemin is an associate at Cades Schutte LLP.
In 2015, the Idaho legislature recodified Idaho’s public records act and open meeting law by combining their provisions, and adding others related to government transparency, into a new act called Transparent and Ethical Government, Title 74, Idaho Code. Within this new act, Chapter 1 is the Public Records Act (Idaho Code §§ 74-101 through 126), Chapter 2 is the Open Meetings Law (Idaho Code §§ 74-201 through 208), Chapter 3 is reserved, Chapter 4 is entitled “Ethics in Government Act of 2015” (Idaho Code §§ 74-401 through 406), and Chapter 5 is Prohibitions Against Contracts with Officers (Idaho Code §§ 501 through 511). The legislative purpose of the act was to “provide one place for citizens to find laws relating to government transparency.” This new act became effective July 1, 2015 and was largely the result of coordinated efforts by the Public Records Ombudsman (an executive branch position created by the Governor in 2014), Idaho media representatives, city and county representatives, members of the Attorney General’s office and the public.
Idaho’s public records act was originally enacted in 1990. See Idaho Code § 9-337 through 9-348 (1990). This act created for the first time in Idaho a definitive procedure for making requests to inspect and copy public records and at the same time placed specific responsibilities on governmental agencies for responding to such requests. In addition, the act defined the universe of public records in a broad, encompassing manner, thus making clear that the records of government at every level in Idaho and in every type of cooperative and "intergovernmental" activity are subject to public view unless specifically exempted by statute.
As in other states, the Idaho Legislature determined that some types of public records should not be available for public inspection and copying because, in the legislature’s view, the type of information contained in the records was inherently personal and private in nature, or involved proprietary business information or was similarly best left confidential. However, rather than follow the federal Freedom of Information Act model in which a small number of exemptions are loosely defined, with the parameters of the exemptions left to agency regulations and judicial interpretation, the Idaho legislature chose to identify the actual types of records exempt from public disclosure with a greater degree of specificity. In addition, in nearly all instances, the legislature specifically refused to give government agencies the power to exempt public records from public view by rule making. In attempting to draw more black and white lines, instead of fewer gray lines, the legislature hoped to reduce the number of disputes over public records. This approach is particularly appropriate in Idaho, which has a small population and thus can only expect infrequent judicial interpretations of the open records statutes.
Revisions to the public records act have occurred and numerous exemptions have been added or amended since 1990. The most significant of those revisions occurred in 2015, when the Idaho legislature recodified the public records act to include it within a larger act relating to government transparency, Title 74, Idaho Code. Chapter 1 of this new act contains the Public Records Act and, for the most part, mimics the previous act’s language, including exemptions (which are discussed infra).
Although the public records act is routinely used throughout Idaho and disputes about its application are often brought before trial courts, very few decisions make it to the Idaho Supreme Court. Indeed, the Idaho Supreme Court has issued only ten reported decisions directly addressing the Public Records Act since 1990.
First, in Federated Publications Inc. v. Boise City, 128 Idaho 459, 915 P.2d 21 (1996), the Idaho Supreme Court considered whether names and resumes of applicants for an appointment to a vacancy on the city council were subject to disclosure under the public records law. The court held that the term “applicant” in the provision of the public records law exempting from disclosure certain personnel information refers to an applicant for a position as a public employee, and does not apply to applicants to be a public official. Therefore, resumes and names of applicants for public office were held to be open to the public. The court also addressed whether records of an administrative review of a police shooting incident is exempt from public disclosure. The administrative review consisted of a review of policies and training, completeness of internal discipline procedures, and whether there had been a violation of the law. The court held that the records from such a review were open to the public and not exempt from disclosure as a personnel record. Id.
Second, in Bolger v. Lance, 137 Idaho 792, 53 P.3d 1211 (2002), the Idaho Supreme Court held that the Attorney General’s office qualified as a “law enforcement agency” under Idaho Code § 9-335(2) [new provision I.C. § 74-124(3)]. As such, records of the attorney general’s office were “investigatory records” exempt from disclosure pursuant to Idaho Code § 9-340B(1) [new provision I.C. § 74-105(1)], and this general exemption controlled over the provision allowing individuals to obtain copies of public records about themselves pursuant to Idaho Code § 9-342(1) [new provision I.C. § 74-113(1)].
Third, in Magic Valley Newspapers, Inc. v. Magic Valley Regional Medical Center, 138 Idaho 143, 59 P.3d 314 (2002), the Idaho Supreme Court was asked to consider whether the names of public employees are exempt from disclosure as “other personnel information” under Idaho Code § 9-340C(1) [new provision I.C. § 74-106(1)] when those names are connected with information regarding the employees’ gross salary. A public hospital refused to produce the names of its employees when a newspaper requested access to records showing the name, title, and annual salary of every employee earning more than $50,000 annually, relying in part on Idaho Code § 9-340A(1) which exempts records that are specifically made exempt under federal or state law or federal regulation. Here, the hospital urged the Court to adopted the federal Freedom of Information Act’s personnel file exemption, indicating that such records would be exempt to the extent they “would constitute a clearly unwarranted invasion of personal privacy.” The Court rejected this argument, finding that FOIA does not apply because its provisions are limited to the disclosure of public information from the federal government, not state agencies. Thus, the Court ordered the hospital to disclose the requested names and salaries.
Fourth, in Idaho Conservation League, Inc. v. Idaho State Dept. of Agriculture, 143 Idaho 366, 146 P.3d 632 (2006), the Idaho Supreme Court rejected arguments that documents previously submitted to a state agency and then returned to their owner were not subject to disclosure under the public records act because the state agency no longer had possession of such records. The court found that that fact that a state agency no longer had possession of a document was irrelevant to the question of whether such record was a public record and that such an argument was inconsistent with the purpose of the public records act. To that end, the court awarded ICL its attorneys fees on appeal because it found the state agency’s position on appeal to be “frivolously pursued” pursuant to Idaho Code § 9-344(2) [new provision I.C. § 74-116(2)].
Fifth, in Nation v. State, 144 Idaho 177, 158 P.3d 953 (2006) the Idaho Supreme Court held, in the context of a 42 U.S.C. § 1983 action brought by a former corrections officer, that the Idaho Public Records Act does not create a substantive right to bring a negligence suit. In this case, the former corrections officer asserted that he was entitled, inter alia, to bring a negligence per se action against the Idaho Department of Corrections because it improperly disclosed his private information under Idaho Code § 9-340C(1) [new provision I.C. § 74-106(1)] when it replied to a public records request by an inmate.
Sixth, in Cowles Publishing Co. v. Kootenai Co. Bd. of Co. Commissioners, 144 Idaho 259, 159 P.3d 896 (2007), the Idaho Supreme Court considered whether a series of e-mail messages of a personal nature exchanged between an elected public official and a public employee were public records subject to disclosure. The public employee claimed that the e-mail messages were not public records and, if they were, they were exempt from disclosure as a personnel record under Idaho Code § 9-340C(1) [new provision I.C. § 74-106(1)]. The court rejected each of these arguments. The court began its analysis by noting that “a record may be a public record if it is a writing that (1) contains information relating to the conduct or administration of the public’s business, and (2) was prepared, owned, used or retained by a governmental agency.” Id., 144 Idaho at 263. The court found that the e-mail messages satisfied each of these prongs. Next, the court considered the personnel records exemption of 9-340C(1) and held that “although the [e-mail messages] may be a form of correspondence, they are not the type of correspondence the legislature meant to exempt in Idaho Code § 9-340C(1).” Id., 144 Idaho at 264-265. As such, the e-mail messages were ordered to be released. The court also considered whether an associated settlement agreement should be released under the Public Records Act. Applying Idaho Code § 9-340D(11) [new provision I.C. § 74-107(11), the court held that only the statistical data and actual amounts paid are public records, and any other information contained in the settlement agreement is exempt from disclosure.
Seventh, in Ward v. Portneuf Medical Center, Inc., 150 Idaho 501, 248 P.3d 1236 (2011), an individual made a public records request to his local public hospital for copies of all contracts entered into between the hospital and any doctor. This request was denied. Thereafter, the public hospital was sold to a private entity and the new entity objected to producing the requested documents claiming it was not subject to the Public Records Act. On appeal, the Idaho Supreme Court held that “[t]he determination of whether a document qualifies as a public record is based on the content of the document and surrounding circumstances as they existed at the time the request was made.” Id., 150 Idaho at 505, 248 P.3d at 1240. Moreover, pursuant to Idaho Code § 9-343(2) [new provision I.C. § 74-115(2)], a public agency is required to maintain all documents or records requested until an appeal ends and cannot alter the statue of a public record by transferring the record outside the ambit of its control. Accordingly, the hospital was ordered to produce the requested documents.
The eighth decision addressing the public records act from the Idaho Supreme Court is Henry v. Taylor, 152 Idaho 155, 267 P.3d 1270 (2011), a case involving access to a county prosecutor’s contract with the county and payments made thereunder. An individual had requested copies of Canyon County’s contract with its prosecutor, John Bujak, and information from the prosecutor’s private bank account where such sums were deposited. The county provided some information, but responded that it did not have other information, including information about Mr. Bujak’s personal bank account. The individual filed an action seeking such records, and the trial court held that the prosecutor’s private bank account records were not public records. On appeal, the Idaho Supreme Court reversed. It noted that the county prosecutor’s contract with county was a “public contract” and his performance of that contract was the public’s business, and under the definition of a “public record” in Idaho Code § 9-337(13) [new provision I.C. § 74-101(13)], the county prosecutor was “agency of the county.” Accordingly, the Court held that the requested bank account records were public records and must be produced.
Next, in Wade v. Taylor, 156 Idaho 91, 320 P.3d 1250 (2014), Wade was shot twice by a Fruitland police officer after an altercation. Intending to file a tort claim, Wade requested copies of investigatory records related to his shooting from the Idaho State Police and, later, the Payette County Prosecutor. His requests were denied under Idaho Code § 9-335(1) [new provision I.C. § 74-124(1)] as subject to an ongoing investigation. At the completion of its investigation, ISP sent all of its materials to the Canyon County Prosecutor who was serving as a special prosecuting attorney on the matter to determine if charges should be brought against either Wade or the officer. Wade then requested the “complete investigation” file from the Canyon County Prosecutor. His request was denied again pursuant to Idaho Code § 9-335, asserting that the investigation was ongoing and disclosure would interfere with enforcement proceedings and could deprive the parties of a fair trial or impartial adjudication. Wade filed an action in district court and the trial court ordered the documents to be produced, but limited their disclosure to Wade and his counsel. The prosecutor appealed, and the Supreme Court vacated the decision and remanded the matter to the district court. The Supreme Court’s decision addresses a number of issues under the public records act, including: (1) that investigative records under prosecutorial review are active, not inactive, investigatory records pursuant to Idaho Code § 9-335; (2) that the party withholding disclosure under Idaho Code § 9-335(1) has the burden to show a reasonable probability that disclosure of the investigatory records would result in one or more the harms identified in I.C. § 9-335(1)(a)-(f); (3) that a district court’s inquiry on a petition for access is whether the exemption from disclosure was justified at the time of the refusal to disclosure rather than at the time of hearing; (4) that in the event a request covers both exempt and non-exempt records, the district court has an obligation to segregate such records; and (5) that whether or not a record is exempt from disclosure is an objective inquiry. Thus, once a document is a public record a district court cannot limit its disclosure to certain individuals for certain purposes.
Finally, the most recent appellate decision involving the Public Records Act is Hymas v. Meridian Police Dept., 159 Idaho 594, 364 P.3d 295 (Ct.App. 2015). In this case, parents of a young man who died of carbon monoxide poisoning sought the investigatory file surrounding his death from law enforcement. Police originally denied the request and the parents filed an action to compel disclosure of the documents. Two days prior to the show cause hearing, the police provided the parents with the requested records. At the hearing, the parties agreed the records request was moot and only costs and attorneys fees were still at issue. The trial court refused to award costs and fees. After an appeal and remand, the matter was appealed again. This time, the issue was whether the parents were required to identify specific records that they believed were frivolously withheld in order to be entitled to an award of their costs and fees. The Court of Appeals answered that question in the negative, noting that the agency carries the burden of proof as to why it withheld specific records and that burden did not change, even after the agency disclosed the record. Id. at 599, 364 P.3d at 300. The Court also clarified that numerous provisions within the Public Records Act provided a basis for an award of attorney’s fees, not just § 74-116(2). Id. at 600, 364 P.3d at 301.
Today’s Idaho Public Records Act represents a comprehensive statutory treatment of an important tool of public knowledge about the workings of government. The act opens many doors and file drawers which previously had been opened only at the whim and caprice of public officials. However, the omnipresent tension between public inquiry and the inner workings of government has brought efforts to weaken the public records statutes, many of which have unfortunately been successfully pursued.
Idaho’s original Open Meeting Law, Idaho Code § 67-2340 through 67-2347 (1974), was weakened by a series of appellate judicial decisions in the late 1970s and early 1980s. Whether it was as a result of those decisions or in continuation of prior practice, the Open Meeting Law was ignored routinely by governmental bodies, mostly local, across Idaho. As a result, media groups made repeated efforts to obtain legislative amendment of the Open Meeting Law.
In 1992, media groups were finally successful in pushing for reform of the Idaho Open Meeting Law. Amendments passed during the 1992 legislative session imposed strict new meeting notice requirements upon public bodies, assigned specific responsibility to county prosecutors and the state attorney general's office for prosecuting violations of the law and provided civil penalties for knowing violations of the law by members of public bodies subject to the law.
The 1992 notice requirements give much more detailed information about agenda topics than was the case under prior law. Deliberations as well as decisions must take place in open meetings. Further amendments were passed in 1998 clarifying the requirements for open public meetings and executive sessions.
The Idaho Supreme Court has considered the application of the Open Meeting Law at least five times in the past few years. First, in State v. Yzaguirre, 144 Idaho 471, 163 P.3d 1183 (2007), the Idaho Supreme Court considered the contours of the “litigation exception” to the Open Meeting Law in I.C. § 67-2345(1)(f) [which has since been amended]. The court held that the presence of counsel was irrelevant to the application of the litigation exception; what was important was whether a public agency was meeting to discuss “probable litigation.” The court also held that the law’s requirement that “written minutes” of all meetings be kept under I.C. § 67-2344(1) did not include a requirement that an audio recording of the meeting take place. Finally, the court held that county commissioners could not be subject to the civil penalties of I.C. § 67-2347(2) for violations of the Open Meeting Law unless they knew they were not in compliance with the law.
Second, in Safe Air for Everyone v. Idaho State Dept. of Agriculture, et al, 145 Idaho 164, 177 P.3d 378 (2008), the Idaho Supreme Court was asked to consider whether the Open Meetings Act applied when Department of Agriculture employees attended an intergovernmental meeting to discuss issues related to crop residue burning. After noting that the crop residue disposal program was not a subagency of the Department of Agriculture, the court turned its attention to the definition of “governing body” under I.C. § 67-2341(5). The court held that a “governing body” must have “the authority to make decisions for or recommendations to a public agency regarding any matter.” Id. Since the employees at issue did not have “the authority” to make decisions for or recommendation to the Department of Agriculture, they did not constitute members of a “governing body” subject to the requirements of the Open Meetings Act. “The legislature has required that various bodies and commission transact business at a meeting where a quorum is present. It has not imposed that requirement upon groups of public employees.” Safe Air for Everyone, 145 Idaho at 168 (internal citations omitted).
Third, in Noble v. Kootenai County, 148 Idaho 937, 231 P.3d 1034 (2010), the Idaho Supreme Court held that a site visit by a county commission to a property that was the subject of the landowners’ subdivision application violated I.C. § 67-2342’s requirement that “all meetings of a governing body of a public agency shall be open to the public and persons shall be permitted to attend any meeting except as otherwise provided by this act.” The court found that the commission made it “practically impossible for the public to be present while the visit was conducted” in that it did not allow the public “to get close enough to the hearing body to hear what is being said” and “precluded the public from even listening to the hearing.” Id., 148 Idaho at 943.
Fourth, in Leavitt v. Craven, 154 Idaho 661, 302 P.3d 1 (2012), the Idaho Supreme Court held that the Commission on Pardons and Paroles did not violated the Open Meeting Act when it met in executive session to consider a death row inmate’s commutation petition.
And, finally, in Arnold v. City of Stanley, 158 Idaho 218, 345 P.3d 1008 (2015), the Idaho Supreme Court held that citizens who had not been “affected by a violation of the provisions of [the] act” pursuant to Idaho Code § 67-2347(6) [new provision I.C. § 74-208(6)] did not have standing to challenge an alleged violation of the open meeting act.
In 2008, the Idaho Attorney General issued an opinion on the application of the executive session exceptions set forth I.C. § 67-2345 [new provision I.C. § 74-206] indicating that such exceptions “should be interpreted narrowly in order to fulfill the broad public purpose of allowing citizens to observe their governments at work.” 2008 Idaho Op. Atty. Gen 42, Idaho Op. Atty. Gen. No. 08-3, 2008 WL 4360202 (Idaho). The opinion continues: “Violation of the OMA should be avoided whenever possible. If an entity is in doubt as to the propriety of an executive session, the doubt should be resolved in favor of openness. If a violation occurs, the entity should acknowledge the violation as soon as possible and take the appropriate steps to correct the violation, even if that means holding the entire meeting de novo and as if the prior improper meeting never occurred.” Id. at *5.
As indicated above, the Open Meetings Act went through a significant legislative recodification in 2015, when the Idaho legislature moved the act to include it within a larger act relating to government transparency, Title 74, Idaho Code. Chapter 2 of this new act contains the Open Meetings Law (Idaho Code §§ 74-201 through 208) and, for the most part, mimics the previous act’s language, including exemptions (which are discussed infra).
It is public policy in Illinois that all persons are entitled to full and complete information about the affairs of government and the official acts and policies of public officials and public employees, and that the actions and deliberations of public bodies be conducted openly. See 5 ILCS 120/1; 5 ILCS 140/1. The legislature has declared that "access [to government records] is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interests." 5 ILCS 140/1. These policies are reflected in the legislative intent statements preceding Illinois’ Open Meetings Act, 5 ILCS 120/1 to 6, and Freedom of Information Act, 5 ILCS 140/1 to 11.
An Open Meetings Act has existed in Illinois since 1957, and a number of amendments over the years have served to widen its scope and to effectively overrule cases that restricted notice requirements and relief available for violations. As for records, Illinois acknowledges the common law right to inspect and copy records, People ex. rel. Gibson v. Peller, 34 Ill. App. 2d 372, 374-75, 181 N.E. 2d 376, 378 (1st Dist. 1962). The state has had a State Records Act, 5 ILCS 160/1 to 26, since the late 1800s, but the 1984 FOIA was designed to serve as the focal reference statute for open records questions. The FOIA does not nullify other case and statutory law regarding records, but the Legislature declared it to be the exclusive state statute on freedom of information, except to the extent that other state statutes create additional restrictions on disclosure of information or to the extent that other state laws create additional obligations for disclosure of information. 5 ILCS 140/1.
A lengthy statement of intent precedes the FOIA: The Act is not intended to be used to violate individual privacy, to further commercial enterprise, or to disrupt the day-to-day workings of any public body. It is not intended to create an obligation on the part of any public body to maintain or prepare any public record that was not maintained and prepared by it at the time the Act became effective, except as otherwise required by applicable local state or federal law. Restraints on information access are to be regarded as limited exceptions to the general rule that the people have a right to know the decisions, policies, procedures, rules, standards and other aspects of government activity that affect the conduct of the government and the lives of its people.
The legislative history of the FOIA reflects the explicit intention that case law construing the federal Freedom of Information Act is to be used in Illinois to interpret the Illinois Act. Roulette v. Dep’t of Cent. Mgmt. Servs., 141 Ill. App. 3d 394, 400, 490 N.E. 2d 60, 64, 95 Ill. Dec. 587, 591 (1st Dist. 1986). The Act applies to all disclosure requests initiated after the effective date of the Act even if the requested records were prepared or received prior to that date. See Carrigan v. Harkrader, 146 Ill. App. 3d 535, 496 N.E. 2d 1213, 100 Ill. Dec. 148 (3rd Dist. 1986).
An agency may not deny access to records on grounds that they contain confidential or non-disclosable information; the agency must delete the confidential and non-disclosable information and disclose the remainder of the record. See 5 ILCS 140/8. The first rule of thumb that every person seeking information should follow is this: Read the statutes. They are written in reasonably clear language, and most questions do not require a lawyer’s help to interpret.
With respect to open meetings, city councils, county boards and school districts have a tendency to invoke the "litigation" exception to the Open Meetings Act at any opportunity. Case law and Attorney General opinions make it clear that this exception has specific limitations, which are discussed below, and persons seeking information should be sufficiently aware of those limitations to ask questions in an effort to determine whether the exemption is being invoked legitimately.
The author, as counsel to the Illinois Press Association, Illinois Broadcasters Association and Illinois News Broadcasters Association, provides advice to journalists on a daily basis. There is no such thing as a "minor" violation of the Open Meetings Act. Each violation, no matter how "minor" or technical, can be used as a tool to educate public officials about the Act and the proper application of the Act.
This outline is intended to be a survey of the Open Meetings Act and the Illinois FOIA. The case law included here is intended to address the most important, general principles used to interpret the statutes. Illinois has a large body of case law involving disputes over open records, and a somewhat smaller collection of case law addressing open meetings. Many of the older cases are no longer good law because of subsequent amendments. This outline does not purport to be an exhaustive treatment of all case law in Illinois addressing open meetings and records questions, but it is hoped that it will provide persons seeking information with a sound knowledge of the basics and the ability to ask informed questions when faced with a closed meeting or a denial of a record request.
Although the General Assembly exempted itself from the application of the Open Meetings Act, there is a constitutional provision which requires that sessions of both houses of the General Assembly, together with meetings of committees and commissions be open to the public, unless closure is authorized by a 2/3 vote of each house:
Sessions of each house of the General Assembly and meetings of committees, joint committees and legislative commissions shall be open to the public. Sessions and committee meetings of a house may be closed to the public if two-thirds of the members elected to that house determine that the public interest so requires; and meetings of joint committees and legislative commissions may be so closed if two-thirds of the members elected to each house so determine.
Ill. Const. art. IV, § 5
The Indiana General Assembly has given the public and the news media broad access to meetings of public agencies and to records of the public’s business through the Indiana Open Door Law and the Indiana Access to Public Records Act. Recent amendments have attempted to provide quicker resolution of access questions through the creation of a state public access counselor and have strengthened the right to recover attorney fees when access requests are denied. In addition, the law now deals with the increasing computerization of public records and the shift to privatization of traditional governmental services. Indiana’s access laws resulted from pressure from the news media and the public for greater access to the public’s business at various levels of government. Both acts also find their conceptual genesis in the wide-ranging demand for openness in government after Watergate. In the current world of terrorism threats and identity theft, however, the scope of openness may be narrowing to make room for the expanding areas of homeland security and informational privacy. Those who draft and interpret legislation currently face the challenge of striking a balance between the dueling values of disclosure and privacy, openness and security.
The Open Door Law was enacted in 1977 and repealed a portion of the Hughes Anti-Secrecy Act as it related to open meetings. Although there is no official legislative history in Indiana, the intent of the legislators in enacting The Open Door Law is contained in the preamble. The General Assembly declared:
[T]his state and its political subdivisions exist only to aid in the conduct of the business of the people of this state. It is the intent of this chapter that the official action of public agencies be conducted and taken openly, unless otherwise expressly provided by statute, in order that the people may be fully informed. The purposes of this chapter are remedial, and its provisions are to be liberally construed with the view of carrying out its policy.
Ind. Code § 5-14-1.5-1; available at www.in.gov/legislative/ic/code.
The Open Door Law assumes that a meeting of an agency considering the public’s business must be open to the public, unless there is a specific statute permitting closure. Indeed, the Indiana Court of Appeals has noted that Indiana’s Open Door Law “is the broadest and most sweeping we have found.” Riggin v. Board of Trustees of Ball State Univ., 489 N.E.2d 616, 623 (Ind. App. 1986).
Six years after enacting the Open Door Law, the General Assembly followed with a sweeping overhaul of what remained of the Hughes Anti-Secrecy Act. The Hughes Anti-Secrecy Act, which applied to state and local administrative agencies, defined public records as “any writing in any form necessary, under or required, or directed to be made by any statute or by any rule or regulation.” Ind. Code § 5-14-1-2(1) (repealed). The Indiana Court of Appeals noted in a 1980 case that the Anti-Secrecy Act’s definition of public records was more conservative than that of the common law. The common law definition considered a record to be a public record if it was created in “the discharge of a duty imposed by law.” Gallagher v. Marion County Victim Advocate Program, Inc., 401 N.E.2d 1362, 1366 (Ind. App. 1980). The Anti-Secrecy Act’s definition had prompted endless debates over whether a particular record was “required to be kept.” The 1983 statute was the product of a legislative study committee which examined the need for revision to the open records law and considered similar laws in other states. The committee’s final report noted that the new law is intended “to cover nearly every document that is generated by every public agency.”
As with the Open Door Law, the General Assembly expressed its intent with respect to public records in the language of the statute. The lawmakers found that
[a] fundamental philosophy of the American constitutional form of representative government is that government is the servant of the people and not their master. Accordingly, it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information. This chapter shall be liberally construed to implement this policy and place the burden of proof for the non-disclosure of a public record on the public agency that would deny access to the record and not on the person seeking to inspect and copy the record.
Ind. Code § 5-14-3-1.
Though the law’s initial broad scope and intent for openness remain intact, recent amendments have narrowed public access in some respects. For example, in 2003, the definition of “public record” was amended to include material that “is created, received, retained, maintained, or filed by or with a public agency.” Ind. Code § 5-14-3-2. The prior definition also included the word “used” in the string of actions performed by an agency that would qualify material as a “public record.” See Ind. P.L. 261-2003. In practice, however, this small change to the definition of public record does not seem to have curtailed the public’s broad right to access public agency materials.
But other recent changes may produce a more substantial impact. These changes have expanded the types of records exempted from public access, largely in response to the nation’s growing concerns about terrorism and informational privacy. The first of these changes were homeland security provisions, adopted in 2003. Mirroring similar changes made to the federal Freedom of Information Act (FOIA) in the wake of the terrorist attacks of Sept. 11, 2001, these amendments permit agencies to deny access to any record or part of a record “which would have a reasonable likelihood of threatening public safety by exposing a vulnerability to a terrorist attack.” Ind. Code § 5-14-3-4(b)(19). Procedures an agency must follow to deny an information request under the new anti-terrorism exemption were added at the same time. See Ind. Code § 5-14-3-9(d).
In addition to responding to growing terrorism concerns, the General Assembly also has been receptive to concerns about informational privacy. Recent amendments to the Access to Public Records Act have exempted from disclosure the personal information (telephone number, address and Social Security number) of customers of municipally owned utilities. Ind. Code § 5-14-3-4(b)(20). Originally enacted as a mandatory exemption, this category was amended shortly thereafter to its current status as a discretionary exemption.
Another significant change is reflected in Indiana Administrative Rule 9, which governs access to court records. In 2004, the Indiana Supreme Court substantially amended this rule, which went into effect Jan. 1, 2005. The rule’s stated objective is to recognize both the societal benefits of public access and the core values of individual privacy. See Commentary to Ind. Admin. R. 9(A) (available at http://www.in.gov/judiciary). The rule calls for balancing these competing interests, providing that if courts prohibit access to certain information, they must “use the least restrictive means and duration” when doing so. Ind. Admin. R. 9(G)(4)(d). However, the rule’s many exemptions to disclosure have the potential to swallow the rule’s proclaimed policy of “presumptive access” and run afoul of constitutional and common law rights of access to judicial records. See Ind. Admin. R. 9(G) (enumerating exemptions to public access under the rule). Though many of these exemptions pertain to specific types of records, the revamped rule also contains “catch-all provisions,” which exempt from disclosure any information “excluded from public access by specific Court order,” or sealed records under the Access to Public Records Act. Ind. Admin. R. 9(G)(1)(c), (b). Pursuant to Indiana Code Section 5-14-3-4(a)(8), the exemptions in Rule 9, promulgated by the Indiana Supreme Court, must be excluded from public access.
Effective July 1, 2005, subject to specific statutory exceptions, “a state agency may not disclose an individual’s Social Security number.” Ind. Code § 4-1-10-3. This statute authorizes the attorney general to investigate alleged violations, id. § 4-1-10-11, and imposes criminal penalties for such violations, id. § 4-1-10-8. Though not a part of the Indiana Access to Public Records Act, it is found in the part of the Indiana Code addressing fair information practices for agency collection and use of personal information. The Social Security number law may affect substantial types of records that agencies can disclose. However, because the Access to Public Records Act provides that access must be granted if confidential information can be redacted, id. § 5-14-3-6, the impact of Social Security number confidentiality on public records as a whole may be minimized. Although the law’s impact on public access remains to be seen, its passage reflects a growing awareness among legislators of the ways in which personal information can be abused, and the corresponding need to ensure that such information is protected.
This tension between privacy on the one hand and openness of government on the other is a balancing act that is played out in the federal Freedom of Information Act (FOIA), as well. One commentator has noted the similarities between Indiana’s Access to Public Records Act and the federal FOIA. See Eric J. Graninger, Note, Indiana Opens Public Records: But (b)(6) May Be the Exception That Swallows the Rule, 17 Ind. L. Rev. 555 (1984). Both statutes generally authorize access to a wide variety of documents created, received or maintained by public agencies, and then provide specific exceptions to that general rule of access. The exemptions in the Access to Public Records Act and the Freedom of Information Act are not identical, but they do overlap. Recent amendments to each act, such as the anti-terrorism provisions, show a continuation of this trend. As a result, when interpreting the Indiana statute, Indiana courts may find guidance in federal case law on the Freedom of Information Act. Id. at 558 n.10; see, e.g., Pigman v. Evansville Press, 537 N.E.2d 547, 550 (Ind. Ct. App. 1989); Indiana Civil Liberties Union v. Indiana Gen. Assembly, 512 N.E.2d 432, 433–44 (Ind. Ct. App. 1987).
It should be noted that Indiana’s Constitution supports providing open access to the court system in particular. The Indiana Constitution mandates that “[a]ll courts shall be open,” Ind. Const. Art. I § 12, reflecting “the ancient maxim of jurisprudence that every one is entitled to his day in court, and no one shall be condemned unheard.” State ex rel. Bd. Of Commr’s of Montgomery Cnty. v. Jamison, 42 N.E. 350, 351 (Ind. 1895). The Open Courts clause was intended to prohibit the demanding of fees or costs that influence legal proceedings. Square D. Co. v. O’Neal, 72 N.E.2d 654, 657 (Ind. 1947). Further, the provision “guarantees access to the courts to redress injuries to the extent the substantive law recognizes an actionable wrong.” Smith v. Indiana Dep’t of Correction, 883 N.E.2d 802, 807 (Ind. 2008).
The Open Courts clause thus limits the General Assembly. The legislature may not impose unreasonable regulations that limit the access to courts. Id. Such regulations must “be a rational means to achieve a legitimate legislative goal.” VanDam Estate v. Mid-America Sound, 25 N.E.3d 165, 170 (Ind. Ct. App. 2015). The Open Courts clause also requires the courts to “entertain” existing causes of action. Id.
Iowa’s state motto is “Our liberties we prize, our rights we will maintain.” Iowa’s citizens and its public officials have interpreted that command favorably when considering the values and benefits of government openness and accountability, so much so that they enacted progressive freedom of information statutes in the late 1960s.
Today, however, Iowa’s enlightened approach ebbs and flows with the times, politics, and the facts of a given access issue. Thus, while openness is presumed in the public records and open meetings statutes, often it and accountability can be assured only through vigilance, and sometimes litigation.
Open Records. Kansas law on open records and open meetings is statutory. The right to access records developed in the common law and was then codified; it is not of constitutional genesis. Stephens v. Van Arsdale, 227 Kan. 676, 686, 608 P.2d 972, 981 (1980) citing Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978). The Kansas Open Records Act (“KORA”), contained in K.S.A. 45-215, et seq., was enacted in 1984; the Kansas Open Meetings Act (KOMA), contained in K.S.A. 75-4317, et seq., was passed in 1972. The statutes are unrelated and do not overlap but are to be construed together. A few dozen reported decisions construing the acts exist, and there is a large volume of Attorneys General Opinions opining on both of them.
The predecessor to the current Kansas Open Records Act, K.S.A. 45-201, was enacted in 1957. The present statute became law in 1984 after having been first proposed in 1979. It is designed to be comprehensive, although no effort was made to glean all references to open or restricted records from all Kansas statutes. Accordingly, specific provisions in other laws still control some open records exemptions. A study by the Revisor of Statutes located over 350 statutes that close specific types of records from public view.
The former statute required open access only to those records "required to be kept and maintained." The few cases litigated addressed whether the record was required to be kept, or merely was incidentally kept. Judging by the cases, public interest in open records was slight until the post-Watergate era. In the late 1970s, disputes over the meaning of the Open Records Act, which was written negatively, i.e., that all records could be closed except those required to be kept and maintained, resulted in court interpretations favoring common law although not constitutional access. See Stephens v. Van Arsdale, 227 Kan. 676, 608 P.2d 972 (1980).
At the urging of the Kansas Attorney General and other interested parties, particularly the media and local government groups, the legislature began to address enacting a new statute in 1979. Initial drafts were based largely on Kentucky law, but the final version, including its characteristic laundry list of exceptions, was hammered out in committee, making the bill almost entirely original.
The principal reason for delay was the divisive abortion records issue. Right to Life in Kansas, Inc. brought an action to access Medicaid records kept by the Department of Social and Rehabilitative Services identifying doctors who performed abortions. The legislature initially grappled with this politically hot issue, then abstained from passing or even considering open records bills until the Kansas Supreme Court ruled in 1982 that the abortion records must be provided under the old law. State ex rel. Stephan v. Harder, 230 Kan. 573, 641 P.2d 366 (1982). The KORA was passed the next year.
The overarching aim was to ensure that all records, regardless of character, would be open unless specifically closed. The law contains a strong statement of public policy:
"It is declared to be the public policy of this State that public records shall be open for inspection by any person unless otherwise provided by this act, and this act shall be liberally construed and applied to promote such policy." K.S.A 45-216(a). Cypress Media v. City of Overland Park, 268 Kan. 407, 997 P.2d 681, 28 Media L. Rep. 1617 (2000).
Generally, “[a]ll public records shall be open for inspection by any person, except as otherwise provided by this act.” K.S.A. 45-218(a). Whether a record is available upon request often depends on whether and to what extent the public agency to whom the request is directed asserts any of the numerous exemptions set forth in the law that provide an agency “shall not be required to disclose” certain records. K.S.A. 45-221(a).
The KORA has been amended a number of times to add exceptions, definitions and clarifications. Since 1993, many new exceptions have been added to the list in K.S.A. 45-221(a), bringing the current total to 55. The Kansas Supreme Court has made it clear that the courts, not the agencies, interpret and enforce the law. The Kansas Attorney General has continued to interpret the law administratively in numerous opinions, and subject to one exception, has agreed to continue including the identities of victims of crimes in portions of the Standard Offense Reports open to public inspection. See Kan. Att’y Gen. Op. 1992-149 (identity of victim of sexual assault may be withheld to prevent an unwarranted invasion of personal privacy). Administrative interpretation of KORA is given consideration and effect, but final construction of KORA rests with courts. Dept. of Social and Rehab. Servs. v. Pub. Emp. Relations Bd. of Kansas Dep’t. of Human Res., 249 Kan. 163, 815 P.2d 66 (1991).
Consistent with the policy of openness, the burden of proving that an item is exempt from disclosure under KORA is on the agency or the public entity opposing disclosure. K.S.A. 45-222(c); see also Telegram Publ’g. Co., Inc. v. Kansas Dep’t. of Transp., 275 Kan. 779, 69 P.3d 578 (2003); Wichita Eagle and Beacon Pub. Co., Inc. v. Simmons, 50 P.3d 66, 274 Kan. 194 (2002). The exception to this rule is if the plaintiff is seeking criminal investigation records; under such circumstances, the Kansas Supreme Court ruled in 1987, in a ruling that has never been seriously scrutinized by any appellate court, that the plaintiff is required to prove that disclosure of the records is in the public interest. Harris Enterprises, Inc., v. Moore, 241 Kan. 59 (1987); see also Seck v. Overland Park, et al., 29 Kan. App. 2d 256 (2000). The KORA does not allow a public agency to refuse to produce records because such records are available from another or a more “appropriate” source. K.S.A. 45-215 et seq. Wichita Eagle and Beacon Publ’g. Co., Inc. v. Simmons, 50 P.3d 66, 274 Kan. 194 (2002).
The KORA was passed by the legislature to ensure public confidence in government by increasing the public’s access to government records and government decision-making processes. K.S.A. 45-215 et seq.; Data Tree, LLC v. Meek, 109 P.3d 1226, 279 Kan. 445 (2005). Whether the district court correctly applied the KORA and its particular exceptions to disclosure was a question of law involving interpretation of statute. K.S.A. 45-215 et seq.; Data Tree, 109 P.3d 1226, 279 Kan. 445.
The history and purposes of the KORA has been analyzed by Ted P. Frederickson in Letting the Sunshine In: An Analysis of the 1984 Kansas Open Records Act, 33 U. Kan. L. Rev. 205. An update of sorts was published in 2003, written by former Assistant Attorney General Theresa Marcel Nuckolls. See Theresa Marcel Nuckolls, Kansas Sunshine Law; How Bright Does it Shine Now?, 72-MAY J. Kan. B.A. 28 (2003).
Effective July 1, 2015, the Kansas Legislature enacted HB 2256 which amended certain enforcement provisions to allow the Attorney General to determine that a public agency has violated KORA or KOMA. These provisions are set forth in K.S.A. 45-251, 45-252, and 45-253.
Effective July 1, 2016, the Kansas Legislature enacted SB 361, which expanded the definition of a “public record” beyond such record that is simply in the possession of a public agency to mean:
“[A]ny recorded information, regardless of form, characteristics or location, which is made, maintained or kept by or is in the possession of 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.”
According to Attorney General Derrick Schmidt in his legislative testimony related to the bill, the primary purpose of the new definition is to “apply it to otherwise public records on the private email accounts of state employees.” The new definition appears in K.S.A. 45-217(g).
Also effective July 1, 2016, the Kansas Legislature addressed issues related to police video by defining “[e]very audio or video recording made and retained by law enforcement using a body camera or vehicle camera” to be “criminal investigation records” as defined by K.S.A. 45-217(c). If law enforcement refuses to disclose the footage under K.S.A. 45-221(a)(10) because it is a criminal investigation record, the public can access such video only through a court order. However, an individual determined to be “an heir at law,” such as a family member, may also have a right to access such video under K.S.A. 45-254.
Despite the plain language of the law, after Topeka resident Domonique White was killed by police on September 28, 2017, his family was forced to get a court order to determine that Mr. White’s father was “an heir at law” entitled to see the footage. It took well over two months to produce what should have been turned over promptly.
As a result, the legislature introduced 2018 SB 361 and 2018 HB 2571. Of all the proposals in those bills, the legislature adopted, and Governor Jeff Coyler signed, an amendment to K.S.A. 45-254. As of July 1, 2018, pursuant to 2018 K.S.A. 45-254(b), law enforcement agencies “shall allow the person [requesting access to the footage] to listen to the requested audio recording or to view the requested video recording within 20 days after making the request.”
Open Meetings. The first open meetings law in Kansas was enacted in 1972 and amended in 1975. Only minor amendments have occurred since then, although the law pertaining to how a public body may recess into executive session has recently been clarified. It is founded on the basic principle that the people have a right to know public business and that public knowledge and information is essential to the effective functioning of the democratic process. Deanell Tacha, The Kansas Open Meeting Act; Sunshine on the Sunflower State?, 25 U. Kan. L. Rev. 169, 170. The statute contains a strong statement of legislative purpose in K.S.A. 75-4317:
"In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the policy of this state that meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public."
Interpretation of the statute has rested largely with the Kansas Attorney General, who has, in numerous opinions, interpreted the statute liberally to effect its purpose. The Kansas Attorney General has consistently interpreted the law to require openness and has interpreted the executive session provisions narrowly.
However, court interpretations of the statute have not been so liberal. While the Kansas Supreme Court has enforced the Act in obvious violations, it has tended to side with government agencies in close cases. For example, the court has been moving even further away from the liberal interpretation of the Act in finding that a management company leasing from the county hospital board and running the hospital is not subject to the KOMA. Memorial Hosp. Ass’n, Inc. v. Knutsen, 239 Kan. 663, 722 P.2d 1093 (1986). Additionally, in State v. Sedgwick County Comm’rs, 244 Kan. 536, 770 P.2d 455 (1989), the court held a public body may change its own quorum requirements to avoid the KOMA.
The courts have held that executive sessions may cover non-exempt matters if segregation is impractical, and that a consensus may be reached in executive session as long as binding action is taken in open session. State v. Bd. of Educ. 305, 13 Kan. App. 2d 117, 764 P.2d 459 (1988); O'Hair v. Bd. of Educ. Unified Sch. Dist. No. 300, Comanche Cty., 15 Kan. App. 2d 52, 805 P.2d 40 (1990).
Because there are very few binding Kansas Supreme Court decisions interpreting the law, the KOMA is still interpreted and enforced largely by the Attorney General and the Kansas district courts, at the trial level. Both the Attorney General and the district attorneys have made effective use of consent decrees to bring agencies covered by the Act into compliance.
The Kentucky General Assembly enacted the Kentucky Open Records Act (Ky. Rev. Stat. 61.870 – 61.884) in 1976. The legislature substantially revised the Act in 1986, 1992, and again in 1994, and has made various other modifications since then, including the addition of exemptions to both Acts in 2018.
Kentucky’s Open Meetings Act was enacted in 1974. Like the Open Records Act, Kentucky’s General Assembly has revised the Open Meetings Act several times since then.
There are many similarities between the Open Records Act and the Open Meetings Act: Both contain explicit statements favoring public access. See Ky. Rev. Stat. 61.871 ("free and open examination of public records is in the public interest"); Ky. Rev. Stat. 61.800 ("formation of public policy is public business and shall not be conducted in secret"). Both state that exceptions to public access shall be "strictly construed." See Ky. Rev. Stat. 61.871 (Open Records Act), Ky. Rev. Stat. 61.800 (Open Meetings Act).
Both provide the option of asking the Attorney General to review the public agency's action or of immediately instituting a court action. See Ky. Rev. Stat. 61.800 (Records); Ky. Rev. Stat. 61.846 (Meetings). Both also define “public agency” broadly. See Ky. Rev. Stat. 61.870 (Records); 61.805 (Meetings). Both Acts also contain numerous exemptions to the mandate of openness. See Ky. Rev. Stat. 61.878 (Records); 61.810 (Meetings).
There are also some key differences. The Open Records Act's definition of a "public agency" encompasses private companies which receive significant government funding under certain circumstances. See Ky. Rev. Stat. 61.870(1)(h). The Open Meetings Act has no such provision. Cf. Ky. Rev. Stat. 61.805(2). The Open Meetings Act only gives the Attorney General ten business days to review a complaint. Ky. Rev. Stat. 61.846(2). The Open Records Act permits the Attorney General an initial twenty business days to review a complaint, and also permits the Attorney General to obtain an extension up to an additional thirty business days. See Ky. Rev. Stat. 61.880(2).
Open records. The Louisiana Public Records Act was first enacted in 1940. Perhaps surprisingly, the statute has not been substantially rewritten since then, although the presumption of the openness of public records was enshrined in the new Louisiana constitution of 1974. It states, "No person shall be denied the right to . . . examine public documents except in cases established by law." La. Const. art. XII, § 3.
In 1978, the Louisiana Legislature substantially rewrote the enforcement section of the Public Records Act. The 1978 amendments added various judicial remedies, including the award of attorneys' fees and costs to prevailing private plaintiffs. The same amendments also provided that a custodian of records who arbitrarily or capriciously violates the statute may be personally liable for actual damages and shall be liable, with the public body or agency, for the payment of the plaintiff's attorneys' fees. Acts 1978, No. 686, § 1; La. Rev. Stat. Ann. § 44:35. The 1978 amendments also revised that portion of the statute that had provided that only "state electors" and "state taxpayers" had the right to examine records. Since 1978 "any person of the age of majority" may examine records.
As with the Open Meeting Law, the Public Records Act is solidly established in Louisiana law. The core provisions are unlikely to be modified materially, except as specific enforcement problems arise. For example, the 1988 Legislature adopted legislation to specify the contents of the "initial report" of a crime as being a public record. La. Rev. Stat. Ann. § 44:3(A)(4). At the same session, the Legislature amended the enforcement provisions of the Act to impose a $100 per day civil penalty personally upon any records custodian who arbitrarily refuses to respond to a records demand within the statutory period of three working days. See La. Rev. Stat. Ann. § § 44:32, 44:35(E). The amendment was proposed in response to Hill v. Mamoulides, 482 So. 2d 25 (La. App. 5th Cir. 1986), which held that a custodian's unexplained failure to respond timely did not foreclose the custodian from later asserting that the requested records were not public. While an award of this penalty is not commonplace, there are occasional awards. Roper v. City of Baton Rouge, 244 So.3d 450 (La.App. 1st Cir. 2018) (affirming award of $4,000).
The following trends are worth noting:
More often than in the past, Louisiana courts are applying the elastic notion of constitutional "privacy" to defeat records requests. Although the Louisiana Supreme Court held that there was no exemption in the state's public record laws for employment applications, (Capital City Press v. East Baton Rouge Parish Metropolitan Council, 696 So. 2d 562. (La. 1997)), more recent decisions have since carved out greater privacy rights for employee records in other contexts. 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). Louisiana courts still generally protect only information "clearly private in nature" or material that, if disclosed, would expose someone to "public disgrace." Furthermore, the expectation of privacy must be objectively reasonable, and the privacy interest must be balanced against the public's right to know. See 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, Dept. of Environmental Quality, 761 So. 2d 713 (La. App. 1st Cir.), writ denied, 768 So. 2d 1284 (La. 2000) (employee grievance records are exempt from Public Records Act because the information they contain "had the potential to cause embarrassment" and the "public interest would not be further served by disclosure"). Perhaps in response to these decisions, the Louisiana Legislature amended the Public Records Act to expressly exclude certain public employee documents, including direct deposit payroll information, Social Security numbers and direct deposit information from personnel files (subject to some exceptions), and all medical and insurance-related documentation in personnel files. La. Rev. Stat. Ann. § 44:11.
Numerous recent decisions have addressed privacy concerns. See, e.g., Shane v. Parish of Jefferson, 209 So.3d 726 (La. 2015) (privacy interests of private citizen, whose e-mails to employee of public agency were public records, had to be balanced against the right of the public to inspect public records – records were redacted to conceal his identity);Rasier, LLC v. City of New Orleans, 222 So.3d 806 (La.App. 4th Cir. 2017) (Uber driver had a reasonable expectation of privacy in his personal information, which Uber transmitted to city pursuant to ordinance); Capital City Press, L.L.C. v. LSU Bd. of Sup'rs, 168 So.3d 727 (La.App. 1st Cir. 2014) writ denied, 168 So.3d 401 (La. 2015) (requiring disclosure only of the names of the three candidates for university president that were interviewed, not the 100 people who replied to the advertisement or the 35 who survived the initial review); Beckett v. Serpas, 112 So.3d 348 (La.App. 4th Cir. 2013) (police officers had a reasonable expectation of privacy in personal information contained in records of investigations by the Public Integrity Bureau); Cull v. Cadaro, 68 So.3d 1161 (La.App. 4th Cir. 2011) (no reasonable expectation of privacy in the data contained within the public records of parish jury commission, with the exception of Social Security information).
The Louisiana Supreme Court also 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).
The statutory exception to the Act for documents relating to "pending criminal litigation" and "pending claims" has been narrowly interpreted to promote greater disclosure in recent years. One court of appeals refused to allow the State Office of Risk Management to designate claims files of a settled case as a "pending claim" merely because related cases were still ongoing. Reasoning that the exclusion refers only to those claims that are still subject to judicial scrutiny, the court ordered production of checks and related documents reflecting the settlement to the newspaper and reporter plaintiffs. Times Picayune Publ'g Corp. v. Bd. of Supervisors, 845 So. 2d 599 (La. App. 2003), writ denied, 852 So. 2d 1044 (La. 2003); see also In re Trestman, 795 So. 2d 398 (La. App. 2001), writ denied, 803 So. 2d 34 (La. 2001) (requiring production of criminal case file to family members after passage of ten years after the crime and finding such an exception to the "pending criminal litigation" exception was not unconstitutional "special legislation).
In other contexts, however, the courts have been more willing to interpret broadly the statutory exceptions to the Act, including finding 911 tapes protected under the "privileged communications between a health care provider and patient" exception. In that case, the appellate court included the dispatch communications center at issue in the statutory definition of a "health care provider," reasoning that the term included persons reasonably believed to be such by the patient. Hill v. East Baton Rouge Parish Dep't of Emergency Med. Servs., No. 2005 1236, 2005 La. App. LEXIS 2611 (La. App. Dec. 22, 2005); but see Kyle v. Perrilloux, 868 So. 2d 27 (La. App. 2003) (holding copies of work papers obtained from the legislative auditor and in the physical possession of a district attorney were not technically protected under by the statutory exception for documents "in the custody or control of the legislative auditor").
Privilege defenses to the Act have similarly been interpreted narrowly in favor of production. Although none of the exceptions under the Act expressly address attorney work product, the Louisiana Supreme Court agreed that Louisiana's general work product exclusion applies to public records that constitute writings, records, or other accounts reflective of an attorney's or expert's mental impressions. Nevertheless, the court held that the audiotapes of witness statements at issue were exempt from disclosure under the Act only to the extent the tapes contained mental impressions, conclusions, opinions or theories of the investigator. Landis v. Moreau, 779 So. 2d 691 (La. 2001).
Interpretations of the procedural provisions of the Act may be less of an impediment to enforcement than once thought. One court of appeal previously held that every one of a District Attorney's 82 employees was required to be joined as an indispensable party to a reporter's action to force public disclosure of the employees' leave records. See Hatfield v. Bush (I), 540 So. 2d 1178 (La. App. 1st Cir. 1989). But on rehearing, the court seemed willing to revisit this ruling, and refrained only because it had not been challenged by either party. See Hatfield v. Bush (II), 572 So. 2d 588 (La. App. 1st Cir. 1990); see also Hilliard v. Litchfield, 822 So. 2d 743 (La. App. 1st Cir. 2002) (finding prisoner was a "person" entitled to bring claim under Public Records Act because status is measured at the time the request was made, not when suit filed). Additionally, the Second Circuit Court of Appeal expanded its statutory interpretation of inspection rights to permit the use of a hand-held scanner in the clerk's office to copy public documents, reasoning that such devices fall outside the prohibition of "placed or installed" reproduction machines. First Commerce Title Co. Inc. v. Martin, 887 So. 2d 716 (La. App. 2d Cir.), writ denied, 896 So. 2d 66 (La. 2005). It should be noted, however, that subsequent to this decision, during the 2005 session, the state legislature amended the language of the statute to prohibit the use of "privately owned copying equipment." La. Rev. Stat. Ann. § 44:32(C)(1)(c). Furthermore, the First Circuit issued a troubling decision in Vourvoulais v. Movassaghi, 906 So. 2d 561 (La. App. 1st Cir. 2005), in which it held the Act grants a right of action to enforce the right to inspect or copy the public records only to the person who actually made the request — in this case, a paralegal in a firm representing a construction company, despite the fact she was acting on the direction of an attorney for the benefit of the client. Because the general counsel of the construction company brought the suit instead of the paralegal who signed the request letter, the court vacated the trial court's judgment in his favor. Id. at 465.
Some state appellate courts have arrived at opposite results regarding whether a trial court has the discretion to order the production of public records to an inmate without charge or at a reduced charge, although they were interpreting the same statutory language. Compare State v. Jean, 847 So. 2d 780 (La. App. 3rd Cir. 2003) (holding trial court had discretion to order that copies be made at no cost), with Diggs v. Pennington, 849 So. 2d 756 (La. App.4th Cir. 2003) (stating that trial court did not err in finding it lacked the power to compel agency to provide a free report to inmate).
Open meetings. Louisiana first enacted a rudimentary Open Meeting Law in 1952. The act was flawed in many ways. It had no workable definition of "meeting," lacked procedural and substantive limitations on executive sessions, and failed to provide sanctions for violations. Comment, "Entering the Door Opened: An Evolution of Rights of Public Access to Governmental Deliberation in Louisiana and a Plea for Realistic Remedies," 4 La. L. Rev. 192, 198 n.32 (1980). For example, in 1973, the Louisiana Supreme Court held that the definition of "meeting" in the old law did not include gatherings of public bodies to discuss preliminary or administrative matters if no official action took place. Reeves v. Orleans Parish Sch. Bd., 281 So. 2d 719 (La. 1973).
The Louisiana Constitutional Convention of 1973 considered open meeting issues. The only recorded committee consideration consists of a single memorandum. See Committee on Bill of Rights and Elections, Staff Memo No. 35, Records of the Louisiana Constitutional Convention of 1973: Committee Documents 113. The memorandum stated: "Local and state public bodies in Louisiana have frequently met in executive session to thrash out controversial issues before their open public sessions begin. At the latter session, agreements reached in executive session are publicly approved, often with little debate. The public is thus not involved in the final decision making process . . . ."
Reflecting these concerns, the new 1974 Louisiana Constitution included the following open meeting provision: "No person shall be denied the right to observe the deliberations of public bodies . . . except in cases established by law." La. Const. art. XII, § 3. Convention delegates approved this provision overwhelmingly, literally without debate. Comment, supra, at 197.
In light of the new constitutional language, the Louisiana legislature substantially rewrote the Open Meeting Law in 1976. The 1976 legislation provides much of the basis for current law. Thus, the preamble to the Open Meeting Law was rewritten to express a strong public policy favoring open deliberations:
It is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy. Toward this end, the provisions of (the Open Meeting Law) shall be construed liberally.
La. Rev. Stat. Ann. § 42:12. Other 1976 provisions defined "meeting," established exceptions to the open meeting requirement, and provided sanctions for violations of the law.
The Attorney General has stated that the purpose of the Open Meeting Law is to prevent private meetings of public bodies in which only the "end result" is observed by the public in open meetings, with all important discussion and arguments having taken place behind closed doors. 77 Op. Att'y Gen. 1508 (1977). Most of the revisions in the Open Meeting Law since 1976 have clarified and expanded that basic legislative objective.
The first wave of significant substantive revisions was enacted in 1979. Acts 1979, No. 681, § 1. The 1976 version of the Open Meeting Law did not apply to committee meetings of public bodies. Phillips v. Board of Supervisors of Louisiana State University, 391 So. 2d 1217 (La. App. 1st Cir. 1980). In 1979, the definition of "meeting" was expanded to include any committee or subcommittee of a public body. The revision also defined the phrase "public body" to include those groups possessing only advisory powers. Acts 1979, No. 681, § 1; La. Rev. Stat. Ann. § 42:4.2(A).
In a similar vein, the 1976 Open Meeting Law had limited the definition of "meeting" to the "official convening" of a public body. The Attorney General had stated that a meeting was "officially" convened when any prior notification, however informal, was given to members of the public body that a meeting would be held. 76 Op. Atty. Gen. 1399 (1976). In 1979, the Legislature removed the word "official" and thereby mandated that any "convening" of a quorum of a public body would constitute a meeting, except for certain "chance meetings" or "social gatherings" Acts 1979, No. 681, § 1; La. Rev. Stat. Ann. § 42:4.2(A)(l), (B).
The 1979 revisions to the statute also clarified two exceptions to the Open Meeting Law. The amendment added "prospective litigation after formal written demand" to those subjects which could be discussed in a closed meeting (which already included, e.g., collective bargaining and pending litigation). The amendment also provided that the discussion of the appointment of a person to a public body could not be held in a closed meeting. Acts 1979, No. 681, § 1; La. Rev. Stat. Ann. § 42:6.1(A)(1), (2).
The 1979 act substantially revised the enforcement sections of the Open Meeting Law. Prior to 1979, any presiding officer who violated the Open Meeting Law, or any person who conspired with such official to hinder attendance by the public, could be fined or imprisoned. The 1979 amendment removed the criminal penalties, and for the first time specified the civil remedies available to a successful plaintiff, including voidability of any measure enacted at an unlawful closed session. The revised enforcement provisions also extended the right to file suit beyond citizens who were denied rights conferred by the Open Meeting Law to any person who has reason to believe that the law was violated.
In 1981, the Louisiana Legislature for the first time made itself subject to the Open Meeting Law. The law generally applies to the Legislature, except that the statute prescribes different requirements for the Legislature with respect to exemptions, public notice, and written minutes.
Generally, the courts of Louisiana have enforced the Open Meeting Law vigorously in keeping with the state constitutional mandate for open government and the preamble of the law. The Louisiana Press Association and its member newspapers monitor the enforcement of the Open Meeting Law to determine the need for periodic legislative refinements or clarification. At the 1988 Regular Legislative Session, for example, LPA successfully advocated the passage of legislation to overrule a Court of Appeal decision which held that a gathering of a public body to hear a presentation by a public official, but not to discuss it, was not a "meeting." See La. Rev. Stat. Ann. § 42:13 ("meeting" includes convening of quorum by the public body or another public official to receive information), overruling Common Cause v. Morial, 506 So. 2d 167 (La. App. 4th Cir. 1987), writ denied, 512 So. 2d 458 (La. 1987).
Notwithstanding the strong public policy behind the provisions of the Open Meetings Law, the First Circuit Court of Appeal held that the state constitutional right to observe the deliberations of public bodies and examine public documents under Louisiana Constitution. art. XII, § 3 is not a traditionally "fundamental" and inalienable constitutional right. St. Mary Anesthesia Assocs. Inc. v. Hosp. Serv. Dist. No. 2 of Parish of St. Mary, 836 So. 2d 379 (La. App. 1st Cir.), writ denied, 840 So. 2d 577 (La. 2003). That case, and the related litigation, Joseph v. Hosp. Serv. Dist. No. 2 of the Parish of St. Mary, 805 So. 2d 400 (La. App. 1st Cir.), writ denied, 813 So. 2d 1088 (La. 2002), contested the constitutionality of the Enhanced Ability to Compete Act ("EACA") which created a statutory exclusion for a marketing strategy or strategic plan of a public hospital. La. Rev. Stat. Ann. § 46:1070-1076. The appellate court held that the clear language of the constitution stated that the legislature had the authority to establish exceptions to the public's right to open meetings, and because Section 3 is not a "fundamental, inalienable right, in the sense of those enumerated rights under Article 1," the EACA exception was not unconstitutionally overbroad.
The 2010 revision re-numbered the sections of the law but made no substantive changes.
Access to government records and meetings in Maine is governed by statute, the Maine Freedom of Access Act (the “FOAA” or the “Act”), 1 M.R.S.A. §§ 400-414. The Maine Legislature adopted the FOAA in 1959 as Public Law, Chapter 219 (Legislative Document 6: "An Act Pertaining to Freedom of Access to Public Records and Proceedings"). The FOAA as recodified and amended is found in Sections 401-414 of Title 1 of the Maine Revised Statutes. The FOAA covers access to public records and public meetings (referred to as “public proceedings”). The Maine Constitution does not contain a provision concerning access to public records or meetings.
The FOAA broadly applies to state legislative, executive, and administrative bodies, all county, local, and governmental bodies, "blue ribbon" and hybrid bodies, the Board of Trustees of the state universities, and other government bodies. The FOAA does not apply to judicial proceedings and court records. The Maine Judicial Branch has adopted its own public information and confidentiality policy.
The FOAA contains a variety of exceptions, including for records that have been "designated confidential by statute." As a result, many exceptions to public access are found in statutes outside the FOAA itself. To determine whether a record (or discussion of that record) is confidential requires review of the FOAA as well as the statutes that relate to the government entity involved or the subject matter of the record. For example, access to law enforcement information largely is controlled by statutes outside the FOAA, including the Criminal History Record Information Act, 16 M.R.S.A. §§ 701 - 710.
The FOAA has been the subject of frequent amendments. The Maine State Law and Legislative Library in Augusta, Maine, has compiled the legislative history of the FOAA.
Open Records. In explaining the purpose and objectives of Maryland's Public Information Act ("PIA"), Md. Code Ann., Gen. Prov. §§ 4-101 to 4-601 (2017), Maryland's Attorney General, Joseph Curran, Jr., has stated that:
The public's right to information about government activities lies at the heart of a democratic government. Maryland's Public Information Act grants the people of this State a broad right of access to public records while protecting the legitimate interests of government and the privacy rights of individual citizens.
Douglas F. Gansler, Office of the Maryland Attorney General, Public Information Act Manual, (11th ed. 2008), Preface.
Prior to the enactment of the PIA, there were statutory provisions in place granting the public a right of inspection of certain public records. See, e.g., Pressman v. Elgin, 187 Md. 446, 50 A.2d 560 (1946) (the Maryland Motor Vehicle Act of 1943 provided that all records of the Department of Motor Vehicles, other than those declared by law to be confidential, were open to public inspection during office hours); Belt v. Prince George's Co., 73 Md. 289, 20 A. 982 (1890) (statutory provision required court clerks to provide copies of public records to any person upon application and payment of fees); but see Whittle v. Munshower, 221 Md. 258, 155 A.2d 670 (1959) (police reports of investigations not public records based on absence of statutory provision declaring same).
Absent statutory authority, however, Maryland law was unclear as to the precise nature and origin of any common law right of inspection of public records. An early case suggested that absent statutory authority, there was no common law right to inspect public records. Belt, 73 Md. at 290. However, in Pressman, the Maryland Court of Appeals suggested that a common law right to inspect public records might exist. 187 Md. at 451.
Whether based upon common law or statutory authority, the right to inspect public records prior to the PIA was limited to those persons who could show an actual or legal interest in the public record. Id. at 451-53; 43 Op. Att'y Gen. 113 (1956). This "actual or legal interest" requirement was based upon the necessity of obtaining a writ of mandamus if the right of inspection was denied. Id. at 450-53. A writ of mandamus would only issue upon a showing that the applicant for the writ had a clear legal right to inspect the record in question and that the defendant had an imperative duty to permit inspection. Id. at 452. Thus, as the court in Pressman explained, if a petitioner's purpose in desiring to see certain public records was merely to satisfy his curiosity, the writ would not be granted. Id. at 452; see also 43 Op. Att'y Gen. at 114 ("a person does not have the right to inspect judicial records to satisfy any whim or fancy").
One impetus for change in Maryland was the adoption of the federal Freedom of Information Act ("FOIA") enacted in 1966 by Pub. L. No. 89-487, 80 Stat. 250, and now codified at 5 U.S.C. § 552 (2016). See Faulk v. State's Attorney, 299 Md. 493, 506, 474 A.2d 880, 887 (1984). In addition to FOIA, the state statutes of Wyoming (Wyo. Stat. §§ 6-4-201 to -205) and Colorado (Colo. Rev. Stat. §§ 24-72-201 to 206) served as models for Maryland's PIA. See Bryan E. Frosh, Office of the Maryland Attorney General, Public Information Act Manual at 1-2 (14th ed. 2015) (hereinafter "PIA Manual, at ___."). Like other state public information laws, Maryland's PIA abrogates the actual or legal interest requirement under the common law and expands the range of public records available for public inspection. Id.
Maryland's PIA was passed in 1970. 1970 Md. Laws pp. 1970-75. As originally introduced in the Maryland House of Delegates, the PIA included a section specifically pertaining to news media. See Faulk, 299 Md. at 506, 474 A.2d at 887. This provision permitted a right of inspection to all news media if such right was allowed to any officer or employee of any newspaper, radio station, television station or other person or agency in the business of public dissemination of news or current events. Although the legislative history of the PIA fails to explain why, this media provision was deleted from the bill prior to passage of the PIA. Nonetheless, it seems clear that with or without the deletion, the media's right of inspection is assured. See Md. Code Ann., Gen. Prov. § 1-114 (defines "person" to include "an individual, receiver, trustee, guardian, personal representative, fiduciary, representative of any kind, corporation, partnership, business trust, statutory trust, limited liability company, firm, association or other nongovernmental entity").
Maryland's PIA is substantially similar in purpose to the FOIA. Both grant a broad right of access to public records and favor disclosure. See Faulk, 299 Md. at 506, 474 A.2d at 887. Federal case law interpreting the provisions of the FOIA provides persuasive authority in interpreting Maryland's PIA. Id.
The legislative intent behind the PIA is set forth in § 4-103, which provides that "[a]ll persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees." Moreover, to carry out the right of inspection provided under the PIA, § 4-103 also provides that the provisions of the PIA are to be construed in favor of permitting inspection, unless an unwarranted invasion of privacy of a person in interest would result, and with the least cost and least delay to the person requesting inspection. See A. S. Abell Publishing Co. v. Mezzanote, 297 Md. 26, 464 A.2d 1068 (1983) (PIA reflects "the legislative intent that citizens of the State of Maryland be accorded wide-ranging access to public information concerning the operation of their government").
Open Meetings. Originally enacted in 1977, Maryland's Open Meetings Act (the "Act") was substantially revised by the Maryland General Assembly in 1991. Act of May 24, 1991, Ch. 655 1991 Md. Laws 306 and re-codified in 2014. Act of Apr. 8, 2014, Ch. 94, 2014 Md. Laws 407 (codified at Md. Code Ann., Gen. Prov. §§ 3-101 to 3-501 (2017)). Pursuant to the 1991 amendments, the statute narrowed the exceptions that allow public bodies to close their meetings, and established the State Open Meetings Law Compliance Board ("OMCB") to consider complaints and recommend policies regarding the Act. In 2016, the Open Meetings Act was again amended to require that public bodies make available agendas prior to meetings; to retain minutes for five years; to post certain minutes online; Act of Apr. 26, 2016, Ch. 255, 2016 Md. Laws 4894; Act of May 10, 2016, Ch. 329, 2016 Md. Law 5335; Act of May 10, 2016, Ch. 330, 2016 Md. Laws 5337. Most recently, in 2017, the Act was amended to revise certain of the duties of the OMCB, including with respect to educational information and programs; annual reporting; posting of information online; and training. Act of May 4, 2017, Ch. 525, 2017 Md. Laws 3110.
The General Assembly's intent in promulgating the Act is demonstrated by the statement of legislative policy:
It is essential to the maintenance of a democratic society that, except in special and appropriate circumstances: (1) public business be conducted openly and publicly; and (2) the public be allowed to observe: (i) the performance of public officials; and (ii) the deliberations and decisions that the making of public policy involves.
The expressions of policy state, first, that the ability of the media and general public to observe open meetings "ensures the accountability of [the] government . . ., increases the faith of the public in government and enhances the effectiveness of the public in fulfilling its role in a democratic society." § 3-102(b). Second, § 3-102(c) expressly provides that, "[e]xcept in special and appropriate circumstances when meetings . . . may be closed under this title, it is the public policy of the State that the public be provided with adequate notice of the time and location of meetings of public bodies . . ." § 3-102(c); CLUB v. Baltimore City Board of Elections, 377 Md. 183, 194, 832 A.2d 804, 810 (2003).
These statements are consistent with the Maryland Court of Appeals' earlier statements concerning the purpose of the Act, in which the Court quoted the following language of the Florida Supreme Court:
One purpose of the government in the sunshine law was to prevent at nonpublic meetings the crystallization of secret decisions to a point just short of ceremonial acceptance . . . . The statute should be construed so as to frustrate all evasive devices. This can be accomplished only by embracing the collective inquiry and discussion stages . . . .
City of New Carrollton v. Rogers, 287 Md. 56, 72, 410 A.2d 1070, 1079 (1980) (quoting Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974)). The Maryland Court of Appeals recently reaffirmed the purpose of the Act by explaining, "The clear policy of the Open Meetings Act is to allow the general public to view the entire deliberative process." Community and Labor United for Baltimore Charter Committee (CLUB) v. Baltimore City Board of Elections, 377 Md. 183, 194, 832 A.2d 804, 810 (2003). Indeed, the Maryland General Assembly expressly decreed that any exceptions that permit closed deliberations should "be strictly construed in favor of open meetings. . . ." § 3-305.
Finally, the General Assembly created a new body to hear complaints, issue advisory opinions, and recommend new policies for the implementation of the Act. Known as the State Open Meetings Law Compliance Board (the "Board"), it consists of three members (one of whom must be an attorney) appointed by the Governor with the advice and consent of the State Senate. §§ 3-201 to 3-213. Its role is to educate public bodies about their duties under the Act, to provide a non-judicial forum for resolving disputes about the Act's application, and to offer recommendations to the General Assembly about amending the Act. Bryan E. Frosh, Office of the Attorney General, Open Meetings Act Manual at 7-1 (9th Ed. Dec. 2016) (hereinafter "OMA Manual, at ___."); See also § 3-204.
Massachusetts’ Public Records Law, codified at Chapter 66 of the Massachusetts General Laws (G.L. ch. 66), is enforced by the Office of the Secretary of the Commonwealth. It reached essentially its modern form in the mid-1970’s, although the state legislature has subsequently amended the law. The Open Meeting Law, codified at G.L. ch. 30A, was revised in 2010 and again in 2015, at which time responsibility for its enforcement – previously shared by the Attorney General (for state agencies) and each county’s District Attorney (for county and municipal agencies) – was consolidated at the Attorney General level.
There is considerable case law applying both the Public Records Law and the Open Meeting Law to state and local agencies. When challenged, both statutes should be construed against a background presumption of openness (G.L. c 66, §10C (public records); 90 Code of Massachusetts Regulations (CMR) 32.08(4) (open meetings)). But neither statute sets out substantial penalties against agencies that do not comply, with the result that there can sometimes be a substantial gap between what the law commands and what the government agencies do as a matter of practice.
PUBLIC RECORDS LAW
History and Scope. Statutory provisions relating to public records go back more than 150 years, but early efforts were “limited and ‘disappointingly vague.’” Suffolk Constr. Co., Inc. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 453 n.14, 870 N.E.2d 33, 40 n.14 (2007) (quoting A.J. Cella, Administrative Law and Practice § 1161, at 488 (1986)). See, for example, St. 1851 c. 161, § 4, which provided that "[a]ll county, city or town records and files shall be open to public inspection."
The statewide office of Commissioner of Public Records has existed since the 1890’s. St. 1892 c. 333, § 1. A definition of "public record" first appeared in 1897 but was essentially limited to "any written or printed book or paper or any map or plan of [a governmental entity] in or on which any record or entry has been or is to be made in pursuance of any requirement of law, or any written or printed book . . . which any officer or employee of the Commonwealth or of any county, city or town is required by law to receive." St. 1897 c. 439, § 1. In other words, the public had a right only to those records that the government was legally required to keep.
A major change occurred in 1973, when the legislature extended the definition of public records to include all records held by governmental bodies, whatever the reason for their creation, unless one of nine fairly narrow statutory exemptions applied. St. 1973 c. 1050. The number of exemptions has doubled since then, but the basic structure of the law has largely remained the same. The statute applies to all levels of governmental bodies (state, county, and local), but it does not cover records of the legislative or, generally, the judicial branches. Subsequent amendments have altered the law by lowering fees and modifying the exemptions.
Structure. What is generally called the "Public Records Law" is found primarily in two chapters of the General Laws. The first is the definition of "public records," which appears in G.L. c. 4, § 7, cl. 26. The procedures for obtaining access to such records are set forth principally in G.L. c. 66, § 10(b). These latter provisions are supplemented by administrative regulations located at 950 CMR 32.01, et seq. (Copies of the statutory and administrative provisions are appended to this outline.) Enforcement of the law falls, in the first instance, to the Division of Public Records of the Secretary of the Commonwealth, but direct appeal may also be made to the state courts.
Frequently overlooked, however, are the scores upon scores of statutory provisions scattered throughout the General Laws declaring that certain particular categories of documents must be kept confidential or are or are not to be deemed public records. Such exceptions and special rules are particularly common in the health and welfare areas, and their interplay with the provisions of the Public Records Law is sometimes far from self-evident. The result is that while the Public Records Law provides a reliable gauge of the procedure to be followed when seeking public records, it is merely a starting point when it comes to determining exactly what records are indeed “public,” to what extent, and under what circumstances.
Over the decades, the public records statutes have been the subject of considerable judicial gloss. The cases repeat the fundamental presumption that records maintained in public offices are public. In the event of a dispute, the burden is on the custodian "to prove with specificity the exemption which applies." Bougas v. Chief of Police of Lexington, 371 Mass. 59, 61, 354 N.E.2d 872, 876 (1976).
OPEN MEETING LAW
History. The first Massachusetts Open Meeting Law was enacted in 1958, largely at the insistence of the press and what is now the Massachusetts Newspaper Publishers Association. It was rewritten into substantially its present form in 1975, St. 1975, c. 303, then underwent a significant revision that took effect in 2010, when the state’s new Ethics Reform Act revamped the open meeting procedures without fundamentally affecting the underlying transparency rules. St. 2009, c. 28.
Summary. The statute applies to meetings of multi-member “public bodies” at the state, county, and municipal levels. However, it excludes committees of the state legislature and bodies appointed to advise the governor or other “constitutional officer.” Bodies within the judicial branch are also outside of the statute’s purview. Where it applies, the statute mandates notice and posting of meeting times; limits public officials’ deliberation of governmental matters outside of a public session; and mandates not only that minutes be kept, but that, in many cases, they be instantly available to the public upon request. Parties claiming violation of the law may seek administrative enforcement by the Attorney General’s Office, or may file an action in court; additionally, public bodies may appeal an adverse AG ruling to the courts. If a public body is found to have intentionally violated the statute, it may be assessed a civil penalty of not more than $1,000 for each such intentional violation.
Compared to the Public Records Law in Massachusetts, which contains only a portion of the state’s statutory provisions regarding access to records, the Open Meeting Law is far simpler to administer, because it largely occupies the field. While there are a few other statutes permitting closure of meetings of particular kinds of committees for specific purposes, the state’s open meeting provisions are largely contained within the Open Meeting Law itself.
The public policy behind passage of Michigan's Freedom of Information Act ("FOIA"), Mich. Comp. Laws Ann. §§ 15.231-.246, is set forth in its first section:
It is the public policy of this state that all persons, except those persons incarcerated in state or local correctional facilities, are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process.
Mich. Comp. Laws Ann. § 15.231. This section was amended twice, in 1994 and 1997, before which it stated that FOIA's purpose was to provide all persons with information regarding "governmental decision making" and, before that, information regarding "the affairs of government and the official acts of those who represent them." It is not clear that these changes in FOIA's purpose have directly affected how courts interpret the statute, although a few key judicial decisions since those amendments have evidenced a disturbing disregard of FOIA’s historical breadth.
The state's tradition of giving the public the broadest possible access to its records did not begin with the enactment of the FOIA in 1977. Michigan courts throughout the state's history have both expressed and implemented the fundamental principle that the records of government belong to the public and not to the government officials who are their custodians. The public's access and ability to inspect are a matter of fundamental right. The public does not have the burden of justifying the requested inspection but, to the contrary, the custodian has the duty to facilitate inspections and the heavy burden of justifying any exemptions, restrictions, or delays he or she may attempt to impose. Nowack v. Auditor Gen., 243 Mich. 200, 219 N.W. 749 (1928) (common law); Burton v. Tuite, 78 Mich. 363, 44 N.W. 282 (1889); Booth Newspapers, Inc. v. Muskegon Probate Judge, 15 Mich. App. 203, 166 N.W.2d 546 (1968); Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents, 444 Mich. 211, 507 N.W.2d 422 (1993) (FOIA). Nowack, a leading case both in Michigan and nationally, enforced a newspaper's right of inspection by the extraordinary remedy of mandamus, and contains one of the more noteworthy statements of this fundamental principle:
If there be any rule of the English common law that denies the public the right of access to public records, it is repugnant to the spirit of our democratic institutions. Ours is a government of the people. Every citizen rules . . . . Undoubtedly, it would be a great surprise to the citizens and taxpayers of Michigan to learn that the law denied them access to their own books for the purpose of seeing how their money was being expended and how their business was being conducted. There is no such law and never was either in this country or in England.
219 N.W. at 750.
The court then cites the 1889 case Burton v. Tuite as an example of Michigan's historical commitment to the principle of free access, concluding, "There is no question as to the common-law right of the people at large to inspect public documents and records. The right is based on the interest which citizens necessarily have in the matter to which the records relate." 219 N.W. at 750 (citing Burton v. Tuite, 78 Mich. at 374 ("I do not think that any common law ever obtained in this free government that would deny to the people thereof right of free access to, and public inspection of, public records.")). This principle was affirmed in Muskegon Probate Judge, which enforced a newspaper's right of inspection by the extraordinary remedy of superintending control:
The fundamental rule in Michigan on the matter before us, first enunciated in the case of Burton v. Tuite, (1889), 78 Mich. 363, is that citizens have the general right of free access to, and public inspection of, public records . . . . The Nowack decision has "placed Michigan at the vanguard of those states holding that a citizen's accessibility to public records must be given the broadest possible effect."
166 N.W.2d at 547-48 (quoting 1961-62 Op. Att'y Gen. 581, 587).
More recently, in Swickard v. Wayne County Medical Examiner, 438 Mich. 536, 475 N.W.2d 304 (1991), the Michigan Supreme Court declared that these same policies apply to FOIA:
One of the reasons prompting the legislation was concern over abuses in the operation of government. A policy of full disclosure underlies the FOIA . . . . In construing the provisions of the act we keep in mind that the FOIA is intended primarily as a prodisclosure statute and the exemptions to disclosure are to be narrowly construed.
475 N.W.2d at 307.
As discussed below, Michigan's FOIA also provides a procedure and remedy for improper governmental refusal to disclose public records, including the award of reasonable attorney’s fees and actual and punitive damages. Mich. Comp. Laws Ann. §§ 15.240 (6) and (7).
Since at least 1851, the policy of open access to public records also has been expressed and implemented by other Michigan statutes. For example, the Michigan Penal Code provides that "[a]ll official books, papers or records created by or received in any office or agency of the state of Michigan or its political subdivisions, are declared to be public property, belonging to the people of the state of Michigan." Mich. Comp. Laws Ann. § 750.491. The next section enforces the policy:
Any officer having the custody of any county, city or township records in this state who shall when requested fail or neglect to furnish proper and reasonable facilities for the inspection and examination of the records and files in his office and for making memoranda of transcripts therefrom during the usual business hours, which shall not be less than 4 hours per day, to any person having an occasion to make examination of them for any lawful purpose shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than 1 year, or by a fine of not more than $500.00; Provided, that the custodian of said records and files may make such reasonable rules and regulations with reference to the inspection and examination of them as shall be necessary for the protection of said records and files, and to prevent interference with the regular discharge of the duties of such officer.
Mich. Comp. Laws Ann. § 750.492.
Open Meetings. Michigan's Open Meetings Act ("OMA"), Mich. Comp. Laws Ann. § 15.261, et seq., discussed in detail, infra, also reinforces the state's policy of insuring open access to government operations by providing for open access to public meetings. In Booth Newspapers, Inc. v. University of Michigan Board of Regents, for example, the Michigan Supreme Court stated:
Legislators hailed [the OMA] as ‘a major step forward in opening the political process to public scrutiny.’ During this period, lawmakers perceived openness in government as a means of promoting responsible decision making. Moreover, it also provided a way to educate the general public about policy decisions and issues. It fostered belief in the efficacy of the system . . . . To further the OMA's legislative purposes, the Court of Appeals has historically interpreted the statute broadly, while strictly construing its exemptions and imposing on public bodies the burden of proving that an exemption exists.
507 N.W.2d at 427-28 (citations and footnote omitted).
Unlike Michigan's Freedom of Information Act, which complements existing laws, the OMA, Mich. Comp. Laws Ann. § 15.261, et seq., was, in part, intended to resolve conflicting provisions of law and expressly provides that it "shall supersede all local charter provisions, ordinances, or resolutions which relate to requirements for meetings of local public bodies to be open to the public." Id. § 15.261(2).
The OMA also provides that public officials who intentionally violate the OMA have committed misdemeanors for which they can be fined and potentially imprisoned. Further, unlike FOIA, which provides for recovery of reasonable attorney’s fees to a prevailing plaintiff, OMA provides for the recovery of actual attorney’s fees. Id. § 15.271(4).
In 1974, Minnesota became the first state to enact a data privacy statute. The statute, now known as the Minnesota Government Data Practices Act (“MGDPA” or “the Act”), seeks to balance the public policy interests inherent in government transparency with the privacy interests of individual data subjects. Under the MGDPA, all government data is presumptively public, unless exempted from disclosure under a specific provision of the Act, or under another state or federal statute. Minn. Stat. § 13.01, subd. 3. Despite the general presumption of public access, and in contrast to most other states, Minnesota has created an extensive data classification system in which the legislature has made many detailed policy decisions on what data is publicly accessible, when, and to what extent. Revisions to the classification system occur in most legislative sessions.
The Minnesota Commissioner of Administration is authorized to issue written opinions on questions relating to public access to government data or disputes regarding government agencies’ data practices. Minn. Stat. § 13.072. Although the Commissioner has generated a significant number of opinions regarding the Act, these opinions are not controlling. Id., subd. 2. Moreover, as litigation is expensive, and the litigation provisions of the MGDPA do not ensure recovery of fees from a government agency, there is not a significant body of decisions construing the important provisions of the MGDPA. In an attempt to address this issue, the Minnesota Legislature established an additional administrative remedy in 2010, which allows an aggrieved party to file a complaint with the Office of Administrative Hearings. Minn. Stat. § 13.085.
Similarly, the Minnesota Open Meeting Law, originally enacted in 1957, is intended to protect the public’s right to be informed, afford the public an opportunity to present its views, and to prohibit actions from being taken at a secret meeting. The law applies to (1) any state agency, board, commission, or department when required or permitted by law to transact public business in a meeting; (2) the governing body of a school district however organized, unorganized territory, county, statutory or home rule city, town, or other public body; (3) any committee, subcommittee, board, department, or commission of a public body; or (4) the governing body or commission of a statewide public pension plan or local public pension plan. Minn. Stat. § 13D.01, subd. 1.
Mississippi as early as 1941 recognized a right to inspect and copy public records such as land title records. The requester was not required to show a special interest in the records. Logan v. Mississippi Abstract Co., 190 Miss. 479, 200 So. 716 (1941) (interpreting what is now Miss. Code Ann. § 9-5-169). See also W. T. Rawleigh Co. v. Hester, 190 Miss. 329, 200 So. 250, 254 (Miss. 1941) (right to inspect public records in sheriffs office); Pollard v. State, 205 So. 2d 286, 288 (Miss. 1967) (records of circuit and chancery clerks are public documents); In re Coleman, 208 F. Supp. 199, 201 (S.D. Miss. 1962), affd. 313 F.2d 867 (5th Cir. 1963) ("the right of free examination of official records is the rule").
It was not until 1983, however, that Mississippi adopted a generally applicable public records statute, now codified as § 25-61-1 et seq. There is no official legislative history, other than the record of votes and proposed amendments in the legislative journals. In the first decision by the Mississippi Supreme Court construing the Act, the court relied in part on the title of the bill in the session laws. Quoting from the title, the court held that the Act covered "records of all public bodies of government," even driver's license name lists formerly sold at a profit by the state. Roberts v. Miss. Republican Party State Executive Comm., 465 So. 2d 1050 (Miss. 1985). The Mississippi statute is not modeled on the records act of any other state.
Because the Act has not received very much judicial attention, the primary guides to its interpretation are the opinions of the state attorney general. These opinions are not formally published but are available on Westlaw. Also, the Act authorizes agencies affected to promulgate "reasonable written procedures concerning the cost, time, place and method of access" to records, § 25-61-5(1). Any doubt about the disclosure of the requested information should be resolved in favor of disclosure. Harrison County Development Comm’n v. Kinney, 920 So. 2d 497 (Miss. 2006).
Since passage of the 1983 Act, the legislature has steadily eroded its coverage by the adoption of exemptions. These include exemptions for medical examiner reports, § 41-61-63, and for case files of the Workers' Compensation Commission, § 71-3-66. In general, the press has failed to monitor the legislative process closely enough to mount any effective opposition to these exemptions. The legislature has scattered exemptions throughout the code. They are not codified with the Act, which has made them less visible.
In 1996, Mississippi joined those states which have updated their public records laws for the electronic age. The law gives members of the public the right to request electronic records in electronic formats. The law also forbids public agencies from contracting for information services unless the public also can access information provided by those services. However, the law does add exemptions to the Public Records Act for various forms of proprietary software. See § 25-61-1, -2, -10.
Mississippi first adopted an open meetings law in 1975. As originally enacted, the law permitted closed meetings for any reason so long as certain procedures were followed. In 1981, the legislature strengthened the law by limiting executive sessions to matters falling within one of 11 statutory exemptions. 1981 Miss. Laws, ch. 456. In 1990, the legislature changed the definition of "personnel matter" and added new notice requirements. 1990 Miss. Laws, ch. 541. The exemptions are in some respects similar to exemptions adopted previously in Louisiana. Compare Miss. Code Ann. § 25-41-7(4) to La. Rev. Stat. 42:6.1 (West Supp. 1990). There is no official legislative history of either the 1975, 1981, or 1990 bills. All that is available is the record of votes and proposed amendments in the session laws.
The Act contains a strong statement of policy which has guided the courts in interpreting the Act:
It being essential to the fundamental philosophy of the American constitutional form of representative government and to the maintenance of a democratic society that public business be performed in an open and public manner, and that citizens be advised of and be aware of the performance of public officials and the deliberations and decisions that go into the making of public policy, it is hereby declared to be the policy of the State of Mississippi that the formation and determination of public policy is public business and shall be conducted at open meetings except as otherwise provided herein.
The Mississippi Supreme Court has said, "However inconvenient openness may be to some, it is the legislatively decreed public policy of this state." Mayor and Aldermen v. Vicksburg Printing & Publishing Co., 434 So. 2d 1333, 1336 (Miss. 1983), followed in Board of Trustees v. Miss. Publishers Corp., 478 So. 2d 269 (Miss. 1985).
The Act sweeps broadly. A meeting is an "assemblage of members of a public body at which official acts may be taken," § 25-41-3(b) (Supp. 2000). "Official acts" includes deliberations, and is not limited to voting. Board of Trustees v. Mississippi Publishers Corporation, 478 So. 2d 269, 278 (Miss. 1985). Problem areas are the "personnel" exemption, § 25-41-7(4) (a), and the failure of the Act to provide attorney fees to successful plaintiffs. Also, violation of the Act is not grounds for setting aside actions taken during a closed meeting. Shipman v. North Panola Consolidated School District, 641 So. 2d 1106 (Miss. 1994). See also Citizens for Equal Property Rights v. Board of Supervisors of Lowndes Co., 730 So. 2d 1141, 1144 (Miss.)
Any rules or regulations of public bodies governing public access should be no more restrictive than the access afforded by the state public records and open meetings laws. State Oil & Gas Bd. v. McGowan, 542 So. 2d 244 (Miss. 1989).
Montana's populist roots promoted early adoption of statutory "open records" mandates. Montana's first open records law was passed six years after statehood in 1895 and guaranteed:
Every citizen has a right to inspect and to take a copy of any public writings of this state … (and) (e)very public officer having the custody of a public writing … is bound to give (citizens) on demand a certified copy of it.
Mont. Code Ann. § 2-6-102. (emphasis added).
It was not until 1963, however, that the legislature statutorily required open governmental meetings. The legislative purpose of the 1963 law tracks the populist philosophy which serves as its underpinning:
It is the intent of this part that actions and deliberations of all public agencies (in Montana) shall be conducted openly. The people of the state do not wish to abdicate their sovereignty to the agencies which serve them. Towards these ends, the provisions of the part shall be liberally construed.
Mont. Code Ann. § 2-3-201.
The "part" referred to above requires that all meetings of governmental bodies "supported in whole or part by public funds or expending public funds" must be open to the public. This statutory provision is among the broadest in the nation with respect to the deliberative bodies it touches.
Finally, when the 19th century Montana Constitution was re-written in 1972, this statutory philosophy was raised to constitutional levels. The 1972 Constitution, Article II, § 9 reads:
No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.
In response to this provision, the Montana Legislature commissioned a study to determine which, if any, statutes needed to be amended in order to comply with this new constitutional mandate. In 1975 and again in 1977 the legislature passed several amendments to the open meetings and open records laws to mold a statutory framework that implemented the new constitutional provision. These statutory and constitutional constraints today provide Montana citizens strong statutory and constitutional tools with which to compel open government.
As might be expected, however, these constitutional and legislative efforts have not lessened the tendency of governmental bodies toward secrecy. Montana officials, not unlike officials in other states, believe the public's business can most efficiently be carried on in secret. Thanks to a vigilant press and active public interest groups willing to litigate, Montana government has not been covert with impunity.
The public records statutes in Nebraska (Neb. Rev. Stat. §§84-712—84-712.09 (Reissue 2016 and 2017 Cum. Supp.)) employ the same basic format as the federal Freedom of Information Act, although the substance and some of the procedural mechanisms differ significantly. In other words, the Nebraska public records statutes begin with the presumption that all records belonging to the government are available for public inspection and copying, and then except out certain categories of records that need not be produced by government.
While access to government records in Nebraska is relatively straightforward, the reader should be aware that mere consultation of the specific statutes dealing with record access may be insufficient to resolve any given access question. The statute defining the basic public record framework excepts from public inspection particular information or records that other statutes make confidential. These statutory exceptions are not contained solely in the public records statutes, and are in fact scattered throughout the Nebraska Revised Statutes. No attempt has been made to address every conceivable record that might not be available to the public in this outline. Exceptions creating the most serious and frequent problems are addressed in detail, however, and the exceptions expressly contained in the public records statutes themselves are addressed.
The Nebraska Open Meetings Act, Neb. Rev. Stat. §§84-1408 to 84-1414 (Reissue 2014 and 2017 Supp.), was initially enacted in 1975. In enacting the Open Meetings Act, the Nebraska Legislature expressed its intent "that the formation of public policy is public business and may not be conducted in secret." Neb. Rev. Stat. §84-1408 (Reissue 2014). This "statutory commitment to openness in government" guarantees that "there will be development and maintenance of confidence, as well as participation, in our form of government as a democracy." Grein v. Board of Education, 216 Neb. 158, 163, 343 N.W.2d 718, 722 (1984).
Nevada’s public records act was originally enacted in 1911 and “for many years, the law simply stated that ‘all books and records of the state and county officers . . . shall be open at all times during office hours to inspection by any person, and the same may be fully copied.’” Public Records, Policy and Program Report, Research Division, Nevada Legislative Counsel Bureau April 2016, available at:
https://www.leg.state.nv.us/Division/Research/Publications/PandPReport/16-PR.pdf; see also City of Reno v. Reno-Gazette-Journal, 119 Nev. 55, 59 (2003). The initial law did not contain a definition of “precisely what constituted a public record [and] . . . since 1913, over two dozen Attorney General’s opinions have attempted to clarify the intent of the public records law, determine whether a particular document constitutes a public record, and define when a public record should be stored and preserved.” Id. NRS 239.010(1) currently creates a functional definition of a public record as “all public books and public records of a governmental entity” unless they are “otherwise declared by law to be confidential.” The public record must be supplied to the requestor in “any medium in which the public record is readily available.” NRS 239.010(4) (emphasis added).
Judicial analysis of the Nevada Public Records Act (“NPRA”) begins with Donrey of Nevada, Inc. v. Bradshaw in 1990. 106 Nev. 630 (1990). In Bradshaw, the appellants filed a petition for writ of mandamus based on NRS 239.010 seeking to obtain a police investigative report. Id. at 631. The Court found that NRS 179A.070(1) rendered certain criminal records confidential and exempt from disclosure, but did not “expressly declare criminal investigative reports to be confidential.” Id. at 634. The Court held that the initial legislative balancing expressed in the statutes did not preclude judicial balancing of “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.
A decade later, this Court again considered the NPRA in DR Partners v. Bd. of Cnty. Comm'rs, 116 Nev. 616, 621, 6 P.3d 465, 468 (2000). The appellant filed a petition for writ of mandamus seeking disclosure of “unredacted records documenting use of publicly owned cellular telephones.” Id. at 619. Clark County was asked to produce records “documenting the use, over a two-year period, of publicly owned cellular telephones issued to the individual respondents.” Id. Clark County responded by providing the records but redacting the last four digits of each incoming and outgoing telephone number on the grounds that this information was confidential because it was subject to a deliberative process privilege, an official information privilege, or would violate the individual callers’ privacy.
The Court analyzed Bradshaw as recognizing that “any limitation on the general disclosure requirements of NRS 239.010 must be based upon a balancing or ‘weighing’ of the interests of non-disclosure against the general policy in favor of open government.” Id. at 622. The en banc Court ordered complete disclosure of the phone records, writing: “having weighed the public policy considerations inherent in our Public Records Act, we respectfully disagree with the district court and conclude that these records are not protected under a deliberative process privilege.” Id. at 622. The Court stated that the County did not make an “offer of proof of any kind . . . for the purpose of balancing important or critical privacy interests against the presumption in favor of public disclosure of these redacted records.” Id. at 628. Thus, the County could not satisfy its burden by voicing “non-particularized hypothetical concerns” about privacy.
In City of Reno v. Reno Gazette-Journal, 119 Nev. 55 (2003), the respondent filed a petition for mandamus seeking documents related to a major public works project, which was partially financed with federal funds. Id. at 59. The Court, sitting en banc, held that applicable federal regulations declared the subject records confidential and thus exempt from disclosure. Id. at 61.
In 2010, the en banc Court analyzed whether “NRS 202.3662, which makes applications for concealed firearms permits confidential, includes within its scope the identity of the permittee of a concealed firearms permit and any records of investigations, suspensions, or revocations that are generated after the permit has issued.” Reno Newspapers v. Haley, 126 Nev. 211, 214 (2010). The Court unanimously construed NRS 202.3662 narrowly, finding that it did not explicitly declare post-permit records confidential, and required the disclosure of the requested documents. Id. at 212. Based on legislative amendments to the NPRA, the Court recognized a presumption that “all public records are open to disclosure unless either (1) the Legislature has expressly and unequivocally created an exemption or exception by statute . . . [or] (2) balancing the private or law enforcement interests for nondisclosure against the general policy in favor of an open and accessible government requires restricting public access to government records.” Id. at 215.
The public agency argued that “because an application for a concealed firearms permit and information related to the applicant are confidential under NRS 202.3662, any information generated in a permit that is derived from the application would remain confidential.” Id. While NRS 202.3662 “clearly and unambiguously” created an exception to disclosure for “applications, information within the applications, and information related to the investigation of the applicant,” it was silent with respect to the information generated after the application is approved or rejected. Id. at 216. The Court found post-permit records were not explicitly confidential even though they contained the same information as in the application. Id. at 217. The Court then recognized “that an individual’s privacy is also an important interest, especially because private and personal information may be recorded in government files.” Id. Using the Bradshaw balancing test, the Court found that the public agency had not met its “burden to show that the law enforcement or individual privacy concerns outweigh the public’s right to access the identity of the permit holder.” Id. at 219.
Next in 2011, the Court considered a request for access to a former governor’s e-mail communications. Reno Newspapers, Inc. v. Gibbons, 127 Nev. 873 (2011). The primary holding was that the “requesting party generally is entitled to a log unless, for example, the state entity withholding the records demonstrates that the requesting party has sufficient information to meaningfully contest the claim of confidentiality without a log.” Id. at 883. Additionally, a public agency must cite to specific authority that makes the public book or record confidential. Id.
The Court relied upon its own “inherent authority to manage its own affairs” to determine that information held by the AOC was explicitly declared confidential by law and that the “AOC acted within its power by maintaining the requested documents as confidential in order to protect the privacy of [foreclosure mediation program] participants.” Civil Rights for Seniors v. AOC, 313 P.3d 216, 220 (2013). The Court held that even if it “were to conclude that the requested documents were public court records . . . the AOC’s interest in maintaining the confidentiality of participant information is justified, given the personal and sensitive nature of the information involved.” Id. Moreover, holding otherwise “would expose highly sensitive personal and financial information to the public and thus have a chilling effect on open and candid FMP participation, undermining the Legislature’s interest in promoting mediation.” Id.
In 2013, the Court decided Reno Newspapers, 313 P.3d 221, 225-26. The Court held, in accordance with the reasoning of Haley, that “NRS 286.110(3) only protects as confidential the individuals' files held by PERS, not all information contained in separate media that also happens to be contained in individuals' files.” Id. So where “information is contained in a medium separate from individuals' files, including administrative reports generated from data contained in individuals' files, information in such reports or other media is not confidential merely because the same information is also contained in individuals' files.” 313 P.3d at 224. But, the public agency did not need to “create new documents or customized reports by searching for and compiling information from individuals’ files or other records.” Reno Newspapers, 313 P.3d at 228.
Finally, in Blackjack Bonding in 2015, the Court found that the record revealed that “Blackjack's request does not involve searching through individual files and compiling information from those files” like it would have in Reno Newspapers. 343 P.3d at 613–14. Because CenturyLink had previously produced the requested information and could so again in the future, the Court held that the records should be disclosed. Id.
The NPRA is the sole governing authority for most public records cases, but Nevada does recognize a common law and constitutional right to the disclosure of public records. See Civil Rights for Seniors v. AOC, 129 Nev. 752, 313 P.3d 216, 220 (2013) (noting potential arguments related to a common law right to inspect public records but citing to Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597–98 (1978), for the proposition that the public's “general right to inspect and copy public records” is not absolute and courts have inherent authority to deny public access to its records when justified).
The New Hampshire "right to know" law is contained within RSA Ch. 91-A, as amended, and is entitled "Access to Government Records and Meetings" (hereinafter "Statute").
The Statute was enacted in 1967. It received broad bipartisan support in the legislature and from the governor. During legislative consideration one state senator underscored the Statute's purpose and function in a democratic society:
The public has a "right-to-know" what its public servants are doing and how they are responding to the people who put them there. An informed and knowledgeable electorate is the life-blood of a democratic society. Ignorance on the other hand, breeds the type of situation which opens the door to those who would destroy the democratic process.
. . . I submit, Sir, that when an individual runs for or accepts a position of responsibility to serve the people, he should be ready to call his shots openly and without equivocation.
Another reason I favor this measure is because the press will be able to accurately report what has transpired on a given occasion and not garble, distort or misrepresent when they have to speculate or accept second hand information on a vote or decision of some governmental body.
Since enactment, the Statute has been amended on numerous occasions. In most of these instances, the amendments have clarified or broadened the scope of the Statute, for example, it now applies to electronic records in the transaction of governmental business.
One of the most significant amendments occurred in 1977, when the legislature added a preamble. It reads:
Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.
In New Hampshire, the public's right to know is further safeguarded by a state constitutional provision. In 1976 Part 1, Article 8 was amended to provide:
Government, therefore, should be open, accessible, accountable and responsive. To that end, the public's right of access to governmental proceedings and records shall not be unreasonably restricted (emphasis added).
In any case where it is unclear whether a record or proceeding is covered by the Statute, the person seeking access should ground his request on Part I, Article 8.
Open Records. On January 8, 2002, Acting Governor, Donald DiFrancesco, signed into Law a new Open Public Records Act ("OPRA").
The statute makes significant improvements to the prior Right to Know Law:
- The law provides a succinct definition of "public record" which will assist custodians in providing access while at the same time excluding from the definition records not kept by a public officer in the course of his/her official business.
- The law provides a uniform system for requesting records and responding to requests as well as a timeframe within which the custodian must respond to the request — a significant omission in the prior Right to Know Law.
- The law preserves the existing court review of access disputes and provides a less expensive alternative administrative review, at the requestor's option, through the Government Records Council.
- The law provides for penalties for a knowing and willful violation of the law and allows for the recovery of reasonable attorney’s fees by a requestor who prevails in a proceeding to gain access.
- The law preserves the common law right of access.
- The law provides for access to records stored or maintained electronically.
In 1975 the New Jersey Legislature enacted the Open Public Meeting Act, N.J.S.A. 10:4-6, et seq, commonly known as the "Sunshine Law." While some of the provisions of this Act had been included in prior legislation (See N.J.S.A. 10:4-1 to 5, repealed by L.1975, c.231), the Legislature saw the need for a stronger statute in order to prevent the public and the press from being "needlessly barr[ed] . . . from certain policymaking meetings of public bodies." Introductory Statement of Assembly No. 1030 — L.1975, c.231. The Sunshine Law was intended by the Legislature to establish comprehensive and uniform procedures at all levels of government to insure
that the public and the press have advance notice of and the opportunity to attend most meetings, including executive sessions, of all public bodies . . . .
Evidence of the strong public policies which underlie the Sunshine Law and which govern its application is expressed in the preamble to the legislation, which states:
The Legislature finds and declares that the right of the public to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies, is vital to the enhancement and proper functioning of the democratic process [and] that secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a democratic society . . . .
The extent to which the courts would go to fulfill and implement the public policies expressed by the Legislature was demonstrated in the 1977 decision in Polillo v. Deane, 74 N.J. 562, 379 A.2d 211 (1977), the first New Jersey Supreme Court case involving the Sunshine Law. In Polillo the issues before the Supreme Court were the extent to which the Atlantic City Charter Study Commission had violated the Sunshine Law and what remedies should be imposed for violation.
The charter study commission had been established by voter referendum to consider the merits of adopting a new form of government. In performing this function, the commission held meetings and hearings, some of which did not comply fully with the notice requirements of the Sunshine Law. The commission recommended that there be a voter referendum on adopting a "strong mayor" form of government. The referendum was thereafter placed on the ballot, and the voters of Atlantic City overwhelmingly adopted this new form of government.
Even though most of the commission's meetings had been well-publicized ahead of time and the hearings involved substantial public attendance and participation, the court found that there must be "strict adherence to the letter of law" with respect to the notice requirements of the Sunshine Law. Since strict adherence had not taken place, the court ruled that the vote of the commission to recommend a referendum must be invalidated, along with the voter referendum approving the new form of government. It ordered the commission to "embark again" on its task of considering a new form of government for Atlantic City.
The Supreme Court's decision in Polillo set the tone for all subsequent court decisions on interpretation and application of the Sunshine Law. And to a great extent the lower courts have required "strict adherence to the letter of the law" and have liberally construed the Sunshine Law to accomplish its purpose and the public policy of New Jersey. See N.J.S.A. 10:4-21.
In recent years, New Mexico has provided a generally hospitable climate for access to public records. In 1993, because of the efforts of the New Mexico Press Association and the New Mexico Foundation for Open Government, the Legislature enacted some significant improvements to the Inspection of Public Records Act. The 1993 legislation provides a broad definition of public records to include virtually all documents or information "regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained." NMSA 1978 § 14-2-6(G) (2018).
The 1993 amendments created both a significant presumption that all records are public and that access to public records is an essential part of the duties of public officers and employees:
Recognizing that a representative government is dependent upon an informed electorate, the intent of the legislature in enacting the Inspection of Public Records Act is to ensure, and it is declared to be the public policy of this state, that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees. It is the further intent of the legislature, and it is declared to be the public policy of this state, that to provide persons with such information is an essential function of a representative government and an integral part of the routine duties of public officers and employees.
NMSA 1978 § 14-2-5 (1993). The same legislation created procedures similar to the federal Freedom of Information Act. For example a public official (custodian of the records) must respond to a written request within three (3) business days. NMSA 1978 § 14-2-8(D) (2009).
The improvements in both the open records and open meetings provisions in New Mexico law can be traced in large part to a private organization called the New Mexico Foundation for Open Government, known as NMFOG. This organization, although receiving most of its funding from media organizations, has broad public membership. NMFOG has been aggressive in supporting requests for public records through educational seminars, letters to public officials, and litigation. NMFOG's Executive Director is Melanie Majors. NMFOG's contact information is: New Mexico Foundation for Open Government, Inc., 2333 Wisconsin St. NE, Albuquerque, NM 87110, telephone: 505-764-3750.
The New Mexico Attorney General publishes compliance guides for the Inspection of Public Records Act and the Open Government Act, and copies are available from the Attorney General's office: Civil Division, Office of the Attorney General, State of New Mexico, Bataan Memorial Building, P.O. Drawer 1508, Santa Fe, New Mexico 87504-1508, telephone 505-490-4060 or online at: http://www.nmag.gov/publications.aspx.
The guides provide analyses of the public records statutes, examples of what is permissible under the Acts, and some public records form letters. The New Mexico Press Association (NMPA) and NMFOG drafted portions of the commentary and the appendices to the guides which contain analyses of the Acts, deadlines applicable to the Acts, and form letters to request public records.
History of New Mexico Open Records Law: Even in the absence of statutory provisions, the common law right of access to inspect at least some public records, has been recognized in New Mexico since at least 1925. See N.M. Op. Att'y Gen. 25-26 (1925) ("House journal and bills are public records and should be open to public inspection at reasonable hours.").
No appellate court decision defined the right of common law access until passage of the state's first Open Records Law in 1947. The law limited access to "citizens," contained a few exceptions, no definition of what constituted a public record; the 1947 Act did provide a penalty, including a possible jail term for violations.
In 1973 additional exceptions to the right of inspection were added. In 1977, the New Mexico Supreme Court addressed many of the ambiguities and shortcomings of the statute and decided the case of Newsome v Alarid, 1977-NMSC-076, 90 N.M. 790, 797, 568 P.2d 1236 (NM 1977). In some broad and sweeping language the Court endorsing the right to inspect public records, holding: “… that a citizen has a fundamental right to have access to public records. The citizen’s right to know is the rule and secrecy is the exception. Where there is no countervailing public policy, the right to inspect public records must be freely allowed.” Id. at ¶34. The Court called on the Legislature to delineate records that should be public and those that should remain confidential. In the interim, the Court borrowed from other states and created a “rule of reason” to be applied to each claim for public inspection. Id.
In 1993 the Legislature answered the call and created a private right of action allowing prevailing citizens to collect court costs, damages, and attorneys' fees. The 1993 overhaul was significant, establishing procedures similar but in many ways superior to the federal Freedom of Information Act starting with a presumption that all records are public. The 2011 amendments include a requirement that records custodians respond to a public records request in the same medium, electronic or paper, in which they receive the request. NMSA 1987 § 14-2-7(B) (2011). Additionally, if the public record is available in electronic format and is requested in an electronic format, the public body must provide it in an electronic format. NMSA 1987 § 14-2-9(B) (2013). Public bodies may charge actual costs of downloading copies of public records to a storage device and the actual cost of the storage device. NMSA 1987 § 14-2-9(C)(3) (2013).
Public bodies are required to post a notice informing the public of the right to inspect records and the procedures for copying and inspecting records on the publicly accessible website with contact information for the public records custodian. NMSA § 14-2-7(E). In 2011 the legislature included a new section on “protected personal identifier information” NMSA § 14-2-1.1 (2011). Public bodies may redact “protected personal identifier information” before providing a public record. Id. “Protected personal identifier information” is defined as: (1) a social security number; (2) all but the year of a person’s birth date; (3) all but the last four digits of a taxpayer identification number, financial account number, or driver license number. NMSA § 14-2-6(E).
Open Meetings: The New Mexico Open Meetings Act is contained at NMSA 1978, sections 10-15-1 through 10-15-4 (1974, as amended through 2013). The first Open Meetings Act was enacted in 1959 and significant amendments were added in 1993. The provisions added in 1993 include a section, just like the Inspection of Public Records Act, creating a presumption that meetings should be open:
In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. The formation of public policy or the conduct of business by vote shall not be conducted in closed meeting. All meetings of any public body except the legislature and the courts shall be public meetings, and all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings. Reasonable efforts shall be made to accommodate the use of audio and video recording devices.
NMSA § 10-15-1(A). The 1993 changes also required (1) strict procedures for telephone conference meetings; (2) meeting notices must include an agenda; and (3) policymaking bodies must keep written minutes, including a statement that any closed session was limited to the subject announced in the motion or notice of closure. See §§ 10-15-1(C), (F), (G).
In 1997, NMPA and NMFOG successfully pushed an important amendment to provide some teeth for the formerly toothless enforcement provision. The 1997 amendment provided for a mandatory award of costs and reasonable fees to a successful plaintiff in a suit to enforce the Open Meetings Act. § 10-15-3(C).
NMPA and NMFOG efforts to open up the secret legislative conferences were partially successful. An amendment to the Open Meeting Act in 2009 provides that “all meetings of any committee or policy-making body of the legislature held for the purpose of discussing public business or taking any action within the authority of…the body are declared to be public meetings open to the public at all times…” § 10-15-2(A).
The New Mexico Attorney General's office has published the Eighth Edition of the Open Meeting Act Compliance Guide. This guide includes all amendments to the Act passed during the 2015 legislative session. Copies are available from the Civil Division, Office of the Attorney General, State of New Mexico, Bataan Memorial Building, P.O. Drawer 1508, Santa Fe, New Mexico 87504-1508, telephone 505-490-4060 or online at: http://www.nmag.gov/publications.aspx.
The New Mexico Foundation for Open Government has been particularly active in pursuing compliance with the Open Meetings Act. Seminars, expert testimony and analysis, and the occasional lawsuit have resulted in a much better environment for open government in New Mexico. For additional information, contact NMFOG's Executive Director, Melanie Majors. NMFOG's contact information is: New Mexico Foundation for Open Government, Inc., 2333 Wisconsin St. NE, Albuquerque, NM 87110, telephone: 505-764-3750; email: email@example.com; online at https://nmfog.org/.
Stating that “a free society can be maintained only when government is open and accessible to its citizens,” the Governor of New York signed the State’s first Freedom of Information Law in 1974 (1974 N.Y. Laws chs. 578, 579, 580 (Approval Message No. 47)). As originally enacted, the law specified those records of government to which the public would have unimpaired access; required all agencies of the state or local governments to make such records available for public inspection and copying; required agencies to maintain lists of all available records produced after September 1, 1974; and created a Committee on Public Access to Records (now the Committee on Open Government) to advise agencies and municipalities and to promulgate rules and regulations with respect to the administration of the new law.
The 1974 Freedom of Information Law was repealed and reenacted in 1977 (1977 N.Y. Laws ch. 933). Like its predecessor, the new enactment opened with a legislative declaration reading as follows:
The legislature hereby finds that a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government. As state and local government services increase and public problems become more sophisticated and complex and therefore harder to solve, and with the resultant increase in revenues and expenditures, it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible. The people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality. The legislature therefore declares that government is the public’s business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article.
The most significant change in the re-enacted Freedom of Information Law was a reversal of the previous law’s presumption that records would be unavailable unless falling within specified, limited categories of available documents. As rewritten in 1977 and continuing through the present, New York’s Freedom of Information Law states that all records are available to the public unless they fall within one of the law’s exemptions.
The statute exempts the following records from disclosure: (1) those exempt from disclosure by state or federal statute; (2) those which if disclosed would constitute an unwarranted invasion of privacy; (3) those which if disclosed would impair contract awards or collective bargaining negotiations; (4) those containing trade secrets; (5) those compiled for law enforcement purposes, under certain specific circumstances; (6) those which if disclosed would endanger life or safety; (7) those containing examination questions or answers; (8) inter-agency or intra-agency materials which are neither statistical nor factual data, instructions to staff affecting the public, final agency policy or determinations, or external audits, including those performed by the comptroller and federal government; (9) those which if disclosed would jeopardize the security of an agency’s information technology; (10) computer access codes; and (11) traffic-control signal photographs.
Another significant change in the revised Freedom of Information Law was the requirement that agencies reproduce or copy records for requesters offering to pay a stipulated fee. This contrasts with the earlier law’s directive to make records available to an individual for his or her inspection and copying.
The 1977 revision remains largely in place today. There have been a number of legislative amendments adding to or refining its details, but they have not significantly modified the law’s basic structure. One of the more important amendments occurred in 1982 with the addition of a provision authorizing an award of attorneys’ fees to requesters in certain instances (1982 N.Y. Laws ch. 73). In 1989 a provision was added making it a violation for any person to willfully conceal or destroy any record with the intent to prevent public inspection. (1989 N.Y. Laws ch. 705).
In May of 2005, FOIL was amended to make more specific the time frames available to an agency in which to respond to a request for records.
Pursuant to an amendment which became law in 2006, all agencies which have “reasonable means available” are required to accept requests for records in email format and to respond in e-mail format when requested to do so. Amendments made in 2006 also allowed a court in its discretion to award reasonable counsel fees and litigation costs to a party that “substantially prevailed” in the proceeding, provided that the court finds that “the agency lacked a reasonable basis in law for withholding the record” or that “the agency failed to respond to a request or appeal within the statutory time frame.”
Further, legislation effective August 7, 2008 contains amendments reflecting advances in information technology and the costs associated with providing access to information that is maintained electronically. The 2008 amendments are discussed throughout the outline below.
Most recently, on December 13, 2017, legislation became effective that amended FOIL in relation to attorney’s fees. The 2017 amendment removes judicial discretion and mandates the award of attorney’s fees against an agency where it is found that the agency had no reasonable basis for denying a FOIL request.
Other amendments are noted, where appropriate, in the body of the text that follows.
Open meetings law
In 1976, New York enacted an Open Meetings Law (“OML”) (Chapter 511 of the Laws of 1976, effective January 1, 1977). The enactment opened with a legislative declaration of purpose, set forth in Public Officers Law § 100, as follows:
“It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it.”
A Committee on Open Government has been established within the New York Department of State, as mandated by the New York Freedom of Information Law. N.Y. Pub. Off. Law § 89(1) (McKinney 1988). The Committee “shall issue advisory opinions from time to time as, in its discretion, may be required to inform public bodies and persons of the interpretations of the provisions of the Open Meetings Law.” N.Y. Pub. Off. Law § 109 (McKinney 1988). The Committee’s advisory opinions, while not binding, should be credited when they are neither irrational nor unreasonable.
The Committee may be contacted as follows: Committee on Open Government, Robert Freeman, Executive Director, 41 State Street, Albany, New York 12231. Tel. (518) 474-2518, fax (518) 474-1927, e-mail firstname.lastname@example.org. The text of the statutes, many advisory opinions, FAQs and other information are available at the Committee’s web site:http://www.dos.state.ny.us/coog/coogwww.html
Several amendments have been made to the statute since its enactment in 1976. The most significant of these relate to the statute’s exemption provision, Public Officers Law § 108. In 1977, an amendment was adopted to specifically provide that the proceedings of the public service commission are not exempt from the Open Meetings Law (1977 N.Y. Laws ch. 532). A 1983 amendment makes the proceedings of zoning boards of appeals subject to the law’s provisions (1983 N.Y. Laws ch. 80). A 1985 amendment clarified the initial intent of the exemption as applied to the deliberations of political committees, conferences and caucuses of the State Legislature or legislative body of a county, town or village. Judicial decisions interpreting the law had restricted the effect of the original exemption to apply only where the political committee, conference or caucus met to discuss political business. The amended statute makes all deliberations of political committees, conferences and caucuses of legislative bodies exempt from the provisions of the Open Meetings Law, regardless of the subject matter under discussion (1985 N.Y. Laws ch. 136).
There have been a number of other legislative amendments that add to or refine details of the law. For example, in 1977 the Legislature amended the statute to require public bodies to make all reasonable efforts to ensure that meetings are held in facilities which permit barrier-free physical access for people with physical disabilities (1977 N.Y. Laws ch. 368). In 1979, the statute was amended to provide that an executive session may be held to discuss the proposed acquisition, sale or exchange of securities held by a public body where publicity would substantially affect their value (1979 N.Y. Laws ch. 704). Other amendments are noted, where appropriate, throughout the outline that follows.
This edition is based on earlier editions prepared by Peter Danziger and Jay B. Wright. The original 1988 publication was prepared with the assistance of Barbara G. Billet. Jordan A. LaVine assisted in updating the 1992 version. Seth F. Eisenberg participated in the preparation of the 1997 edition, with special thanks to Marilyn Kelley. Michael J. Grygiel prepared the Fifth Edition in 2006. Mr. Grygiel also prepared the Sixth Edition in 2012, with assistance from Caroline B. Brancatella and Alex T. Paradiso, then-litigation associates with Greenberg Traurig’s Albany office, and summer clerk Jennifer B. Wojeski, Albany Law School class of 2012.
In North Carolina, public access to information about the workings of government is provided primarily through the Open Meetings Law (G.S. §§ 143-318.9 through 143-318.18 (1991)) and the Public Records Law (G.S. §§ 132-1 through 132-10 (1995)). These two statutes, coupled with a tradition of tenacity and ingenuity on the part of the state’s newspapers and a deeply entrenched sense of entitlement on the part of the state’s citizens, open many meeting rooms, files and databases that otherwise would remain closed. At the same time, both statutes include ambiguities and weaknesses that provide fertile ground for disputes and disagreements between citizens who seek information and public officials who want to conceal it. In many respects, therefore, the Open Meetings Law and the Public Records Law define not the rules of the game but the playing field on which the access game is played.
Because North Carolina has no official legislative history, the origins of and motivations for the state’s two “sunshine laws” are, ironically, shrouded in historic mist. The Public Records Law dates from 1935. The principal purpose of the original statute was the preservation of public records; the preamble to the act, which was ratified as Chapter 265 of the 1935 Session Laws, lamented that the state’s failure
to make systematic provision for the preservation and availability of public records has resulted in untold losses from fire, water, rats and other vermin, carelessness, deliberate destruction, sale, gifts, loans and the use of impermanent paper and ink . . . .
The basic access provisions have remained little changed since their enactment. A significant amendment occurred in 1975, when Common Cause and other groups successfully supported an amendment to extend the law to computerized records and other non-traditional forms of data storage and retrieval. The most recent significant amendments took great strides to address the issues of pricing for copies of records and the timing of responding to requests.
The Open Meetings Law was originally enacted in 1971 as part of the wave of “open government” reform of the late 1960s and early 1970s that included the federal Freedom of Information Act.
Although the original Open Meetings Law required the “governing and governmental bodies” of the state and its political subdivisions to conduct their “official meetings” in public, it did not expressly require that notice of such meetings be given in advance. This anomaly led the North Carolina Court of Appeals to hold in a 1976 case that a public body was required to give “reasonable” notice of its meetings — a standard as to which ordinary citizens and public officials clearly would and did differ. See, e.g., News & Observer Publishing Co. v. Interim Board of Education for Wake County, 29 N.C. App. 37, 223 S.E.2d 580 (1976), in which the Court of Appeals held that, while one hour’s notice of a school board meeting was unreasonably short, a 48-hour notice requirement imposed by the trial court’s injunction was unreasonably long. One year later, the North Carolina Supreme Court ruled that a meeting of the faculty of the School of Law at the University of North Carolina was not covered by the Open Meetings Law because the faculty was neither a “governing” or “governmental” body of the state. Student Bar Association v. Byrd, 293 N.C. 594, 239 S.E.2d 415 (1977).
As a direct response to the shortcomings of the Open Meetings Law revealed by these two decisions, the North Carolina Press Association and the North Carolina Association of Broadcasters mounted a major lobbying effort to improve the law in the 1979 General Assembly. The efforts were largely successful, in that the revised Open Meetings Law contained extensive and detailed provisions for public notice of regular, special, and emergency meetings; detailed provisions authorizing the broadcasting and recording of public meetings; and improvements in the provisions relating to injunctive relief.
The Open Meetings Law remained essentially unchanged from 1979 until 1986, when the North Carolina Press Association again spearheaded an effort to add a new remedy whereby a court could declare null and void actions of a public body “taken, considered, discussed, or deliberated” in violation of the law. This “voidability” remedy, which was vehemently opposed by local government groups and the North Carolina Hospital Association, was viewed as a prophylactic provision, in that it would be used primarily to force corrective action. The limited experience with the provision since its enactment suggests that this view was correct.
The North Carolina Open Meetings Law includes the following forceful policy statement:
Whereas the public bodies that administer the legislative, policy-making, quasi-judicial, administrative, and advisory functions of North Carolina and its political subdivisions exist solely to conduct the people’s business, it is the public policy of North Carolina that the hearings, deliberations, and actions of these bodies be conducted openly.
Ironically, the General Assembly, which promulgated the foregoing policy statement, was effectively exempted from the law until 1991, because a section of the Open Meetings Law (since repealed) provided that legislative committees and subcommittees had the “inherent right” to hold an executive session to prevent personal embarrassment or “when it is in the best interest of the state.” Moreover, while the rules and procedures adopted by the House and Senate resulted in the legislative process being generally accessible and open, the General Assembly lapsed into a habit of having an unofficial, off-the-books group of powerful legislators meet in secret to formulate key details of the state budget. Editorial pressure curtailed this process for a few years, but in recent sessions it has emerged again.
In 1994, the statute was further amended to broaden the definition of a public body; reduce the number of justifications for closed sessions; institute procedural safeguards when a public body goes into closed session; require minutes be kept of all meetings — open or closed; expose public officials to personal liability for attorneys’ fees if they violate the law; establish a procedure for obtaining an expedited hearing on alleged violations; and include constituent institutions of the University of North Carolina within the ambit of the Open Meetings Law.
In 1996, the North Carolina Supreme Court ruled in Maready v. City of Winston-Salem, 342 N.C. 708, 467 S.E.2d 615 (1996), that recordation of the single word “discussion” constituted full and accurate minutes of a closed session. In response, the General Assembly further amended the law to require that “[w]hen a public body meets in a closed session, it shall keep a general account of the closed session so that a person not in attendance would have a reasonable understanding of what transpired. Such accounts may be a written narrative, or video or audio recordings.” G.S. § 143-318.10(e). The import of the minute-”general account” distinction was considered in Multimedia Publ’g of N. Carolina, Inc. v. Henderson Cnty., 145 N.C. App. 365, 372–73, 550 S.E.2d 846, 851 (2001) and the minute requirement applied in Times News Publ’g Co. v. Alamance-Burlington Bd. of Educ., ___ N.C. App. ___, 797 S.E.2d 375, 378 (2017).
Most elected state officials give considerable lip service to the concept of open meetings and public records, and many provide substantive support for improvements in the statues. On the other hand, the depth of commitment is reflected in the fact that almost all members of the General Assembly (including some who have been advocates for the principles of open government) are adamantly opposed to imposing civil penalties or criminal fines on public bodies or public officials who violate the Open Meetings Law or the Public Records Law. Since there also is general agreement that district attorneys would almost never choose to prosecute such violations even if criminal sanctions were available, proponents have chosen to support remedies which can be enforced by “any person” who is willing to institute suit.
The 1995 amendments to the Public Records Law added a strong policy statement in § 132-1(b):
The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people. Therefore, it is the policy of this state that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law. As used herein, ‘minimal cost’ shall mean the actual cost of reproducing the public record or public information.
Among other recent, significant changes are provisions defining particular criminal information as public information; a prohibition against demanding to know the purpose for which a requester seeks a record; a requirement that public agencies provide access to non-confidential information that may be commingled with confidential data; a requirement that agencies maintain indexes of their databases; a narrower definition of “actual cost” of producing a public record; a refinement of the term “salary” in the context of public employees; and better judicial remedies for violations of the law.
The principal public support for the protection and improvement of the Open Meetings Law and the Public Records Law in recent years has been provided by the North Carolina Press Association and the North Carolina Association of Broadcasters. The North Carolina League of Municipalities, the North Carolina Association of County Commissioners, and the North Carolina Hospital Association repeatedly oppose measures to strengthen the Open Meetings Law and Public Records Law.
In 2004 and 2005, the North Carolina appellate courts ruled that government agencies may not use either the Public Records Law or the Open Meetings Law as a sword by suing private citizens for a declaratory judgment to resolve disputes over the proper interpretation of the law. The courts held that both statutes were enacted for the benefit of the public and that allowing governmental bodies to sue would discourage citizens from seeking access to records and meetings and pervert the purposes of the statutes. 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). See also City of Burlington v. Boney Publishers Inc., 166 N.C. App. 186, 600 S.E.2d 872 (2004), disc. rev. improvidently allowed, 359 N.C. 422, 611 S.E.2d 833 (2005).
Then-Attorney General (now Governor) Roy Cooper published a Guide to Open Government and Public Records (“AG Guide”), in which he summarizes and reiterates the basic principles of open government such as the strong preference to interpret in favor of openness. That guide is currently being updated by Attorney General Josh Stein.
The Public records law provides, in G.S. § 132-6, that public records may be requested by “any person.” The North Carolina Press Association is not aware of any access problems arising out of the citizenship or residency of a person requesting access, and the AG Guide confirms that “any person has a right to inspect, examine and get copies of public records.”
North Dakotans have some of the most comprehensive open records and open meetings laws in the nation. Under North Dakota law, all records of public bodies are open for inspection by anyone, and all meetings of public bodies are open for attendance by anyone, unless there is a specific statutory exception.
The North Dakota Supreme Court and the North Dakota Attorney General (whose opinions are binding on all public officials unless and until they are overruled by a court) have interpreted the open records and open meetings laws to favor the public’s right to know. Both the court and the Attorney General have stated that the term “record,” as used in the open records law, must be interpreted expansively.
Because the North Dakota Constitution and North Dakota law state that all records and meetings are open unless there is a specific exception in the law, any discussion of open records and open meetings law naturally focuses upon these exceptions. The Open Records and Open Meetings outline that follows focuses on the exceptions; of course, any attempt to locate every exception in the multiple volumes of the North Dakota Century Code carries the risk (or perhaps even the likelihood) of missing some exceptions, and the author apologizes for any such omissions. Statutes cited in the outline, as well as the remaining provisions of the North Dakota Century Code, may be found and searched online at http://www.legis.nd.gov/general-information/north-dakota-century-code.
Two additional useful resources include the Open Records Manual and the Open Meetings Manual, both published by the North Dakota Attorney General. Both manuals may be found online at https://attorneygeneral.nd.gov/open-records-meetings/manuals-and-guides.
Oklahoma has had an Open Meeting Act since 1959. The original statute consisted of a single paragraph with general language and no definitions. In 1978 the old act was repealed and replaced with a much more expansive model which has remained in place to the present time.
For more than forty years, the Oklahoma Open Records Act consisted of a single paragraph:
It is hereby made the duty of every public official of the State of Oklahoma, and of its subdivisions, who are required by law to keep public records pertaining to their said offices, to keep the same open for public inspection for proper purposes, at proper times and in proper manner, to the citizens and taxpayers of the State, and its subdivisions, during all business hours of the day; provided, however, the provisions of this Act shall not apply to income tax returns filed with the Oklahoma Tax Commission, or other records required by law to be kept secret.
51 O.S. § 24 (repealed).
This statute was subsequently re-written and has been a source of constant amendment as governmental entities attempt to expand the umbrella of confidentiality.
Open Records Act
The longevity of this Act was undoubtedly because the burden was on the public official to demonstrate that the record was confidential under an existing statute. However, the Oklahoma Open Records Act became the subject of amendment efforts when two 1984 Oklahoma Supreme Court decisions effectively weakened the plain meaning of the statute.
The first decision dealt with access to records maintained by the Governor concerning the expenditure of legislatively appropriated funds for his mansion account. The Court ruled that the records, even though maintained to document the expenditure of public funds, were not specifically required to be kept. Oklahoma City News Broadcasters Ass'n Inc. v. Nigh, 1984 OK 31, 683 P.2d 72. The statute authorizing the Governor's mansion fund was silent as to confidentiality of any records maintained on fund expenditures, i.e. the statute did not require the records to be kept confidential. The conflict between the Governor's office and the news media was subsequently resolved by the legislature which amended the mansion account statute to require an itemized report of all expenditures made by the Governor in the mansion account. However, this did not allow for access to records of expenditures prior to the amendment. The conflict continues. In 2014, the Oklahoma Supreme Court held that the separation of powers in the Oklahoma Constitution conferred an executive privilege to the Governor that cannot be encroached upon by Legislative acts, including the Oklahoma Open Records Act. Vandelay Entertainment, LLC v. Fallin, 2014 OK 109.
The second Oklahoma Supreme Court case involved access to arrest records maintained by a city police department. The high court held that state law was silent as to whether these records had to be kept by the police departments and thus under state law police departments could not be required to release these records. However, the charter of the city involved in this dispute contained a provision which required maintaining the records and thus the records were required to be released. Oklahoma Pub. Co. v. City of Moore, 1984 OK 40, 682 P.2d 754.
Because of these decisions and their broad impact, the Open Records Act was amended. The first significant changes included (1) the incorporation of language from the Oklahoma Open Meeting Act to define a public record and a public office as that which concerns "the transaction of public business, the expenditure of public funds or the administering of public property"; (2) requiring that all public offices and officials maintain records concerning their office and specifically required that records "of the receipt and expenditure of any public funds effecting all financial and business transactions" be kept; and (3) requiring law enforcement bodies to make available facts concerning the arrest, conviction information, disposition of all warrants, criminal summaries, and jail registers.
The issue of what comprises a law enforcement record continues to the present time. In 2012, the Attorney General held that mug shots in possession of law enforcement were records under the Open Records Act. In 2014, 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. To resolve the issue of dash cams and body cams, the Legislature in 2014 amended the law enforcement section of the Oklahoma Open Records Act (51 O.S. § 24A.8) to provide that audio and video recordings attached to law enforcement vehicles (24A.8.A.9) and to law enforcement personnel (24A.8.A.10) were public records under the Act.
While the Act did establish numerous new exemptions for some public records, the Act has been a significant improvement over the old law as interpreted by the courts.
Even though the amended Act did not contain any legislation concerning the right of privacy, the Oklahoma Supreme Court found that the right should be considered when releasing records. Tulsa Tribune Co. v. Oklahoma Horse Racing Commission, 1986 Okla. 24, 735 P.2d 548. In 1986, the media sought access to financial statements filed with the Oklahoma Horse Racing Commission by the successful applicant for establishing a race track and facilities in Oklahoma City. The financial data sought was submitted as part of the application process. The Oklahoma Supreme Court found that the legislators had intended to create a privacy act similar to the federal Privacy Act. The Court held that the legislature intended to provide exemptions from disclosure where the release of information possessed by a public body might be damaging to an individual. The Court not only found a "privacy act," it also established an administrative procedure to be followed when the "privacy act" was invoked. The Court held that the public body must give notice to the individual about whom the information is sought that a request has been made and that the individual has an opportunity to file a written objection to disclosure with the public body within a reasonable time following the notification. The Court did say that the burden was on the person seeking to limit disclosure to show why he was entitled to the exemption.
In its 1988 session, the Oklahoma Legislature addressed the Supreme Court ruling creating a privacy act in the Oklahoma law. The language setting forth the purpose of the Act was amended to state:
As the Oklahoma Constitution recognizes and guarantees, all political power is inherent in the people. Thus, it is the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government. The Oklahoma Open Records Act shall not create, directly or indirectly, any rights of privacy or any remedies for violation of any rights of privacy; nor shall the Oklahoma Open Records Act, except as specifically set forth in the Oklahoma Open Records Act, establish any procedures for protecting any person from release of information contained in public records. The purpose of this act is to ensure and facilitate the public's right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power. The privacy interests of individuals are adequately protected in the specific exceptions to the Oklahoma Open Records Act or in the statutes which authorize, create or require the records. Except where specific state or federal statutes create a confidential privilege, persons who submit information to public bodies have no right to keep this information from public access nor reasonable expectation that this information will be kept from public access; provided, the person, agency or political subdivision shall at all times bear the burden of establishing such records are protected by such a confidential privilege. Except as may be required by other statutes, public bodies do not need to follow any procedures for providing access to public records except those specifically required by the Oklahoma Open Records Act.
51 O.S. § 24A.2.
In 1993, the Oklahoma Supreme Court recognized that the legislature had disagreed with the court's creation of an administrative procedure to protect alleged privacy interests.
These amendments [51 O.S. § 24A.2.] to the Oklahoma Open Records Act show beyond credible argument to the contrary that the legislature disagreed with our interpretation, in Tulsa Tribune, of the Act. . . . Given this strong public policy it is not surprising that the Act, as amended, grants no right to notice and hearing, or any other procedural protection, with respect to the records covered by the Act's terms. Further, the Act relieves public bodies of any obligation to provide any procedural protection not 'specifically required' by the Act or another statute. These provisions ensure that the public will have 'prompt and reasonable access' to governmental records.
City of Lawton v. Moore, 1993 OK 168, 868 P.2d 690, 692.
In 1996, the Oklahoma Court of Appeals reiterated the Supreme Court's conclusion.
There is, however, no provision in the Open Records Act which allows a court to balance an individual's interest in having records remain private and the public's interest in having access to the records. The Legislature has determined by statute that the public's interest is greater, except where specific statutory exemption is given.
State of Oklahoma v. Migliaccio, 1996 OK CIV APP 37, 917 P.2d 483.
The Appeals Court stated that:
In City of Lawton, the Court, notwithstanding its holding in Tulsa Tribune that notice must be given to persons affected by release of records, held Lawton was not required to give notice under the amended Act which said public bodies need follow only those procedures in the Act. The Supreme Court found the amended Act's lack of a notice requirement was intended by the Legislature to ensure the public had prompt and reasonable access to governmental records.
In 2009, however, an opinion issued by the Oklahoma Attorney General essentially revived the notion that an individual must be given notice before the public body can release certain information about the individual. The Attorney General noted that “the presumption would be that they [dates of birth] are open unless the exception [for privacy] is (1) claimed and (2) found to outweigh the public interest in the requested record.” He further wrote that a “general policy prohibiting disclosure would constitute a legislative determination beyond the authority of the public body.” 2009 OK AG 33. At issue in this opinion was the right of public bodies to deny access to portions of public documents containing identifying information (such as birth dates) of public employees. As a result of the opinion, litigation has ensued between the public employees association and several new media outlets as to the private nature of this identifying information. If the public bodies continue to deny access to identifying information about public personnel, the public will be unable to correctly discern from the name alone who is the subject of public action. This will lead to misidentifications causing more harm than the alleged privacy claim. Despite this concern, the Supreme Court has held that release of birth dates and employee identification number of state employees would constitute a clearly unwarranted invasion of personal privacy. Okla. Public Employees Assoc. v. State ex rel Okla. Office of Personnel Management, 2011 OK 68.
Open Meeting Act
While the Act has been improved through the years, there are still problem areas remaining. Two of the more important areas of concern from the inception of the Act have centered upon enforcement of the Act and the definition of committees and subgroups which fall under the Act. These issues remain today.
Criminal Enforcement. The 1990s saw a greater effort on the part of some law enforcement officials to enforce the Open Meeting Act through criminal prosecutions. On at least three occasions, criminal complaints have been filed against public officials for alleged violations of the Act. While two of the cases against public officials were dismissed — and the dismissals were upheld by the Oklahoma Court of Criminal Appeals in unreported cases — one case resulted in three members of a city commission pleading guilty to two misdemeanor counts involving violations of the Act.
In the one case where guilty pleas were entered, the commissioners had been accused of meeting among themselves and deciding to fire the city manager and replace him with another individual. Suspicion was first raised when both actions were taken without any discussion during the public meeting. A district attorney's investigator subsequently uncovered the times and locations of the meetings in which the three commissioners had made the decisions.
While the other two criminal prosecutions were dismissed by the Courts, one did lead to a change in the Act. Members of a board were charged with violating the Act when they refused to allow a member of the public to tape record the public meeting. The charges were dismissed because the Court found the Act did not specifically allow the public to tape record meetings. While the case was on appeal, the Oklahoma legislature amended the Act to include a provision for the public to record — with audio or video machines — the public meetings.
It is today very difficult to obtain a criminal prosecution of a violation of the Act. This is true even though there has been an increase in civil actions that have resulted in determinations that public bodies had violated the Act.
Committees Appointed by Public Bodies. In 1978, in a case which was appealed prior to but considered after the present Open Meeting Act was passed by the legislature, the Oklahoma Supreme Court upheld a lower court decision that a subcommittee was merely advisory in nature and therefore not subject to the Act. The lower court decision was, at least in part, why the Act was amended. In Sanders v. Benton, 1978 Okla. 53, 579 P.2d 815, the Supreme Court considered a challenge to the Board of Corrections' selection of a community treatment center site because the board's selection had been made based on recommendations by a citizens' advisory committee which did not hold any open meetings. The Court concluded that the committee was merely acting in an advisory capacity and thus would not be subject to the Act.
If Sanders had been decided under the amended Act, the result may have been different because a specific definition of public bodies is contained in the new Act. This definition includes virtually all groups who are appointed by and have dealings with elected public bodies and officials. The key language in the Act now provides that any entity "supported in whole or in part by public funds, or entrusted with the expending of public funds, or administering public property" shall be a "public body" for purposes of the Open Meeting Act.
However, the Supreme Court has subsequently addressed the applicability of the Sanders decision under the new law and has specifically upheld its application. International Ass'n of Firefighters, Local No. 2479 v. Thorpe, 1981 OK 95, 632 P.2d 408. The issue in International Ass’n of Firefighters was whether Sanders extended to individuals. The City Manager engaged in negotiations with the firefighters on the collective bargaining agreement. The Court held the that the City Manager did not have the authority to bind city to an agreement and thus the collective bargaining negotiations were not open meetings.
Thus, an advisory committee created by a public body and having no actual or de facto decision-making authority is not subject to the Act.
The State of Oregon has a long tradition of extensive public participation in state and local government. The initiative, recall and referendum were all born in Oregon in 1902, introduced by W.S. U’Ren. Oregon’s modern open government era began in 1973 with the passage of the Oregon Public Records Law and its companion law, the Oregon Public Meetings Law (together, “Public Records and Meetings Laws”).
The impetus for the 1973 enactment of the records and meetings statutes came from the Oregon Newspaper Publishers Association and a dedicated core of legislators who agreed that these issues should be handled comprehensively rather than on a case-by-case approach. They created a statutory scheme granting individuals and media representatives extensive access to the affairs of government. Introductory statements directing openness are found in both the Public Records and Meetings Laws. Withholding and closure are the exceptions. Statutory exemptions to disclosure are strictly construed in favor of disclosure.
The Oregon Legislature passed a series of amendments to the Oregon Public Records Law in 2017. A number of the substantive revisions are addressed in this guide. It is worth noting that a result of those amendments has been the renumbering of statutory references that had been in place for decades. This guide cites to the current Oregon Revised Statutes (ORS), 2017 Edition, with the corresponding former statutory citations included as well for reference.
Over the years, the state Department of Justice has played a central role in interpreting the Public Records and Meetings Laws and in aiding in their enforcement. The Attorney General publishes an updated Public Records and Meetings Manual (“Manual”) approximately every two years. It serves as a useful desk reference for many records and meetings questions. The Manual contains a review of all public records and public meetings statutes and an index and summary of Attorney General opinions. It also includes valuable commentary, including opinions about commonly raised questions.
The Manual is available online at no cost through the Oregon Department of Justice at: https://www.doj.state.or.us/oregon-department-of-justice/public-records/attorney-generals-public-records-and-meetings-manual/
We strongly recommend consulting the Manual on every Oregon public records or public meetings issue.
Largely as a result of heightened public and media awareness about the Public Records and Meetings Laws, political and commercial special interests have routinely sought legislative help in curtailing access to certain types of records and proceedings considered to be proprietary, private or of a sensitive economic or personal nature. This has resulted in a variety of statutes found outside of the Public Records and Meetings Laws which contain disclosure restrictions. One of the laws enacted in 2017 by the Oregon Legislature (HB 2101) established a “Sunshine Committee” that is tasked with reviewing these exemptions and exceptions and making recommendations to future legislatures as to their continued need and effectiveness. See ORS 192.511.
A number of things remain to be wished for with regard to open government in Oregon:
- The cost of obtaining records has escalated and made some important searches prohibitive. Moreover, the law on fee waivers for matters truly in the public interest could use strengthening.
- Open government advocates have long sought establishment of an ombudsman, with expertise in public records and public meetings, who might more efficiently, quickly and consistently resolve disputes. The 2017 laws took a significant step in this direction, creating a Public Records Advocate with authority to address certain (but not all) types of records disputes, as discussed more below.
- Appeals of public records litigation can take years; they should be expedited, like mandamus proceedings.
Despite these continuing challenges, there is reason for optimism. The amendments to the Public Records Law that passed in 2017 are encouraging and may signal a renewed commitment on the part of policymakers to continue to improve on the legacy of transparency.
Open Records. Rhode Island enacted its open records statute, the Access to Public Records Act ("APRA"), R.I. Gen. Laws §§ 38-2-1 et seq., in 1979, making it the forty-ninth state to pass such legislation. The APRA was substantially amended in 1991 and 1998.
Prior to the passage of the APRA, the common law gave a right of inspection of public records to only those persons who “ha[d] an interest therein which was such as would enable them to maintain or defend an action for which the document or record sought could furnish evidence or necessary information.” Daluz v. Hawksley, 116 R.I. 49, 351 A.2d 820 (1976).
The preamble of the APRA supplies a clear statement of its legislative intent. It reads:
The public's right to access to public records and the individual's right to dignity and privacy are both recognized to be principles of the utmost importance in a free society. The purpose of this chapter is to facilitate public access to public records. It is also the intent of this chapter to protect from disclosure information about particular individuals maintained in the files of public bodies when disclosure would constitute an unwarranted invasion of personal privacy. R.I. Gen. Laws § 38-2-1 (1998).
In Providence Journal Co. v. Sundlun, 616 A.2d 1131 (R.I. 1992), the court held that the underlying policy of the Act favors the free flow and disclosure of information to the public. However, the legislature does not intend to empower the press and the public with carte blanch to demand all records held by public agencies.
Open Meetings. The Rhode Island Open Meetings Law ("OML"), R.I. Gen. Laws §§ 42-46-1 et seq., was enacted in 1976. The public policy of the OML is set forth in its preamble. It provides:
It is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy. R.I. Gen. Laws § 42-46-1.
The South Carolina Constitution does not provide any specific guidance regarding a citizen’s right to request for information from the state and local governments nor does it provide a citizen’s right of access to the meetings of government. However, the state Constitution does exhibit a preference for transparency in governmental activities as exhibited in Article 3, Section 23: “The doors of each house [of the state’s bicameral legislature] shall be open.”
South Carolina first adopted a freedom of information act to provide access to the meetings and records of governmental institutions in 1974. The first significant Supreme Court test for the act revealed substantial weaknesses in the law resulting in a major revision in 1978. Between 1978 and 1987 the South Carolina Press Association saw the need for further revisions in the legislation, particularly in the provision which allowed governmental bodies to create their own exemptions from the open records requirements and the provision which allowed votes in closed sessions of the meetings of governmental bodies. At the time the press group was seeking an overhaul of the law the president of the University of South Carolina became embroiled in a very public controversy regarding the expenditure of University funds apparently without oversight or documentation. As a consequence of the groundswell of public pressure, the legislature adopted major revisions proposed by the association. Additional revisions were enacted in 2017 following increased scrutiny of law enforcement shootings which addressed exemptions for police records and provided a streamlined request and litigation process for the release of police dash cam footage that shows officer’s use of deadly force. The law is followed reasonably well by state agencies and bodies, but the political culture of local government bodies, particularly school boards and city and county councils, seems to stimulate noncompliance. The South Carolina Supreme Court has been decidedly in favor of open records and meetings since its earliest decisions.
In 2009, the South Dakota Legislature enacted a relatively comprehensive open records law that finally established a clear presumption that government records were open records in the absence of specific law to exempting or excluding it. Although there have been some statutory tweaks to the law, as well as lower court and administrative decisions, the South Dakota Supreme Court––the only state appellate-level court––has had limited occasion to interpret the law.
1-27-1. Public records open to inspection and copying
Except as otherwise expressly provided by statute, all citizens of this state, and all other persons interested in the examination of the public records, as defined in §1-27-1.1, are hereby fully empowered and authorized to examine such public record, and make memoranda and abstracts therefrom during the hours the respective offices are open for the ordinary transaction of business and, unless federal copyright law otherwise provides, obtain copies of public records in accordance with this chapter.
Each government entity or elected or appointed government official shall, during normal business hours, make available to the public for inspection and copying in the manner set forth in this chapter all public records held by that entity or official.
1-27-1.1. Public records defined
Unless any other statute, ordinance, or rule expressly provides that particular information or records may not be made public, public records include all records and documents, regardless of physical form, of or belonging to this state, any county, municipality, political subdivision, or tax-supported district in this state, or any agency, branch, department, board, bureau, commission, council, subunit, or committee of any of the foregoing. Data which is a public record in its original form remains a public record when maintained in any other form. For the purposes of §§1-27-1 to 1-27-1.15, inclusive, a tax- supported district includes any business improvement district created pursuant to chapter 9-55.
1-27-1.2. Fees for specialized service
If a custodian of a public record of a county, municipality, political subdivision, or tax-supported district provides to a member of the public, upon request, a copy of the public record by transmitting it from a modem to an outside modem, a reasonable fee may be charged for such specialized service. Such fee may include a reasonable amount representing a portion of the amortization of the cost of computer equipment, including software, necessarily added in order to provide such specialized service. This section does not require a governmental entity to acquire computer capability to generate public records in a new or different form if that new form would require additional computer equipment or software not already possessed by the governmental entity.
No fee may be charged for the electronic transfer of any minutes of open meeting actions of a political subdivision, board or agency of a political subdivision, or the governing board of an agency that levies property taxes that were recorded in the last three years.
1-27-1.3. Liberal construction of public access to public records law––Certain criminal investigation and contract negotiation records exempt
The provisions of §§1-27-1 to 1-27-1.15, inclusive, and 1-27-4 shall be liberally construed whenever any state, county, or political subdivision fiscal records, audit, warrant, voucher, invoice, purchase order, requisition, payroll, check, receipt, or other record of receipt, cash, or expenditure involving public funds is involved in order that the citizens of this state shall have the full right to know of and have full access to information on the public finances of the government and the public bodies and entities created to serve them. Use of funds as needed for criminal investigatory/confidential informant purposes is not subject to this section, but any budgetary information summarizing total sums used for such purposes is public. Records which, if disclosed, would impair present or pending contract awards or collective bargaining negotiations are exempt from disclosure.
1-27-1.4. Denial letter to be kept on file
Each public body shall maintain a file of all letters of denial of requests for records. This file shall be made available to any person on request.
1-27-1.5. Certain records not open to inspection and copying
The following records are not subject to §§1-27-1 to 1-27-1.1, and 1-27-1.3:
(1) Personal information in records regarding any student, prospective student, or former student of any educational institution if such records are maintained by and in the possession of a public entity, other than routine directory information specified and made public consistent with 20 U.S.C. 1232g, as such section existed on January 1, 2009;
(2) Medical records, including all records of drug or alcohol testing, treatment, or counseling, other than records of births and deaths. This law in no way abrogates or changes existing state and federal law pertaining to birth and death records;
(3) Trade secrets, the specific details of bona fide research, applied research, or scholarly or creative artistic projects being conducted at a school, postsecondary institution or laboratory funded in whole or in part by the state, and other proprietary or commercial information which if released would infringe intellectual property rights, give advantage to business competitors, or serve no material public purpose;
(4) Records which consist of attorney work product or which are subject to any privilege recognized in article V of chapter 19-19;
(5) Records developed or received by law enforcement agencies and other public bodies charged with duties of investigation or examination of persons, institutions, or businesses, if the records constitute a part of the examination, investigation, intelligence information, citizen complaints or inquiries, informant identification, or strategic or tactical information used in law enforcement training. However, this subdivision does not apply to records so developed or received relating to the presence of and amount or concentration of alcohol or drugs in any body fluid of any person, and this subdivision does not apply to a 911 recording or a transcript of a 911 recording, if the agency or a court determines that the public interest in disclosure outweighs the interest in nondisclosure. This law in no way abrogates or changes §§23-5-7 and 23-5-11 or testimonial privileges applying to the use of information from confidential informants;
(6) Appraisals or appraisal information and negotiation records concerning the purchase or sale, by a public body, of any interest in real or personal property;
(7) Personnel information other than salaries and routine directory information; However, this subdivision does not apply to the public inspection or copying of any current or prior contract with any public employee and any related document that specifies that consideration to be paid to the employee;
(8) Information solely pertaining to protection of the security of public or private property and persons on or within public or private property, such as specific, unique vulnerability assessments or specific, unique response plans, either of which is intended to prevent or mitigate criminal acts, emergency management or response, or public safety, the public disclosure of which would create a substantial likelihood of endangering public safety or property; computer or communications network schema, passwords, and user identification names; guard schedules; lock combinations; or any blueprints, building plans, or infrastructure records regarding any building or facility that expose or create vulnerability through disclosure of the location, configuration, or security of critical systems;
(9) The security standards, procedures, policies, plans, specifications, diagrams, access lists, and other security-related records of the Gaming Commission and those persons or entities with which the commission has entered into contractual relationships. Nothing in this subdivision allows the commission to withhold from the public any information relating to amounts paid persons or entities with which the commission has entered into contractual relationships, amounts of prizes paid, the name of the prize winner, and the municipality, or county where the prize winner resides;
(10) Personally identified private citizen account payment information, credit information on others supplied in confidence, and customer lists;
(11) Records or portions of records kept by a publicly funded library which, when examined with or without other records, reveal the identity of any library patron using the library's materials or services;
(12) Correspondence, memoranda, calendars or logs of appointments, working papers, and records of telephone calls of public officials or employees;
(13) Records or portions of records kept by public bodies which would reveal the location, character, or ownership of any known archaeological, historical, or paleontological site in South Dakota if necessary to protect the site from a reasonably held fear of theft, vandalism, or trespass. This subdivision does not apply to the release of information for the purpose of scholarly research, examination by other public bodies for the protection of the resource or by recognized tribes, or the federal Native American Graves Protection and Repatriation Act;
(14) Records or portions of records kept by public bodies which maintain collections of archeological, historical, or paleontological significance which nongovernmental donors have requested to remain closed or which reveal the names and addresses of donors of such articles of archaeological, historical, or paleontological significance unless the donor approves disclosure, except as the records or portions thereof may be needed to carry out the purposes of the federal Native American Graves Protection and Repatriation Act and the Archeological Resources Protection Act;
(15) Employment applications and related materials, except for applications and related materials submitted by individuals hired into executive or policymaking positions of any public body;
(16) Social security numbers; credit card, charge card, or debit card numbers and expiration dates; passport numbers, driver license numbers; or other personally identifying numbers or codes; and financial account numbers supplied to state and local governments by citizens or held by state and local governments regarding employees or contractors;
(17) Any emergency or disaster response plans or protocols, safety or security audits or reviews, or lists of emergency or disaster response personnel or material; any location or listing of weapons or ammunition; nuclear, chemical, or biological agents; or other military or law enforcement equipment or personnel;
(18) Any test questions, scoring keys, results, or other examination data for any examination to obtain licensure, employment, promotion or reclassification, or academic credit;
(19) Personal correspondence, memoranda, notes, calendars or appointment logs, or other personal records or documents of any public official or employee;
(20) Any document declared closed or confidential by court order, contract, or stipulation of the parties to any civil or criminal action or proceeding;
(21) Any list of names or other personally identifying data of occupants of camping or lodging facilities from the Department of Game, Fish and Parks;
(22) Records which, if disclosed, would constitute an unreasonable release of personal information;
(23) Records which, if released, could endanger the life or safety of any person;
(24) Internal agency record or information received by agencies that are not required to be filed with such agencies, if the records do not constitute final statistical or factual tabulations, final instructions to staff that affect the public, or final agency policy or determinations, or any completed state or federal audit and if the information is not otherwise public under other state law, including chapter 15-15A and §1-26-21;
(25) Records of individual children regarding commitment to the Department of Corrections pursuant to chapters 26-8B and 26-8C;
(26) Records regarding inmate disciplinary matters pursuant to §1-15-20; and
(27) Any other record made closed or confidential by state or federal statute or rule or as necessary to participate in federal programs and benefits.
1-27-1.6. Certain financial, commercial, and proprietary information exempt from disclosure
The following financial, commercial, and proprietary information is specifically exempt from disclosure pursuant to §§1-27-1 to 1-27-1.15, inclusive:
(1) Valuable formulae, designs, drawings, computer source code or object code, and research data invented, discovered, authored, developed, or obtained by any agency if disclosure would produce private gain or public loss;
(2) Financial information supplied by or on behalf of a person, firm, or corporation for the purpose of qualifying to submit a bid or proposal;
(3) Financial and commercial information and records supplied by private persons pertaining to export services;
(4) Financial and commercial information and records supplied by businesses or individuals as part of an application for loans or program services or application for economic development loans or program services;
(5) Financial and commercial information, including related legal assistance and advice, supplied to or developed by the state investment council or the division of investment if the information relates to investment strategies or research, potential investments, or existing investments of public funds;
(6) Proprietary data, trade secrets, or other information that relates to:
(a) A vendor's unique methods of conducting business;
(b) Data unique to the product or services of the vendor; or
(c) Determining prices or rates to be charged for services, submitted by any vendor to any public body;
(7) Financial, commercial, and proprietary information supplied in conjunction with applications or proposals for funded scientific research, for participation in joint scientific research projects, for projects to commercialize scientific research results, or for use in conjunction with commercial or government testing;
(8) Any production records, mineral assessments, and trade secrets submitted by a permit holder, mine operator, or landowner to any public body.
1-27-1.7. Certain drafts, notes, and memoranda exempt from disclosure
Drafts, notes, recommendations, and memoranda in which opinions are expressed or policies formulated or recommended are exempt from disclosure pursuant to §§1-27-1 to 1-27-1.15, inclusive.
1-27-1.8. Certain records, relevant to court actions, exempt from disclosure
Any record that is relevant to a controversy to which a public body is a party but which record would not be available to another party under the rules of pretrial discovery for causes pending in circuit court are exempt from disclosure pursuant to §§1-27-1 to 1-27-1.15, inclusive.
1-27-1.9. Documents or communications used for decisional process arising from person’s official duties not subject to compulsory disclosure
No elected or appointed official or employee of the state or any political subdivision may be compelled to provide documents, records, or communications used for the purpose of the decisional or deliberative process relating to any decision arising from that person's official duties. Any document that is otherwise already public is not made confidential by reason of having been used in deliberations.
1-27-1.10. Redaction of certain information
In response to any request pursuant to § 1-27-36 or 1-27-37, a public record officer may redact any portion of a document which contains information precluded from public disclosure by § 1-27-3 or which would unreasonably invade personal privacy, threaten public safety and security, disclose proprietary information, or disrupt normal government operations. A redaction under this section is considered a partial denial for the application of §1-27-37.
1-27-1.11. Subscription or license holder list of Department of Game, Fish and Parks and certain insurance applicant and policyholder information available for fee––Resale or redistribution prohibited––Misdemeanor
Any subscription or license holder list maintained by the Department of Game, Fish and Parks may be made available to the public for a reasonable fee. State agencies are exempt from payment of this fee for approved state use. The Game, Fish and Parks Commission may promulgate rules pursuant to chapter 1-26 to establish criteria for the sale and to establish the fee for the sale of such lists.
Any automobile liability insurer licensed in the state, or its certified authorized agent, may have access to the name and address of any person licensed or permitted to drive a motor vehicle solely for the purpose of verifying insurance applicant and policyholder information. An insurer requesting any such name and address shall pay a reasonable fee to cover the costs of producing such name and address. The Department of Public Safety shall set such fee by rules promulgated pursuant to chapter 1-26.
Any list released or distributed under this section may not be resold or redistributed. Violation of this section by the resale or redistribution of any such list is a Class 2 misdemeanor.
1-27-1.12. Chapter inapplicable to Unified Judicial System
The provisions of this chapter do not apply to records and documents of the Unified Judicial System.
1-27-1.13. Certain records not available to inmates
The secretary of corrections may prohibit the release of information to inmates or their agents regarding correctional operations, department policies and procedures, and inmate records of the requesting inmate or other inmates if the release would jeopardize the safety or security of a person, the operation of a correctional facility, or the safety of the public. This section does not apply to an inmate's attorney requesting information that is subject to disclosure under this chapter.
1-27-1.14. Redaction of records in office of register of deeds not required
This chapter does not require the redaction of any record, or any portion of a record, which is recorded in the office of the register of deeds prior to July 1, 2010.
1-27-1.15. Immunity for good faith denial or provision of record
No civil or criminal liability may attach to a public official for the mistaken denial or provision of a record pursuant to this chapter if that action is taken in good faith.
1-27-1.16. Material relating to open meeting agenda item to be available--Exceptions--Violation as misdemeanor.
If a meeting is required to be open to the public pursuant to § 1-25-1 and if any printed material relating to an agenda item of the meeting is prepared or distributed by or at the direction of the governing body or any of its employees and the printed material is distributed before the meeting to all members of the governing body, the material shall either be posted on the governing body's website or made available at the official business office of the governing body at least twenty-four hours prior to the meeting or at the time the material is distributed to the governing body, whichever is later. If the material is not posted to the governing body's website, at least one copy of the printed material shall be available in the meeting room for inspection by any person while the governing body is considering the printed material. However, the provisions of this section do not apply to any printed material or record that is specifically exempt from disclosure under the provisions of this chapter or to any printed material or record regarding the agenda item of an executive or closed meeting held in accordance with § 1-25-2. A violation of this section is a Class 2 misdemeanor. However, the provisions of this section do not apply to printed material, records, or exhibits involving contested case proceedings held in accordance with the provisions of chapter 1-26.
1-27-1.17. Draft minutes of public meeting to be available--Exceptions--Violation as misdemeanor.
The unapproved, draft minutes of any public meeting held pursuant to § 1-25-1 that are required to be kept by law shall be available for inspection by any person within ten business days after the meeting. However, this section does not apply if an audio or video recording of the meeting is available to the public on the governing body's website within five business days after the meeting. A violation of this section is a Class 2 misdemeanor. However, the provisions of this section do not apply to draft minutes of contested case proceedings held in accordance with the provisions of chapter 1-26.
1-27-1.18. Recommendations, findings, and reports of appointed working groups to be reported in open meeting--Action by governing body.
Any final recommendations, findings, or reports that result from a meeting of a committee, subcommittee, task force, or other working group which does not meet the definition of a political subdivision or public body pursuant to § 1-25-1, but was appointed by the governing body, shall be reported in open meeting to the governing body which appointed the committee, subcommittee, task force, or other working group. The governing body shall delay taking any official action on the recommendations, findings, or reports until the next meeting of the governing body.
1-27-1.19. Public access to records of former Governors and lieutenant governors.
The records of any Governor and any lieutenant governor are the property of the state and shall be transferred to his or her successor or the state archivist upon leaving office. Once transferred, public access to such records is subject to the provisions of chapter 1-27.
1-27-1.20. Exempt records to be opened upon death or ten years after leaving office.
Unless released to the public pursuant to § 1-27-1.21, any record of an officer designated in § 1-27-1.19, exempted from the provisions of § 1-27-1, shall be opened to the public upon either the death of the former officer or ten years from the date the officer left office, whichever transpires last.
1-27-1.21. Right of former Governor and lieutenant governor to approve or deny release of exempt records.
Whenever an officer designated in § 1-27-1.19 leaves office and transfers his or her records to the state archivist, the former officer shall retain the right to approve or deny the release of any record exempted from the provisions of § 1-27-1. The former officer may exercise that right either personally or may designate in writing a person to do so to the archivist.
1-27-1.22. Agreement for transfer of records to suitable repository.
The state archivist may enter into agreements with any officer designated in § 1-27-1.19 for the transfer of the former officer's records to a museum, institution of higher learning, or other suitable repository within South Dakota upon determining that such repository will allow for the preservation, study, and public access of such records consistent with §§ 1-27-1.19 to 1-27-1.21, inclusive. Such agreements shall be entered into only after a public hearing.
1-27-3. Records declared confidential or secret.
Section 1-27-1 shall not apply to such records as are specifically enjoined to be held confidential or secret by the laws requiring them to be so kept.
1-27-4. Format of open record
Any record made open to the public pursuant to this chapter shall be maintained in its original format or in any searchable and reproducible electronic or other format. This chapter does not mandate that any record or document be kept in a particular format nor does it require that a record be provided to the public in any format or media other than that in which it is stored.
1-27-4.1. Format of written contracts––Storage with records retention officer or designee––Duration
Any written contract entered by the state, a county, a municipality, or a political subdivision shall be retained in the contract’s original format or a searchable and reproducible format. Each contract shall be stored with the records retention officer of that entity or with the designee of the records retention officer unless the contract is required by law to be retained by some other person. Each contract shall be stored during the term of the contract and for two years after the expiration of the contract term.
1-27-4.2. Availability of contract through internet website or database
Any contract retained pursuant to §1-27-4.1 may be made available to the public through a publicly accessible internet website or database.
In advance of the new open records law, the 2009 legislature passed a bill that created a formalized record request process, including a hearing and appeal procedure in contested cases. Those provisions are as follows:
1-27-35. Informal requests for disclosure of records--Costs of retrieval or reproduction.
Any informal request for disclosure of documents or records shall be made to the custodian of the record. The custodian of the record may then provide the requestor with the document or record upon payment of the actual cost of mailing or transmittal, the actual cost of reproduction, or other fee established by statute or administrative rule. A requestor that makes an informal request requiring the dedication of staff time in excess of one hour may be required to pay the cost of the staff time necessary for the location, assembly, or reproduction of the public record. If any records are required or permitted to be made public upon request and no other rate is prescribed for reproduction or retrieval of such records, the Bureau of Administration shall establish, by rules promulgated pursuant to chapter 1-26, the maximum rate, or the formula for calculating rates, for reproduction and retrieval.
1-27-36. Estimate of retrieval and reproduction cost--Waiver or reduction of fee.
For any informal request reasonably likely to involve a fee in excess of fifty dollars, the custodian shall provide an estimate of cost to the requestor prior to assembling the documents or records and the requestor shall confirm in writing his or her acceptance of the cost estimate and agreement to pay. The custodian may exercise discretion to waive or reduce any fee required under this section if the waiver or reduction of the fee would be in the public interest.
1-27-37. Written request for disclosure of records.
If an informal request is denied in whole or in part by the custodian of a document or record, a written request may be made by the requestor pursuant to this section:
(1) A written request may be made to the public record officer of the public entity involved. The public record officer shall promptly respond to the written request but in no event later than ten business days from receipt of the request. The public record officer shall respond to the request by:
(a) Providing the record in whole or in part to the requestor upon payment of any applicable fees pursuant to §§ 1-27-35 and 1-27-36;
(b) Denying the request for the record; or
(c) Acknowledging that the public record officer has received the request and providing an estimate of the time reasonably required to further respond thereto;
(2) Additional time to respond to the written request under subsection (1)(c) of this section may be based upon the need to clarify the nature and scope of the written request, to locate and assemble the information requested, to notify any third persons or government agencies affected by the written request, or to determine whether any of the information requested is not subject to disclosure and whether a denial should be made as to all or part of the written request;
(3) If a written request is unclear, the public record officer may require the requestor to clarify which records are being sought. If the requestor fails to provide a written response to the public record officer's request for clarification within ten business days, the request shall be deemed withdrawn and no further action by the public records officer is required;
(4) If the public record officer denies a written request in whole or in part, the denial shall be accompanied by a written statement of the reasons for the denial;
(5) If the public record officer fails to respond to a written request within ten business days, or fails to comply with the estimate provided under subsection (1)(3) of this section without provision of a revised estimate, the request shall be deemed denied.
1-27-38. Civil action or administrative review of denial of written request or estimate of fees.
If a public record officer denies a written request in whole or in part, or if the requestor objects to the public record officer's estimate of fees or time to respond to the request, a requestor may within ninety days of the denial commence a civil action by summons or, in the alternative, file a written notice of review with the Office of Hearing Examiners. The notice of review shall be mailed, via registered or certified mail, to the Office of Hearing Examiners and shall contain:
(1) The name, address, and telephone number of the requestor;
(2) The name and business address of the public record officer denying the request;
(3) The name and business address of the agency, political subdivision, municipal corporation, or other entity from which the request has been denied;
(4) A copy of the written request;
(5) A copy of any denial or response from the public record officer; and
(6) Any other information relevant to the request that the requestor desires to be considered.
1-27-39. Response to notice of review.
Upon receipt, the Office of Hearing Examiners shall promptly mail a copy of the notice of review filed pursuant to § 1-27-38 and all information submitted by the requestor to the public record officer named in the notice of review. The entity denying the written request may then file a written response to the Office of Hearing Examiners within ten business days. If the entity does not file a written response within ten business days, the Office of Hearing Examiners shall act on the information provided. The Office of Hearing Examiners shall provide a reasonable extension of time to file a written response upon written request or agreement of parties.
1-27-40. Findings and decision of Office of Hearing Examiners.
Upon receipt and review of the submissions of the parties, the Office of Hearing Examiners shall make written findings of fact and conclusions of law, and a decision as to the issue presented. Before issuing a decision, the Office of Hearing Examiners may hold a hearing pursuant to chapter 1-26 if good cause is shown.
1-27-40.1. Time for compliance with decision or appeal.
If the office of hearing examiners enters a decision pursuant to § 1-27-40 concluding that certain records shall be released or that the fee charged pursuant to §§ 1-27-35 and 1-27-36 was excessive, the public entity has thirty days after the opinion is issued to comply with the order or to file an appeal pursuant to § 1-27-41.
1-27-40.2. Costs, disbursements, and civil penalty for unreasonable, bad faith denial of access.
In a civil action filed pursuant to § 1-27-38 or upon an appeal filed pursuant to § 1-27-41, if the court determines that the public entity acted unreasonably and in bad faith the court may award costs, disbursements, and a civil penalty not to exceed fifty dollars for each day that the record or records were delayed through the fault of the public entity. Any civil penalty collected pursuant to this section shall be deposited into the state general fund.
The aggrieved party may appeal the decision of the Office of Hearing Examiners to the circuit court pursuant to chapter 1-26. In any action or proceeding under §§ 1-27-35 to 1-27-43, inclusive, no document or record may be publicly released until a final decision or judgment is entered ordering its release.
1-27-42. Public record officer for the state, county, municipality, township, school district, special district, or other entity.
The public record officer for the state is the secretary, constitutional officer, elected official, or commissioner of the department, office, or other division to which a request is directed. The public record officer for a county is the county auditor or the custodian of the record for law enforcement records. The public record officer for a first or second class municipality is the finance officer or the clerk or the custodian of the record for law enforcement records. The public record officer for a third class municipality is the president of the board of trustees or the custodian of the record for law enforcement records. The public record officer for an organized township is the township clerk. The public record officer for a school district is the district superintendent or CEO. The public record officer for a special district is the chairperson of the board of directors. The public record officer for any other entity not otherwise designated is the person who acts in the capacity of the chief financial officer or individual as designated by the entity.
1-27-43. Form of notice of review--Office of Hearing Examiners' notice.
The following forms are prescribed for use in the procedures provided for in §§ 1-27-35 to 1-27-42, inclusive, but failure to use or fill out completely or accurately any of the forms does not void acts done pursuant to those sections provided compliance with the information required by those sections is provided in writing.
NOTICE OF REVIEW
REQUEST FOR DISCLOSURE OF PUBLIC RECORDS
Date of Request: ________________________________________
Name of Requestor: ________________________________________
Address of Requestor: ________________________________________
Telephone Number of Requestor: ________________________________________
Type of Review Being Sought:
______ Request for Specific Record
______ Estimate of Fees
______ Estimate of Time to Respond
Short Explanation of Review Being Sought Including Specific Records Requested:
Name of Public Record Officer: ________________________________________
Address of Public Record Officer: ________________________________________
Name of Governmental Entity: ________________________________________
Address of Governmental Entity: ________________________________________
You must include with the submission of this Notice of Review--Request for Disclosure of Public Records form the following information: (1) A copy of your written request to the public record officer; (2) A copy of the public record officer's denial or response to your written request, if any; and (3) Any other information relevant to the request that you desire to be considered.
I hereby certify that the above information is true and correct to the best of my knowledge.
Signature of Requestor:___________________________________________________
The Notice of Review--Request for Disclosure of Public Records form shall be completed and submitted, via registered or certified mail, return receipt, to the following address:
Office of Hearing Examiners
500 E. Capitol Avenue
Pierre, South Dakota 57501
SOUTH DAKOTA OFFICE OF HEARING EXAMINERS
NOTICE OF REQUEST FOR DISCLOSURE OF PUBLIC RECORDS
TO: (Public Record Officer & Governmental Entity) ______________________________ has filed a Notice of Review--Request for Disclosure of Public Records. A copy of the Notice of Review-- Request for Disclosure of Public Records is attached for your review.
You may file a written response to the Notice of Review--Request for Disclosure of Public Records within ten (10) business days of receiving this notice, exclusive of the day of service, at the following address:
Office of Hearing Examiners
500 E. Capitol Avenue
Pierre, South Dakota 57501
The Office of Hearing Examiners may issue its written decision on the information provided and will only hold a hearing if it deems a hearing necessary.
If you have any questions, please contact the Office of Hearing Examiners.
Dated this ____ day of ________________, 20____.
Office of Hearing Examiners
1-27-44. Restriction on internet use of social security numbers by state agencies and political subdivisions.
No state agency or any of its political subdivisions or any official, agent, or employee of any state agency or political subdivision may:
(1) Knowingly release or post any person's social security number on the internet; or
(2) Require any person to transmit the person's social security number over the internet, unless the connection is secure or the social security number is encrypted; or
(3) Require any person to use the person's social security number to access an internet website, unless a password or unique personal identification number or other authentication device is also required to access the internet website.
1-27-45. Searchable internet website for posting and access of public records and financial information.
The state shall maintain a searchable internet website for the posting and access of public records and financial information of the state, municipalities, counties, school districts, and other political subdivisions. The content and operation of the website shall be administered jointly by the Bureau of Administration, Bureau of Finance and Management, and Bureau of Information and Telecommunications.
1-27-46. Contracts to be displayed on searchable internet website.
The state shall display on the searchable internet website created pursuant to § 1-27-45 copies of each written contract for supplies, services, or professional services of ten thousand dollars or more, each written contract filed with the state auditor pursuant to § 1-24A-1, and each written contract filed with the attorney general pursuant to § 1-11-15. Each contract shall be displayed electronically not less than sixty days after commencement of the contract term and for not less than one year following the end of the contract term.
1-27-47. Affordability of public access to electronic records database.
A public entity that creates or maintains an electronic public records database or that enters into a contract for an electronic public records database shall consider the cost and affordability of public access.
1-27-48. Documentation regarding information stored in electronic records system.
A public entity shall make available, upon request, the following documentation for each electronic records system:
(1) A narrative description of the system purpose and functionality; and
(2) Such information as may be reasonably necessary for a member of the public to request the public information that is stored in the electronic records system.
Public records. Tennessee's Public Records Act, originally passed by the legislature in 1957, mandates that governmental entities grant full access to public records to every citizen of Tennessee. The legislative policy behind the Act is enunciated in the enforcement provision that directs courts to construe the Act broadly "so as to give the fullest possible access to public records." Tennessee Code Annotated ("T.C.A.") § 10-7-505(d) (1999). The original 1957 Act provided that "[a]ll state, county and municipal records" shall be open for inspection "unless otherwise provided by law or regulations made pursuant thereto." (Emphasis added.) In 1984, the legislature amended the emphasized portion to read: "unless otherwise provided by state statutes." The Tennessee Supreme Court has construed this amendment as reserving to the legislature alone the power to make exceptions to the accessibility of public records. Memphis Publishing Co. v. Holt, 710 S.W.2d 513, 517 (Tenn. 1986). In 1991, however, the specific language was further amended to read: "unless otherwise provided by state law." The change from "state statute" to "state law" arguably broadens the means of limiting access beyond the holding in Holt to include exemptions under common law privileges. The Public Records Act continues to go through many revisions. In addition to separate statutes throughout the Tennessee Code that create new exemptions to the Act, the Act itself has been subjected to several different pieces of legislation that modified the Act.
In 2008 the Public Records Act received substantial revisions to make it more user friendly. Changes to the Act included imposing a deadline for records custodians to respond to a request, and provisions to set a reasonable price for copies of records. Also in 2008, Tennessee created the Office of Open Records Counsel (“OORC”), as a department of the State Controller, to assist and advise public officials and the public, including the media, with open records issues. The OORC serves as an ombudsman that can mediate open records disputes and issue written opinions concerning open records issues. The OORC, and its Advisory Committee, may also review and make comments to the General Assembly on any legislation affecting Open Meetings. www.comptroller.tn.gov/openrecords
Open meetings. When the General Assembly enacted the Sunshine Law in 1974, Tennessee became the 46th state to fashion such legislation. A 1957 attempt to draft open meeting legislation died in committee. The legislature's source of authority to enact the Sunshine Law is Article 1, Section 19 of the Tennessee Constitution which provides: "That the printing presses shall be free to every person to examine the proceedings of the legislature; or of any branch or officer of the government, and no law shall ever be made to restrain the right thereof." The opening policy statement of the Tennessee Sunshine Act echoes and specifies this broad grant of the public's right to open government:
The general assembly hereby declares it to be the policy of this state that the formation of public policy and decisions is public business and shall not be conducted in secret. This part shall not be construed to limit any of the rights and privileges contained in Article I, § 19, of the constitution of the state of Tennessee.
T.C.A. §§ 8-44-101(a) and (b) (1995). The broad legislative mandate that "all meetings of any governing body . . . [be] open to the public at all times, except as provided by the Tennessee Constitution," T.C.A. § 8-44-102(a) (1995), has survived vigorous constitutional challenges that the law was vague, ambiguous, unreasonable, and arbitrary and chilled free speech. Dorrier v. Dark, 537 S.W.2d 888 (Tenn. 1976); Memphis Publishing Co. v. City of Memphis, 513 S.W.2d 511 (Tenn. 1974).
Thus, from its enactment, the Tennessee Sunshine Law has been construed as embodying the will of the people, speaking through their elected legislative representatives, that the benefits of open government be safeguarded through a statute that secures these benefits in broad terms. The definitional provisions of the Sunshine Law are equally sweeping. Instead of listing those government entities subject to public scrutiny, the law was enacted defines governing body to include "members of any public body which consists of two or more members, with the authority to make decisions for or recommendations to a public body on policy or administration." T.C.A. §§ 8-44-102(b)(1) (1995). This legislative history can be viewed as reflecting the lawmakers' intent that those governmental entities covered by the mandate of openness be construed expansively. Dorrier v. Dark, 537 S.W.2d at 891. Unfortunately, case law establishes that the Sunshine Law does not apply to the General Assembly itself. Mayhew v. Wilder, 46 S.W.3d 760 (Tenn. Ct. App. 2001).
Texas has a rich political heritage, one which has historically demonstrated a strong commitment to the free flow of information and open government. When Texas announced its independence from Mexico, its declaration stated: "[It] is an axiom in political science, that unless the people are educated and enlightened, it is idle to expect the continuance of civil liberty, or the capacity for self-government." The Declaration of Independence of Texas para. 11 (1836). This concept of government is borrowed, of course, from Thomas Jefferson, James Madison, and the rationale of the United States Constitution. It was Madison who wrote that, "a popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both. Knowledge will forever govern ignorance: and a people who mean to be their own governors must arm themselves with the power which knowledge gives." James Madison, letter to W.T. Berry (Aug. 4, 1822), reprinted in G.P. Hunt, The Writings of James Madison 103 (1910).
This concept of enlightened self-government was carried over to the Texas Constitutional Convention of 1845, when Texas joined the United States. In his opening remarks, Thomas J. Rusk, president of the convention, stated that: "The history of the world may be searched in vain for a parallel to the present instances of two governments amalgamating themselves into one, from a pure devotion to that great principle-that man, by sentiments with which his God has impressed, is capable of self-government." Texas Constitutional Convention of 1845, debates of the Texas Convention (William Weeks, reporter, 1846).
In the years that followed, Texas courts recognized a broad common law right of access to government information. The first reported case dealing with the common law right of access was Jenkins v. State, 75 S.W. 312, 312 (Tex. Crim. App. 1903), which dealt with access to pretrial material in a criminal case. In 1915, the San Antonio Court of Civil Appeals wrote a landmark opinion on the common law right of access, in Palacios v. Corbett, 172 S.W. 777 (Tex. Civ. App.-San Antonio 1915, writ ref'd). The Palacios case dealt with the right of a citizen taxpayer to inspect county auditing papers. Id. at 778.
The presumptive common law right of access to government information in Texas appears to be extremely strong absent a specific statute restricting public access. As the court said in Gill v. Snow, 644 S.W.2d 222, 224 (Tex. App.—Fort Worth 1982, no writ), "This State's policy has been found to be that all information kept by the government is of legitimate public concern unless the legislature rules that the need for confidentiality is outweighed by the public's right to know."
Nevertheless, it took a substantial government scandal to provide the impetus for passage of an open records statute and strengthening of the Texas Open Meetings Act. In 1972, the so-called Sharpstown scandal broke and resulted in the indictment and successful prosecution of a number of government officials. Other high government officials were put under a cloud of suspicion, although not indicted. In 1973, a reform-minded legislature strengthened the Texas Open Meetings Act, and passed the Texas Open Records Act, which the Texas legislature changed in 1995 to the Public Information Act. These acts are among the strongest in the nation. The first section of the Public Information Act underscores this point:
[E]ach person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.
Tex. Gov’t Code § 552.001(a) (West 2014); see also City of Garland v. Pub. Utility Comm’n, 165 S.W.3d 814, 820 (Tex. App.—Austin 2005, pet. denied) (“As a general rule, Texas public policy favors open records.”).
Both the Public Information Act and Open Meetings Act have been amended in recent years. One substantial threat to the Open Meetings Act occurred in the intermediate appellate decision of City of Abilene v. Shackelford, 572 S.W.2d 742 (Tex. Civ. App.—Amarillo 1978, writ granted), rev'd on other grounds, 585 S.W.2d 665 (Tex. 1979). In that case, an appellate court held that the press did not have standing to invoke the protections of the Open Meetings Act. Id. at 747. The act subsequently was amended to overrule the case, and Section 551.142 of the Texas Government Code (the "Code") now states that "[a]n interested person, including a member of the news media, may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of this chapter by members of a governmental body." Another amendment to the Open Meetings Act overruled an Attorney General's opinion that cameras were not authorized in public meetings. Section 551.023(a) of the Code now states, in part, that a "person in attendance may record all or any part of an open meeting of a governmental body by means of a tape recorder, video camera, or other means of aural or visual reproduction."
As early as 1995, the legislature amended the Public Information Act to bring it into the computer age and to more strictly regulate what governmental bodies may charge for copies of public information. The amendments also replaced all references in the statute to "public records," with "public information," to clarify that the statute applies to data held in computer memory banks or in audio or video form, as well as on paper. In addition, as a result of recent amendments, the statute now requires the Attorney General to render a decision within forty-five days of receiving a request, with a possible ten-day extension. Tex. Gov’t Code § 552.008(b-2); Texas Admin. Code § 70.11(d)(6)(D). Previously, the Attorney General's office took an average of three to six months to issue an opinion on an open records case.
In 2005, the legislature passed a bill requiring most elected and appointed public officials to take a training course on the Texas Public Information Act and the Texas Open Meetings Act. See Tex. Gov’t Code §§ 551.005, 552.012.
The 2019 legislative session saw significant focus on open government bills, with legislators passing more than a dozen new laws relating to open government. Chief among these efforts was closing two prominent loopholes—the so-called Boeing exception in the Public Information Act and the problem of “walking quorums” under the Open Meetings Act. At the same time, however, the legislature greatly expanded its own ability to withhold public information, through codification of a sweeping “legislative privilege.”
In a state as large as Texas, it is difficult to generalize about the attitude of state officials toward citizens' access to government information. It is safe to say, however, that there is a wide range of opinion on the issue. Many, if not most, state officials have a cooperative attitude and believe in the concept of open government. All in all, Texas' Public Information Act and Open Meetings Act are among the most liberal in the United States and a great deal of information is released pursuant to the terms of these statutes.
Utah’s statutory scheme guarantees public access to government records and meetings subject to certain exceptions discussed below.
Access to Government Records. Utah’s Government Records Access and Management Act (“GRAMA”) states that “[e]very person has the right to inspect a public record free of charge, and the right to take a copy of a public record . . . .” Utah Code § 63G-2-201(1). Under GRAMA, “a record is public unless otherwise expressly provided by statute.” Id. § 63G-2-201(2). For example, records classified as “private,” “controlled,” or “protected” are not public records. Id. § 63G-2-201(3)(a).
Enacted in 1991 and effective July 1, 1992, GRAMA replaced the “Information Practices Act” and the “Public and Private Writings Act,” both of which previously governed access to government records in Utah.
In enacting GRAMA, “the Legislature recognize[d] two constitutional rights: (a) the public’s right of access to information concerning the conduct of the public’s business; and (b) the right of privacy in relation to personal data gathered by governmental entities.” Id. § 63G-2-102(1). In addition, the Legislature “recognize[d] a public policy interest in allowing a government to restrict access to certain records . . . for the public good.” Id. § 63G-2-102(2). The Legislature also stated that GRAMA’s purpose was to:
(a) promote the public’s right of easy and reasonable access to unrestricted public records;
(b) specify those conditions under which the public interest in allowing restrictions on access to records may outweigh the public’s interest in access;
(c) prevent abuse of confidentiality by governmental entities by permitting confidential treatment of records only as provided in this chapter;
(d) provide guidelines for both disclosure and restrictions on access to government records, which are based on the equitable weighing of the pertinent interests and which are consistent with nationwide standards of information practices;
(e) favor public access when, in the application of this act, countervailing interests are of equal weight; and
(f) establish fair and reasonable records management practices.
Id. § 63G-2-102(3).
These public policies are consistent with a leading pre-GRAMA Utah Supreme Court decision, in which the court stated that “it is the policy of this state that public records be kept open for public inspection in order to prevent secrecy in public affairs.” KUTV Inc. v. Utah State Bd. of Educ., 689 P.2d 1357, 1361 (Utah 1984). Therefore, “[t]he presumption . . . has always been [in favor of] public access, subject only to specific statutory restrictions, personal privacy rights, and countervailing public policy,” and an agency seeking to withhold information from the public bears the burden to justify its actions. Id. at 1361-62.
The Utah Supreme Court has held that courts reviewing GRAMA requests should apply the Legislature’s “clear and preeminent intent” to favor public disclosure when “countervailing interests are of equal weight.” Deseret News Publ’g Co. v. Salt Lake County, 2008 UT 26,¶ 24 n.3, 182 P.2d 372.
Access to Government Meetings. Although the Utah Legislature first enacted a rudimentary open meetings law in 1955, that law allowed public officials to hold closed “executive sessions” as long as the officials took no official action during those sessions. Not surprisingly, this provision was used to exclude the public and the press from many government meetings.
Upon submission of Utah’s current open meetings act to the Legislature in 1977 (after three earlier efforts to pass the bill had failed), one of the bill’s sponsors noted that nearly every other state had enacted open meetings laws that were stronger than Utah’s, and that in Utah many government meetings were conducted in secret or held in so-called “executive sessions.”
Utah’s Open and Public Meetings Act (“Open Meetings Act”) is designed not only to protect the public’s right to attend government meetings, but also to give the public adequate notice of when and where such meetings will be held. The need for adequate notice was illustrated dramatically during the 1977 legislative debates, when one representative explained that in his small town in rural Utah most of the citizens met at the Mormon meeting house on Sunday and discussed political matters. If the town citizens felt that an additional meeting was necessary, an announcement was made in church and the townspeople would reconvene at the schoolhouse after the church meeting. The legislator acknowledged that in recent years “outsiders” who “were not of the faith” had moved into his town, but he was reluctant to require his town officials to post notices of government meetings or to give notice of the meeting to a newspaper, because such notice had never been required before. The sentiments expressed by this particular legislator may have been atypical, but they illustrate why many observers felt that a better open meetings law was needed desperately in Utah.
The Open Meetings Act states that the “Legislature finds and declares that the state, its agencies and political subdivisions, exist to aid in the conduct of the people’s business,” and that “[i]t is the intent of the Legislature that the state, its agencies, and its political subdivisions . . . take their actions openly and . . . conduct their deliberations openly.” Utah Code § 52-4-102(1)-(2). The Open Meetings Act requires state and local government entities and their advisory bodies to give notice of their meetings and to conduct their meetings in public, subject to certain exceptions discussed below. See id. §§ 52-4-201, -202.
Are Agencies Complying With Utah’s Public Access Laws? Since passage of Utah’s open records and open meeting statutes, the media and various public interest groups have lobbied aggressively to protect the public’s right of access to government meetings and government records. Although most government agencies favor openness in government and are willing to comply with the access statutes, there are some notable exceptions.
- In 2007, the television station KSL-TV requested mug shots of a man and a woman who had been booked into the San Juan County Jail and who were convicted subsequently of crimes against a minor. The station requested the photographs in connection with a news story. The county denied the station’s request, arguing that the mug shots were private because public disclosure would constitute an invasion of the convicted individuals’ privacy, and the station appealed to the district court. In May 2009, the district court issued an oral ruling from the bench that the mug shots constituted public records under GRAMA. Bonneville Int’l Corp. d/b/a KSL-TV v. San Juan County Comm’r, No. 070700046 (Utah 7th Dist.).
- In 2004, the Deseret News requested a copy of an independent investigative report concerning allegations that the Chief Deputy County Clerk had sexually harassed and retaliated against a subordinate employee and that county officials knew of the misconduct but refused to address it. The county denied the request and the newspaper appealed to the district court. The district court ruled in favor of the county, determining that release of the report would invade the alleged harasser’s personal privacy rights and could interfere with future sexual harassment investigations. The newspaper appealed to the Utah Supreme Court, which reversed the district court’s decision and held that the investigative report was a public record under GRAMA. In a sharply worded opinion, the Utah Supreme Court observed that “GRAMA does not contemplate adversarial combat over record requests. It instead envisions an impartial, rational balancing of competing interests.” Deseret News Publ’g Co. v. Salt Lake County, 2008 UT 26, ¶ 25, 182 P.2d 372.
- In 1996, the Utah Senate held a secret meeting to discuss the politically controversial issue of gay student clubs in public schools. The Senate issued no public notice or agenda for the meeting, nor did the Senate take a vote to convene in closed session for any of the purposes authorized under the Open Meetings Act. In denying the Senate’s motion to dismiss the lawsuit challenging the secret meeting, the Utah Third District Court determined that the Senate’s action “ignores and overlooks the textual limits of the Utah Constitution, and the Open and Public Meetings Act on the issue of public meetings.” See Memorandum Decision, Jolley v. Utah State Senate, No. 960901127 (Utah 3d Dist. July 12, 1996). Pursuant to the parties’ stipulation, the court entered judgment against the Senate finding that “to the extent that the Senate is required to comply with Utah’s open and public meetings law . . . the Senate violated that law” by holding the secret meeting. See Judgment & Order, Jolley v. Utah State Senate, No. 960901127 (Utah 3d Dist. Feb. 19, 1997).
- In 1994, the Davis County Sheriff’s Office refused to release an audio tape of a 911 telephone call and Sheriff’s reports concerning a double murder-suicide. The 911 calls were placed by a woman as she was being shot by her estranged husband. The Sheriff’s Office refused to release the 911 tape on the ground that it was “too graphic” for public consumption. A local television station filed suit seeking access to the tape and police reports. After a sixteen-month legal battle, a district court judge ruled that the 911 tape and Sheriff’s reports were public records under Utah law and ordered the County to release them. The County agreed to pay more than $27,000 in attorneys’ fees and costs incurred by the television station in filing the lawsuit. Fox Television Stations Inc. v. Clary, No. 940700284 (Utah 2d Dist. Feb. 23, 1996).
- In 1994, the City of Orem refused to release the names, resumes, and professional qualifications of the six finalists for the position of Orem City Manager. The City claimed public disclosure would invade the finalists’ privacy and deter qualified applicants from applying in the future. The local newspaper and other open government advocates argued that public disclosure of the finalists’ names and professional qualifications was critical for the public to make informed judgments about the search and selection process and the quality and diversity of the candidate pool. The newspaper filed a lawsuit seeking the finalists’ names and, following a two-year legal battle, a district court judge ruled that the public interest favored release of the finalist’ names, resumes, and application records. Scripps League Newspapers v. City of Orem, No. 940400646 (Utah 4th Dist. Sept. 23, 1996).
A disturbing recent development has been the practice of state and local governments to use their information monopolies as revenue generators. Although GRAMA limits government copying charges to the “actual cost of providing” a record, some state and local government agencies have interpreted this language to include various overhead, labor, and other indirect costs. The result has been unreasonably high copying or “compilation” charges for some government records. For example, in Graham v. Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist., 1999 UT App 136, ¶ 29, 979 P.2d 373, the Utah Court of Appeals held that the defendant had not violated GRAMA by charging $280.00 in compilation fees where the defendant “had to take files, documents and data from several sources and organize them in order to respond to Mr. Graham’s request.” And, although GRAMA expressly states that “[e]very person has the right to inspect a public record free of charge,” Utah Code § 63G-2-201(1) (emphasis added), the State Records Committee has ruled that persons wishing to inspect public driving records must pay a fee of $3 per record to the Utah Drivers License Division. 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 Public Safety, No. 92-02 (Utah State Rec. Comm. Nov. 12, 1992). These and other access issues likely will continue to arise in Utah until resolved by legislative amendment or by judicial decision.
Anticipated Changes in Utah’s Access Laws. The provisions of the Utah access statutes as of February 2018 are summarized below. GRAMA is likely to undergo more legislative tinkering and some litigation as government, the news media, and members of the public continue to apply the statute and to explore its contours. Open government advocates likely will continue lobbying for enforcement and penalty provisions in the Open Meetings Act and for more clearly defined access under GRAMA to electronic records, including e-mail and electronic databases. Government interests likely will continue seeking expansion of exemptions to public access under GRAMA and the Open Meetings Act. In light of these continuing efforts to revise Utah’s access statutes, the reader should examine the Utah Code and determine whether the Legislature has enacted any subsequent amendments to Utah’s access laws before relying on the information contained in this outline.
Any questions concerning the statutory provisions or regulations governing state meetings or state records may be directed to the Utah Freedom of Information Hotline (1-800-574-4546), the Utah Headliners Chapter of the Society of Professional Journalists, the Utah Attorney General’s Office, or the Utah State Division of Archives.
The fundamental principle of accountability of persons engaged in the work of government has been a part of the Vermont Constitution from the beginning: “all power being originally inherent in, and consequently, derived from, the people; therefore, all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.” Vt. Const. of 1777, ch. 1, § V. The common law similarly has long recognized that Vermont’s citizens have a right to inspect public records and to attend the meetings and proceedings of any government body. Matte v. Winooski, 129 Vt. 61, 63, 271 A.2d 830, 831 (Vt. 1970); Bain v. Clark, 2012 VT 14, ¶ 17, 44 A.3d 170, 176-77 (Vt. 2012). This fundamental right of every Vermont citizen encompasses not only the “right to know” but also the right to be present, to be heard, and to participate. State v. Vermont Emergency Bd., 136 Vt. 506, 508, 394 A.2d 1360, 1361 (Vt. 1978).
Vermont’s “right to know” laws are codified in two short pieces of legislation: the Open Meeting Law, 1 V.S.A. §§ 310-314, and the Public Records Act, 1 V.S.A. §§ 315-320. Both laws are somewhat broadly stated and are not explained by any published legislative history. Several opinions by the Vermont Supreme Court have held that both statutes are to be liberally construed in order to implement the twin policy goals of open access and public disclosure. See, e.g., Negotiations Comm. of Caledonia Cent. Supervisory Union v. Caledonia Cent. Educ. Ass’n, 2018 VT 18, ¶ 18, 184 A.3d 236 (Vt. 2018); Trombley v. Bellows Falls Union High Sch. Dist., 160 Vt. 101, 624 A.2d 857 (Vt. 1993). Indeed, the Vermont Supreme Court has held, “open access to governmental records is a fundamental precept of our society.” Shlansky v. City of Burlington, 2010 VT 90, ¶ 12, 13 A.3d 1075, 1081 (Vt. 2010).
The Virginia General Assembly enacted the Virginia Freedom of Information Act ("the Act") in 1968. Through this Act, the legislature sought to secure to the Commonwealth's citizens “ready access to public records” and “free entry to meetings of public bodies.” See Va. Code Ann. § 2.2-3700.B.
The Act has undergone continuous, annual revisions. Some amendments have strengthened the Act by authorizing the award of civil penalties and attorneys' fees for non-compliance, or by shifting the burden to prove the applicability of exclusions onto the public body. Other amendments, particularly the Act's steadily growing list of discretionary exclusions, have reduced its scope, clarity and effectiveness as a tool for public access to government. Finally, some amendments, particularly those relating to electronic meetings and records, have responded to technological changes in the way that information is recorded, processed and delivered.
The General Assembly has mandated that the Act be "liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government." Moreover, the Act's exemptions are to "be narrowly construed.” Va. Code Ann. § 2.2-3700.B.
These rules of construction are typically acknowledged by the courts, but not applied in practice. Virginia courts are often reluctant to provide a remedy under the Act unless there is a substantial and willful violation of its provisions. However, where such evidence is clear and beyond dispute, the courts have occasionally shown their willingness to penalize those who attempt to deny to the public that which they have a right to know.
Opinions of the Attorney General of Virginia do not bind the Virginia courts, but can be considered by the courts as persuasive authority. They are occasionally, but not comprehensively, cited in this outline. The Office of the Attorney General’s website (https://www.oag.state.va.us) hosts opinions going back to 1996; its searchability is not good. In addition, a substantial body of opinions has now been issued by the Virginia Freedom of Information Advisory Council (“Council”), created by the General Assembly in 2000, providing interpretations of the Act to citizens, including public officials and press representatives. The opinions of the Council do not bind the courts. They are available online at foiacouncil.dls.virginia.gov, and are not cited in this outline. Anyone comprehensively researching an issue under the Act is well-served to search both Attorney General and Council opinions for relevant discussion of these statutes. For free access to the Code of Virginia in a well-organized format, use the Virginia Legislative Information System, http://leg1.state.va.us.
This outline addresses amendments to the Act passed during the 2018 session of the Virginia General Assembly that have not yet been incorporated into the Virginia Code and which do not become effective until July 1, 2018. For a comprehensive review of the Act following the 2018 legislative sessions, see the Virginia Code.
Washington’s public records and public meetings laws, passed separately in the early 1970s, are a product of the “open government” climate brought about by distrust of government, lack of accountability and by misuse of government power during the civil rights and Vietnam protest era. Citizen groups such as the League of Women Voters, Common Cause, Washington Coalition for Open Government, and others succeeded in promoting such legislation at a time when conservative opposition to such measures was discredited. Subsequent events of the 1970s, particularly Watergate, vindicated the need for the reform legislation; however, changes in the political climate, increasing sophistication of government agencies and their attorneys, decline of “open government” groups, and public antagonism towards the press led to legislative and judicial retrenchment from the mid-1980s to present, including an increase in the number and scope of exemptions.
The open records law was passed by Washington voters in November 1972 as Initiative 276. The law took effect January 1, 1973. Previously, there was an ill-defined common law right to public records that was seldom litigated.
Note: The open records law was part of the Public Disclosure Act, codified at RCW Ch. 42.17. Effective July 1, 2006, the open records law was re-organized and recodified as RCW Ch. 42.56 and has since been referred to as the Public Records Act.
The major thrust of Initiative 276 was reform of campaign financing and lobbying by requiring disclosure of sources of contributions and expenses. The public records portion of the initiative was a relatively small section and was not the focus of much debate. Since the drafters did not pay extensive attention to the public records section, it is sometimes hard to reconcile how certain sections fit together or what the precise intent is.
The only “legislative history” for Initiative 276 is the State of Washington Voters Pamphlet (November 7, 1972), which contains statements for and against the ballot measure as well as a summary of the proposed law, a summary of the law as it then existed, a summary of the effect the proposed law would have, and the actual text of the new law.
In interpreting the current public records law, appellate judges have cited the Voters Pamphlet as evidence of legislative “intent,” thus giving the Pamphlet some persuasive effect. The Pamphlet described the prior law as follows:
Access to public records is largely governed, under present law, by court decisions under which members of the public having a legitimate interest therein are entitled to examine all records in the custody of a public official which that official is required by law to maintain. However, in the case of records which the official having custody is not required by law to maintain, the disclosure or nondisclosure of information contained therein is largely within the discretion of this official.
The pamphlet went on to explain that the effect of Initiative 276 was to require disclosure of all public records “regardless of whether or not the particular record is one which the official having custody is required by law to maintain.” The Pamphlet also noted that state and local government agencies would have to meet a number of detailed requirements with respect to the maintenance and indexing of all the records and that public inspection was subject only to certain exceptions relating to “individual rights of privacy or other situations where the act deems the public interest would not best be served by open disclosure.” These statements, and others in the Pamphlet, are usually cited by appellate judges writing pro-disclosure opinions or dissents.
Appellate judges writing pro-disclosure opinions or dissents have also routinely cited the declaration of policy set forth at the beginning of the Act, Rev. Code of Wash. (“RCW”) 42.17.010(11) (now RCW 42.17A.010(11)), which says that “full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society.”
Subsequently, there have been persistent efforts — some successful, some not — to add exemptions. The press, on the other hand, has been successful in obtaining significant pro-access amendments only on rare occasion. For example, in 1987, a restrictive definition of the “right to privacy” was formally added to the Act after some judicial waffling had created uncertainty with respect to the common law. RCW 42.56.050. In 1992, the Legislature adopted more than a dozen amendments requested by the press, including a broader definition of “public record,” a specific definition of “promptness,” increases in civil penalties, and immunity for public officials who release public records in good faith.
The current Open Public Meetings Act, which was adopted in 1971, has a preamble that is often cited by appellate judges:
The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.
RCW 42.30.010. The Washington Supreme Court has referred to this preamble as one of the strongest statements of legislative policy contained in any state statute. Cathcart v. Andersen, 85 Wn.2d 102, 107, 530 P.2d 313 (1975). In 1992, the Legislature added this same language to the public records law. RCW 42.56.030.
There is very little legislative history available on most Washington law, including the Open Public Meetings Act. The Washington Legislature seldom maintains a record of floor debates and has nothing comparable to the Congressional Record or the committee reports prepared by the U.S. Congress. At best, there is an occasional colloquy put into the official record for the purpose of clarifying a particular point.
Consequently, the primary “authority” for interpreting the 1971 law is contained in Attorney General Opinion (“AGO”) No. 33 dated October 29, 1971 (and cited as 1971 Op. Atty. Gen. No. 33). This AGO recites the following history to the 1971 Act:
[By enactment of the 1971 Act], the legislature basically replaced our earlier 1953 public meetings act with a comprehensive new act dealing with this subject. This new act was patterned closely after a California statute, commonly referred to as the “Brown Act”; and it is also somewhat similar to an open meetings act which was passed several years ago in Florida . . . .
Before examining the provisions of the new act let us first, for comparative purposes, note the general thrust of the earlier law which it has replaced. Prior to August 9, 1971, when [the new law] became effective, the meetings of public agencies in this state — both state and local — were governed by RCW 42.32.010-.030. The first section of that act required that the adoption of any ordinance, resolution, rule, etc., be done in a meeting open to the public. If the date of that meeting was not fixed by law or rule, then in advance of the meeting there was to be notification to the press, radio and television in the county in which the meeting was to be held. The second section, RCW 42.32.020 specifically permitted the public agency to hold executive sessions and to exclude the public therefrom for all purposes other than “final adoption” of an ordinance, rule, regulation, etc. The third section, RCW 42.32.030, required that minutes be kept of all regular and special meetings, except executive sessions, and further required that those records be open for public inspection [this section continues to remain in effect].
Under this prior legislation it was quite possible for a public agency to take all the preliminary steps toward action, save only the final act of formal adoption of the rule or other directive, in sessions which were closed to the public. It is important that this be understood, because a legislature which enacts a new law such as that we are here considering must be presumed to have been aware of the scope and effect of its prior law on the subject and have intended to accomplish change therein.
The Open Public Meetings Act has been the subject of far less court interpretation and legislative revision than the Public Records Act. In part, this may be due to its clearer language and history. It also may reflect the OPMA’s comparatively weak remedies, which limit the incentives to pursue open-meeting violations.
There have been several important court decisions interpreting West Virginia's Freedom of Information Act (FOIA) since the Sixth Edition of this guide was published in 2011 and three important amendments to the Act. The Open Governmental Proceedings Act (called "the Sunshine Law" in West Virginia but referred to herein as the “Open Meetings Act”) has not been amended since 1999.
The West Virginia Freedom of Information Act begins with an emphatic declaration that the people of the state demand and open transparent government:
Pursuant to the fundamental philosophy of the American constitutional form of representative government which holds to the principle that government is the servant of the people and not the master of them, it is the public policy of the state of West Virginia that all persons are, unless otherwise expressly provided by law, entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments of government they have created. To that end, the provisions of this article shall be liberally construed with the view of carrying out the above declaration of public policy.
W. Va. Code § 29B-1-1. The state's Open Meetings Act contained a similar unequivocal declaration in favor of broad public access to governmental proceedings until it was amended in 1999. W. Va. Code § 6-9A-1.
In 1992, the West Virginia Legislature amended § 29B-1-3 of the FOIA to require records existing "in magnetic, electronic or computer form" be made available on magnetic or electronic or magnetic media, and a new section, § 29B-1-7, that provides for payment of attorney fees and court costs to successful litigants who have been unlawfully denied access to public records. The following year the Legislature amended the Open Meetings Act to include standing committees of the Legislature in the definition of "governing body" and added provisions in § 6-9A-6 to provide for attorney fees and fines for intentional violations. In 1997, a paragraph was inserted into a bill amending an economic development section of the Code (W. Va. Code § 5B-2-1). That amendment essentially barred public access to documents made or received by a "public body, whose primary responsibility is economic development, for the purpose of furnishing assistance to a new or existing business" and effectively concealed from public scrutiny the bulk of records pertaining to state economic development activities.
The West Virginia Legislature responded to the September 11, 2001 terrorist attacks by amending FOIA seeking to block terrorist access to certain sensitive state government information. The amendments added to West Virginia Code section 29B-1-4 eight new exemptions from public disclosure. Those exemptions bar access to information that would have a detrimental effect on public safety or public health. These amendments have the effect, not only of blocking terrorists' ability to obtain sensitive information through FOIA, but the potential to limit public access as well.
With a few exceptions the West Virginia Supreme Court of Appeals has shown a willingness to liberally interpret the state FOIA and open meetings statutes. The court frequently has held that the disclosure provisions of FOIA are to be liberally construed and the exemptions are to be strictly construed. Shepherdstown Observer v, Inc. v. Maghan, 226 W. Va. 353, 700 S.E.2d 805 (2010). Daily Gazette v. W. Va. Dev. Office, 198 W. Va. 563, 482 S.E.2d 180 (1996) (“Gazette I”); Ogden Newspapers v. City of Charleston, 192 W. Va. 648, 453 S.E.2d 631 (1994). But see, State v. Brotherton, 214 W. Va. 434, 589 S.E.2d 812 (2003) (holding that FOIA could not be used by state prison inmates to obtain court records for the purpose of filing habeas corpus petitions.
Similarly, in a case interpreting the Open Meetings Act, the Court held that the Act should be read expansively since a "narrow reading would frustrate the legislative intent and negate the purpose of the statute." McComas v. Bd. of Educ. of Fayette Cnty, 197 W. Va. 188, 475 S.E.2d 280, 289 (1996). This was clear, in part, from the constitutional underpinnings of the Act:
[The] declaration, and the Act generally, implement grand and fundamental provisions in our State Constitution. Those provisions, adopted from Virginia's Declaration of Rights, proclaim the theory of our form of government and embrace Article II, § 2 (powers of government in citizens) and Article III, § 2 (magistrates servants of people) and § 3 (rights reserved to people). Together they dramatically call for a political system in which the people are the sovereigns and those in government are their servants. Naturally, servants should be loath to exclude their sovereigns from any substantive deliberations. As is obvious from the declaration of policy in W. Va. Code § 6-9A-1, that is precisely the sentiment inspired by the Sunshine Act.
The Supreme Court of West Virginia also has shown a willingness to identify additional sources for public access to official information. When faced with practical problems not specifically addressed by the FOIA or the Open Meetings Act, (e.g., when the disclosure of personal information would be "unreasonable") the Supreme Court has fashioned "innovative measures" to provide public access while protecting other legitimate interests. Child Protection Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541, 545 (1986). The court also directed the lower courts of the state to do likewise and to remember, "the fullest responsible disclosure, not confidentiality, is the dominant objective" of these statutes. Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799, 810 (1985).
In several decisions, however, the Supreme Court has shown a slight willingness to narrow the breadth of prior rulings. State v. Brotherton, 214 W. Va. 434, 589 S.E.2d 812 (2003) (FOIA not available to state prison inmates seeking to obtain court records for the purpose of filing habeas corpus petitions); Affiliated Constr. Trades Found. v. Reg’l Jail & Correctional Auth., 200 W. Va. 621, 490 S.E.2d 708 (1997) (Where public body has unexercised right to obtain copy of writing relating to the conduct of the public's business which was prepared and retained by private party, that fact alone does not mean the writing is "public record" under FOIA).
Prior to passage of the Acts, the state Supreme Court identified the mechanisms by which the public could obtain access to information regarding the operation of government. These mechanisms remain available in addition to, and independent of, the FOIA and Open Meetings statutes. The first of these additional sources is the common law right of access to public records. This traditional common law right is more restrictive than the FOIA in one respect, since it requires both that the requester have a legally cognizable "interest" in the records and that the information be sought for a "useful and legitimate purpose." State v. Harrison, 130 W. Va. 246, 254, 43 S.E.2d 214, 218 (1947). However, where the information pertains to the functions of government, the interest of any citizen in "being fully informed on the activities and conduct of its government and the elected officers thereof" generally is sufficient to fulfill these requirements. Charleston Mail Ass’n v. Kelly, 149 W. Va. 766, 770, 143 S.E.2d 136, 139 (1965).
In West Virginia, the common law right retains considerable importance since it not only gives citizens a right to inspect public records, but also imposes a duty on government officials to create and maintain written records reflecting activities of government:
There is no obligation under the State FOIA to create any particular record, but only to provide access to a public record already created and which is 'retained' by the public body in question . . . [T]he common law in this state does require a public official to create and maintain such documents involving the public official in an official capacity. The State FOIA and the common law principles are not, therefore, coextensive but are interrelated.
Daily Gazette v. Withrow, 177 W. Va. 110, 350 S.E.2d 738, 746 n.9 (1986). The Withrow ruling is an important one since the lack of an existing record is a frequent barrier to obtaining information under the federal FOIA and those of other states. However, the potential scope of Withrow's holding has been limited somewhat by Affiliated Construction Trades Foundation v. Regional Jail and Correctional Authority, 200 W. Va. 621, 490 S.E.2d 708 (1997). Affiliated Construction Trades Foundation held that a state public body may not have to request a copy of a writing relating to the conduct of the public's business which was prepared and is retained by a private party. The fact that the public body has an unexercised right to obtain such a writing does not, alone, mean the writing is a "public record" subject to disclosure under FOIA.
The Supreme Court also has recognized particular statutory provisions might provide a broader right of access to certain types of information than does the FOIA. For example, in Richardson v. Town of Kimball, the court ruled a statute which mandates most court records be open to the public creates an absolute right of access to those records. 176 W. Va. 24, 340 S.E.2d 582 (1986). Later, in Maclay v Jones, the court held that public records exempt from disclosure under FOIA may be have to be produced in response to civil discovery requests in litigation. 208 W. Va. 569, 542 S.E.2d 83 (2000).
In recent important access rulings, the Supreme Court of Appeals has held the West Virginia Constitution's mandate that "the courts of this state shall be open" creates a "fundamental constitutional right of access" to civil and criminal judicial proceedings, as well as to the records and proceedings of quasi-judicial agencies. The court has relied on this provision to require broad public access to disciplinary proceedings against attorneys and physicians, and to require licensing agencies to create a written public record justifying their action whenever they dismiss a complaint against an attorney or physician without a hearing. Daily Gazette v. W. Va. State Bar, 176 W. Va. 550, 326 S.E.2d 705, 706 (1984); Daily Gazette v. W. Va. Bd. of Medicine, 177 W. Va. 316, 352 S.E.2d 66 (1986); Thompson v. W. Va. Bd. of Osteopathy, 191 W. Va. 15, 442 S.E.2d 712 (1994). These rulings apply to all agencies exercising quasi-judicial powers and provide a much broader access right to these proceedings than would be available under the Freedom of Information or Open Meetings Acts.
Finally, the court's access decisions have recognized the essential role played by the press in transmitting to the public information concerning governmental action to the citizens of the state:
Once the right in the public to attend the trial is acknowledged, the same right must be accorded members of the press. The press not only constitutes a part of the general public, but it is well established that it operates in a special capacity as an agent or surrogate for the general public in its gathering and dissemination of information. This special status rests on a realistic recognition that it is impossible for any meaningful number of the general public to abandon their daily pursuits to attend trials, and a further acknowledgement that the press has valuable expertise in ferreting out information difficult for the general public to obtain.
State ex rel. Herald Mail Co. v. Hamilton, 165 W. Va. 103, 267 S.E.2d 544 (1980).
So long as the general judicial attitude toward openness reflected in these cases continues, the Freedom of Information Act and Open Meetings Act will be important to reporters, and the public in seeking to obtain information regarding the functions of government.
Enacted in 1975, the Open Meetings Act provides:
The Legislature hereby finds and declares that public agencies with in this state exist for the singular purpose of representing citizens of this state in governmental affairs, and it is, therefore, in the best interests of the people of this state for all proceedings of public agencies to be conducted openly with only a few clearly defined exceptions. The Legislature hereby further finds and declares that the citizens of this state do not yield their sovereignty to the governmental agencies that serve them. The people in delegating authority do not give their public servants the right to decide what is good for them to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments of government created by them.
W. Va. Code § 6-9A-1. With this statement of legislative purpose, the West Virginia Legislature in 1975 enacted the Open Governmental Meetings Act, W. Va. Code § 6-9A- et seq., referred to here as the Open Meetings Act. The statute is sometimes called the Sunshine Law or Government in the Sunshine Act. As indicated in the statement of purpose, the Act seeks to provide broad public right to be present at the meetings of government agencies.
Other than the statement of purpose, there is no legislative history available indicating what prompted the Legislature to enact the Open Meetings Act in 1975. The statute has been amended four times — in 1978, 1987, 1993, 1999 and 2013 — since its passage. The first two amendments were directed toward the most glaring deficiency in the original statute: the lack of a requirement that the public body give advance notice of its meetings. When it was first enacted, the Open Meetings Act contained no notice requirement. In 1978, the statute was amended to require that "[e]ach governing body shall promulgate rules by which the time and place of all regularly scheduled meetings and the time, place and purpose of all special meetings are made available, in advance, to the public and news media, except in the event of an emergency requiring immediate official action." W. Va. Code § 6-9A-3. In 1987, the section was again amended to require notice of state executive agency meetings be published in the state register at least five days prior to the meeting date. (All other public bodies could still determine their own notice procedure by regulation.)
In 1999, the West Virginia Legislature amended this declaration adding the following language:
The Legislature finds, however, that openness, public access to information and a desire to improve the operation of government do not require nor permit every meeting to be a public meeting. The Legislature finds that it would be unrealistic, if not impossible, to carry on the business of government should every meeting, every contact and every discussion seeking advice and counsel in order to acquire the necessary information, data or intelligence needed by a governing body were required to be a public meeting. It is the intent of the Legislature to balance these interests in order to allow government to function and the public to participate in a meaningful manner in public agency decision-making.
This amendment is problematic; it most likely was intended to emphasize that some discussions between decisionmakers in an informal setting and discussions with legal counsel are not required to be held in an open meeting. Other substantive 1999 amendments to the Act appear to implement this intent. See W. Va. Code §§ 6-9A-2(4)(D) and 6-9A-11. The amended declaration of legislative policy may be interpreted as inviting courts to use a balancing test in interpreting the statute. No cases have been decided in which this amended policy is mentioned. The amendment could be construed to narrow public rights of access to meetings. Whether courts will so construe this provision remains to be seen.
In the most recent 2013 amendment to the Act, emergency meetings were defined and notices were required to be filed on the Secretary of State's website at least five business days prior to an open meeting. "Emergency meeting" means any meeting called by a governing body for the purpose of addressing an unexpected event which requires immediate attention because it poses: an imminent threat to public health or safety; an imminent threat of damage to public or private property; or an imminent material financial loss or other imminent substantial harm to a public agency, its employees or the members of the public which it serves. W. Va. Code § 6-9A-2 (2). §6-9A-3(e). The notices filed with the Secretary of State are required to state the meetings' date, time, place and purpose; each notice of a special meeting or a regular meeting must be filed on the Secretary of State’s website at least five business days prior to the date of the meeting. When calculating the days, the day of the meeting isn't counted and filing after business hours is considered filed on the next business day.
The court in Appalachian Power, emphasized the law’s legislative purpose:
The foregoing statement is without doubt laudable, and we agree wholeheartedly with the intent expressed therein. However, it is unfortunate that the actual words of the Act fail to properly implement this lofty policy. Curiously it is as if the Act and the statement of policy were written by two different kinds of individuals without communication or knowledge of each other's intent or actions.
Appalachian Power Co. v. Pub. Serv. Comm’n, 162 W. Va. 839, 253 S.E.2d 377, 385 n.6 (1979). Indeed, as Appalachian Power indicates, there were some limitations in the language of the Open Meetings Act that rendered it less expansive than the Legislature may have intended. A 1996 decision of the West Virginia Supreme Court of Appeals interpreted the Open Meetings Act in a way that appeared to significantly broaden public's access to governmental meetings. McComas v. Fayette Cnty. Bd. of Educ., 197 W. Va. 188, 475 S.E.2d 280 (1996). Subsequently, the Legislature amended the Act narrowing the breadth of McComas insofar as it addresses whether discussions between public officials during informal social, educational, training, ceremonial and similar settings fall within the purview of the law. See W. Va. Code § 6-9A-2 (4)(D).
The impact of the interaction of the McComas decision and the 1999 amendments has not yet been addressed by the Court. Prior to enactment of the Open Meetings Act, the public had no comprehensive right of access to governmental meetings. Specific statutes provided varying degrees of access to meetings of different governmental bodies. See, e.g., Casto v. Bd. of Educ., 38 W. Va. 707, 18 S.E. 923 (1894) (public meeting required for appointment of teachers so "the patrons of the school may know what is transpiring, and give the trustees invaluable information touching the morality, capacity, and fitness of the teacher"); State ex rel. Withrow v. Surface, 110 W. Va. 237, 157 S.E. 402 (1931) (invalidating act of county court in special session because adequate public notice of meeting was not given).
Although the Secretary of State has no enforcement powers under the Open Meetings Act, some Secretaries have strongly supported the enforcement of the Open Meetings Act, especially its meeting notice requirements. The Secretary of State publishes information relating to notice of meetings subject the law in the state register (https://apps.sos.wv.gov/adlaw/meetingnotices/). Regulations must also be filed in the Code of State Regulations, (https://apps.sos.wv.gov/adlaw/csr/).
The Register is posted online weekly (http://apps.sos.wv.gov/adlaw/registers/). The Code of State Regulations represents the codification of all final state agency rules and regulations (http://www.sos.wv.gov/administrativelaw/Pages/aboutcsronline.aspx). State agency open meeting regulations must be published in the Code of State Regulations. Final and proposed rules may be located at http://apps.sos.wv.gov/adlaw/csr/). This information may be accessed via the Secretary’s website that provides information on all rules promulgated by West Virginia State agencies (http://apps.sos.wv.gov/adlaw/csr).
Proposed and final regulations must be filed with the Office of the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Compliance with this mandate is monitored by a daily newspaper (The Charleston Gazette-Mail) that publishes lists of agencies that have failed to comply. (http://blogs.wvgazette.com/watchdog/). A list of current, future or historical meetings may be found at http://www.sos.wv.gov/administrative-law/register/pages/default.aspx.
That site also contains a general discussion of when prior public notice must be given as required by the Open Meetings Law: http://www.sos.wv.gov/administrative-law/Pages/online-meeting-notices.aspx A telephone inquiry to the Secretary of State's office (304-558-6000) should reveal whether a particular agency has proposed or adopted Open Meetings regulations or has given notice of any pending meeting. Written questions relating to the Open Meetings law may be directed to the Secretary of State through the internet (http://www.sos.wv.gov/Pages/contact-adlaw.aspx). At times the state register will note a particular agency's non-compliance with the Open Meetings Act. The Secretary of State's Administrative Law office maintains a permanent record of the meeting notices that fail to comply with the requirements of the statute.
The 1999 amendments to the Open Meetings Act imposed specific duties on the Attorney General to assist state and municipal government bodies and officials in achieving compliance with that statute. W. Va. Code § 6-9A-12. The Office of the Attorney General no longer provides access to an Open Meeting Act Guide on his website and the Act is no longer referenced there. The West Virginia Ethics Commission Committee on Open Governmental Meetings is required by § 6-9A-11 to issue written Advisory Opinions to governing bodies, or to their members, on whether an action or a proposed action violates the Open Meetings Act. General information concerning the Open Meetings Act is available on the Ethics Commission website: http://www.ethics.wv.gov/openmeetings/Pages/default.aspx
According to the Commission’s website it “will provide informal advice ONLY to a governing body, or a member of a governing body, who is subject to the Open Governmental Meetings Act and who seeks advice and information as to whether an action or proposed action violates the Act.” Information relating to such advisory opinions is available online at: http://ethics.wv.gov/advisoryopinion/Pages/default.aspx Any governing body, or a member of a governing body, who is subject to the Open Governmental Meetings Act may request a formal Advisory Opinion as to whether an action or proposed action violates the Act. Requests must be in writing to: West Virginia Ethics Commission, 210 Brooks St., Suite 300, Charleston, WV 25301. The request must contain a complete statement of the facts, including the name, address, phone number and the requester’s official position. The Commission may be contacted via, phone (304) 558-0664, WV Toll Free 1-866-558-0664, or Fax (304) 558-2169.
The executive director of the Ethics Commission may give oral advice and/or information upon request. W. Va. Code § 6-9A-11(a). The committee is required to respond in writing and in an expeditious manner to a request for an advisory opinion. The opinion is binding on the requesting parties. Id. The Ethics Commission’s advisory opinions are available at: http://www.ethics.wv.gov/advisoryopinion/Pages/OpenMeetingsOpinions.aspx.
When an advisory opinion is requested and the requester acts in good faith reliance on the opinion, he/she has an absolute defense to any civil suit or criminal prosecution for any action taken in good faith reliance — unless the committee was willfully and intentionally misinformed as to the facts by the requester. W. Va. Code § 6-9A-11(b). Moreover, under subsection § 6-9A-11(c), a governing body or member acting in good faith reliance on a written advisory opinion sought by another person or governing body would have an absolute defense to any civil suit or criminal prosecution for any action taken based upon a written opinion of the ethics commission committee, if the underlying facts and circumstances surrounding such action were “the same or substantially the same as those being addressed by the written opinion.” Section 6-9A-11 does not appear to provide for members of the public to request an advisory opinion.
This edition of the West Virginia Open Government Guide expands upon and amends early editions authored by attorney D.L. Hamilton and the late Rudy DiTrapano, and Rebecca Baitty, whose expertise, guidance and excellent work on early editions is acknowledged with appreciation.
The Development of Public Access Law in Wisconsin
The very first Wisconsin statutes adopted after the organization of Wisconsin as a state provided for public access to the meetings and records of county government. Wis. Rev. Stat. Ch. 10, §§ 29, 37, 137 (1849). From that early starting point, the Wisconsin tradition of full public access to the affairs of government has grown steadily.
The original statute requiring county constitutional officers to have their records open for examination has survived virtually unchanged. Compare Wis. Rev. Stat. Ch. 10, § 137 (1849) with Wis. Stat. § 59.20(3) (2003-04). The policy of public access to records was extended to all state, county, city, town, village, school district and other municipality or district records by Wis. Laws Ch. 178 (1917). The Wisconsin Supreme Court interpreted this enactment as a codification of the common law. Int’l Union, UAW v. Gooding, 251 Wis. 362, 372–73, 29 N.W.2d 730, 735–36 (1947). At the same time, however, the court questioned the “mere curiosity” restriction on common law access, and that doctrine has never become part of the Wisconsin common law of public records. The 1917 law remained essentially unchanged until 1981, when the legislature adopted the present Open Records Law. Wis. Laws Ch. 135 (1981). This enactment expressly preserved “[s]ubstantive common law principles construing the right to inspect, copy or receive copies of records.” Wis. Stat. § 19.35 (1)(a) (2003–04).
Until 1959, a hodgepodge of statutes relating to various branches of government granted public access to some meetings. For example, in addition to the original 1849 statute protecting access to county meetings, an 1889 law required open meetings for other municipalities. Wis. Laws Ch. 326 (1889). This law became the foundation for the present comprehensive requirement of open meetings in 1959. Wis. Laws Ch. 289 (1959). The legislature substantially revised the 1959 act in 1973, Wis. Laws Ch. 297 (1973), and made minor revisions in 1975, Wis. Laws Ch. 426 (1975). As subsequently construed, the 1975 amendments served to broaden the scope of the law. State ex rel. Newspapers Inc. v. Showers, 135 Wis. 2d 77, 97, 398 N.W.2d 154, 163 (1987).
In adopting the respective Open Meetings and Open Records laws, the legislature forcefully declared the state’s general policies concerning openness in government. Section 19.31 of the Wisconsin Statutes (2003–04) provides:
“In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, §§ 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.”
Section 19.81(1) of the Wisconsin Statutes (2003–04) provides:
“In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.”
The Wisconsin Supreme Court noted the state’s long tradition of open government: “If Wisconsin were not known as the Dairy State it could be known, and rightfully so, as the Sunshine State. All branches of Wisconsin government have, over many years, kept a strong commitment to transparent government.” Schill v. Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶ 1, 327 Wis. 2d 572, 786 N.W.2d 177.
The public of policy of the State of Wyoming as expressed in its Open Meetings Act and Public Records Act is disclosure — not secrecy. Sheridan Newspapers v. City of Sheridan, 660 P.2d 785, 792, 796 n.14 (Wyo. 1983). The Wyoming Supreme Court in announcing its decision in Sheridan Newspapers said:
This holding is but another pronouncement from this court having to do with making the public's business available to the public whenever that is possible. The courts, legislature, administrative agencies, and the state, county and municipal governments should be ever mindful that theirs is public business and the public has a right to know how its servants are conducting its business. Furthermore, it is for government to remember that the written, viewing and broadcasting press are the eyes and ears of the people. The citizenry must be permitted to hear and see what public officers and their employees say and do whenever the imparting of this knowledge does not run contrary to the rights of those otherwise protected in a way that would result in disclosure having the effect of inflicting such irreparable harm as is recognized at law.
The Wyoming Supreme Court has found a constitutional right of access to government information under the applicable freedom-of-the-press and due-process provisions of the federal and state constitutions.
The Legislature does have the authority to promulgate restraints upon the news-gathering business as will best serve the "public good." These restraints may not, however, unlawfully deny the people's right to be informed. Otherwise, the restrictions would run the risk of violating the First or Fourteenth Amendments to the U.S. Constitution. Id. at 795.
Importantly, the Court explicitly recognized that the Public Meetings Act, like the Public Records Act, must be given a liberal construction in favor of openness, and all exceptions to public access strictly construed.
The Public Records Act specifically provides that if the right to inspect a record is allowed to any employee of a newspaper, radio or television station, or other employee of the "media," access must be allowed to all news media employees. In other words, a public official who is the custodian of records may not give copies of the requested records to one reporter but refuse to give the same records to another.