 |
 |
 |
 |
 |
Sunshine continued
WHAT ARE PUBLIC RECORDS? All
“writings” made, maintained, or kept by the state
or any agency, institution or political subdivision for use in
the exercise of functions required or authorized by law or
administrative rule or involving the receipt or expenditure of
public funds. Police and court records are found in the
Criminal Justice Records Act.
"Writings" includes photographs,
tapes, recording, digitally stored data including electronic
mail and other documentary materials in addition to books,
papers and maps but does not include computer software.
EXCEPTIONS: The custodian of public
records must allow any person to inspect any record unless:
1. State statutes have closed it;
2. Federal law forbids it;
3. The Supreme Court or a state court has
closed the record.
WHEN CUSTODIAN MAY DENY ACCESS:
The custodian has the discretion to close
the following records on the ground that disclosure to the
applicant would be contrary to public interest:
1. Records of Investigations conducted by
any sheriff, prosecuting attorney, or police department, any
records of the intelligence information or
security procedures of these same
officials, or any investigatory files compiled for any other
law enforcement purpose. (Also in Criminal Justice Act)
2. Test questions on licensing, employment
or academic exams, but scores are available to person in
interest.
3. Details of research being conducted by
a state institution or on proposed legislation by legislative
staff or Governor.
4. Real estate appraisals until title is
transferred.
5. Certain information generated by the
bid analysis and management system of the Department of
Transportation.
6. Identifying information in Motor
Vehicle license records.
WHEN CUSTODIAN MUST DENY ACCESS:
The custodian must deny inspections of the
following records:
1. Medical, psychological, sociological
and scholastic achievement data. A coroner's report is open.
Scholastic information is available on finalists
for executive positions.
2. Personnel files. Personnel files
include only: home addresses, phone numbers, financial
information, and other similar private information maintained
because of employer-employee relationship and documents exempt
in other statutes, i.e. letters of reference.
What is specifically not in the file and
therefore open:
Applications of past and current
employees. Employment agreements. Any amount paid or benefit
provided incident to termination of employment. Performance
ratings (with school limitations). Salaries, including expense
allowances, benefits. Final sabbatical reports required by law.
3. Letters of reference.
4. Trade secrets, privileged information
and confidential commercial, financial, geological, or
geophysical data furnished by or obtained from any
person.
5. Library and museum material contributed
by private persons if they so request.
6. Addresses and telephone numbers of
public school children, except to recruiting officers as
decided locally.
7. Library records disclosing identity of
a user.
8. Health data furnished to Health Data
Commission.
9. Addresses, phone numbers and personal
financial information of past or present users of public
utilities, public facilities or recreational or cultural
services owned and operated by the state, its agencies,
institutions or political subdivisions. Includes golf courses,
ice skating rinks, etc.
10. Sexual harassment complaints and
investigations under any General Assembly policy unless
released by person in interest (complainant or person charged).
11. Security arrangements or details of
such arrangements.
12. Motor vehicle records (other than
traffic accident reports) are closed, except for certain
specified uses, which does not include the press.
REQUESTED CLOSURE:
Candidates for executive positions
(college president, city manager, superintendent of schools,
etc.) may request in writing that their applications
be kept confidential; however, names of
all the finalists must be disclosed. When three of fewer
candidates are under consideration, they are finalists. No
appointment may be made less than 14 days after finalists are
named. Information submitted by finalists become public
records.
E-MAIL IS "CORRESPONDENCE"
"Public Records" correspondence
does not include:
• "Work Product" prepared
for elected officials unless the official releases it;
• Correspondence not connected to
official duties not involving public funds;
• Message from a constituent to an
elected official or vice versa that clearly implies expectation
of confidentiality.
"Work Product" includes:
Deliberative materials assembled to assist
elected officials in reaching a decision, such as background
information or drafts of documents expressing a
decision; Drafts of bills or amendments;
Research by legislative council for legislator and identified
as proposed legislation. Member can request
final product remain work product;
otherwise it becomes public record.
"Work Product" does not include:
Final versions of documents expressing
official's decision; fiscal or performance audit reports on
public entity management or expenditure of public funds, or
final financial reports;
Materials distributed in a public meeting
or identified in text of a document that expresses a decision;
Documents which consist solely of factual
information compiled from public sources including comparisons
of existing laws, etc., in other
jurisdictions or compilations of existing
public information, statistics or data or explanations of
general areas of law or policy.
NOTE: Official custodian must consult with
elected official to determine if correspondence is public
record.
TRADEMARK AND COPYRIGHT. Governmental
entities can now get trademark and copyright protection for
public records; however, this cannot restrict public access or
fair use of copyrighted materials and does not apply to
writings which are "merely lists or other
compilations."
COST OF PUBLIC RECORDS: Copies may be made
of any public record at a cost of not more than $1.25 per page;
however, an additional "reasonable fee" may be
charged for:
1. Special requests for data in a form not
required as a record. Requester may have to pay costs to
manipulate the data. Subsequent requesters to pay same as
first.
2. Use of a computer program other than
word processing if necessary to provide a record. Fee for a
copy can recover costs of the system; however, this may be
waived for public purposes, including journalists, nonprofits
and academic research.
3. Records "not readily
available" must be provided within three working days,
unless custodian in writing declares there are
"extenuating circumstances," such as number of
documents required. This extends access
time to seven days.
DELIBERATIVE PROCESS:
Deliberative process may legally exist if
“material is so candid or personal that public disclosure
is likely to stifle honest and frank discussion within
the government.” A records custodian
asserting this privilege must produce an affidavit so
declaring. In cases where a member of the public believes the
privilege has been misapplied, the
custodian of the record must apply to district court for
permission to restrict disclosure. Records discussed in public
meetings or used for discussion in public meetings can NOT be
protected under the deliberative process exemption.
WHAT TO DO IF ACCESS IS DENIED: Write a
letter to the custodian asking for an answer in writing as to
the reason access was denied. The custodian must answer within
three working days. If the reason is not deemed
adequate, request for inspection may be
made to district court, with hearing to be held "at the
earliest practical time." Three days’ notice must be
given to the records custodian before the
suit is filed in order to recover attorneys’ fees, if
successful. The custodian must prove that it would be
injurious to the public interest to open
the record.
PENALTY: Anyone who willfully and
knowingly violates the provisions can be found guilty of a
misdemeanor. The fine is set at $100 and/or
imprisonment of 90 days. If a court finds
the document was withheld arbitrarily or capriciously,
custodian may personally be ordered to pay petitioner's court
costs.
LEGISLATIVE POLICY: Criminal justice
agencies shall maintain records of official actions and such
records shall be open to inspection by any person and that all
other records of criminal justice agencies in this state may be
open for inspection.
WHAT AGENCIES ARE INVOLVED: Any court with
criminal
jurisdiction and any law enforcement
agency in counties, cities, home rule cities, governing boards
of institutions of high education, school districts,
special districts or authorities which
investigate crime or work with those convicted of crimes.
