U. State guard records

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In a 2014 suit, news organizations sued the state to obtain records relating to allegations of sexual assaults and misconduct, and of drug dealing, by members of the Alaska National Guard, including misconduct by members of a recruiting unit, and relating to the executive branch’s oversight and response to these matters. Alaska Dispatch News and Alaska Public Media v. Parnell, 3AN-14-9599 Civ., Super.Ct., 3^rd Jud.Dist., 2014).  After the Office of the Governor failed to produce requested documents, or an appropriate privilege log, counsel for the press obtained a court order requiring “rolling production,” in daily increments, as the state searched for and processed relevant records in the period leading up to the pending gubernatorial election. Many documents were withheld by the state based on claims of executive or deliberative process privilege, privacy, the state personnel act, and various other grounds. The parties disagreed about the application of State of Alaska, Department of Military and Veterans Affairs, Alaska National Guard v. Bowen, 953 P.2d 888, 900 (Alaska 1988), the press noting that it shows the State Personnel Act does not apply to members of the National Guard, the state noting that "Alaska Statutes 26.05.060 and 26.05.340 specifically provide that Alaska National Guard personnel are subject to the federal laws and regulations relating to the National Guard," including the Federal Privacy Act, 5 U.S.C. § 552a(b)(2). The press also argued that privacy considerations were outweighed, and that the executive and deliberative process privileges should not be asserted or were overcome. After substantial document production, the case was settled without a trial or other resolution of these matters.

 

Following news accounts relating to this “National Guard Scandal,” an internal investigation was initiated in 2014 by the Municipality of Anchorage.  The contractor hired by the Municipality focused on allegations that an Anchorage Police Department lieutenant had provided, or caused information to be provided, by other APD officers to National Guard officials about investigations into alleged misconduct by Guard members that supposedly impaired or squelched these criminal investigations. The MOA investigation led to the termination of the lieutenant for this conduct and/or for allegedly lying about it, and to the secret temporary suspension of the Anchorage police chief. The APD lieutenant filed a wrongful termination suit against the Municipality, claiming he was fired in retaliation for unrelated activities, and did nothing wrong with respect to the National Guard investigations. (See, Henry v. Municipality of Anchorage, Case No. 3:15-cv-187-RRB, U.S. Dist. Ct. D.Ak.). The Municipality attempted to conceal the investigator’s 97-page report.  It was eventually made public by order of the federal judge presiding over the former lieutenant’s wrongful termination suit against the Municipality. The federal judge presiding over the trial granted the motion filed by Anchorage Daily News and KTUU-TV seeking access to the report  (See, Henry v. MOA, Order As To Motions Regarding Access To Brown Report And Related Judicial Records, issued September 25, 2018, Dkt. 918) (granting access to internal investigation report leading to termination of Anchorage Police Department lieutenant).

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The California State Military Department includes the office of the Adjutant General, the California National Guard, the State Military Reserve, the California Cadet Corps, and the Naval Militia. Cal. Mil. & Vet. Code § 50. The National Guard includes the California Army National Guard and the California Air National Guard. See California Military Department--CalGuard.

Only a few statutes specifically address the public records status of records of the Military Department. Exempt from public disclosure are “requests” to investigate any complaint or allegation regarding: (1) a violation of law, including regulations, the Uniform Code of Military Justice, and any law prohibiting sexual harassment or unlawful discrimination; or (2) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to the public health or safety. Cal. Mil. & Vet. Code § 55(h)(3)(A). This statute is silent on the public records status of the actual complaint. The California Military Department Inspector General may not disclose “to any person or entity the identity of a person making a written request or an allegation or complaint” pursuant to Section 55(h)(1) of the Military and Veteran’s Code. Cal. Mil. & Vet. Code § 55(h)(3)(B). Annual reports of the inspector general containing a summary of investigations “shall be made available to the public and posted on the office’s Internet Web site.” Cal. Mil. & Vet. Code § 55(j)(1)(A).

Separately, the California Military Whistleblower Protection Act (Cal. Mil. & Vet. Code § 56) authorizes (but does not require) the inspector general to withhold from otherwise disclosable reports of whistleblower investigations summaries of interviews conducted, or any document acquired, during the course of the investigation. Cal. Mil. & Vet. Code § 56(f)(3). However, the inspector general is required to submit public quarterly reports of investigations under this statute. Cal. Mil. & Vet. Code § 55(j)(2). The inspector general has discretion to withhold the identities of individuals or redact facts from these public reports that might hinder investigations under state or federal law or the Uniform Code of Military Justice, and to decline to produce any of the underlying materials. Id.

There are no published cases discussing access to Military Department records under the CPRA.

Not specified, but presumably open.

Not specifically addressed.

The Act does not contain a specific exemption for these records.

The Act does not exempt state guard records.

There is no statutory or case law addressing this issue.

Military records as described in and pursuant to section 65-301, Idaho Code (related to services for veterans) are exempt from disclosure under Idaho Code § 74-106(4)(f).

Under Iowa Code § 22.7(46), military personnel records recorded by the county recorder pursuant to section 331.608 are confidential.

Not specifically addressed.

Not Applicable in Kentucky.

Should be treated the same as other public employment records.

The records of the Department of Defense, Veterans and Emergency Management are generally public.  Records of the Maine Army National Guard may also be public under the federal Freedom of Information Act.  See http://www.me.ngb.army.mil/policy/foia.aspx.  Likewise, records of the Maine Air National Guard may also be public under the federal Freedom of Information Act.  See http://www.101arw.ang.af.mil/resources/.

There is no statutory or case law addressing this issue.

Not specifically addressed.

State guard records are not specifically addressed under the Act.

No specific state statute

There is no separate case law on this issue at this time.

Personnel records of the State Guard are generally private unless the demands of privacy do not clearly exceed the merits of public disclosure.

Investigation records maintained by the Nebraska State Patrol may be withheld from the public. Neb. Rev. Stat. § 84-712.05(5).

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

Neither the Statute nor case law addresses this issue.

The Department of Corrections’ (“DOC”) regulations governing access to public records is codified at N.J.A.C. 10a:22-1.1-4.3.  Subject to these regulations, the DOC is an agency governed by OPRA.  Conley v. New Jersey Dep't of Corr., 452 N.J. Super. 605 (App. Div. 2018).

There is no case law or statutes on this issue.

Presumably open, but there is no law that speaks directly to the issue.

There is no specific statute that addresses this.

Records and papers pertaining or relating to veterans that are transmitted by the United States government to the Department of Veterans Affairs are in some cases exempt. See N.D.C.C. § 37-18-11.

There is no statutory or case law addressing this issue.

Oklahoma has not specifically addressed the status of state guard records. The Oklahoma Attorney General has stated that the Oklahoma National Guard is within the Oklahoma Military Department, which is an agency of the state of Oklahoma. . In the same opinion, the Attorney General found that the Oklahoma National Guard was a state law enforcement agency for purposes of sharing in the proceeds of federal drug-related property forfeitures. Id.

The Law is silent on this type of record.

There is no statutory or case law addressing this issue.

Neither the South Carolina National Guard nor the South Carolina Guard are exempted for requests for information pursuant to the South Carolina Freedom of Information Act.

Presumably closed to the extent they are “personnel” files under SDCL 1-27-1.5(7).  See also SDCL 3-6D-24.

Records involved security including national guard personnel records are closed. T.C.A. § 10-7-504(a)(3).

Government Code § 437.232 provides that “military personnel information is confidential and not subject to disclosure” under the Act.  Information confidential under this provision includes a service member’s name, home address, rank, official title, pay rate or grad, state active duty orders, deployment locations, military duty addresses, awards and decorations, length of service, and medical records.  Id.  This confidentiality extends to records concerning members of the Texas National Guard and Texas State Guard.  See Tex. Gov’t Code § 431.001(14); Op. Tex. Att’y Gen. OR2017-27260.

The Utah National Guard is an executive branch entity subject to GRAMA. Id. § 63G-2-103(11)(a)(i). However, information pertaining to the National Guard’s operations or activities in support of the National Guard’s federal mission are protected if properly classified by a governmental entity. Id. § 63G-2-305(45).

Vermont National Guard records are grouped into two categories – those regarding service members who were discharged, retired, or died in service 62 years or more ago and those that were discharged, retired, or died in service less than 62 years ago.

For records regarding a service member who was discharged, retired, or died in service more than 62 years ago, those records are considered archival records and are open to the public. The Privacy Act of 1974 does not apply to archival records, therefore, written authorization from the veteran or next-of-kin is not required. In order to protect the privacy of the veteran, his/her family, and third parties named in the records, the personal privacy exemption of the Freedom of Information Act (5 U.S.C. 552 (b) (6)) may still apply and may preclude the release of some information.

For records regarding a service member who was discharged, retired, or died in service less than 62 years ago, those records are subject to restrictions imposed by Department of Defense regulations, the provisions of the Freedom of Information Act (FOIA) and the Privacy Act of 1974. Generally, requests must be submitted using Form “SF 180 – Request Pertaining to Military Records” and must include a signature from the service member whose records are the subject of the request. SF 180 forms are available at http://vt.public.ng.mil/Contact-Us/.

The Adjutant General maintains the records of the state militia pursuant to Va. Code Ann. § 44-16.  Such records are public records, as they fall within the definition in the Act.

The Washington State Guard is subject to the Public Records Act in the same manner as other state agencies.  See Ch. 323-10 WAC.

There are no West Virginia statutes relating to accessibility of State guard records other than FOIA.