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40 of the cited provision of the Homeland Security Act; frustrate a legitimate government function.429 In 2007 such information was required to be withheld.424 Hawaii's Office of Information Practices (OIP) inter- preted this as justifying the nondisclosure of informa- 3. Other tion about the physical security of Hawaii's critical en- As noted above, Maryland covers plans of mass tran- ergy infrastructure submitted by private companies to sit facilities under its security exemption. Virginia also Hawaii's Department of Business, Economic Develop- covers such plans to the extent they reveal the location ment and Tourism (DBEDT).430 or operation of "security equipment and systems, eleva- OIP examined the function of the agency in question, tors, ventilation, fire protection, emergency, electrical, which was to ensure Hawaii's energy security. DBEDT telecommunications or utility equipment and systems of argued that disclosing the requested information would any public building" or "operational and transportation expose the infrastructure to physical damage, thereby plans or protocols, to the extent such disclosure would impairing its physical security and thus frustrating jeopardize the security of any governmental facility, DBEDT's function. OIP looked to the use of FOIA's na- building or structure or the safety of persons using such tional security exemption to protect information about facility, building or structure."425 The Virginia provision the physical security of nuclear power facilities, finding also covers training manuals, the disclosure of which DBEDT's argument to be analogous. OIP found it un- would jeopardize public safety as specified under the necessary for information to be classified to be withheld statute. 426 Under the Virginia statute the record custo- at the state level. Rather "where an agency seeks to dian need not, but may, disclose such information, ex- withhold information in the interest of public security, cept where prohibited by law. the agency must show that public disclosure of the in- Both Florida and Missouri exempt plans for security formation could reasonably be expected to cause dam- systems from mandatory disclosure.427 The Florida stat- age to public security." ute includes threat assessments and threat response In contrast, in Progressive Animal Welfare Soc. v. 431 plans in its definition of "security system plan." How- University of Washington (PAWS), a seminal Wash- ever, the Missouri statute specifies: "Records related to ington State public records case, Washington's Supreme the procurement of or expenditures relating to security Court took the position that the state legislature had systems purchased with public funds shall be open."428 rejected the idea of a general "vital government func- tions" exemption.432 The court also rejected the argu- C. Public Records Laws--Other Exemptions That ment that Revised Code of Washington 42.17.330 pro- May Protect SSI and Other Security Information vides such a general exemption.433 California's Public Records Act explicitly allows a As noted in the discussion of the Federal FOIA, su- government agency to withhold records "if it can dem- pra, a number of sunshine act exemptions that are not onstrate that, on the facts of a particular case, the pub- focused on security may be used to protect security in- lic interest served by withholding the records clearly formation. These include general public interest exemp- outweighs the public interest served by disclosure." 434 tions, exemptions mandated by other statutes, trade Under this exemption, there is a case-by-case balancing secret and commercial information exemptions, and process "with the burden of proof on the proponent of intra/inter agency memoranda exemptions. nondisclosure to demonstrate a clear overbalance on the 435 1. General Public Interest side of confidentiality." California case law directs courts to look at the nature of the government activity Hawaii's Uniform Information Practices Act contains being examined and how well the requested information an exception for information whose disclosure would would illuminate that activity. In County of Santa Clara, a case involving a request for the county's GIS Basemap, the court found that 424 Op. Tex. Att'y Gen. No. GA-7401 (2005), www.oag.state.tx.us/opinions/openrecords/50abbott/orl/2005/pd 429 f/or200507401.pdf. Uniform Information Practices Act, HAW. REV. STAT. 425 § 92F-13(3) (1993), www.state.hi.us/oip/uipa.html#92F13. VA. CODE, § 2.2-3705.2, Exclusions to application of chap- 430 ter; records relating to public safety, Exclusions 4 and 6, OIP Op. Ltr. No. 07-05, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+2.2-3705.2. www.state.hi.us/oip/opinionletters/opinion%2007-05.pdf 426 (accessed June 4, 2009). E.g., VA. CODE, § 2.2-3705.2, Exclusions to application of 431 chapter; records relating to public safety, Exclusions 4 and 6. Progressive Animal Welfare Soc. v. Univ. of Wash., 125 427 Wash. 2d 243, 261, 884 P.2d 592, 601 (Wash. 1994), citing FLA. STAT. § 119.071(3)(a)2: A "security system plan" is Laws of 1987, ch. 403, § 1, at 1546. exempt and confidential under the Florida public records law, 432 www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Sta Id. at 25859, citing Laws of 1987, ch. 403, § 1, at 1546. 433 tute&Search_String=&URL=Ch0119/SEC071.HTM&Title=- Id. at 26061. 434 %3E2008-%3ECh0119-%3ESection%20071#0119.071; 170 Cal. App. 4th 1301, 1321, 89 Cal. Rptr. 3d 374, 388 MO. REV. STAT. § 610.021(19), (citation omitted) (discussing § 6255 of CPRA). http://ago.mo.gov/sunshinelaw/chapter610.htm#header7. 435 Id., citing Michaelis, Montanari & Johnson v. Superior 428 MO. REV. STAT. § 610.021(19)(a), Court (2006), 38 Cal. 4th 1065, 1071, 44 Cal. Rptr. 3d 663, 136 http://ago.mo.gov/sunshinelaw/chapter610.htm#header7. P.3d 194.
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41 there was a significant public interest in disclosure of require that the federal statute relied upon for exemp- the government activities at issue; the requested GIS tion contain an explicit nondisclosure mandate;.441 that Basemap would illuminate those activities; and the requirement is met by the federal law protecting SSI. availability of other means to obtain the information-- Generally if the "other statutes" exemption applies, the particularly given the lack of privacy concerns--did not state agency must withhold the covered information.442 prevent requiring disclosure under the Public Records Some states already exempt material that would Act. Finding that the public interest in disclosure was constitute Federal SSI, but only if release would cause neither hypothetical nor minimal, the court then as- or be reasonably expected to cause actual harm.443 To sessed the public interest in nondisclosure. The court the extent that the Federal SSI provision automatically rejected the county's argument that the GIS Basemap designates certain material as SSI without an actual contained sensitive information that is not publicly showing of harm, application of "other statutes" exemp- available and that could not be easily segregated. The tions allows the Federal SSI requirement to effectively example cited by the county was the exact location of amend state law.444 Similarly, if states with expansive Hetch Hetchy reservoir components, which could be disclosure requirements give effect to laws in other combined with publicly available information to allow states with less expansive disclosure requirements, a terrorists to pinpoint the water lines and attack the San state may reduce presumption of openness under its Francisco water system. The plaintiff's GIS expert, own law.445 however, testified that in fact the GIS Basemap showed State courts have found that state public records law the water easements, not the sensitive water line loca- requirements trump "other statutes" disclosure re- tions, and that even the easement information could be quirements. For example, the Washington State court easily segregated. The trial court had found that some addressed an "other statutes" exemption in PAWS, su- of the information in the record requested had nothing pra. Although ultimately finding that the exemption to do with security, and that that information could not applied on the facts in the case, the court outlined legal be "cloaked with the protection of CII/PCII simply by principles that suggested under some circumstances submission to OHS [the California Office of Homeland public records requirements would govern. The court Security]." The appellate court agreed.436 explained that the "other statutes" exemption is an ex- States may also recognize a public interest exemp- emption to the redaction [segregation] requirement for tion as a matter of common law. Wisconsin, for exam- ple, recognizes public interest exemptions, including a www.regulations.gov/search/Regs/home.html#documentDetail? public interest balancing test that has been incorpo- R=0900006480313ddb (accessed Sept. 10, 2009). rated into state statute.437 Attorney work product is an- 441 438 E.g., Barry v. Wash. Post, 529 A.2d 319, 322 (1987) (ex- other example of a common law exemption, although emption under federal statute must explicitly require nondis- one that may be incorporated into statutory exemptions closure); Better Gov't Ass'n v. Blagojevich, 386 Ill. App. 3d 808, as well.439 899 N.E.2d 382 (2008) (proposed disclosure must be specifically prohibited by federal or state statute or regulations in order for 2. When Mandated by Federal or Other State Statutes 5 ILL. COMP. STAT. 140/1 to apply). 442 Most state public records statutes have provisions E.g., Maryland Public Information Act, MD. CODE ANN. analogous to Federal Exemption 3, requiring that in- § 10-615, Required Denials--Other Law, formation be withheld if mandated by federal or other www.oag.state.md.us/opengov/Appendix_C.pdf. 443 state statutes. 440 Such "other statutes" exemptions may E.g., IOWA CODE § 22.7, Confidential Records. 50 [secu- rity procedures, emergency preparedness, including vulnerabil- ity assessments], http://coolice.legis.state.ia.us/Cool- ICE/default.asp?category=billinfo&service=IowaCode&ga=83# 436 Id. The court also held that the CIIA does not apply to 22.7. submitters of PCII, so that the CIIA does not preempt requests 444 See Comments of the Silha Center for the Study of Media for information made to the submitting agency under the Ethics and Law on TSA Interim Final Rule on Protection of CPRA. Id. at 131619, 38587. See II.B.2, Federal Agencies, Sensitive Security Information, July 16, 2004, at 6, citing ex- supra this report. emptions in ALA. CODE § 36-12-40 (1991); CONN. GEN. STAT. 437 Wisc. Newspress, Inc. v. Sch. Dist. of Sheboygan Falls, § 1-210(b)(19) (2003); MD. STATE GOV'T CODE ANN. § 10-613 199 Wis. 2d 768, 77578, 546 N.W.2d 143, 14647 (1996). (2003); MINN. STAT. § 13.03(1) (2003); MISS. CODE ANN. § 25- 438 Seifert v. Sch. Dist. of Sheboygan Falls, 2007 WI App 61-11 (2004); W. VA. CODE § 29B-1-4 (2003); WASH. REV. CODE 207, 740 N.W.2d 177, 187 (Ct. App. Wis. 2007). § 42.17.260 (2004). 439 445 For example, the Washington statute exempts qualifying [Florida] Commission on Open Government Reform, Fi- attorney work product from disclosure as an "other statute" nal Report, Jan. 2009, at 10205. Because of the potential dilu- exemption, because the attorney-client privilege statute ex- tion of Florida's presumption of openness, the Commission empts such information from disclosure. Summary of exemp- recommended against expanding the non-Florida source ex- tions, WAC 44-14-06002, emption for criminal intelligence information or criminal inves- http://apps.leg.wa.gov/WAC/default.aspx?cite=44-14-06002. tigative information held by a non-Florida criminal justice 440 Comments of the Silha Center for the Study of Media Eth- agency (FLA. STAT. § 119.071(2)(b)) to include information rele- ics and Law on TSA Interim Final Rule on Protection of Sensi- vant to promoting domestic security efforts. Florida Commis- tive Security Information, July 16, 2004, TSA-2003-15569- sion on Open Government Reform, Final Report, Jan. 2009, at 0013, 15859, www.flgov.com/pdfs/og_2009finalreport.pdf.
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42 disclosing any nonexempt portions of records. The court the signs and plaintiff's requests for information; within stated that under Washington law, the public records 2 days the authority's executive director responded that act incorporates those other statutes that exempt or all further requests should be directed to counsel, who prohibit disclosure, but only if the statutes in question was copied on the response. Having received no further "mesh" with the public records act; in the event of a response and having been advised by the Virginia FOIA conflict, the provisions of the public record act govern. Advisory Council that the authority had not met Vir- Furthermore, the "other statutes" exemption only ap- ginia FOIA's procedural requirements, plaintiff filed a plies if the other statute explicitly identifies the exemp- complaint on July 25, 2006. tions in question.446 The Fenter court reviewed the applicable state re- The Ohio Supreme Court directly addressed the quirements concerning general availability of records, question of how to resolve a conflict between the state the requirement to narrowly construe exemptions, the public records requirement of disclosure and a federal public body's burden of proof on exemptions, and the privacy statute.447 The Enquirer case involved a request procedural requirements under Virginia's FOIA.450 The by a newspaper for lead contamination notices issued to court found that the authority's immediate responses to property owners. The court assumed for the sake of the plaintiff's second and third requests for information argument that the reports contained protected health did not meet the Virginia FOIA's procedural require- information and that the Cincinnati Health Depart- ments. Moreover, once plaintiff filed suit, the authority ment (the withholding agency) was a covered entity eventually produced nonsensitive, nonexempt material under the Federal Health Insurance Portability and related to the second and third requests for informa- Accountability Act (HIPAA). Nonetheless, the court tion. The court rejected the authority's preemption ar- concluded that the federal statute did not supersede gument and agreed with the plaintiff that federal law state disclosure requirements because the state public and regulations did not preempt the procedural re- records disclosure mandate met the "required by law" quirements of state law or the need to produce docu- exception to HIPAA's nondisclosure requirements. ments that were not SSI. Furthermore, the court found Where the effect of an "other statutes" provision is to prohibit the disclosure of information that would oth- erwise be disclosed under state law, such provisions do not necessarily eliminate the need to follow the proce- 450 Id. at 707708. At the time the complaint was filed the dural requirements of the state public records law. For Virginia Freedom of Information Act, Code § 2.2-3704(B) pro- example, the Virginia Supreme Court addressed the vided: question of whether federal airport security laws and Any public body that is subject to [the Act] and that is the regulations preempted the requirements of the Virginia custodian of the requested records shall promptly, but in all FOIA in Fenter v. Norfolk Airport Authority.448 cases within five working days of receiving a request, make one In Fenter, the plaintiff had asked the Norfolk Airport of the following responses: Authority for a copy of any federal or Virginia statute or 1. The requested records will be provided to the requester. regulation that authorized vehicle searches at the air- 2. The requested records will be entirely withheld because port.449 The plaintiff made an initial request on March 8, their release is prohibited by law or the custodian has exercised 2006; within several days the authority notified the his discretion to withhold the records in accordance with [the plaintiff that his request had been forwarded to counsel Act]. Such response shall (i) be in writing, (ii) identify with rea- for response. On March 21, 2006, plaintiff made a sec- sonable particularity the volume and subject matter of withheld records, and (iii) cite, as to each category of withheld records, ond request for "the history or circumstances relating to the specific Code section that authorizes the withholding of the the erection of" the airport search signs; the Authority's records. counsel responded within a week advising plaintiff that 3. The requested records will be provided in part and with- the authority had contacted TSA and would get back to held in part because the release of part of the records is prohib- him when it had heard from TSA. On May 6, 2006, ited by law or the custodian has exercised his discretion to plaintiff requested copies of any records of the corre- withhold a portion of the records in accordance with [the Act]. Such response shall (i) be in writing, (ii) identify with reason- spondence between the authority and TSA regarding able particularity the subject matter of withheld portions, and (iii) cite, as to each category of withheld records, the specific 446 Progressive Animal Welfare Society, 125 Wash. 2d 243. Code section that authorizes the withholding of the records. 447 State ex rel. Enquirer v. Daniels, 108 Ohio St. 3d 518, When a portion of a requested record is withheld, the public body may delete or excise only that portion of the record to 2006 Ohio 1215, 844 N.E.2d 1181 (2006). 448 which an exemption applies and shall release the remainder of 274 Va. 524, 649 S.E.2d 704 (Va. 2007). the record. 449 The specific request was: 4. It is not practically possible to provide the requested re- There are signs on the access roads to the Norfolk Interna- cords or to determine whether they are available within the five- tional Airport stating that "All vehicles entering airport are sub- work-day period. Such response shall be in writing and specify ject to search." Please provide me a copy of any Federal or Vir- the conditions that make a response impossible. If the response ginia statute or regulation authorizing the Airport Authority to is made within five working days, the public body shall have an search any vehicle on airport property, outside the Federal additional seven work days in which to provide one of the three "sterile area," without prior probable cause or a valid search preceding responses. warrant issued by a Federal or Virginia court. The court noted that the subsequent amendment of this provi- Id. at 706. sion did not make substantive changes. Id. at 708.