I. Statute

The primary legislative statement regarding the right of individuals to inspect and copy public records of the State of Alabama is contained in Alabama Code § 36-12-40:

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. Provided, however, registration and circulation records and information concerning the use of the public, public school or college and university libraries of this state shall be exempted from this section. Provided further, any parent of a minor child shall have the right to inspect the registration and circulation records of any school or public library that pertain to his or her child. Notwithstanding the foregoing, 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 (as defined at 42 U.S.C. § 5195c(e) as amended) and critical energy infrastructure information (as defined at 18 C.F.R. § 388.113(c)(1) as amended), 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 shall be exempted from this section. Any public officer who receives a request for records that may appear to relate to critical infrastructure or critical energy infrastructure information, shall notify the owner of such infrastructure in writing of the request and provide the owner an opportunity to comment on the request and on the threats to public safety or welfare that could reasonably be expected from the public disclosure of the records.

In Stone v. Consolidated Publishing Co., 404 So. 2d 678 (Ala. 1981), the Supreme Court of Alabama defined "public writing" to include both:

[A]ll written, typed or printed books, papers, letters, documents and maps made or received in pursuance of law by the public officers of the state, counties, municipalities and other subdivisions of government in the transactions of public business and shall also include any record authorized to be made by any law of this state belonging or pertaining to any court of record or any other public record authorized by law or any paper, pleading, exhibit or other writing filed with, in or by any such court, office or officer[,]

Ala. Code § 41-13-1 (2000), and "such a record as is reasonably necessary to record the business and activities required to be done or carried on by a public officer so that the status and condition of such business and activities can be known by our citizens." 404 So. 2d 678, 681 (Ala. 1981); see also Walsh v. Barnes, 541 So. 2d 33, 35 (Ala. Civ. App. 1989) (referring to and applying the two Stone standards — the stricter standard ("required by law to be kept") and the lesser standard ("reasonably necessary").

Two additional statutes specifically require public officers and servants to make and keep records and to produce those records upon request, as follows:

All public officers and servants shall correctly make and accurately keep in and for their respective offices or places of business all such books or sets of books, documents, files, papers, letters and copies of letters as at all times shall afford full and detailed information in reference to the activities or business required to be done or carried on by such officer or servant and from which the actual status and condition of such activities and business can be ascertained without extraneous information . . . .

Ala. Code § 36-12-2 (2001); see also Ala. Code § 36-12-41 (2001) ("Every public officer having the custody of a public writing which a citizen has a right to inspect is bound to give him, on demand, a certified copy of it, on payment of the legal fees therefor . . . .").

The Supreme Court of Alabama also established the following rules of statutory construction, presumptions, and burden of proof for the Public Records Law:

1. "It is clear from the wording of § 36-12-40 that the legislature intended that the statute be liberally construed," Chambers v. Birmingham News Co., 552 So. 2d 854, 856 (Ala. 1989);
2. "There is a presumption in favor of public disclosure of public writings and records expressed in the language of § 36-12-40," 552 So. 2d at 856; and
3. "[B]ecause there is a presumption of required disclosure, the party refusing disclosure shall have the burden of proving that the writings or records sought are within an exception and warrant nondisclosure of them," 552 So. 2d at 856-57.

This outline attempts to comprehensively catalogue those instances in which the Alaska Statutes require that information be kept confidential. There are often additional or complementary requirements of confidentiality in the administrative regulations adopted pursuant to these various statutes. [The range of regulatory provisions requiring confidentiality is extremely broad, and a person seeking access to information should check regulations in the pertinent subject area if a question arises. Presumably, the agency would cite any regulation imposing confidentiality as a basis for denying records. Once the legal basis for the denial is established, the regulation can be compared to the statute for consistency and to determine whether there is authority for the regulation. The information kept confidential by these regulatory provisions runs the gamut from student test results, 4 AAC 6.735, to the biological and management data collected by on-board observers from catcher/processor and floating processor vessels that process shell fish, 5 AAC 39.64.5, to employee petitioner interest cards in support of a showing of interest in a union organizing drive, 8 AAC 97.060(d), to applications for concealed handgun permits, 13 AAAC 30.800.]

A few of the administrative regulations most significant to news reporters have been addressed in this outline. No attempt has been made to deal with all the administrative regulations of the various state agencies (or likewise, with local government charters, ordinances and policies), but the reader should be aware that they exist and may be asserted as a basis for denying access to records. At the same time, it should not be assumed that a municipal code provision purporting or interpreted to restrict access to records should be given effect. See, e.g., Griswold v. Homer City Council ,        P.3d           , 2018 WL 4375455, at *7 (Alaska, September 14, 2018) (noting that because the Public Records Act applies to municipalities, the municipal code “applies only to the extent it narrows the exceptions to disclosure and requires that more records be disclosed”).  Similarly, an agency seeking not to disclose a record on the basis of an agency regulation requiring confidentiality might cite as authority AS 40.25.120(4), which provides that "records required to be kept confidential by a federal law or regulation or by a state law" are not subject to public inspection. But note that the statute does not make an exception for records required to be kept confidential by a "federal or state law or regulation." Only federal regulations, and not state regulations, form the basis for this exception. The legislature apparently intended to reserve to itself the power to make decisions about when documents should be exempt from public disclosure. By not allowing an exception to the public disclosure requirement based on state administrative regulations alone, the legislature refrained from giving administrative agencies carte blanche to keep documents that agency employees decided would be best kept confidential. Although the issue has not squarely been addressed by the Alaska Supreme Court, trial courts in cases brought by the Anchorage Daily News concerning access to public records have interpreted the statute this way, and refused to deny access to records on the basis of administrative regulations purporting to make them confidential.

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Consistent with the state’s strong public policy in favor of open government, the Act provides at the outset that it “shall be broadly construed to allow the inspection of governmental records.” O.C.G.A. § 50-18-70(a). Echoing prior court decisions, the Georgia legislature expressly found and declared in its 2012 revision to the statute “that the strong public policy of this state is in favor of open government; that open government is essential to a free, open, and democratic society; and that public access to public records should be encouraged to foster confidence in government and so that the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions.” Id. Further, “there is a strong presumption that public records should be made available for public inspection without delay.” Id.

The basic purpose of the UIPA, Hawai'i's revised open records law, which became effective July 1, 1989, is to afford public access to all government records unless access is restricted or closed by law. Haw. Rev. Stat. § 92F-11(a) (1996). It seeks to "[e]nhance government[] accountability" and to "[m]ake government accountable to individuals in [its] collection, use, and dissemination of information [about] them." Id. §§ 92F-2(3), (4). The UIPA complements the requirements of the Hawai'i Administrative Procedure Act [HAPA], which also mandates that government agencies make information under their control available for public inspection. Id. § 91-2 (1996).

A significant constraint on the statutorily sanctioned philosophy of access comes from the Hawaii Constitution's explicit guarantees of privacy. Haw. Const. art. I, §§ 6, 7. The UIPA acknowledges 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 . . . ." Haw. Rev. Stat. § 92F-2 (referring to Haw. Const. art. I, §§ 6, 7). The OIP often cites the UIPA's provision providing an exception to the general rule of public access based on unwarranted invasion of privacy as the reason for denying or limiting access. While the UIPA's invasion of privacy exception applies only to natural persons, id. § 92F-14(a), it accords with the HAPA provisions mandating confidentiality of agency records about individuals and entities. Id. § 91-2(b) (1996). Under the UIPA, agencies receive the effective equivalent of "privacy" protection when disclosure falls within UIPA's exception based on frustration of legitimate government purpose. Id. § 92F-13(3).

The UIPA lists three other bases that might support a denial of access to government records, see id. § 92F-13, including the most frequently cited: specific statutes or court orders. Records Not Available to Public, OIP Openline (newsletter), July 1992, at 2; Haw. Rev. Stat. § 92F-13(4) (Supp. 1999). The remaining two exceptions supporting denials of access primarily serve to protect government interests in undiscoverable materials associated with the prosecution or defense of judicial or quasi-judicial "action[s] to which the state or any county is or may be a party," Haw. Rev. Stat. § 92F-13(2); and "inchoate and draft working papers of legislative committees . . . ," legislative investigative committees, and "personal files of members of the legislature," id. § 92F-13(5).

"The purpose of chapter 22 is to remedy unnecessary secrecy in conducting the public's business." US West Commc’ns, Inc. v. Office of Consumer Advocate, 498 N.W.2d 711, 713 (Iowa 1993). “The Act carries with it ‘a presumption of openness and disclosure.’” In re Langholz, 887 N.W.2d 770, 776 (Iowa 2016) (citing Iowa Film Prods. Servs. v. Iowa Dep’t of Econ. Dev., 818 N.W.2d 207, 217 (Iowa 2012) (citation omitted)). Rather, the purpose of the Act is to ensure transparency, “open the doors of government to public scrutiny,” and prevent the government from acting in secret. Iowa Film Prods. Servs., 818 N.W.2d at 217 (quoting Rathmann v. Bd. of Dirs., 580 N.W.2d 773, 777 (Iowa 1998) (citation omitted)); Press-Citizen Co. v. Univ. of Iowa, 817 N.W.2d 480, 484 (Iowa 2012).

The basic policy of Kentucky’s Open Records Act is that “free and open examination of public records is in the public interest and the exceptions … provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.” Ky. Rev. Stat. 61.871.

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Article II, Section 9 has been implemented by statute: Mont. Code Ann. §2-6-1001 et. seq. §2-6-1002 defines a public record as “information” fixed in any medium and retrievable in usable form prepared, owned used or retained by any public agency relating to the transaction of official business.

Procedures are similar to the Federal Freedom of Information Act.

In North Dakota, all public records are open records, unless there is a specific statutory exception for a particular type of record. The North Dakota Constitution states:

Unless otherwise provided by law, all records of public or governmental bodies, boards, bureaus, commissions, or agencies of the state or any political subdivision of the state, or organizations or agencies supported in whole or in part by public funds, or expending public funds, shall be public records, open and accessible for inspection during reasonable office hours.

N.D. Const., art. XI, § 6.

The North Dakota open records statute contains essentially the same language:

1. Except as otherwise specifically provided by law, all records of a public entity are public records, open and accessible for inspection during reasonable office hours.
2. Upon request for a copy of specific public records, any entity subject to subsection 1 shall furnish the requester one copy of the public records requested. An initial request need not be made in person or in writing, and the copy must be mailed upon request. A public entity may require written clarification of the request to determine what records are being requested, but may not ask for the motive or reason for requesting the records or for the identity of the person requesting the public records.

N.D.C.C. § 44-04-18(1)-(2).

Emphasizing the central function of the open records law, the North Dakota Supreme Court held, “What the Legislature was attempting to accomplish was to provide the public with the right and means of informing itself of the conduct of the business in which the public has an interest, in order that the citizen and taxpayer might examine public records to determine whether public money is being properly spent, or for the purpose of bringing to the attention of the public irregularities in the handling of public matters.” Grand Forks Herald, Inc. v. Lyons, 101 N.W. 2d 453, 546 (N.D. 1960). The court later concluded, “For an exception to the open-records law to exist under our constitutional and statutory provisions, it must be specific, i.e., the Legislature must directly address the status of the record in question, for a specific exception, by the plain terms of those provisions, may not be implied.” Hovet v. Hebron Pub. Sch. Dist., 419 N.W.2d 189 (N.D. 1988).

Although the state constitution and the statute are clear that unless an express exception applies, public records are open records, there are nonetheless specific statutes declaring that certain records are open records, subject to exceptions. For example, the statutes address the records of the State Highway Department (N.D.C.C. § 24-02-11(1)), the State Engineer (N.D.C.C. § 61-03-06), the Water Conservation Commission (N.D.C.C. § 61-02-11), school districts (N.D.C.C. § 15.1-07-25(1)), and irrigation district boards of directors (N.D.C.C. § 61-06-21.1). Additionally, city real property assessment rolls (N.D.C.C. § 40-19-03) and master lists of potential jurors (N.D.C.C. § 27-09.1-05(3)) are listed as open records.

In addition, some entities may be subject to North Dakota’s public records laws even if they are not arms of the government. An organization created or recognized by a state statute or by an action of a state agency for the purpose of performing a public function — on behalf of or standing in the place of a public entity — is subject to open records laws. N.D.C.C. § 44-04-17.1(13)(a), (b); N.D. Op. Att’y Gen. 2017-O-07; N.D. Op. Att’y Gen. 2013-O-19; N.D. Op. Att’y Gen. 2013-O-16; N.D. Op. Att’y Gen.

2008-O-29; N.D. Op. Att’y Gen. 2006-O-05; N.D. Op. Att’y Gen. 2006-O-02; See Hagen v. N. Dakota Ins. Rsrv. Fund, 971 N.W.2d 833, 839 (N.D. 2022) (holding that an insurance pool organized as a state self-insurance pool qualified as an “agency” of the city). Next, a non-governmental organization can qualify as a “public entity” if is spends public money or receives public money for its operations. N.D.C.C. § 44-04-17.1(10). Third, if an entity performs a government function or maintains records that relate to businesses that fulfill the role of a public entity, it may be considered as an “agent” or an “agency” of a public entity, making it subject to public records laws. N.D.C.C. § 44-04-17.1(13), (16). See also Forum Publishing Co. v. City of Fargo, 391 N.W.2d 169 (N.D. 1986). N.D. Op. Att’y Gen. 2017-O-01; N.D. Op. Att’y Gen. 2015-O-01; N.D. Op. Att’y Gen. 2014-O-24; N.D. Op. Att’y Gen.2014-O-04; N.D. Op. Att’y Gen. 2013-O-19; N.D. Op. Att’y Gen. 2013-O-16; N.D. Op. Att’y Gen. 2008-O-15; N.D. Op. Att’y Gen. 2007-O-07. Entities that qualify as “agencies of government” include: an advertising company that worked on behalf of a city, a university bookstore, and a human society, a taxi company, and a foundation.  This scheme is one reason why North Dakota’s public records laws are so expansive. N.D. Op. Att’y Gen. 2001-O-04. N.D. Op. Att’y Gen. 2001-O-11; N.D. Op. Att’y Gen. 2001-O-10. N.D. Op. Att’y Gen. 2004-L-25. N.D. Op. Att’y Gen. 2015-O-01.N.D. Op. Att’y Gen. 2014-O-24.N.D. Op. Att’y Gen. 2014-O-07; N.D. Op. Att’y Gen. 2014-O-04; N.D. Op. Att’y Gen. 2013-O-10; N.D. Op. Att’y Gen. 2009-O-08; N.D. Op. Att’y Gen. 2006-O-01.

The Oklahoma Open Records Act is a series of laws located at title 51, sections 24A.1 to 24A.33 of the Oklahoma Statutes. The purpose of the Act is as follows:

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.

The Tennessee open records law (the "Act") provides for a Tennessee citizen's personal inspection of all state, county and municipal records at all times during business hours unless the records are statutorily declared to be confidential. A public record is defined as follows:

all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings, or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental entity.

T.C.A. § 10-7-503(a)(1)(A)(i). See also T.C.A. § 10-7-403 (defining "Public records within the county"). The determination of whether a document has been received "in connection with the transaction of official business" requires an examination of the totality of the circumstances. Griffin v. City of Knoxville, 821 S.W.2d 921, 924 (Tenn. 1991) (suicide notes taken into police custody are public records). Tennessee courts have had occasion to determine that certain records claimed to be exempt were in fact intended to be open: applications of those seeking the position of school superintendent, Board of Education of Memphis City Schools v. Memphis Publishing Co., 585 S.W.2d 629 (Tenn. Ct. App. 1979); payroll records of a public hospital, Cleveland Newspapers Inc. v. Bradley County Memorial Hospital Board of Directors, 621 S.W.2d 763 (Tenn. Ct. App. 1981); and closed investigative files of a police department, Memphis Publishing Co. v. Holt, 710 S.W.2d 513 (Tenn. 1986). Forty eight categories of exceptions to the mandate of openness are contained in the Act itself under the rubric of "confidential records." T.C.A. § 10-7-504. The legislature has enacted numerous other statutes providing that certain records be deemed confidential or closed.

A 1988 survey by a special committee of the Tennessee General Assembly found a total of 89 exemptions either limiting or barring public access to various public records. Since that time, the General Assembly has frequently enacted additional exemptions. The attached Appendix lists 365 exemptions, but a list of exemptions the OORC released on January 30, 3018 finds 538 statutory exemptions with only two scheduled to sunset, which means the General Assembly has been passing exemptions at the rate of 15.5 per year since 1988. The OORC list was prepared for the General Assembly with the understanding that it might review the list to determine if more exception should be eliminated. The OORC list may be found at http://www.comptroller.tn.gov/openrecords/. The difference between this list and the attached Appendix maybe partly one of interpretation.

PUBLIC RECORDS ACT

“Officers of government are trustees and servants of the people and it is in the public interest to enable any person to review and criticize their decisions even though such examination may cause inconvenience or embarrassment. All people, however, have a right to privacy in their personal and economic pursuits, which ought to be protected unless specific information is needed to review the action of a governmental officer. Consistent with these principles, the general assembly hereby declares that certain public records shall be made available to any person . . . . To that end, the provisions of this subchapter shall be liberally construed . . . .”

1 V.S.A. § 315.

The Public Records Act has recently been amended, with certain changes having gone into effect on January 1, 2019 and others having gone into effect on July 1, 2019.  See 1 V.S.A. § 317.  These changes primarily impact the expiration and renewal process for exemptions to the statute.

Note: Pursuant to RCW 42.56.570, the Washington Attorney General’s Office (AGO) has prepared a set of model rules regarding the Public Records Act. See WAC Ch. 44-14. Each state and local agency is urged to adopt these rules to provide greater clarity and uniformity in terms of how public records requests are handled. The original model rules, adopted in 2006, indirectly provided a good overview regarding interpretation of the Public Records Act and a guide to agency “best practices.” The rules were revised and, to some extent, watered down, in 2018.

The Freedom of Information Act's declaration of policy, which is quoted in the Foreword, is the only indication of the legislative intent underlying the statute. There is no recorded legislative history relating to either the statute's original enactment in 1977 or its subsequent amendments. However, the state Supreme Court of Appeals has quoted the FOIA policy declaration repeatedly in its opinions. See e.g., Daily Gazette v. W. Va. Dev. Office, 198 W. Va. 563, 482 S.E.2d 180 (1996); Ogden Newspapers v. City of Charleston, 192 W. Va. 648, 453 S.E.2d 631 (1994). West Virginia's Supreme Court has mandated "the fullest responsible disclosure" of information concerning government. Hechler v. Casey, 175 W. Va. at 445, 333 S.E.2d at 808.

The remedial purpose of the Public Records Act is "to permit access to public records unless disclosure would inflict irreparable harm contrary to protected rights." Id.