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VT Supremes deliver split decision in open records case  Apr 30, 2012

Montpelier, Vermont: The Justices of the Vermont Supreme Court have issued two distinct decisions with regard to access to public employee investigations in the past month and a half under the Vermont Public Records Law. The suits were brought by the Rutland Herald and sought access to documents relating to an internal investigation within the police department and an investigation relating to allegations that a public works employee viewed pornography on a city computer. While the court allowed access to disciplinary records stemming from investigations of public employees it blocked access to investigations internal to the police department when they were linked to investigation and detection of a crime. Robert Hemley, an attorney for the Rutland Herald, reluctantly agreed with the police department decision, telling the press “Anything that has to do with the detection and investigation of a crime, everybody agrees you cannot get, and that exemption lasts forever.” The court did however encourage the state legislature to reconsider the broad exemption. It also held that investigative records that truly related to personel matters within a police department should be subject to a balancing test against public interest and employee privacy. The court resolved this in its second decision by requiring the release of records with the names of employees redacted.^[1]

Arkansas Supremes rule use-of-force reports are public records  Mar 02, 2012

Little Rock, Arkansas: On Thursday, February 16 the Arkansas Supreme Court delivered its decision in Thomas v. Hall and held that police use-of-force reports fall under the Arkansas Freedom of Information Act and are subject to release. The original request was filed by attorney Keith Hall relating to a client who was struck by an off duty police officer. Little Rock Police Chief Stuart Thomas denied the request claiming that the reports were exempt under an exemption for employee-evaluation or job-performance records. The circuit court ruled in favor of Hall and the Supreme Court affirmed the decision. Associate Justice Robert L. Brown wrote the decision and stated, "We liberally interpret the FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner." Chief Justice Jim Hannah concurred, writing, "Because the keeper of the requested records claiming the exemption failed to meet the burden of proof, I agree that the decision of the circuit court must be affirmed."^[2] You can find a list of exemptions to the Arkansas Freedom of Information Act here.

NH High Court to hear open meetings case addressing attorney-client privilege  Dec 15, 2011

Concord, NH The New Hampshire Supreme Court will soon hear the appeal in an open meetings case which will decide if material discussed in an open meeting can later be exempted from minutes under the attorney client privilege exemption. The suit filed by the Professional Fire Fighters of New Hampshire appeals a decision by Merrimack Superior Court Judge Richard McNamara, who held that the redaction of the meeting minutes fell within the law. The lawsuit centers on a public meeting in May 2010 where the Local Government Center (LGC) met in an open meeting and proceeded to discuss "strategic planning." At the meeting in question the LGC received legal advice from its attorneys, information which the LGC argues would normally be disclosed only in a closed executive session and is exempt from the law. No one was in attendance at the meeting and so the LGC did not worry about convening a closed session. The Unions lawsuit claims, "The LGC waived its claim of attorney-client privilege when it obtained the advice of counsel in an open, public meeting. There can be no reasonable expectation of privacy where a party's attorney is speaking in a public meeting." ^[3]

NH Supreme Court limits access to police records  Nov 14, 2011

Concord, NH On Wednesday, November 2, 2011 the New Hampshire Supreme Court issued its ruling in David Montenegro v. City of Dover and affirmed the lower courts decision to exempt information on police surveillance systems under the New Hampshire Right to Know Law. The lawsuit was originally filed by Montenegro in January 2010 seeking access to information relating to the capabilities of police surveillance equipment including operation times and recording retention time. In response to the request, the city released redacted information, claiming that parts of the request were exempt under security and police exemptions. The court affirmed this interpretation, stating, "This information is of such substantive detail that it could reasonably be expected to risk circumvention of the law by providing those who wish to engage in criminal activity with the ability to adjust their behaviors in an effort to avoid detection." The court did side with the requester on the issue of job titles and ordered the titles of security monitors to be released under the records act. ^[4]

VA Supreme Court exempts State Corporation Commission from open records law  Nov 08, 2011

Richmond, VA On Friday, November 4, 2011 the Virginia Supreme Court unanimously ruled in Christian v. State Corporation Commission that the State Corporation Commission (SCC) was not a public body according to the Virginia Freedom of Information Act. The court arrived at its decision based on the numerous existing laws governing the actions of the SCC combined with the Virginia legislature's rejection of a 1995 bill to incorporate the commission into the FOIA law. The court felt that it could not override the legislatures clear wishes on the issue. ^[5]

Virginia law currently includes all private agencies that are "supported wholly or principally by public funds" or entities which were "created to perform delegated functions of the public body or to advise the public body". ^[6]

N.J. Supremes rule that the League of Municipalities is a government body  Aug 30, 2011

Trenton, NJ On August 23, 2011, the New Jersey Supreme Court issued a major ruling in favor of government transparency holding that the New Jersey League of Municipalities is a public body subject to the states New Jersey Open Public Records Act and New Jersey Open Public Meetings Act. The original suit was filed in 2008 by the Fair Share Housing Center, a nonprofit advocacy group in New Jersey. The court held that “The league meets the definition of a public agency for OPRA (Open Public Records Act) purposes — it is an ‘instrumentality … created by … political subdivisions.’ As a public agency, the league must make available government documents as required by OPRA.”^[7] The League is composed of entirely elected or appointed public officials and lobbies on behalf of state municipalities. In addition, its employees participate in state funded retirement plans. The decision overturned a ruling by the appellate courts which upheld the decision of a trial court.^[7] You can read more about private agencies and public records laws in New Jersey or another state at Private agency, public dollars.

Tennessee judiciary and legislature struggle for power over the Court of Judiciary  Jun 13, 2011

The Court of Judiciary is charged with investigating complaints filed against judges and determining what disciplinary action, if any, is necessary. Current law states that 10 of the 16 members are appointed by the Tennessee Supreme Court. The proposed bill would reconstitute the Court with 12 members, all of whom would be appointed by the speakers of the House and Senate, and only 5 of whom would be judges.^[8]

VT Supreme Court rules ballots are public records  May 03, 2011

Montpelier, VT On Friday, April 29, in a 4-1 decision, the Vermont Supreme Court issued its ruling in the case of Price v. Town of Fairlee establishing that there was sufficient public interest in election ballots that they be considered public documents. The court held that election ballots must be concealed for 90 days after the election and could then either be destroyed at the discretion of the town clerk or must be released to the public. However, the court did note that records held in a pending request could not be destroyed. ^[9]

NM Supreme Court to determine if employee complaints are public records  Apr 14, 2011

Santa Fe, NM The New Mexico Supreme Court is preparing to hear arguments in a New Mexico Inspection of Public Records Act case which will have a great impact on the ability of citizens in New Mexico to monitor the performance of public employees. The case, Cox v. New Mexico Department of Public Safety revolves around a citizens attempt to view copies of complaints filed by citizens concerning the behavior of Department of Public Safety (DPS) employees. DPS rejected the original request made under the New Mexico Inspection of Public Records Act alleging that the release of the records would constitute an unwarranted invasion of personal privacy. The appeals court ruled against DPS claiming that the records were public. A decision is expected in the next 6 months. ^[10]

Texas Open Meetings Act survives another challenge  Apr 14, 2011

Texas: The Texas Open Meetings Act (TOMA), which sets the ground rules for transparency in meetings of the state’s governmental officials, was challenged in federal court last month. The case, heard by US District Judge Robert Junell on March 25th, was brought by council members from twelve Texas cities – with the City of Alpine leading the challenge. This is the second time Judge Junell has upheld the constitutionality of the Open Meetings Act against a challenge from Apline council members in recent years.

Challengers to the Act not only feel that it inhibits First Amendment rights to free speech but that it is also “vague and confusing.” ^[11] Arlington Council member Mel LeBlanc explained: "As an elected public official, I am constantly in meetings where the issue of [the act] comes up, and nearly every time, each individual in the meeting has his own interpretation of this law. Thus we defer to city legal counsel for advice, only to be told that the answer is not clear.” ^[11]

Ultimately Junell ruled that the Open Meetings Act will stand. Junell wrote in his decision that "Open meetings enable public discussion and discourage government secrecy and fraud."^[12] He went on to state "Governmental bodies have no First Amendment right to conduct public business behind closed doors. TOMA ensures that governmental bodies perform their duty, which is informing Texas citizens about public affairs." ^[13]

Junell ruled in favor of TOMA in a similar case brought by the same parties in 2006. The decision was appealed to the US Fifth Circuit, which dismissed the case in 2009 stating the case had lost its relevance because the challengers were no longer public officials.^[14] The challengers say they are going to appeal again and there is a possibility the case could reach the US Supreme Court.^[15] If that happens, the fate of the Texas Open Meetings Act could affect the fate of open meetings acts across the nation.

Taxpayer's Right to Know Act aims to combat JobsOhio  Mar 05, 2011

Columbus, OH Further developments on the privatization of the Department of Development in Ohio. House Democrats led by Representative Matt Lundy have drafted a new piece of legislation that amends the Ohio Open Records Law and Ohio Open Meetings Law to include JobsOhio by making the meetings and records of any "governing board of a corporation" that enters into a public-private partnership subject to open meetings and records requirements. A "public-private partnership" is defined as a contractual relationship between a state agency and a corporation with the intent of the corporation exercising some or all of the agencies powers, functions or duties. Both chambers of the Ohio legislature are Republican majority, so without support from across the isle this bill is not likely to pass.

Mississippi enacts law that would impose civil penalty on Open Records violators  Mar 04, 2011

Jackson, MS An interesting bill was passed last week in Mississippi. Senate Bill 2289, Mississippi 2011 and House Bill 314, Mississippi 2011 combine to create civil penalty for violators of the Mississippi Public Records Act. The law targets individual members of a public body who refuse access to public records or violate public records laws in some way. Initial fine levels would be made $500 for a first offense and $1,000 for a second offense. Any person who denies access to a public record would be liable for a civil sum up to $100 per violation. Previous law levied a fine against the public body as a whole, which meant tax payer dollars were used from one arm of the government to another. Many states allow committees and other public bodies a legal fee to hire a lawyer to defend their actions, however as the penalty is levied against an individual this would not be allowed. ^[16]

SCOTUS rules that corporate information does fall within the FOIA exemption for personal privacy  Mar 02, 2011

Washington D.C. On March 1 the Supreme Court of the United States issued its long awaited ruling in the case of FCC v. AT&T. Overturning the decision of the Third Circuit Court of Appeals, the Court ruled in favor of the FCC determining that, as a corporation, AT&T had no right to claim a "personal privacy exemption" to protect documents sought under the Federal Freedom of Information Act. The Court rejected AT&T's argument that because had defined "person" so as to include corporations, it had in turn defined "personal" to include corporations as well. The court found that first and foremost, "in ordinary usage, a noun and its adjective form may have meanings as disparate as any two unrelated words."^[17] In addition, the court established that the term "personal" is often used to only refer to the individual and never used to refer to a corporation and is in fact more often used to refer to strictly non-business information. Firmly rejecting AT&T's argument, Chief Justice John G. Roberts felt the need to insert some judicial humor, stating at the end of the opinion, "We trust that AT&T will not take it personally."^[17]

New Mexico Supreme Court to require I.D. to view court records  Feb 24, 2011

Santa Fe, NM The New Mexico Supreme Court has altered their rules for requesting records from the court system and will begin requiring an I.D. from requesters prior to release. The rule was adopted in February 2 and went into effect the week of February 14. The rule is a companion rule to a decision made by the court last year to begin requiring attorneys to submit two copies of court paperwork, one with identifying information for court use and one with that information redacted, for release to the public. The court argues that due to non-compliance with the previous rule, the I.D. requirement and a log of information relating to individuals requesting documents is necessary in order to protect the privacy interests of those associated with the courts. The New Mexico Foundation for Open government opposes the new rule, stating, ""It could be a violation of the Constitution if they deny records to people because they don't have I.D. There is a potential for abuse."^[18]

Two bills strengthening open meetings and open records move forward in Wyoming House  Feb 01, 2011

Cheyenne, WY Two bills intended to strengthen the Wyoming Public Meeting Law and Wyoming Sunshine Law passed the first reading in the House this week. The public records section of the bill would require existing documents to be provided within seven working days. If a request for new data or a large sampling would take longer than seven days an answer on how much longer such an undertaking would require must be submitted within a week to the requester. The open meetings section of the bill would reduce the required notification period for an emergency meeting from 24 to 12 hours. In addition lawmakers would no longer be required to record audio of executive sessions, and they may instead opt to keep traditional minutes which would still only be released with a judge's order. ^[19]

Ohio Legislature considers new plan JobsOhio, a new private agency funded by public dollars  Jan 29, 2011

Columbus, OH A bill that is sure to generate some controversy in the FOIA community, JobsOhio or House Bill 1, Ohio 2011 is before committee in the House of Representatives. Governor John Kasich proposed the legislation earlier this month as an initiative to bring Jobs to Ohio. JobsOhio would be created as a private agency exempted for the most part from public records and open meetings laws. More information about Ohio's laws on private agencies receiving public funding can be found at our Private Agencies, Public Dollars page. Governor Kasich believes that working outside the public framework is necessary for economic development to happen.

U. of Florida ordered to make student senate meetings public  Jan 20, 2011

Gainesville, FL This past week a Florida's 8th Judicial Circuit Court Judge Victor Hulslander issued a ruling ordering that the University of Florida open up student senate meetings to the public. The case originated when a UF alumni, Frank Bracco, filed suit, alleging that the University was in violation of the Florida Sunshine Law for failing to make the records of meetings of the student senate available to the public. The University argued that the records and meetings were exempt under FERPA. The court rejected this argument, siding with Bracco. The University has not announced if it is going to appeal the decision.^[20]

Include your description here.

WA Supreme Court rules court records only exempt when held by the courts  Jan 20, 2011

Yakima, WA' On Thursday, January 13, 2011 the Washington Supreme Court issued its ruling in the case of Yakima County v. Yakima Herald-Republic, establishing that court records held by governmental agencies do not fall under the same exemption as records held by Washington state courts. The case centered around over 2 million dollars in funds allocated for attorneys fees for the public defender of a murder trial in 2005. The Herald-Republic argued that the public had a right to the information, while Yakima County maintained that the documents were exempt as court records. The court sided with the Herald-Republic in its 9-0 decision.^[21]

Iowa Association of School Boards seeks exemption for older records  Jan 19, 2011

IA The Iowa Association of School Boards is considering seeking a judges ruling to exempt documents held and created by the publicly funded non-profit prior to the July 1 passage of legislation which brought the board under the public records law. The board has been involved in a number of investigations, ranging from the FBI, the Iowa Division of Criminal Investigation and the Legislature's Government Oversight Committee. It seeks to exempt not only emails and information created prior to the new law but all new records pertaining to events and decisions made prior to the laws passage. While the attorney general has refused to issue an opinion, the Board hopes to take the matter to court as well as lobbying for a direct legislative exemption for the pre-law records.^[22] To read more about Iowa's policy towards publicly funded private entities, and other private groups which may fall under the public records law, please see, Private agency, public dollars-Iowa.

PA Court rules emails stored on a personal computer are not public records  Jan 19, 2011

PA In a January 6 opinion issued by a Pennsylvania appellate court panel, the court established that emails and documents stored by a township commissioner on his or her personal computer were not considered public records. The court felt that the commissioner alone could not act on behalf of the township and thus the records on his personal computer could not be considered public records. Terry Mutchler, executive director of the Pennsylvania Office of Open Records has voiced concern over the ruling due to its capacity to create a loophole for officers to avoid the law. It is unknown if the decision will be appealed.^[23]

Montana Legislature considers public records law changes  Jan 18, 2011

Helena, MT In a bill currently before the Montana House of Representatives which would modify the current Montana Public Records Act and Montana Open Meetings Law. The proposed edits mainly concern recorded meeting minutes, specifically if an official recording of a meeting is made the recording constitutes as the official record of that meeting. It must be accompanied by a written record of the date, time, place, names of the public body and who was in attendance, records of votes, substance of what was discussed and a log or time stamp for each agenda item. ^[24]

VT Judge orders state to permit union to inspect records without charge  Jan 11, 2011

Washington, VT On Friday, January 7, 2011, a Vermont superior court judge issued a ruling establishing that the state is not permitted to charge for records if the record requester only wishes to inspect the records. The ruling came about due to a lawsuit filed by the Vermont State Employees Association against the state Department of Human Resources over the recent purchase of software designed to monitor and limit employees access to the internet. It is unclear if the state will appeal the decision.^[25]

Accessing public information could get pricier in Texas  Jan 10, 2011

HOUSTON, Texas: The cost of obtaining public information could go up in Texas if some officials and bureaucrats have their way in the 82nd legislative session which starts on Tuesday. The Houston Independent School District (HISD) along is asking lawmakers to pass legislation that would allow governments to charge citizens for public records requests before they actually deliver the requested documents. "The Houston district also wants the ability to ignore requests from anyone who still owes money from a previous records request," reports Texas Watchdog.^[26] A spokesperson for HISD stated they have experienced an increase in public information requests and that the "district should be adequately compensated to reflect the time and resources we spend on complying with these requests."^[26]

Transparency advocates aren't buying it. Keith Elkins, executive director of the Freedom of Information Foundation of Texas, says that "there are fair and reasonable cost allowances already on the books."^[26] Current Texas public information laws require government offices to provide requestors with an itemized statement of charges for any costs over $40.^[27] The law also allows for government offices to charge for materials such as CDs and DVDs, as well as for the labor incurred while gathering the requested materials.^[26]

It is unclear from the wording of HISD's legislative agenda exactly what they want to change or how much they seek to increase their fees. The agenda states:

“Allow districts to charge the actual costs for the production of all materials, including the recovery of actual costs of personnel time, to comply with open records requests. Districts should be able to require actual payment of costs prior to compliance and failure to pay after committing to pay relieves districts of any obligation to comply with additional open records requests made by that entity until past balances are paid.”^[26][28]

The Freedom of Information Foundation of Texas's director Keith Elkin notes that government bodies have sought to change public information law in a similar fashion in the past. “The bill is worded slightly differently each time, but the bottom line is the same: They want to make a profit from the sale of electronic copies of their records to the public.” ^[26]

Whether or not government bodies can hike their prices for complying with the Texas Public Information Act will be for legislators to decide in the coming session. Until then Texans can continue accessing their government at the old price.

Greater Houston Partnership ruling could set public information precedent in Texas  Dec 20, 2010

The case started when in 2008 resident Jim Jenkins made a public information request for the Greater Houston Partnership's check register after having his interest spiked over some financial transactions. The Partnership responded that it was not a governmental entity and therefore not subject to the Texas Public Information Act. Judge Scott Jenkins ruled in favor of the resident citing numerous clauses and phrases in the Partnership's contract with the City of Houston that implied an agency relationship as opposed to a strict vendor/service relationship. Insofar as the Partnership is receiving general support by way of public funding and is carrying out governmental responsibilities, Jenkins reasoned they should have to release their records to the public. The case will now go to the Third Court of Appeals of Texas.^[29]

The ruling has the potential to set precedent in Texas that would have significant impact on public information access throughout the state. If upheld the ruling could open up many other organizations that contract with governmental entities in Texas to compliance with the Texas Public Information Act.

Illinois Senate over-rides veto, passes Performance Evaluation block  Dec 09, 2010

Springfield, IL Earlier this year the Illinois House and Senate passed House Bill 5154, a bill designed to make Performance Evaluations of State employees exempt from public record. When the bill arrived at the desk of Illinois Governor Pat Quinn he utilized a partial veto allowing the altered bill to pass. The veto only exempted the performance evaluations of Police Officers and allowed public records searches of all other state employees. The Senate voted 48-3 in favor of overriding Governor Quinn's veto. Teachers' and public employee unions have been pushing for the bill since its inception, whereas local media outlets have commented that the bill weakens the recently revised Open Records Law. ^[30]

[edit] References

Find your State

Sunshine Laws Open Records laws Open Meetings Laws How to Make Records Requests

Sunshine Headlines Across the Country or by State Major Records Requests

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Sunshine Litigation Sorted by State, Year and Topic

Sunshine Nuances Private Agencies, Public Dollars Deliberative Process Exemption

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