Record Keeping Requirements for State Departments of Transportation (2009)

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17 aster recovery systems. Counsel should find out where backup data are stored and whether they can be re- trieved, if necessary. Supporting systems could also contain valuable stored information. Fax servers sometimes save copies of all transmissions in and out of an organization. Safety systems, such as antivirus applications, may log files that pass through the networks, and other sys- tems, such as computer servers, may store Internet traffic and e-mail forwarding information. It may also be necessary to retrieve documents from employees’ home computers or zip drives if employees work from home or transport data from work to home or vice versa. As information is collected, a list should be made of every employee who provides information responsive to the request. The list should identify information that each user has access to in addition to physical locations that may collect or store information. These data can be collected in a chart format that is similar to that used for collecting medical records in a personal injury law- suit. Determining what information is relevant to the case is the responsibility of the producing party, although in situations that may be contested it is important to save information that may turn out to be relevant to avoid spoliation accusations. Obligations to preserve and cap- ture information should be identified early on in the process and defined to limit the scope of the search to relevant information and also to avoid excessive costs. After relevant information has been identified and located, it must be collected. Computer staff, under the guidance of counsel, should create exact copies of stored information. When preserving electronic files, it is im- portant to remember that copying information for the purpose of responding to a discovery request may change the original data. According to Federal Rule of Civil Procedure 30(b)(6), a party responding to a discovery request must designate a person who can help the requesting party understand where information is stored. That person must be made available for deposition. It is important to remember that the method of data collection is dis- coverable. Before the data are prepared for review by counsel, every document should be accessed and metadata ex- tracted. Each piece of information should be saved in a central database for sorting, searching, and use in the review process later on. Every document should be in- spected for privileged information, trade secrets, and relevancy. There are many computer applications available that allow for easy importing and accessing of information. The format in which the information is released to the opposing party should be agreed upon prior to the release of the information.75 75 Some of the material in this section was taken from an article written by Paul J. Neale, Jr., American Law Institute- American Bar Association, appearing in Electronic Records Management and Digital Discovery, 2005. IV. OPEN RECORDS Government should be transparent, and its records should be open and readily accessible to the public. This theme is repeated again and again in the headlines and echoed in judicial opinions. However, the courts, the legislature, and the public still recognize that some in- formation should be exempt from disclosure and kept from the public eye. This section will discuss trends in federal and state open record laws as they relate to transportation issues. A. The Freedom of Information Act76 Essentially the Freedom of Information Act (FOIA) requires the release of all nonexempt public records. The exemptions are set out below. Exemption 1—Classified Matters of National De- fense or Foreign Policy. This exemption protects na- tional security information concerning the national de- fense or foreign policy, provided that it has been properly classified in accordance with the substantive and procedural requirements of an executive order. Exemption 2—Internal Personnel Rules and Prac- tices. This exemption protects mandatory disclosure records “related solely to the internal personnel rules and practices of an agency.” Exemption 3—Information Specifically Exempted by Other Statutes. This exemption incorporates the disclo- sure prohibitions that are contained in various other federal statutes. Exemption 4—Trade Secrets, Commercial, or Finan- cial Information. This exemption protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” Exemption 5—Privileged Interagency or Intra- Agency Memoranda or Letters. This exemption protects “inter-agency or intra-agency memorandums of letters which would not be available by law to a party…in liti- gation with the agency.” It has been construed to ex- empt those documents that are normally privileged in the civil discovery context. Exemption 6—Personal Information Affecting an In- dividual’s Privacy. This exemption permits the govern- ment to withhold all information about individuals in personnel and medical files and similar files when the disclosure of such information would constitute a clearly unwarranted invasion of personal privacy. This exemption is not to be used to withhold information a person requests about himself or herself. Exemption 7—Investigatory Records Compiled for Law Enforcement Purposes. Exemption 8—Records of Financial Institutions. This exemption covers matters that are contained in or re- lated to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions. 76 5 U.S.C. 552, current through 111 Pub. L. No. 25 (2009).

18 Exemption 9—Geographical and Geophysical Infor- mation Concerning Wells. This exemption covers geo- logical and geophysical information and data, including maps, concerning wells. The USDOT implemented FOIA through 49 C.F.R. Section 7. The regulation is comprehensive and a good resource for an agency that is establishing or consider- ing changes to their open records policy. The FOIA exemptions and exclusions discussed in this section are national security in the context of na- tional infrastructure security, trade secrets, and com- mercial information and material that is protected by other federal laws. Several other laws as they relate to transportation issues are discussed. There are many other resources that discuss all of the FOIA exemptions. This publication simply attempts to discuss the exemp- tions applicable to transportation agencies.77 The follow- ing is a discussion of trends that have been noted in recent FOIA decisions. 1. FOIA Exemption 1—National Security Several courts have considered the national security exemption as it relates to the protection of information outlined in the Homeland Security Act of 200278 and the Critical Infrastructure Act.79 In Coastal Delivery Corp. v. United States Customs Service,80 a trucking company involved in a tort claim requested information about the number of inspections performed on goods at a South- ern California seaport. The customs service refused to release the information, claiming that its release would allow terrorists to more easily avoid detection when smuggling items into American ports. The court agreed, reasoning that even if the information about the par- ticular port in this case might not prove damaging, if the government were forced to release information about all of its ports, it would allow terrorists to deter- mine which ports were the most lightly inspected and, therefore, the easiest in which to carry out illegal activi- ties. Similarly, in Judicial Watch v. Department of Transportation,81 the D.C. District Court allowed the USDOT to withhold the locations of warehouses where explosive detection devices made for use by the Trans- portation Security Administration were maintained before being sent to airports. The court accepted the 77 See ORRIN F. FINCH & GARY A. GEREN, FREEDOM OF INFORMATION ACT, FEDERAL DATA COLLECTIONS AND DISCLOSURE STATUTES APPLICABLE TO HIGHWAY PROJECTS AND THE DISCOVERY PROCESS (NCHRP Legal Research Digest 33, 1995). The text of the Federal Freedom of Information Act can be found at 5 U.S.C. § 152. 78 Pub. L. No. 107-296, 116 Stat. 2135, codified at 6 U.S.C. § 101 et seq. 79 The Critical Infrastructure Information Act of 2002 (CIIA), codified at 6 U.S.C. §§ 131–34, was passed on Nov. 25, 2002, as subtitle B of Title II of the Homeland Security Act, §§ 211–15. 80 272 F. Supp. 2d 958 (C.D. Cal. 2003). 81 2005 WL 1606915 (D.D.C. 2005). argument that disclosure of the locations of these ware- houses would place national security at risk. Similarly, in Living Rivers, Inc. v. United States Bu- reau of Reclamation,82 a Utah federal district court held that inundation maps prepared by the U.S. Bureau of Reclamation for the areas below the dams were exempt from disclosure. Terrorists could use the maps to esti- mate the extent of flooding that would be caused by attacking individual features of the dam and to com- pare the amount of flooding and damage that would result from attacking one dam as compared to attacking another dam. 2. FOIA Exemption 3—Information Protected by Specific Legislation a. The Homeland Security and Critical Infrastruc- ture Acts.—The Homeland Security83 and Critical Infra- structure Acts84 were enacted in response to the events of September 11, 2001. The Critical Infrastructure In- formation Act of 200285 is part of the broader Homeland Security Act (the Act). Several parts of the two acts are pertinent to transportation agencies. The Act specifi- cally exempts sensitive information from release under the FOIA. Critical infrastructure information, including the identity of the submitting person or entity, that is voluntarily submitted to a covered federal agency for use by that agency regarding the security of critical infrastructure and protected systems, analysis, warning, interdepen- dency study, recovery, reconstitution, or other informa- tional purpose, when accompanied by an express state- ment…shall be exempt from disclosure under [the Freedom of Information Act].86 Within the Act, the term “critical infrastructure” is defined as “systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of the systems and assets would have a debilitating impact on security, national economic secu- rity, national public health or safety, or any combina- tion of those matters.”87 The Act then provides a list of “covered agencies” that includes federal, state, and local agencies. The law requires the voluntary provider of written material to mark sensitive material with a statement reading, “This information is voluntarily submitted to the federal government in expectation of protection from disclosure under the provisions of the Critical Infrastructure Information Security Act of 2001.”88 The House Government Reform Committee amended the original language of the Act to provide that volun- tarily submitted critical infrastructure information “will 82 272 F. Supp. 2d 1313 (D. Utah 2003). 83 Pub. L. No. 107-296, 116 Stat. 2135, 6 U.S.C §§ 101 et seq. 84 Pub. L. No. 107-56, 115 Stat. 400, 42 U.S.C. § 5195c. 85 6 U.S.C. §§ 131–34. 86 6 U.S.C. § 133(a)(1) and (1)(A). 87 See 6 U.S.C. § 101(4), referencing 42 U.S.C. § 5195c. 88 6 U.S.C. § 133(a)(2)(A).

19 not be subject to agency rules or judicial doctrine re- garding ex-parte communications, nor used directly in civil actions if that information is submitted in good faith.” Further, the Committee stated that “disclosure of information under this section does not constitute waiver of legal privilege or protection, such as trade secret protection.”89 The Homeland Security Act re- quires federal officials who “advise, alert, [or] warn” of critical infrastructure threats to withhold any voluntar- ily submitted critical infrastructure information as well as “information that is proprietary, business sensitive, or otherwise not appropriately in the public domain.”90 Officials who hold sensitive information gathered by others must treat that information as sensitive. At the time of this writing, there is little case law in- terpreting either of the two acts. In Tombs v. Brick Township Municipal Utilities Authority,91 appellant requested access to a topographic map in digital format from the Brick Township Municipal Utilities Authority (BTMUA). The geographic information system (GIS) data included maps and information on treatment fa- cilities, information systems, and distribution lines of BTMUA that could not be separated from the software program used to access and manipulate the data. BTMUA’s Executive Director denied the request, claim- ing the information sought was proprietary, subject to alteration, and concerned the township’s “critical infra- structure” or “assets” in need of protection under New Jersey’s Domestic Security Preparedness Act. BTMUA offered to provide appellant with paper copies of maps of the Brick Township for $5. BTMUA submitted an application for protection of the map to the Department of Homeland Security (DHS). DHS granted protected critical infrastructure information status to the mate- rial, declaring that it would be “handled and safe- guarded as required by the CII[A] [Critical Infrastruc- ture Information Act of 200292] and 6 C.F.R. § 29”93 and that the material “shall not be made available pursuant to any State or local law requiring disclosure of records or information.” On appeal, the court protected the in- formation. Survey Results—Critical Infrastructure Policies One of the questions posed was whether a request for building layout plans, computer programs, computer coding information, bridge inspections, or other struc- tural information was treated differently than other requests for public records. Agencies were asked whether they had adopted a specific critical infrastruc- ture policy. 89 See Tech Law Journal Daily E-Mail Alert 4470, July 16, 2002, available at http://www.techlawjournal.com/alert/2002/07/16.asp; 6 U.S.C. § 133 (a)(B) and (C). 90 6 U.S.C. § 133(g)(2). 91 2006 WL 3511459 (N.J. Super. A.D. 2006) (unpublished opinion). 92 6 U.S.C. § 131 et seq. 93 Public disclosure laws, 6 C.F.R. § 29.8(g) and (j). The transportation agencies in Alabama, Connecti- cut, Kentucky, Hawaii, Maryland, Michigan, Nevada, and Oklahoma review records requests in light of and in conjunction with their public records acts. New York law94 exempts records that, if disclosed, would endanger the life or safety of any persons or jeopardize an agency’s capability to guarantee the security of its in- formation technology assets. North Carolina, Maryland, and Utah responded that their laws specifically stated that the definition of pub- lic record “shall not” include public security plans, de- tailed plans and drawings of buildings, risk assess- ments, and emergency procedures. North Carolina law95 protects emergency response plans and sensitive secu- rity information. Hawaii’s response indicated that, while they do not have a specific critical infrastructure policy, requests are scrutinized and screened for secu- rity purposes. Alabama responded that they consider public records requests in conjunction with the Anti- Terrorism and Homeland Security Acts. Arkansas, Virginia, and Minnesota indicated that their security or critical infrastructure policy could not be released due to its content. Two states, Mississippi and Oklahoma, responded that requests for sensitive information were not treated any differently than other requests. Missouri, as have some other states, has developed its own version of the Federal Critical Infrastructure Information Policy. The text of the policy acknowledges that the Missouri Open Records law96requires govern- mental agencies to conduct business in a manner open and accessible to all citizens. The policy provides guide- lines for the protection of “sensitive” information, which is defined as “information that if released would threaten public safety.” Examples include building structural or security plans, transportation security plans, cyber security plans, computer and network documentation, bridge plans, or any other document or specific program related to security systems and struc- tural plans of the transportation system. Sensitive in- formation is to be stored in a secure place with limited access. Certain staff members must determine whether an item is sensitive and therefore exempt from disclo- sure. A process similar to the sunshine law request proc- ess was set up to process requests for sensitive informa- tion. If a request for information is denied, a letter is sent to the requestor explaining that disclosure of the information would impair MoDOT’s ability to protect the security or safety of travelers or the transportation system infrastructure. If MoDOT receives sensitive se- curity information from other agencies, that informa- tion is protected in the same manner as MoDOT’s own information. b. Federal Hazard Elimination Program.—Accident and safety data collected by public agencies may be pro- 94 21 N.Y. COMP. CODES R. & REGS. § 1500.8. 95 N.C. GEN. STAT. 132-1.6 96 MO. REV. STAT. ch. 610.

20 tected by 23 U.S.C. § 409 and 23 U.S.C § 152. 97 The Federal Hazard Elimination Program, § 152, was codi- fied in the 1970s. The program provided state and local governments with funding to improve “dangerous” sec- tions of roads. To be eligible to receive federal funding, states were required to evaluate their roads to identify hazardous locations and assign priorities for the correc- tion of those locations. After this program was intro- duced, state and local governments articulated their concerns about liability risks for accidents that took place at the identified locations where improvements had not yet occurred. In response to this concern, Con- gress adopted 23 U.S.C. § 409, which is set out below: Notwithstanding any other provision of law, reports, sur- veys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous road- way conditions, or railway-highway crossings, of this title or for the purpose of developing any highway safety con- struction improvement project which may be imple- mented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Fed- eral or State court proceeding or considered for other purposes in any action for damages arising from any oc- currence at a location mentioned or addressed in such re- ports, surveys, schedules, lists, or data. Similarly, 23 U.S.C. § 402 provisions for discovery pur- poses exclude crash records maintained in a state data system if the system is established using federal funds. Language in the Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A Legacy for Users (SAFETEA-LU) makes it clear that the § 409 exclusion extends to safety records that are required by federal law to be maintained.98 There was a great deal of controversy about the util- ity of 23 U.S.C. § 409 until 2003, when the U.S. Su- preme Court decided Pierce County, Washington v. Guillen.99 The Court considered a discovery request by the Guillens, who were plaintiffs in a wrongful death lawsuit. The Guillens requested that the county provide them with copies of documents that showed the acci- dent history of the intersection where the fatal accident occurred. That request was denied by the county be- cause accident reports “compiled or collected” for 23 U.S.C. § 152 purposes were protected by federal law. An appeal followed and the case was eventually heard by the U.S. Supreme Court. The Court found that as long as accident reports were obtained for § 152 purposes, they were protected from discovery. The Court empha- sized that any information collected for the purpose of identifying, evaluating, or planning a safety enhance- 97 See also ORRIN F. FINCH & GARY A. GEREN, FREEDOM OF INFORMATION ACT, FEDERAL DATA COLLECTIONS AND DISCLOSURE STATUTES APPLICABLE TO HIGHWAY PROJECTS AND THE DISCOVERY PROCESS (NCHRP Legal Research Digest 33, 1995); Validity, Construction, and Operation of Evidentiary Privilege of 23 U.S.C.A. § 409, 181 A.L.R. FED. 147 (2002). 98 See § 1401(g)(4) of SAFETEA-LU at 119 Stat. 1225. 99 537 U.S. 129, 123 S. Ct. 720, 154 L. Ed. 2d 610 (2003). ment shall not be subject to discovery or entered into evidence. More recently, in Long v. State ex rel. Dept. of Transp. and Development,100 letters between the mayor and Louisiana Department of Transportation and De- velopment (DOTD) about a plan to signalize a railroad crossing using funds available through a federal safety program, and concerning the mayor’s commitment to maintain both pavement striping and signs, were found to be protected from discovery and inadmissible pursu- ant to 23 U.S.C. § 409. The court found that the letters were information that was necessary for the com- mencement of the upgrade for this roadway/railroad crossing, and therefore, the letters were prepared for the purpose of the federal safety program. The courts will not protect the information if it is not going to be used in litigation. In Telegram Publishing Co. v. Kansas Department of Transportation,101 a news- paper reporter made a request for the department’s railroad safety data and hazard rating system. That request was denied based upon § 409. Summary judg- ment was granted in favor of Telegram Publishing, and it was awarded attorneys’ fees. The appellate court found Pierce County irrelevant because Telegram was not seeking information for litigation purposes. The court went on to say that § 409 “contains no prohibi- tions against disclosure upon a request by a newspaper reporter, as in the case at hand.” The court in News- day, Inc. v. State of New York Dept. of Transp.102 had a similar holding. Another related issue is whether previous disclosure of the information sought in litigation prevents the agency from claiming the exemption or privilege when the information is later requested in litigation. In Robertson v. Union Pacific R. Co.,103 the parent of a young man who was injured in an automobile-train col- lision brought a negligence action against the railroad, alleging that the intersection was dangerous and the railroad had prior notice of that fact. Appellants at- tempted to introduce a newspaper article at trial to show notice to the railroad of the danger of the crossing. The article was written using data compiled by the Ar- kansas Highway Department. The railroad argued that the district court properly excluded the newspaper arti- cle from evidence, because “[t]o allow the introduction of the data through the newspaper article would circum- vent the purpose of the statute.” Appellants were not allowed to introduce evidence of otherwise inadmissible data simply because it was reported by an indirect, sec- ondary source. The court of appeals held that the news- paper article that identified the crossing at which this collision occurred as the most hazardous railroad cross- ing in the state was not admissible; the instruction to the parent’s expert witness to disregard any informa- tion compiled or utilized by the highway department in 100 916 So. 2d 87 (La. 2005). 101 275 Kan. 779, 69 P.3d 578 (Kan. 2003). 102 1 Misc. 3d 321, 765 N.Y.S.2d 758 (N.Y. Sup. 2003). 103 954 F.2d 1433 (8th Cir. 1992).

21 formulating his opinion was not an abuse of discretion; and evidence that flashing lights at the crossing had failed on two separate occasions following the collision was irrelevant. The court in Coastal Delivery Corporation v. United States Customs Service104 dealt with the waiver issue in the FOIA context. In this case, plaintiff trucking com- pany requested that the Customs Service release infor- mation regarding the number of examinations per- formed on merchandise arriving into the Los Angeles/Long Beach seaport. The Customs Service ar- gued that the information was protected under FOIA exemptions because terrorists and others could use the information to discover the rate of inspection and then direct their containers containing contraband to vul- nerable ports. Plaintiff argued that defendant had dis- closed these types of numbers before, and therefore de- fendant should be required to disclose the requested information to plaintiff at this time. The court found that because Customs did not disclose the exact infor- mation requested, only similar information, that “for Customs to have waived its right to argue exemptions, it must have disclosed the exact information at issue,” citing with approval Mobil Oil Corp. v. United States Environmental Protection Agency105 and protecting the information. Practical Considerations Discovery.—While it is typically acknowledged by plaintiffs’ attorneys that accident reports and accident study information may be protected by federal law, it is often necessary to prove this to the court. Plaintiffs may argue that any exemption or privilege should be con- strued narrowly and that the burden of proof is on the proponent of the exemption or privilege to prove that the information should be protected.106 The court must have sufficient information to enable it to determine that the information should be protected from discov- ery. It is helpful for the agency that wishes to protect the information to have an employee execute an affida- vit that sets forth that the data were collected for pur- poses consistent with the Hazard Elimination Act.107 Typically a privilege log, which sets out document names and a brief description of the document, is pro- vided to the court and to opposing counsel. An en cam- era review of the documents can be requested by either party. Open Records Responses.—It is important to note that objective records that contain verifiable facts are much more useful to the agency than records that con- tain opinions, feelings, and other subjective informa- tion. For instance, an “incident response” employee who did not witness an accident should not speculate in his 104 272 F. Supp. 2d 958 (C.D. Cal. 2003). 105 879 F.2d 698, 701 (9th Cir. 1989). 106 See State ex rel. Dixon v. Darnold, 939 S.W.2d 66 (Mo. App. 1997). 107 A sample affidavit is attached to the end of this section as App. H. report how an accident occurred. He should merely re- cord the facts about the incident that he is able to ob- serve. It could be (and has been) argued that open records requests made by counsel prior to the filing of a lawsuit can be denied if litigation is pending. The definition of “pending” must be decided on a case-by-case basis and based upon a careful rule of applicable state open re- cords law. Stamping information that is released with a “subject to 23 U.S.C. 409” message may alleviate the problem of that information being used in discovery or being admitted into evidence if counsel determines that the information must be released pursuant to a public records request. c. The Americans With Disabilities Act of 1990.—The Americans with Disabilities Act of 1990 as amended (ADA)108 and the Family and Medical Leave Act of 1993 (FMLA)109 restrict the use of, and access to, employee medical files and require that the files be retained for specific periods of time. Both the ADA and the FMLA allow information to be released as needed to supervi- sors and managers regarding work restrictions or needed accommodations. 110 d. Health Insurance Portability and Accountability Act.—The Health Insurance Portability and Account- ability Act (HIPAA)111 states that individually identifi- able health information should not be disclosed without the permission of the patient. This law is important to transportation agencies in the context of employee liti- gation and advice to staff generally. If the legal de- partment or human resources department receives a request for a former or current employee’s medical in- formation, a release with the employee’s signature should be obtained prior to the disclosure of the infor- mation. In addition, HIPAA requires “covered entities,” such as health care providers and group health plans (including the employers that provide the plan), to en- sure the privacy of certain “protected health informa- tion,” which may include some medical records related to group health plans. e. Drivers Privacy Protection Act.—The Drivers Pri- vacy Protection Act 112 regulates the disclosure of per- sonal information contained in the records of state mo- tor vehicle departments. State motor vehicle departments require drivers and automobile owners to provide personal information, which may include a per- son’s name, address, telephone number, vehicle descrip- tion, Social Security number, medical information, and photograph, as a condition of obtaining a driver’s li- cense or registering a vehicle. Prior to the enactment of this law, many states sold that information to individu- 108 101 P.L. No. 336, 104 Stat. 327, 42 U.S.C. §§ 12101– 12213, 29 C.F.R. § 1602.14. 109 103 P.L. No. 3, 107 Stat. 6, 29 U.S.C. § 2601. 110 See App. D for a chart detailing the lengths of time cer- tain information should be kept. 111 42 U.S.C. § 1320. 112 103 P.L. No. 322, 108 Stat. 1796, 18 U.S.C. §§ 2721– 2725.

22 als or businesses, generating significant revenue for the state. The data had the potential to fall into the wrong hands, and in at least one case, the release of data resulted in the murder of a woman. South Carolina sued to block enforcement of the Act in Reno v. Condon.113 The Supreme Court held that it was appropriate to regulate the personal information found on license applications and that Congress had the authority to enact the Drivers Privacy Protection Act because the Act regulated the states as owners of motor vehicle databases that are used in interstate commerce. The Court found that the regulation, which permitted disclosure of the personal information in limited situa- tions for any “state-authorized public purpose” relating to the operation of a motor vehicle or public safety, was constitutional. f. The Uniform Relocation Assistance and Real Prop- erty Assistance Program.—The Uniform Relocation As- sistance and Real Property Assistance Program114 pro- vides that an agency should maintain adequate records of acquisition and displacement activities in sufficient detail to demonstrate that it complied with the law. The regulation goes on to state, “[r]ecords maintained by an agency in accordance with this part are confidential regarding their use as public information, unless appli- cable law provides otherwise.” The court in City of Reno v. Reno Gazette–Journal115 dealt with the regulation when addressing a sunshine law request from a newspaper. The city was asked to provide appraisal values for the parcels of property it was acquiring as part of a public works project. The request included the amount of compensation that was offered to the property owners, a breakdown of any costs in the budget, and the names and addresses of property or lease owners with a list of appraisal values and relocation payments. The city denied the request on the basis that the records were confidential under fed- eral and state law. The newspaper prevailed in the lower court and the city appealed to the Nevada Su- preme Court. The court found that the records were protected under federal law, reasoning that a specific provision takes precedence over a general provision and since the federal law specifically deemed the records to be closed, the general language of the sunshine law did not control on this issue. Similar reasoning was fol- lowed in a Kentucky Attorney General Opinion.116 3. Trade Secrets Trade secrets are discussed in 18 U.S.C. § 1905. The FOIA does not apply to trade secrets and commercial or financial information obtained from a person if it is privileged or confidential. The term “trade secret” (as defined by 18 U.S.C. § 1905) is a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing 113 528 U.S. 141, 120 S. Ct. 666, 145 L. Ed. 2d 587 (2000). 114 49 C.F.R. § 24.9(b). 115 119 Nev. 55, 63 P.3d 1147 (2003). 116 See Ky. Op. Att’y Gen. 05-ORD-128, 2005 WL 3844502. of trade commodities and that is the end product of ei- ther innovation or substantial effort. The “commercial” aspect of the exemption is not confined to records that reveal basic commercial operations or relate to income- producing aspects of a business, but may apply when the provider of the information has a commercial inter- est in information submitted to the agency. Information does not need to relate to business entities to constitute financial information; protected information may be personal financial information.117 a. Proprietary Information Held by State Depart- ments of Transportation.—State transportation agen- cies often deal with trade secrets in the context of pro- prietary information contained in bid documentation and contracts. The USDOT has a process to notify peo- ple or businesses who have submitted confidential in- formation when that information is requested. Bid so- licitations notify all potential bidders that they should mark confidential information as confidential. If the USDOT receives a FOIA request for records that in- clude confidential information and staff believe the in- formation should be released under FOIA, the office will notify the information submitter in writing that the information has been requested. USDOT will, to the extent permitted by law, consider a submitter’s objec- tions and grounds for nondisclosure before determining whether to disclose business information. The submit- ter may object to the disclosure of the information. If a decision is made to disclose the material, the submitter will be provided notice of that decision so that judicial remedies can be pursued. The submitter in that case must file a “reverse FOIA” action, asking that the in- formation be protected and not released to the public. The government assumes no liability for the disclosure of information that was not appropriately designated.118 In Center for Auto Safety v. National Highway Traf- fic Safety Admin.,119 the National Highway Traffic Safety Administration (NHTSA) issued an Information Request to nine airbag manufacturers and importers seeking information on airbag systems used in 1990– 1998. The Center for Auto Safety sought access to the information pursuant to FOIA. NHTSA released some of the information to the Center, but claimed that the remaining submissions were protected from disclosure under Exemption 4 of FOIA, which excludes “trade se- crets and commercial or financial information obtained from a person and privileged or confidential” from dis- closure. The court found that information submitted by airbag manufacturers to NHTSA about the performance of airbags should be released because information ad- dressing the physical and performance characteristics of airbags, not how the airbags were manufactured, did not qualify as trade secret information for purpose of the FOIA exemption. 117 CJS Records § 138. 118 See 49 C.F.R. § 7.17, Consultation with submitters of commercial and financial information. 119 244 F.3d 144, 345 U.S. App. D.C. 248 (D.C. Cir. 2001).

23 Practical Concerns Because of the potential liability connected with the unauthorized release of proprietary or confidential in- formation protected by state trade secrets acts, the agency must set up a procedure that requires those submitting sensitive or otherwise potentially protected information to clearly identify the information as a “trade secret.” Care must be taken to ensure that ap- propriate safeguards are in place to keep the informa- tion confidential once it has been determined that it should be confidential. The agency’s open records policy should reflect that confidential or proprietary informa- tion will not be released. Staff must be trained to en- sure compliance with the policy as the agency may have liability if the information is accidentally released. Survey Results—Confidential Information Agencies were asked how they processed “proprie- tary” or other information contained in bid documents or other confidential information that the submitter might reasonably believe would be protected from dis- closure. Missouri’s law protects information contained in a bid until the bids are opened and read, at which point they become public record. North Carolina’s law120 pro- tects such information if it is a “trade secret” as defined by state law, if the information is the property of a “pri- vate person” as defined by state law, and if the informa- tion was furnished in connection with a bid, proposal, or the like, and the information is designated when sub- mitted as confidential information. In Hawaii, confidential information stored in the document management system is kept in a secure folder with limited access. Similarly, in Alabama, proprietary and confidential information is maintained only in pa- per form and is kept under lock until destroyed under the records retention policy. Montana responded that its constitution requires that the records in a state agency’s possession be pro- vided to the public and that confidential information under almost all circumstances must be provided upon request. They also noted, however, that if they receive a request for information that could be considered confi- dential, such as bid information, they notify the submit- ting party so that the submitter could litigate the issue if it chose to do so. Similarly, Wisconsin responded that it requires that confidential information be designated as “confidential” upon submission, and if it receives a request for the information, it notifies the bidder to allow the bidder to handle the litigation if it so chooses. Vermont uses the following method: Bid proposals are regulated as re- stricted or confidential records. The only individuals who can access these records are those who have been granted access by the Vermont Agency of Transporta- tion (VTrans) Public Records Officer in writing. This information is provided to the records center, and only individuals included on this list are allowed to request 120 N.C. GEN. STAT. § 132-1.2. or view these records. Restricted or confidential infor- mation is removed from the paper proposals prior to public viewing, and only authorized personnel are al- lowed to view the data. b. Public-Private Partnerships.—Many public agen- cies are forming “public-private partnerships” (PPPs). Typically the PPPs involve a state or municipal high- way department or bridge or transit authority that owns and operates highway and transit facilities. The private partners are professional service companies, contractors, and financial entities pursuing business with owner-operators. Until recently, private-sector participation was limited to planning, design, or con- struction contracts on a fee schedule based on the pub- lic agency’s specifications. Expanding the private sector’s role allows public agencies to tap private sector technical, management, and financial information. The private partner can ex- pand its business opportunities in return for assuming the new or expanded responsibilities and risks. Public agencies must be able to protect the confidential or pro- prietary information that is contained within the com- munications from the private companies. Confidential information is one of the components addressed by the Federal Highway Administration’s PPP model legislation. This document suggests that the agency inform the submitter, prior to the submission, that it may request an opinion from the agency as to whether the information it plans to submit will be sub- ject to the state’s open records act and therefore subject to release. The submitter then has an opportunity to object to the release of any information it identifies as confidential or proprietary if it is requested under the state’s open records act. If the state determines the in- formation should remain confidential, it will not be re- leased if requested.121 Practical Concerns.—Agencies that contract with private firms to provide government services should address public records compliance issues. Contracts with the firms should contain indemnification and hold- harmless clauses to protect the agency in case the con- tractor’s failure to produce such records results in liabil- ity under the public records law. B. TRENDS IN PUBLIC RECORDS LAWS The reader should be aware that generally the intent of public records laws is to be expansive, and the excep- tions are narrowly construed by the courts. The reader should carefully research case law for the specific juris- diction. Who Is Subject to Public Records Law? In Central Atlantic Progress v. Baker,122 the Atlanta Chamber of Commerce refused to allow inspection of the bids for the Nascar Hall of Fame and the 2009 Su- per Bowl by the Atlanta Journal–Constitution. The at- 121 See http://www.fhwa.dot.gov/ppp/pdf/legis_model.pdf, last visited Apr. 4, 2009. 122 278 Ga. App. 733, 629 S.E.2d 840 (Ga. App. 2006).

24 torney general issued an opinion stating that, in light of the significant involvement of public officials, public employees, public resources, and public funds in the matters, the bids were subject to the Georgia Open Re- cords Act123 and should be disclosed. On appeal, the court agreed with the attorney general’s opinion. Similarly, the court in News Journal Corp. v. Memo- rial Hospital-West Valencia124 found that contractors’ records are public records when the contractor is reliev- ing the government from the operation of a governmen- tal function such as operating a jail or hospital or pro- viding fire protection. Personal E-mails as Public Records In Griffis v. Pinal County,125 a former county man- ager who was being investigated for misuse of public funds filed an action against the county trying to block the release of personal e-mail messages he had sent or received while he was the county manager. The court found that the definition of public records is not unlim- ited, as the law requires public officials to make and maintain records “reasonably necessary to provide knowledge of all activities they undertake in the fur- therance of their duties” and, further, that the defini- tion does not encompass documents of a purely private or personal nature. Because the “nature and purpose” of the document determine its status, the mere possession of a document by a public officer or agency does not by itself make that document a public record under public records law, nor does expenditure of public funds in creating the document. Personal e-mails sent or received by government employees may be public records, and therefore open to inspection, but to be considered an “official record” the record must have some relation to the official duties of the public officer that holds it. In State v. Clearwater,126 the court rejected the argument that placement of e- mails on the state’s computer system automatically makes them public records. Similarly, in Denver Pub- lishing v. Board of County Commissioners,127 the court found that for an e-mail to be a public record, the con- tent of the e-mail must reveal a “demonstrable connec- tion” to the employee’s performance of public functions or a connection to the receipt or expenditure of public funds. The court stated that it was important to weigh open access to government records against the protec- tion of individual privacy. In a slightly different context, in Tiberino v. Spokane County,128 Ms. Tiberino’s employment as a secretary for the Spokane County Prosecutor’s Office was terminated based on her unsatisfactory work performance, includ- ing her use of e-mail for personal matters. Ms. Tiberino 123 GA. CODE ANN. § 50-18-70 et seq. (2006). 124 695 So. 2d 418 (Fla. App. 5 Dist. 1997). 125 215 Ariz. 1, 156 P.3d 418 (2007). 126 863 So .2d 149,151 (Fla. 2003). 127 121 P.3d 190, 199 (Colo. 2005). 128 103 Wash. App. 680, 13 P.3d 1104, 1108 (Wash. App. 2000). threatened the county with a lawsuit for wrongful ter- mination. In response to the threat, the county printed all e-mails Ms. Tiberino had sent or received from her work computer. The county received requests for those records from Cowles Publishing Company and Spokane Television, Inc. The court found that the fact that Ms. Tiberino sent 467 personal e-mails over a 40 working- day time frame was of significance in her termination action and the public had a legitimate interest in hav- ing that information. However, the court found that what she said in those e-mails was of no public signifi- cance, that the public had no legitimate concern requir- ing release of the e-mails, and that the e-mails should be exempt from disclosure. 1. Withholding Documents Based Upon Attorney– Client Privilege Courts generally hold that government agencies are allowed to consult with counsel outside of the hearing of the media or other interested parties. In Roberts v. City of Palmdale,129 the court applied the attorney-client privilege to the California Public Records Act,130 noting that a city council needs the freedom to confer with its attorneys confidentially to obtain adequate advice. Similarly, in Tennessean v. Tennessee Department of Personnel,131 a newspaper requested harassment inves- tigation files from a state agency. The agency withheld some documents based upon attorney-client privilege. On appeal, the court reasoned that if the purpose of the document was to provide legal advice or prepare for litigation then the privilege applies, however, if the purpose of the document was to enforce the antidis- crimination policy or comply with the state’s legal duty to investigate, the documents were not privileged. In the case of Springfield Terminal Ry. Co. v. De- partment of Transp.,132 documents authored by the de- partment of transportation’s chief counsel and outside counsel that contained advice about the mechanics of and possible outcomes of future eminent domain litiga- tion were not public records and therefore not subject to disclosure under Maine’s Freedom of Access Act, be- cause the documents were privileged under the work- product doctrine. 2. Trade Secrets and Proprietary Information In Cubic Transp. Systems, Inc. v. Miami-Dade County,133 Cubic brought a suit against the county for the protection of its “trade secrets” after submitting bid information for the county’s consideration. The court found that Cubic failed to protect its trade secrets from the effect of the Public Records Act when it did not mark the documents as “confidential,” and continued to supply the county with documents without asserting a 129 20 Cal. Rptr. 2d 330, 853 P.2d 496 (1993). 130 CAL. GOV'T CODE § 6250 et seq. (1993). 131 2007 WL 1241337 (Tenn. App. 2007). 132 2000 Me. 126, 754 A.2d 353 (2000). 133 899 So. 2d 453 (Fla. 2005).

25 post-delivery claim of confidentiality. The court cited Sepro Corp. v. Florida Department of Environmental Protection134 for the proposition that [T]he trade secret owner who fails to label a trade secret as such, or otherwise to specify in writing upon delivery to a state agency that information which it contends is confidential and exempt under the public records law is not to be disclosed, has not taken measures or made ef- forts that are reasonable under the circumstances to maintain the information’s secrecy. The order compelling production of the documents was affirmed. In California First Amendment Coalition v. County of Santa Clara and Peter Kutras,135 a case decided in superior court, the county argued that the GIS base map was proprietary information and should not be released in response to a public information request. GIS technology provides a 3-D display, on maps, of in- formation in an easy-to-use database. The court rejected the county’s arguments that it could withhold the GIS base-map files because of their status as computer soft- ware and because the files allegedly contain “trade se- crets” protected from disclosure under state and federal law. The superior court concluded the base map con- sisted of data, not software, and found that the county, by selling the base map to private entities, had waived any trade secret protection to which the records other- wise might be entitled. The court found that federal copyright protection did not permit the county to deny a valid request under California’s Public Records Act. The court also rejected the county’s attempt to avoid releas- ing the records by getting them designated “Critical Infrastructure Information” by DHS. The court noted that this designation was sought only after the plaintiff filed suit, and despite the county’s past sales of the GIS base map to 15 purchasers, 5 of them private compa- nies. In the case of Douglas Asphalt v. E.R. Snell Contrac- tor,136 the Georgia Department of Transportation held the bid records of 11 asphalt contractors, and received a request from Douglas Asphalt to review those records. The contractors joined together and claimed the state’s records contained trade secrets. The court agreed and noted that the asphalt industry is highly competitive and that because materials make up the largest part of the costs, companies spend a lot of time and money per- fecting the formulas to reduce their costs. The court was concerned that competitors could derive the mix designs from reviewing the requested information. In Springfield Terminal Ry. Co. v. Agency of Transp.,137 VTrans issued a request for proposals, seek- ing a rail freight operator to provide freight service. The proposal request required that each bidding operator submit detailed information regarding corporate fi- nances, in addition to a general technical proposal. In 134 839 So. 2d 781, 784 (Fla. 1st Dist. 2003). 135 Case No. 1-06-CV-072630 (May 2006). 136 282 Ga. App. 546, 639 S.E.2d 372 (2006). 137 174 Vt. 341, 816 A.2d 448 (2002). response to the VTrans request, three freight operators submitted proposals containing the required financial information. The financial information included balance sheets, income statements, profit and loss statements, statements of retained earnings, statements of cash flows, and freight and passenger flow projections. Springfield Terminal Railway (STR) also submitted a proposal, but omitted the required financial informa- tion. Later, STR submitted a request to inspect or copy public records relating to the selection, solicitation, and recruitment of entities to operate the rail line. VTrans produced some of the requested documents, but with- held the financial documents, claiming them as exempt under Vermont’s Public Records Act.138 VTrans also withheld information, including the names of current and potential shippers, stockholder information, and employee information. The court found that the data contained in the bidders’ proposals could be used to give STR a detailed account of confidential, sensitive data and vitiate the competitive advantage held by the bid- ders and ruled that VTrans did not have to release the documents. 3. Information Protected From Disclosure Due to Security Concerns In Northwest Gas Ass’n v. Washington Utilities and Transp. Comm’n,139 several pipeline companies brought an action against the Washington Utilities and Trans- portation Commission, trying to enjoin the disclosure of a detailed map and pipeline data in response to news- papers’ public records act request. Several newspapers intervened. The pipeline companies asked the trial court to enjoin the commission from disclosing the data under Revised Code of Washington 42.56.540, which protects public records from disclosure when “examina- tion would clearly not be in the public interest and would substantially and irreparably damage vital gov- ernment functions.” The companies submitted more than 20 declarations from Northwest Gas Association members and other industry representatives. These declarations asserted that 1) the companies’ natural gas pipeline system “constitutes part of the critical energy infrastructure” of the state and of the northwest region of the United States, and 2) “[t]he incapacity or destruc- tion of the regional gas pipeline system would have po- tentially catastrophic consequences for economic secu- rity and public safety.” The newspapers could not refute these assertions. Because the pipelines raised serious issues of proprietary interests, public safety, and na- tional security, the court decided that the information should not be released. 4. Personnel Records In Herald Co. v. City of Bay City,140 the court held that Bay City violated the state FOIA when it did not 138 VT. STAT. ANN. tit. 1, § 317(c)(9) (2002). 139 141 Wash. App. 98, 168 P.3d 443 (2007). 140 463 Mich. 111, 614 N.W.2d 873 (2000).

26 disclose its records concerning the final candidates for fire chief. The city argued that “private details” of the applicants’ lives would be revealed if they released the records, but the Michigan Supreme Court found that the records were protected only if they revealed inti- mate or embarrassing details about an individual’s pri- vate life. In the case of In Re Wick Communications Co. v. Montrose County Board of County Commissioners,141 while a termination hearing was pending, the Montrose Daily Press requested photocopies of “any and all pages from the diary…discussed and used during a public grievance” for a former Montrose employee. Faced with the decision of disclosing the entire contents of his per- sonal diary or risking citations for contempt and prose- cution, the city manager petitioned the court for relief. The court found that in cases where it is unclear whether the custodian of the record holds the record in an individual or official capacity, and thus whether the record is private or public, the requesting party must make a threshold showing that the document is likely a public record. The court found that Colorado’s law did not apply to a private diary and the diary did not have to be produced. 5. When Agency Fails to Follow Its Own Policy The court in Gumina v. City of Sterling142 evaluated a claim by a terminated city employee who sought the minutes from two city council executive sessions in which her employment was discussed. The court held that the city council’s failure to comply strictly with requirements for executive sessions rendered meetings open such that recorded minutes were open to the pub- lic. An open records request for the investigation of the rape and murder of a 14-year-old child was denied due to the “pending investigation” exemption to the public records law. However, the county failed to respond to the request in 3 days, which was required by state law. Because of the county’s failure to respond to the request in a timely manner, the court reversed an earlier ruling in favor of the county and ruled that the Public Records Act had been violated.143 6. Payment of Redaction Fees The court in Data Tree v. Meek 144 considered Data Tree’s request to obtain bulk records of 20 separate mi- crofilm rolls to collect real estate information. The county said the redaction fees would be $22,000 because social security numbers, birthdates, and other confiden- tial information would have to be redacted. The court decided that the costs of producing records and redac- tion should be borne by the requester. 141 81 P.3d 360 (Colo. 2003). 142 119 P.3d 527 (Colo. App. 2005). 143 Athens Newspapers v. Unified Gov’t of Athens, 284 Ga. 192, 663 S.E.2d 248 (2008). 144 279 Kan. 445, 109 P.3d 1226 (Kan. 2005). 7. Requested Information Release Format 49 C.F.R. § 7.14(5) states as follows: The request should state the format (e.g., paper, microfiche, com- puter diskette, etc.) in which the information is sought, if the requestor has a preference. Several states have similar legislation. Mississippi’s Section 225-61-10 (2) states that “[a] public body shall provide a copy of a record in the format requested if the public body main- tains the record in that format….” In Wiredata v. Village of Sussex,145 a request was made to the city for property assessment data in a spe- cific format that would have required the contractor to provide access to the database. The format had been created and maintained by a contractor in the contrac- tor’s own database. The city’s response was provided in PDF format. The requestor filed an appeal, claiming that the contractor should have allowed direct access to the computer database. The court disagreed, comment- ing that the risks of confidential information being compromised and damage to the database outweighed the requestor’s right to the information in a particular format. In State ex rel. Milwaukee Police Ass’n v. Jones, the police chief’s production of an analog recording of a digi- tally-recorded 911 call was an insufficient response un- der the Wisconsin Public Records Act when the re- quester sought access to the actual recording for the purpose of examining the record and making a digital copy. Wisconsin’s statute, Section 19.36(4), allows a requester the right to inspect and make a copy of a re- cord and further provides that “the material used as input for a computer program or the material produced as a product of the computer program is subject to the right of examination and copying.” The court reasoned that the statute allows for exactly what the police asso- ciation had requested—access to the source “material” and the opportunity for “examination and copying.” Finding in the requestor’s favor, the court stated that a “potent open records law must remain open to techno- logical advances.” 146 8. Using Public Records Acts as a Discovery Tool California law147 exempts “[r]ecords pertaining to pending litigation to which the public agency is a party…until the pending litigation or claim has been finally adjudicated or otherwise settled.” The California Public Records Act’s148 pending-litigation exemption protects attorney-client privileged information and at- torney work product, as well as any other work product related to pending litigation. 149 In County of Los Ange- 145 310 Wis. 2d 397, 751 N.W.2d 736 (2008). 146 State ex rel. Milwaukee Police Ass'n v. Jones, 237 Wis. 2d 840, 615 N.W.2d 190 (2007). 147 CAL. GOV’T CODE § 6254. 148 CAL. GOV’T CODE §§ 6250 et seq. 149 See Bd. of Trustees of Cal. State Univ. v. Superior Court, 132 Cal. App. 4th 889, 34 Cal. Rptr. 3d 82 (2005).

27 les v. Superior Court,150 the court held that the Califor- nia Public Records Act’s pending-litigation exemption confers a broad exemption from disclosure on public agencies by protecting its work product generated in anticipation of litigation. The court emphasized that a document is protected from disclosure under the Public Records Act’s pending-litigation exemption only if the document was specifically prepared for use in litigation. The following cases, found in various jurisdictions, provide insight on this issue. In Wesco, Inc. v. Sorrell,151 gas station owners were defendants in criminal and civil cases where violations of environmental laws were alleged at their different facilities. The defendants tried to obtain the state’s documents under the state’s Access to Public Records Act152 after they had been denied discovery of those documents in the pending criminal and civil cases. The state Supreme Court held that documents were rele- vant to the government’s pending cases against the gas station owners, and thus exempt from disclosure under the state’s Access to Public Records Act. In Hangartner v. City of Seattle,153 requests were filed for documents related to a monorail project under the state Public Disclosure Act.154 The requests were denied based on the “records relevant to a controversy” exception to the public records law. The court found that the phrase “relevant to a controversy” means “completed, existing, or reasonably anticipated litiga- tion,” and that the city failed to establish that there was any threat or reasonable anticipation of litigation con- cerning the enactment of legislation relating to the monorail, but only a “litigation-charged atmosphere.” In Soter v. Cowles Pub. Co.,155 the court found that materials that would not be discoverable under the civil rules of pretrial discovery were also exempt from disclo- sure under the Public Records Act.156 The protection of the documents was triggered prior to the initiation of litigation and extended beyond the official termination of litigation. Courts do not distinguish between com- pleted and pending cases in applying the exemption under the Public Record Acts for records that would not be discoverable under the civil rules of pretrial discov- ery. This is because the possibility of disclosure, even disclosure after termination of the lawsuit, could cause witnesses to hesitate to reveal details to the attorneys, and it might cause attorneys to hesitate to reduce their thoughts or understanding of the facts to writing. The court in American Civil Liberties Union of Delaware v. Danber157 dealt with the “potential litiga- tion” exemption to the public records law. The Ameri- 150 82 Cal. App. 4th 819, 98 Cal. Rptr. 2d 564 (2000). 151 177 Vt. 287, 865 A.2d 350 (2004). 152 1 VT. STAT. ANN. § 315. 153 151 Wash. 2d 439, 90 P.3d 26 (2004). 154 See WASH. REV. CODE § 42.17.310(1)(j). 155 162 Wash. 2d 716, 174 P.3d 60 (Wash. 2007). 156 WASH. REV. CODE § 42.56 et seq. 157 2007 WL 901592 (Del. Super. 2007). can Civil Liberties Union (ACLU) made a FOIA request to the Department of Corrections (DOC) for information regarding the delivery of health care services within Delaware’s prison facilities. The DOC invoked FOIA’s potential-litigation exemption based on “correspondence from the ACLU, some addressed to inmates in the cus- tody of the DOC, that suggest that the ACLU may be contemplating litigation against the DOC based on al- leged inadequate medical care at DOC facilities.” The court noted that “[i]n our litigious society, a governmen- tal agency always faces some threat of suit. To construe the term ‘potential litigation’ to include an unrealized or idle threat of litigation would seriously undermine the purpose of [FOIA].” The court adopted the Delaware Attorney General’s two-pronged test to determine if the “potential litigation” exception would justify a refusal to supply information in response to a FOIA request: 1) litigation must be likely or reasonably foreseeable; and 2) there must be a “clear nexus” between the requested documents and the subject matter of the litigation. The court commented that the test “strikes a balance be- tween the need to construe the exceptions to FOIA nar- rowly and the need to give effect to the actual words of the statute which provide for the exception” and al- lowed the information to be withheld. In Kentucky Lottery Corporation v. Stewart,158 a state agency denied an open records request because the documents requested were related to a matter in litiga- tion. The court stated that the “litigation exemption” did not terminate a person’s right to use an open re- cords request in litigation and further commented that an open records request should not be evaluated based on who is requesting the documents. The state Office of Risk Management was ordered to allow public access to documents involving dental mal- practice claims that it had settled in Times Picayune Publishing Corp. v. Board of Supervisors of Louisiana State University.159 The documents requested were cop- ies of settlement checks and related settlement mate- rial. The records request was denied because the risk management office was involved with other similar claims and stated that their claims file was still open. The court found that since the earlier claims were set- tled, they were not pending and therefore were subject to disclosure, even though the claims had been consoli- dated for discovery purposes. Different state court decisions result in similar out- comes when a litigant asserts a public records act as a discovery tool. Variances among decisions depend upon the facts and nature of each case. 9. Exemption of Records Regarding the Future Purchase of Real Estate State FOIAs generally require public agencies to keep the content of real estate appraisals, engineering or feasibility estimates, and evaluations relative to property acquisitions confidential until the property is 158 41 S.W.3d 860 (Ky. App. 2001). 159 845 So. 2d 599 (La. Ct. App. 2003).