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32 although, as discussed below, the scope of those laws state law, public agencies, including transit agencies, differs. State requirements for disclosing or withholding may be called upon to explicitly balance competitive information, as well as for maintaining records, are procurement and security considerations. These consid- clearly relevant to information that is not created pur- erations may appear to be in conflict on their face. For suant to federal mandates or shared with federal agen- example, the Northern Palm Beach County Improve- cies. Even where security information is submitted for ment District questioned its authority to release build- purposes of completing federal grants or otherwise ing plans to contractors for purposes of meeting its obli- complying with federal law, state law may be relevant. gations under Florida's competitive bidding For example, DHS recommends that applicants consult requirements, in light of Section 199.07(3)(ee), Florida state and local laws concerning the release of informa- Statutes, which exempts certain public building plans tion in considering what information to report in grant from the mandatory disclosure requirements under applications, needs assessments, and strategic plan- Florida's constitution. In response, the Florida Attorney ning.320 Moreover, as discussed below, state procedural General advised that the competitive bidding and secu- requirements must be considered even if information rity provisions should be read together "in a fashion requested is clearly exempt from disclosure under fed- that will allow them to operate together and give the eral law. fullest effect to each." Accordingly, the Attorney Gen- A myriad of state laws may affect a transit agency's eral advised that the Improvement District should re- need to disclose or withhold information contained in lease the building designs to contractors as necessary to contract documents, as well as to maintain contract comply with competitive bidding requirements, but records. Relevant types of state statutes typically in- should require that the recipients maintain the exempt clude public records/freedom of information, records status of the information.324 management, and public contract laws. States may In addition to coming under public records statutes, have transportation law titles that contain relevant requests for security information may arise in litiga- provisions, as well as homeland security requirements tion. In such cases the agency may reasonably request 325 that are relevant. Other categories of state laws that that the recipient execute an NDA. may have requirements for maintaining confidentiality of security information include state building codes (re- A. Public Records Laws326--Disclosure quirements for safe storage and secure handling of en- Requirements gineering and construction plans for critical structural A number of issues related to public records disclo- components)321 and emergency preparedness/disaster sure requirements are relevant to understanding how response laws (disaster preparedness laws).322 those requirements affect managing security informa- Public records laws are likely to be the most impor- tion in the competitive procurement process. These in- tant sources of disclosure requirements, while records clude the applicability of state public records laws to management laws are most likely to be the source of public transit agencies in the state, the definition of requirements concerning what records a transit agency public record under state law, whether state law in- must maintain and for how long. The actual definition cludes a presumption of disclosure or of denial, the ap- of "public records" under state law may reside in either proach to exemptions under state law, the burden of type of statute. Public contract laws may have require- proof on classifying information as exempt from disclo- ments for both disclosure and record retention. Balancing of public interests is a principle that pub- lic agencies often apply in the open records arena, Cal. Rptr. 840 (Cal. App. 3d Dist. 1982) (Public interest in pre- sometimes resulting in disclosure being found to be in venting regulated businesses from circumventing effective 323 compliance investigations by obtaining auditors' procedural the public interest and sometimes not. Depending on manuals outweighs any public interest in disclosure). 324 Florida Attorney General Advisory Legal Opinion AGO 320 Fiscal Year 2007 Homeland Security Grant Program, Ur- 2002-74 Nov. 4, 2002, ban Areas Security Initiative: Nonprofit Security Grant Pro- http://myfloridalegal.com/ago.nsf/Opinions/D4CFF22D8B492B gram, Program Guidance and Application Kit, Apr. 2007, at 13, DF85256C6700541A22 (accessed Apr. 1, 2009); Summary: www.ojp.usdoj.gov/odp/docs/FY07_UASI_Guidance.pdf. http://brechner.org/reports/2002/12dec2002.pdf (accessed Apr. 321 E.g., VA. CODE 36-105.3, Security of certain records, 1, 2009). 325 http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+36-105.3. E.g., Blum v. N.Y. Stock Exchange, Inc., 263 A.D. 2d 522, 322 E.g., VA. CODE 44-146.22, Development of measures to 693 N.Y.S.2d 225 (N.Y.A.D. 2 Dept. 1999) (reasonable to re- prevent or reduce harmful consequences of disasters; disclo- quire plaintiff in suit under New York State Human Rights sure of information, http://leg1.state.va.us/cgi- Law (Executive Law 290, et seq.) to execute confidentiality bin/legp504.exe?000+cod+44-146.22. agreement before receiving documents regarding the security 323 Cf., San Gabriel Tribune v. Superior Court, 143 Cal. App. and evacuation routes of defendant, as defendant sufficiently 3d 762, 192 Cal. Rptr. 415 (Cal. App. 2d Dist. 1983) (public demonstrated that documents sought by plaintiff involved sen- interest in monitoring city's contracting for services and regu- sitive security information which, if released to public, could lation of contractors' fees charged to residents outweighs city's jeopardize the safety of defendant's employees). 326 interest in not discouraging contractors from submitting pro- For a review of state public records laws, see Burt prietary information justifying need for rate increases) and Braverman and Wesley Heppler, A Practical Review of State Eskaton Monterey Hosp. v. Myers, 134 Cal. App. 3d 788, 184 Open Records Laws, 49 GEO. WASH. L. REV. 720 (1981).

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33 sure, the applicability of disclosure requirements to In addition, most states make public records re- contract documents, and penalties for violating disclo- quirements directly applicable to private entities under sure requirements. This section touches on all of these certain circumstances. Thus, depending on state law, issues. Specific exemptions are discussed in the follow- even private contract providers of public transportation ing two sections. may be directly subject to open records requirements.330 In addition to state laws, public agencies may be subject to local public records requirements.327 Gener- 2. Definition of Public Record ally, but not always, these ordinances rely on existing Generally, state law is likely to define "public record" state law.328 rather broadly, although the specificity of the definition may vary from state to state. For example, Arizona de- 1. Applicability to Transit Agencies fines "records" as follows: It is more likely than not that state disclosure re- In this chapter, unless the context otherwise requires, quirements will apply to a public transit agency within "records" means all books, papers, maps, photographs or the state. Many state public records laws make those other documentary materials, regardless of physical form laws applicable to all political subdivisions, as well as or characteristics, including prints or copies of such items quasi-governmental agencies that receive public funds. produced or reproduced on film or electronic media pur- Missouri, for example, includes in its definition of "pub- suant to section 41-1348, made or received by any gov- lic governmental body" not only political subdivisions ernmental agency in pursuance of law or in connection with the transaction of public business and preserved or but quasi-governmental bodies and bi-state develop- 329 appropriate for preservation by the agency or its legiti- ment agencies. mate successor as evidence of the organization, functions, 327 policies, decisions, procedures, operations or other activi- E.g., San Francisco Sunshine Ordinance, 67, ties of the government, or because of the informational www.sfgov.org/site/sunshine_page.asp?id=34495 and historical value of data contained therein. 331 (accessed Sept. 26, 2009). 328 The Arizona Supreme Court considers this to be a Looking for Sunshine: Protecting Your Right to Know, League of Women Voters, Jan. 2006, broad definition, but has held that in construing the www.lwv.org/Content/ContentGroups/Projects/OpennessinGove meaning of "public records," documents must have a rnment/40404_LWV_LoRes.pdf (accessed Sept. 29, 2009). substantial nexus with the government agency's activi- 329 M.R.S. 610.010 (4), ties to be considered public records,332 a standard that http://ago.mo.gov/sunshinelaw/chapter610.htm#header1 pro- 330 vides: Craig D. Feiser, Protecting the Public's Right to Know: (4) "Public governmental body," any legislative, administra- The Debate Over Privatization and Access to Government In- tive or governmental entity created by the constitution or stat- formation Under State Law, 27 FLA. STATE L. REV. 825, utes of this state, by order or ordinance of any political subdivi- www.law.fsu.edu/Journals/lawreview/downloads/274/Feiser.pdf sion or district, judicial entities when operating in an . administrative capacity, or by executive order, including: 331 ARIZ. REV. STAT. 41-1350. Definition of records, *** www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/41/013 (c) Any department or division of the state, of any political 50.htm&Title=41&DocType=ARS. Definitions may be less spe- subdivision of the state, of any county or of any municipal gov- cific and still cover a broad range of documents. For example, ernment, school district or special purpose district including but Alabama defines public records as follows: not limited to sewer districts, water districts, and other subdis- tricts of any political subdivision; As used in this article, the term "public records" shall include all written, typed or printed books, papers, letters, documents *** and maps made or received in pursuance of law by the public of- (f) Any quasi-public governmental body. The term "quasi- ficers of the state, counties, municipalities and other subdivi- public governmental body" means any person, corporation or sions of government in the transactions of public business and partnership organized or authorized to do business in this state shall also include any record authorized to be made by any law pursuant to the provisions of chapter 352, 353, or 355, RSMo, or of this state belonging or pertaining to any court of record or any unincorporated association which either: other public record authorized by law or any paper, pleading, exhibit or other writing filed with, in or by any such court, office a. Has as its primary purpose to enter into contracts with or officer. public governmental bodies, or to engage primarily in activities ALA. CODE 41-13-1, carried out pursuant to an agreement or agreements with public www.legislature.state.al.us/codeofalabama/1975/41-13-1.htm. governmental bodies; or 332 Griffis v. Pinal County, 215 Ariz. 1, 156 P.3d 418, 421 b. Performs a public function as evidenced by a statutorily (2007) (holding that mere possession of personal records by a based capacity to confer or otherwise advance, through ap- proval, recommendation or other means, the allocation or issu- government employee does not make the records public for ance of tax credits, tax abatement, public debt, tax-exempt debt, purposes of disclosure requirements). See Lindsay J. Taylor, rights of eminent domain, or the contracting of leaseback Griffis v. Pinal County: Establishing When a Public Official's agreements on structures whose annualized payments commit Personal Emails Are Public Records Subject to Disclosure, 49 public tax revenues; or any association that directly accepts the ARIZ. L. REV. 1027 (2007). The Colorado Supreme Court has appropriation of money from a public governmental body, but taken a similar view of the status of public records under its only to the extent that a meeting, record, or vote relates to such state's law, which requires that public records be those that a appropriation; and public agency "made, maintained, or kept for use in exercise of (g) Any bi-state development agency established pursuant to functions required or authorized by law or administrative rule section 70.370, RSMo. or involving the receipt or expenditure of public funds." Denver

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34 should cover contracting documents. In contrast, the email concerning city business that was sent from a recently enacted Pennsylvania Right to Know Law pre- private citizen to a public official. The court found that sumes a record in the possession of a local agency to be having the email discussed by the official at a public a public record (subject to stated exemptions).333 meeting provided the necessary nexus, with disclosure The Washington Public Records Act defines "public requirements extending to the meta data as well as the record" as including "any writing containing informa- body of the email.339 tion relating to the conduct of government or the per- State law may specify whether contractors' records formance of any governmental or proprietary function are subject to the state public records requirements. For prepared, owned, used, or retained by any state or local example, Pennsylvania law specifically subjects to the agency regardless of physical form or characteristics."334 Right to Know Law public records in the possession of a The Washington Supreme Court has held that informa- contractor performing a government function for a local tion "applied to a given purpose or instrumental to an agency.340 Wisconsin law requires a state authority to end or process" is "used" under this definition, so that make records produced or collected under contract with where there is a connection between the information the authority (except for specified personally identifi- and the agency's decision-making process, "evaluation, able information) publicly available to the same extent and reference to information constitutes `use' and, as if the records were maintained by the authority.341 therefore, qualifies such information as a public re- Accordingly, under Wisconsin law a state authority may 335 cord." The Concerned Ratepayers court found that the not avoid public records requirements by delegating a information at issue came under this definition, despite record's creation and custody to an agent.342 While this the fact that the agency did not possess or use the in- specific provision does not apply to local agencies in formation in its final work product.336 Wisconsin, similar requirements in other jurisdictions State statutes vary on whether they address elec- may apply to local agencies or to state-level transit tronic records. The absence of specific provisions may agencies. leave the status of electronic records under disclosure A related issue is the status of documents that are 337 statutes unclear. In addition, the assessment of what not, strictly speaking, contracts, but are related to con- constitutes a public record may be complicated by the tract documents. The Pennsylvania Right to Know Law proliferation of electronic record keeping and software specifically includes a contract dealing with receipt or that allows collaborative access as well as document disbursement of funds by any agency in the definition of 343 management capabilities. Where it is clear that elec- public record, with the requester of information bear- tronic records are covered, ancillary documents such as ing the burden of establishing that particular docu- emails can be considered public records. State law may ments indeed fall within that definition.344 The Pennsyl- require that the content of such electronic documents vania Supreme Court has held that documents that are have the requisite nexus to public business.338 For ex- not facially classified as contracts may nonetheless be ample, a Wisconsin court examined the status of an held to be public records "where the information re- quested was sufficiently connected to or closely related to these statutory categories."345 Publishing Co. v. County Comm. of Arapahoe, 121 P.3d 190, Where state statutes do not clearly address under 191 (Col. 2005) (simple possession, creation, or receipt of email public records acts the status of records created by con- record by public official or employee not dispositive as to whether the record is "public record;" inquiry must be content- tractors, courts will look to the facts of the case, includ- driven). ing whether the records are in the possession of or un- 333 Section 305, Act 3 of 2008, Right to Know Law, der the control of the public agency. For example, the www.dced.state.pa.us/public/oor/pa_righttoknowlaw.pdf. Arkansas Supreme Court has suggested that docu- 334 WASH. REV. CODE 42.56.010, Definitions, ments may be under the administrative control of a http://apps.leg.wa.gov/rcw/default.aspx?cite=42.56.010. 335 Concerned Ratepayers Ass'n v. Pub. Utility Dist. No. 1 of 339 O'Neill v. City of Shoreline, 145 Wash. App. 913, 187 Clark County, Wash., 138 Wash. 2d 950, 983 P.2d 635, 637 P.3d 822 (2008). (1999). The court refers to WASH. REV. CODE 42.17.020(36), the 340 predecessor provision to WASH. REV. CODE 42.56.010, which is Section 506(d), Act 3 of 2008, Right to Know Law, substantively the same provision. www.dced.state.pa.us/public/oor/pa_righttoknowlaw.pdf. 341 336 Id. at 64042. WIS. STAT. 19.36(3), 337 www.legis.state.wi.us/statutes/Stat0019.pdf. See Leanne Holcomb & James Isaac, Wisconsin's Public- 342 Records Law: Preserving the Presumption of Complete Public Journal/Sentinel, Inc. v. Sch. Bd. of Sch. Dist. of Shore- Access in the Age of Electronic Records, 2008 WIS. L. REV. 515, wood, 186 Wis. 2d 443, 521 N.W.2d 165 (Wis. App. 1994). 343 517 (2008). The authors argue that deleted emails and other 65 PA. STAT. 66.1. 344 electronic documents should be treated as public records sub- State Univ. v. State Employees' Ret. Bd., 880 A.2d 757, ject to disclosure. 763 (Pa. Cmwlth. 2005), citing LaValle v. Office of General 338 See Griffis, 156 P.3d 418. The GAO has discussed the Counsel, 564 Pa. 482, 769 A.2d 449 (2001). 345 public records challenge of managing email at the federal level. Id. at 764 (Pa. Cmwlth. 2005), citing LaValle v. Office of U.S. GOV'T ACCOUNTABILITY OFFICE, FEDERAL RECORDS, Gen. Counsel, 564 Pa. 482, 49394, 769 A.2d 449, 456 (2001) AGENCIES FACE CHALLENGES IN MANAGING E-MAIL (2008), and North Hills News Record v. Town of McCandless, 555 Pa. www.gao.gov/new.items/d08699t.pdf. 51, 722 A.2d 1037 (1999).

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35 state agency even if they are in physical possession of a Mexico,356 North Dakota,357 Oklahoma,358 Oregon,359 and private contractor, making the documents public re- Wisconsin.360 In addition to requiring segregation, the cords under that state's FOIA.346 The court stated that it Missouri statute requires agencies to design public re- "will not permit the circumvention of the FOIA by the cords to facilitate segregation to the extent practica- simple `handoff' of documents to entities not covered by ble.361 The issue may also be addressed indirectly, as 347 the Act." under the North Carolina statue providing that com- mingling of confidential and nonconfidential informa- 3. Presumption of Disclosure tion is not a valid basis for refusing to provide informa- Some state statutes explicitly provide that they are tion.362 to be construed as providing for disclosure. For exam- ple, Maryland's Public Information Act state law re- 4. Approach to Exemptions quires that the statute "be construed in favor of permit- Generally state laws provide that public disclosure ting inspection of a record."348 Other statutory language exemptions are to be narrowly construed. Examples 363 364 365 that is generally construed as creating a presumption of include Arkansas, Kentucky, Massachusetts, Mis- 366 367 368 disclosure includes language that provides a right to souri, Nevada, and Washington. Strict construc- inspect all public records unless otherwise exempted tion may prohibit courts from going beyond statutory and language that places on the government agency the language to create exemptions. For example, the Dis- burden of establishing the appropriateness of asserting an exemption. For example, Alabama's statute provid- ing its citizens the right to inspect and copy any public writing unless otherwise expressly provided by stat- ute349 has been interpreted to constitute a presumption http://uniweb.legislature.ne.gov/laws/statutes.php?statute=s84 in favor of public disclosure.350 Similarly, under New 07012006. York's Freedom of Information Law, the requirement of 356 Section 14-2-9(A), NMSA, making all agency records available, except to the ex- www.conwaygreene.com/nmsu/lpext.dll?f=templates&fn=main- tent exempted, is construed as creating a presumption h.htm&2.0. 351 of access. 357 2004 N.D. Op. Atty. Gen. Open Records and Meetings The presumption of disclosure may be the basis for a Opinion 2004-O-23, citing N.D. CENT. CODE 44-04-18.10, requirement to segregate exempt and nonexempt in- www.ag.nd.gov/Opinions/2004/OR/2004-O-23.pdf. formation.352 State law may require that where an 358 51 OKLA. STAT. SUPP. 2005 24A.5.2, agency has identified an applicable exemption, the www.lsb.state.ok.us/osstatuestitle.html. agency review the record to determine whether the ex- 359 OR. REV. STAT. 192.505, empt portions can reasonably be excised; if so, the www.leg.state.or.us/ors/192.html. agency must redact the exempt portion(s) and disclose 360 WIS. STAT. 19.36(6), the rest of the record. States that expressly require seg- www.legis.state.wi.us/statutes/Stat0019.pdf. 353 354 355 regation include Hawaii, Idaho, Nebraska, New 361 MO. REV. STAT. 610.024. Public record containing ex- empt and nonexempt materials, nonexempt to be made avail- able--deleted exempt materials to be explained, exception, 346 ARK. CODE ANN. 25191012519109 (Repl. 2002 & http://ago.mo.gov/sunshinelaw/chapter610.htm#header8. Supp. 2005). 362 N.C. GEN. STAT. 132[ ]6(c), 347 Nabholz Constr. Corp. v. Contractors for Public Prot. www.ncleg.net/EnactedLegislation/Statutes/HTML/ByChapter/ Ass'n, 371 Ark. 411, 266 S.W.3d 689 (2007). Chapter_132.html. 348 Public Information Act, 10-612(b). See Maryland Public 363 Orsini v. State, 340 Ark. 665, 13 S.W.3d 167 (2000) (court Information Act Manual, ch. III, Exceptions to Disclosure (11th narrowly construes exemptions "to counterbalance the self- ed. 2008), www.oag.state.md.us/Opengov/pia.htm. protective instincts of the government bureaucracy."). 349 ALA. CODE, 36-12-40. 364 KY. REV. STAT. 61.871, Policy of KY. REV. STAT. 61.870 to 350 Chambers v. Birmingham News Co., 552 So. 2d 854, 856 61.884--Strict construction of exceptions of KY. REV. STAT. (Ala. 1989). 61.878. (Strict construction of exceptions required "even though 351 Matter of Citizens for Alternatives to Animal Labs v. Bd. such examination may cause inconvenience or embarrassment of Trustees of State Univ. of N.Y., 92 N.Y.2d 357, 703 N.E.2d to public officials or others."), 1218, 681 N.Y.S.2d 205 (1998); Committee on Open Govern- www.lrc.ky.gov/KRS/061-00/871.PDF. 365 ment, FOIL-AO-14554, Mar. 5, 2004, Attorney General v. Assistant Comm'r of the Real Prop- www.dos.state.ny.us/COOG/ftext/f14554.htm. erty Dep't of Boston, 380 Mass. 623, 625, 404 N.E.2d 1254, 352 Committee on Open Government, FOIL-AO-14554, Mar. 12551256 (1980). 366 5, 2004, citing Gould v. N.Y. City Police, 89 NY.2d 267, 276 MO. REV. STAT. 610.011. Liberal construction of law to (1996), www.dos.state.ny.us/COOG/ftext/f14554.htm. be public policy, 353 The Uniform Information Practices Act (Modified), at 36, http://ago.mo.gov/sunshinelaw/chapter610.htm#header2. 367 40-41, www.state.hi.us/oip/UIPA%20Manual%205aug08.pdf. NEV. REV. STAT. 239.001, 354 IDAHO CODE 9-341, www.leg.state.nv.us/NRS/NRS-239.html#NRS239Sec001. 368 www.legislature.idaho.govidstat/Title9/T9CH3SECT9-341.htm. WASH. REV. CODE 42.56.030, 355 NEB. REV. STAT. 84-712.06, http://apps.leg.wa.gov/RCW/default.aspx?cite=42.56.030.

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36 trict of Columbia strictly construes its exemptions and sure of the record."380 Absent a provision explicitly re- does not allow judicially-created exemptions. 369 quiring a balancing of public interests, the state court State courts may prohibit blanket assertions of ex- may take the position that an exemption requires no emptions. For example, New York requires that the balancing beyond the language of the exemption.381 agency demonstrate the applicability of the exemption by "articulating a particularized and specific justifica- 5. Burden of Proof re Classification of Information as tion for denying access."370 The New York court requires Exempt from Disclosure that a record fit precisely within the cited exemption to Under Federal FOIA, the agency asserting the ex- be withheld.371 Arkansas takes the same approach, re- emption bears the burden of proving that the requested quiring a record that does not fall clearly within an ex- information falls within the exemption. States that 372 emption to be disclosed. similarly place the burden on the government agency State laws vary as to whether an applicable exemp- that seeks to assert an exemption include Arkansas,382 tion precludes disclosure or merely provides a basis for California,383 Connecticut,384 Hawaii,385 Nevada,386 New denying disclosure. Arkansas, for one, requires agencies 387 388 389 York, Rhode Island, and Washington. The burden to withhold information that falls within an exemption, is generally required to be met with a specific showing, except under court order, subpoena, or written consent rather than conclusory claims.390 At least two states of the person protected by the exemption.373 States employ a preponderance of the evidence standard. 391 whose exemptions are deemed to be discretionary in- clude Hawaii,374 Michigan,375 New York,376 and South 377 Carolina. Nebraska's statute sets forth categories of records that may be withheld at the discretion of the 380 lawful custodian unless they are publicly disclosed in CAL. GOV'T CODE 6255, subd.(a). Cf., Washington's Pub- open court, open administrative proceeding, or open lic Disclosure Act, ch. 42.17, WASH. REV. CODE, held not to meeting or are disclosed by a public agency pursuant to contain any general exemption. Progressive Animal Welfare its duties.378 The District of Columbia statute provides Society (PAWS) v. The Univ. of Wash., 125 Wash. 2d 243, 884 that exemptions do not apply if disclosure of informa- P.2d 592 (1994). 381 tion is authorized or mandated by other law.379 E.g., Dir., Dep't of Information v. Freedom Comm'n, 274 State laws may include a general exemption that Conn. 179, 192, 874 A.2d 785, 793 (Conn. 2005) (no separate balancing of public interest required under exemption for re- specifically calls for balancing the public interest in cords where there is reasonable basis to believe disclosure may favor of disclosure against the public interest in favor of result in safety risk). nondisclosure. For example, California's Public Records 382 Orsini, 340 Ark. 665. Act allows an agency to withhold information "by dem- 383 Michaelis, 44 Cal. Rptr. 3d at 667 (citation omitted). onstrating that...on the facts of the particular case the 384 public interest served by not disclosing the record FOIA Comm., 874 A.2d 785. A town's director of informa- tion technology refused a request for copies of computerized clearly outweighs the public interest served by disclo- data from a town's geographic information system based on several exemptions including Conn. Gen. Stat. 1-210(b)(19). 369 The appellate court held that the IT director failed to meet his D.C. CODE ANN. 2-534(b); Barry v. Wash. Post Co., 529 burden of seeking a determination from the commissioner of A.2d 319, 321 (D.C. 1987). 370 public works that the GIS information fell under the public Capital Newspapers Div. of Hearst Corp. v. Burns, 67 safety exception, and so affirmed the earlier decisions requir- N.Y.2d 562, 566, 496 N.E.2d 665, 667, 505 N.Y.S.2d 576, 578 ing disclosure. Id. at 189. (1986). 385 371 HAW. REV. STAT. 92F-15(c), Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 393 www.state.hi.us/oip/uipa.html#92F15. N.E.2d 463, 465, 419 N.Y.S.2d 467, 471 (1979); Data Tree, LLC 386 NEV. REV. STAT. 239.0113, Burden of proof where confi- v. Romaine, 9 N.Y.3d 454, 880 N.E.2d 10, 849 N.Y.S.2d 489 dentiality of public book or record is at issue, (2007). 372 www.leg.state.nv.us/NRS/NRS-239.html#NRS239Sec0113. E.g., Orsini, 340 Ark. 665. 387 373 Fink, 47 N.Y.2d 567; Data Tree, 880 N.E.2d 10. Ark. Op. Att'y Gen. Nos. 99-334, 91-374, 91-323. 388 374 Section 38-2-10, www.rilin.state.ri.us/statutes/title38/38- The Uniform Information Practices Act (Modified), at 34, 2/38-2-10.HTM. www.state.hi.us/oip/UIPA%20Manual%205aug08.pdf. 389 375 WASH. REV. CODE 42.56.550, Tobin v. Mich. Civil Serv. Comm'n, 98 Mich. App. 604, http://apps.leg.wa.gov/RCW/default.aspx?cite=42.56.550. 296 N.W.2d 320 (1980). See Rental Housing Ass'n v. City of Des Moines, 199 P.3d 393, 376 Capital Newspaper v. Burris, 67 N.Y.2d 562, 496 N.E.2d 165 Wash. 2d 525 (Wash. 2009). 665, 505 N.Y.S.2d 576 (1986). 390 E.g., Trombley v. Bellows Falls Union High Sch. Dist., 377 S.C. CODE ANN. 30-4-40, 160 Vt. 101, 624 A.2d 857 (1993). www.scstatehouse.gov/code/t30c004.htm. 391 Nevada: NEV. REV. STAT. 239.0113, Burden of proof 378 NEB. REV. STAT. 84-712.05, where confidentiality of public book or record is at issue, http://nebraskalegislature.gov/laws/laws-index/chap84- www.leg.state.nv.us/NRS/NRS-239.html#NRS239Sec0113; full.html. Virginia: Virginia Freedom of Information Act, VA. CODE ANN. 379 Dunhill v. Dir., D.C. Dep't of Transp., 416 A.2d 244 (D.C. 2.2-3713(E), http://leg1.state.va.us/cgi- 1980). bin/legp504.exe?000+cod+2.2-3713.

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37 6. Applicability to Contract Documents 7. Penalties for Violations/Attorney Fees As noted, supra, contract documents are likely to State law may provide penalties for violating open come within the definition of public record, particularly records act provisions. Generally these provisions apply those documents within a transit agency's possession. to negligent or willful violations. The severity of penal- Interests in protecting contract information may shift ties for violations varies. For example, Kansas public between the time bids are submitted and the time bid- agencies that knowingly violate provisions of the Open ding is closed.392 However, for the most part this distinc- Records Act may be subject to civil penalties, up to $500 tion runs to protecting the government interest in pre- per violation.396 Maine law provides for similar penal- serving competition, rather than being applicable to ties.397 Minnesota's statute provides for larger civil pen- security information. For example, in Hawaii, the gen- alties and makes willful violation of the Government eral exemption under the Uniform Information Prac- Data Act a misdemeanor and just cause for suspension 398 tices Act for information that must be confidential to without pay or dismissal of a public employee. Mis- protect legitimate government functions has been in- souri provides for civil penalties against public govern- terpreted to apply to information that "if disclosed, mental bodies and members of public governmental would raise the cost of government procurements or bodies who willfully violate the Sunshine Law and for give a manifestly unfair advantage to any person pro- the removal and fining or jailing of public officials who posing to enter into a contract or agreement with an violate the Public Records Act.399 Nebraska provides for agency." Hawaii's Attorney General has applied this similar penalties for officials who violate the open re- interpretation to find that before bid submission an cords provisions, and provides equitable remedies for agency may withhold the identity of persons that have citizens who seek to enforce the public records provi- picked up or received bid solicitations, attended a bid- sions, including attorneys fees and other litigation costs der's conference, or submitted a notice of intent to bid for citizens who substantially prevail.400 West Virginia or bid itself; after bid submission the information must makes willful violation of the state Freedom of Informa- be made publicly available.393 Vermont also protects tion chapter a misdemeanor punishable by fine and/or 394 401 records of contract negotiations. imprisonment. Wisconsin allows both actual and pu- Even after the contractor has been selected, informa- nitive damages for willfully delaying release of informa- tion may be protectable until the contract is finalized.395 tion, as well as allowing forfeitures up to $1,000 for ar- Again, this requirement goes to protecting the govern- bitrary and capricious denial or delay of requests for ment's competitive position, rather than protecting se- information.402 Depending on the structure of state law, curity information. such penalties may also apply to violation of records management statutes.403 396 392 KAN. STAT. ANN., 45-223, Civil penalties for violations, E.g., FLA. STAT. 119.071(1)(b) [protection of sealed bids Accessible from www.kslegislature.org/legsrv- and competitive negotiations until decision made]. statutes/index.do. www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Stat 397 M E. REV. STAT. ANN. 410, Violations, ute&Search_String=&URL=Ch0119/SEC071.HTM&Title=- www.mainelegislature.org/legis/statutes/1/title1sec410.html. %3E2008-%3ECh0119-%3ESection%20071#0119.071; FLA. 398 STAT. 337.168, Confidentiality of official estimates, identities MINN. STAT. 13.08, of potential bidders, and bid analysis and monitoring system, www.revisor.leg.state.mn.us/statutes/?id=13.08; MINN. STAT. www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Sta 13.09, www.revisor.leg.state.mn.us/statutes/?id=13.09. 399 tute&Search_String=&URL=Ch0337/SEC168.HTM&Title=- MO. REV. STAT. 610.027, Violations--remedies, proce- %3E2008-%3ECh0337-%3ESection%20168; N.Y.S. Committee dure, penalty--validity of actions by governing bodies in viola- on Open Government opinion, Aug. 2, 1993, letter to City At- tion--governmental bodies may seek interpretation of law, torney of City of North Tonawanda, attorney general to provide. www.dos.state.ny.us/coog/ftext/f7837.htm http://ago.mo.gov/sunshinelaw/chapter610.htm#header11; MO. (accessed Mar. 31, 2009). REV. STAT. 109.180, www.moga.mo.gov/statutes/C100- 393 Dec. 15, 1994, letter from Office of Information Practices, 199/1090000180.HTM. 400 Department of Attorney General to State Procurement Office, NEB. REV. STAT. 84-712.09, www.state.hi.us/oip/opinionletters/opinion%2094-26.PDF (ac- http://uniweb.legislature.ne.gov/laws/statutes.php?statute=s84 cessed Aug. 10, 2009). 07012009; NEB. REV. STAT. 84-712.09, 394 1 VT. STAT. ANN. 317(c)(15), Records of contract nego- http://uniweb.legislature.ne.gov/laws/statutes.php?statute=s84 tiations (1976). See Legislative Council Staff Report on Public 07012007. 401 Records Requirements in Vermont, Jan. 2007, W.VA. CODE 29B-1-6, www.leg.state.vt.us/REPORTS/07PublicRecords/Public%20Rec www.legis.state.wv.us/WVCODE/ChapterEntire.cfm?chap=29b ords%20Requirements%20in%20Vermont.pdf (accessed Sept. . 402 20, 2009). WIS. STAT. 19.37, 395 N.Y.S. Committee on Open Government opinion, Jan. 31, www.legis.state.wi.us/statutes/Stat0019.pdf. 403 2000, FOIL-AO-11933, E.g., LA. REV. STAT. 44-37, Penalties for violation by www.dos.state.ny.us/coog/ftext/f11933.htm (accessed Mar. 31, custodians of records, 2009). www.legis.state.la.us/lss/lss.asp?doc=99714.