Alaska Public Records Act
From Sunshine Review
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The Alaska Public Records Law (APRA) is a series of laws designed to guarantee that the public has access to public records of government bodies at all levels in Alaska. Statues 40.25.100 - 40.25.125 of the Alaska legislature define the law. As recently as 2003, the Alaskan Supreme Court said (in Fuller v. City of Homer), that access to public records is "a fundamental right".
The Alaska Open Meetings Act (OMA) legislates the methods by which public meetings are conducted. Statutes 44.62.310 - 44.62.470 of the Alaska legislature define the law.
Alaska's transparency report card
A 2008 study, BGA - Alper Integrity Index, conducted by the Better Government Association and sponsored by Alper Services, ranked Alaska #40 in the nation with an overall percentage of 45.20%. [1]
A 2007 study, Graded state responsiveness to FOI requests, conducted by BGA and the NFOIC, gave Alaska 3 points out of a possible 100, a letter grade of "F", and a ranking of 48 out of the 50 states.[2]
A 2002 study, Freedom of Information in the USA, conducted by IRE and BGA, ranked Alaska's law as the 48th worst in the country, giving it a letter grade of "F".[3]
Features of the law
How is "record" defined?
"Public records" are defined as books, papers, files, accounts, writings, including drafts and memorializations of conversations, and other items, regardless of format or physical characteristics, that are developed or received by a public agency, or by a private contractor for a public agency, and that are preserved for their informational value or as evidence of the organization or operation of the public agency.
In 1990, the state legislature amended APRA to expand the definition of public records to specifically include drafts and memorializations of conversations.
Who can request records?
Anyone may request Alaskan open records. "Every person has a right to inspect a public record".[4]
For requester residency requirements in other states, see List of who can make public record requests by state.
Must requestors state a purpose?
According to APRA, a "public agency may not request a justification or explanation of need or intended use, but a public agency may inquire whether the person making the request is a party, or represents a party, involved in litigation with the state or a public agency to which the requested record is relevant. If so, the requestor shall be informed to make the request in accordance with applicable court rules."[5]
The "litigation disclosure" statute in the law says, "A public record that is subject to disclosure and copying under AS 40.25.110 - 40.25.120 remains a public record subject to disclosure and copying even if the record is used for, included in, or relevant to litigation, including law enforcement proceedings, involving a public agency, except that with respect to a person involved in litigation, the records sought shall be disclosed in accordance with the rules of procedure applicable in a court or an administrative adjudication.[6]
Alaska's law governing the purpose of requests was changed in 2003 and 2006 in response to the pre-existing situation which is that when public records were requested by a party to a lawsuit, the use of records obtained through ARPA rather than through discovery may be limited by the court. In Brady v. State, a 1998 ruling of the Alaskan Supreme Court, the court said that the part of APRA that limits the public records process for parties to lawsuits is "nexplicable" and that "an equal protection challenge to this provision "is not, at first blush, implausible".[7]
There are still some restrictions:
- The Alaska Supreme Court has ruled that in order to overcome a claim of executive or deliberative process privilege, a requester may be required to state reasons for seeking access so that the interests of the parties can be balanced against one another.
- The FOI law in Alaska has also allowed privacy exemptions, which means that if a requestor is asking for medical, personnel, payroll or other similar records where disclosure to some people might constitute what the courts have described as an "unwarranted invasion of privacy", inquiring as to the purpose of the request may be permissible.
How can documents be used?
The APRA doesn't set limits on what can be done with documents provided under the act.
Commercial interests are allowed to use lists they receive under APRA, such as the names and addresses compiled by the Alaska Department of Fish and Game from hunting and fishing licenses, because a 1990 change in APRA provided a statutory definition of "personal information" regarding privacy exemptions and the definition says that names, addresses and listed phone numbers do not fall under the definition of personal information.[8]
The "deliberative process" privilege
In 1986, in the case of Doe v. Superior Court, the Alaskan Supreme Court ruled that there is a limited "executive" or "deliberative process" privilege that protects communications between the governor and his or her aides about policy matters. This decision related to internal communications about advice, opinions and recommendations. In a 2000 case, Gwich'in Steering Committee v. Office of the Governor, the court said the privilege is intended to "protect the mental processes of governmental decisionmakers from interference." .[9]
In 2003, in Fuller v. City of Homer, the court said that the the City of Homer was wrong to claim that it could withhold access to staff documents under the "deliberative processes privilege".[10]
What governmental bodies are subject to the law?
The Alaska Public Records Act states that "Unless specifically provided otherwise, the public records of all public agencies are open to inspection by the public under reasonable rules during regular office hours. The public officer having the custody of public records shall give on request and payment of the fee established under this section or AS 40.25.115 a certified copy of the public record."[11]
Governor's office
There is no exception in the law for records of the governor.
However, several court decisions have exempted some records of the executive branch that pertain to its decision-making processes.
The Alaska Supreme Court ruled that there is a limited "executive" or "deliberative process" privilege that protects communications between the governor and his or her aides about policy matters in the case, Doe v. Superior Court, a 1986 decision. This decision related to internal communications about advice, opinions and recommendations.
Other cases in which the Alaska Supreme Court said that some records of the governor's office (executive branch) might not be considered public documents are:
- Capital Information Group v. Office of the Governor, a 1996 case.[12]
- Gwich'in Steering Committee v. Office of the Governor, a 2000 case.[13]
Open meetings
The Alaska Open Meetings Act states that "All meetings of a governmental body of a public entity of the state are open to the public". Participation in public meetings by the public may be made via teleconference, if so, materials to be considered at the meeting should also be made available at the teleconferencing location (if practicable).[14]
See Also
External Links
References
- ↑ Integrity Index available for download here
- ↑ Graded state responsiveness to FOI requests, 2007
- ↑ Freedom of Information in the USA, 2002
- ↑ Alaska Statutes, 40.25.120
- ↑ AS 40.96.220
- ↑ AS 40.96.122
- ↑ Open Government Guide to the APRA, section on who may request records
- ↑ Open Government Guide to the APRA, section on use of records
- ↑ Text of the Gwich'in Steering Committee v. Office of the Governor decision
- ↑ Text of Fuller v. Homer
- ↑ Alaska Public Records Law section 40.25.110
- ↑ Text of Capital Information Group v. Office of the Governor decision
- ↑ Text of the Gwich'in Steering Committee v. Office of the Governor decision
- ↑ Alaska Open Meetings Act section 44.62.310
