2. Discussion of each exemption

The Public Records Law specifically exempts from disclosure: (1) "registration and circulation records and information concerning the use of the public, public school or college and university libraries of this state"; and (2) "records concerning security plans, procedures, assessments, measures, or systems, and any other records relating to, or having an impact upon, the security or safety of persons, structures, facilities, or other infrastructures . . . the public disclosure of which could reasonably be expected to be detrimental to the public safety or welfare." Ala. Code § 36-12-40.

The public records statute, in A.S. 40.25.120, specifically exempts from disclosure:

1. records of vital statistics and adoption proceedings which shall be treated as required by AS 18.50.
2. records pertaining to juveniles unless disclosure is authorized by law.
3. medical and related public health records.
4. records required to be kept confidential by federal law or regulation or by state law.
5. records the state is required to keep confidential in order to secure or retain federal assistance.
6. certain records compiled for law enforcement purposes. [For more specific description of the law enforcement record exemption, see AS 40.25.120(a)(6)(A) to (G).]
7. names, addresses and other information identifying a person as a participant in the Alaska Higher Education Savings Trust under AS 14.40.802 or the advance college tuition savings program under AS 14.40.803 - 14.40.817;
8. public records containing information that would disclose or might lead to the disclosure of a component in the process used to execute or adopt an electronic signature if the disclosure would or might cause the electronic signature to cease being under the sole control of the person using it;
9. [See delayed repeal note]. reports submitted under AS 05.25.030 concerning certain collisions, accidents or other casualties involving boats;
10. records or information pertaining to a plan, program or procedures for establishing, maintaining or restoring security in the state, or to a detailed description or evaluation of systems, facilities or infrastructure in the state, but only to the extent that the production of the records or information

(A) could reasonably be expected to interfere with the implementation or enforcement of the security plan, program or procedures;

(B) would disclose confidential guidelines for investigations or enforcement and the disclosure could reasonably be expected to risk circumvention of the law; or

(C) could reasonably be expected to endanger the life or physical safety of an individual or to present a real and substantial risk to the public health and welfare;

11. the written notification regarding a proposed regulation provided under AS 24.20.105 to the Department of Law and the affected state agency and communications between the Legislative Affairs Agency, the Department of Law, and the affected state agency under AS 24.20.105. Note: This subsection AS 40.25.120(a)(11) was repealed effective August 1, 2018.

In a number of instances, a statute or regulation states that an agency “may keep confidential” certain data. A reporter seeking such information should note that this law only authorizes, but does not require nondisclosure. It could be argued that because of this, the general public record disclosure provision of A.S. 40.25.120 controls, and requires disclosure, since the only applicable exemption is for “records required to be kept confidential by a federal law or regulation or by a state law.” The Alaska appellate courts have not addressed this issue, but the argument is plausible and should be asserted. If nothing else, a balancing test should be required in cases where nondisclosure is permissive rather than mandatory, so that in each case the court must weigh the need for disclosure against the need for confidentiality.

There are no specific exceptions to disclosure codified in the Arizona Public Records Law.

(1) State income tax records. Ark. Code Ann. § 25-19-105(b)(1). This exemption covers more than just income tax returns of individuals. See, e.g., Ark. Op. Att’y Gen. No. 91-093 (payroll records indicating amount withheld from an employee’s paycheck for state income taxes). However, it does not apply to records pertaining to other state taxes, such as the sales tax, or to tax records of political entities other than the state. Some of these other tax records are exempt under other statutes. E.g., Ark. Code Ann. § 26-18-303 (forbidding disclosure of state tax records maintained by Department of Finance & Administration, with certain enumerated exceptions).

(2) Medical, adoption, and education records. Ark. Code Ann. § 25-19-105(b)(2).

(a) The exemption for “medical records” is limited to specific medical information about individuals, such as test results, employee health reports, and workers’ compensation records that reflect the nature and cause of an injury. Ark. Op. Att’y Gen. Nos. 95-262, 87-135, 87-070. The records must be related to the treatment or diagnosis of a medical condition. Ark. Op. Att’y Gen. Nos. 2000-232, 2000-226, 99-110, 99-042, 98-261, 98-202, 96-203, 91-374. Consequently, records that identify persons who received money from a county indigent care fund do not qualify, Ark. Op. Att’y Gen. No. 89-147, nor do hospital billing records. Ark. Op. Att’y Gen. No. 91-208. Also, statements by medical personnel to law enforcement officers will typically not be exempt. Ark. Op. Att’y Gen. No. 99-110. Ambulance records that include the patient’s medical history and a paramedic’s evaluation are exempt, as are home health care records. Ark. Op. Att’y Gen. Nos. 99-110, 96-203. Autopsy reports prepared by the State Medical Examiner are not considered medical records; however, these records are confidential under Ark. Code Ann. § 12-12-312(a) so long as they remain in the possession of the state crime lab. Once they leave the custody of the crime lab, however, the reports are subject to the FOIA unless another exemption, such as the act’s law enforcement exemption, Ark. Code Ann. § 25-19-105(b)(6), is applicable. See Ark. Op. Att’y Gen. Nos. 2001-100, 99-110, 97-294, 87-353. If the autopsy report is prepared by someone other than the State Medical Examiner, the crime lab confidentiality statute would not apply. Ark. Op. Att’y Gen. Nos. 97-294 (autopsy report that was never in possession of crime lab is subject to disclosure), 87-135 (autopsy report of coroner qualified to conduct post mortem tests is available under FOIA unless otherwise exempted).

(b) There are apparently no cases construing the exemption for adoption records; the Supreme Court has simply recognized that it exists. Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994). In 1978, the Attorney General opined that the exemption did not apply to records containing the names and addresses of foster families. Ark. Op. Att’y Gen. No. 78-108. However, another statute exempts records compiled or received by a state agency in placing a child for adoption, including foster care records. Ark. Code Ann. § 9-28-407(h) (as amended by Act 1211 of 2001). This statute and others dealing specifically with adoption records are independent exemptions to the FOIA. See, e.g., Ark. Code Ann. §§ 9-9-217, 9-9-406, 9-9-506.

(c) As amended by Act 1653 of 2001, Section 25-19-105(b)(2) exempts “education records as defined in the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, unless their disclosure is consistent with the provisions of [that act].” Previously, the FOIA used the term “scholastic records,” which may have been narrower in scope than the definition of “education records” in FERPA. The 2001 amendment makes the exemption coextensive with FERPA, which defines “education records” as “records, files, documents and other materials which . . . contain information directly related to a student; and . . . are maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. § 1232g(a)(4)(A). See Ark. Op. Att’y Gen. No. 2001-154 (name of student and other personally identifying information in letter is within the FERPA definition and thus exempt from disclosure under Section 25-19-105(b)(2)).

Certain records are excluded from the FERPA definition, e.g., records of instructional personnel and records created by a law enforcement unit of the institution or agency for law enforcement purposes. Id. § 1232g(a)(4)(B). Moreover, so-called “directory information” — a student’s name, address, telephone number, date and place of birth, major field of study, participation in school activities and sports, weight and height of members of athletic teams, degrees and awards received, and other schools attended — is not covered by the act, although a student may specifically request that the institution or agency not disclose such information without his or her prior consent. Id. § 1232g(a)(5)(A) & (B). Under a 1998 amendment, some disciplinary records of students at institutions of postsecondary education may be disclosed. Id. § 1232g(b)(6).

(3) Historical and archeological files. Ark. Code Ann. § 25-19-105(b)(3). This provision exempts the “site files and records maintained by the Arkansas Historic Preservation Program and the Arkansas Archeological Survey.” It was apparently designed to prevent the disclosure of information that would create a risk of destruction or harm to historic sites or objects. Ark. Op. Att’y Gen. No. 86-213.

(4) Grand jury minutes. Ark. Code Ann. § 25-19-105(b)(4). This exemption states only that grand jury “minutes” are not to be disclosed and may therefore not apply to other grand jury records. The term “minutes” apparently includes any record reflecting what transpired before the grand jury, including documentary evidence received and a summary or verbatim transcript of testimony. See Davis v. Kirby, 244 Ark. 142, 424 S.W.2d 149 (1968). However, the grand jury’s use of a public record in deliberations does not affect its status as a public document. See Collins v. State, 200 Ark. 1027, 143 S.W.2d 1 (1940).

(5) Judicial and quasi-judicial drafts. Ark. Code Ann. § 25-19-105(b)(5). This provision, which exempts “[u]npublished drafts of judicial or quasi-judicial opinions,” is designed to shield draft opinions of the courts and those administrative agencies that act in a quasi-judicial capacity. However, it does not extend to other types of preliminary materials prepared by agencies, such as proposals, draft guidelines, or memoranda. Ark. Op. Att’y Gen. No. 91-175.

(6) Law enforcement records. Ark. Code Ann. § 25-19-105(b)(6). This exemption applies to “[u]ndisclosed investigations by law enforcement agencies of suspected criminal activity.” For a more thorough discussion, see part IV.N.4, infra, of this outline.

(7) Unpublished memoranda, working papers, and correspondence. Ark. Code Ann. § 25-19-105(b)(7). This provision exempts “[u]npublished memoranda, working papers, and correspondence of the Governor, members of the General Assembly, Supreme Court Justices, Court of Appeals Judges, and the Attorney General.”

(a) The exemption applies to records of the specified officials, their staffs, and outside consultants. Bryant v. Mars, 309 Ark. 480, 830 S.W.2d 869 (1992). But see Legislative Joint Auditing Committee v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987) (working papers of employees of a legislative committee are not within the exemption); Ark. Op. Att’y Gen. No. 95-128 (research files and rough drafts of the governor’s advisory committee on the state constitution are not working papers of the governor). It is clear that the working papers, memoranda, and correspondence of state administrative agencies, cities, counties, and school districts are not exempt. Arkansas Hwy. & Transp. Dep’t v. Hope Brick Works Inc., 294 Ark. 490, 744 S.W.2d 711 (1988). The exemption is applicable to records of the Lieutenant Governor generated during his or her service as acting governor, but not otherwise. Ark. Op. Att’y Gen. No. 95-277.

(b) With respect to the Governor, the Attorney General has opined that the exemption “should not be construed to apply to the work product of all executive branch employees, even when they are working on projects of interest to the Governor.” If that were the case, “the FOIA would, in effect, become inapplicable to the executive branch of government.” Rather, the exemption should apply “only if it is established, as a factual matter, that the individuals who generated the documents work for the Governor and serve in a representative capacity or relationship similar to that served by members of the Governor’s staff such that the case of Bryant v. Mars will support the exemption.” Ark. Op. Att’y Gen. No. 97-369. In Bryant, the Supreme Court held that the exemption applied to the working papers of Assistant Attorneys General and consultants retained by the Attorney General’s Office.

(c) Although unpublished memoranda, working papers, and correspondence are not available under the FOIA from an official or staff member covered by the exemption, the same documents are not exempt when in the hands of a person to whom the exemption does not apply. Ark. Op. Att’y Gen. Nos. 95-128, 93-166, 92-346. The term “unpublished” is given its usual meaning, i.e., “issued, put into circulation, or made publicly known.” Ark. Op. Att’y Gen. No. 92-129 (letter from state senator to deputy prosecutor in regard to criminal defendant was published and thus not within exemption).

(d) Except for the Attorney General, his or her staff, and outside consultants, the exemption does not apply to litigation files and similar records of lawyers who represent government bodies, such as city and county attorneys, law firms retained by cities and school districts, and staff counsel at state agencies. City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990); Arkansas Hwy. & Transp. Dep’t v. Hope Brick Works Inc., supra. Neither the attorney-client privilege nor the work-product doctrine create exemptions to the FOIA. Scott v. Smith, 292 Ark. 174, 728 S.W.2d 515 (1987). However, documents of some government attorneys might be protected from disclosure by another statute. E.g., Ark. Code Ann. § 23-42-207(b)(2) (work product and other communications of Securities Commissioner and staff lawyers are confidential). Litigation files of attorneys representing doctors in public hospitals are not public records subject to disclosure when the attorneys are paid by private medical-malpractice insurance carriers. Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511 (2012).

(8) Court orders and rules. Ark. Code Ann. § 25-19-105(b)(8). Under this provision, a record is exempt from the FOIA if “protected from disclosure by order or rule of court.” See, e.g., Arkansas Newspaper Inc. v. Patterson, 281 Ark. 213, 662 S.W.2d 826 (1984) (court order sealing judicial records to prevent prejudicial pretrial publicity); Gannett River States Pub. Co. v. Arkansas Judicial Discipline & Disability Comm’n, 304 Ark. 244, 801 S.W.2d 292 (1990) (Supreme Court rules providing for confidentiality of records of judicial discipline commission); Ark. Op. Att’y Gen. No. 90-217 (rules governing records of Supreme Court committee on professional conduct).

(a) Without this exemption, the FOIA would likely be unconstitutional as applied to the courts. See Arkansas Newspaper Inc. v. Patterson, supra (exemption “prevents any entanglement in the separation of powers doctrine”).

(b) The order or rule must specifically require confidentiality. In Scott v. Smith, 292 Ark. 174, 728 S.W.2d 515 (1987), the Supreme Court held that Rule 502 of the Rules of Evidence (the attorney-client privilege) and Rule 26(b)(3) of the Rules of Civil Procedure (the work-product doctrine) do not fall within this exemption, since neither deals directly with the question of disclosure under the FOIA.

(c) A trial court has “inherent authority to protect the integrity of the court in actions pending before it” and may issue “appropriate protective orders” exempting records from the FOIA. City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990). For example, a trial court may seal documents filed with the court to prevent prejudicial pretrial publicity, Arkansas Newspaper Inc. v. Patterson, supra, and enter an order forbidding disclosure of police files to protect a criminal defendant’s right to a fair trial. Arkansas Gazette Co. v. Goodwin, 304 Ark. 204, 801 S.W.2d 284 (1990). A trial court hearing an FOIA case must “give credit” to protective orders issued by another court but may not use this exemption to enter its own order preventing access to records that would otherwise be available for public inspection. City of Fayetteville v. Edmark, supra.

(9)(A) Competitive advantage. Ark. Code Ann. § 25-19-105(b)(9)(A). This exemption covers “[f]iles which, if disclosed, would give advantage to competitors or bidders.” It protects trade secrets and other proprietary information collected by governmental entities in the course of their activities and may, in some circumstances, shield records which, if made public, would put government itself at a competitive disadvantage. A state agency may assert this exemption on behalf of the person who submitted the information at issue to the agency. The exemption neither excludes documents “owned by the state” nor requires the state “to possess a proprietary interest in the [records] for the exception to apply[.]” Arkansas Dep’t of Finance & Admin. v. Pharmacy Associates Inc., 333 Ark. 451, 970 S.W.2d 217 (1998). The party resisting disclosure bears the burden of proof. Gannett River States Pub. Co. v. Arkansas Industrial Development Comm’n, 303 Ark. 684, 799 S.W.2d 543 (1990).

(a) Although the exemption does not use the term “trade secrets,” disclosure of such information would plainly give advantage to competitors or bidders. See Miller v. Fairfield Bay Inc., 247 Ark. 565, 446 S.W.2d 660 (1969) (describing trade secret as a formula, method or device “that gives one an advantage over competitors”). In deciding whether a record contains a trade secret, courts will likely look for guidance to cases interpreting the Trade Secrets Act, Ark. Code Ann. §§ 4-75-601 to -607. See, e.g., Allen v. Johar Inc., 308 Ark. 45, 823 S.W.2d 824 (1992) (equipment designs and customer lists are both trade secrets). If a record is determined to be a trade secret, competitive harm should be presumed and the record deemed exempt. See Ark. Op. Att’y Gen. No. 95-106.

(b) If the information is not a trade secret, exemption applies if it can be shown that public disclosure is “likely to cause substantial harm to [the] competitive position” of the person or entity that has provided commercial or financial information to the agency. Arkansas Dep’t of Finance & Admin. v. Pharmacy Associates Inc., supra, quoting National Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). Compare Leathers v. W.S. Compton Co. Inc., 316 Ark. 10, 870 S.W.2d 710 (1994) (interpreting an identical tax code provision that was based on the FOIA as requiring confidentiality if disclosure of certain tax records would give any advantage to a competitor). The exemption also applies if disclosure of the records would impair the government’s ability to obtain the information in the future. Ark. Op. Att’y Gen. Nos. 97-071, 93-254, 87-473.

(c) The Attorney General has emphasized that “[e]very business has its unique characteristics which, if revealed, may or may not give advantage to a competitor.” Ark. Op. Att’y Gen. No. 87-194. This determination is made on a case-by-case basis, with the submitter having the burden of proof. Ark. Op. Att’y Gen. Nos. 97-071, 94-015, 91-390. See, e.g., Ark. Op. Att’y Gen. Nos. 98-026 (records obtained by Livestock & Poultry Commission from poultry companies pursuant to federal requirements probably fall within the exemption, because “the nature of the information . . . appears to be particularly susceptible to misuse by competitors”), 96-363 (amount of tax credit and identity of recipients under low income housing program are probably not exempt, once the building has been placed in service and the final tax credit determined), 96-301 (submissions by professionals being considered for work on county project may be exempt), 96-229 (policy and procedure manual prepared by firm working under contract with state agency is probably not exempt), 95-414 (records reflecting hotel and restaurant taxes paid by specific business entity may be exempt), 95-106 (contracts and other documents detailing the delivery of services or supplies may be exempt), 94-015 (customer lists are exempt), 93-254 (customer lists and records that reflect pricing structure are exempt), 92-156 (payroll records and wage rates may be exempt), 88-113 (exemption not likely to apply to records of Arkansas Forestry Commission pertaining to farming operations of individual landowners), 88-065 (customer lists are exempt), 87-259 (city tax records based on gross receipts or sales could qualify), 87-194 (county tax assessment records might be exempt), 84-127 (information submitted by utilities to Public Service Commission are not exempt), 84-042 (financial reports obtained by Transportation Commission in regulating common carriers are not exempt), 83-190 (financial data furnished to Arkansas Economic Development Commission in connection with grant application may be exempt), 82-148 (records of exploratory activities gathered by the Commission on Pollution Control and Ecology are exempt).

(d) Unlike the federal FOI act, which exempts “trade secrets and commercial or financial information obtained from a person,” the Arkansas exemption appears to apply to any record, regardless of its source, if its disclosure would give advantage to a competitor. In some circumstances, government entities, as well as private organizations subject to the FOIA, could well be placed at a competitive disadvantage if records that they have generated are made public. Thus a circuit court held the exemption applicable to certain fund-raising activities of a state university that competes with other colleges for donations from the private sector. Arkansas Times Ltd. P’ship v. University of Arkansas, No. CV-2002-7175 (Pulaski County Cir. Ct. 2002). See also Ark. Op. Att’y Gen. Nos. 97-048 (exemption could apply to records of state university hospital), 95-108 (exemption is potentially applicable where disclosure of records would have adverse competitive impact on a city).

(e) A brief passage in City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990), suggests that the competitive advantage exemption applies only if a competitor requests the records. Under this interpretation, an agency could not invoke the exemption when the news media files an FOIA request. Surely this is not the law, for the issue is not the identity of the requester but whether competitors would benefit if the information becomes public. An earlier decision, Gannett River States Pub. Co. v. Arkansas Industrial Development Comm’n, supra, reflects proper application of this exemption. There a newspaper sought access to agency records concerning a company that planned to locate a steel mill in the state. In remanding the case for further proceedings, the Supreme Court held that the trial judge should examine the records in camera and make evidentiary findings as to whether their disclosure would give advantage to the company’s competitors.

(f) Insofar as harm to bidders is concerned, the exemption is designed to protect the integrity of the bidding process for government contracts. Obviously, a potential bidder should not be able to obtain, prior to the deadline for submission, a copy of bids already filed. But even after the bids have been opened, disclosure of financial information may have an adverse impact if it is so detailed that other companies could use it to estimate the successful bidder’s costs and thus possibly undercut his bids on future projects. Arkansas Dep’t of Finance & Admin. v. Pharmacy Associates Inc., supra. Moreover, disclosure of a bidder’s confidential financial information “would have the effect of diminishing the prospect of original and candid bids in the future.” Id. The exemption could also come into play apart from the bidding process itself. See, e.g., Ark. Op. Att’y Gen. No. 92-156 (wage rate information obtained by labor department from companies that had participated in sealed bidding might be exempt).

(9)(B) Arkansas Economic Development Commission. Ark. Code Ann. § 25-19-105(b)(9)(B). This provision, which was intended to further the state’s interest in economic development, covers records maintained by the commission relating to “any business entity’s planning, site location, expansion, operations, or product development and marketing,” unless the business entity consents to disclosure. The exemption remains applicable when the commission furnishes the records to another public entity. Ark. Op. Att’y Gen. No. 95-108. However, similar records of city or county economic development agencies do not fall within the exemption. Id. Other commission records are exempt under specific statutes. E.g., Ark. Code Ann. § 15-4-606 (applications and related documents submitted under Industrial Revenue Bond Law). A comprehensive statutory system for the development of economic “super projects,” id. §§ 15-4-3201 to -3224, extends the AEDC privilege to certain state and local entities insofar as they handle and prepare records pursuant to their “powers, duties, and obligations” under the system, id. § 15-4-3222.

(10) Undercover law enforcement officers. Ark. Code Ann. § 25-19-105(b)(10). This exemption protects the “identities of law enforcement officers currently working undercover with their agencies and identified in the Arkansas Minimum Standards Office as undercover officers.” By its own terms, the exemption does not cover records of the number of undercover officers that a law enforcement agency has listed. Moreover, it does not apply to former undercover officers who are no longer employed. Ark. Op. Att’y Gen. No. 96-005.

(11) Computer Security Measures. Ark. Code Ann. § 25-19-105(b)(11). Added by Act 1653 of 2001, this exemption covers “[r]ecords containing measures, procedures, instructions, or related data used to cause a computer or a computer system or network, including telecommunication networks, or applications thereon, to perform security functions, including, but not limited to, passwords, personal identification numbers, transaction authorization mechanisms, and other means of preventing access to computers, computer systems or networks, or any data residing therein.” See Ark. Op. Att’y Gen. No. 2003-064 (opining that credit card account numbers and agency identification numbers are exempt because their disclosure could “result in the type of security breach that this exemption was apparently intended to prevent”).

(12) Personnel and evaluation records. Ark. Code Ann. § 25-19-105(b)(12) & (c)(1). Under subsection (b)(12), personnel records are exempt from the FOIA “to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.” If, however, the personnel records in question are “employee evaluation or job performance records,” a different standard applies. Subsection (c)(1) provides that such records are open for public inspection only if a final administrative decision has been made to terminate or suspend the employee, the evaluation records formed a basis for that decision, and there is a “compelling public interest” in disclosure. Under Ark. Code Ann. § 25-19-105(c)(2), an employee or former employee has the right to examine his or her own personnel and evaluation records, even though they are exempt from disclosure to the public. However, this special right of access does not apply to records exempt from disclosure by virtue of the FOIA or another statute, Ark. Op. Att’y Gen. No. 98-223, or records concerning another employee that may have been placed in the requester’s own personnel file, unless they can also be characterized as personnel, evaluation, or job performance records of the requester. See Ark. Op. Att’y Gen. Nos. 2000-058, 95-131.

(a) Personnel Records

(i) Although there is no definition in the FOIA, the Attorney General has consistently taken the position that the term “personnel records” includes virtually all records pertaining to individual employees and former employees, with the exception of evaluation and job performance records. Ark. Op. Att’y Gen. Nos. 2001-152, 2000-257, 2000-232, 2000-130, 99-244, 99-148, 99-042, 99-040. See, e.g., Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (records of police promotional examination); Ark. Op. Att’y Gen. Nos. 2001-152 (unsolicited complaints about public school employee), 2001-120 (travel records), 99-147 (exit interview documents), 99-040 (change of status forms, memorandum reflecting employee transfer, emergency contact form, letters reflecting conditions of employment and standard probationary period), 98-223 (records that employee is required to prepare, complete, and sign as part of his or her departure from service), 98-126 (time cards), 98-001 (complaint alleging sexual harassment), 97-331 (pension and employee benefit records), 97-034 (list of employees who attended firearms training course), 97-070 (worker’s compensation documents, grievance records), 96-205 (salary history), 96-142 (resumes, interview notes, letters of recommendation, transfer records, insurance forms, legal documents), 96-088 (letter of resignation), 95-256 (pre-employment background investigation), 92-132 (records reflecting vacation time and sick leave), 91-003 (leave records), 90-335 (lists of names and addresses of employees), 88-224 (payroll records). Compare Ark. Op. Att’y Gen. No. 94-391 (college administrator’s letter in response to a complaint filed with an accrediting body is not a personnel record, even though it mentions an employee). Documents that contain information about employees of other agencies are apparently not considered personnel records for purposes of the exemption. See Ark. Op. Att’y Gen. No. 92-145 (teacher employment contracts maintained in office of county treasurer, as required by statute, are not personnel records). Records that do not pertain to individual employees, but rather discuss the employees as a group, are not covered by the exemption. Ark. Op. Att’y Gen. No. 96-258.

(ii) Whether the records of unsuccessful job applicants are personnel records remains an open question. In the past, the Attorney General’s Office has taken the position that records of job applicants are not personnel records because potential employees are not personnel. E.g., Ark. Op. Att’y Gen. Nos. 98-102, 90-248. More recent opinions, however, treat the question as open. Ark. Op. Att’y Gen. Nos. 2005-004 n.1, 99-002. Two circuit courts have split on the issue. If the applicant is successful, his or her job application, resume, and related materials are clearly personnel records. Ark. Op. Att’y Gen. Nos. 2005-004, 97-042, 96-190, 95-244, 95-113, 94-187. The same is true for applicants for promotion or for a different government position. Ark. Op. Att’y Gen. Nos. 2005-004, 96-142, 88-133.

(iii) Certain personnel records—such as medical and scholastic records, state income tax records, and the home addresses of non-elected state employees—are confidential by virtue of other FOIA exemptions. See, e.g., Ark. Op. Att’y Gen. Nos. 2001-169, 2001-080, 2000-257, 2000-168, 99-042, 98-261, 98-202, 98-173, 98-146, 98-101, 97-190, 96-222, 95-244, 94-319, 94-198, 92-191. Federal tax withholding information (income tax, FICA) is exempt as a matter of federal law. Ark. Op. Att’y Gen. Nos. 96-363, 91-093. Personnel records that would otherwise be disclosable are exempt if they are being used in an ongoing criminal investigation. Ark. Op. Att’y Gen. Nos. 97-079, 95-351, 93-055.

(iv) The test for determining whether personnel records are exempt is objective, and the fact that the employee may consider release of the information invasive of his or her privacy is not relevant. Ark. Op. Att’y Gen. Nos. 2005-058, 2003-027, 2001-169, 98-152, 98-101, 98-001, 97-079, 97-034, 96-222, 96-193. In Young v. Rice, supra, the Supreme Court made plain that a two-step balancing process is to be employed, with the scales tipped in favor of disclosure. The Court subsequently refined this approach in Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998).

131. The first issue is whether the information is of a personal or intimate nature sufficient to give rise to a substantial privacy interest. If that is so, the issue becomes whether that privacy interest is outweighed by the public’s interest in disclosure. Young v. Rice, supra. The Attorney General has opined that there is no need to proceed to the second step if the privacy interest is de minimis. Ark. Op. Att’y Gen. Nos. 95-220, 95-169, 93-131. A substantial privacy interest, the Court said in Young, exists in records that reveal “the intimate details of a person’s life, including any information that might subject the person to embarrassment, harassment, disgrace, or loss of employment or friends.” Such a privacy interest can exist even if the subject of the records is deceased, although in some cases the individual’s death may affect the outcome of the balancing process. Ark. Op. Att’y Gen. Nos. 96-368.
132. In Stilley v. McBride, supra, the Supreme Court held that the “public interest” inquiry requires a determination that the records at issue would shed some light on the workings of government, since the purpose of the FOIA is to enable citizens to learn “what their government is up to.” That purpose is not served by disclosure of information about private citizens that reveals little or nothing about an agency’s own conduct.
133. The Supreme Court concluded in Young v. Rice, supra, that tape recordings made of candidates during a police department promotional examination were exempt, pointing out that disclosure would reveal “embarrassing behaviors,” could “subject the candidates to embarrassment,” and could “perhaps threaten their future employment.” Similarly, the Court held in Stilley v. McBride, supra, that records showing the home addresses of police officers were exempt. In that case, an attorney sought access to the records so that he could mail the summons and complaint to two officers against whom he had filed a civil rights action. The Court determined that the officers’ privacy interests were substantial, since officers expect that they and their families will be safe at home. Also, disclosure of home addresses might subject the officers to harassment. On the other hand, there was little public interest in disclosure. The attorney’s “sole reason for requesting [the] addresses was to utilize a cheaper method of obtaining service of process on the officers,” and this reason “has little or nothing to do with learning or reporting the officers’ activities.” Because the privacy interests were substantial and the public interest non-existent, the requested records were exempt from disclosure.
134. The Attorney General has frequently employed the balancing test. See, e.g., Ark. Op. Att’y Gen. Nos. 2000-258 (applying Young under factual circumstances similar to those in that case), 98-097 (names and addresses of retired public employees are exempt), 96-088 (employee’s letter of resignation was exempt where it set forth personal reasons for the decision and did not contain any details about the operation of the agency). Compare Ark. Op. Att’y Gen. Nos. 98-131 (because “the identity of public employees is ordinarily a matter of significant public interest,” identification photos of employees will not usually be exempt), 97-331 (disclosure of former mayor’s pension records would not constitute a clearly unwarranted invasion of personal privacy), 95-167 (letter of resignation that reflects salary information is not exempt), 94-119 (privacy interest of the former president of state university was outweighed by the public’s interest in the circumstances of his termination), 89-077 (letter stating employee’s reasons for resigning were not sufficiently personal in nature to trigger exemption).

(v) The following personnel records have been deemed exempt by the Attorney General: Social Security numbers; marital status and similar family information, citizenship status and religious affiliation; welfare payments, payroll deductions, credit union statements, employee benefit information, and other personal financial records; insurance coverage; individual scores on promotional exams and other tests; a state university’s personnel action form; the photograph of a former undercover police officer; letters of resignation that contain information of a “personal and intimate nature”; and, in some situations, the reasons a teacher prefers to be assigned to a particular school. See, e.g., Ark. Op. Att’y Gen. Nos. 2002-160, 2000-257, 2000-168, 2000-159, 2000-122, 2000-119, 99-360, 99-002, 98-296, 98-126, 98-122, 97-331, 97-286, 97-189, 97-177, 97-079, 97-063, 97-033, 96-308, 96-205, 96-134, 96-088, 96-005, 95-220, 95-169, 95-113, 95-110, 94-198, 93-185, 93-131, 93-105, 93-079, 93-076, 92-266, 92-191, 92-089, 90-295.

(vi) By contrast, the Attorney General has concluded that the following are not exempt: names and race of employees; birth certificates; date and place of birth; job applications, resumes, and references; employment history and military service records; fingerprint cards; identification photos; records reflecting arrests or convictions; background investigations; confirmation that psychological evaluation found law enforcement officer fit for service; educational background, training, and certification; letters of appreciation; membership in civic, professional, or social organizations; job titles and salary information; employment contracts; records indicating vacation time, sick leave, or other absences; travel records submitted for reimbursement; an unsolicited letter of complaint about an employee; applications for promotion and records relating to promotion; terms of a settlement releasing an employee from his contract; a letter advising employee of his removal from active duty but not including the reasons therefor; letters of resignation that contained no personal information; retirement notices. See, e.g., Ark. Op. Att’y Gen. Nos. 2002-159, 2001-122, 2001-120, 2001-080, 2000-175, 2000-168, 2000-130, 2000-122, 99-054, 99-035, 99-016, 99-015, 99-007, 98-281, 98-202, 98-131, 98-130, 98-122, 98-101, 98-001, 97-286, 97-190, 97-177, 97-079, 97-063, 97-042, 97-034, 97-033, 97-032, 96-269, 96-257, 96-205, 96-190, 96-142, 96-134, 95-256, 95-220, 95-169, 95-167, 95-151, 95-113, 95-080, 95-070, 95-012, 94-337, 94-319, 94-178, 94-113, 93-407, 93-185, 93-131, 93-114, 93-105, 93-076, 92-247, 92-291, 92-132, 91-351, 91-003, 90-335, 90-023, 89-077, 88-133, 88-078.

(vii) As amended in 2001, the FOIA exempts “[h]ome addresses of nonelected state employees contained in employer records,” although the custodian of the records must, on request, “verify an employee’s city or county of residence or address on record.” Ark. Code Ann. § 25-19-105(b)(13). This exemption does not apply to other public employees, such as those who work for cities and school districts. Prior to Stilley v. McBride, supra, the Attorney General took the position that unlisted home addresses of public employees are exempt from disclosure, but that listed addresses are not. E.g., Ark. Op. Att’y Gen. No. 93-403. Post-Stilley opinions recognize that even listed addresses might be exempt, because the information can be used to harass and disclosure does not further the purposes of the FOIA. E.g., Ark. Op. Att’y Gen. Nos. 2001-148, 2000-257, 99-040. However, these opinions also state that the information is not exempt unless the employee in question has a “heightened privacy interest.” That is the case, for instance, with respect to law enforcement officers, see Ark. Op. Att’y Gen. No. 2000-168, and perhaps to public school personnel. See Ark. Op. Att’y Gen. Nos. 2002-169, 2002-158, 2001-148. But a heightened privacy interest requirement seems inconsistent with Stilley. Because the home address of any public employee — whether he or she be a file clerk or a police officer — does not shed any light whatsoever on the workings of government, it is arguably exempt under that decision even if the employee’s privacy interest cannot be described as “heightened.”

(b) Employee Evaluation Records

(i) Subsection (c)(1) does not provide a definition of “employee evaluation or job performance records,” but it does state that “preliminary notes and other materials” associated with the evaluation process are included. Thus, the provision exempts not only the end product, i.e., the evaluation itself, but also other records from which the evaluation was prepared. See Ark. Op. Att’y Gen. Nos. 2001-047 (evaluations of school administrator by faculty and staff), 96-256 (formal evaluation), 96-046 (evaluation appraisal forms), 95-258 (quarterly performance reports), 92-089 (“dock status” memorandum), 90-295 (memoranda and notes). Evaluation scores are also exempt. Ark. Op. Att’y Gen. Nos. 96-205, 94-194. The records must be “created by or at the behest of the employer” for use in the evaluation process. Ark. Op. Att’y Gen. No. 2001-147. Thus, faculty evaluations performed by a student government association and not used in the university’s evaluation process are not exempt. Ark. Op. Att’y Gen. No. 90-086.

(ii) The term “job performance record” has been interpreted as any record relating to an employee’s performance or lack of performance on the job. Ark. Op. Att’y Gen. Nos. 2001-149, 2000-335, 2000-257, 2000-130, 99-360, 99-244, 98-296, 97-190, 94-306. This definition covers a variety of records. E.g., Ark. Op. Att’y Gen. Nos. 2001-147 (documents pertaining to high school football coach’s recruiting of student athlete), 2000-257 (sheriff’s investigation into deputy’s intimate relationship with prisoner), 2000-175 (transcripts of interviews conducted during investigation into employee’s conduct), 2000-166 (grievance records filed in response to supervisor’s comments concerning employee’s job performance), 99-289 (written reprimands, letters of caution, documents upon which a recommendation for dismissal was based, and letters related to promotions and demotions), 98-006 (records of disciplinary actions less severe than suspension or termination), 98-001 (witness statements taken as part of investigation into allegation of sexual harassment), 97-415 (memorandum setting out basis for suspension and records created as part of inquiry into misconduct leading to the suspension), 97-261 (document containing incidents that led to employee’s termination), 97-190 (letter of warning to employee), 97-081 (records of police department internal affairs investigation), 97-063 (notice of termination, employee’s response and request for hearing, employee’s work history), 96-324 (records created as part of inquiry into alleged employee misconduct), 95-326 (records on which suspension of ambulance driver was based), 95-171 (letter of termination that includes reasons for the decision), 95-109 (memorandum explaining employee’s demotion), 94-127 (records of investigation into alleged wrongdoing), 94-110 (records of previous suspension), 93-105 (records of faculty member’s promotion), 93-076 (incident reports), 93-055 (letter recommending termination, letter of reprimand, and other disciplinary records), 92-319 (internal affairs investigation of police officer), 92-247 (notice to terminate teacher and records collected or created as part of investigation leading to that decision), 92-207 (letter of caution to jail employee and other records concerning investigation into an incident at the facility), 92-191 (records reflecting prior suspensions, without pay, of employee who was subsequently terminated), 91-303 (written reprimand), 91-003 (records concerning state agency’s investigation into alleged misconduct by employee), 88-162 (records of inquiry into charges of sexual harassment and resulting reprimand), 88-097 (documents on which recommendation for dismissal of teachers was based).

(iii) A document does not constitute a job performance record merely because it discusses the general duties of an employee or reflects some aspect of how an employee is doing in his or her job. A previously prepared document or an unsolicited letter of complaint about an employee is not transformed into a job performance record by virtue of a subsequent investigation. However, these documents are personnel records covered by Ark. Code Ann. § 25-19-105(b)(12). Ark. Op. Att’y Gen. Nos. 2001-123, 2000-175, 2000-174, 2000-166, 2000-058, 99-339, 99-026, 98-001, 97-342, 97-081, 96-257.

(iv) Evaluations of persons other than employees, such as members of a school board, are not covered. Ark. Op. Att’y Gen. No. 87-361. In that opinion, the Attorney General relied on the common law definition of employee, which would exclude independent contractors. If an agency has legitimately obtained for its use copies of evaluations or job performance records of employees at another agency, the exemption is applicable with respect to those copies. Ark. Op. Att’y Gen. Nos. 2000-279, 2000-257.

(v) Evaluation or job performance records are open for public inspection “only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure.” Ark. Code Ann. § 25-19-105(c)(1). If one or more of these conditions are not met, the records are exempt. Ark. Op. Att’y Gen. Nos. 2000-257, 2000-166, 2000-130, 2000-122, 2000-059, 99-244, 99-148, 99-147, 99-042, 99-041, 98-075, 98-006, 98-001, 97-154. Records that are considered job performance records include letters of recommendation of termination, letters of reprimand, disciplinary records, and documents about investigations into employee misconduct. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (2012). However, records relating to a use-of-force investigation of a police officer are not considered to be job performance records. Id.

94. The records are exempt if there has been no suspension or termination, if the employee resigned, or if he or she was reprimanded, demoted, placed on probation, or given a letter of caution. Ark. Op. Att’y Gen. Nos. 2000-175, 98-296, 98-188, 97-176, 97-079, 97-063, 94-306, 92-266, 92-207, 91-324, 91-303, 90-295, 88-094. Similarly, the non-renewal of an employee’s contract at the end of its term does not constitute a termination. Ark. Op. Att’y Gen. No. 2001-125. Moreover, the fact that an employee resigned under pressure does not necessarily amount to a constructive termination. Ark. Op. Att’y Gen. No. 2005-094, 2004-219, 2005-164, 2002-235, 2001-246, 2001-184, 98-188, 97-063. Even if the employee has been terminated, the records are exempt until the effective date of the termination. Ark. Op. Att’y Gen. No. 95-242.
95. Also, the records are exempt if the employee has administrative remedies available, if a decision to suspend him has been overturned, or if the employee has been reinstated and placed on probation. Ark. Op. Att’y Gen. Nos. 2005-181, 2005-160, 2002-263, 2002-158, 2000-224, 99-361, 97-415, 97-176, 97-063, 95-171, 91-296, 91-180, 88-308. The term “final administrative resolution” means the final decision-making step taken by the employing entity, regardless of the bureaucratic level at which the decision is made. Ark. Op. Att’y Gen. No. 2005-181, 98-006, 94-306, 91-003. If no review is sought, the initial decision is final. Ark. Op. Att’y Gen. Nos. 98-006, 90-292.
96. Even if the records formed a basis for a final decision to suspend or terminate the employee, they remain exempt unless there is a “compelling public interest” in disclosure. This test is more rigorous than the “clearly unwarranted invasion of personal privacy” standard that applies to other personnel records. Moreover, the mere fact that an employee has been terminated or suspended does not mean that the records should be made public. Ark. Op. Att’y Gen. Nos. 99-361, 99-148, 99-041, 98-122, 97-415, 95-242. Whether there is a compelling public interest in disclosure of these records turns on several factors, including the nature of the infraction that led to suspension or termination, the existence of a public controversy related to the agency and its employees, and the employee’s rank within the agency. Ark. Op. Att’y Gen. Nos. 99-361, 99-148, 99-147, 99-041, 98-122, 98-006. There is a compelling interest in disclosure of records that reflect employee conduct that is illegal, undermines the public trust, or compromises public safety. Ark. Op. Att’y Gen. Nos. 2001-147, 99-361, 98-210, 97-415, 97-400, 97-261, 97-190, 97-081, 97-079, 94-312, 94-119, 92-247, 92-089, 92-075, 91-296, 89-073. “[T]he balance tips in favor of disclosure where the allegations involve sexual misconduct by a manager directed toward a worker.” Ark. Op. Att’y Gen. No. 2002-095, accord Ark. Op. Att’y Gen. Nos. 2005-032, 2004-012. Also, a compelling interest is more likely to be found when a high-level employee is involved than when the records of rank-and-file workers are at issue. Ark. Op. Att’y Gen. Nos. 2004-012 (mayor), 96-258 (vice president of Arkansas Development Finance Authority), 95-242 (second-highest salaried employee in city government), 95-109 (director of Arkansas Arts Council), 94-119 (university president). By contrast, the Attorney General concluded that the test was not met with respect to suspension letters sent to rank-and-file employees while an investigation was in progress. The letters would not accurately inform the public about the employees’ conduct because more information was being collected, and the end result of the investigation was a determination that no further disciplinary action was warranted. Ark. Op. Att’y Gen. No. 2000-242. This is not to say, however, that records of low-level employees will always be exempt. See, e.g., Ark. Op. Att’y Gen. No. 98-075 (records of police officers suspended or terminated for driving accidents are not exempt, since the public “clearly has an interest in the cautious driving of its law enforcement officers in emergency situations”).

(13) Home Addresses of State Employees. Ark. Code Ann. § 25-19-105(b)(13). This provision, added by Act 1653 of 2001 (and Act 1336, which contained identical language), and amended in 2003, exempts “[h]ome addresses of non-elected state employees, non-elected municipal employees, and non-elected county employees contained in employer records.” However, the custodian “shall verify an employee’s city or county of residence or address on record on request.” The State Employees Association pushed strongly for this exemption, which before 2003 applied only to state employees. Arguably, however, the home address of a public employee may be exempt under the FOIA’s exemption for personnel records. See Part II.A.2.m of this outline.

(14) Licensing Examinations. Ark. Code Ann. § 25-19-105(b)(14). Added by Act 1259 of 2001, this exemption applies to “[m]aterials, information, examinations, and answers to examinations utilized by boards and commissions for purposes of testing applicants for licensure by state boards or commissions.” Statutes with similar provisions had previously been enacted with respect to particular licensing agencies. E.g., Ark. Code. Ann. § 17-86-204(d) (licensing examinations of State Board of Massage Therapy).

(15) Military Discharge Records. In 2003, the General Assembly added to the FOIA an exemption for “[m]ilitary service discharge records or DD Form 214, the Certificate of Release or Discharge from Active Duty . . . , filed with the county recorder as provided under § 14-2-102.” This exemption, which appears in Section 25-19-105(b)(15), covers such records “for veterans discharged from service less than seventy (70) years from the current date.” Access is permitted to the veteran and his or her spouse and children. The exemption was prompted by legislative concern about identity theft. Pursuant to a subsequent act of 2005, a veteran may seek a court order to withdraw a discharge record from court files. Ark. Code Ann. § 14-2-102(c)(4).

(16) Public Water System Security Records. In 2003, the General Assembly added an exemption for records “relating to security for any public water system.” This provision was deemed necessary because information “could be obtained for terroristic purposes, including contamination and destruction of public water systems.” The exemption includes in its scope “analyses, investigations, studies, reports, recommendations, requests for proposals, drawings, diagrams, blueprints, and plans,” as well as risk and vulnerability assessments, plans and proposals for preventing and mitigating security risks, records pertaining to emergency response and recovery, security plans and procedures, and “[a]ny other records containing information that, if disclosed, might jeopardize or compromise efforts to secure and protect the public water system.” The exemption by its terms expires on July 1, 2013, but may be renewed by the General Assembly.

(17) Licenses to carry concealed handgun. Records concerning “the issuance, renewal, expiration, suspension, or revocation of a license to carry a concealed handgun” for both current and past licensees are exempt from the FOIA. Ark. Code Ann. § 25-19-105(b)(19). However, the name and zip code for an applicant, licensee, or past licensee “may be released upon request by a citizen of Arkansas.” Ark. Code Ann. § 25-19-105(b)(19)(C).

(18) Settlement Agreements in Tax Cases. Under a 1997 amendment to the FOIA, a settlement agreement reached “at the conclusion of any investigation conducted by a state agency in pursuit of civil penalties . . . shall be deemed a public document” for purposes of the act. Ark. Code Ann. § 25-19-105(h). However, exception is made for settlement agreements “involving any state tax covered by the Arkansas Tax Procedure Act.” Id.

Specific Exemptions Under Section 7920.505(a).

Section 7920.505(a) lists specific exemptions from disclosure previously found under former Section 6254. These exemptions are permissive, not mandatory.  See Cal. Gov’t Code § 7921.500. . These exemptions are listed in Section 7920.505(a) as subdivision (1) through subdivision (32), and are set forth in full under various chapters of Part 5 of Div. 10 of the Government Code, which is now organized by record type.

Below is the text of the main exemptions listed under Section 7920.505(a), in the order that they now appear under that section and under Part 5 of Division 10 of the Government Code,  and commentary thereon. Note, this is not a full list of each exemption under the CPRA.

Crimes, Weapons, and Law Enforcement (Ch. 1 of Part 5 of Div. 10).

Section 7923.600:

(a) Except as provided in Section 7924.510, 7924.700, and 7929.610, this division does not require the disclosure of records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.

(b) A customer list that an alarm or security company provides to a state or local police agency at the agency’s request is a record subject to this article.

Section 7923.610: Notwithstanding any other provision of this article, a state or  local law enforcement agency shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:

(a) The full name and occupation of every individual arrested by the agency.

(b) The individual's physical description including date of birth, color of eyes and hair, sex, height and weight.

(c) The time and date of arrest.

(d) The time and date of booking.

(e) The location of the arrest.

(f) The factual circumstances surrounding the arrest.

(g) The amount of bail set.

(h) The time and manner of release or the location where the individual is currently being held.

(i) All charges the individual is being held upon, including any outstanding warrants from other jurisdictions, parole holds, and probation holds.

Section 723.616:

(a)(1) Notwithstanding any provision of this article, a state or local law enforcement agency shall make public the information described in paragraph (2), except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation.

(2)  Subject to the restrictions imposed by Section 841.5 of the Penal Code, paragraph (1) applies to the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded:

(A) The time, date, and location of occurrence.

(B) The time and date of the report.

(C) The name and age of the victim.

(D) The factual circumstances surrounding the crime or incident.

(E) A general description of any injuries, property, or weapons involved.

(b)(1) The name of a victim of any crime defined by Section 220, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3, 288.4, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of, or former Section 288a of, the Penal Code [various sex crimes] may be withheld at the victim's request, or at the request of the victim's parent or guardian if the victim is a minor.

(2) When a person is the victim of more than one crime, information disclosing that the person is a victim of a crime defined in any of the sections of the Penal Code set forth in this article may be deleted at the request of the victim, or the victim's parent or guardian if the victim is a minor, in making the report of the crime, or of any crime or incident accompanying the crime, available to the public in compliance with the requirements of this section.

(c)(1) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the names and images of a victim of human trafficking, as defined in Section 236.1 of the Penal Code, and of that  victim’s immediate family, other than a family member who is charged with a criminal offense arising from the same incident, may be withheld at the victim’s request until the investigation or any subsequent prosecution is complete.

(2) For purposes of this article, “immediate family” shall have the same meaning as that provided in paragraph (3) of subdivision (b) of Section 422.4 of the Penal Code.

Section 7923.620:

(a) Notwithstanding any other provision of this article, if the requester declares under penalty of perjury that the request is made for a scholarly, journalistic, political, or governmental purpose, or that the request is made for investigation purposes by a licensed private investigator as described in Chapter 11.3 (commencing with Section 7512) of Division 3 of the Business and Professions Code, a state or local law enforcement agency shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:

(1) Subject to the restrictions of Section 841.5 of the Penal Code and this article, the current address of every individual arrested by the agency.

(2) Subject to the restrictions of Section 841.5 of the Penal Code and this article, the current address of the victim of a crime.  However, the address of the victim of any crime defined by Section 220, 236.1, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 287, 288, 288.2, 288.3, 2.88.4, 288.5, 288.7, 289, 422.6, 422.7, 422.75,  646.9, or 647.6 of, or former Section 288a of, the Penal Code shall remain confidential.

(b) Address information obtained pursuant to this section shall not be used directly or indirectly, or furnished to another, to sell a product or service to any individual or group of individuals, and the requester shall execute a declaration to that effect under penalty of perjury.

(c) This section shall not be construed to prohibit or limit a scholarly, journalistic, political, or government use of address information obtained pursuant to this section.

Comment: These provisions comprise the cumbersome “investigatory records” exemption and are among the most litigated exemptions of the CPRA.  It is with investigatory records of law enforcement agencies that the public's right to access is the most limited. Unlike other exemptions under the CPRA, which simply set forth discretionary exemptions, the investigatory records exemption contains three categories of information: that which an agency may withhold, that which must be disclosed and that which is expressly exempt from the mandatory disclosure provisions. See Williams v. Superior Court, 5 Cal. 4th 337, 349, 852 P.2d 377, 19 Cal. Rptr. 2d 882 (1993). Under this exemption, unless the requester has a specific interest in the investigatory report (such as being the victim), an agency may, in the exercise of its discretion, withhold the actual records pertaining to its investigatory functions, but it must extract specific information from those records and make that information available to the public.

Aside from legislation enacted in 2019 governing recordings of law enforcement involving critical incidents, see below, the rights of access to investigatory records and files historically has been restrictive.  In 1993, the California Supreme Court decided the first in a series of cases that generally have limited the public's right of access to investigatory records and files. In Williams, a newspaper waited until after the completion of a criminal prosecution before requesting copies of criminal investigation records. Although there was no pending criminal investigation, the California Supreme Court held that unlike the Federal Freedom of Information Act ("FOIA") investigatory records exemption, which does not exempt records of closed investigations, the CPRA exemption “does not terminate with the conclusion of the investigation.” Id. at 361-62. Moreover, the court explained that “[o]nce an investigation . . . has come into being because there is a concrete and definite prospect of enforcement proceedings at that time, material that relate to the investigation and, thus, properly belong in the file, remain exempt subject to the terms of the statute.” Id.  In rejecting FOIA standards for interpreting [Section 7923.600(a)], the Williams court limited access to investigatory records by holding that the public has a statutory right of access only to that information which is set forth with particularity in [Sections 7923.610 and 7923.615], as long as the disclosure of that information would not endanger the safety of an individual involved in the investigation or would not jeopardize the successful completion of the investigation or a related investigation. Id. at 354; see also Rivero v. Superior Court, 54 Cal. App. 4th 1048, 63 Cal. Rptr. 2d 213 (1997) (where court held district attorney's investigatory file in concluded investigation was not subject to disclosure under the CPRA, and city's sunshine laws, which allowed for disclosure of closed investigation files, had to yield to state statute prohibiting interference with district attorney's investigatory and prosecutorial functions).

While the prospect of law enforcement must be “concrete and definite” before investigatory files may be withheld under the exemption, this standard was held inapplicable to investigatory records, which have an independent claim to exempt status under the statute. In holding as exempt from disclosure citizen reports and police radio calls following a routine police stop that resulted in no arrest, the California Supreme Court in Haynie v. Superior Court, 26 Cal. 4th 1061, 1070, 112 Cal. Rptr. 2d 80, 31 P.3d 760 (2001), reasoned that limiting the exemption “only to records of investigations where the likelihood of enforcement has ripened into something concrete and definite would expose to the public the very sensitive investigative stages of determining whether a crime has been committed or who has committed it."

But [Section 7923.600’s] exemption for records of investigation was given a narrow construction by the California Supreme Court in ACLU v. Superior Court, 3 Cal. 5th 1032, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017). There, the court was confronted with the issue of whether automatic license plate reader data collected by law enforcement over a one-week period was exempt as “records of . . . investigations” under [Section 7923.600] of the Government Code. The court held that the exemption for records of investigations did not include the indiscriminate collection of bulk data “of hundreds or thousands of individuals simultaneously;” rather, it applies to targeted inquiries into particular violations of law. Id. at 1040, 1042. The court’s narrow construction was largely informed by the California Sunshine Amendment’s constitutional mandate that exemptions be narrowly construed. Id. at 1042. It was also informed by common sense: “It is hard to imagine that the Legislature intended for the records of investigations exemption to reach the large volume of date that plate scanners and other similar technologies now enable agencies to collect indiscriminately.” Id. at 1041. Because disclosure of unredacted data nevertheless implicated privacy concerns, the court remanded with directions to consider methods of anonymizing the data in conducting a balancing analysis. Id. at 1044, 1046.

To be exempt, the investigatory, security, intelligence or complaint records must be compiled by the agency for correctional, law enforcement or licensing purposes. See, e.g., Uribe v. Howie, 19 Cal. App. 3d 194, 112-13, 96 Cal. Rptr. 493 (1971) (where court held that county agricultural commissioner could not withhold mandatory reports filed by farmers who had sprayed pesticides in the area by labeling the files investigatory for licensing purposes when licensing was not the primary purpose for which the files were compiled and when the files were not being used for investigation purposes at the time of trial).

Other cases have defined the exemption broadly. For example, in Dixon v. Superior Court, 170 Cal. App. 4th 1271, 1276, 88 Cal. Rptr.3d 847 (2009), the court held that an autopsy report produced by a coroner’s inquiry into a suspected homicide where there exists a definite prospect of law enforcement is an investigatory file compiled for law enforcement purposes within the meaning of [Section 7923.600]. In so holding, the court recognized that a coroner’s office that compiles investigatory files for law enforcement purposes is entitled to assert the exemption even if it is not itself the police or law enforcement agency since it is an “other . . . local agency” that compiled the files for “law enforcement . . . purposes.”  Id.

Similarly defining the exemption broadly, the court in State Office of the Inspector General v. Superior Court, 189 Cal. App. 4th 695, 709, 117 Cal. Rptr. 3d 388 (2010), stated that investigatory materials underlying a public report of the Office of Inspector General into the Department of Corrections and Rehabilitation’s parole supervision of a defendant charged with kidnapping, raping and holding hostage for 18 years a female minor were exempt as “investigatory files compiled by a state agency for correctional purposes.” Because the underlying investigation of the parole supervision carried with it the possibility of criminal prosecution, the court said the prospect of “enforcement proceedings was concrete and definite when the investigation was launched.” Id. at 709-10.

Also in Rackauckas v. Superior Court, 104 Cal. App. 4th 169, 179, 128 Cal. Rptr. 2d 234 (2002), the court held that a letter prepared by the district attorney after the conclusion of its investigation of alleged police misconduct and which contained the DA's conclusions fell within the investigatory records exemption because the statute contains no exception for post-investigation records and because the letter related exclusively to the investigation.

The courts have diverged on the scope of an agency’s obligations to provide information under Sections 7923.610 (arrest information) and 7923.615 (complaints and requests for assistance). In County of Los Angeles v. Los Angeles Superior Court (Kusar), 18 Cal. App. 4th 588, 599, 22 Cal. Rptr. 2d 409 (1993), the court held that disclosure of arrest information under [Section 7923.610] was limited to current information pertaining to contemporaneous police activity and did not apply to a request for arrest information of two police officers going back ten years.

More recently, with respect to arrest information, the court in Kinney v. Superior Court, 77 Cal. App. 5th 168, 177-78, 292 Cal. Rptr. 3d 392 (2022), applied the Kusar court’s “contemporaneous” limitation to a request for the names of those arrested for DUIs during a one month period in 2020, which information at the time of the request was 11 to 12 months old.  Given the purpose of the disclosure provisions of [Section 7923.610] to provide “contemporaneous disclosure of individualized arrest information in order to prevent secret arrests,” the court reasoned that “[a]fter 11 to 12 months, we do not see how releasing the arrestees’ name would serve the purpose of preventing clandestine police activity.” Id. at 181.

However, with respect to information pertaining to calls for assistance under Section 7923.615, the court in Fredericks v. Superior Court, 233 Cal. App. 4th 209, 233-34, 182 Cal. Rptr. 3d 526 (2015), rejected the Kusar court’s “contemporaneous” time limitations when construing [Section 7923.615’s] disclosure obligations pertaining to complaints and calls for assistance. There, the requester sought complaint information over a six-month period but the police department limited its response to 60 days. Id. at 216. Discussing Kusar, the court noted that the statutory language the court had relied on in determining legislative intent—language that limited disclosure of arrestee and victim address information to current addresses—had since been eliminated from the statute, and that unlike in Kusar there was no clear attempt by the requester to evade discovery procedures through use of the CPRA. Id. at 233-34. Nor were the disclosure concerns the same under the two [Sections], as the court noted. Id. at 233. More practically, the court said that “[t]here was no basis in the plain language of the statute to read into it any 60-day limitation on access to disclosable information.” Id. at 234.  While discussing different provisions governing the disclosure obligations pertaining to law enforcement records, it appears the rationale of the Frederick’s court is irreconcilable with the court’s holding in Kinney given that the applicable statutes share the same legislative history and relevant amendments thereto.

The United States Supreme Court has upheld the facial constitutionality of [Section 7923.620], which allows for the disclosure of the current address of arrestees and victims of crimes to authorized individuals for specified purposes, but precludes disclosure for commercial purposes. See Los Angeles Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 120 S.Ct. 483, 488, 145 L.Ed. 2d 451 (1999). The United States Supreme Court, however, noted that the constitutionality of the provision as applied to respondent, a publishing company that provides the names and addresses of arrested individuals to its customers, remained open on remand. See United Reporting Publ’g Corp. v. Cal. Hwy. Patrol, 231 F.3d 483 (9th Cir. 2000).

It is important to note that each piece of information requested that is enumerated in Sections 7923.610 and 7923.615 must be considered and analyzed separately by the agency. A law enforcement agency, like any other agency subject to the provisions of the CPRA, bears the burden of justifying its refusal to disclose otherwise public records with regard to each separate piece of information requested (i.e., name, the factual circumstances surrounding the arrest, the charges, etc.).

Section 7923.625: 

Notwithstanding any other provision of this article, commencing July 1, 2019, a video or audio recording that relates to a critical incident, as defined in subdivision (e), may be withheld only as follows:

(a)(1)  During an active criminal or administrative investigation, disclosure of a recording related to a critical incident may be delayed for no longer than 45 calendar days after the date the agency knew or reasonably should have known about the incident, if, based on the facts and circumstances depicted in the recording, disclosure would substantially interfere with the investigation, such as by endangering the safety of a witness or a confidential source. If an agency delays disclosure pursuant to this paragraph, the agency shall provide in writing to the requester the specific basis for the agency’s determination that disclosure would substantially interfere with the investigation and the estimated date for disclosure.

(2) After 45 days from the date the agency knew or reasonably should have known about the incident, and up to one year from that date, the agency may continue to delay disclosure of a recording if the agency demonstrates that disclosure would substantially interfere with the investigation. After one year from the date the agency knew or reasonably should have known about the incident, the agency may continue to delay disclosure of a recording only if the agency demonstrates by clear and convincing evidence that disclosure would substantially interfere with the investigation. If an agency delays disclosure pursuant to this paragraph, the agency shall promptly provide in writing to the requester the specific basis for the agency’s determination that the interest in preventing interference with an active investigation outweighs the public interest in disclosure and provide the estimated date for the disclosure. The agency shall reassess withholding and notify the requester every 30 days. A recording withheld by the agency shall be disclosed promptly when the specific basis for withholding is resolved.

(b)(1) If the agency demonstrates, on the facts of the particular case, that the public interest in withholding a video or audio recording clearly outweighs the public interest in disclosure because the release of the recording would, based on the facts and circumstances depicted in the recording, violate the reasonable expectation of privacy of a subject depicted in the recording, the agency shall provide in writing to the requester the specific basis for the expectation of privacy and the public interest served by withholding the recording and may use redaction technology, including blurring or distorting images or audio, to obscure those specific portions of the recording that protect that interest. However, the redaction shall not interfere with the viewer’s ability to fully, completely, and accurately comprehend the events captured in the recording and the recording shall not otherwise be edited or altered.

(2) Except as provided in paragraph (3), if the agency demonstrates that the reasonable expectation of privacy of a subject depicted in the recording cannot adequately be protected through redaction as described in paragraph (1) and that interest outweighs the public interest in disclosure, the agency may withhold the recording from the public, except that the recording, either redacted as provided in paragraph (1) or unredacted, shall be disclosed promptly, upon request, to any of the following:

(A) The subject of the recording whose privacy is to be protected, or their authorized representative.

(B) If the subject is a minor, the parent or legal guardian of the subject whose privacy is to be protected.

(C) If the subject whose privacy is to be protected is deceased, an heir, beneficiary, designated immediate family member, or authorized legal representative of the deceased subject whose privacy is to be protected.

(3) If disclosure pursuant to paragraph (2) would substantially interfere with an active criminal or administrative investigation, the agency shall provide in writing to the requester the specific basis for the agency’s determination that disclosure would substantially interfere with the investigation, and provide the estimated date for the disclosure of the video or audio recording. Thereafter, the recording may be withheld by the agency for 45 calendar days, subject to extensions as set forth in paragraph (2) of subdivision (a).

(c) An agency may provide greater public access to video or audio recordings than the minimum standards set forth in this section.

(d) For purposes of this section, a peace officer does not include any peace officer employed by the Department of Corrections and Rehabilitation.

(e) For purposes of this paragraph, a video or audio recording relates to a critical incident if it depicts any of the following incidents:

(1) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.

(2) An incident in which the use of force by a peace officer or custodial officer against a person resulted in death or in great bodily injury.

(f) This section does not alter, limit, or negate any other rights, remedies, or obligations with respect to public records regarding an incident other than a critical incident as described in subparagraph (e).

Comment: In 2018, the California Legislature enacted AB 748, a landmark transparency bill effective July 1, 2019, that added paragraph (4) to subsection (f) of former Section 6254.  This provision is now Section 7923.625 of the recodified CPRA.  The bill mandates, with certain exceptions and authorized delays, the disclosure of recordings (e.g., body camera, dash camera footage or other video footage) of critical incidents, defined as (1) incidents involving the discharge of a firearm at a person by a peace officer or custodial officer; or (2) incidents in which the use of force by a peace officer or custodial officer against a person resulted in death or in great bodily injury. Cal. Gov’t Code § 7923.625(e)(1)&(2). However, disclosure of “a video or audio recording that was created during the commission or investigation of the crime of rape, incest, sexual assault, domestic violence, or child abuse that depicts the face, intimate body part, or voice of a victim of the incident depicted in the recording” is not required to be disclosed.  Cal. Gov’t Code § 7923.750(a). Instead, an agency must justify the withholding of these types of videos or recordings by demonstrating that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record, considering the potential harm to the victim and individual privacy rights.  Id. § 7923.750(a) & (b).

Section 7923.800: Except as provided in Section 7924.510, 7924.700, and 7929.610, this division does not require the disclosure of any of the following information contained in an application for a license to carry a firearm, issued by the sheriff of a county or the chief or other head of a municipal police department pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code:

(a) Information that indicates when or where the applicant is vulnerable to attack.

(b) Information that concerns the applicant’s medical or psychological history, or that of members of the applicant’s family.

Section 7923.805: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require the disclosure of the home address or telephone number of any of the following individuals, as set forth in an application for a license to carry a firearm, or in a license to carry a firearm, issued by the sheriff of a county or the chief or other head of a municipal police department pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code:

(a) A prosecutor.

(b) A public defender.

(c) A peace officer.

(d) A judge.

(e) A court commissioner.

(f) A magistrate.

Comments: These Sections requires the licensing agency to segregate exempt from non-exempt material. See Cal. Gov't Code § 7922.525(b). Except for the information specifically exempted, the remainder of the application should be made available. CBS Inc. v. Block, 42 Cal. 3d 646, 652-53, 725 P.2d 470, 230 Cal. Rptr. 362 (1986). However, even under CBS Inc., information contained in an application that would reveal intimate details of a person's medical or family circumstances may also be deleted prior to release of the record.

Environmental Protection, Building Standards, and Safety Requirements (Ch. 3 of Part 5 of Div. 10).

Section 7924.505:

(a) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require the disclosure of financial data contained in an application for financing under Division 27 (commencing with Section 44500) of the Health and Safety Code, if an authorized officer of the California Pollution Control Financing Authority determines that disclosure of the financial data would be competitively injurious to the applicant and the data is required in order to obtain guarantees from the United States Small Business Administration.

(b) The California Pollution Control Financing Authority shall adopt rules for review of individual requests for confidentiality under this section and for making available to the public those portions of an application which are subject to disclosure under this division.

Comment: If a private party seeks financial assistance from the California Pollution Control Financing Authority in order to implement a pollution control project, the financial information concerning the private party would presumably be exempt from disclosure, while other information would not.

Financial Records and Tax Records (Ch. 4 of Part 5 of Div. 10).

Section 7925.000: Except has provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require the disclosure of information required from any taxpayer in connection with the collection of local taxes if that information is received in confidence and the disclosure of it to other persons would result in unfair competitive disadvantage to the person supplying the information.

Comment: There are no reported cases discussing this exemption.

Section 7925.005: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require the disclosure of a statement of personal worth or personal financial data required by a licensing agency and filed by an applicant with the licensing agency to establish the applicant’s personal qualification for the license, certificate, or permit requested.

Comment: This exemption has been interpreted narrowly as not including financial records of a waste disposal company with an exclusive contract with a city. San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762, 779, 192 Cal. Rptr. 415 (1983). In San Gabriel, the court concluded that a contract is not a license and that the legislature intended [Section 7925.005] to be limited to those submitting financial data to a licensing agency. Id.

Section 7925.010: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require the disclosure of any of the following records:

(a) Financial data contained in an application for registration, or registration renewal, as a service contractor, which is filed with the Director of Consumer Affairs pursuant to Chapter 20 (commencing with Section 9800) of Division 3 of the Business and Professions Code, for the purpose of establishing the service contractor's net worth.

(b) Financial data regarding the funded accounts held in escrow for service contracts held in force in this state by a service contractor.

Comment: There are no reported cases discussing this exemption.

Health Care (Ch. 5 of Part 5 of Div. 10).

Section 7926.000: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require the disclose of a final accreditation report of the Joint Commission on Accreditation of Hospitals that has been transmitted to the State Department of Public Health pursuant to subdivision (b) of Section 1282 of the Health and Safety Code.

Comment: A health care facility must transmit a copy of the Joint Commission's report on an inspection of its facility to the state if the commission is simultaneously conducting a quality of care inspection of the facility.

Section 7926.100:

(a) Except as provided in subdivision (b) and in Sections 7924.510, 7924.700, and 7929.610, this division does not require the disclosure of any information that a person provides to the Secretary of State for the purpose of registration in the Advance Health Care Directive Registry.

(b) The information described in subdivision (a) shall be released at the request of a health care provider, a public guardian, or the registrant's legal representative.

Comment: There are no reported cases discussing this exemption.

Section 7926.200: The provisions listed in Section 7920.505 do not prevent any health facility from disclosing to a certified bargaining agent relevant financing information pursuant to Section 8 of the National Labor Relations Act (29 U.C.S. Section 158).

Comment: This section continues the unlabeled last paragraph of former Section 6254 without substantive change.

Section 7926.205:

(a) Nothing in this division or any other provision of law requires disclosure of records of a health plan that is licensed pursuant to the Knox-Keene Health Care Services Plan Act of 1975 (Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health Care Safety Code) and that is governed by a county board of supervisors, whether paper or records, records maintained in the management information system, or records in any other form, that relate to provider rate or payment determinations, allocation or distribution methodologies for provider payments, formulae or calculations for these payments, and contract negotiations with providers of health care for alternative rates for a period of three years after the contract is fully executed.

Comment: This section became effective Jan. 1, 2023. Records of health care plans under this section would presumably be public three years after execution.

Section 7926.210:

(a) Except as provided in subdivision (b) or in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of any records of a local hospital district, formed pursuant to Division 23 (commencing with Section 32000) of the Health and Safety Code, or a municipal hospital, formed pursuant to Article 7 (commencing with Section 37600) or Article 8 (commencing with Section 37650) of Chapter 5 of Part 2 of Division 3 of Title 4, that relate to a contract with an insurer or nonprofit hospital service plan for inpatient or outpatient services for alternative rates pursuant to Section 10133 or 11512 of the Insurance Code.

(b) A record described in subdivision (a) shall be open to inspection within one year after the contract is fully executed.

Comment: There are no reported cases discussing this exemption.

Section 7926.220:

(a) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records of a state agency related to  activities governed by Articles 2.6 (commencing with Section 14081), 2.8 (commencing with Section 14087.5), and 2.91 (commencing with Section 14089) of Chapter 7 of Part 3 of Division 9 of the Welfare and Institutions Code, that reveal the special negotiator's deliberative processes, discussions, communications, or any other portion of the negotiations with providers of health care services, impressions, opinions, recommendations, meeting minutes, research, work product, theories or strategy, or that provide instruction, advice or training to employees.

(b)(1) Except for the portion containing the rates of payment, a contract for inpatient services entered into pursuant to one of these articles, on or after April 1, 1984, shall be open to inspection one year after it is fully executed.

(2) If a contract for inpatient services was entered into before April 1, 1984, and  amended on or after April 1, 1984, the amendment, except for any portion containing the rates of payment, shall be open to inspection one year after it is fully executed.

(3) If the California Medical Assistance Commission enters into a contract with a health care provider for other than inpatient hospital services, the contract shall be open to inspection one year after it is fully executed.

(c) Three years after a contract or amendment is open to inspection under this section, the portion of the contract or amendment containing the rates of payment shall be open to inspection.

(d)(1) Notwithstanding any other law, the entire contract or amendment shall be open to inspection by the California State Auditor’s Office, the Joint Legislative Audit Committee, and the Legislative Analyst’s Office.

(2) The California State Auditor’s Office, the Joint Legislative Audit Committee, and the Legislative Analyst’s Office  shall maintain the confidentiality of each contract or amendment until the contract or  or amendment is fully open to inspection by the public.

Comment: The statutes cited in Section 7926.220 refer to special negotiators who represent the State in the Medi-Cal program.

Section 7926.225:

(a) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records of the Managed Risk Medical Insurance Board and the State Department of Health Care Services that relate to activities governed by former Part 6.3 (commencing with Section 12695), former Part 6.5 (commencing with Section 12700), former Part 6.6 (commencing with Section 12739.5), and former Part 6.7 (commencing with Section 12739.70) of Division 2 of the Insurance Code, or Chapter 2 (commencing with Section 15810) or Chapter 4 (commencing with Section 15870) or Part 3.3 of Division 9 of the Welfare and Institutions Code, and that reveal any of the following:

(1) The deliberative processes, discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the board or the department, entities with which the board or the department is considering a contract, or entities with which the board or department is considering or enters into any other arrangement under which the board or the department provides, receives, or arranges services or reimbursement.

(2) The impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff or the department or its staff, or records that provide instructions, advice or training to their employees.

(b)(1) Except for the portion that contains the rates of payment, a contract entered into pursuant to former Part 6.3 (commencing with Section 12695), former Part 6.5 (commencing with Section 12700), former Part 6.6 (commencing with Section 12739.5), or former Part 6.7 (commencing with Section 12739.70) of Division 2 of the Insurance Code, or Chapter 2 (commencing with Section 15810) or Chapter 4 (commencing with Section 15870) of Part 3.3 of Division 9 of the Welfare and Institutions Code, on or after July 1, 1991, shall be open to inspection one year after its effective date.

(2) If a contract was entered into before July 1, 1991, and amended on or after July 1, 1991, the amendment, except for any portion containing the rates of payment, shall be open to inspection one year after the effective date of the amendment.

(c) Three years after a contract or amendment is open for inspection pursuant to this section, the portion of the contract or amendment containing the rates of payment shall be open to inspection.

(d)(1) Notwithstanding any other law, the entire contract or amendment to a contract shall be open to inspection by the California State Auditor’s Office, the Joint Legislative Audit Committee, and the Legislative Analyst’s Office.

(2) The California State Auditor’s Office, the Joint Legislative Audit Committee, and the Legislative Analyst’s Office shall maintain the confidentiality of each contract or amendment until the contract or amendment is open to inspection pursuant to subdivision (c).

Comment: There are no reported cases discussing this exemption.

Section 7926.230:

(a) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records of the Managed Risk Medical Insurance Board and the State Department of Health Care Services related to activities governed by Part 6.2 (commencing with Section 12693) or former Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code or Sections 14005.26 and 14005.27 of, or Chapter 3 (commencing with Section 15850) or Part 3.3 of Division 9 of, the Welfare and Institutions Code, if the records reveal any of the following:

(1) The deliberative processes, discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the board or the department, entities with which the board or department is considering a contract, or entities with which the board or department is considering or enters into any other arrangement under which the board or department provides, receives, or arranges services or reimbursement.

(2) The impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff, or the department or its staff, or records that provide instructions, advice or training to employees.

(b)(1) Except for the portion that contains the rates of payment, a contract entered into pursuant to Part 6.2 (commencing with Section 12693) or former Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code, on or after January 1, 1998, or Sections 14005.26 and 14005.27 of, or Chapter 3 (commencing with Section 15850) of Part 3.3 of Division 9 of, the Welfare and Institutions Code shall be open to inspection one year after its effective date. 

(2) If a contract entered into pursuant to Part 6.2 (commencing with Section 12693) or former Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code or Sections 14005.26 and 14005.27 of, or Chapter 3 (commencing with Section 15850) or Part 3.3 of Division 9 of, the Welfare and Institutions Code, is amended, the amendment shall be open to inspection one year after the effective date of the amendment.

(c) Three years after a contract or amendment is open to inspection pursuant to this section, the portion of the contract or amendment containing the rates of payment shall be open to inspection.

(d)(1) Notwithstanding any other law, the entire contract or amendment to a contract shall be open to inspection by the California State Auditor’s Office, the Joint Legislative Audit Committee, and the Legislative Analyst’s Office.

(2) The California State Auditor’s Office, the Joint Legislative Audit Committee, and the Legislative Analyst’s Office shall maintain the confidentiality of each contract or amendment until the contract or amendment is open to inspection pursuant to subdivision (b) or (c).

(e) The exemption from disclosure provided pursuant to this section for the contracts, deliberative processes, discussions, communications, negotiations, impressions, opinions, recommendations,  meeting minutes, research, work product, theories, or strategy of the board or its staff, or the department or its staff, shall also apply to the contracts, deliberative processes, discussions, communications, negotiations, impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of applicants pursuant to former Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code or Chapter 3 (commencing with Section 15850) of Part 3.3 of Division 9 of the Welfare and Institutions Code.

Comment: There are no reported cases discussing this exemption.

Section 7926.235:

(a) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records of the Managed Risk Medical Insurance Board that relate to activities governed by Chapter 8 (commencing with Section 10700) of Part 2 of Division 2 of the Insurance Code, and that reveal the deliberative processes, discussions, communications, or any other portion of the negotiations with health plans, or the impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff, or records that provide instructions, advice or training of employees.

(b) Except for the portion that contains the rates of payment, a contract for health coverage entered into pursuant to Chapter 8 (commencing with Section 10700) of Part 2 of Division 2 of the Insurance Code, on or after January 1, 1993, shall be open to inspection one year after it has been fully executed.

(c)(1) Notwithstanding any other law, the entire contract or amendment to a contract shall be open to inspection by the Joint Legislative Audit Committee.

(2) The committee shall maintain the confidentiality of each contract or amendment until the contract or amendment is open to inspection pursuant to subdivision (b).

Comment: There are no reported cases discussing this exemption.

Historically or Culturally Significant Matters (Ch. 6 of Part 5 of Div. 10).

Section 7927.000: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of any of the following:

(a) Records of Native American graves, cemeteries and sacred places.

(b) Records of Native American places, features, and objects described in Section 5097.9 and 5097.993 of the Public Resources Code, which are maintained by, or in the possession of, the Native American Heritage Commission, another state agency, or a local agency.

Comment: There are no reported cases discussing this exemption.

Section 7927.005: Nothing in this division requires disclosure of records that relate to archaeological site information and reports maintained by, or in the possession of, the Department of Parks and Recreation, the State Historical Resources Commission, the State Lands Commission, the Native American Heritage Commission, another state agency, or a local agency, including the records that the agency obtains through a consultation process between a California Native American tribe and a state or local agency.

Comments: There are no reported cases discussing this exemption.

Library Records and Similar Matters (Ch. 7 of Part 5 of Div. 10).

Section 7927.100:

(a) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of library circulation records kept for the purpose of identifying the borrower of items available in libraries, and library and museum materials made or acquired and presented solely for reference or exhibition purposes.

(b) The exemption in this section does not apply to records of fines imposed on the borrowers.

Comment: There are no reported cases discussing this exemption.

Section 7927.105:

(a) As used in this section, the term “patron use records” includes both of the following:

(1) Any written or electronic record that is used to identify a library patron and is provided by the patron to become eligible to borrow or use books and other materials. This includes, but is not limited to, a patron’s name, address, telephone number, or email address.

(2) Any written record or electronic transaction that identifies a patron’s borrowing information or use of library information resources. This includes, but is not limited to, database search records, borrowing records, class records, and any other personally identifiable uses of library resources, information requests, or inquiries.

(b) This section does not apply to either of the following:

(1) Statistical reports of patron use.

(2) Records of fines collected by a library.

(c) All patron use records of a library that is in whole or in part supported by public funds shall remain confidential. A public agency, or a private actor that maintains or stores patron use records on behalf of a public agency, shall not disclose those records to any person, local agency, or state agency, except as follows:

(1) By a person acting within the scope of the person’s duties within the administration of the library.

(2) By a person authorized in writing to inspect the records. The authorization shall be from the individual to whom the records pertain.

(3) By order of the appropriate superior court.

Comments: There are no reported cases discussing this exemption. Litigation Records and Similar Maters (Ch. 8 of Part 5 of Div. 10).

Section 7927.200: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of any of the following records:

(a) Records pertaining to pending litigation to which the public agency is a party, until the pending litigation has been finally adjudicated or otherwise settled.

(b) Records pertaining to a claim made pursuant to Division 3.6 (commencing with Section 810), until the pending claim has been finally adjudicated or otherwise settled.

Comment: The purpose of the pending litigation exemption is to prevent a litigant from obtaining a greater advantage against a government entity than otherwise allowed under the rules of discovery. Roberts v. City of Palmdale, 5 Cal. 4th 363, 373, 853 P.2d. 496, 20 Cal. Rptr. 2d 330 (1993). It applies only if the record was specifically prepared for use in litigation — mere relevancy to the litigation is not enough. Cty. of Los Angeles v. Superior Court, 211 Cal. App. 4th 57, 64, 149 Cal. Rprt. 3d 324 (2012) (where court held county law firm’s billing invoices were not exempt from disclosure under the pending litigation exemption); Bd. of Trustees of the Cal. State Univ. v. Superior Court, 132 Cal. App. 4th 889, 897, 34 Cal. Rptr. 3d 82 (2005) (quoting Cty. of Los Angeles v. Superior Court, 82 Cal. App. 4th 819, 830, 98 Cal. Rptr. 2d 564, 572 (2000) (where court remanded action for in camera determination of whether sheriff's department's over-detention reports, logs tracking erroneous releases and over-detentions, and Inmate Reception Center Task Force Report were prepared by county for use in litigation)); see also City of Hemet v. Superior Court, 37 Cal. App. 4th 1411, 1418-19, 44 Cal. Rptr. 2d 532 (1995) (where court concluded that internal investigation report of officer misconduct could not be withheld under pending litigation exemption because report was not prepared specifically for litigation; rejecting argument that documents relevant to later-instituted litigation should be exempt under pending litigation exemption); Fairley v. Superior Court, 66 Cal. App. 4th 1414, 1422, 78 Cal. Rptr. 2d 648 (1998) (where court remanded action for in camera determination of whether pre-litigation arrest records of plaintiff were prepared in anticipation of litigation).

This exemption protects not only attorney work product or documents protected by the attorney-client privilege, but also the work product of public agencies generated in anticipation of litigation. Bd. of Trustees of the Cal. State Univ., 132 Cal. App. 4th at 898 (citing Fairley, 66 Cal. App. 4th at 1422 n.5); see also Roberts, 5 Cal. 4th at 373. While, generally, the exemption protects only documents prepared by or on behalf of the agency (see Farley, 66 Cal. App. 4th at 1504), it also protects correspondence between opposing counsel and parties when sought by nonparties to the action and when the parties do not intend the correspondence to be revealed outside of the litigation. Id. at 894.

Once the litigation is over, records not otherwise independently protected from disclosure (i.e., attorney-client documents) must be disclosed. See, e.g., City of Los Angeles v. Superior Court, 41 Cal. App. 4th 1083, 49 Cal. Rptr. 2d 35 (1996) (depositions in concluded action against city not exempt from disclosure); Register Div. of Freedom Newspapers v. Cty. of Orange, 158 Cal. App. 3d 893, 909, 205 Cal. Rptr. 92 (1984) (documents pertaining to settlement of personal injury claim against public entity, including but not limited to settlement agreement itself, were subject to disclosure).

Deposition transcripts are not exempt from disclosure under this subdivision because they are available under another statutory provision absent a protective order. Bd. of Trustees of the Cal. State Univ., 132 Cal. App. 4th at 901(citing Cal. Civ. Proc. Code § 2025.570). A county’s outside counsel’s billing records are not exempt under this subdivision. Los Angeles v. Superior Court, 211 Cal. App. at 57. Claims filed against a public agency under California's Tort Claims Act are not exempt from disclosure under this subdivision. Poway Unified Sch. Dist. v. Superior Court, 62 Cal. App. 4th 1496, 1505, 73 Cal. Rptr. 2d. 777 (1998); see also 71 Ops. Cal. Att'y. Gen. 235, 238 (1988).

Section 7927.205: Nothing in this division or any other provision of law requires disclosure of a memorandum submitted to a state body or to the legislative body of a local agency by its legal counsel pursuant to subdivision (e) of Section 11126 or Section 54956.9 until the pending litigation has been finally adjudicated or otherwise settled. The memorandum is protected by the attorney work-product privilege until the pending litigation has been finally adjudicated or otherwise settled.

Comments: While there are no report cases under this exemption, the plain language of the statute indicates that legal memoranda submitted to a state or local body or board for consideration in closed session are not exempt from disclosure under the work product doctrine (and presumably the attorney-client privilege) once litigation is final.

Miscellaneous Public Records (Ch. 9 of Part 5 of Div. 10).

Section 7927.300: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of geological and geophysical data, plant production data, and similar information relating to utility systems development, or market or crop reports, which are obtained in confidence from any person.

Comment: There are no California reported court decisions interpreting this section.

Personal Information and Customer Records (Ch. 10 of Part 5 of Div. 10).

Section 7927.400: Nothing in this division requires the disclosure of records that relate to electronically collected personal information, as defined by Section 11015.5, that is received, collected, or compiled by a state agency.

Comment: The referenced statute pertains to personal information collected by government agencies from users of their websites.

Section 7927.405: Nothing in this division requires the disclosure of the residence or mailing address of any person in any record of the Department of Motor Vehicles except in accordance with Section 1808.21 of the Vehicle Code.

Comment: Section 1808.21 of the Vehicle Code authorizes access to address information by law enforcement, the court, or another government agency.

Section 7927.410:

Nothing in this division requires the disclosure of the name, credit history, utility usage data, home address, or telephone number of a utility customer of a local agency, except that disclosure of the name, utility usage data, and the home address of a utility customer of a local agency shall be made available upon request as follows:

(a) To an agent or authorized family member of the person to whom the information pertains.

(b) To an officer or employee of another governmental agency when necessary for the performance of its official duties.

(c) Upon court order or the request of a law enforcement agency relative to an ongoing investigation.

(d) Upon determination by the local agency that the utility customer who is the subject of the request has used utility services in a manner inconsistent with applicable local utility usage policies.

(e) Upon determination by the local agency that the utility customer who is the subject of the request is an elected or appointed official with authority to determine the utility usage policies of the local agency, provided that the home address of an appointed official shall not be disclosed without the official’s consent.

(f) Upon determination by the local agency that the public interest in disclosure of the information clearly outweighs the public interest in nondisclosure.

Comment: This provision authorizes access to customer utility usage data where the public’s interest in disclosure clearly outweighs the public’s interest in nondisclosure, a test distinct from that under Section 7922.000, which requires a clear overbalance on the side of non-disclosure for an agency to withhold public records.  Customer water usage data has been disclosed under this provision. See, e.g., City of Los Angeles v. Metropolitan Water Dist., 42 Cal. App. 5th 290, 294-95, 299, 255 Cal. Rptr. 3d 202 (2019) (on appeal from fee award following newspaper’s successful CPRA action in intervention to obtain the names and addresses of those receiving water rebates under a turf replacement program, the court noted disclosure conferred “a significant benefit on the general public” and was authorized under Section [7927.410]; see also New York Times Co. v. Superior Court, 218 Cal. App. 3d 1579, 1585-86, 268 Cal. Rptr. 21 (1990) (holding that water district’s claim that disclosure of names of residential customers who exceeded water usage would expose customers to harassment was insufficient basis to withhold records under public interest balancing test of [Section 7922.000]).

Preliminary Drafts and Similar Materials (Ch. 11 of Part 5 of Div. 10).

Section 7927.500: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of any preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by a  public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.

Comment: “The purpose of the exemption is to provide a measure of agency privacy for written discourse concerning matters pending administrative action.” Citizens for a Better Env’t v. Dep’t of Food & Agric., 171 Cal. App. 3d 704, 711-12, 217 Cal. Rptr. 504 (1985). There are three statutory conditions for exemption under this subdivision: (1) The record sought must be a preliminary draft, note or memorandum; (2) of a type not retained by the public agency in the ordinary course of business; and (3) the public interest in withholding it must clearly outweigh the public interest in disclosure. Id. at 711-12. While the exemption serves to exempt from disclosure “pre-decisional writings containing advisory opinions, recommendations and policy deliberations,” the exemption does not apply to severable factual material contained in deliberative memoranda. Id. at 713.

In Citizens For A Better Environment, the plaintiff, a national environmental organization, sought disclosure of inspection and monitoring reports on county enforcement of pesticide-use laws. Since the documents were made in the course of a determinative process of evaluating the county's compliance with the state's criteria regarding pesticide law enforcement, the documents met the first criteria as “pre-decisional communications.” Id. at 510. While evidence regarding some of the documents sought supported a finding that they were discarded in the ordinary course of business and thus met the second criteria, an EPA memorandum retained in each county file did not. Id. In addressing the third criteria, the court said the phrase “public interest in withholding records” could not be construed to encompass any policy argument as with the catchall exemption under Section 6255, but only those objectives that advance the specific policy domain of subdivision (a) — fostering robust agency debate. Id. at 715-16.

In distinguishing factual as opposed to recommendatory content, the court said, “That a judgment (an opinion) is embedded in a statement that something is the case (the hallmark of a factual claim) obviously does not deprive it of its factual quality. It is only an opinion which is “recommendatory” that may be withheld.” Id. at 717; cf. Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1342, 813 P.2d 240, 283 Cal. Rptr. 893 (1991) (where under [Section 7922.000's] catchall exemption the court explained that even if the content of a document is purely factual, it would be nonetheless exempt from public scrutiny if it is actually related to the process by which policies are formulated or inextricably intertwined with the policy-making process).

Private Records, Privileged Materials, and Other Records Protected from Disclosure (Ch. 13 of Part 5 of Div. 10).

Section 7927.7000: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of personnel, medical or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.

Comment: In enacting the CPRA the Legislature was mindful of the right of individuals to privacy. See Cal. Gov't Code § 7921.000 ("In enacting this division, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state."). Likewise, the constitutional Sunshine Amendment provides, “Nothing in this subdivision supersedes or modifies the right of privacy guaranteed by Section 1 or affects the construction of any statute, court rule or other authority to the extent that it protects that right to privacy . . . .” Cal. Const. art. I, § 3(b)(3). Thus, disclosure of public records requires the balancing of two fundamental yet competing public interests: “the public’s interest in disclosure and the individual’s interest in personal privacy.” Int’l Fed’n of Prof’l and Technical Eng’rs v. Superior Court, 42 Cal.4th 319, 329-30, 64 Cal.Rptr.3d 693, 165 P.3d 488 (2007); Comm’n on Peace Officer Standards and Training v. Superior Court, 42 Cal.4th 278, 299, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007); see also Los Angeles Unif. Sch. Dist. v. Superior Court, 228 Cal. App. 4th 222, 239, 175 Cal. Rptr. 3d 90 (2014); Versaci v. Superior Court, 127 Cal. App. 4th 805, 813, 26 Cal. Rptr. 3d 92 (2005) (quoting Gilbert v. City of San Jose, 114 Cal. App. 4th 606, 613, 7 Cal. Rptr. 3d 692 (2003)).

The exemption “typically appl[ies] to employee's personnel folders or sensitive personal information which individuals must submit to government.” San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762, 777, 192 Cal. Rptr. 415 (1983); cf. Los Angeles County, 228 Cal. App. 4th at 239 (stating exemption for “similar files” need not contain intimate details or highly personal information; rather, records “may simply be government records containing ‘information which applies to a particular individual.’”) (citation omitted). As courts have stated, “one does not lose his [or her] right to privacy upon accepting public employment . . . .” Versaci, 127 Cal. App. 4th at 818 (quoting New York Times Co. v. Superior Court, 52 Cal. App. 4th 97, 100, 60 Cal. Rptr. 2d 410 (1997)). For example, in Versaci, the court held that the personal performance goals of a former superintendent of a community college district established each year between the superintendent and the board and maintained as confidential as part of her personnel file were exempt from disclosure under this subdivision. Id. at 818-22.

In determining whether the exemption applies, courts may look to the factors necessary to establish an invasion of a constitutional right of privacy. Int’l Fed’n, 42 Cal.4th at 330 n.3 (while recognizing that review of the factors might be helpful in a particular case, the court explained that intrusion upon a privacy interest need not rise to the level of an invasion of a constitutional right of privacy to be recognized under [7927.700]).  That test requires a showing of: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy; and, (3) a serious invasion of privacy. Hill v. Nat’l Collegiate Athletic Ass'n, 7 Cal.4th 1, 39-40, 26 Cal. Rptr. 2d 834, 865 P.2d 633 (1994) (applying test in invasion of privacy case); Int’l Fed’n, 42 Cal.4th at 330-31 (recognizing privacy interest in personal financial information but holding that expectation of privacy over salary earned in public employment was not reasonable); Braun v. City of Taft, 154 Cal. App. 3d 332, 347, 201 Cal. Rptr. 654 (1984) (applying Hill test in determining whether disclosure required under CPRA); cf. Versaci, 127 Cal. App. 4th at 818 (applying three-part determination that: (1) the document sought constitutes a personnel file, medical file or other similar file; (2) disclosure would compromise substantial privacy interests; and, (3) the potential harm to the privacy interests outweighs the public interest in disclosure).

Personnel Files: Personnel files are not per se exempt from disclosure. However, portions may be exempt if disclosure constitutes an “unwarranted invasion of privacy.” See Braun, 154 Cal. App. 3d at 347. The Braun court recognized that the “personnel” exemption was developed to “protect intimate details of personal and family life, not business judgments and relationships.” Braun, 154 Cal. App. 3d at 343-44; see also Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1045, 13 Cal. Rptr. 3d 517 (2004) (same).  But see Los Angeles Unified Sch. Dist., 228 Cal. App. 4th at 239 (stating that “similar” files exemption need not contain intimate details or highly personal information; rather, “[t]hey may simply be government records containing ‘information which applies to a particular individual.’”) (citation omitted).

In Braun, the court found that disclosure of two letters from a public employee's personnel file, one appointing him to a position and another rescinding the appointment, did not constitute such an invasion because the letters contained no private information. Id. at 344. The court explained that although the reclassification may be embarrassing to an individual, the letters manifested his employment contract, and in California public employment contracts are public records that may not be considered exempt. Id. Nor was disclosure of the employee's address, birth date and Social Security number prohibited by the right of privacy under article I, section 1 of the California Constitution. Id. at 347.

In CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 907, 110 Cal. Rptr. 2d 889 (2001), the court held that the privacy exemption did not exempt from public disclosure the identity of individuals granted criminal conviction exemption to work in a licensed child day care facility and the identity of each facility employing such individuals because this information was a matter of public record.

In Cal. State Univ. v. Superior Court, 90 Cal. App. 4th 810, 834, 108 Cal. Rptr. 2d 870 (2001), the court held that individuals who purchased luxury suites in an arena being built on university campus entered into “public sphere” and by doing so “voluntarily diminished their own privacy interest” such that their names and license agreements were not exempt from disclosure under the CPRA.

In Lorig v. Medical Bd., 78 Cal. App. 4th 462, 468, 92 Cal. Rptr. 2d 862 (2000), the court held that it was not an unwarranted invasion of privacy to disclose the home addresses of state-employed physicians who voluntarily used their home address as their “address of record.”

Employee Wrongdoing: While documents relating to employee wrongdoing may be contained in personnel files, they must be disclosed if they “reveal allegations of a substantial nature, as distinct from baseless or trivial, and there is reasonable cause to believe the complaint is well-founded . . . .” Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1046, 13 Cal. Rptr. 3d 517 (2004) (upholding access to alleged incident of sexual harassment or intimidation by school principal even though district had found allegation not true) (citing Am. Fed’n of State, Cty. and Mun. Emps. v. Regents of Univ. of Cal., 80 Cal. App. 3d 913, 146 Cal. Rptr. 42 (1978)); compare Marken v. Santa Monica-Malibu Unified Sch. Dist., 202 Cal. App. 4th 1250, 1273, 136 Cal. Rptr. 3d 395 (2012) (quoting Bakersfield and discussing case law in context of substantiated complaint that teacher violated sexual harassment policy), with Associated Chino Teachers v. Chino Valley Unified Sch. Dist., 30 Cal. App. 5th 530, 543, 241 Cal. Rptr. 3d 732 (2018) (holding complaints against high school volleyball coach involving yelling, belittling student-athletes, and scheduling practices at their homes were not substantial in nature sufficient to outweigh public employee’s privacy interest in personnel file). Under such circumstances, the public employee privacy must give way to the public interest in disclosure of public employee wrongdoing. Bakersfield, 118 Cal. App. 4th at 1046. In determining whether the complaint is well founded, the trial court does not determine the veracity of the underlying complaint but reviews the documents to determine whether “they reveal sufficient indicia of reliability to support a reasonable conclusion that the complaint was well-founded.” Id. at 1047.

Separately, where a “complaint has been upheld by the agency involved or discipline imposed, even if only a private reproval, it must be disclosed.” Marken, 202 Cal. App. 4th at 1275 (holding that where school district had concluded teacher violated sexual harassment policy and where written reprimand was imposed, release of investigatory report and disciplinary record was required under the CPRA) (citing Am. Fed’n, 80 Cal. App. 3d at 919).

Where the allegations of wrongdoing are against a public figure or public official, such as a school district superintendent, as opposed to a nonpublic figure or nonpublic official, a lesser standard of reliability is applied in reviewing the records.  See BRV, Inc. v. Superior Court, 143 Cal.App.4th 742, 759, 49 Cal.Rptr.3d 519 (2006). This is so because public officials have significantly reduced expectations of privacy in their public employment. Id. at 758 (“The potential injury here is to his reputation, but as a public official, he knew his performance could be the subject of public, ‘vehement, caustic, and sometimes unpleasantly sharp attacks . . . .’”) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). Thus, the court in BRV reviewed a report against a school superintendent accused of verbally abusing students and sexually harassing female students and said “it could not conclude the allegations were so unreliable the accusations could not be anything but false.” Id. at 758-59.

Applying this lesser standard, the court in Caldecott v. Superior Court, 243 Cal. App. 4th 212, 224-25, 196 Cal. Rptr. 3d 223 (2015), held that terminated school district employee was entitled under the CPRA to documents responsive to his hostile work employment complaint against superintendent, which included allegations of financial irregularities. In so holding, the court said it could not conclude that the allegations against the superintendent and school “could not be anything but false” even though the district had found that the allegations were not well founded.  Id. at 225.

Salary Information: The public has a right of access to public employee exact salary information under the CPRA. See Int’l Fed’n, 42 Cal.4th at 329. Without deciding whether a public entity’s payroll expenditure information constitutes “personnel . . . or similar files” under [Section 7927.700], the court in International Federation held that disclosure of exact salary information was nonetheless compelled because disclosure would not constitute an “‘unwarranted invasion of personal privacy.’” Id. at 329 (quoting Cal. Gov’t § [7927.700]). In so holding, the court explained that while disclosure may cause “discomfort or embarrassment . . .[,] an individual’s expectation of privacy in a salary earned in public employment is significantly less than the privacy expectation regarding income earned in the private sector.” Id. at 331. The court also noted that “[c]ounterbalancing any cognizable interest that public employees may have in avoiding disclosure of their salaries is the strong public interest in knowing how the government spends its money.” Id. at 333.  Access to public records, the court said, “makes it possible for members of the public ‘to expose corruption, incompetence, inefficiency, prejudice, and favoritism.’” Id. at 333 (quoting NBC Subsidiary, Inc. v. Superior Court, 20 Cal.4th 1178, 1211 n.28, 86 Cal.Rptr.2d 778, 980 P.2d 337 (1999)).

The court also discounted an earlier case decided at the preliminary injunction stage that had supported the notion that public employees may have, under certain circumstances, a reasonable expectation of privacy in their exact salaries. Id. at 335 (concluding that Priceless, 112 Cal. App. 4th 1500, was of slight precedential value because of the limited trial court record and posture of the case).  It also expressly disagreed with Priceless to the extent its holding can be read to stand for the proposition that the practice of a particular governmental agency in refusing to disclose salary information can create a privacy interest in those records.  Id. at 336.

Cases decided before International Federation also supported the notion that exact salary information of public employees is not exempt under the CPRA. See Braun, 154 Cal. App. 3d at 338-40 (holding that trial court was within its discretion to find that disclosure of salary card of transit administrator was not an unwarranted invasion of personal privacy); 60 Ops. Cal. Att'y. Gen. 110 (1977); 68 Ops. Cal. Att'y. Gen. 73 (1985); see also Cal. Gov't Code § 54957 (prohibiting local public agencies from conducting closed session meetings to discuss or act on proposed compensation “except for a reduction of compensation that results from the imposition of discipline"); San Diego Union v. City Council, 146 Cal. App. 3d 947, 955, 196 Cal. Rptr. 45 (1983) (upholding trial court order enjoining city council from holding closed sessions on salaries of nonelected city employees).

Public Contracts: Every public employment contract between a state or a local agency and any public official or public employee is a public record. Cal. Gov't Code § 7928.400; cf. Priceless, 112 Cal. App. 4th at 1517-18 (holding this provision did not apply to compel individualized salary information of most classified civil service employees because their employment is pursuant to statute not contract).

Pension Benefits: Disclosure of individual public employee pension amounts has been held not to constitute a violation of the constitutional right to privacy of public employees. See Sacramento Cty. Emps.’ Retirement System v. Superior Court, 195 Cal. App. 4th 440, 468; 125 Cal. Rptr. 3d 655 (2011) (concluding that public pensions are not private information and that county retirement system failed to demonstrate under Section 6255(a) of the Government Code a public interest in nondisclosure that clearly outweighed the public interest in disclosure); see also Sonoma Cty. Emps.’ Retirement Ass’n v. Superior Court, 198 Cal. App. 4th 986, 1006, 130 Cal. Rptr. 3d 540 (2011) (privacy interests of county retires did not outweigh the public’s interest in access to names and gross benefit amount of retirees); San Diego Cty. Emp. Retirement Assn. v. Superior Court, 196 Cal. App. 4th 1228, 1242, 127 Cal. Rptr. 3d 479 (2011) (concluding that “public employees lack a reasonable expectation of privacy in an expense [pension amounts] the public largely bears after their retirement”).

Police Records: The constitutional Sunshine Amendment expressly maintains statutory privacy protections for peace officers. Cal. Const. art. I, § 3(b)(3). Disclosure of police officer personnel records are regulated by both California's Evidence Code and Penal Code. See Cal. Penal Code §§ 832.5, 832.7, 832.8 and Cal. Evid. Code §§ 1043-1046.  “Personnel records” include “any file maintained under that individual’s name by his or her employing agency and containing records relating to” among other things “[e]mployee advancement, appraisal, or discipline,” and “[c]omplaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties.”  Cal. Penal Code § 832.8(a)(4)-(5). These provisions did not preclude disclosure of complaints, an independent investigation report and related documents pertaining to an elected county sheriff where the county/custodian of records was not the sheriff’s employing agency, and the purpose of independent investigation was distinct from an internal disciplinary investigation. Essick v. County of Sonoma, 81 Cal. App. 5th 562, 951, 296 Cal. Rptr. 3d 117 (2022); compare, Copley Press, Inc. v. Superior Court, 39 Cal.4th 1272, 1294, 48 Cal.Rptr.3d 183, 141 P.3d 288 (2006) (where court held shifting of internal affairs function to county civil service commission did not strip the records of the protections they would have had if generated internally by officer’s employing agency).

The protections apply to disciplinary appeals. See Copley Press, Inc., 39 Cal. 4th 1294 (upholding protections in context of peace officer’s administrative appeal before county civil service commission of a disciplinary determination); San Diego Police Officers Ass'n v. City of San Diego Civil Service Comm’n, 104 Cal. App. 4th 275, 287, 128 Cal. Rptr. 2d 248 (2002) (provisions governing peace officer personnel records precluded disclosure of peace officer personnel records at public administrative appeal of disciplinary decision if disclosure objected to by officer).

The protections have been held to extend to allegations of police misconduct [City of Hemet v. Superior Court, 37 Cal. App. 4th 1411, 1431, 44 Cal. Rptr. 2d 532 (1995)] and an officer’s urinalysis test results taken in connection with an administrative investigation of an officer’s off-duty conduct [Fagan v. Superior Court, 111 Cal. App. 4th 607, 618-19, 4 Cal. Rptr. 3d 239 (2003)].

Several courts, however, have addressed the limitations of the protections for peace officer personnel files.  In Commission on Peace Officer Standards and Training v. Superior Court, 42 Cal.4th 278, 64 Cal.Rptr.3d 661, 165 P.3d 462 (2007), for example, the California Supreme Court made clear that these statutes cannot be interpreted as reaching beyond their clear language and purpose, and cannot be used as a justification for withholding basic information about the state’s law enforcement officers:

“The public’s legitimate interest in the identity and activities of peace officers is even greater than its interest in those of the average public servant.  ‘Law enforcement officers carry upon their shoulders the cloak of authority to enforce the laws of the state.  In order to maintain trust in its police department, the public must be kept fully informed of the activities of its peace officers.’”

42 Cal. 4th at 297 (emphasis added) (quoting New York Times v. Superior Court, 52 Cal. App. 4th 97, 104-105, 60 Cal. Rptr. 2d 410 (1997)).  Thus, the court held that police officer names, employing agency, and employment dates in a database maintained by the commission were not confidential under Sections 832.7 or 832.8, and disclosure would not constitute an unwarranted invasion of personal privacy under Government Code [Section 7927.700].  Id. at 294, 299-303.  And in International Federation, 42 Cal.4th at 343-46, the court rejected the argument that individual salary information of police officers was confidential as part of their “personnel records” under Section 832.7.

Names of police officers involved in shooting incidents while engaged in the performance of their duties also have been held not to be private information under these Penal Code provisions. See Long Beach Police Officers Ass’n v. City of Long Beach (“LBPOA”), 59 Cal. 4th 59, 71, 73, 172 Cal. Rptr. 3d 56, 325 P.3d 460 (2014) (limiting exemption for peace officer personnel records to records “generated in connection with [an officer’s] appraisal or discipline,” and holding that “public’s substantial interest in the conduct of its peace officers outweighs, in most cases, the officer’s personal privacy interest”); New York Times Co. v. Superior Court, 52 Cal. App. 4th 97, 104, 60 Cal. Rptr. 2d 410 (1997) ("Fear of possible opprobrium or embarrassment is insufficient to prevent disclosure [of peace officers involved in on-duty shootings]."). The California Attorney General also had concluded that these Penal Code provisions did not shield the names of peace officers involved in critical incidents, and that the information must be disclosed in response to a CPRA request unless the proponents of secrecy show that the harm of disclosure clearly outweighs the benefits of public access in a specific case — generally, in those situations where peace officers are currently working undercover.  91 Ops. Cal. Atty. Gen.11 (May 19, 2008).

Similarly, the court in City of Eureka v. Superior Court, 1 Cal. App. 5th 755, 763-64, 205 Cal. Rptr. 3d 134 (2016), held that video of juvenile’s arrest from dashboard camera was not a confidential police personnel record because it was not “generated in connection” with the officer’s appraisal or discipline. Instead, the court said, it was just a “visual record of the minor’s arrest” akin to “information contained in the initial incident report” of an arrest, which is not exempt as a peace officer personnel record. Id. at 764.

Additionally, a report compiled by an independent consultant hired to review an officer-involved shooting of an unarmed teenager not for disciplinary purposes but to advance department-wide administrative reforms was held not to be exempt as a peace officer personnel record. See Pasadena Police Officers Ass’n v. Superior Court, 240 Cal. App. 4th 268, 289, 192 Cal. Rprt. 3d 486 (2015). The court, nevertheless, held that portions of the report culled from personnel information or officer statements in the course of the administrative investigation contained within the report were exempt. Id. at 290-91 (discussing segregation requirements where exempt information is not inextricably intertwined with non-exemption information). This aspect of the decision, however, would not withstand scrutiny under newly adopted SB 1421.

Disclosure of information in violation of the statutory procedures governing disclosure of peace officer personnel records has been determined not to give rise to a private right of action. Rosales v. City of Los Angeles, 82 Cal. App. 4th 419, 428, 98 Cal. Rptr. 2d 144 (2000).

In 2018 and 2021, the California Legislature enacted Senate Bill 1421 and Senate Bill 16, respectively, which amended Penal Code Section 832.7 to expressly expand the public’s right of access to certain peace officer records maintained by state or local agencies.  In passing SB 1421, the Legislature expressly stated:

“The public has a right to know all about serious police misconduct, as well as about officer-involved shootings and other serious uses of force. Concealing crucial public safety matters such as officer violations of civilians’ rights, or inquiries into deadly use of force incidents, undercuts the public’s faith in the legitimacy of law enforcement, makes it harder for tens of thousands of hardworking peace officers to do their jobs, and endangers public safety.”

SB 1421, § 1(b).  In its current form, the law mandates public access to the following eight categories of information: (1) incidents involving the discharge of a firearm at a person by a peace officer; (2) incidents involving the use of force by a peace officer against a person resulting in death or great bodily injury; (3) incidents involving a sustained finding of a complaint alleging unreasonable or excessive force; (4) incidents involving a sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive; (5) incidents in which a sustained finding was made by a law enforcement agency or oversight agency that a peace officer or custodial officer engaged in the sexual assault involving a member of the public; (6) incidents in which a sustained finding was made by a law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly related to the reporting, investigation, or prosecution of a crime, or directly related to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained findings of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence; (7) incidents involving sustained findings that a peace officer or custodial officer engaged in conduct including, but not limited to, verbal statements, writings, online posts, recordings, and gestures, involving prejudice or discrimination against a person based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status; and (8) incidents involving a sustained finding that a peace officer made an unlawful arrest or conducted an unlawful search. Cal. Penal. Code § 832.7(b)(1).

Senate Bill 1421 has been held to apply retroactively to subject incidents occurring before the legislation went into effect on January 1, 2019.  See Walnut Creek Police Officers’ Ass’n v. City of Walnut Creek, 33 Cal. App. 5th 940, 941, 245 Cal. Rptr. 3d 398 (March 12, 2019).  In rejecting a police association’s argument that the law applied only to incidents after January of 2019, the court explained that the law did not change the legal consequences for peace officer conduct occurring before 2019—a general requirement for retroactive application of new law—rather, it changed only the public’s right of access to peace officer records. Id. at 942. See also Ventura County Deputy Sheriffs’ Ass’n v. County of Ventura, 61 Cal. App. 5th 585, 594, 275 Cal. Rptr. 3d 843 (2021)(same).

A ”sustained” finding means “a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal… that the actions of the peace officer or custodial officer were found to violate law or department policy.” Cal. Pen. Code § 832.7(b). As long as there was an opportunity for an appeal, even if an appeal hearing isn’t completed, an internal investigation can be final and its findings remain sustained. Collondrez v. City of Rio Vista, 61 Cal. App. 5th 1039, 1053, 275 Cal. Rptr.3d 895 (2021). And the disclosure obligations apply even where an officer resigns before an investigation has concluded. Cal. Gov’t Code § 832.7(b)(3).

These disclosure obligations apply to records held but not created by a custodian agency, such as the Department of Justice, even where the custodian is not the officer’s employing agency. Becerra v. Superior Court, 44 Cal. App. 5th 897, 918-19, 257 Cal. Rptr. 3d 897 (2020)(holding that section 832.7’s plain language makes clear that officer-related records in the Department of Justice’s possession are subject to disclosure regardless of whether such records concern peace officers employed by the department or by another state or local agency.)

Except to the extent temporary withholding for a longer period is permitted pursuant to paragraph (8) of Section 832.7(b), records subject to disclosure under Section 832.7(b) “shall be provided at the earliest possible time and no later than 45 days from the date of a request for their disclosure.” Cal. Pen. Code § 832.7(b)(11). Job Applications: With respect to job applications and resumes of public employees, the court in Eskaton Monterey Hospital v. Myers, 134 Cal. App. 3d 788, 794, 184 Cal. Rptr. 840 (1982), said that “information as to the education, training, experience, awards, previous positions and publications of the [employee] . . . is routinely presented in both professional and social settings, is relatively innocuous and implicates no applicable privacy or public policy exemption.” Additionally, job applications and resumes of those actually chosen for the job are not exempt from disclosure. But applications and resumes pertaining to others in the pool of applicants may be exempt from disclosure under the deliberative process privilege, discussed elsewhere in this guide.

Medical Records: Generally, medical records are the type of records that are exempt from disclosure under 7927.700. However, medical records of a tort claimant against a county are not exempt from disclosure since by making the claim, the claimant places his or her alleged physical injuries and medical records substantiating them in issue and tacitly waives any expectation of privacy with respect to them. Register Div. of Freedom Newspapers, Inc. v. Cty. of Orange, 158 Cal. App. 3d 893, 902, 205 Cal. Rptr. 92 (1984). Because the county used the records in arriving at its decision to settle the claim, the court in Register Division of Freedom Newspapers said the county could not hide behind the claimant's privacy to justify its concealment of the records from public scrutiny. Id.

“No provider of health care, health care service plan or contractor” may disclose medical information without patient or guardian authorization. Cal. Civ. Code § 56.10; see also The Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), 42 U.S.C. § 1320d (governing use and disclosure by a covered entity of personally identifiable health care information relating to an individual).

Financial Data: Financial data submitted by a waste disposal firm to a city, which the city relied on in granting a rate increase pursuant to an exclusive contract between the city and the company, was not exempt from disclosure under [Section 7927.700] where the city publicly based its decision to permit the company to increase rates based upon the financial data it submitted. The data thereby lost its exempt status. San Gabriel Tribune, 143 Cal. App. 3d at 775; see also Cal. State Univ., 90 Cal. App. 4th at 834 (rejecting argument that disclosure of names of those who purchased luxury suites at arena being built on university property would violate individuals' right to privacy in their financial dealings).

Section 7927.705: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records, disclosure of which is exempted or prohibited pursuant to federal or state law, including but not limited to, provisions of the Evidence Code relating to privilege.

Comment: This section is not an independent exemption but merely incorporates other prohibitions established by law. Copley Press, Inc. v. Superior Court, 39 Cal. 4th 1272, 1283, 48 Cal. Rptr. 3d 183, 141 P.3d 288 (2006); CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 906, 110 Cal. Rptr. 2d 889 (2001) (quoting CBS Inc. v. Block, 42 Cal.3d 646, 656, 230 Cal. Rptr. 362, 725 P.2d 470 (1986)). Statutes regulating various agencies, commissions and public offices often designate specific records as confidential. Additionally, Sections 930 through 1061 of the Evidence Code set forth the various privileges from compelled disclosure available to litigants in civil and criminal trials. These statutes and privileges may be asserted, where applicable, by a public agency under this section.

For example, pursuant to Evidence Code Sections 950 through 962, a public agency has an attorney-client privilege in confidential communications between itself and its attorneys. The California Supreme Court held that this exemption covers communications that are made between a public agency and its attorneys during pending litigation as well as those made at other times. Roberts v. City of Palmdale, 5 Cal. 4th 363, 371, 20 Cal. Rptr. 2d 330, 853 P.2d 496 (1993).

In Los Angeles County Board of Supervisors v. Superior Court, 2 Cal. 5th 282, 288, 212 Cal. Rptr. 107, 386 P.3d 773 (2016), the California Supreme Court held that the attorney-client privilege does not categorically shield everything in a county attorneys’ billing invoice but that invoices for work in pending and active legal matters are covered by the privilege. The court remained for further determination of whether billing totals in completed cases were communicated for purpose of legal consultation (and thus were privilege). Id. at 300. See Cty. of Los Angeles Bd. of Supervisors v. Superior Court, 12 Cal. App. 5th 1264, 1276-77, 219 Cal. Rptr. 3d 674 (2017) (on remand from Cal. Supreme Court, appellate court refused to conduct in camera review of redacted portions of billing statements citing attorney-client privilege, and remanded to trial court issue of whether fee totals in concluded cases should be disclosed under CPRA).

One court also has held that the privilege is not waived by disclosure to a successful bidder of a privileged memorandum and transmittal letter prepared by county counsel where disclosure was reasonably necessary to further the interests of both parties in finalizing negotiations. STI Outdoor v. Superior Court, 91 Cal. App. 4th 334, 341, 109 Cal. Rptr. 2d 865 (2001).

In a case decided under Section 7927.705’s predecessor, the California Supreme Court held that more specific provisions of California’s Long-Term Care, Health, Safety, and Security Act, providing that citations issued against health care facilities are public records, prevailed over confidentiality provisions contained in another statutory scheme protecting mentally ill and developmentally disabled individuals. State Dep’t of Pub. Health v. Superior Court, 60 Cal. 4th 940, 964, 184 Cal. Rptr. 3d 60, 342 P.3d 1217 (2015).

The qualified trade secret and official information privileges and the attorney work-product doctrine, which covers the research, impressions, notes and conclusions of an attorney, may be asserted through Section 7927.705.

In an effort to identify the numerous statutes that are incorporated in this section, the Legislature enacted Section 7930.000, which provides that after January 1, 1999, each addition or amendment to a statute that exempts any information contained in a public record from disclosure pursuant to Section 7927.705 shall be listed and described in Chapter 2 (commencing with Section 7930.100). Public Employee or Official (Ch. 14 of Part 5 of Div. 10).

Section 7928.000:

(a) Except as provided in Section 7925.510, 7924.700, and 7929.610, this division does not require the disclosure of correspondence of and to the Governor or employees of the Governor’s office or in the custody of or maintained by the Governor’s Legal Affairs Secretary.

(b) Public records shall not be transferred to the custody of the Governor’s Legal Affairs Secretary to evade the disclosure provisions of this division.

Comment:  In Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1337, 813 P.2d 240, 283 Cal. Rptr. 893 (1991), the California Supreme Court held that the Governor's daily, weekly and monthly calendars and schedules were not exempt under this subsection, which the court said was confined to “communications by letter.” However, the court in Times Mirror found such documents to be exempt under the “deliberative process” exemption under Government Code Section 6254(a). Id. at 1344.

Expanding the exemption beyond strictly “communications by letters,” the appellate court in Cal. First Amendment Coal. v. Superior Court, 67 Cal. App. 4th 159, 169 (1998), held that application forms as well as letters received by the Governor's office from applicants for appointment to a vacant supervisor position fell within the correspondence exemption. In so holding, the court noted that the exemption is designed to protect from disclosure communications to the Governor and members of the Governor's staff from correspondents outside of government. Cal. First Amendment Coal. v. Superior Court, 67 Cal. App. 4th 159, 168, 78 Cal. Rptr. 2d 847 (1998). Another appellate court, however, has declared this statement dicta, in holding that the Governor’s correspondence exemption is not limited to correspondence sent to the Governor’s office by correspondents outside of the government. Rittiman v. Public Utilities Com., 80 Cal. App. 5th 1018, 1040, 295 Cal. Rptr. 3d 285 (2022) (involving CPRA request for all communications between California Public Utilities Commission President and members of the Governor’s staff). The court in Rittiman expressly declined to address what it called the “critical issue” of whether a written communication to or from the Governor or his or her staff is “correspondence” or some other form of communication. Id. at 1044.

Section 7928.100:

(a) Except as provided in subdivision (b) and in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of any record that are in the custody of, or maintained by, the Legislative Counsel.

(b) Subdivision (a) does not apply to records in the public database maintained by the Legislative Counsel that are described in [Government Code] Section 10248.

Comment: There are no reported cases discussing this exemption. Records of the Legislature are subject to the Legislative Open Record Act. See Gov’t Code §§ 9070-9080.

Section 7928.205: No state or local agency shall post the home address or telephone number of any elected or appointed official on the internet without first obtaining the written permission of that individual.

Comment:  There are no reported cases under this exemption.

Section 7928.300:

(a) The home addresses, home telephone numbers, personal cellular telephone numbers, and birthdates of all employees of a public agency shall not be deemed to be public records and shall not be open to public inspection, except that disclosure of that information may be made as follows:

(1) To an agent, or a family member of the individual to whom the information pertains.

(2) To an officer or employee of another public agency when necessary for the performance of its official duties.

(3) To an employee organization pursuant to regulations and decisions of the Public Employment Relations Board, except that the home addresses and any phone numbers on file with the employer of employees performing law enforcement-related functions, and the birthdate of any employee, shall not be disclosed.

(4) To an agent or employee of a health benefit plan providing health services or administering claims for health services to public agencies and their enrolled dependents, for the purpose of providing the health services or administering claims for employees and their enrolled dependents.

(b) (1) Unless used by the employee to conduct public business, or necessary to identify a person in an otherwise disclosable communication, the personal email addresses of all employees of a public agency shall not be deemed to be public records and shall not be open to public inspection, except that disclosure of that information may be made as specified in paragraphs (1) to (4), inclusive, of subdivision (a).

(2) This subdivision shall not be construed to limit the public’s right to access the content of an employee’s personal email that is used to conduct public business, as decided by the Supreme Court in City of San Jose v. Superior Court (2017) 2 Cal.5th 608.

(c) Upon written request of any employee, a public agency shall not disclose the employee’s home address, home telephone number, personal cellular telephone number, personal email address, or birthdate pursuant to paragraph (3) of subdivision (a) and an agency shall remove the employee’s home address, home telephone number, and personal cellular telephone number from any mailing list maintained by the agency, except if the list is used exclusively by the agency to contact the employee.

Comment: Where disclosure is necessary to identify a public employee or the public employee is carrying out the public’s business using personal devises, such as a cell phone or private email account, this exemption is not applicable.

 

Section 7928.400: Every employment contract between a state or local agency and any public official or public employee is a public record that is not subject to Section 7922.000 and the provisions listed in Section 7920.505.

 

Comment: This provision is not an exemption. Citation to this section is helpful when a public agency denies access to agency employment contracts.

 

Section 7928.405:

(a) Except as provided in Section 7924.510, 7924.700 and 7929.610, this division does not require the disclosure of records of  state agencies related to activities governed by Chapter 10.3 (commencing with Section 3512), Chapter 10.5 (commencing with Section 3525), and Chapter 12 (commencing with Section 3560) of Division 4, and Article 19.5 (commencing with Section 8430) of Chapter 2 of Part 6 of Division 1 of Title 1 of the Education Code, that reveal a state agency's deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy, or that provide instruction, advice, or training to employees who do not have full collective bargaining and representation rights under that chapter.

(b) This section shall not be construed to limit the disclosure duties of a state agency with respect to any other records relating to the activities governed by the employee relations acts referred to in this section.

Section 7928.410:

 

(a) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require the disclosure of records of local agencies related to activities governed by Chapter 10 (commencing with Section 3500) of Division 4, that reveal a local agency’s deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy, or that provide instruction, advice, or training to employees who do not have full collective bargaining and representation rights under that chapter.

 

(b) This section shall not be construed to limit the disclosure duties of a local agency with respect to any other records relating to the activities governed by the employee relations act referred to in this section.

Comment: The referenced statutes are provisions of the Government Code relating to state and local agency employer-employee relations. The representatives of a state or local agency need not disclose to the public records concerning their tactics, analysis or strategy in employee relations. In Freedom Foundation v. Superior Court, 87 Cal. App. 5th 47, 302 Cal. Rptr. 3d 655, 661 (2022), the court rejected an argument that the categories of records listed under this exemption were all required to be deliberative in nature to be exempt.

Public Entity Spending, Finances, and Oversight (Ch. 15 of Part 5 of Div. 10).

 

Section 7928.700: Notwithstanding any contract term to the contrary, a contract entered into by a state or local agency subject to this division, including the University of California, that requires a private entity to review, audit, or report on any aspect of that agency shall be public to the extent the contract is otherwise subject to disclosure under this division.

 

Comment: This section is not an exemption; rather, it is an expression of an affirmative disclosure obligation unless the contract is otherwise exempt under an express provision of the CPRA.

Section 7928.705:

 

(a) Except as provided in subdivision (b) and in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of the contents of real estate appraisals or engineering or feasibility estimates and evaluations made for or by a state or local agency relative to the acquisition of property, or to prospective public supply and construction contracts, until all of the property has been acquired or all of the contract agreement obtained.

 

(b) This section does not affect the law of eminent domain.

Comment:  There are no reported cases discussing this exemption.

Regulation of Financial Institutions and Securities (Ch. 16 of Part 5 of Div. 10).

Section 7929.000: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records contained in, or related to, any of the following:

(a) Applications filed with any state agency responsible for the regulation or supervision of the issuance of securities or of financial institutions, including, but not limited to, banks, savings and loan associations, industrial loan companies, credit unions and insurance companies.

(b) Examination, operating, or condition reports prepared by, on behalf of, or for the use of, any state agency referred to in subdivision (a)).

(c) Preliminary drafts, notes or interagency or intra-agency communications prepared by, on behalf of, or for the use of, any state agency referred to in subdivision (a).

(d) Information received in confidence by any state agency referred to in subdivision (a).

Comment: There are no California reported court decisions interpreting this section. . Cases decided under the companion section of the federal Freedom of Information Act, 5 U.S.C. § 552(b)(8), generally apply this exemption liberally in favor of nondisclosure. One federal appeals court has even held that financial reports concerning a closed bank require the same protection from disclosure as those of an operating bank. Gregory v. Fed. Deposit Ins. Corp., 631 F.2d 896, 203 U.S. App. D.C. 314 (D.C. Cir. 1980).

Security Measures and Related Matters (Ch. 17 of Part 5 of Div. 10).

Section 7929.200:  Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of a document prepared by or for a state or local agency that satisfies both of the following conditions:

(a) It assesses the agency’s  vulnerability to terrorist attack or other criminal acts intended to disrupt the public agency's operation.

(b) It  is for distribution or consideration in a closed session.

Comment: This exemption was adopted in response to concerns after the terrorist attacks on Sept. 11, 2001. There are no reported cases discussing this exemption.

Section 7929.205:

(a) As used in this section, “voluntarily submitted” means submitted without the Office of Emergency Services exercising any legal authority to compel access to, or submission of, critical infrastructure information.

(b) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of critical infrastructure information, as defined in Section 131(3) of Title 6 of the United States Code, that is voluntarily submitted to the Office of Emergency Services for use by that office, including the identity of the person who, or entity that, voluntarily submitted the information. 

(c) This section does not affect the status of information in the possession of any other state or local governmental agency.

Comment: This exemption has generated no reported decisions.  But see Cty. of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 89 Cal. Rptr. 3d 374 (2009) (holding that federal Critical Infrastructure Information Act did not prohibit county from disclosing GIS basemap data under the CPRA where data had been submitted by the county to federal government, not to the county).

Section 7929.210:

(a) Nothing in this division requires the disclosure of an information security record of a public agency, if, on the facts of the particular case, disclosure of that record would reveal vulnerabilities to, or otherwise increase the potential for an attack on, an information technology system of a public agency.

(b) Nothing in this section limits public disclosure of records stored within an information technology system of a public agency that are not otherwise exempt from disclosure pursuant to this division or any other law.

Comment: There are no reported cases discussing this exemption.

State Compensation Insurance Fund (Ch. 18 of Part 5 of Div. 10).

Section 7929.400: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records of the State Compensation Insurance Fund that relate to claims pursuant to Chapter 1 (commencing with Section 3200) of Part 1 of Division 4 of the Labor Code, to the extent that confidential medical information or other individually identifiable information would be disclosed.

Section 7929.405: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records of the State Compensation Insurance Fund that  relate to the impressions, opinions, recommendations, meeting minutes of meetings or sessions that are lawfully closed to the public, research, work product, theories, or strategies of the fund or its staff, on the development of rates, contracting strategy, underwriting, or competitive strategy pursuant to the powers granted to the fund in Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code.

Section 7929.415: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records of the State Compensation Insurance Fund  obtained to provide worker’s compensation insurance under Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code, including, but not limited to, all of the following:

(a) Any medical claims information.

(b) Policyholder information provided that this section shall not be  interpreted to prevent an insurance agent or broker from obtaining proprietary information or other information authorized by law to be obtained by the agent or broker.

(c) Information on rates, pricing, and claims handling received from brokers.

Section 7929.420:

(a) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records of the State Compensation Insurance Fund that are trade secrets pursuant to Section 7930.205, or  Article 11 (commencing with Section 1060) of Chapter 4 of Division 8 of the Evidence Code, including, without limitation, instructions, advice, or training provided by the State Compensation Insurance Fund to its board members, officers, and employees regarding the fund’s special investigation unit, internal audit unit, and informational security, marketing, rating, pricing, underwriting, claims handling, audits, and collections.

(b) Notwithstanding subdivision (a), the portions of records containing trade secrets shall be available for review by the Joint Legislative Audit Committee, California State Auditor’s Office, Division of Workers’ Compensation, and the Department of Insurance to ensure compliance with applicable law.

Section 7929.425:

(a) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records of internal audits of the State Compensation Insurance Fund containing proprietary information, or the following records of the State Compensation Insurance Fund that are related to an internal audit:

(1) Personal papers and correspondence of any person providing assistance to the fund when that person has requested in writing that the person’s  papers and correspondence be kept private and confidential.  Those papers and correspondence shall become public records if the written request is withdrawn, or upon order of the fund.

(2) Papers, correspondence, memoranda, or any substantive information pertaining to any audit not completed or an internal audit that contains proprietary information.

(b) Notwithstanding subdivision (a), the portions of records containing proprietary information, or any information specified in subdivision (a) shall be available for review by the Joint Legislative Audit Committee, California State Auditor’s Office, Division of Workers’ Compensation, and the Department of Insurance to ensure compliance with applicable law.

Section 7929.430:

(a) For purposes of this paragraph, “fully executed” means the point in time when all of the necessary parties to the contract have signed the contract.

(b) Except as provided in subdivision (d), records of the State Compensation Insurance Fund that are contracts entered into pursuant to Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code shall be open to inspection one year after the contract has been fully executed.

(c) If a contract entered into pursuant to Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code is amended, the amendment shall be open to inspection one year after the amendment has been fully executed.

(d) Three years after a contract or amendment is open to inspection pursuant to this section, the portion of the contract or amendment containing the rates of payment shall be open to inspection.

(e) Notwithstanding any other law, the entire contract or amendment to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendment thereto until the contract or amendment is open to inspection pursuant to this section.

(f) This section does not  apply to a document related to a contract with a public entity that is not otherwise expressly confidential as to that public entity.

Comment: The above sections under Chapter 18 pertaining to the State Compensation Insurance Fund were all formerly under Section 6254(ad) of the Government Code.  There are no reported cases discussing the exemptions under this chapter.

Test Materials, Testing Results, and Related Matters (Ch. 19 of Part 5 of Div. 10).

Section 7929.605: Except as provided in Sections 7924.510, 7924.700, and 7929.610, and in Chapter 3 (commencing with Section 99150) of Part 65 of Division 14 of Title 3 of Education Code, this division does not require disclosure of test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination.

Comment: The Education Code sections referred to in this section address standardized tests for admission to post-secondary institutions, such as the Scholastic Aptitude Test (SAT) and similar examinations. Copies of tests, answers, scores and related documents and information that are required to be filed with the California Post-Secondary Education Commission are exempt from disclosure under this section.

Public records not subject to the act

(1) The following records are specifically exempt from disclosure under the Act, except that such records, other than letters of reference concerning employment, licensing, or issuance of permits, shall be available to the person in interest.

1. Medical, psychological, sociological, and scholastic achievement data on individual persons, other than scholastic achievement data submitted as part of finalists’ records as set forth in Colo. Rev. Stat. § 24-72-204(3)(a)(XI). Colo. Rev. Stat. § 24-72-204(3)(a)(I).

This does not include coroners’ autopsy reports.

Nor does it include group scholastic data from which the individual cannot be identified. See Sargent School Dist. No. RE-33J v. Western Services Inc., 751 P.2d 56 (Colo. 1988). However, individual scholastic data may not be disclosed under the Open Records Act even if the individuals’ names have been deleted. Id. The schools have no implied duty to convert individual scholastic data into group scholastic data documents.

1. Personnel files. Colo. Rev. Stat. § 24-72-204(3)(a)(II).

"Personnel files,” as defined by Colo. Rev. Stat. § 24-72-202(4.5), means and includes home addresses, telephone numbers, financial information, and other [similarly private] information maintained because of the employer-employee relationship, including other documents specifically exempt from disclosure by law. Only information that is akin to an employee’s home address, telephone number and personal financial information is properly classified as “personnel file.” Daniels v. City of Commerce City, 988 P.2d 648, 651 (Colo. App. 1999).

"Personnel files,” as defined by Colo. Rev. Stat. § 24-72-202(4.5), does not include applications of past or current employees, employment agreements, any amount paid or benefit provided incident to termination of employment, performance ratings, final sabbatical reports required under Colo. Rev. Stat. § 23-5-123, or any compensation, including expense allowances and benefits, paid to employees by the state, its agencies, institutions, or political subdivisions. Because employment applications are public records, an applicant cannot waive the right to information concerning denial of an application for employment. Carpenter v. Civil Service Commission, 813 P.2d 773 (Colo. App. 1990).

Employment records concerning the terms of employment and compensation of employees, including agreements made in settlement of disputed claims, are public records. Denver Publishing Co. v. University of Colorado, 812 P.2d 682 (Colo. App. 1990; Freedom Colo. Info. Inc. v. City of Colo. Springs, 37 Med.L.Rptr. (BNA) 1639 (Ct. App. Feb. 26, 2009) (requiring disclosure of employment agreements for two heart-lung surgeons on staff at public hospital);  See Colo. Rev. Stat. § 24-72-204(3)(a)(II)(B).

Records of an employee’s absence from the workplace are public records, including the reason given for the absence. Jefferson Cty. Educ. Assoc. v. Jefferson Cty. Sch. Dist., 378 P.3d 835, 839 (Colo. App. 2016) (requiring disclosure of records showing names of high-school teachers who reported in sick on particular days).

Only documents that are actually present in an employee’s personnel file are exempt from disclosure under the Act. Denver Post v. Univ. of Colo., 739 P.2d 874, 878 (Colo. App. 1987). A public employer cannot restrict access to documents that are otherwise subject public records merely by placing them in an employee’s personnel file; such records must implicate an employee’s personal privacy to qualify as a “personnel record.” Denver Publ'g Co. v. Univ. of Colo., 812 P.2d 682 (Colo. App. 1990).

Personnel files are available to the person in interest and to duly elected and appointed public officials who supervise the employee’s work. Colo. Rev. Stat. § 24-72-204(3)(a)(II)(A). See Ornelas v. Dep't of Institutions, 804 P.2d 235 (Colo. App. 1990).

1. Letters of reference. Colo. Rev. Stat. § 24-72-204(3)(a)(III). Letters of reference concerning employment, licensing or issuance of permits are not available to the person in interest. Colo. Rev. Stat. § 24-72-204(3)(a). City of Westminster v. Dogan Constr. Co., 930 P.2d 585 (Colo. 1997) (telephone survey notes of references are “letters of reference").
2. Trade secrets, Colo. Rev. Stat. § 24-72-204(3)(a)(IV), including privileged information and confidential commercial, financial, geological or geophysical data furnished by or obtained from any person. See Griffin v. S.W. Devanney & Co., 775 P.2d 555 (Colo. 1989); International Bhd. of Elec. Workers Local 68 v. Denver Metro. Major League Baseball Stadium Dist., 880 P.2d 160 (Colo. App. 1994); Zubeck v. El Paso Cty. Ret. Plan, 961 P.2d 597 (Colo. App. 1998) (only information obtained from private parties is subject to this exemption, not information generated by the government itself).
3. Information about library and museum material contributed by private persons, Colo. Rev. Stat. § 24-72-204(3)(a)(V), but only to the extent of any limitations placed on such information as a condition of contribution. Thus, the identity of an anonymous donor may not be divulged if anonymity of the donor is a condition of the gift or loan.
4. Addresses and telephone numbers of students in public elementary and secondary schools. Colo. Rev. Stat. § 24-72-203(3)(a)(VI).
5. Library records disclosing the identity of a user. Colo. Rev. Stat. § 24-72-203(3)(a)(VII); Colo. Rev. Stat. § 24-90-119 (see below).
6. Records disclosing the addresses, telephone numbers, and personal financial information of past or present users of public utilities, public facilities, or recreational or cultural services owned and operated by the state, its agencies, institutions, or political subdivisions. Colo. Rev. Stat. § 24-72-203(3)(a)(IX).
7. Records of sexual harassment complaints and investigations. Colo. Rev. Stat. § 24-72-204(3)(a)(X).

Any records of sexual harassment complaints and investigations that are maintained pursuant to any rule of the general assembly on a sexual harassment policy, whether or not such records are maintained as part of a personnel files, are not open to inspection. Colo. Rev. Stat. § 24-72-204(3)(a)(X)(A). However, an administrative agency investigating the complaint may, upon a showing of necessity, gain access to information necessary to the investigation of such a complaint. Id.

A person in interest, who includes the person making a complaint and the person whose conduct is the subject of such a complaint, may make a record of sexual harassment complaint or investigation available for public inspection when such record supports the claim that an allegation of sexual harassment against such person is false. Colo. Rev. Stat. § 24-72-204(3)(a)(X)(C).

1. Records submitted by or on behalf of an applicant or candidate for an "executive position" who is not a "finalist" if the applicant or candidate makes a written request that the records be kept confidential at the time of submission of the records. Colo. Rev. Stat. § 24-72-204(3)(a)(XI)(A).

"Executive position" is defined by Colo. Rev. Stat. § 24-72-202(1.3) as any non-elective employment position with a state agency, institution, or political subdivision, except employment positions in the state personnel system or in a classified system or civil service system of an institution or political subdivision.

A "finalist" is defined by Colo. Rev. Stat. § 24-72-204(3)(a)(XI)(A) as an applicant or candidate for an executive position as the chief executive officer of a state agency, institution, or political subdivision or agency thereof who is a member of the final group of applicants or candidates made public pursuant to section 24-6-402(3.5); if only three or fewer applicants or candidates for the chief executive officer position possess the minimum qualifications for the position, then said applicants or candidates shall be considered finalists.

Records submitted by or on behalf of an applicant or candidate include records of employment selection processes for all executive positions, including selection processes conducted or assisted by private persons or firms at the request of a state agency, institution, or political subdivision. Colo. Rev. Stat. § 24-72-204(3)(a)(XI)(C).

1. Any record which is deemed confidential or protected from inspection by:

State statute. Colo. Rev. Stat. § 24-72-204(1)(a). (See (B) below.)

Federal statute or regulation. Colo. Rev. Stat. § 24-72-204(1)(b).

Supreme Court rule or court order. Colo. Rev. Stat. § 24-72-204(1)(c).  This includes Chief Justice Directives.

(2) The Custodian of Records has the discretionary authority to deny inspection of the following records on the ground that disclosure would be contrary to the public interest:

1. Test questions, scoring keys, and other examination data pertaining to administration of licensing examinations, examinations for employment, or academic examinations. Colo. Rev. Stat. § 24-72-204(2)(a)(II). See Garner v. Colorado State Dep't of Personnel, 835 P.2d 527 (Colo. App. 1992), cert. denied, 507 U.S. 917 (1993).
2. Specific details of bona fide research projects being conducted by a state institution. Colo. Rev. Stat. § 24-72-204(2)(a)(III).
3. Contents of real estate appraisals made for the state or political subdivision concerning acquisition of property for public use until title to the property has passed to the state or political subdivision. Colo. Rev. Stat. § 24-72-204(2)(a)(IV). The contents of an appraisal are available to the property owner if eminent domain proceedings are brought.
4. Any market analysis data generated by the Department of Transportation's bid analysis and management system for the confidential use of the department for awarding contracts or for the purchase of goods and services, and any records, documents, and automated systems prepared for the bid analysis and management system. Colo. Rev. Stat. § 24-72-204(2)(a)(V).
5. Photographs filed with, maintained by, or prepared by the Department of Revenue pursuant to Colo. Rev. Stat. § 42-2-121(2)(c)(I)(F). Colo. Rev. Stat. § 24-72-204(2)(a)(VI).
6. NOTE: If the right of inspection of any of the above records is allowed to any person in the media, it shall be allowed to all news media. Colo. Rev. Stat. § 24-72-204(2)(b).

(3) "Substantial Injury to the Public Interest."

1. The Open Records Act in Colo. Rev. Stat. § 24-72-204(6) provides that if the official custodian of any public record is of the opinion that disclosure of the contents of a record otherwise subject to disclosure would do "substantial injury to the public interest," the custodian may request the district court to order that disclosure of the record is restricted.
2. Any hearing is to be held "at the earliest practical time." The person seeking to examine the record has a right to appear at the hearing.
3. The custodian has the burden of proving that disclosure would substantially injure the public interest. This is primarily a question of fact. Civil Service Comm’n v. Pinder, 812 P.2d 645 (Colo. 1991). The unique circumstances surrounding a particular record must be so extraordinary that the legislative can be presumed not to have reasonably anticipated such a set of circumstances. See Civil Serv. Comm'n v. Pinder, 812 P.2d 645 (Colo. 1991).
4. If the court determines that disclosure would do "substantial injury to the public interest," the court may restrict access to public records even though such records might otherwise be available to the person in interest or the general public. Civil Service Comm'n v. Pinder, 812 P.2d 645 (Colo. 1991).

Exemption One — “Preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.” Conn. Gen. Stat. §1-210(b)(1).

(1) In 1980, the Supreme Court held that this exemption covers “advisory opinions, recommendations, and deliberations comprising part of the process by which governmental decisions and policies are formulated.” Wilson v. FOIC, 181 Conn. 324, 435 A.2d 353 (1980).

(2) In 1981, the General Assembly effectively overruled Wilson by amending FOIA to state that “[n]otwithstanding the provisions of [Conn. Gen. Stat. §1-210(b)(1) and (16)], disclosure shall be required of: (1) Interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency.” Conn. Gen. Stat. §1-210(e)(1).

(3) In Shew v. FOIC, 245 Conn. 149, 714 A. 2d 664 (1998), the Supreme Court discussed the meaning of the term “preliminary notes or drafts” and held that it does not depend on whether the record is subject to further alteration. The court also held that an attorney hired by a public agency to provide legal advice was analogous to a staff member under Conn. Gen. Stat. §1-210(e)(1), and drafts prepared by her are exempt. Despite this, the record-keeper must review documents to conduct a balancing test as to public interest. See also Coalition to Save Horsebarn Hill v. FOIC, 73 Conn. App. 89, 806 A.2d 1130 (2002), cert. denied, 262 Conn. 932, 815 A.2d 132 (2003) (abandonment of a contemplated project does not automatically require disclosure of preliminary drafts relating thereto; public interest must still be weighed).

(4) In Van Norstrand v. FOIC, 211 Conn. 339, 559 A.2d 200 (1989), the Supreme Court held that a summary of data collected by the Speaker of the House of Representatives concerning judges not scheduled for House consideration for reappointment, which he had not submitted to House members in connection with reappointment deliberations, was exempt (but would not have been if the purpose of the survey had been to compile data on all judges for future House use).

(5) In East Lyme Bd. of Educ. v. FOIC, No. 700617, 1991 WL 28098 (Conn. Super. Jan. 29, 1991), in upholding an order that the board disclose a summary of its oral evaluation of the school superintendent, following which negotiations continued on a mutually acceptable format for the evaluation, the Superior Court held that even when §1-210(b)(1) would exempt a record from disclosure, “if that record crosses the initial threshold for disclosure under [section 1-210(b)(1)] and is not then exempted under the second part of [section 1-210(b)(1)], the record must be disclosed.”

(6) In Bd. of Trustees v. FOIC, No. CV 91-05030535, 1992 WL 154367 (Conn. Super. June, 18, 1992), the Superior Court held that the responsibility for making the requisite public interest determination is vested by §1-210(b)(1) in the agency, and its decision to withhold can only be overruled if the FOIC finds it abused its discretion or its reasons for withholding are frivolous or patently unfounded. See Shew v. FOIC, 245 Conn. 149 (1998), where the Supreme Court noted that “the agency may not abuse its discretion in making the decision to withhold disclosure. The agency must, therefore, indicate the reasons for its determination to withhold disclosure and those reasons must not be frivolous or patently unfounded” (quoting Wilson v. FOIC, 181 Conn. 324 (1980)).

(7) The FOIC has held that a budget director’s notes on a yellow legal pad, from which he prepared a memorandum, are exempt from disclosure under Conn. Gen. Stat. §1-210(b)(1) as preliminary drafts. Williams v. City of Hartford, Do. #FIC 85-101 (Oct. 23, 1985); see also Boynton v. Town of Westport, Do. #FIC 86-248 (May 27, 1986) (preliminary notes are exempt from disclosure; Lewin v. FOIC, No. CV 03-0522443, 2004 WL 2284250 (Conn. Super. Sept. 20, 2004) (holding that handwritten notes made by acting chairman of town ethics committee were exempt from disclosure under Conn. Gen. Stat. §1-210(b)(1)).

(8) In Hartford Bd. of Educ. v. FOIC, No. CV 95-0550463, 1996 WL 176354 (Conn. Super. Mar. 29, 1996) the Superior Court ruled that a draft request for proposals submitted by a task force to the plaintiff board was not exempt under Conn. Gen. Stat. § §1-210(b)(1) or (e) because it was not a preliminary draft of what the task force might submit to the board, but rather the text of its final recommendation. The exemption for preliminary drafts under Conn. Gen. Stat. §1-210(b) is only for drafts that the submitter may revise before submission to the agency to which the draft is to be submitted. See also Comm’r of Pub. Works v. FOIC, No. CV 01-0509953S, 2002 WL 853593 (Conn. Super. Apr. 8, 2002) (“last draft” of a contract between the city of Bridgeport and the state that had been submitted to the city council for its action is not preliminary).

(9) In Woodbridge Town Plan & Zoning Comm’n v. FOIC, No. CV 95-0374751, 1996 WL 62643 (Conn. Super. Jan. 25, 1996), the Superior Court held that under Conn. Gen. Stat. §1-210(b)(1) the public interest determination as to disclosure may be made by the agency after it consults with legal counsel and may be based on counsel’s advice.

(10) Public records consisting of preliminary draft documents may be exempt from disclosure under Conn. Gen. Stat. §1-210(b)(1) regardless of their provenance. In Coalition to Save Horsebarn Hill v. FOIC, 73 Conn. App. 89, 806 A.2d 1130 (2002), cert. denied, 262 Conn. 932, 815 A.2d 132 (2003), the Appellate Court held that documents could be labeled preliminary drafts whether initiated by a public agency or private organization. The court upheld the FOIC’s decision that draft agreements between a pharmaceutical company and a public university for construction of a research facility were exempt from disclosure as preliminary drafts despite a dispute about which party had initiated the drafts.

(11) In Strillacci v. FOIC, 2009 Conn. Super. LEXIS 1046 (2009), the court held that a list of lawsuits prepared by the Chief of Police was not preliminary because it was a completed document used by the Chief of Police in his public duties.

Exemption Two — “Personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.” Conn. Gen. Stat. §1-210(b)(2).

(1) In Clerk of Common Council v. Freedom of Info. Comm'n, 215 Conn. App. 404, 283 A.3d 1 (2022), the Appellate Court held that attorney billing records of law firm, which was retained by city to investigate alleged improprieties of mayor, were “similar files,” for purposes of FOIA provision.

(2) In City of Hartford v. FOIC, 201 Conn. 421, 518 A.2d 49 (1986), the Supreme Court held that a public agency must meet “a twofold burden of proof to establish the applicability” of this exemption. First, it must establish that the file is a “personnel or medical or similar file,” and second it must establish that disclosure “would constitute an invasion of privacy.” The court also held that certain internal affairs records of the plaintiff’s police department were not exempt from disclosure.

(3) In Perkins v. FOIC, 228 Conn. 158, 635 A.2d 783 (1993) and Kureczka v. FOIC, 228 Conn. 271, 636 A.2d 777 (1994), the Supreme Court interpreted the statutory phrase “invasion of personal privacy” in accordance with the common law tort standard for disclosure of private but embarrassing facts as reflected in 3 Restatement (Second) Torts, §652D. Therefore, disclosure may be denied only when the information sought does not pertain to legitimate matters of public concern and is highly offensive to a reasonable person (and not merely offensive to the person the data concerns). No public agency can shield public records from disclosure merely by promising to keep them confidential.

(4) In Chairman, Criminal Justice Comm’n v. FOIC, 217 Conn. 193, 585 A.2d 96 (1991), which Perkins and Kureczka would appear to supersede, the Supreme Court had held that “a person’s reasonable expectation of privacy and the potential for embarrassment” were “significant factors in determining if disclosure would constitute an invasion of privacy.” Id. at 198. In considering the Chief State’s Attorney’s “aptitude, attitude, basic competence . . . trustworthiness, ethics, [and] interpersonal relationships . . .” incident to his consideration for reappointment, the court held “disclosure of the report would carry significant potential for embarrassment and that [the Waterbury State’s Attorney] entertained a reasonable expectation of privacy in the information contained in the evaluation,” making disclosure an invasion of privacy “as a matter of law.” Id. at 199-200. The court also ruled that with respect to this exemption, unlike the one in Conn. Gen. Stat. §1-210(b)(1), no balancing test should be applied, thereby overruling its decision in Bd. of Educ. v. FOIC, 210 Conn. 590, 556 A.2d 592 (1989). Id. at 200-201; see also First Selectman v. FOIC, No. CV 99-0493041S, 1999 WL 595726 (Conn. Super. July 28, 1999) (reconciling Perkins and Chairman).

(5) In Rocque v. FOIC, 255 Conn. 651, 774 A.2d 957 (2001) the Supreme Court reiterated that one claiming the exemption must prove both prongs, the facts of each case must be analyzed, and no type of data is always exempt.

(6) In Dep’t of Transp. v. FOIC, No. CV 01-0508810S, 2001 WL 1734436 (Conn. Super. Dec. 21, 2001), the Superior Court acknowledged that a summary of a sexual harassment investigation was a “similar document” for the purposes of Conn. Gen. Stat. §1-210(b)(2), but held that it must be disclosed, with certain identifying information redacted. In reaching its decision, the court followed Rocque and Perkins.

(7) In West Hartford v. FOIC, 218 Conn. 256, 588 A.2d 1368 (1991), the Supreme Court held that the FOIC could take judicial notice of the fact that, as a general rule, addresses are available in public directories, so that disclosure of retirees’ addresses would not per se constitute an invasion of personal privacy. The court recognized, however, that if a retiree took significant efforts to keep his or her name inaccessible, that retiree might have a reasonable expectation of privacy in the address so that disclosure would in fact constitute an invasion of privacy. See also Dir., Retirement & Benefit Servs. Div. v. FOIC, 256 Conn. 764, 775 A.2d 981 (2001) (holding that home addresses of employees of the state banking department were exempt from disclosure because the employees had also taken significant efforts to keep their addresses private).

(8) In First Selectman v. FOIC, No. CV 99-0493041S, 1999 WL 595726 (Conn. Super. July 28, 1999), the Superior Court held that certain employee evaluations were not legitimate subjects of public concern because they were conducted in confidential circumstances, but that the evaluations were not exempt because the plaintiffs had failed to demonstrate that disclosure would be highly offensive to a reasonable person.

(9) In Chairman, Bd. of Educ. v. FOIC, No. CV 97-0575674, 1998 WL 832415 (Conn. Super. Nov. 20, 1998), the Superior Court held that a public agency did not have standing to assert this exemption and that only the employee had this right under Conn. Gen. Stat. §1-214 (which provides a procedure for notifying an employee of a request for a personnel or medical file or similar file). The court also held that records pertaining to the evaluation of the superintendent of schools were not exempt under this exemption. See also Conn. Gen. Stat. §10-151c (teacher performance records are exempt; applies to all employees “below the rank of superintendent”).

(10) In Dep’t of Children & Families v. FOIC, 48 Conn. App. 467, 710 A.2d 1378 (1998), cert. denied, 245 Conn. 911, 718 A.2d 16 (1998), the Appellate Court held that the names of disciplined employees were a matter of public concern, and therefore not exempt under this exemption. Note that Conn. Gen. Stat. §1-217(a)(8) provides that the residential address of an employee of the Department of Children and Families is not subject to FOIA.

(11) In Conn. Alcohol & Drug Abuse Comm’n v. FOIC, 233 Conn. 28, 657 A.2d 630 (1995), the Supreme Court found that an investigative file of a sexual harassment complaint by an employee against a coworker was a file “similar” to a “personnel file” in that it may contain information that would ordinarily be considered in making personnel decisions regarding the individuals involved. See also Almeida v. FOIC, 39 Conn. App. 154, 664 A.2d 322 (1995); Armstrong v. FOIC, Nos. CV 96-0563608, CV 96-0565853, 1997 WL 433957 (Conn. Super. July 23, 1997).

(12) In Corporation Counsel’s Office v. FOIC, 3 CSCR 337 (1988), a pre-Chairman decision, the Superior Court upheld release of data on the criminal record and physical defects and major illnesses in the last five years contained in a policeman’s pre-employment application. The court also ruled that the motives of the one seeking the data are irrelevant. See also Pers. Dir. v. FOIC, 3 CSCR 338 (1988).

(13) In City of Bristol v. FOIC, 9 Conn. L. Trib. No. 40 (1983), the Superior Court held that park employees did not assume the role of a public official so as to relinquish their right to privacy and that the employees’ discipline records were exempt from disclosure under this exemption.

(14) In Town of Glastonbury v. FOIC, 9 Conn. L. Trib. No. 6 (1982), the Superior Court held that a directory listing the names and addresses of teachers is not exempt from disclosure under this exemption since the information is neither vital nor intimate and the disclosure would not constitute an invasion of privacy, even if used for commercial purposes.

(15) In Town of Wallingford v. FOIC, 7 Conn. L. Trib. No. 29 (198l), the Superior Court held that a list of delinquent water accounts was not exempt from disclosure since it was not a “similar file” within the meaning of this exemption.

(16) In Town of South Windsor v. FOIC, 5 Conn. L. Trib. No. 5 (1979), the Superior Court held that teachers are “limited public officials” and therefore relinquish certain privacy rights. The Superior Court also applied a five-part balancing test with respect to the teachers’ right of privacy versus the public’s right to know and held that the names of nontenured teachers whose contracts were not renewed were not exempt from disclosure.

(17) In Town of Bloomfield v. FOIC, 4 Conn. L. Trib. No. 31 (1978), the Superior Court held that this exemption should be analyzed under the common-law tort doctrine of the right to privacy; i.e., has there been (1) an intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs, (2) a public disclosure of embarrassing private facts about the plaintiff, (3) publicity which places the plaintiff in a false light in the public eye, or (4) appropriation for the defendant’s advantage, of the plaintiff’s likeness. The Superior Court also held that public officials — in this case police officers — relinquish at least a portion of their right to privacy and that the information requested, the names of the police officers, which was contained in the officers’ personnel files, was not exempt from disclosure under this exemption.

(18) In New Haven Chief of Police v. FOIC, 2 Conn. Ops. 572 (Conn. Super. 1996), the Superior Court held that under Conn. Gen. Stat. §1-210(b)(2), unless the character of the documents in question is conceded by the parties, the FOIC may be required to inspect them in camera (citing Wilson v. FOIC, 181 Conn 324, 340 (1980)).

(19) In Cracco v. FOIC, Nos. CV 94-0705369S, CV 94-0705370S, CV 94-0705371S, 1995 WL 514468 (Conn. Super. Aug. 18, 1995), the Superior Court held that copies of records of complaints filed against a local school teacher and the result of any investigation and action taken were not exempt under either Conn. Gen. Stat. §1-210(b)(2) or §10-151c.

(20) In Dep’t of Pub. Safety, Div. of State Police v. FOIC, 242 Conn. 79, 698 A.2d 803 (1997), the Supreme Court affirmed the trial court, holding that reports regarding a citizen’s complaint of police assault and use of excessive force by a police officer were not exempt from disclosure under Conn. Gen. Stat. §1-210(b)(2); however, reports regarding a citizen’s complaint that state trooper was involved in an inappropriate relationship with the complainant’s wife were exempt from disclosure.

(21) In Hemmings v. FOIC, No. CV 96-0561457S, 1996 WL 715405 (Conn. Super. Dec. 4, 1996), the Superior Court affirmed the FOIC’s decision that it did not have subject matter jurisdiction over a complaint pursuant to Conn. Gen. Stat. §17a-548(b), which addresses the rights of a patient to access his or her own medical records.

(22) The FOIC has held that only certain information in a job application is disclosable as a result of this exemption in order to protect the employee’s privacy rights: (1) name; (2) address; (3) business telephone number; (4) previous employment history; (5) educational background; (6) references; (7) motor vehicle conduct; (8) military information; and (9) the employee’s signature and date of the application. Mozzochi v. Town of Glastonbury, Do. #FIC 86-253 (Dec. 16, 1986).

(23) When a public agency receives a request for personnel or medical files and similar files and the agency reasonably believes that disclosure would legally constitute an invasion of privacy, FOIA requires the agency to put the employee and the employee’s collective bargaining representative, if any, on notice of the request and provide an opportunity for objection. If the employee or representative does object, the public agency is required not to disclose the documents unless ordered to do so by the FOIC. Conn. Gen. Stat. §1-214(b) and (c).

(24) In Davis v. FOIC, 787 A.2d 530, 259 Conn. 45 (2002), a case of first impression, the Connecticut Supreme Court held that a town tax assessor was not prohibited from disclosing information contained in records received from the Department of Motor Vehicles to an insurance investigator. The insurance investigator wished to examine the town’s motor vehicle “grand list,” which contained the names and addresses of motor vehicle owners, and the court concluded that this information was not exempt under FOIA.

(25) In Dep't. of Public Safety v. FOIC, 2009 Conn. Super. LEXIS 509 (2009), the court held that a police report of a suicide was not a personnel, medical or similar file under Conn. Gen. Stat. §1-210(b)(2).

Exemption Three — “Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known, (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action, (D) investigatory techniques not otherwise known to the general public, (E) arrest records of a juvenile, which shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes, (F) the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b, or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof, or (G) uncorroborated allegations subject to destruction pursuant to section 1-216.” Conn. Gen. Stat. §1-210(b)(3).

(1) In Sedensky v. Freedom of Info. Comm'n, HHBCV136022849S, 2013 WL 6698055, at *18 (Conn. Super. Ct. Nov. 26, 2013), the Superior Court rejected the argument that the 911 recordings from the Sandy Hook shooting were “signed statements of witnesses” stating that the argument bordered on “frivolous.”

(2) In Kirschner v. FOIC, No. CV 97-0567162, 1998 WL 27829 (Conn. Super. Jan. 15, 1998), the Superior Court held that the plaintiff failed to prove the applicability of this exemption to an internal investigation report.  See also Davis v. FOIC, 47 Conn. Sup. 309, 790 A.2d 1188 (2001), aff'd 259 Conn. 45, 787 A.2d 530 (2002).

(3) In Bona v. FOIC, No. CV 94-0123411S, 1995 WL 491386 (Conn. Super. Aug. 10, 1996), the Superior Court held that a police report concerning an alleged incident at the home of the ex-wife of a gubernatorial candidate was exempt under Conn. Gen. Stat. § §1-210(b)(3)(G) and 1-202 after the court conducted an in camerareview of the documents in question and found that the report contained an allegation that an individual had engaged in criminal activity, though no arrest was made. The Appellate Court affirmed this decision, holding that records of uncorroborated allegations are not to be disclosed during the 15-month period in which corroboration is sought, that disclosure would not be in the public interest, and that no balancing is required. Bona v. FOIC, 44 Conn. App. 622, 691 A.2d 1 (1997).

(4) In Maher v. FOIC, 192 Conn. 310, 472 A.2d 321 (1984), the Supreme Court held that the Department of Income Maintenance was not a law enforcement agency for purposes of this exemption even though it transmits information to a state fraud control unit.

(5) In Comm’r of Motor Vehicles v. FOIC, 6 Conn. L. Trib. No. 6 (1979), the Superior Court held that the term “crime” should be construed according to its commonly understood usage and that an infraction is a crime within the meaning of this exemption. See also Records Outlineat III.J

(6) In Dep’t of Pub. Safety v. FOIC, 51 Conn. App. 100, 720 A. 2d 268 (1998), the Appellate Court held that subsection (C) is not satisfied by a mere good faith assertion that the matter is potentially criminal. There must be an “evidentiary showing” that the “actual information sought is going to be used in a law enforcement action” and “that the disclosure of that information would be prejudicial to that action."

Exemption Four — “Records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled.” Conn. Gen. Stat. §1-210(b)(4). See also Gen. Stat. §1-200(8) and (9) (defining “pending claim” and “pending litigation”).

(1) Conn. Gen. Stat. §1-200(8) and (9) define “pending claims” and “pending litigation” as follows:

(i) “‘Pending claim’ means a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.” Conn. Gen. Stat. §1-200(8).

(ii) “‘Pending litigation’ means (A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (B) the service of a complaint against an agency returnable to a court which seeks to enforce or implement legal relief or a legal right; or (C) the agency’s consideration of action to enforce or implement legal relief or a legal right.” Conn. Gen. Stat. §1-200(9).

(2) In ECAP Construction Co. v. FOIC, No. CV 97-0574054, 1998 WL 470640 (Conn. Super. July 30, 1998), the Superior Court held that a “pending claim” can exist without specifically threatening a lawsuit. A demand for damages under a contract suffices.

(3) In City of Stamford v. FOIC, 241 Conn. 310, 696 A.2d 321 (1997), the Supreme Court held that an investigative report prepared for the City of Stamford concerning issues related to litigation involving Stamford is exempt pursuant to Conn. Gen. Stat. §1-210(b)(4) as “records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party.”

(4) In City of New Haven v. FOIC, 205 Conn. 767, 535 A.2d 1297 (1988), the Supreme Court held that the plaintiff had failed to present evidence showing that invoices for legal services that bear only the attorney’s name and the amount of the billing “pertain to strategy and negotiations” and that the invoices were therefore not exempt from disclosure under this exemption. See also Maxwell v. FOIC, No. CV 99-0497390S, 1999 WL 219874 (Conn. Super. Feb. 15, 2001), aff’d on other grounds, 260 Conn. 143, 794 A.2d 535 (2002) (ordering the disclosure of town counsel’s legal bills despite the relation of some invoices to pending litigation).

Exemption Five — “(A) Trade secrets, which for purposes of the Freedom of Information Act, are defined as information, including formulas, patterns, compilations, programs, devices, methods, techniques, processes, drawings, cost data, or customer lists that (i) derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from their disclosure or use, and (ii) are the subject of efforts that are reasonable under the circumstances to maintain secrecy; and (B) Commercial or financial information given in confidence, not required by statute.” Conn. Gen. Stat. §1-210(b)(5).

(1) In Dep’t of Pub. Utilities v. FOIC, 55 Conn. App. 527, 739 A.2d 328 (1999), the Appellate Court held that a natural gas study was not exempt under this exemption as a trade secret because there was no evidence of a formal confidentiality agreement regarding the study or other discernable measures taken to guard its secrecy.

(2) In Chief of Staff v. FOIC, No. CV 98-0492654S, 1999 WL 643373 (Conn. Super. Aug. 12, 1999), the Superior Court held that this exemption contains two components: trade secrets and commercial or financial information. (Note that this decision was prior to P.A. 00-136, which split this exemption into subsections (A) and (B)).

(3) In Holbrook v. FOIC, No. CV 96-0563515S, 1997 WL 187177 (Conn. Super. Apr. 9, 1997), the Superior Court held that individual reports from shellfish harvesters are exempt from disclosure pursuant to Conn. Gen. Stat. §1-210(b)(5), as the reports are “commercial or financial information given in confidence, not required by statute.”

(4) The Supreme Court found in Dir., Dep’t of Info. Tech. v. FOIC, 274 Conn. 179, 874 A.2d 785 (2005) that computerized data from a town’s geographic information system was not a trade secret because it was data readily available to the public from several other town departments; the requested database was simply a convenient compilation of the information in one place.

(5) In University of Connecticut v. FOIC, 303 Conn. 724 (2012), the Supreme Court held that lists of supporters and potential supporters created by the athletic department and other university departments could be exempt as a trade secret customer list even though the university may not be engaged in a “trade.”

(6) In Allco Renewable Energy Ltd. v. Freedom of Info. Comm'n, 205 Conn. App. 144, 257 A.3d 324 (2021), the Appellate Court held that the Department of Energy and Environmental Protection's answer key document, created to analyze responses to request for proposals  from developers for large-scale clean energy contracts was a trade secret under FOIA because the Department engaged in trade by coordinating RFP and using answer key to analyze multimillion dollar proposals, the purpose of RFP was to obtain significant savings to ratepayers statewide, industry was heavily competitive.

Exemption Six — “Test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examinations.” Conn. Gen. Stat. §1-210(b)(6).

(1) In Stamford v. FOIC, No. CV 99-0497667S, 1999 WL 1212439 (Conn. Super. Dec. 6, 1999), the Superior Court held that a psychological report of a police officer candidate is not exempt under this exemption.

(2) In Washington v. FOIC, No. CV 98-0492644S, 1999 WL 711509 (Conn. Super. Aug. 31, 1999), the Superior Court held that written answers, taped oral answers, and the panelists’ scoring sheets for a fire department promotional examination were “examination data” and therefore exempt from disclosure.

(3) In Town of Glastonbury v. FOIC, 39 Conn. Supp. 257, 476 A.2d 1090 (1984), the Superior Court held that this exemption applies to tests that have already been administered and to tests that have yet to be administered.

(4) In Chairman, Merit Promotional Comm. v. FOIC, 4 CSCR 16 (1988), the Superior Court held that disclosure to those taking merit promotion exams of the evaluation rating forms completed by each rater, showing the name of the rater, does not violate Conn. Gen. Stat. §§5-225 or 1-210(b)(6).

(5) In Conn. Bar Examining Comm. v. FOIC, 4 CSCR 225 (1989), the Superior Court sustained an FOIC order requiring disclosure of the names of those who read, graded, and scored bar exam essay questions. On appeal, the Supreme Court held that records relating solely to the committee’s administrative functions must be made available to the public unless doing so would interfere with performance of committee’s judicial functions, and remanded the case for further findings regarding the impact upon the committee of complying with disclosure order and reasonableness of committee’s refusal in respect to each item sought. Conn. Bar Examining Comm. v. FOIC, 209 Conn. 204, 550 A.2d 663 (1988).

Exemption Seven — “The contents of real estate appraisals, engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned, provided the law of eminent domain shall not be affected by this provision.” Conn. Gen. Stat. §1-210(b)(7).

(1) In City of Hartford v. FOIC, 41 Conn. App. 67, 674 A.2d 462 (1996), the Appellate Court sustained the FOIC’s finding that responses submitted in response to a request for proposals for a construction manager to oversee a school renovation and expansion project were not exempt under Conn. Gen. Stat. §1-210(b)(7).

Exemption Eight — “Statements of personal worth or personal financial data required by a licensing agency and filed by an applicant with such licensing agency to establish the applicant’s personal qualification for the license, certificate or permit applied for.” Conn. Gen. Stat. §1-210(b)(8).

(1) There are no reported court decisions on this exemption.

Exemption Nine — “Records, reports and statements of strategy or negotiations with respect to collective bargaining.” Conn. Gen. Stat. §1-210(b)(9).

(1) In Bloomfield Educ. Ass’n v. Frahm, 35 Conn. App. 384, 646 A.2d 247 (1994), the Appellate Court held that grievances filed under a teacher’s employment contract are not exempt under Conn. Gen. Stat. §1-210(b)(9). But see Boster v. Freedom of Info. Comm’n, 2021 Conn. Super. LEXIS 2059, *6 (finding exemption of a draft collective bargaining agreement due to handwritten notes on it said to reflect the negotiations and strategy thereof).

(2) In East Lyme Teachers Ass’n v. FOIC, No. CV 97-0571973, 1998 WL 310827 (Conn. Super. June 5, 1998), the Superior Court held that the school principal’s response to a grievance was not exempt under this exemption.

Exemption Ten — “Records, tax returns, reports and statements exempted by federal law or state statutes or communications privileged by the attorney-client relationship.” Conn. Gen. Stat. §1-210(b)(10). See also Conn. Gen. Stat §52-146(r) (statute governing confidential attorney-client communications regarding public agencies).

(1) In Harrington v. FOIC, 323 Conn. 1 (2016), the Supreme Court held that communications relating to both business and legal advice are privileged if the “primary purpose” of the communication is legal assistance.

(2) In Shew v. FOIC, 245 Conn. 149, 714 A.2d 664 (1998), the Supreme Court held that the attorney-client privilege applied to municipal entities and it set forth the requirements of the privilege: (i) the attorney must be acting in a professional capacity for the agency; (ii) the communications must be made to the attorney by current employees or officials of the agency; (iii) the communications must relate to the legal advice sought by the agency from the attorney; and (iv) the communications must be made in confidence.

(3) In Lash v. FOIC, 14 A.3d 998 (2011), the Supreme Court held that certain documents were exempt from disclosure under the FOIA because they met the four part test set forth in Shaw.

(4) In Groppo v. FOIC, 4 CSCR 300 (1989), the Superior Court held that Conn. Gen. Stat. §12-15 exempts from disclosure applications filed with the Department of Revenue Services for tax registration numbers.

(5) In City of New Haven v. FOIC, 4 Conn. App. 216, 493 A.2d 283 (1985), the Appellate Court held that the plaintiff had not established that certain attorney invoices submitted to a public agency were within the purview of the attorney-client privilege and that the invoices were therefore not exempt from disclosure under this exemption.

(6) In Lucarelli v. FOIC, No. CV 93-0068988, 1995 WL 151911 (Conn. Super. Mar. 29, 1995), the Superior Court ruled that determining whether certain documents were protected by the attorney-client privilege required an in camera review of them by the FOIC.

(7) In Maxwell v. FOIC, 260 Conn. 143, 794 A.2d 535 (2002), the Supreme Court rejected a plaintiff’s argument that the Conn. Gen. Stat. §1-210(b)(10) was an unconstitutional delegation of power by the legislature to the FOIC in violation of the separation of powers doctrine. The Supreme Court found that the statute did not provide the FOIC with the authority to define the attorney-client privilege.

(8) The Appellate Court ruled that a selectman’s intentional disclosure of a letter from town counsel that was written for the purpose of providing information to the public about a case affecting their beach access rights did not expressly or impliedly waive privilege with respect to any communications regarding the same subject. McLaughlin v. FOIC, 83 Conn. App. 190, 850 A.2d 254, cert denied, 270 Conn. 916, 853 A.2d 530 (2004). The court found that although the letter was created by an attorney hired by the town, it was not privileged because it was created to help a political leader explain the implications of a court decision; therefore, its disclosure did not constitute a waiver.

(9) In Division of Criminal Justice v. FOIC, 2010 Conn. Super. LEXIS 497 (2010), the court held that subpoenas issued to a public agency in connection with an investigatory grand jury were not exempt under Conn. Gen. Stat. §§1-210(b)(10) and 54-47e.

(10) In Danaher v. FOIC, 2008 Conn. Super. LEXIS 2255 (2008), the court held that the reference in the exemption to “federal law” only applies to federal law that “prohibits disclosure.”  The court held that the requested documents, which were prepared by the Department of Homeland Security, were not exempt from disclosure.  See also Chief of Police v. FOIC, 252 Conn. 377, 746 A.2d 1264 (2000) (apply exemption ten by implication).

Exemption Eleven — “Names or addresses of students enrolled in any public school or college without the consent of each student whose name or address is to be disclosed who is eighteen years of age or older and a parent or guardian of each such student who is younger than eighteen years of age, provided this subdivision shall not be construed as prohibiting the disclosure of the names or addresses of students enrolled in any public school in a regional school district to the board of selectmen or town board of finance, as the case may be, of the town wherein the student resides for the purpose of verifying tuition payments made to such school.” Conn. Gen. Stat. §1-210(b)(11).

(1) In Univ. of Conn. v. FOIC, 217 Conn. 322, 585 A.2d 690 (1991), the Supreme Court held that this section exempted from disclosure the names of all employees of the University who were also students and whose employment was conditioned on their being students.

(2) In Hartford Bd. of Educ. v. FOIC, No. CV 95-0555646, 1997 WL 15422 (Conn. Super. Jan. 9, 1997), the trial court held that the board was not required to disclose the names and addresses of parents of Hartford school children to the public, because doing so would violate Conn. Gen. Stat. §1-210(b)(11). The court reasoned that “it requires no stretch of imagination to see that the disclosure of the names and addresses of parents will more often than not reveal at least the surnames and the addresses of their children.” Id. at *2.

(3) In Eastern Conn. State Univ. v. FOIC, No. CV 96-0556097, 1996 WL 580966 (Conn. Super. Sept. 30, 1996), the Superior Court affirmed the FOIC’s decision that audio tapes of a student disciplinary hearing are public records and subject to public disclosure.

Exemption Twelve — “Any information obtained by the use of illegal means.” Conn. Gen. Stat. §1-210(b)(12).

(1) In State Dep’t of Admin. Servs. v. FOIC, No. CV 95-550049, 1996 WL 88490 (Conn. Super. Feb. 9, 1996), the Superior Court upheld the decision of the FOIC rejecting the premise that if legally obtained information is illegally disclosed the collection of the information would be rendered illegal. The FOIC had ordered disclosure of data sheets provided to applicants who sat for a Librarian 1 examination which indicated handicapped status. The Superior Court stated that the argument amounts to a claim that disclosure is illegal, a separate issue from the legality of the collection of the information, which the court determined was legal.

Exemption Thirteen — “Records of an investigation or the name of an employee providing information under the provisions of section 4-61dd [disclosure of information to auditors of public accounts].” Conn. Gen. Stat. §1-210(b)(13).

(1) Note that this exemption is referred to by courts as the whistle-blower exemption and is significant for its coverage of both the “records of an investigation” and the name of the employee providing information under the statute. Rocque v. FOIC, No. CV 98-0492734S, 1999 WL 1268150 (Conn. Super. Nov. 30, 1990), aff’d in part, rev’d in part, 255 Conn. 651, 774 A.2d 957 (2001).

(2) In Office of the Attorney General v. FOIC, 2011 Conn. Super. LEXIS 129 (2011), the court held that by its plain language and its relationship to Conn. Gen. Stat. §1-210(b)(13), Conn. Gen. Stat.§4-61dd(a) does not require the release of records of a whistleblower investigation upon the conclusion of the investigation.

Exemption Fourteen — “Adoption records and information provided for in sections 45a-746, 45a-750 and 45a-751 [certain information pertaining to adoption].” Conn. Gen. Stat. §1-210(b)(14).

(1) There are no reported court decisions on this exemption.

Exemption Fifteen — “Any page of a primary petition, nominating petition, referendum petition or petition for a town meeting submitted under any provision of the general statutes or of any special act, municipal charter or ordinance, until the required processing and certification of such page has been completed by the official or officials charged with such duty after which time disclosure of such page shall be required.” Conn. Gen. Stat. §1-210(b)(15).

(1) There are no reported court decisions on this exemption.

Exemption Sixteen — “Records of complaints, including information compiled in the investigation thereof, brought to a municipal health authority pursuant to chapter 368e or a district department of health pursuant to chapter 368f, until such time as the investigation is concluded or thirty days from the date of receipt of the complaint, whichever occurs first.” Conn. Gen. Stat. §1-210(b)(16).

(1) There are no reported court decisions on this exemption.

Exemption Seventeen — “Educational records which are not subject to disclosure under the Family Educational Rights and Privacy Act, 20 USC 1232g.” Conn. Gen. Stat. §1-210(b)(17).

(1) There are no reported court decisions on this exemption.

Exemption Eighteen — “Records, the disclosure of which the Commissioner of Correction, or as it applies to Whiting Forensic Division facilities of the Connecticut Valley Hospital, the Commissioner of Mental Health and Addiction Services, has reasonable grounds to believe may result in a safety risk, including the risk of harm to any person or the risk of an escape from, or a disorder in, a correctional institution or facility under the supervision of the Department of Correction or Whiting Forensic Division facilities. Such records shall include, but are not limited to:

(A) Security manuals, including emergency plans contained or referred to in such security manuals;

(B) Engineering and architectural drawings of correctional institutions or facilities or Whiting Forensic Division facilities;

(C) Operational specifications of security systems utilized by the Department of Correction at any correctional institution or facility or Whiting Forensic Division facilities, except that a general description of any such security system and the cost and quality of such system may be disclosed;

(D) Training manuals prepared for correctional institutions and facilities or Whiting Forensic Division facilities that describe, in any manner, security procedures, emergency plans or security equipment;

(E) Internal security audits of correctional institutions and facilities or Whiting Forensic Division facilities;

(F) Minutes or recordings of staff meetings of the Department of Correction or Whiting Forensic Division facilities, or portions of such minutes or recordings, that contain or reveal information relating to security or other records otherwise exempt from disclosure under this subdivision;

(G) Logs or other documents that contain information on the movement or assignment of inmates or staff at correctional institutions or facilities; and

(H) Records that contain information on contacts between inmates, as defined in section 18-84, and law enforcement officers. Conn. Gen. Stat. §1-210(b)(18).

(1) In Dep't. of Correction v. FOIC, 2008 Conn. Super. LEXIS 2724 (2008), the court stated that the FOIC may review the Commissioner's determination under this exemption for “reasonableness.”  The court held that the Commissioner's determination must be upheld unless it was pretextual and not bona fide or irrational.

(2) In Tillman v. FOIC, 2008 Conn. Super. LEXIS 2120 (2008), the court held that the “risk of harm” referred to in the exemption did not include purely psychological harm unrelated to issues of prison safety and security.

(3) In Dep't. of Correction v. FOIC, 2007 Conn. Super. LEXIS 1742 (2007), the court held that the Commissioner of Corrections is the person to determine whether there is “reasonable grounds” for the exemption to apply.

Exemption Nineteen — “Records when there are reasonable grounds to believe disclosure may result in a safety risk, including the risk of harm to any person, any government-owned or leased institution or facility or any fixture or appurtenance and equipment attached to, or contained in, such institution or facility, except that such records shall be disclosed to a law enforcement agency upon the request of the law enforcement agency. Such reasonable grounds shall be determined (A) with respect to records concerning any executive branch agency of the state or any municipal, district or regional agency, by the Commissioner of Public Works, after consultation with the chief executive officer of the agency; (B) with respect to records concerning Judicial Department facilities, by the Chief Court Administrator; and (C) with respect to records concerning the Legislative Department, by the executive director of the Joint Committee on Legislative Management. As used in this section, ‘government-owned or leased institution or facility’ includes, but is not limited to, an institution or facility owned or leased by a public service company, as defined in section 16-1, a certified telecommunications provider, as defined in section 16-1, a water company, as defined in section 25-32a, or a municipal utility that furnishes electric, gas or water service, but does not include an institution or facility owned or leased by the federal government, and ‘chief executive officer’ includes, but is not limited to, an agency head, department head, executive director or chief executive officer. Such records include, but are not limited to:

(i) Security manuals or reports;

(ii) Engineering and architectural drawings of government-owned or leased institutions or facilities;

(iii) Operational specifications of security systems utilized at any government-owned or leased institution or facility, except that a general description of any such security system and the cost and quality of such system, may be disclosed;

(iv) Training manuals prepared for government-owned or leased institutions or facilities that describe, in any manner, security procedures, emergency plans or security equipment;

(v) Internal security audits of government-owned or leased institutions or facilities;

(vi) Minutes or records of meetings, or portions of such minutes or records, that contain or reveal information relating to security or other records otherwise exempt from disclosure under this subdivision;

(vii) Logs or other documents that contain information on the movement or assignment of security personnel at government-owned or leased institutions or facilities;

(viii) Emergency plans and emergency recovery or response plans; and

(ix) With respect to a water company, as defined in section 25-32a, that provides water service: Vulnerability assessments and risk management plans, operational plans, portions of water supply plans submitted pursuant to section 25-32d that contain or reveal information the disclosure of which may result in a security risk to a water company, inspection reports, technical specifications and other materials that depict or specifically describe critical water company operating facilities, collection and distribution systems or sources of supply. Conn. Gen. Stat. §1-210(b)(19).

(1) In People of the Ethical Treatment of Animals v. FOIC, 321 Conn. 805 (2016), the Supreme Court held that the FOIC must defer to the Dept. of Administrative Services determination of a safety risk unless it is frivolous or patently unfounded or was not arrived at in good faith.

(2) A town’s director of information technology refused a request for copies of computerized data from a town’s geographic information system based on exemptions including Conn. Gen. Stat. §1-210(b)(19). Dir., Dep’t of Info. Tech. v. FOIC, 274 Conn. 179, 874 A.2d 785 (2005). The Appellate Court held that the IT director failed to meet his burden of seeking a determination from the commissioner of public works that the GIS information fell under the public safety exception, and so affirmed the earlier decisions requiring disclosure. Id. at 189.

Exemption Twenty — “Records of standards, procedures, processes, software and codes, not otherwise available to the public, the disclosure of which would compromise the security or integrity of an information technology system.” Conn. Gen. Stat. §1-210(b)(20).

(1) This exemption was discussed briefly in the context of general public safety concerns regarding the disclosure of a town’s geographic information system, but has not been addressed in detail by any court. See Dir., Dep’t of Info. Tech. v. FOIC, 274 Conn. 179, 874 A.2d 785 (2005); see also Records Outline at II.A.2.s.1.

Exemption Twenty-One — “The residential, work or school address of any participant in the address confidentiality program established pursuant to sections 54-240 to 54-240o, inclusive [establishing substitute mailing addresses for victims of family violence, injury to a child, sexual assault or stalking].” Conn. Gen. Stat. §1-210(b)(21).

(1) There are no reported court decisions on this exemption.

Exemption Twenty-Two — “The electronic mail address of any person that is obtained by the Department of Transportation in connection with the implementation or administration of any plan to inform individuals about significant highway or railway incidents.” Conn. Gen. Stat. § 1-210(b)(22).

(1) There are no reported court decisions on this exemption.

Exemption Twenty-Three — “The name or address of any minor enrolled in any parks and recreation program administered or sponsored by any public agency.” Conn. Gen. Stat. § 1-210(b)(23).

(1) There are no reported court decisions on this exemption.

Exemption Twenty-Four — “Responses to any request for proposals or bid solicitation issued by a public agency or any record or file made by a public agency in connection with the contract award process, until such contract is executed or negotiations for the award of such contract have ended, whichever occurs earlier, provided the chief executive officer of such public agency certifies that the public interest in the disclosure of such responses, record or file is outweighed by the public interest in the confidentiality of such responses, record or file.” Conn. Gen. Stat. § 1-210(b)(24).

(1) In Allco Renewable Energy Ltd. v. Freedom of Info. Comm'n, No. HHBCV186043138S, 2019 Conn. Super. LEXIS 593 (Conn. Super. Ct. Mar. 18, 2019), aff'd, 205 Conn. App. 144, 257 A.3d 324 (2021), the Superior Court held that “recognition of the trade secret exemption for a limited subset of information involved in an RFP process [was not] inconsistent with the exemption provided in § 1-210(b)(24).”

Exemption Twenty-Five — “The name, address, telephone number or electronic mail address of any person enrolled in any senior center program or any member of a senior center administered or sponsored by any public agency.” Conn. Gen. Stat. § 1-210(b)(25).

(1) There are no reported court decisions on this exemption.

Exemption Twenty-Six --- “All records obtained during the course of inspection, investigation, examination and audit activities of an institution, as defined in section 19a-490, that are confidential pursuant to a contract between the Department of Public Health and the United States Department of Health and Human Services relating to the Medicare and Medicaid programs.” Conn. Gen. Stat. § 1-210(b)(26).

(1) There are no reported court decisions on this exemption.

Exemption Twenty-Seven --- “Any record created by a law enforcement agency or other federal, state, or municipal governmental agency consisting of a photograph, film, video or digital or other visual image depicting the victim of a homicide, to the extent that such record could reasonably be expected to constitute an unwarranted invasion of the personal privacy of the victim or the victim’s surviving family members.” Conn. Gen. Stat. § 1-210(b)(27).

(1) There are no reported court decisions on this exemption.

Exemption Twenty-Eight --- “Any records maintained or kept on file by an executive branch agency or public institution of higher education, including documentation prepared or obtained prior to May 25, 2016, relating to claims of or testing for faulty or failing concrete foundations in residential buildings and documents or materials prepared by an executive branch agency or public institution of higher education relating to such records.” Conn. Gen. Stat. § 1-210(b)(28).

(1) There are no reported court decisions on this exemption.

 

1. 29 Del. C. § 10002(o)(1): “Any personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy.” See Gannett Co. v. Christian, 1983 WL 473048 (Del. Super. Aug. 19, 1983) (disclosure of teacher salary information not an invasion of privacy). For example, Social Security numbers need not be disclosed. Del. Op. Att’y Gen., No. 95-ib03 (Jan. 25, 1995). Further, withholding taxes, Social Security declarations and elective declarations are not required to be disclosed. Likewise, score sheets of interviewees during the applicant selection process for a new driver’s education instructor have been exempted from disclosure. Del. Op. Att’y Gen., No. 05-ib20 (July 27, 2005). However, the names of the presidents and the contact information for corporations have been held to be public information under FOIA. Del. Op. Att’y Gen., No. 03-ib01 (Jan. 10, 2003).

For purposes of construing Delaware’s FOIA, “personnel file” is defined as “any application for employment, wage or salary information, notices of commendations, warning or discipline, authorization for a deduction or withholding of pay, fringe benefit information, leave records, employment history with the employer, including salary information, job title, dates of changes, retirement record, attendance records, performance evaluations and medical records.” Del. Op. Att’y Gen., No. 02-ib24 (Oct. 1, 2002) (adopting the definition in 19 Del. C. § 731).

1. 29 Del. C.§ 10002(o)(2): “Trade secrets and commercial or financial information obtained from a person which is of a privileged or confidential nature.” This exemption has been construed to protect “individuals from a wide range of embarrassing disclosures.” Del. Op. Att’y Gen., No. 03-ib21 (Oct. 6, 2003) (quoting Del. Op. Att’y Gen., No. 87-1031 (Nov. 4, 1987). For example, “information regarding one’s assets, profits and losses, stock holdings, loans and collateral” is confidential financial information exempt from disclosure under FOIA. Del. Op. Att’y Gen., No. 87-I031 (Nov. 4, 1987); see Del. Op. Att’y Gen., No. 96-ib30 (Sept. 25, 1996) (tax returns of parents of children applying for scholarships exempt from disclosure under FOIA); see also Del. Op. Att’y Gen., No. 00-ib15 (Oct. 4, 2000) (outlining the trade secret exception).

The FOIA exemption for confidential commercial or financial information may apply “when the government requires a private party to submit information as a condition of doing business with the government.” Del. Op. Att’y Gen., No. 03-ib21 (Oct. 6, 2003) (quoting Jud. Watch v. Exp.-Imp. Bank, 108 F. Supp. 2d 19, 27 (D.D.C. 2000)). To fall within the exemption, the government has the burden of showing that disclosure of the information “is likely to cause substantial harm to the competitive position of the person from whom the information was obtained.” Id.

3043. 29 Del. C.§ 10002(o)(3): “Investigatory files compiled for civil or criminal law-enforcement purposes including pending investigative files, pretrial and presentence investigations and child custody and adoption files where there is no criminal complaint at issue.” See Nasir v. Oberly, 1985 WL 189324 (Del. Super. Dec. 5, 1985), appeal dismissed, 508 A.2d 470 (Del. 1986) (statements of witnesses in robbery investigation exempt from disclosure); News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980) (investigation files of professional engineers not public); see alsoDel. Op. Att’y Gen., No. 04-iB20 (Nov. 16, 2004) (exempting an accident report); Del. Op. Att’y Gen., No. 99-ib14 (Nov. 5, 1999) (exempting documents pertaining to a police complaint relating to an unregistered motor vehicle). The exception applies even after the file has been closed. Del. Op. Att’y Gen., No. 99-ib14 (Nov. 5, 1999); Billingsley, 1980 WL 3043.
3044. 29 Del. C.§ 10002(o)(4): “Criminal files and criminal records, the disclosure of which would constitute an invasion of personal privacy. Any person may, upon proof of identity, obtain a copy of the person’s personal criminal record. All other criminal records and files are closed to public scrutiny. Agencies holding such criminal records may delete any information, before release, which would disclose the names of witnesses, intelligence personnel and aids or any other information of a privileged and confidential nature.”
3045. 29 Del. C.§ 10002(o)(5): “Intelligence files compiled for law-enforcement purposes, the disclosure of which could constitute an endangerment to the local, state or national welfare and security.”
3046. 29 Del. C.§ 10002(o)(6): “Any records specifically exempted from public disclosure by statute or common law.” SeeGuy v. Jud. Nominating Comm’n, 659 A.2d 777 (Del. Super. 1995) (holding that the confidential records of an appointed commission are protected by constitutional and common law doctrine of executive privilege, exempting the records from disclosure); Del. Op. Att’y Gen., No. 02-ib24 (Oct. 1, 2002) (holding that the common law work product privilege can except disclosure); Jacobs v. City of Wilmington, 2002 WL 27817 (Del. Ch. Jan. 3, 2002) (holding nonmandatory traffic accident reports were not public records); see also Mell v. New Castle Cnty., 2004 WL 1790140 (Del. Super. Aug. 4, 2004).

Delaware courts have recognized a common law right of informational privacy, which guards against disclosure by the government of personal information about citizens. See Del. Op. Att’y Gen., No. 01-ib17 (Nov. 19, 2001) (determining that Delaware’s FOIA protects the names and addresses of retired public employees because disclosure of that information would invade their privacy). For example, public employees’ right of privacy in the records of a legal settlement has been found to outweigh the public interest in disclosure. Del. Op. Att’y Gen., No. 02-ib24 (Oct. 1, 2002); see also Del. Op. Att’y Gen., No. 99-ib02 (Apr. 16, 1999).

1. 29 Del. C.§ 10002(o)(7): “Any records which disclose the identity of the contributor of a bona fide and lawful charitable contribution to the public body whenever public anonymity has been requested of the public body with respect to said contribution by the contributor.”
2. 29 Del. C.§ 10002(o)(8): “Any records involving labor negotiations or collective bargaining.” The purpose behind this exception is that each side in a negotiation situation wishes to obtain the most favorable terms in the ultimate agreement. Del. Op. Att’y Gen., No. 04-ib16 (Oct. 13, 2004). The disclosure to the public of discussions and proposals that take place on one side during the course of negotiations would obviously entail the disclosure of those strategic matters to the other party with whom negotiations are taking place. Id.(exempting copies of proposed or pending contracts and other documents between the Brandywine School District and Brandywine Education Association).
3. 29 Del. C.§ 10002(o)(9): “Any records pertaining to pending or potential litigation which are not records of any court.” FOIA’s pending/potential litigation exemption is intended to prevent litigants from using “FOIA as a means to obtain discovery which is not available under the court’s rules of procedure.” Mell v. New Castle Cnty., 835 A.2d 141, 147 (Del. Super. 2003); see also Del. Op. Att’y Gen., No. 03-ib21 (Oct. 6, 2003).

The pending litigation exemption “turns on the identity of the requester and the purpose of the request.” Del. Op. Att’y Gen., No. 03-ib21 (Oct. 6, 2003). The exemption applies when “[i]t is exclusively about litigators and litigants looking for materials that might help them in court.” Off. of the Pub. Def. v. Delaware State Police, 2003 WL 1769758, at *3 (Del. Super. Mar. 31, 2003); see Del. Op. Att’y Gen., No. 02-ib32 (Dec. 20, 2002) (concluding that the potential litigation exception does not cover a presuit exchange of letters between potential parties); Del. Op. Att’y Gen., No. 04-ib04 (Feb. 5, 2004) (extending the pending litigation exception to quasi-judicial proceedings including arbitration); Del. Op. Att’y Gen., No. 03-ib10 (May 6, 2003); Mell, 835 A.2d at 149 (exempting documents under the pending litigation exception); see also Del. Op. Att’y Gen., No. 03-ib26 (Nov. 13, 2003).

For the potential litigation exemption to apply, “FOIA requires a two-part analysis: first, litigation must be likely or reasonably foreseeable; and second, there must be a clear nexus between the documents requested under FOIA and the subject matter of the potential litigation.” Del. Op. Att’y Gen., No. 03-ib21 (Oct. 6, 2003). “A realistic and tangible threat of litigation is one that can be characterized with reference to objective factors such as: (1) a formal demand letter or some comparable writing that represents the party’s claim and manifests a solemn attempt to sue; (2) previous or pre-existing litigation between the parties or proof of ongoing litigation concerning similar claims; or (3) proof that a party has retained counsel with respect to the claim at issue and has expressed an intent to sue.” Id.; see also Del. Op. Att’y Gen., No. 02-ib32 (Dec. 20, 2002) (concluding that the potential litigation exception does not cover a pre-suit exchange of letters between potential parties). To invoke this provision, there must be a discussion of “litigation strategy.” Anticipation of litigation is not enough. Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994). Mere possibility that documents may be involved in potential litigation does not shield those documents from public disclosure under this exemption. See Del. Op. Att’y Gen., No. 93-I005 (Mar. 3, 1993).

274295. 29 Del. C.§ 10002(o)(10): “[M]inutes of executive sessions [and] any record of discussions held in executive session [so long as public disclosure would defeat the lawful purpose for the executive session].” Seeid. § 10004(f); Chem. Indus. Council of Delaware, Inc., 1994 WL 274295. This exemption is related to the open meeting requirements of the Act.
274296. 29 Del. C.§ 10002(o)(11): “Any records which disclose the identity or address of any person holding a permit to carry a concealed deadly weapon; provided, however, all records relating to such permits shall be available to all bona fide law-enforcement officers.”
274297. 29 Del. C.§ 10002(o)(12): “Any records of a public library which contain the identity of a user and the books, documents, films, recordings or other property of the library which a patron has used.”
274298. 29 Del. C.§ 10002(o)(13): “Any records in the possession of the Department of Correction where disclosure is sought by an inmate in the Department’s custody.” The Delaware criminal code also specifies that inmates shall not be provided “the Department of Correction Policy and Procedures Manuals, The Bureau of Prisons Policy and Procedures Manuals, nor any of the Department of Correction Facilities Operational Procedures, Administrative Regulations and Post Orders,” and the Department of Correction Policies and Procedures are confidential absent written authority from the Commissioner. 11 Del. C. § 4322(c), (d); see Ryle v. Delaware Dep’t of Just., 238 A.3d 849 (Del. 2020) (affirming summary dismissal of lawsuit over inmate’s request for the DOC Employee Code of Conduct); see also Hall v. Coupe, 2016 WL 3094406, at *1 (Del. Ch. May 25, 2016) (rejecting constitutional challenge to 11 Del. C. § 4322(c), (d)).
274299. 29 Del. C.§ 10002(o)(14): “Investigative files compiled or maintained by the Violent Crimes Compensation Board.”
274300. 29 Del. C.§ 10002(o)(15): “Any photographs, video recordings or audio recordings of a postmortem examination in the possession of the office of the Chief Medical Examiner.”
274301. 29 Del. C.§ 10002(o)(17)(a): Certain enumerated categories of records which, “if copied or inspected, could jeopardize the security of any structure owned by the State or any of its political subdivisions, or could facilitate the planning of a terrorist attack, or could endanger the life or physical safety of an individual.” The General Assembly enacted this exemption in 2002 in response to the terrorist attacks of Sept. 11. SeeDel. Op. Att’y Gen., No. 05-ib19 (Aug. 1, 2005) (stating that the exemption covers law enforcement manuals such as check point guidelines and the Wilmington Police Department’s Police Officer’s Manual to the extent they contain information that would disclose investigative techniques and procedures or endanger the life and safety of citizens or law enforcement officers).
274302. 29 Del. C.§ 10002(o)(18)(a): “Any military service discharge document or documents, a discharge, separation notice, certificate of service, report of transfer or discharge, or any other notice or document which is evidence of severance or transfer from military service and which contains a service record from the armed forces of the United States, or any document that purports to represent a notice of separation from or service in any armed forces of the United States[.]” These records may only be released to the veteran, with the veteran’s consent, or to a court or public agency in certain circumstances, although they are public records 70 years after the date of separation or discharge. Id.§ 10002(o)(18)(b), (c).

s. 29 Del. C. § 10002(o)(19): “Any communications between a member of the General Assembly and that General Assembly member’s constituent, or communications by a member of the General Assembly on behalf of that General Assembly member’s constituent, or communications between members of the General Assembly.”

1. Trade Secrets and Commercial or Financial Information (D.C. Code Ann. § 2-534(a)(1)) — Like the federal statute, the D.C. Act contains a provision exempting disclosure of trade secrets and confidential commercial or financial information obtained from outside the government. The D.C. Act, however, is more restrictive in what material may be withheld by an agency. See Food and Allies Servs. Traders, AFL-CIO v. Barry, No. 3809-88, slip. op. at 5-7 (D.C. Super. Ct. Jan. 9, 1987). Under the D.C. Act, this exemption applies only if "the party from whom the information was obtained faces actual competition." Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d 517, 522 (D.C. 1989).

In addition, the D.C. Act exempts such information only "to the extent that disclosure would result in substantial harm to the competitive position of the person from whom the information was obtained." D.C. Code Ann. § 2-534(a)(1). Under the D.C. Act, an association that does not itself engage in business, and therefore cannot show harm to its competitive position, cannot claim that documents it prepared for a D.C. government agency fall within the trade secrets exemption. Belth v. Dep't of Consumer & Regulatory Affairs, 115 Daily Washington Legal Rptr. 2281 (D.C. Super. Ct. 1987) (ordering disclosure of insurance reports prepared by the National Association of Insurance Commissioners).

Accordingly, opinions from the Mayor's office pursuant to FOIA appeals have held that:

A party asserting that its competitive position would be harmed by the disclosure of commercial information must show a specific likelihood of injury; a generalized invocation of the language of the statute is not enough to justify nondisclosure. Shaw Coal. Redevelopment Corp. v. Office of the Assistant City Adm’r for Econ. Dev., FOIA App. No. 90-20 (Office of the Mayor, July 17, 1994).

Certain financial terms and conditions, including rental fee amounts, rental deposit amounts, electrical fee amounts, and an estimate of total kilowatt consumption, between the Washington Convention Center and promoters do not fall within the trade secret exemption because fee amounts are "unique for each particular live event" and do not affect the competitive bargaining power of other promoters. In re Appeal of John R. Risher, Esq., for Disclosure of Certain Rental Agreements and Related Documents, FOIA App. No. 90-1 (Office of the Mayor, Aug. 1, 1991).

The D.C. Act's language was based on the Judiciary Committee's reading of the D.C. Circuit's opinion in National Parks & Conservation Association v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). Comm. on the Judiciary and Criminal Law, Report on Bill No. 1-119, the "D.C. Freedom of Information Act of 1975," at 8 (Sept. 1, 1976) (“Comm. on Judiciary Report”). In National Parks, however, the D.C. Circuit held that information was "confidential" within the meaning of the federal FOIA's exemption 4 not only if its disclosure would harm a person's competitive position, but also if disclosure would impair the government's interest in obtaining information in the future. See Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d at 523. In addition, National Parks left open the question of whether governmental interests other than obtaining future information would justify withholding information under exemption 4. See National Parks, 498 F.2d at 770 n.17. Although this question was answered in the affirmative in Critical Mass Energy Project v. Nuclear Regulatory Commission, 830 F.2d 278, 282-87 (D.C. Cir. 1987), that decision should not affect the interpretation of the D.C. Act.

1. Privacy (D.C. Code Ann. § 2-534(a)(2)) — The D.C. Act exempts information of a personal nature, when disclosure would constitute a clearly unwarranted invasion of privacy. For example, the Act exempts the release of presentence reports, academic records, mental health assessments and other records pertaining to prison inmates' applications for minimum sentence reductions. See Hines v. Bd. of Parole, 567 A.2d 909, 913 (D.C. 1989). And the Act exempts personal information of public employees, unless the requestor shows that "the withheld information will shed light on an agency's performance of its statutory duties or otherwise let citizens know what the government is up to." Fraternal Order of Police v. District of Columbia, 124 A.3d 69, 77 (D.C. 2015) (internal quotation marks omitted). D.C. courts have held that when this privacy exemption does not apply and the D.C. statute authorizes disclosure of information, litigants cannot then base an invasion of privacy claim upon the government's dissemination of information. See Wolf v. Regardie, 553 A.2d 1213, 1218-19 & n.10 (D.C. 1989).

The language of the D.C. Act's privacy exemption is broader than that of federal law. Unlike the language of the federal statute, which limits its comparable exemption to personnel, medical and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, see 5 U.S.C.A. § 552(b)(6), the D.C. Act exempts all information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of privacy. However, when information collected for law enforcement purposes is at issue, this difference between the privacy exceptions of the two statutes diminishes. The federal statute exempts disclosure of investigatory records compiled for law enforcement purposes that could reasonably be expected to constitute an unwarranted invasion of personal privacy. 5 U.S.C.A. § 552(b)(7)(C). The Supreme Court has interpreted this privacy exemption covering information relating to law enforcement as more expansive than the federal statute's personnel, medical and similar files privacy exemption. See United States v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755-56 (1989) (exempting disclosure of FBI rap sheets).

The Mayor's office (and now the Office of the Secretary) has consistently relied on the Reporters Committee rule in performing the requisite balancing test under this exemption: the individual's privacy interest in the material at issue must be balanced against the public interest in disclosing it, and this public interest must serve the "core purpose of shedding light on an agency's performance of its statutory duties." Foster v. Univ. of the Dist. of Columbia, FOIA App. No. 92-8 (Office of the Mayor, Oct. 30, 1995) (refusing to release the personnel records and curriculum vitae of a U.D.C. employee because disclosure would impinge upon the employee's privacy rights and serve no "core" public purpose); see also In re Appeal of The Washington Post Co., Matter No. 01-170008, 48 D.C. Reg. 8629 (Office of the Secretary, Sept. 7, 2001) (holding that the privacy interests of students and teachers under investigation for the consumption of alcohol substantially outweighs the public interest in their identifying information); Emily Yinger, Esq. v. Metro. Police Dep't, FOIA App. No. 93-25 (Office of the Mayor, Oct. 5, 1994) (holding that no "core" public purpose is served when individual seeks police officers' personnel records for use in a civil suit against officers); Velrey Props. Inc. v. Dep't of Human Servs., FOIA App. No. 94-45 (Office of the Mayor, May 17, 1995) (refusing to disclose address of district resident who has not otherwise made her address and telephone number public, where plaintiff wanted address for use in a civil lawsuit); In re Appeal of Walter Thomas, Matter No. 04-409467, 51 D.C. Reg. 6969 (Office of the Secretary, June 21, 2004) (ordering disclosure of names, professional qualifications, and work experiences of successful job applicants, but refusing to disclose other private information, such as home telephone numbers and addresses, Social Security numbers, marital status and personal references, or any information regarding unsuccessful job applicants).  The D.C. Court of Appeals applies the same test.  Vining v. Council of District of Columbia, 140 A.3d 439, 449 (D.C. 2016).

In accordance with other jurisprudence pertaining to corporations, the Mayor's office has ruled that corporations have no privacy rights under exemption (a)(2). Washington Post Co. v. Metro. Police Dep't, FOIA App. No. 92-5 (Sept. 24, 1993) (refusing to disclose on privacy grounds names and addresses of registered gun owners, but agreeing to release information regarding licensed gun dealers because corporations have no privacy interests).

D.C. Code Section 2-536, specifically makes certain information public, but does so "without limiting the meaning of other sections of this subchapter." Despite what appear to be specific and mandatory disclosure requirements under § 2-536, the Mayor's office has construed this limiting language to mean that if the privacy exemption is implicated by a record that falls within § 2-536, the record can be withheld. Thus, in the view of the Mayor's office, the names of members of the police department, although required to be made public under § 2-536, do not have to be released because "by virtue of the nature of their work, MPD personnel have substantial privacy interests that militate against public revelation of their names." Mike R. Atraqchi v. Metro. Police Dep't, FOIA App. No. 94-17 (Office of the Mayor, July 28, 1994).

22. Investigatory and Law Enforcement Records (D.C. Code Ann. § 2-534(a)(3)) — Like the federal law, the D.C. Act exempts certain investigatory records compiled for law enforcement purposes (including the records of Council investigations). The exemption allows nondisclosure when disclosure would interfere with enforcement proceedings or Council investigations, deprive a person of a fair trial, constitute an unwarranted invasion of privacy, disclose the identity of a confidential source, disclose investigation techniques, or endanger the lives of law enforcement officers. D.C. Code Ann. § 2-534(a)(3). The exemption applies only to investigatory records that are compiled in the course of specific investigations and that focus on specific individuals and acts. See Fraternal Order of Police, Metro. Labor Comm. v. District of Columbia, 82 A.3d 803, 815 (D.C. 2014) (holding that records concerning use of breathalyzer were exempt only if "(1) the documents requested . . . [were] compiled for law enforcement purposes, and (2) disclosure of those documents would interfere with enforcement proceedings."); Barry v. Washington Post Co., 529 A.2d at 321-22. Such records are exempt, however, only if their release would also result in the interference with enforcement proceedings or cause one of the other results described in D.C. Code Ann. § 2-534(a)(3). See In re Appeal of Ernest Middleton, Matter No. 01-171746, 48 D.C. Reg. 9022 (Office of the Secretary, Sept. 19, 2001); In re Appeal of Mark W. Howes, Esq., Matter No. 00-10587, 48 D.C. Reg. 7827 (Office of the Secretary, Aug. 13, 2001). The D.C. Act "seeks to strike a balance for maximum disclosure even of law enforcement information, but not in cases where the information would endanger people, interfere with due process or severely hamper law enforcement effort." Comm. on Judiciary Report, at 7. The Mayor's office has ruled that investigatory records in a 6-year-old murder case are exempt from disclosure if charges and criminal litigation are still possibilities. Glenn A. Stanko, Esq. v. Metro. Police Dep't, FOIA App. No. 92-24 (Feb. 24, 1995).

The Mayor's office appears to be highly deferential to departments or agencies that invoke this exemption. The Office has held that the privacy interests of police and the crime victim's family militate against releasing a videotaped murder confession that was never admitted into evidence against the accused when the tape was sought by a news reporter. In re Appeal of Molly Pauker, Esq., (unnumbered FOIA appeal) (Office of the Mayor, Nov. 3, 1989). The Office has also held that disclosing a police officer's records regarding an investigation into her alleged drug abuse, when no disciplinary charges were brought and absent allegations that the investigation was mishandled, would serve no public purpose. Pretext Servs. Inc. v. Metro. Police Dep't, FOIA App. No. 92-10 (Office of the Mayor, March 8, 1995).

It should be noted that another D.C. statute provides that all complaints and other specific police records shall be open for inspection. D.C. Code Ann. § 5-113.06; see also D.C. Code Ann. § 2-534(c) ("This section shall not operate to permit nondisclosure of information of which disclosure is authorized or mandated by other law."). Therefore, the names of some 70 police officers and information about criminal charges filed against them were required to be disclosed under § 5-113.06 [formerly D.C. Code § 4-135]. Washington Post v. Metro. Police Dep't, FOIA App. No. 93-15 (Office of the Mayor, March 11, 1994).

1. Interagency Memos and Letters(D.C. Code Ann. § 2-534(a)(4)) — This exemption is virtually identical to the exemption in the federal statute, exempting inter-agency and intra-agency memorandums or letters (including memorandums or letters generated or received by the staff or members of the Council), which would not be available by law to a party in litigation with a public body. Compare D.C. Code Ann. § 2-534(a)(4) with5 U.S.C.A. § 552(b)(5). As a matter of policy, reports and analyses prepared by an organization outside the government, even if they are used in an agency's deliberative process, do not fall within the exemption. Belth, 115 Daily Washington Legal Rptr. at 2281 ("To hold otherwise would be to rule that the independently initiated, prepared and funded reports of a private organization . . . which that organization desires to withhold from public scrutiny and discussion but to have used by a governmental agency as the basis for important public policy decisions, would be immunized from disclosure . . . .").

The D.C. Act expressly provides that the deliberative process privilege, the attorney work product privilege, and the attorney-client privilege are incorporated into the exemption in D.C. Code Ann. § 2-534(a)(4). D.C. Code Ann. § 2-534(e); see also Kane v. District of Columbia, 180 A.3d 1073, 1079-80 (D.C. 2018). Prior to this language being added to the statute, the Mayor's office and the Office of the Secretary had already relied on the common law deliberative process privilege to find documents are exempt from disclosure under D.C. Code Ann. § 2-534(a)(4) because they would not be available to a party in litigation with the agency. Shaw Coal. Redevelopment Corp. v. Office of the Assistant City Adm'r for Econ. Dev., FOIA App. No. 90-20 (Office of the Mayor, July 17, 1994) (withholding documents related to an executive decision about real estate development); Alonzo L. Williams v. Office of Superintendent, FOIA App. No. 95-10 (Office of the Mayor, Aug. 11, 1995) (withholding memoranda from a hearing examiner whose recommendation was rejected by the Superintendent of Schools, the final arbiter of the decision at issue); see also In re Appeal of the ACLU (National Prison Project), Matter No. 00-118630, 48 D.C. Reg. 2407 (Office of the Secretary, Mar. 6, 2001) (remanding case to D.C. Department of Corrections to determine whether requested memorandum is of a "predecisional" and "deliberative" character).

1. Test Questions and Answers(D.C. Code Ann. § 2-534(a)(5)) — This exemption does not appear in the federal act. It exempts test questions and answers to be used in future license, employment or academic examinations. It does not exempt previously administered exams or answers thereto.

However, if information regarding an exam — for example, a job applicants' test answers and general scoring protocols — would "compromise the legitimacy and fairness of an examination process by revealing test answers to be used in future exams," such information will fall within this exemption. Francesca A. Clark v. Metro. Police Dep't, FOIA App. No. 94-43 (Office of the Mayor, Sept. 29, 1995).

322. Information Exempted by Other Statutes (D.C. Code Ann. § 2-534(a)(6)) — This exemption is identical to the federal exemption. Compare D.C. Code Ann. § 2-534(a)(6) with5 U.S.C.A. § 552(b)(3). It requires that information be specifically exemptedfrom disclosure by another statute. Such exemption will not be inferred. Vining v. Council of District of Columbia, 140 A.3d 439, 446 (D.C. 2016) (holding that the text of the Legislative Privilege Act does not explicitly shield information from the public, and so cannot be invoked through this FOIA exemption); Riley v. Fenty, 7 A.3d 1014, 1017 (D.C. 2010) (holding that juvenile records were not subject to disclosure because another statute prohibited their release); Wemhoff v. District of Columbia, 887 A.2d 1004, 1009 (D.C. 2005) (holding that attorney could not obtain driving records for solicitation purposes because another statute barred those records' release); Barry v. Washington Post Co., 529 A.2d at 322. The exemption does not apply to certain ordinances, or other laws that are not "statutes." Newspapers Inc., 546 A.2d at 997-1001; see also In re Appeal of Grayson & Assocs., P.C., Matter No. 00-00240, 47 D.C. Reg. 4585 (Office of the Secretary, May 16, 2000) (Section 42-231 of the D.C. Unclaimed Property Act qualifies as a nondisclosure statute under D.C. Code Ann. § 2-534(a)(6)); Velrey Props. Inc. v. Dep't of Human Servs., FOIA App. No. 94-45 (Office of the Mayor, May 17, 1995) (federal regulations are not statutes within the meaning of the Act); In re Appeal of Clifton Jackson for Release of Inheritance Tax Return Form FR-19, FOIA App. No. 90-7 (Office of the Mayor, May 19, 1991) (Inheritance and Estate Tax Revision Act, D.C. Code Ann. § 45-3719(a) & (c), is a statute within the meaning of the Act, requiring nondisclosure of certain tax records).
323. Information Exempted By Federal Law Because Of National Defense Or Foreign Policy Concerns(D.C. Code Ann. § 2-534(a)(7)) — This exemption is virtually identical to the exemption in the federal act. CompareD.C. Code Ann. § 2-534(a)(7) with 5 U.S.C.A. § 552(b)(1)(A).
324. Information Gained in Civil Antitrust Actions(D.C. Code Ann. § 2-534(a)(8)) — This provision does not appear in the federal act. It exempts certain information gained by the D.C. Government during discovery or investigations carried out pursuant to local antitrust laws like  D.C. Code Ann. § 28-4505.
325. Information Disclosed In Arson Investigations(D.C. Code Ann. § 2-534(a)(9)) — This exemption also does not appear in the federal act. It exempts information gained pursuant to local arson reporting laws like D.C. Code Ann. § 5-417.
326. Specific Response Plans and Vulnerability Assessments(D.C. Code Ann. § 2-534(a)(10)) — The D.C. Act exempts specific response plans for public emergency preparedness and prevention and specific vulnerability assessments that are intended to prevent or to mitigate an act of terrorism.
327. Information Submitted to Business License Center(D.C. Code Ann. § 2-534(a)(11)) — Information submitted to the Business License Center within the Department of Consumer and Regulatory Affairs, such as applications for business licenses, are exempted by the D.C. Act. A person, however, may be provided with information submitted to the Business License Center for one registrant based upon the submission of either the name or address of the registrant; persons are limited to one such request per day. Federal Employer Identification numbers and Social Security numbers shall not be released except if requested by a law enforcement agency or directed by court order.
328. Information That Would Disclose the Identity of a Whistleblower(D.C. Code Ann. § 2-534(a)(12)) — Information, the disclosure of which would reveal the name of an employee providing information under the whistleblower protection provisions of the D.C. Code § 1-615.51 et seq.and § 2-223.01 et seq., is exempt unless the name of the employee is already known to the public.
329. Vital Records (D.C. Code Ann. § 2-534(d)) — This exemption is unique to the D.C. Act. It provides that the provisions of the D.C. Act do not apply to the Vital Records Act of 1981, D.C. Code Ann. § 7-201. Unlike other exemptions, this exemption is not discretionary. Vital records include certificates or reports on birth, death, marriage, divorce, annulment and data related thereto. D.C. Code Ann. § 7-201(15). The Vital Records Act prohibits disclosure of those records except as provided by that chapter. Id. § 7-219(a). Under the Vital Records Act, disclosure is permissible only to a person with a direct, tangible interest in the record. Such a person is defined as (1) a person about whom the information is gathered, and his or her immediate family, guardian or legal representative; or (2) a person who needs the information to determine or protect a personal or property right. The Vital Records Act contains criminal penalties for violations of its provisions. Id. § 7-225.

Over 1,100 statutory exemptions exist to the public records law, making discussion of each one impractical. The difficulty in identifying exemptions is partially because the enactment of exemptions has occurred over many years, often as part of larger bills. Also, because the term “exemption” had no statutory definition, no uniform language was used when exemptions were created.

Exemptions concerning categories of records of particular interest to reporters are discussed at III below. Additionally, a code section regulating a particular activity is likely to contain the provision, if any, concerning disclosure requirements relating to such activity.

With the passage of the Open Government in the Sunshine Review Act in 1984, exemptions created in the future will be easier to identify. The exemption must specifically state the section from which it is exempt (i.e., § 119.07(d)-(f) or § 286.011). Fla. Stat. § 119.15(4)(a) (2020).

The Open Government Review Act serves as a statutory review mechanism whereby the legislature periodically determines, pursuant to specified criteria, whether the public policy underlying a particular exemption continues to exist. Exemptions which are not renewed in the year scheduled for review are automatically repealed. Fla. Stat. § 119.15(3) (2020).

Records specifically required by federal statute or regulation to be kept confidential.

O.C.G.A. § 50-18-72(a)(1) permits compliance with federal government non-disclosure statutes or rules. Non-disclosure is permitted, however, only of federal records in the hands of state agencies that are required by federal law to be kept confidential. See City of Atlanta v. Corey Entm’t Inc., 278 Ga. 474, 604 S.E.2d 140 (2004) (tax returns not exempt from disclosure where they relate to a "legitimate public inquiry" and do not involve an unauthorized invasion of privacy). There is no requirement "that a report generated by or used by the state for state purposes be exempted from disclosure merely because that report would be kept confidential if generated or used by the federal government for federal purposes." Georgia Hosp. Ass'n v. Ledbetter, 260 Ga. 477, 479, 396 S.E.2d 488 (1990). Additionally, agencies subject to the Act may not evade its disclosure requirements by contracting with a federal agency unless the contract provision prohibiting disclosure is mandated by federal law or regulation. 2005 Ga. Att'y Gen. LEXIS 2 (2005).

Medical or veterinary records and similar files, the disclosure of which would be an invasion of personal privacy.

Provision is made in O.C.G.A. § 50-18-72(a)(2) for the exclusion of private medical records from the Act. The invasion of personal privacy encompassed by this exemption is to be determined in accordance with the tort action of invasion of privacy. Bd. of Regents v. Atlanta Journal & Constitution, 259 Ga. 214, 378 S.E.2d 305 (1989). The right of privacy, which is protected under tort law, extends only to unnecessary public scrutiny. Therefore, the exemption "is not meant to exclude 'legitimate inquiry into the operation of a government institution and those employed by it.'" Dortch v. Atlanta Journal & Constitution, 261 Ga. 350, 405 S.E.2d 43 (1991); see also City of Atlanta v. Corey Entm’t Inc., 278 Ga. 474, 604 S.E.2d 140 (2004) (financial records submitted to obtain special business certification were legitimate objects of public scrutiny); Fincher v. State, 231 Ga. App. 49, 497 S.E.2d 632 (1998) (where requested report involved investigation into alleged improper conduct by employee of State Board of Pardons and Paroles, the public had a legitimate interest in the conduct that outweighed the employee's interest in non-disclosure);  cf. Cabaniss v. Hipsley, 114 Ga. App. 367, 151 S.E.2d 496 (1966) (elements essential to recovery for invasion of personal privacy include: (a) the disclosure of private facts must be a public disclosure; (b) the facts disclosed to the public must be private, secluded or secret facts and not public ones; and (c) the matter made public must be offensive to a reasonable person of ordinary sensibilities under the circumstances).

Applying these principles, Georgia courts have consistently rejected attempts to prevent disclosure of records on privacy grounds. For example, in Dortch, the Georgia Supreme Court held that "[e]ven if we were to hold that publication of unlisted telephone numbers [contained in cellular telephone bills of city employees paid by the city] involved disclosure of secret or private facts, we cannot say . . . that such disclosure would be so offensive or objectionable to a reasonable man as to constitute the tort of invasion of privacy." 261 Ga. at 352, 405 S.E.2d at 45.

In Board of Regents, the Georgia Supreme Court, in holding that a public university's presidential search records must be disclosed, noted that "it would make for a strange rule, indeed, to hold that a person who applies for a public position — to serve the public and to be paid by the public — has the right to keep secret from the public the very existence of such an application." 259 Ga. at 217 n.6, 378 S.E.2d at 308 n.6. See also Hackworth v. Bd. of Educ., 214 Ga. App. 17, 447 S.E.2d 78 (1994); City of St. Mary's v. Camden Newspapers, 20 Med. L. Rep. 1131 (Camden Cty. Super. Ct.), aff'd mem. (Ga. 1991) (complaint filed by city employee alleging harassment by city council member must be publicly disclosed); Doe v. Sears, 245 Ga. 83, 263 S.E.2d 119 (1980) (records containing names and addresses of public housing tenants delinquent on their rent are public records and must be disclosed); Athens Observer v. Anderson, 245 Ga. 63, 263 S.E.2d 128 (1980) (report commissioned by state university evaluating mathematical sciences program is public record and must be disclosed).

Confidential source, surveillance, or investigation law enforcement records.

O.C.G.A. § 50-18-72(a)(3) exempts from disclosure law enforcement records that if revealed would be reasonably likely to disclose the identity of a confidential source, confidential investigative or prosecution material which would endanger the life or physical safety of any person or persons, or the existence of a confidential surveillance or investigation.

Pending investigation or prosecution records of law enforcement, prosecution or regulatory agencies and mug shots.

The Act limits access to certain pending investigation or prosecution records of law enforcement, prosecution, or regulatory agencies. O.C.G.A. § 50-18-72(a)(4). The exemption, however, specifically provides that "initial police arrest reports and initial incident reports" are public records and must be disclosed. It further provides that “an investigation or prosecution shall no longer be deemed to be pending when all direct litigation involving such investigation and prosecution has become final or otherwise terminated.”  And it clarifies that the exception “shall not apply to records in the possession of an agency that is the subject of the pending investigation or prosecution.” Finally, it permits the release of booking photographs—mug shots—only in accordance with certain statutory procedures designed to prohibit their use on websites that permit removal or deletion in return for payment of a fee. See § 35-1-19.

“Under the ‘pending investigation’ exemption, a seemingly inactive investigation which has not yet resulted in a prosecution logically ‘remains undecided,’ and is therefore ‘pending,’ until it ‘is concluded and the file closed.’ Only at that point has an investigation, in the absence of any prosecution, reached a decision with a high level of finality, even though it could possibly be reopened thereafter.” Evans v. Ga. Bureau of Investigation, 297 Ga. 318, 320, 773 S.E.2d 725, 728 (2015), quoting Unified Gov't v. Athens Newspapers, LLC, 284 Ga. 192, 195(1), 663 S.E.2d 248 (2008).

Motor vehicle accident reports.

In 1999, the General Assembly limited access to individual Uniform Motor Vehicle Accident reports to those parties named in the report or those that otherwise have a "need" for the report as defined by statute. O.C.G.A. § 50-18-72(a)(5). Among the parties with a "need" for accident reports are those "gathering information as a representative of a news media organization." § 50-18-72(a)(5)(I).

Jury list data.

The Act limits access to personal identifying information that is collected and used to create, compile and maintain certain master statewide and county jury lists. O.C.G.A. § 50-18-72(a)(6).

Confidential evaluations of public officers and employees.

The Act permits non-disclosure of (1) confidential evaluations submitted to a governmental agency, prepared in connection with the appointment or hiring of a public officer or employee; or (2) examinations prepared by a governmental agency in connection with the appointment or hiring of a public officer or employee. O.C.G.A. § 50-18-72(a)(7).

Material obtained in investigations relating to the suspension, firing or investigation of complaints against public officers or employees.

The Act permits agencies to withhold disclosure of material obtained in investigations related to the suspension, firing, or investigation of complaints against public officers or employees but only “until ten days after the same has been presented to the agency or an officer for action or the investigation is otherwise concluded or terminated.” O.C.G.A. § 50-18-72(a)(8). City of St. Mary's v. Camden Newspapers, 20 Med. L. Rep. 1131 (Camden County Super. Ct.), aff'd mem. (Ga. 1991) (city employee's written complaint alleging sexual harassment by city council member must be publicly disclosed under O.C.G.A. § 50-18-72(a)(5) after 10 days have passed); Fincher v. State, 231 Ga. App. 49, 497 S.E.2d 632 (1998) (investigation into alleged improper conduct by employee of State Board of Pardons and Paroles had to be released after ten days had passed).

Real estate acquisition records.

The Act permits non-disclosure of "[r]eal estate appraisals, engineering or feasibility estimates, or other records made for or by the state or local agency relative to the acquisition of real property until such time as the property has been acquired or the proposed transaction has been terminated or abandoned.” O.C.G.A. § 50-18-72(a)(9). Appraisals of property sought to be condemned are exempt from disclosure under the Act until litigation involving the condemnation has been completed. Black v. Ga. Dep't of Transp., 262 Ga. 342, 417 S.E.2d 655 (1992).

Pending, rejected or deferred sealed bids or proposals and cost estimates.

The Act permits non-disclosure of “pending, rejected, or deferred sealed bids or sealed proposals and detailed cost estimates related thereto until such time as the final award of the contract is made, the project is terminated or abandoned, or the agency in possession of the records takes a public vote regarding the sealed bid or sealed proposal, whichever comes first.”  O.C.G.A. § 50-18-72(a)(10).

Executive search records.

The Act permits an agency to withhold those portions of records which would identify people applying for or under consideration for employment or appointment as executive head of an agency or of a unit of the state university system. O.C.G.A. § 50-18-72(a)(11). However, at least 14 calendar days prior to the meeting at which final action or vote is to be taken on the position of executive head of an agency or five business days prior to the meeting at which final action or vote is to be taken on the position of president of a unit of the University System of Georgia, all documents concerning as many as three persons under consideration whom the agency has determined to be the best qualified for the position shall be subject to inspection and copying. Id.  Prior to the release of these documents, an agency may allow such a person to decline to be considered further for the position rather than have documents pertaining to such person released.  Id.  In that event, the agency shall release the documents of the next most qualified person under consideration who does not decline the position.  Id.  If an agency has conducted its hiring or appointment process without conducting interviews or discussing or deliberating in executive session in a manner otherwise consistent with the Open Meetings Act, it shall not be required to delay final action on the position.  Id.  The agency shall not be required to release such records of other applicants or persons under consideration, except at the request of any such person.  Id.  Upon request, the hiring agency shall furnish the number of applicants and the composition of the list by such factors as race and sex.  Id.  The agency shall not be allowed to avoid the provisions of this paragraph by the employment of a private person or agency to assist with the search or application process.  Id.

Historic Resources.

The Act exempts records from the Department of Natural Resources that contain information relating to the location or character of a historic resource, if the Department determines that disclosure may create a substantial risk of harm, theft or destruction to such resource or real or personal property at or near its location.  O.C.G.A. § 50-18-72(a)(12).  Historic resource is broadly defined, to include “sites, areas, structures, and ruins of historic or legendary significance, such as trails, post roads, highways, or railroads; inns or taverns; rivers, inlets, millponds, bridges, plantations, harbors, or wharves; mountains, valleys, coves, swamps, forests, or everglades; churches, missions, campgrounds, and places of worship; schools, colleges, and universities; courthouses and seats of government; places of treaties, councils, assemblies, and conventions; factories, foundries, industries, mills, stores, and banks; cemeteries and burial mounds; and battlefields, fortifications, and arsenals.”  O.C.G.A. § 12-3-50(a)(1).

Restricted library and archival records.

Records that are of historical research value that are granted to academic libraries, public libraries, or public archives can be restricted in accordance with the donor's request for a period of up to 75 years. O.C.G.A. § 50-18-72(a)(13). This exemption is inapplicable, however, to any records prepared in the course of the operation of state or local governments. Id.

Records of the Department of Community Affairs relating to historic properties.

Disclosure of any entry in the Department of Community Affairs inventory and register of historic properties can be restricted if its release might create a substantial risk of harm, theft, or destruction of the property. O.C.G.A. § 50-18-72(a)(14).

Records of individual farm water use.

Disclosure of records of farm water use by individual farms as determined by certain water-measuring devices can be restricted. O.C.G.A. § 50-18-72(a)(15). However, compilations of such records that do not reveal farm water use by individual farms are subject to disclosure. Id.

Certain critical infrastructure agricultural or food system records.

The Act permits restriction of access to certain agricultural or food system records, data, or information that are considered by the Department of Agriculture to be a part of the critical infrastructure. O.C.G.A. § 50-18-72(a)(16).

National animal identification system records.

The Act exempts from disclosure records, data, or information collected, recorded, or otherwise obtained that is deemed confidential by the Department of Agriculture for the purposes of the national animal identification system. O.C.G.A. § 50-18-72(a)(17).

Rare species of plants and animals records.

Disclosure of records containing site specific information regarding the occurrence or the location of the natural habits of rare species of plants and animals can be restricted if their release would create a substantial risk of harm, theft, or destruction to the species or habitats of the area. O.C.G.A. § 50-18-72(a)(18). However, owners of private property upon which rare species occur or upon which natural habitats are located are entitled to such information. Id.

Neighborhood watch and public safety and alarm system records.

The Act exempts records that reveal certain identifying and other information developed, collected, or received by counties or municipalities in connection with neighborhood watch or public safety notification programs or relating to electronic security systems; provided, however, that initial police reports and initial incident reports shall remain subject to disclosure.  O.C.G.A. § 50-18-72(a)(19).

Records reflecting certain sensitive individual identifying information.

With a variety of exceptions, including to news media representatives willing to certify compliance with certain non-disclosure restrictions, the Act exempts an individual's Social Security number, mother's birth name, debit and credit card information, bank account information, financial data or information, insurance, or medical information, etc. in all records. O.C.G.A. § 50-18-72(a)(20).

Records reflecting certain public employee sensitive individual identifying information.

The Act likewise restricts, without a news media exception, access to certain sensitive identifying information concerning state and federal public employees.  O.C.G.A. § 50-18-72(a)(21).

Records of the Department of Human Services revealing certain sensitive personal information about foster parents and former foster parents.

The Act exempts from disclosure Department of Human Services records revealing certain identifying information about foster parents and former foster parents. O.C.G.A. § 50-18-72(a)(21.1).

Records of the Department of Early Care and Learning containing sensitive identifying information.

The Act exempts certain records identifying children, parents and individuals who report violations.  O.C.G.A. § 50-18-72(a)(22).

Electronic signature information.

The Act exempts certain electronic signature information.  O.C.G.A. § 50-18-72(a)(23).

Records from carpooling or ridesharing.

The Act exempts records acquired by an agency for the purpose of implementing or assisting in the implementation of a carpooling program to the extent those records would reveal the name, home address, employment address, home telephone number, employment telephone number or hours of employment of any individual or would otherwise identify any individual who is participating, or who has expressed an interest in participating in any such program. O.C.G.A. § 50-18-72(a)(24).

Records related to homeland security.

The Act exempts records, the disclosure of which would compromise security against sabotage or criminal or terrorist acts and the non-disclosure of which is necessary for the protection of life, safety, or public property. O.C.G.A. § 50-18-72(a)(25). This exemption is specifically limited to security plans and vulnerability assessment for certain structures; plans for protection against terrorist or other attacks, the effectiveness of which depends in part on a lack of general public knowledge of the details; documents related to the existence, nature, location, or function of security devices; any plan or other material which, if made public, could compromise security against sabotage, criminal, or terroristic acts; cybersecurity documents or plans that depend for their effectiveness in whole or in part upon a lack of general public knowledge; as well as training records. Id. In the event of a challenge to official nondisclosure of records under this exemption, the court may review the documents in question in camera and condition any disclosure upon such measures as the court finds necessary to protect against the endangerment of life, safety, or public property. Id.

Public school safety plans.

The Act exempts from disclosure public school safety plans prepared pursuant to O.C.G.A. § 20-2-1185. § 50-18-72(a)(25.1).

Emergency system call records.

The Act permits access to public records of an emergency "911" system, except information that would reveal the name, address, or telephone number of a person placing a call to a public safety answering point if redaction of such information is necessary to protect the identity of a confidential source, to prevent disclosure of information that would endanger the life or safety of any persons, or to prevent disclosure of the existence of a confidential investigation. O.C.G.A. § 50-18-72(a)(26).

The Act also places restrictions on access to audio recordings of 911 calls that contain “the speech in distress or cries in extremis of a caller who died during the call or the speech or cries of a person who was a minor at the time of the call,” § 50-18-72(a)(26.1), and to “audio and video recordings from devices used by law enforcement officers in a place where there is a reasonable expectation of privacy when there is no pending investigation,” § 50-18-72(a)(26.2).

Athletic records identifying children under 12 years of age.

The Act exempts otherwise public records of athletic or recreational programs that include information identifying children 12 years of age or younger by name, address, telephone number, or emergency contact, unless such information has been redacted. O.C.G.A. § 50-18-72(a)(27).

Motorist toll project and roadway records.

The Act exempts State Road and Tollway Authority or Department of Transportation records or data that would reveal the financial accounts, travel history, vehicle information or personally identifiable information of any individual who is a motorist upon any toll project or roadway. O.C.G.A. § 50-18-72(a)(28).

Personal information concerning donors to the state’s public postsecondary educational institutions and associated foundations.

“Personal information concerning donors or potential donors” to “public postsecondary educational institutions in this state and associated foundations of such institutions” is exempt from the Act, provided “that the name of any donor and the amount of donation made by such donor shall be subject to disclosure if such donor or any entity in which such donor has a substantial interest transacts business with the public postsecondary educational institution to which the donation is made within three years of the date of such donation.”  O.C.G.A. § 50-18-72(a)(29).

MARTA records.

The Act exempts records that would reveal the financial accounts or travel history of any individual who is the purchaser of a travel card from a public transit system, including the Metropolitan Atlanta Rapid Transit Authority.  O.C.G.A. § 50-18-72(a)(30).

Building mapping information.

The Act exempts records building mapping information produced and maintained by statute for the use of first responders in disaster scenarios.  O.C.G.A. § 50-18-72(a)(31).

Child pornography evidence and investigatory materials.

The Act exempts evidence and investigatory materials that are evidence of alleged violations of child pornography statutes in the possession, custody, or control of law enforcement, prosecution, or regulatory agencies.  O.C.G.A. § 50-18-72(a)(32).

Public retirement benefit information expressly exempt from public inspection.

The Act exempts certain public retirement system information otherwise expressly exempt from public inspection.  O.C.G.A. § 50-18-72(a)(33) (citing §§ 47-1-14); § 50-18-72(a)(48) (citing § 47-20-87).

Trade secrets and proprietary information.

The Act is not applicable to "[a]ny trade secrets obtained from a person or business entity that are required, regulation, bid, or request for proposal to be submitted to an agency.”  O.C.G.A. § 50-18-72(a)(34). An entity submitting records containing trade secrets that wishes to keep such records confidential is required to submit and attach to the records an affidavit affirmatively declaring that specific information in the records constitute trade secrets under Georgia law. If the entity attaches such an affidavit, before producing such records in response to a request under this article, the agency shall notify the entity of its intention to produce such records as set forth in this paragraph. If the agency makes a determination that the specifically identified information does not in fact constitute a trade secret, it shall notify the entity submitting the affidavit of its intent to disclose the information within ten days unless prohibited from doing so by an appropriate court order. In the event the entity wishes to prevent disclosure of the requested records, the entity may file an action in superior court to obtain an order that the requested records are trade secrets exempt from disclosure. The entity filing such action shall serve the requestor with a copy of its court filing. If the agency decides that the specifically identified information does constitute a trade secret, the agency shall withhold the records, and the requester may file an action in superior court to obtain an order that the requested records are not trade secrets and are subject to disclosure.  Id.  See, e.g., Ga. Dept. of Natural Resources v. Theragenics Corp., 273 Ga. 724, 725, 545 S.E.2d 904 (2001) (a corporation had the right to enjoin a state agency from allowing a third-party competitor to review the agency's file on the corporation, which included some of the corporation's trade secrets, after the third party filed a request with the agency under the Open Records Act).

Conclusory assertions of trade secret status are insufficient to permit a trial court to enjoin public disclosure of an otherwise public record.  State Rd. & Tollway Auth. v. Elec. Transaction Consultants Corp., 306 Ga. App. 487, 490, 702 S.E.2d 486, 489 (2010).

Research records.

The Act exempts data, records or information of a proprietary nature produced or collected by or for faculty or staff of state institutions of higher learning, or other governmental agencies, in the conduct of, or as a result of, study or research on commercial, scientific, technical, or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or private concern, where such data, records, or information has not been publicly released, published, copyrighted, or patented.  O.C.G.A. § 50-18-72(a)(35).

The Act further exempts any data, records, or information developed, collected, or received by or on behalf of faculty, staff, employees, or students of an institution of higher education or any public or private entity supporting or participating in the activities of an institution of higher education in the conduct of, or as a result of, study or research on medical, scientific, technical, scholarly, or artistic issues, whether sponsored by the institution alone or in conjunction with a governmental body or private entity, until such information is published, patented, otherwise publicly disseminated, or released to an agency whereupon the request must be made to the agency. O.C.G.A. § 50-18-72(a)(36). The exemption specifically includes information provided by participants in research, research notes and data, discoveries, research projects, methodologies, protocols, and creative works.  Id.

Buckley Amendment.

The Act exempts any record that would not be subject to disclosure, or the disclosure of which would jeopardize the receipt of federal funds, under the federal Family Educational Rights and Privacy Act aka the Buckley Amendment.  O.C.G.A. § 50-18-72(a)(37).

Educational records constituting a test that derives value from being unknown to the test taker.

The Act exempts, unless otherwise provided by law, records consisting of questions, scoring keys, and other materials constituting a test that derives value from being unknown to the test taker prior to administration which is to be administered by an agency, including, but not limited to, any public school, any unit of the Board of Regents of the University System of Georgia, any public technical school, the State Board of Education, the Office of Student Achievement, the Professional Standards Commission, or a local school system, if reasonable measures are taken by the owner of the test to protect security and confidentiality.  O.C.G.A. § 50-18-72(a)(38). However, the Act provides that the State Board of Education may establish procedures whereby a person may view, but not copy, such records if viewing will not, in the judgment of the board, affect the result of administration of such test. The Act further provides that the exemption shall not be interpreted by any court of law to include or otherwise exempt from inspection the records of any athletic association or other nonprofit entity promoting intercollegiate athletics.  Id.

Records disclosing sensitive information of research participants.

The Act exempts from public disclosure records disclosing the identity or personally identifiable information of any person participating in research on commercial, scientific, technical, medical, scholarly, or artistic issues conducted by the Department of Community Health, the Department of Public Health, the Department of Behavioral Health and Developmental Disabilities, or a state institution of higher education whether sponsored by the institution alone or in conjunction with a governmental body or private entity.  O.C.G.A. § 50-18-72(a)(39).

Weapons carry licenses.

The Act exempts from public disclosure any permanent records maintained by a judge of the probate court relating to weapons carry licenses, or pursuant to any other requirement for maintaining records relative to the possession of firearms.  O.C.G.A. § 50-18-72(a)(40).

Attorney client privileged and work product records.

The Act requires disclosure of the factual findings of an attorney conducting an internal investigation on behalf of an agency unless the investigation relates to a judicial action brought or to be brought by or against the agency, or the agency is a hospital authority attempting to ensure compliance with state or federal law.  The Act otherwise generally exempts attorney work product and communications subject to the attorney-client privilege. O.C.G.A. § 50-18-72(a)(41) & (42).  A trial court property held that records concerning internal investigation of allegations that members of hospital authority's human resources department had engaged in sexual misconduct were not attorney work product and must be disclosed in response to a request under the Act.  Fulton DeKalb Hosp. Auth. v. Miller & Billips, 293 Ga. App. 601, 603, 667 S.E.2d 455, 458 (2008) (nothing that the Authority commenced the internal investigation not in response to any claim or threat of litigation, but because it received several anonymous complaints regarding inappropriate sexual activity).  A bona fide dispute over whether records have been properly designated attorney-client privileged or work product warrants an in-camera review of the records by a trial court judge.  Cardinale v. Westmoreland, 367 Ga. App. 267, 885 S.E. 2d 275 (2023); Williams v. DeKalb County, 364 Ga. App. 710, 728-30, 875 S.E. 2d 865 (2022).

Confidential tax information.

The Act exempts records containing tax matters or tax information that is confidential under state or federal law.  O.C.G.A. § 50-18-72(a)(43).

Computer programs and software.

The Act exempts records consisting of any computer program or computer software used or maintained in the course of the operation of a public office or agency.  O.C.G.A. § 50-18-72(a)(44).

Insurance rating information.

The Act exempts records pertaining to the rating plans, rating systems, underwriting rules, surveys, inspections, statistical plans, or similar proprietary information used to provide or administer liability insurance or self-insurance coverage to any agency.  O.C.G.A. § 50-18-72(a)(45).

Department of Economic Development project records.

The Act exempts records maintained by the Department of Economic Development pertaining to an economic development project until the project is secured by a “binding commitment” or the project has been terminated.  O.C.G.A. § 50-18-72(a)(46). The Act also exempts records related to any statutory “quick start” training program that would disclose such a project until a binding commitment has been secured.  O.C.G.A. § 50-18-72(a)(47). No later than five business days after the Department of Economic Development secures a binding commitment and the department has committed the use of state funds, the department must post on its website notice of the project and a copy of records documenting the commitment and its negotiation.  The department must also publish notice of the project and the participating parties in the legal organ of each county in which the economic development project is to be located. “Economic development project” for purposes of these exceptions means “a plan or proposal to locate a business, or to expand a business, that would involve an expenditure of more than $25 million by the business or the hiring of more than 50 employees.”  O.C.G.A. § 50-18-72(a)(46).

Child actor and performer labor investigation records.

The Act exempts records and information acquired by the Commissioner of Labor or the Department of Labor as part of any statutory investigation relating to minors employed as actors or performers.  O.C.G.A. § 50-18-72(a)(49), citing § 39-2-18.

Records held for or on behalf of superior court clerks.

The Act exempts records held by the Georgia Superior Court Clerks' Cooperative Authority or any other public or private entity for and on behalf of a clerk of superior court.  O.C.G.A. § 50-18-72(a)(50).

Limo, taxi and other ride-share reports.

Quarterly reports required to be submitted to the Department of Revenue, Atlanta-region Transit Link Authority and the Department of Transportation identifying the number trips provided by county of origin and destination shall be treated as confidential.  O.C.G.A. § 50-18-72(a)(51).

Option available to law enforcement officers to remove personally identifiable information from local government property records websites.

The Act now affords law enforcement officers an option and procedure to request and insist upon removal of their personally identifiable information from all property records that are publicly available on any internet website of counties and municipalities within the state.  O.C.G.A. § 50-18-78.

Section 92F-13 enumerates five grounds for exempting government records from disclosure, inspection, and/or duplication upon request. More than one ground for exemption may apply to any particular record. These grounds for exempting disclosure can never be used to preclude disclosure of the specific types and categories of documents listed in Section 92F-12.

a. Government records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy. Haw. Rev. Stat. § 92F-13(1) (1996).

Under Section 92-50 (repealed), public records did not include records deemed to invade any unconvicted individual's right of privacy. Now, under Section 92F-2 and Section 92F-14, privacy interests do not determine whether a record is a "public record"; instead, government records to which privacy interests attach are "personal records." Haw. Rev. Stat. § 92F-3. An individual's privacy interest and the public's interest in access are weighed against each other to determine whether the record is exempted from disclosure. Accordingly, while personal records of convicted individuals may be protected from disclosure, disclosure of a record may not constitute a clearly unwarranted invasion of personal privacy if the public interest outweighs the privacy interest of the individual. Id. § 92F-14(a). An "individual" is defined by statute as a natural person. Id. § 92F-3; Whether Private Donor Records of the University of Hawaii Foundation Are Subject to Public Disclosure, OIP Op. Ltr. No. 97-3 (Apr. 7, 1997) (finding that individual donors were "individuals" who had privacy interests under the UIPA, but corporations, partnerships, business trusts and associations were not "individuals"). Moreover, generally only a living individual to whom a record refers may have a privacy interest in that record. Photograph of Deceased Former Employee, OIP Op. Ltr. No. 97-2 (Mar. 1, 1997); Toxicology Report, OIP Op. Ltr. No. F15-01 (Sept. 15, 2014) (surviving family members of deceased motorists did not have a significant privacy interest in the decedents’ toxicology report).

Section 92F-14(b) lists some examples of information in which individuals have a significant privacy interest. These include:

Information relating to medical, psychiatric, or psychological history, diagnosis, condition, treatment, or evaluation, other than directory information while an individual is present at such facility;

Information identifiable as part of an investigation into a possible violation of criminal law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;

Information relating to eligibility for social services or welfare benefits or to the determination of benefit levels;

Information in an agency's personnel file, or applications, nominations, recommendations, or proposals for public employment or appointment to a governmental position, except information relating to the status of any formal charges against the employee and disciplinary action taken or information disclosed under Section 92F-12(a)(14) [name, job title, compensation, etc.] and specific information related to employment misconduct that results in employee suspension or discharge;

Information relating to an individual's non-governmental employment history except as necessary to demonstrate compliance with requirements for a particular government position;

Information describing an individual's finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or credit worthiness;

Information compiled as part of an inquiry into an individual's fitness to be granted or to retain a license, except: (A) the record of any proceeding resulting in the discipline of a licensee and the grounds for discipline; (B) information on the current place of employment and required insurance coverage of licensees; and (C) the record of complaints including all dispositions;

Information comprising a personal recommendation or evaluation;

Social security numbers; and

Information that if disclosed would create a substantial and demonstrable risk of physical harm to an individual.”

Haw. Rev. Stat. § 92F-14(b).

The OIP's written advisory opinions have frequently considered privacy interests of individuals in determining whether denial of access to agency records is supportable. See, e.g., Public Access to City Ethics Commission Advisory Opinions, OIP Op. Ltr. No. 96-2 (July 16, 1996) (identities of persons referred to in City Ethics Commission advisory opinions and identities of requesters of such opinions are protected from disclosure); Ethics Advisory, OIP Op. Ltr. No. 07-09 (May 11, 2007) (requiring disclosure of Ethics Commission’s advisory opinion identifying employee whom the Commission concluded had violated ethics laws, where employee was not suspended or discharged for that misconduct); Workers’ Compensation Records, OIP Op. Ltr. No. 10-05 (Dec. 3, 2010) (with the exception of disputed claims on which a final decision has been issued, an individual has a significant privacy interest in the fact that he or she has filed a workers’ compensation claim).

Occasionally, the OIP recommends redaction of personal information whose disclosure would constitute an unwarranted invasion of privacy and disclosure of the remaining portions of government records. See, e.g., Senior Mailing List, OIP Op. Ltr. No. 99-6 (Oct. 25, 1999) (disclosing home addresses of senior citizens would constitute an unwarranted invasion of personal privacy and would not shed light on the workings of the government); Applicant Waiting Lists for Section 8 Program Rent-Subsidized Housing, OIP Op. Ltr. No. 92-11 (Aug. 12, 1992) (individuals have a significant privacy interest in information that would reveal that their income is equal to or less than the minimum required for subsidized rent); Public Access to Names and Locations of Inmates Confined in State Correctional Facilities, OIP Op. Ltr. No. 89-14 (Dec. 15, 1989) (disclosing Social Security numbers would say nothing concerning inmates' presence at a facility nor conduct of Corrections Department). But see Status of Certified Payroll Records on Public Works Contracts, OIP Op. Ltr. No. 89-8, at 4 (Nov. 20, 1989) (requiring disclosure without sanitization of certified payroll records pursuant to Section 92F 12(a)(9)), reconfirmed by Reconsideration of OIP Opinion Letter No. 89-8, OIP Op. Ltr. No. 97-7 (July 18, 1997).

b. Government records pertaining to the prosecution or defense of any judicial or quasi-judicial action to which the State or any county is or may be a party, to the extent that such records would not be discoverable. Haw. Rev. Stat. § 92F-13(2).

The exception allows withholding of traffic accident data that was compiled or collected for purposes of a federal program identified in section 409 of Title 23 of the United States Code to which the discovery and evidentiary privilege would apply. Traffic Accident Data, OIP Op. Ltr. No. 10-04 (Nov. 3, 2010).

The OIP has interpreted this exception to encompass the state's refusal to disclose settlement agreements with some but not all of the defendants in ongoing litigation concerning Aloha Stadium (site of the Pro Bowl). Public Access to Aloha Stadium Litig. Settlement Agreements, OIP Op. Ltr. No. 89-10 (Dec. 12, 1989) (requiring final resolution before disclosure to media). More recently, however, the OIP noted that this exception does not protect from disclosure records that an agency merely fears will be used in future litigation. Document Reviews Prepared by the Comm'n on Persons With Disabilities, OIP Op. Ltr. No. 92-5 (June 16, 1992) (refusing to validate denial of access to reports based on agency's concern that documents would be used in litigation against government agencies failing to comply with federal physical access laws).

Nor does the exception prevent disclosure of general policies of law enforcement conduct, including standards for police conduct, HPD Standards of Conduct, OIP Op. Ltr. No. 91-3 (Mar. 22, 1991), and for state corrections officials, Standards of Conduct of the Dep't of Corrections, OIP Op. Ltr. No. 92-1 (Feb. 21, 1992) (holding disclosure does not frustrate legitimate government function).

However, the OIP has opined that the agency is not required to disclose internal memoranda nor an internal work order which contain information protected by attorney work product privilege. Request for Records Containing Attorney Work Product, OIP Op. Ltr. No. 98-3 (May 11, 1998) (finding that the documents were work product that would not be discoverable pursuant to Rule 26 of the Hawaii Rules of Civil Procedure and thus, exempt from disclosure under Section 92F-13(2)); Denial of Access to a Corporation Counsel Opinion, OIP Op. Ltr. No. F14-01 (June 5, 2014) (finding that a memorandum issued by the Department of Corporation Counsel, City & County of Honolulu to the Department of Planning and Permitting contained confidential information protected by the attorney-client privilege and thus was exempt from disclosure under Section 93F-13(2)-(4)).

c. Government records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function. Haw. Rev. Stat. § 92F-13(3).

A government agency has the discretion to withhold from public disclosure information that it maintains as part of its decision-making function pursuant to the frustration of a legitimate government function exception under Section 92F-13(3). Request for Advisory Letter, OIP Op. Ltr. No. 00-01 (Apr. 12, 2000). In recognizing the decision-making function of the agencies, the OIP has opined that disclosure of records that are both pre-decisional and deliberative would frustrate agency decision-making functions. Drafts of Correspondence and Staff Notes, OIP Op. Ltr. No. 90-8 (Feb. 12, 1990). A record is pre-decisional if it is made "antecedent to the adoption of an agency policy." Financial and Compliance Audit Prepared by Private Consultant, OIP Op. Ltr. No. 90-21 (June 20, 1990) (citing Jordan v. Dept. of Justice, 591 F.2d 753, 744 (D.C. Cir. 1978)).            Further, a record is deliberative if it is "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal policy matters." Id. (citing Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975)). The OIP, however, has recognized three categories of records that are not protected under the frustration of a legitimate government function exception. Those categories are: (1) post-decisional documents; (2) certain factual materials and (3) excepted records that are incorporated or adopted in an agency's final decision. Id.

An agency, however, may easily waive the privilege if it initiates discussion of the deliberative processes involved. Intra-Agency Memoranda Cited or Identified at a Pub. Meeting, OIP Op. Ltr. No. 91-22 (Nov. 25, 1991) (discussing at a public meeting an internal agency memo detailing current status of complaints held to waive agency's right to maintain confidentiality of memo pursuant to exception for disclosure likely to frustrate a legitimate government function).

Under certain circumstances, an agency may deny access to its internal policies to avoid frustration of a legitimate government function. Upon examination of general orders of the Hawaii County Police Department, the OIP invoked the following two-part test from Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C Cir. 1981) for determining whether sensitive material is exempt from mandatory disclosure: (1) requested document is "predominately internal" and (2) disclosure "significantly risks circumvention of agency regulations or statutes." Public Access to General Order Nos. 528, 601, 602, 604, 606, 804, and 805, OIP Op. Ltr. No. 95-13 (May 8, 1995). In applying the Crooker test, the OIP determined that disclosure of general orders relating to motor vehicle pursuit tactics and procedures for the use of chemical agents to disable violent subjects could significantly risk the circumvention of the law and undermine the effectiveness of such procedures. Id.

An agency may also deny access to the identity of persons complaining of civil law violations on the grounds that public disclosure would likely chill the agency's legitimate government function of investigating and enforcing possible violations of law because individuals would be less likely to come forward with information. See, e.g., Identities of Informants, OIP Op. Ltr. No. 99-8 (Nov. 29, 1999) (Department of Land and Natural Resources could withhold the identities of informants); Identities of Complainants to Department of Health Alleging Violations of Hawaii Labeling Laws, OIP Op. Ltr. No. 99-7 (Nov. 3, 1999) (Department of Health could withhold identities of informants by redacting the name and any information that could lead to the identification of the individual); Public Requests for City Ethics Commission Advisory Opinions, OIP Op. Ltr. No. 98-1 (Jan. 16, 1998) (finding that when an advisory opinion about a specifically named individual has been requested no amount of segregation can protect the identity of the people involved in the opinion, thus advising the City Ethics Commission to provide copies of all advisory opinions that have already been segregated for public disclosure).

In a case where the Office of State Planning had obtained confidential business information — compilation of data on the geographic location and status of rare species and ecosystems in Hawaii — from an outside source, the OIP opined that disclosure of the information would result in the impairment of the agency's ability to obtain such information and in substantial competitive harm to the outside source. Access to Information Contained in State Geographic Information System Database, OIP Op. Ltr. No. 97-9 (Dec. 17, 1997). Under those circumstances, the OIP found that such information was exempt from disclosure because the agency's inability to obtain the information would frustrate its ability to effectively carry out its planning and environmental functions. Id.

The OIP has determined that agency opinion surveys containing statistical and aggregate reports generated from opinion surveys are largely factual compilations that must be made available to the public. State of Hawaii Management Study Reports Compiled by SMS Research & Marketing Services Inc., OIP Op. Ltr. No. 95-24 (Oct. 6, 1995). In contrast, the OIP stated that verbatim comments and opinions set forth in survey reports should be withheld under the UIPA's frustration of a legitimate government function exception because the verbatim comments are linked to individual survey respondents and would likely chill free and candid responses to survey questions. Id. Similarly, the OIP has concluded an agency may withhold commercial or financial information voluntarily submitted to it in response to a survey to the extent that the submitters themselves do not customarily release the information to the public, because release of such information would impair the agency’s ability to get such information in the future and thus frustrate a legitimate function of the agency. Information From Survey Responses, OIP Op. Ltr. No. 05-13 (May 23, 2005).

When the government invokes this exception to the UIPA's general rule mandating disclosure, it is important to weigh against its assertion the public policies supporting disclosure, which aim to facilitate oversight of government operations. Applicability of UIPA to State Fin. Assistance Programs Records, OIP Op. Ltr. No. 89-5 (Nov. 20, 1989) (balancing relationship of government with loan applicants-which government alleged was threatened by the release of financial information concerning private sector companies receiving publicly financed loans-against the public's prevailing interest in its ability to scrutinize government agencies' handling of public funds).

The OIP has also opined that this exemption and the exemption under Section 92F-13(4) allows an agency to withhold access to government records that are within the scope of the attorney-client privilege or attorney work-product doctrine. Access to Timesheets of Deputy Attorneys General, OIP Op. Ltr. No. 96-3 (Aug. 12, 1996) (finding that timesheets prepared by state deputy attorneys must be made available for inspection and copying after segregating the specific nature of the work); Denial of Access to a Corporation Counsel Opinion, OIP Op. Ltr. No. F14-01 (June 5, 2014) (finding that a memorandum issued by the Department of Corporation Counsel, City & County of Honolulu to the Department of Planning and Permitting contained confidential information protected by the attorney-client privilege and thus was exempt from disclosure under Sections 93F-13(2)-(4)).

Also in the litigation context, OIP has opined that an agency may withhold the terms of an agency’s settlement agreement under this exception, but only while the agency is engaged in ongoing settlement negotiations with similarly situated defendants. See Aloha Stadium Settlement Agreements, OIP Op. Ltr. No. 89-10 (Dec. 12, 1989). The exception ceases to apply once a settlement is final. See id. OIP applied such reasoning to conclude that the disclosure is required of amounts paid by Kauai County under its private liability insurance policies to settle claims against the County related to the Ka Loko Dam breach. Settlement Proceeds paid by County’s Private Insurers, OIP Op. Ltr. No. 10-01 (July 28, 2010). The disclosure requirement is not diminished by the fact that the settlement proceeds were paid out of private insurance proceeds as opposed to money from the County’s coffers, nor that the settlement agreement contained a confidentiality clause. Id.

While records requests place an administrative burden on agencies, according to the OIP, those administrative burdens do not constitute a frustration of a legitimate government purpose. Monthly Outstanding Checks Reports, OIP Op. Ltr. No. 98-4 (June 17, 1998); see State Org. of Police Officers v. Soc'y of Professional Journalists, 83 Haw. 378, 394-96, 927 P.2d 386, 402-04 (1996) (stating that the UIPA contains no exception from disclosure for requests that an agency deems too burdensome).

d. Government records which, pursuant to state or federal law including an order of any state or federal court, are protected from disclosure. Haw. Rev. Stat. § 92F-13(4).

The OIP has construed this exemption to include confidentiality rules promulgated under the state constitutional provision that protects the Judicial Selection Commission's deliberative processes. Judicial Selection Comm'n's List of Nominees to Fill Judicial Vacancy, OIP Op. Ltr. No. 92-3 (Mar. 19, 1992) (upholding Haw. Const. art. VI, § 4 as state law protecting the Commission's deliberative processes and nominee lists submitted to the governor from disclosure but suggesting – without asserting jurisdiction to make such a decision – that non-deliberative records of the Commission should be disclosed notwithstanding the priority of the constitutional provision over the UIPA).

Court orders frequently bar disclosure otherwise sanctioned by the UIPA. Although the OIP recommended disclosure of records pertaining to sexual harassment charges filed against a University of Hawaii faculty member, Disclosure of Sexual Harassment Complaint and Disciplinary Action Taken Against Univ. of Haw. Faculty Member, OIP Op. Ltr. No. 90-12 (Feb. 26, 1990), a court subsequently ordered the university administration not to disclose the identity of the individual faculty member against whom charges had been filed and disciplinary action taken. The basis for the court's order, superseding disclosure otherwise mandated by the UIPA, lay in the collective bargaining agreement between the faculty union and the university administration. Order Granting Preliminary Injunction, Feb. 7, 1991, Hawaii Gov't Employees' Ass'n v. University of Haw., Civ. No. 91-0074-01 (Haw. 1st Cir., filed Jan. 11, 1991).

e. Inchoate and draft working papers of legislative committees including budget worksheets and unfiled committee reports; work product; records or transcripts of an investigating committee of the legislature which are closed by rules adopted pursuant to [S]ection 21-4 and personal files of members of the legislature. Haw. Rev. Stat. § 92F-13(5).

This provision clearly protected from disclosure a Senate committee report which a majority of the committee members had refused to endorse. Unfiled Senate Comm. Report, OIP Op. Ltr. No. 90-19 (May 23, 1990).

These are the specific exemptions as detailed in Idaho Code §§ 74-104 through 74-111 and 74-124.

"(1) Investigatory records compiled for law enforcement purposes by a law enforcement agency.
However, this exemption from disclosure applies only to the extent that the production of such records would:

(a) Interfere with enforcement proceedings;

(b) Deprive a person of a right to a fair trial or an impartial adjudication;

(c) Constitute an unwarranted invasion of personal privacy;

(d) Disclose the identity of a confidential source or confidential information furnished only by a confidential source;

(e) Disclose investigative techniques and procedures; or

(f) Endanger the life or physical safety of law enforcement personnel.

In addition, the exemption does not apply to reports prepared by a law enforcement agency in connection with a motor vehicle collision if the report is being requested by any person involved in the collision, their legal representative, or insurer."

Idaho Code § 74-124(1)-(2).

A recent Idaho Court of Appeals decision interpreting this language held that there is no categorical exemption for all records related to ongoing police investigations. Hymas v. Meridian Police Dept., 156 Idaho 739, 330 P.3d 1097 (Ct. App. 2014). The court concluded that the ongoing nature of an investigation into a death from apparent carbon monoxide poisoning was not a sufficient basis for police department to categorically deny the plaintiff’s public records request in its entirety and not provide any documents until the investigation was complete. 156 Idaho at 746. Thus, the law enforcement agency had a duty to examine the documents subject to the request and separate the exempt and nonexempt material and make the nonexempt material available to the requestor, regardless of whether the investigation was active or inactive. Id.

(2) Any public record exempt from disclosure by federal or state law or federal regulations to the extent specifically provided for by such law or regulation. Idaho Code § 74-104(1).

(3) Records contained in Court files of judicial proceedings, the disclosure of which is prohibited by or under rules adopted by the Idaho Supreme Court, but only to the extent that confidentiality is provided under such rules, and any drafts or any working memoranda related to judicial decision making. However, this exemption does not apply to the extent that such records or information are necessary for a background check required by federal law regulating the sale of firearms, guns, or ammunition. Idaho Code § 74-104(2).

(4) Investigatory records of law enforcement agency as defined in Idaho Code § 74-101(7) under the conditions set forth in Idaho Code § 74-124. Idaho Code § 74-105(1).

(5) Juvenile records, except that facts contained in such records shall be furnished upon request in a manner determined by the Court to persons in governmental and private agencies and institutions conducting pertinent research studies having a legitimate interest in protection, welfare and treatment of the juvenile who is 13 years of age or younger. If the juvenile is charged with the offense which would be a criminal offense if committed by an adult, the name, offense of which the juvenile is petitioned or charged and the disposition of the Court shall be subject to disclosure as provided in Idaho Code § 20-525. Additionally, any facts requested by a school district where the juvenile is enrolled or seeking enrollment shall be furnished. Idaho Code § 74-105(2).

(6) Records of the custody review board of the Idaho department of juvenile corrections, including records containing the names, addresses and written statements of victims and family members of juveniles. Idaho Code § 74-105(3).

(7) Any records of the department of corrections which the public interest in confidentiality, public safety, security and habilitation clearly outweighs the public interest in disclosure (74-105(4)(a)(i)), records that contain any identifying information, or any information that would lead to the identification of any victims or witnesses (74-105(4)(a)(ii)), records that reflect future transportation or movement of a prisoner (74-105(4)(a)(iii)), records gathered during the course of the presentence investigation (74-105(4)(a)(iv)), and records of a prisoner or probationer shall not be disclosed to any other prisoner or probationer, and are exempt from disclosure. Idaho Code § 74-105(a)(v). Records of buildings, facilities, infrastructure and systems held by or in the custody of any public agency are exempt if the disclosure of such information would jeopardize the safety or persons or the public safety. Idaho Code § 74-105(4)(b). Records of commissions or pardons and parole, along with names, addresses and written statements of victims are exempt from disclosure. Idaho Code 74-105(4)(c).

(8) Voting records of the sexual offender classification board. The written record of the vote to classify an offender as a violent sexual predator by each board member and each case reviewed by that board member shall be made available upon request only to the Governor, chairman of the Senate Judiciary and Rules Committee, and the chairman of the House of Representatives Judiciary, Rules and Administration Committee, for all lawful purpose. Idaho Code § 74-105(5).

(9) Records of the sheriff or Idaho state police received or maintained pursuant to section 18-3302H and 18-3302K, Idaho Code, relating to an applicant or licensee except that any law enforcement officer and law enforcement agency, whether inside or outside the state of Idaho, may access information maintained in the license record system as set forth in section 18-3302K(16), Idaho Code. Idaho Code § 74-105(6).

(10) Records of investigations prepared by the department of health and welfare dealing with protection of children, rehabilitation of youth, adoptions and commitment of mentally ill persons. However, for reasons of health and safety, best interests of the child or public interest, the department of health and welfare may provide for the disclosure of records of investigations associated with actions pursuant to the provisions of chapter 16, title 16, Idaho Code, prepared by the department of health and welfare pursuant to its statutory responsibilities dealing with the protection of children except any such records regarding adoptions shall remain exempt from disclosure. Idaho Code § 74-105(7).

(11) Records including, but not limited to, investigative reports resulting from investigations into complaints of discrimination conducted by the Idaho human rights commission, unless the public interest in allowing the inspection and copying of such records outweighs the legitimate public or private interests in maintaining confidentiality of such records. However, a person may inspect and copy documents from an investigative file to which he or she is a named party if such documents are not otherwise prohibited from disclosure by federal law or regulation or state law. In addition, the confidentiality of this exemption no longer applies to any record used in any judicial proceeding brought by a named party to the complaint or investigation, or by the Idaho human rights commission, relating to the complaint of discrimination. Idaho Code § 74-105(8).

(12) Records containing information obtained by the manager of the Idaho State Insurance Fund pursuant to chapter 9, title 72, Idaho Code, from or on behalf of employers or employees contained in underwriting in claims for benefit files. Idaho Code § 74-105(9).

(13) Worker's compensation records of the Idaho industrial commission provided that the industrial commission shall make such records available:

(a) To parties in any worker's compensation claim and to the Industrial Special Indemnity Fund of Idaho; or

(b) To employers or prospective employers subject to the provisions of the Americans with disabilities act, 42 U.S.C. 12112, or other statutory limitations, who certify that the information is being requested with respect to a worker to whom the employer has extended an offer of employment and will be used in accordance with the provisions of the Americans with disabilities act, 42 U.S.C. 12112, or other statutory limitations; or

(c) To employers and prospective employers not subject to provisions of the Americans with Disabilities Act, 42 U.S.C. 12111, or other statutory limitations, provided the employer presents written authorization from the person to whom the records pertain; or

(d) To others who demonstrate that the public interest in allowing inspection and copying of such records outweighs the public or private interest in maintaining the confidentiality of such records, determined by a civil court of competent jurisdiction; or

(e) Although a claimant’s records maintained by the industrial commission, including medical and rehabilitation records, are otherwise exempt, the quoting or discussing of medical or rehabilitation records contained within the industrial commission’s records during a hearing for compensation or in a written decision issued by the industrial commission shall be permitted except that that true identities of the parties shall be exempt.

Idaho Code § 74-105(10)(a)-(e).

(14) Records of investigations compiled by the commission on aging involving vulnerable adults, as defined in section 18-1505, Idaho Code, alleged to be abused neglected or exploited. Idaho Code § 74-105(11).

(15) Criminal history records and fingerprints, as defined by section 67-3001, Idaho Code, compiled by the Idaho State Police. Such records shall be released only in accordance with chapter 30, title 67, Idaho Code. Idaho Code § 74-105(12).

(16) Records furnished or obtained pursuant section 41-1019, Idaho Code, regarding termination of an appointment, employment, contract or other insurance business relationship between an insurer and a producer. Idaho Code § 74-105(13).

(17) Records of a prisoner or former prisoner in the custody of any state or local correctional facility, when the request is made by another prisoner in the custody of any state or local correctional facility. Idaho Code § 74-105(14). [Note: this exemption appears to duplicate, in large part, the exemption found in Idaho Code § 74-105(4)(a)(v).]

(18) Except as provided in section 72-1007, Idaho Code, records of the Idaho industrial commission relating to compensation for crime victims under chapter 10, title 72, Idaho Code. Idaho Code § 74-105(15).

(19) Records or information identifying a complainant maintained by the department of health and welfare pursuant to section 39-3556, Idaho Code, relating to certified family homes, unless the complainant consents in writing to the disclosure or disclosure of the complainant’s identity is required in any administrative or judicial proceeding. Idaho Code § 74-105(16).

(20) Records of any certification or notification required by federal law to be made in connection with the acquisition or transfer of a firearm, including a firearm as defined in 26 U.S.C. 5845(a). Idaho Code § 74-105(17).

(21) Records related to the administration of the extraordinary litigation fund by the state public defense commission, pursuant to section 19-850(2)(e), Idaho Code, to the extent that such records contain information protected by, or exempted from disclosure by, or under rules adopted by the Idaho supreme court, attorney work product or as attorney-client privileged communication. This exemption does not include the amount awarded based upon an application for extraordinary litigation funds. Idaho Code § 74-105(18).

(22) All personnel records of a current or former public official other than the public official's public service or employment history, classification, pay grade and step, longevity, gross salary and salary history, status, workplace and employing agency. All other personnel information relating to a public employee or applicant including, but not limited to, information regarding sex, race, marital status, birth date,’ home address and telephone number, applications, testing and scoring materials, grievances, correspondence and performance evaluations, shall not be disclosed to the public without the employee's or applicant's written consent. Names of applicants to classified or merit system positions shall not be disclosed to the public without the applicant's written consent. Disclosure of names as part of a background check is permitted. Names of the five (5) final applicants to all other positions shall be available to the public. If such group is less than five (5) finalists, then the entire list of applicants shall be available to the public. However, a public official or authorized representative may inspect and copy his or her personnel records, except for material used to screen and test for employment. Idaho Code § 74-106(1).

(23) Retired employees and retired public officials’ home addresses, home telephone numbers and other financial and non-financial membership records; active and inactive member, financial and membership records and mortgage portfolio loan documents maintained by the public employee retirement system. Financial statements prepared by the retirement system staff, funding agents and custodians concerning the investment of assets that public employees retirement system of Idaho are not considered confidential under this chapter. Idaho Code § 74-106(2).

(24) Information and records submitted to the Idaho state lottery for the performance of background investigations of employees, lottery retailers and major procurement contractors; validation and security tests of the state lottery for lottery games; business records and information submitted pursuant to section 67-7412(8) and (9), Idaho Code, and such documents and information obtained and held for the purpose of lottery security and investigative action as determined by lottery rules unless the public interest in disclosure substantially outweighs the private need for protection from public disclosure. Idaho Code § 74-106(3).

(25) Records of a personal debt filed with a public agency or independent public body pursuant to law; personal bank records compiled by a public depositor for the purpose of public funds transactions conducted pursuant to law; records of ownership or financial obligations and instruments of a public agency or independent public body, such as bonds, compiled by public agency or independent public body pursuant to law; records, with regard to ownership of, and for security interest in, registered public obligations; vital statistic records; and military records as described in and pursuant to section 65-301, Idaho Code. Idaho Code § 74-106(4)(a)-(f).

(26) Information in an income or other tax return measured by items of income or sales, which is gathered by a public agency for the purpose of administering the tax, except such information to the extent disclosed in a written decision of the tax commission pursuant to a taxpayer protest of a deficiency determination by the tax commission under the provisions of section 63-3045B, Idaho Code. Idaho Code § 74-106(5).

(27) Records of a personal nature related directly or indirectly to the application for and provision of state statutory services rendered to persons applying for public care for the elderly, indigent, or mentally or physically handicapped, or participation in an environmental or a public health study. However, this exemption shall not apply to the extent that such records or information are necessary for a background check required by federal law regulating the sale of firearms, guns or ammunition. Idaho Code § 74-106(6).

(28) Employment security information, except that a person may agree, through written, informed consent, to waive the exemption so that a third party may obtain information pertaining to the person, unless access to the information by the person is restricted by subsection (3)(a), (3)(b) or (3)(d) of section 74-113, Idaho Code. Notwithstanding the provisions of section 74-113, Idaho Code, a person may not review identifying information concerning an informant who reported to the department of labor a suspected violation by the person of the employment security law, chapter 13, title 72, Idaho Code, under an assurance of confidentiality. As used in this section and in chapter 13, title 72, Idaho Code, “employment security information” means any information descriptive of an identifiable person or persons that is received by, recorded by, prepared by, furnished to or collected by the department of labor or the industrial commission in the administration of the employment security law. Idaho Code § 74-106(7).

(29) Any personal records, other than names, business addresses and business phone numbers, such as parentage, race, religion, sex, height, weight, tax identification and Social Security numbers, financial worth or medical conditions submitted to any public agency or independent public body, pursuant to a statutory requirement for licensing, certification, permit or bonding. Idaho Code § 74-106(8).

(30) Unless otherwise provided by agency rule, information obtained as part of an inquiry into a person’s fitness to be granted or retain a license, certificate, permit, privilege, or commission or position, private association or peer review committee records authorized in title 54, Idaho Code, unless provided by agency rule. Any agency which has records exempt from disclosure under the provisions of this subsection shall annually make available a statistical summary of the number and types of matters considered and their disposition. Idaho Code § 74-106(9).

(31) The records, findings, determinations and decisions of any pre-litigation screening panel formed under chapter 10 and 23, title 6, Idaho Code. Idaho Code § 74-106(10).

(32) Complaints received by the Board of Medicine and investigations and informal proceedings, including informal proceedings of any committee of the Board of Medicine, pursuant to chapter 18, title 54, Idaho Code, and rules adopted thereunder. Idaho Code § 74-106(11).

(33) Records of the department of health and welfare or public health district that identify a person infected with a reportable disease. Idaho Code § 74-106(12).

(34) Records of hospital care, medical records, including prescriptions, drug orders, records or any other prescription information that specifically identifies an individual patient, prescription records maintained by the board of pharmacy under sections 37-2726 and 37-2730A, Idaho Code, or records of psychiatric care or treatment and professional counseling records relating to an individual condition, diagnosis, care or treatment, provided the provisions of this subsection making records exempt from disclosure shall not apply to the extent that such records or information contained in those records are necessary for a background check on an individual that is required by federal law regulating the sale of firearms, guns or ammunition. Idaho Code § 74-106(13).

(35) Information collected pursuant to the directory of new hires act, chapter 16, title 72, Idaho Code. Idaho Code § 74-106(14).

(36) Personal information contained in motor vehicle and driver records that is exempt from disclosure under the provisions of chapter 2, title 49, Idaho Code. Idaho Code § 74-106(15).

(37) Records of the financial status of prisoners pursuant to section 20-607(2), Idaho Code. Idaho Code § 74-106(16).

(38) Records of Idaho state police or department of correction received or maintained pursuant to section 19-5514, Idaho Code, relating to DNA databases and databanks. Idaho Code § 74-106(17).

(39) Records of the department of health and welfare relating to a survey, resurvey or complaint investigation of a licensed nursing facility shall be exempt from disclosure. Such records shall, however, be subject to disclosure as public records as soon as the facility in question has received the report, and no later than the fourteenth day following the date that the department of health and welfare representatives officially exit the facility pursuant to federal regulations. Provided, however, that for purposes of confidentiality, no records shall be released under this section which specifically identifies any nursing facility resident. Idaho Code § 74-106(18).

(40) Records and information contained in the registry of immunizations against childhood diseases maintained in the department of health and welfare, including information disseminated to others from the registry by the department of health and welfare. Idaho Code § 74-106(19).

(41) Records of the Idaho Housing and Finance Association ("IHFA") relating to the following:

(a) Records containing personal, financial, family, health or similar personal information submitted to or otherwise obtained by the IHFA;

(b) Records submitted to or otherwise obtained by the IHFA with regard to obtaining and servicing mortgage loans and all records related to the review, approval or rejection by the IHFA of said loans;

(c) Mortgage portfolio loan documents;

(d) Records of a current or former employee other than the employee’s duration of employment with an association, position held and location of employment. This exemption from disclosure does not include the contracts of employment or any remuneration, including reimbursement of expenses, of the executive director, executive officers or commissioners of the association. All other personnel information relating to an association employee or applicant including, but not limited to, information regarding sex, race, marital status, birth date, home address and telephone number, applications, testing and scoring materials, grievances, correspondence, retirement plan information and performance evaluations, shall not be disclosed to the public without the employee’s or applicant’s written consent. An employee or authorized representative may inspect and copy that employee's personnel records, except for material used to screen and test for employment or material not subject to disclosure elsewhere in the Idaho public records act.

Idaho Code § 74-106(20)(a)-(d).

(42) Records of the department of health and welfare related to child support services in cases in which there is reasonable evidence of domestic violence, as defined in chapter 63, title 39, Idaho Code, that can be used to locate any individuals in the child support case except in response to a court order. Idaho Code § 74-106(21).

(43) Records of the Idaho state bar lawyer assistance program pursuant to chapter 49, title 54, Idaho Code, unless a participant in the program authorizes the release pursuant to subsection (4) of section 54-4901, Idaho Code. Idaho Code § 74-106(22).

(44) Records and information contained in the trauma registry created by chapter 20, title 57, Idaho Code, together with any reports, analyses and compilations created from such information and records. Idaho Code § 74-106(23).

(45) Records contained in the court files, or other records prepared as part of the proceedings for judicial authorization of sterilization procedure pursuant to chapter 39, title 39, Idaho Code. Idaho Code § 74-106(24).

(46) The physical voter registration application on file in the county clerk’s office; however, a redacted copy of said application shall be made available consistent with the requirements of this section. Information from the voter registration application maintained in the statewide voter registration database, including age, will be made available except for the voter’s driver’s license number, date of birth and, upon a showing that the voter comes within the provisions of subsection 30 of this section [enumerated exception (51) of this article] or upon showing of good cause by the voter to the county clerk in consultation with the county prosecuting attorney, the physical residence address of the voter. For the purposes of this subsection good cause shall include the protection of life and property and protection of victims of domestic violence and similar crimes. Idaho Code § 74-106(25).

(47) File numbers, passwords and information in the files of the health care directive registry maintained by the secretary of state under section 39-4515, Idaho Code, are confidential and shall not be disclosed to any person other than to the person who executed the health care directive or the revocation thereof and that person's legal representatives, to the person who registered the health care directive or revocation thereof, and to physicians, hospitals, medical personnel, nursing homes, and other persons who have been granted file number and password access to the documents within that specific file. Idaho Code § 74-106(26).

(48) Records in an address confidentiality program participant’s file as provided for in chapter 57, title 19, Idaho Code, other than the address designated by the secretary of state, except under the following circumstances:

(a) If requested by a law enforcement agency, to the law enforcement agency; or

(b) If directed by a Court order, to a person identified in the order.
Idaho Code § 74-106(27).

(49) Except as otherwise provided by law relating to the release of information to a governmental entity or law enforcement agency, any personal information including, but not limited to, names, personal and business addresses and phone numbers, sex, height, weight, date of birth, social security and driver’s license numbers, or any other identifying numbers and/or information related to any Idaho fish and game licenses, permits and tags unless written consent is obtained from the affected person. Idaho Code § 74-106(28).

(50) Documents and records related to alternatives to discipline that are maintained by the Idaho board of veterinary medicine under the provisions of section 54-2118(1)(b), Idaho Code, provided the requirements set forth therein are met. Idaho Code § 74-106 (29).

(51) The Idaho residential street address and telephone number of an eligible law enforcement officer and such officer’s residing household member(s) as provided for in chapter 58, title 19, Idaho Code, except under the following circumstances:

(a) If directed by a court order, to a person identified in the court order;

(b) If requested by a law enforcement agency, to the law enforcement agency;

(c) If requested by a financial institution or title company for business purposes, to the requesting financial institution or title company; or

(d) If the law enforcement officer provides written permission for disclosure of such information.

Idaho Code § 74-106(30).

(52) All information exchanged between the Idaho transportation department and insurance companies, any database created, all information contained in the verification system and all reports, responses or other information generated for the purposes of the verification system, pursuant to section 49-1234, Idaho Code. Idaho Code § 74-106(31).

(53) Personal information including, but not limited to, property values, personal and business addresses, phone numbers, dates of birth, social security and driver’s license numbers or any other identifying numbers or information maintained by the administrator of the unclaimed property law set forth in chapter 5, title 14, Idaho Code. Nothing in this subsection shall prohibit the release of names, last know city of residence, property value ranges and general property information by the administrator for the purpose of reuniting unclaimed property with its owner. Idaho Code Ann. § 74-106(33).

(54) Trade secrets including those contained in response to public agency or independent public body corporate and politic requests for proposal, requests for clarification, requests for information and similar requests. “Trade secrets” as used in this section means information, including a formula, pattern, compilation, program, computer program, device, method, technique, process or unpublished or in-progress research that:

(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and

(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Idaho Code § 74-107(1).

(55) Production records, housing production, rental and financing records, sale or purchase records, catch records, mortgage portfolio loan documents, or similar business records of a private concern or enterprise required by law to be submitted to or inspected by a public agency or submitted to or otherwise obtained by an independent public body corporate and politic. Nothing in this subsection shall limit the use which can be made of such information for regulatory purposes or its admissibility in any enforcement proceeding. Idaho Code § 74-107(2).

(56) Records relating to the appraisal of real property, timber or mineral rights prior to its acquisition, sale, or lease by a public agency or independent public body corporate and politic. Idaho Code § 74-107(3).

(57) Any estimate prepared by a public agency or independent public body corporate and politic that details the cost of a public project until such time as disclosed or bids are opened, or upon award of the contract for construction of the public project. Idaho Code § 74-107(4).

(58) Examination, operating or condition reports and all documents relating thereto, prepared by or supplied to any public agency or independent public body corporate and politic responsible for the regulation or supervision of financial institutions including, but not limited to, banks, savings and loan associations, regulated lenders, business and industrial development corporations, credit unions, and insurance companies, or for the regulation or supervision of the issuance of securities. Idaho Code § 74-107(5).

(59) Records gathered by a local agency or the Idaho department of commerce, as described in chapter 47, title 67, Idaho Code, for the specific purpose of assisting a person to locate, maintain, invest in, or expand business operations in the state of Idaho. Idaho Code § 74-107(6).

(60) Shipping and marketing records of commodity commissions used to evaluate marketing and advertising strategies and the names and addresses of growers and shippers maintained by commodity commissions. Idaho Code § 74-107(7).

(61) Financial statements and business information and reports submitted by a legal entity to a port district organized under title 70, Idaho Code, in connection with a business agreement, or with a development proposal or with a financing application for any industrial, manufacturing, or other business activity within a port district. Idaho Code § 74-107(8).

(62) Names and addresses of seed companies, seed crop growers, seed crop consignees, locations of seed crop fields, variety name and acreage by variety. Upon the request of the owner of the proprietary variety, this information shall be released to the owner. Provided however, that if a seed crop has been identified as diseased or has been otherwise identified by the Idaho department of agriculture, other state departments of agriculture, or the United States department of agriculture to represent a threat to that particular seed or commercial crop industry or to individual growers, information as to test results, location, acreage involved and disease symptoms of that particular seed crop, for that growing season, shall be available for public inspection and copying. This exemption does not supersede the provisions of section 22-436, Idaho Code, nor shall this exemption apply to information regarding specific property locations subject to an open burning of crop residue pursuant to section 39-114, Idaho Code, names of persons responsible for the open burn, acreage and crop type to be burned, and time frames for burning. Idaho Code § 74-107(9).

(63) Information obtained from books, records and accounts required in chapter 47, title 22, Idaho Code, to be maintained by the Idaho oilseed commission and pertaining to the individual production records of oil seed growers. Idaho Code § 74-107(10).

(64) Records of any risk retention or self insurance programs prepared in anticipation of litigation or for analysis or settlement of potential or actual money damage claims against a public entity and its employees or against the industrial special indemnity fund except as otherwise discoverable under the Idaho or federal rules of civil procedure. These records shall include, but are not limited to, claims evaluations, investigatory records, computerized reports of losses, case reserves, internal documents and correspondence relating thereto. At the time any claim is concluded, only statistical data and actual amounts paid in settlement shall be deemed public records unless otherwise ordered to be sealed by a court of competent jurisdiction. Provided, however, nothing in this subsection is intended to limit the attorney client privilege or attorney work produce privilege otherwise available to public agency or independent public body corporate and politic. Idaho Code § 74-107(11).

(65) Records of laboratory test results provided by or retained by the Idaho food quality assurance laboratory. Nothing in this subsection shall limit the use which caan be made, or availability of such information if used, for regulatory purposes or its admissibility in any enforcement proceeding. Idaho Code § 74-107(12).

(66) Reports required to be filed under chapter 13, title 62, Idaho Code, identifying electrical or natural or manufactured gas consumption data for the individual customer or account. Idaho Code § 74-107(13).

(67) Voluntarily prepared environmental audits, and voluntary disclosures of information submitted on or before December 31, 1997, to an environmental agency which are claimed to be confidential business information. Idaho Code § 74-107(14).

(68) Computer programs developed or purchased by or for any public agency or independent public body corporate and politic for its own use. As used in this subsection, “computer program” means a series of instructions or statements which permit the functioning of a computer system in a manner designed to provide storage, retrieval and manipulation of data from the computer system, and any associated documentation and source material that explain how to operate the computer program. Computer program does not include:

(a) The original data including, but not limited to, numbers, text, voice, graphics and images;

(b) Analysis, compilation and other manipulated forms of the original data produced by use of the program; or

(c) The mathematical or statistical formulas that would be used if the manipulated forms of the original data were to be produced manually.
Idaho Code § 74-107(15).

(69) Active investigative records and trademark usage audits of the Idaho potato commission specifically related to the enforcement of chapter 12, title 22, Idaho Code, until the commencement of formal proceedings as provided by the rules of the commission; purchase and sales information submitted to the Idaho potato commission during a trademark usage audit, and investigation or enforcement proceedings. Inactive investigatory records shall be disclosed unless the disclosure would violate the standards set forth in subsection (1)(a) through (f) of section 74-124, Idaho Code. Nothing in this subsection shall limit the use which can be made, or availability of such information if used, for regulatory purposes or its admissibility in any enforcement proceeding. Idaho Code § 74-107(16).

(70) All records copied or obtained by the director of the department of agriculture of his designee as a result of an inspection pursuant to section 25-3806, Idaho Code, except:

(a) Records otherwise deemed to be public records not exempt from disclosure pursuant to this chapter; and

(b) Inspection reports, determinations of compliance or noncompliance and all other records created by the director of his designee pursuant to section 25-3806, Idaho Code.
Idaho Code § 74-107(17).

(71) All data and information collected by the division of animal industries or the state brand board pursuant to the provisions of section 25-207B, Idaho Codes, or rules promulgated thereunder. Idaho Code § 74-107(18).

(72) Records disclosed to a county official by the state tax commission pursuant to subsection (4)(c) of section 63-3029B, Idaho Code. Idaho Code § 74-107(19).

(73) Records, data, information and materials collected, developed, generated, ascertained or discovered during the course of academic research at public institutions of higher education if the disclosure of such could reasonably affect the conduct or outcome of the research, or the ability of the public institution of higher education to patent or copyright the research or protect intellectual property. Idaho Code § 74-107(20).

(74) Records, data, information and materials collected or utilized during the course of academic research at public institutions of higher education provided by any person or entity other than the public institution of higher education or a public agency. Idaho Code § 74-107(21).

(75) The exemptions from disclosure provided in subsections (20) and (21) of this section [referred to as exemptions 73 and 74 above] shall apply only until the academic research is publicly released, copyrighted or patented, or until the academic research is completed or terminated. At such time, the records, data, information, and materials shall be subject to public disclosure unless: (a) another exemption in this chapter applies; (b) such information was provided to the institution subject to a written agreement of confidentiality; or (c) public disclosure would pose a danger to persons or property. Idaho Code § 74-107(22).

(76) The exemptions from disclosure provided in subsections (20) and (21) of this section [referred to as exemptions 73 and 74 above] do not include basic information about a particular research project that is otherwise subject to public disclosure, such as the nature of the academic research, the name of the researcher, and the amount and source of the funding provided for the project. Idaho Code § 74-107(23).

(77) Records of a county assessor, the state tax commission, a county board of equalization or the state board of tax appeals containing the following information: (i) lists of personal property required to be filed pursuant to section 63-302, Idaho Code, and operating statements required to be filed pursuant to section 63-404, Idaho Code, and (ii) confidential commercial or financial information including trade secrets. Except with respect to lists of personal property required to be filed pursuant to section 63-302, Idaho Code, and the operator statements required to be filed pursuant to section 63-404, Idaho Code, it shall be the responsibility of the taxpayer to give notice of its claim to exemption by stamping or marking each page or the first page of each portion of documents so claimed. No records that are exempt pursuant to this subsection shall be disclosed without the consent of the taxpayer except as follows:

(a) To any officer, employee or authorized representative of the state or the United States, under a continuing claim of confidentiality, as necessary to carry out the provisions of state or federal law or when relevant to any proceeding thereunder.

(b) In the publication of statistics or reports as long as the statistics or reports do not reasonably lead to the identification of the specific taxpayer or information submitted by taxpayers exempt pursuant to this subsection.

(c) To the board of tax appeals or the district court as evidence or otherwise in connection with an appeal of the taxpayer's property tax assessment, but only if the board or the court, as applicable, has entered a protective order specifying that the taxpayer information may not be disclosed by any person conducting or participating in the action or proceeding, except as authorized by the board or the court in accordance with applicable law.

(d) Nothing in this subsection shall prevent disclosure of the following information:
(i) Name and mailing address of the property owner;

(ii) A parcel number;

(iii) A legal description of real property;

(iv) The square footage and acreage of real property;

(v) The assessed value of taxable property;

(vi) The tax district and the tax rate; and

(vii) The total property tax assessed.
Idaho Code § 74-107(24).

(78) Results of laboratory tests which have no known adverse impacts to human health conducted by the Idaho state department of agriculture animal health laboratory, related to diagnosis of animal diseases of individual animals or herds, on samples submitted by veterinarians or animal owners unless:

(a) The laboratory test results indicate the presence of a state or federally reportable or regulated disease in animals;

(b) The release of the test results is required by state or federal law; or

(c) The test result is identified as representing a threat to animal or human health or to the livestock industry by the Idaho state department of agriculture or the United States department of agriculture. Nothing in this subsection shall limit the use which can be made, or availability of such information if used, for regulatory purposes or its admissibility in any enforcement proceeding, or the duty of any person to report contagious or infectious diseases as required by state or federal law. Idaho Code § 74-107(25).

(79) Results of laboratory tests conducted by the Idaho state department of agriculture seed laboratory on samples submitted by seed producers or seed companies. Nothing in this subsection shall limit the use which can be made, or availability of such information pursuant to the provisions of subsections (9) and (10) of section 22-418, Idaho Code. Idaho Code § 74-107(26).

(80) For policies that are owned by private persons, and not by a public agency of the state of Idaho, records of policies, endorsements, affidavits and any records that discuss policies, endorsements and affidavits that may be required to be filed with or by a surplus line association pursuant to chapter 12, title 41, Idaho Code. Idaho Code § 74-107(27).

(81) Individual financial statements of a postsecondary educational institution or a proprietary school submitted to the state board of education, its director or a representative thereof, for the purpose of registering the postsecondary educational institution or proprietary school pursuant to section 33-2402 or 33-2403, Idaho Code, or provided pursuant to an administrative rule of the board adopted pursuant to such sections. Idaho Code § 74-107(28).

(82) Information submitted by insurance companies pursuant to section 41-612(17), Idaho Code. Idaho Code § 74-107(29).

(83) Documents, materials or other information submitted to the director of the department of insurance as provided in chapter 64, title 41, Idaho Code. Idaho Code § 74-107(30).

(84) Reports, information and other materials exempted by chapter 63, title 41, Idaho Code. Idaho Code § 74-107(31).

(85) Records, maps or other records identifying the location of archeological or geophysical sites or endangered species, if not already known to the general public. Idaho Code § 74-108(1).

(86) Archeological and geological records concerning exploratory drilling, logging, mining, and other excavation, when such records are required to be filed by statute for the time provided by statute. Idaho Code § 74-108(2).

(87) Documents and data related to oil and gas production submitted to the department of lands or the oil and gas conservation commission under the provisions of chapter 3, title 47, Idaho Code, provided that the records qualify for confidential status under section 47-327, Idaho Code, under the conditions and for the time provided by statute. Idaho Code § 74-108(3).

(87) The records of a library, which when examined alone, or when examined with other public records, would reveal the identity of the library patron checking out, requesting, or using an item from a library. Idaho Code § 74-108(4).

(88) The material of a library, museum or archive that has been contributed to by a private person, to the extent of any limitation that is a condition on the contribution. Idaho Code § 74-108(5).

(89) Test questions, scoring keys and other data used to administer a licensing examination, employment, academic or other examination or testing procedure before the examination is given if the examination is to be used again. Records establishing procedures for and instructing persons administering, grading or evaluating examination or testing procedures are included in this exemption, to the extent the disclosure would create a risk that the result might be affected. Idaho Code § 74-108(6).

(90) Land management plans required for voluntary stewardship agreements entered into pursuant to law and written agreements relating to the conservation of all species of sage grouse entered into voluntarily by owners or occupiers of land with a soil conservation district. Idaho Code § 74-108(7).

(91) Records consisting of draft legislation and documents specifically related to such draft legislation or research requests submitted to the legislative services office by a member of the Idaho legislature for the purpose of placing such draft legislation into a form suitable for introduction as official proposed legislation, unless the individual legislator having submitted or requested such records or research agrees to waive the provisions of confidentiality provided by this subsection. Idaho Code § 74-109(1).

(92) All papers, physical and electronic records and correspondence or other supporting materials comprising the work papers in the possession of the legislative services office or the director of the legislative performance evaluations prior to the release of the related final audit, and all other records or material in possession of the legislative services office or the director of the legislative performance evaluations that would otherwise be confidential or exempt from disclosure. Idaho Code § 74-109(2).

(93) Records consisting of draft congressional legislative redistricting plans and documents specifically related to such draft redistricting plans or research requests submitted to the commission staff by a member of the commission for reapportionment for the purpose of placing such draft redistricting plan in a form suitable for presentation to the full membership of the commission, unless the individual commission member having submitted or requested such plans or research agrees to waive the provisions of confidentiality provided by this subsection. Idaho Code § 74-109(3).

(94) Records that identify the method by which the Idaho state tax commission selects tax returns for audit review. Idaho Code § 74-109(4).

(95) Records that identify the method by which the administrator of the unclaimed property law set forth in chapter 5, title 14, Idaho Code, selects reports for audit review or conducts audit review of such reports and the identity of individuals or entities under audit. Idaho Code § 74-109(5).

(96) Underwriting and claims records of the Idaho petroleum clean water trust fund obtained pursuant to section 41-4905, 41-4909, 41-4911A, 41-4912A, Idaho Code. Provided however, that this subsection shall not prevent the Idaho petroleum clean water trust fund’s submittal to the Idaho department of environmental quality, or other regulatory agencies of information necessary to satisfy an insured’s correction action requirement under applicable federal or state standards in the event of a release in to the environment from a petroleum storage tank; and provided further that nothing in this subsection shall prevent the Idaho petroleum clean water trust fund from providing auditing, reporting, or actuarial information as otherwise required of it pursuant to section 41-4919, 41-4925A, 41-4928, 41-4930, 41-4932, 41-4937 or 41-4938, Idaho Code. Idaho Code § 74-109(6).

(97) In accordance with section 18-609A, the following records are exempt from public disclosure: all records contained in court files of judicial proceedings arising under section 18-609A, Idaho Code, are exempt from disclosure. Idaho Code § 74-110.

(98) A record obtained or created by the director of the department of finance or a representative of the director in connection with an audit or inspection under section 30-14-411(d), Idaho Code, or an investigation under section 30-14-602, Idaho Code. Idaho Code § 74-111(1).

(99) A part of a record filed in connection with a registration statement under section 30-14-301, Idaho Code, and sections 30-14-303 through 30-14-305, Idaho Code, or a record under section 30-13-411(d), Idaho Code, that contains trade secrets or confidential information if the person filling the registration statement or report has asserted a claim of confidentiality or privilege that is authorized by law. Idaho Code § 74-111(2).

(100) A record that is not required to be provided to the director of the department of finance or filed under chapter 14, title 30, Idaho Code, and is provided to the director only on the condition that the records will not be subject to public examination or disclosure. Idaho Code § 74-111(3).

(101) A nonpublic record received from a person specified in section 30-14-608(a), Idaho Code. Idaho Code § 74-111(4).

(102) Any social security number, residential address unless used as a business address, and residential telephone number unless used as a business telephone number, contained in a record that is filed pursuant to chapter 14, title 30, Idaho Code. Idaho Code § 74-111(5).

The following information is exempt from inspection and copying:

1. Federal or State Law Exemption. Information specifically prohibited from disclosure from federal or state law or rules and regulations adopted under these laws. See 5 ILCS 140/7 (1)(a). In Chicago Tribune v. University of Illinois Board of Trustees, the court held that the federal Family Education Rights and Privacy Act, 20 U.S.C. 1232g (“FERPA”) did not qualify as a FOIA exemption because FERPA does not “specifically prohibit” disclosure of the information. See 5 ILCS 140/7 (1)(a) (emphasis added).  The court notes that this is a narrow ruling because FERPA was the only exemption at issue. Chicago Tribune Co. v. University of Illinois Bd. of Trs., 781 F. Supp. 2d 672 (N.D. Ill. 2011), vacated on other grounds, 680 F.3d 1001 (7th Cir. 2012); 5 ILCS 140/7(1)(a). The Appellate Court of Illinois, Fifth District, held that this exemption did not apply to a state trial court order gagging the parties to a lawsuit from disclosing the terms or conditions of a settlement agreement where the parties themselves had requested the gag order. Carbondale Convention Ctr. Inc. v. City of Carbondale, 245 Ill. App. 3d 474, 477, 185 Ill. Dec. 405, 407, 614 N.E.2d 539, 541 (5th Dist. 1993); see also Kibort v. Westrom, 371 Ill. App. 3d 247, 862 N.E.2d 609 (2d Dist. 2007) (disclosure of election ballots, ballot box tapes and poll signature cards was prohibited by the Election Code and, thus, exempt under 5 ILCS 140/7(1)(a)).
2. Private Information. Private information is exempt from disclosure, unless disclosure is required by another provision of this Act, a State or federal law, or a court order. See 5 ILCS 140/7(1)(b). “Private information” means unique identifiers—such as a person’s social security number, driver’s license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home address and personal license plates, except as otherwise provided by law or when compiled without possibility of attribution to any person. 5 ILCS 140/2(c-5).

Private information also includes “files, documents, and other data or databases maintained by one or more law enforcement agencies and specifically designed to provide information to one or more law enforcement agencies regarding the physical or mental status of one or more individual subjects.” 5 ILCS 140/7(1)(b-5).

Note: The Illinois Appellate Court, First Judicial District, has ruled that a school district must release the information it compiles regarding test scores where that information can be masked and scrambled in order to preserve individual student identities. See Bowie v. Evanston Cmty. Consol. Sch. Dist. 65, 168 Ill. App. 3d 101, 522 N.E.2d 669, 119 Ill. Dec. 7 (1st Dist. 1988). The Fifth District Appellate Court ordered the production of records from the Cancer Registry maintained by the Illinois Department of Public Health. Southern Illinoisan v. Department of Public Health, 349 Ill. App. 3d 431, 812 N.E. 2d 27, 285 Ill. Dec. 438 (5th Dist. 2004). A newspaper had requested records for the diagnosis of neuroblastoma by date of diagnosis and ZIP code. The Illinois Supreme Court affirmed, finding that because the request did not tend to lead to the identity of patients, the documents were not exempt. 218 Ill. 2d 390, 844 N.E. 2d 1 (2006), but see King v. Cook County Health and Hospitals System, 2020 IL App (1st) 190925 (holding unredacted zip codes of mental health patients were exempt where Confidentiality Act and HIPAA regulations protected disclosure). Similarly to Southern Illinoisian, it was held that a request for records from a state hospital system documenting the time and date patients were admitted for gunshot wounds was allowable as patient specific information was not requested. Sun-Times v. Cook County Health and Hospital System, 2021 IL App (1st) 192551, ¶ 27.

3. Personal Information. When disclosure of information contained within a public record would “constitute a clearly unwarranted invasion of personal privacy” that is “highly personal or objectionable to a reasonable person and … the subject’s right to privacy outweighs any legitimate public interest in obtaining the information.” 5 ILCS 140/7(c). The public duties of a public employee or official are not considered an invasion of personal privacy. Id.

Note: If disclosure is consented to in writing by the individual subject of the information, then disclosure is permissible.

Note: Under the Judicial Privacy Act, a judicial officer can make a written request to protect their personal information from public disclosure. However, without a request the information can be publicly posted. 705 ILCS 90/1-5. This information is then exempt and redacted before a public record can be disclosed. 5 ILCS 140/7(1.5).

Note: Information about wages and salaries is not exempt under Section 7(1)(c) of FOIA; there is a significant public interest in public funds and knowing how they are spent. See Public Access Opinion 18-005 (available at https://perma.cc/A7HW-W5FQ).

Note: A superintendent’s employment contract is not exempt because, “by its very nature, the superintendent’s employment contract, as a whole, constitutes information that bears on his public duties.” Stern v. Wheaton-Warrenville Community Unit School Dist., 233 Ill.2d 396, 910 N.E.2d 85 (2009);  see also Reppert v. Southern Ill. Univ., 375 Ill. App. 3d 502, 874 N.E.2d 905 (4th Dist. 2007) (holding that employment contracts are not per se exempt).

In addition, post-mortem photographs are exempt to the extent that “surviving family members have legally-recognized rights in the depiction of a decedent’s remains.” Public Access Opinion 10-003 (available at https://perma.cc/YA3E-HR9M). The attorney general noted that family members have a right to be free from the embarrassment that may result from the public display of a loved one’s remains. Id., compare with See Nat’l Ass’n of Criminal Def. Lawyers v. Chicago Police Dept., 399 Ill. App. 3d 1, 924 N.E.2d 564 (1st Dist. 2010) (release of de-identified photos used in police lineups did not invade personal privacy so as to exempt photos); see also and Public Access Opinion 18-018 (available at https://perma.cc/WFC6-7GZ7) (records of complaints of a police officer’s conduct can be disclosed as it does not invade the officer’s personal privacy when the actions were performed during public duty).

4. Law Enforcement and Administrative Enforcement. “Records in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes,” see 5 ILCS 140/7(1)(d)), but only to the extent that disclosure would:

(i) interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request.  See 5 ILCS 140/7(1)(d)(i); see also Castro v. Brown’s Chicken & Pasta Inc., 732 N.E. 2d 37 (1st Dist. 2000).

(ii) interfere with active administrative enforcement proceedings.  See 5 ILCS 140/7(1)(d)(ii).

(iii) substantially likely to deprive a person of a fair trial or an impartial hearing.  See 5 ILCS 140/7(1)(d)(iii).

(iv) “unavoidably disclose the identity of a confidential source or confidential information furnished only by the confidential source, or persons who file complaints with or provide information to administrative, investigative, law enforcement, or penal agencies.” See 5 ILCS 140/7(1)(d)(iv). But, there are exceptions: “identities of witnesses to traffic accidents, traffic accident reports, and rescue reports shall be provided by agencies of local government” may be disclosed—unless disclosure would interfere with an active criminal investigation. Id.

Note: In Chicago Alliance for Neighborhood Safety v. City of Chicago, the court held that the names of community liaisons with the police department are exempt. 348 Ill. App. 3d 188, 808 N.E. 2d 56, 283 Ill. Dec. 506 (1st Dist. 2004); see Nat’l Ass’n of Criminal Def. Lawyers v. Chicago Police Dept., 399 Ill. App. 3d 1, 924 N.E.2d 564 (1st Dist. 2010) (ordering disclosure, because redaction of open investigation files was not unduly burdensome to agencies and invasion of personal privacy in making disclosure of faces in photographic police lineups did not outweigh public’s interest in disclosure); see also PAC Op. 21-005 (time off request records of officers improperly redacted as records would not jeopardize life or physical safety of officers).

(v) “disclose unique or specialized investigative techniques other than those generally used and known or disclose internal documents of correctional agencies related to detection, observation or investigation of incidents of crime or misconduct.” See 5 ILCS 140/7(1)(d)(v) (emphasis added). This applies only if disclosure would result in demonstrable harm to the agency or public body. Id.

(vi) “endanger the life or physical safety of law enforcement personnel or any other person.” See 5 ILCS 140/7(d)(vi) (emphasis added).

Note: Criminal history record information. Pursuant to section 2.15(b), the following documents are deemed public records subject to inspection and copying by the public: (i) court records that are public; (ii) records that are otherwise available under state or local law; and (iii) records in which the requesting party is the individual identified, except as provided under Section 7(1)(d)(vi). Pursuant to section 2.15(a), arrest records must be released notwithstanding the personal information exemption under Section 7(1)(c). Additionally, Section 2.15(b) provides specific circumstances when criminal history records may be released—but this is not an exclusive list. Criminal history records may be released even if they do not fit into one of the categories provided for in Section 2.15(b). The public body need not create or maintain records they would not otherwise create or maintain. See Public Access Opinion 11-001 (available at https://perma.cc/CM4U-GA2E).

(vii) obstruct an ongoing criminal investigation by the public body receiving the FOIA request. See 5 ILCS 140/7(1)(d)(vii).

Note: The Illinois Appellate Court, First Judicial District, has ruled that sampling data and calculations compiled by a metropolitan sanitary district are investigatory records compiled for law enforcement purposes and thus not subject to disclosure where the sanitary district relied on a self-reporting system and the data sought was used to monitor compliance with the self-supporting system. The court held that disclosure would defeat the purpose of the sampling data system, which was to check on whether the targets of the program were reporting accurately. Griffith Labs. v. Metropolitan Sanitary Dist., 168 Ill. App. 3d 341, 522 N.E.2d 744, 119 Ill. Dec. 82 (1st Dist. 1988).

5. Correctional Institutions. ”Records that relate to or affect the security of correctional institutions and detention facilities.” 5 ILCS 140/7(1)(e). One court has held that the names of federal prisoners held in a county jail are exempt from disclosure. Brady-Lunny v. Massey, 185 F. Supp. 2d 928 (C.D. Ill. 2002).
6. Records Requested by Committed Persons. Six exemptions exist within the Act that allow facilities to deny requests made by persons committed in state institutions, specifically the Department of Corrections, Department of Human Services Division of Mental Health, or a county jail. If a person committed to one of those institutions requests records, the request may be denied:

 

a. “if [the requested] materials are available in the library of the [institution] where [the requester] is confined,” 5 ILCS 140/7(1)(e-5), Cebertowicz v. Illinois Dept. of Corr., 2016 IL App (4th) 151024 ¶ 25, 62 N.E. 3d 175, 181 (finding library must only make materials ‘available’ and not make copies for requester);

b. “if [the requested] materials include records from staff members’ personnel files, staff rosters, or other staffing assignment information,” 5 ILCS 140/7(1)(e-6);

c. “if [the requested] materials are available through an administrative request to the Department of Corrections or Department of Human Services Division of Mental Health,” 5 ILCS 140/7(1)(e-7), See Mlaska v. Illinois Dept. of Corr., 2016 IL App (4th) 150189-U, ¶ 49;

d. if “disclosure of [the requested materials] would result in the risk of harm to any person or the risk of an escape from [the institution],” 5 ILCS 140/7(1)(e-8);

e. if the requested materials contain “personal information pertaining to the person’s victim or the victim’s family, including, but not limited to, a victim’s home address, home telephone number, work or school address, work telephone number, social security number, or any other identifying information, except as may be relevant to a requester’s current or potential case or claim,” 5 ILCS 140/7(1)(e-9), Mohammad v. Chicago Police Dept., 2020 IL App (1^st) 190011, ¶ 35, appeal denied, 163 N.E.3d 728 (Ill. 2021) (noting that institution providing records to defendant’s attorney during prosecution of claim does not result in institution’s waiver of right to claim exemption in response to later FOIA request after conviction); or

f. if the requested materials are law enforcement records of other persons, “including, but not limited to, arrest and booking records, mug shots, and crime scene photographs, except as these records may be relevant to the requester’s current or potential case or claim,” 5 ILCS 140/7(1)(e-10).

7. Preliminary drafts. “Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated.” See 5 ILCS 140/7(1)(f). Exception: a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body. Id. This “extends to all those records or officers and agencies of the General Assembly that pertain to the preparation of legislative documents.” Id.

Care should be taken to assure that a government agency does not attempt to assert that information sought is in preliminary report form when in fact it is not. This occurred in Hoffman v. Illinois Dep’t of Corr., 158 Ill. App. 3d 473, 511 N.E.2d 759, 110 Ill. Dec. 582 (1st Dist. 1987). There, the plaintiff sought disclosure of information relating to the identity and procedure for administering drugs used to implement Illinois’ death penalty. The Department of Corrections argued that the information sought, contained in a memorandum discussing procedures governing execution, was exempt because it was in preliminary draft form. The plaintiff invoked the provision of the Act which allows a trial court to conduct an in camera examination (private examination by the judge in the judge’s chambers) of requested records. The judge found that, despite the department’s assertion, the memorandum indicated that it was final, and therefore subject to disclosure. Id. at 477.

One federal court, interpreting the federal FOI Act, has stated that documents that reflect the “give-and-take” of the decision-making process, such as drafts or memos generated before adoption of a policy or the making of a decision, are exempt from disclosure. Marzen v. U.S. Dep’t of Health & Human Servs., 632 F. Supp. 785 (N.D. Ill. 1986). Since the legislature intended that case law construing the federal Act be used to interpret the Illinois Act, Roulette v. Dep’t of Cent. Mgmt. Servs., 141 Ill. App. 3d 394, 400, 490 N.E.2d 60, 64, 95 Ill. Dec. 591 (1st Dist. 1986), this case would apply to documents exempted from disclosure under this provision, often called the ‘deliberative process exemption’ in the Federal FOIA.

For the exemption to apply, the records must be both (1) inter or intra agency and (2) predecisional and deliberative.” Fisher v. Office of Ill. Attorney General, 2021 IL App (1st) 200225, ¶ 20. The records “must be both predecisional in the sense that [they are] actually antecedent to the adoption of an agency policy and deliberative in the sense that [they are] actually related to the process by which the policies are formulated.” Chicago Tribune Co. v. Cook County Assessor’s Office, 2018 IL App (1st) 170455, ¶ 28. In Harwood v. McDonough, the court applied this exemption to a final consultant report because it was preliminary to final government action. 799 N.E.2d 859 (1^st Dist. 2003). However, in Chicago Public Media v. Cook County Office of the President, 2021 IL App (1st) 200888, the court held the OCCP failed to establish emails containing media talking points, interview question responses, Wikipedia edits, or a conference speech were within the scope of the exemption after thoroughly analyzing the federal split of authority on whether this exemption applies to discussions about media strategy.

Case law has made clear that this exemption is limited to the expression of opinions or policy; it does not protect from disclosure the factual information on which those opinions or policies are based.  See, for example, Kalven v. City of Chicago, 2014 IL App (1st) 121846, 7 N.E. 3d 741, overruled on other grounds, Perry v. Dep’t of Fin. & Pro. Regul., 2018 IL 122349, 106 N.E.3d 1016, 423 Ill. Dec. 848 (2018). Nor does it pertain to documents exchanged with third parties. See PAC Op. 21-004.

The preliminary document exemption described here applies to all records of officers and agencies of the General Assembly that pertain to the preparation of legislative documents. See 5 ILCS 140/7(1)(f).

8. Trade Secrets and Commercial Information. If disclosure would cause competitive harm, the following are exempt: trade secrets, commercial information, or financial information, obtained from a person or business, where the trade secrets or information are proprietary, privileged or confidential. The claim must directly apply to the requested records. See BlueStar Energy Servs., Inc. v. Illinois Commerce Comm’n, 374 Ill. App. 3d 990, 871 N.E.2d 880 (1st Dist. 2007) as superseded by statute as stated inCity of Chicago v. Janssen Pharmaceuticals, Inc., 2017 IL App (1st) 150870, 78 N.E.3d 446 (the revised statute changed “or” to “and” which narrows the application of the exemption).

Note: It is permissible to consent to public disclosure. See 5 ILCS 140/7(1)(g). Legislative history indicates that ‘trade secrets’ includes information that would inflict substantial competitive harm or make it more difficult for the agency to induce people to submit similar information in the future. Roulette v. Dep’t of Ctr. Mgmt. Servs., 141 Ill. App. 3d 394, 400, 490 N.E.2d 60, 64, 95 Ill. Dec. 587, 591 (1st Dist. 1986). See also Cooper v. Dep’t of Lottery, 266 Ill. App. 3d 1007, 640 N.E.2d 1299, 203 Ill. Dec. 926 (1994). This interpretation of the term “trade secret” is only applicable to “FOIA requests made pursuant to earlier versions of the statute.” City of Chicago v. Janssen Pharmaceuticals, Inc., 2017 IL App (1st) 150870, ¶ 28, 78 N.E.3d 446, 456. The defendant is required to provide a basis for both the claim that the documents contain trade secrets, commercial or financial information, obtained where the documents are both proprietary, privileged or confidential; and that disclosure would result in competitive harm. Id. ¶ 29 (emphasis added).

9. Proposals and Bids. Proposals and bids for any contract, grant or agreement, including information that would frustrate procurement or give an advantage to someone if it were disclosed. Information prepared by or for a body is exempt until a final selection is made. See 5 ILCS 140/7(1)(h).
10. Research Data. Valuable formulas, computer geographic systems, designs, drawings and research data obtained or produced by any public body when disclosure “could reasonably be expected to produce private gain or public loss.” See 5 ILCS 140/7(1)(I). This exemption does not apply to requests from the news media for Geographic Information Systems documents.
11. Educational Examination Data. The following information is subject to exemption:

(i) Test questions, scoring keys and other exam data used to administer academic examinations;

(ii) faculty evaluations;

(iii) student disciplinary cases—but only the identity of the student is exempt.

(iv) and course or research materials used by faculty. 5 ILCS 140/7(1)(j). Note: Scrambled or masked test scores in which individual students’ identities are unascertainable are available. See Bowie v. Evanston Cmty. Consol. Sch. Dist. 65, 128 Ill. 2d 373, 538 N.E. 2d 557, 131 Ill. Dec. 182 (1989).

12. Architects and Engineers. Architects, engineers’ technical submissions, and other construction related technical documents for projects that are not developed—in whole or in part—with public funds. Projects constructed or developed with public funds are exempt when disclosure would compromise security. See 5 ILCS 140/7(1)(k).
13. Closed Meeting Minutes. Minutes of meetings of public bodies closed to the public in the Open Meetings Act. But, the closed meeting minutes may be disclosed when the public body makes the minutes available to the public under Section 2.06 of the Open Meetings Act. See 5 ILCS 140/7(1)(l).
14. Communications with Attorney or Auditor. Communications between a public body and an attorney, or an auditor representing the public body—but only if the communications would not be subject to discovery in litigation. The following are also exempt: materials prepared or compiled with respect to internal audits of public bodies; and, upon the request of the public body’s attorney, materials prepared or compiled by or for a public body in anticipation of a criminal, civil, or administrative proceeding. See 5 ILCS 140/7(1)(m).

In Illinois Education Association v. State Board of Education, 204 Ill. 2d 456, 791 N.E.2d 522, 274 Ill. Dec. 430 (2003), the court rejected the application of this exemption to materials supplied by the State Board to the Attorney General. The State Board, by the way of vague or conclusory affidavits, failed to establish a privilege. The court warned public bodies not to mistreat the phrase “attorney-client privilege” as an utterance “which magically casts a spell of secrecy.” Id. at 470.

Note: Attorney billing records that contain explanations for legal fees or indicate the type of work done or matters discussed between the attorney and client could reveal the substance of confidential attorney-client discussions and, thus, would be subject to valid claims of attorney-client privilege or exemption under 5 ILCS 140/7(1)(m). See Ulrich v. Stukel, 294 Ill. App. 3d 193, 689 N.E.2d 319, 228 Ill. Dec. 447 (1st Dist. 1997). However, attorney billing records are not per se exempt. “It is well-recognized that information regarding a client’s fees generally is not a ‘confidential communication’ between an attorney and client, and thus is not protected by the attorney client privilege. . . . The payment of fees is merely incidental to the attorney-client relationship and typically does not involve the disclosure of confidential communications arising from the relationship.” Ulrich, 294 Ill. App. 3d at 203-04, 689 N.E.2d at 327, 228 Ill. Dec. at 455. Note also that, if attorney billing records may be exempted from disclosure, the exempted material may be redacted or deleted and any material that is not exempt, which could include hours, amount of fees, identification of attorneys and assignments, etc., must be made available for inspection and copying. See 5 ILCS 140/8.

15. Employee Grievances or Disciplinary Cases. “Records relating to a public body’s adjudication of employee grievances or disciplinary cases.” But the final outcome of the case is not exempt when discipline is imposed. See 5 ILCS 140/7(1)(n).  See generally Gekas v. Williamson, 393 Ill. App. 3d 573, 912 N.E.2d 347 (4th Dist. 2009). Grievances and disciplinary adjudication are “separate and distinct” parts of an investigatory process. “Relating to” is read narrowly to fulfill the purpose of the FOIA. Peoria Journal Star v. City of Peoria, 2016 IL App (3d) 140838, ¶¶13-14, 52 N.E.3d 711.
16. Data-processing Operations. Administrative or technical information associated with automated data-processing operations. This information includes—but is not limited to—software, operating protocols, computer program abstracts, file layouts, source listings, object modules, load modules, user guides, documentation pertaining to all logical and physical designs of computerized systems, employee manuals, and any other information that—if disclosed—would jeopardize the security of the system, its data, or the security of materials exempt under this section. See 5 ILCS 140/7(1)(o).
17. Collective Bargaining Negotiations. Documents or materials relating to collective negotiating matters between public bodies and their employees or representatives. Exception: any final contract or agreement shall be subject to inspection and copying. See 5 ILCS 140/7(1)(p).
18. Employee Examination Data. ”Test questions, scoring keys, and other examination data used to determine the qualifications of an applicant for a license or employment.” See 5 ILCS 140/7(1)(q); see Kopchar v. City of Chicago, 395 Ill. App. 3d 762, 919 N.E.2d 76 (1st Dist. 2009).
19. Real Estate. The records, documents and information relating to real estate purchase negotiations until those negotiations end. With regard to parcels involved in an eminent domain proceeding under the Eminent Domain Act, records, documents and information relating to that parcel are exempt except as may be allowed under discovery rules adopted by the Illinois Supreme Court. The records, documents and information relating to a real estate sale are exempt until a sale is consummated. See 5 ILCS 140/7(1)(r).
20. Proprietary Insurance Information. Any proprietary information and records related to the operation of an intergovernmental risk management association, self-insurance pool, or a jointly self-administered health and accident cooperative or pool. See 5 ILCS 140/7(1)(s). In Public Access Opinion 11-004 (available at  https://perma.cc/NS3Z-9HCD), the PAC concluded that settlement agreements entered into by an intergovernmental risk management association or self-insurance pool on behalf of a public body are subject to disclosure; 5 ILCS 140/7(1)(s) does not exempt the amount of money expended to settle a claim.  Likewise, in Public Access Opinion 11-005 (available at https://perma.cc/MM42-P2X4), the PAC determined that the Illinois Department of Central Management should disclose Nerve Conduction Velocity Tests results obtained with respect to workers’ compensation claims, because those test results were not protected by 5 ILCS 140/7(1)(s).
21. Regulation Procedures for Financial Institutions. Information contained in or related to examination, operating, or condition reports that are prepared by or for the use of a public body that is responsible for the supervision of financial institutions, insurance companies, or pharmacy benefit managers. Exception: if disclosure is otherwise required by State law. See 5 ILCS 140/7(1)(t).
22. Electronic Security. Information that would disclose or might lead to the disclosure of secret or confidential information, codes, algorithms, programs or private keys intended to be used to create electronic or digital signatures under the Electronic Commerce Security Act. See 5 ILCS 140/7(1)(u).
23. Security Threats. Vulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent or respond to potential attacks upon a community’s systems, population, facilities, or installations. This exemption applies when destruction or contamination would constitute a clear and present danger to the health or safety of the community, but only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the measures or the safety of the public or the personnel who implement the security measures. Information exempt under this subsection may include details pertaining to the mobilization or deployment of personnel or equipment, the operation of communication systems or protocols, or tactical operations. See 5 ILCS 140/7(1)(v).

In Sun-Times v. Chicago Transit Authority, 2021 IL App (1st) 192028, the court ruled the CTA and Chicago PD lawfully withheld security camera footage of a subway incident, even though the security cameras were within plain sight, because the CTA sufficiently demonstrated that disclosure of the footage “could reasonably be expected to jeopardize the effectiveness of [the camera surveillance system’s] security measures.”

Note: The presence of some exempt information does not automatically result in making the entire request exempt. A public body must still disclose the nonexempt portion of the requested records. Labs v. City of Chicago Mayor’s Office, 2021 IL App (1st) 192073, at ¶ 19.

24. Power Generator Maps and Records. ”Maps and other records regarding the location or security of generation, transmission, distribution, storage, gathering, treatment or switching facilities owned by a utility, by a power generator, or by the Illinois Power Agency.” 5 ILCS 140/7(x).
25. Public Utility Documentation. Information related to proposals, bids, or negotiations that deal with electric power procurement under Section 1-75 of the Illinois Power Agency Act and Section 16-111.5 of the Public Utilities Act. It must be deemed confidential and proprietary by the Illinois Power Agency or by the Illinois Commerce Commission. See 5 ILCS 140/7(1)(y).
26. Information about Students. ”Information about students exempted from disclosure under Sections 10-20.38 or 34-18.29 of the School Code, and information about undergraduate students enrolled at an institution of higher education exempted from disclosure under Section 25 of the Illinois Credit Card Marketing Act of 2009.” 5 ILCS 140/7(1)(z).
27. Viatical Settlements Act. ”Information the disclosure of which is exempted under the Viatical Settlements Act of 2009.” See ILCS 140/7(1)(aa).
28. Juvenile Justice Morality Review Team Act. Records and information provided to a mortality review team and records maintained by a mortality review team appointed under the Department of Juvenile Justice Mortality Review Team Act. See 5 ILCS 140/7(1)(bb).
29. Cemetery Care Act. Information regarding interments, entombments, or inurnments of human remains that are submitted to the Cemetery Oversight Database under the Cemetery Care Act or the Cemetery Oversight Act, whichever is applicable. See 5 ILCS 140/7(1)(cc).
30. Illinois Public Aid Code. Correspondence and records (i) that may not be disclosed under Section 11-9 of the Illinois Public Aid Code or (ii) that pertain to appeals under Section 11-8 of the Illinois Public Aid Code. See 5 ILCS 140/7(1)(dd).
31. Personal Information of Minors. The names, addresses, or other personal information of persons who are minors and are also participants and registrants in programs of park districts, forest preserve districts, conservation districts, recreation agencies, and special recreation associations. See 5 ILCS 140/7(1)(ee).
32. Personal Information of Participants. The names, addresses, or other personal information of participants and registrants in programs of park districts, forest preserve districts, conservation districts, recreation agencies, and special recreation associations where such programs are targeted primarily to minors. See 5 ILCS 140/(1)(ff).
33. Independent Tax Tribunal Act. Confidential information described in Section 1-100 of the Illinois Independent Tax Tribunal Act of 2012. See 5 ILCS 140/7(1)(gg).
34. School Security and Standards. The report submitted to the State Board of Education by the School Security and Standards Task Force under item (8) of subsection (d) of Section 2-3.160 of the School Code2 and any information contained in that report. See 5 ILCS 140/7(1)(hh).
35. Sexually Violent Persons Commitment Act. Records requested by persons committed to or detained by the Department of Human Services under the Sexually Violent Persons Commitment Act or committed to the Department of Corrections under the Sexually Dangerous Persons Act if those materials: (i) are available in the library of the facility where the individual is confined; (ii) include records from staff members’ personnel files, staff rosters, or other staffing assignment information; or (iii) are available through an administrative request to the Department of Human Services or the Department of Corrections. See 5 ILCS 140/7(1)(ii).

36. Confidential Information in Civil Admin Code. Confidential information described in Section 5-535 of the Civil Administrative Code of Illinois. See 5 ILCS 140/7(1)(jj).
37. Government Financial Information.The public body’s credit card numbers, debit card numbers, bank account numbers, Federal Employer Identification Number, security code numbers, passwords, and similar account information, the disclosure of which could result in identity theft or impression or defrauding of a governmental entity or a person. 5 ILCS 140/7(1)(kk) as added by P.A. 101-434.
38. Threat Assessment.Records concerning the work of the threat assessment team of a school district. 5 ILCS 140/7(1)(ll) as added by P.A. 101-455.

Note: Section 7 “does not authorize withholding of information or limit the availability of records to the public, except as stated in [Section 7] or otherwise provided in this Act.” 5 ILCS 140/7(3).

3. Statutory exemptions under Section 7.5

The following are exempt from inspection and copying:

(a) Technology Advancement Development Act. “All information determined to be confidential under Section 4002 of the Technology Advancement and Development Act.” 5 ILCS 140/7.5(a).

(b) Library Records Confidentiality Act. Library records identifying library users with the books or other materials checked out by an individual under the Library Records Confidentiality Act. See 5 ILCS 140/7.5(b).

(c) Organ Donation Records. “Applications, related documents, and medical records received by the Experimental Organ Transplantation Procedures Board and any and all documents or other records prepared by the Experimental Organ Transplantation Procedures Board or its staff relating to applications it has received.” 5 ILCS 140/7.5(c).

(d) Sexually Transmissible Disease Control Act. “Information and records held by the Department of Public Health and its authorized representatives relating to known or suspected cases of sexually transmissible disease or any information the disclosure of which is restricted under the Illinois Sexually Transmissible Disease Control Act.” 5 ILCS 140/7.5(d).

(e) Radon Industry Licensing Act. “Information the disclosure of which is exempted under Section 30 of the Radon Industry Licensing Act.” 5 ILCS 140/7.5(e).

(f) Architectural, Engineering, and Land Surveying Qualifications Based Selection Act. “Firm performance evaluations under Section 55 of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act.” 5 ILCS 140/7.5(f).

(g) Illinois Prepaid Tuition Act. “Information the disclosure of which is restricted and exempted under Section 50 of the Illinois Prepaid Tuition Act.” 5 ILCS 140/7.5(g).

(h) State Officials and Employees Ethics Act. “Information the disclosure of which is exempted under the State Officials and Employees Ethics Act, and records of any lawfully created State or local inspector general’s office that would be exempt if created or obtained by an Executive Inspector General’s office under that Act.” 5 ILCS 140/7.5(h).

(i) Emergency Energy Plans. “Information contained in a local emergency energy plan submitted to a municipality in accordance with a local emergency energy plan ordinance that is adopted under Section 11-21.5-5 of the Illinois Municipal Code.” 5 ILCS 140/7.5(i).

(j) Wireless Emergency Telephone Safety Act. “Information and data concerning the distribution of surcharge moneys collected and remitted by wireless carriers under the Emergency Telephone Safety Act.” 5 ILCS 140/7.5(j).

(k) Vehicle Code. “Law enforcement officer identification information or driver identification information compiled by a law enforcement agency or the Department of Transportation under Section 11-212 of the Illinois Vehicle Code.” 5 ILCS 140/7.5(k).

(l) Abuse Prevention Review Team Act. “Records and information provided to a residential health care facility resident sexual assault and death review team or the Executive Council under the Abuse Prevention Review Team Act.” 5 ILCS 140/7.5(l).

(m) Residential Real Property Disclosure Act. “Information provided to the predatory lending database created pursuant to Article 3 of the Residential Real Property Disclosure Act, except to the extent authorized under that Article.” 5 ILCS 140/7.5(m).

(n) Capital Crimes Litigation Act. “Defense budgets and petitions for certification of compensation and expenses for court appointed trial counsel as provided under Sections 10 and 15 of the Capital Crimes Litigation Act. This subsection (n) shall apply until the conclusion of the trial of the case, even if the prosecution chooses not to pursue the death penalty prior to trial or sentencing.” 5 ILCS 140/7.5(n).

(o) Health and Hazardous Substances Registry Act. “Information that is prohibited from being disclosed under Section 4 of the Illinois Health and Hazardous Substances Registry Act.” 5 ILCS 140/7.5(o).

(p) Regional Transportation Authority Act and the Bi-State Transit Safety Act. “Security portions of system safety program plans, investigation reports, surveys, schedules, lists, data, or information compiled, collected, or prepared by or for the Regional Transportation Authority under Section 2.11 of the Regional Transportation Authority Act or the St. Clair County Transit District under the Bi-State Transit Safety Act.” 5 ILCS 140/7.5(p).

(q) Personnel Record Review Act. “Information prohibited from being disclosed by the Personnel Record Review Act.” 5 ILCS 140/7.5(q).

(r) School Student Records Act. “Information prohibited from being disclosed by the Illinois School Student Records Act.” 5 ILCS 140/7.5(r).

(s) Public Utilities Act. “Information the disclosure of which is restricted under Section 5-108 of the Public Utilities Act.” 5 ILCS 140/7.5(s).

(t) Health Information Exchange. “All identified or deidentified health information in the form of health data or medical records contained in, stored in, submitted to, transferred by, or released from the Illinois Health Information Exchange, and identified or deidentified health information in the form of health data and medical records of the Illinois Health Information Exchange in the possession of the Illinois Health Information Exchange Office due to its administration of the Illinois Health Information Exchange. The terms “identified” and “deidentified” shall be given the same meaning as in the Health Insurance Accountability and Portability Act of 1996, Public Law 104-191, or any subsequent amendments thereto, and any regulations promulgated thereunder.” 5 ILCS 140/7.5(t).

(u) Brian’s Law. Records and information provided to an independent team of experts under the Developmental Disability and Mental Health Safety Act (also known as Brian’s Law). 5 ILCS 140/7.5(u).

(v) Firearm Concealed Carry Act. Names and information of people who have applied for or received Firearm Owner’s Identification Cards under the Firearm Owners Identification Card Act or applied for or received a concealed carry license under the Firearm Concealed Carry Act, unless otherwise authorized by the Firearm Concealed Carry Act; and databases under the Firearm Concealed Carry Act, records of the Concealed Carry Licensing Review Board under the Firearm Concealed Carry Act, and law enforcement agency objections under the Firearm Concealed Carry Act. 5 ILCS 140/7.5(u).

(w) Toll Highway Act. Personally identifiable information which is exempted from disclosure under subsection (g) of Section 19.1 of the Toll Highway Act. 5 ILCS 140/7.5(w).

(x) Counties Code or Municipal Code. Information which is exempted from disclosure under Section 5-1014.3 of the Counties Code or Section 8-11-21 of the Illinois Municipal Code. 5 ILCS 140/7.5(x).

(y) Adult Protective Services Act. Confidential information under the Adult Protective Services Act and its predecessor enabling statute, the Elder Abuse and Neglect Act, including information about the identity and administrative finding against any caregiver of a verified and substantiated decision of abuse, neglect, or financial exploitation of an eligible adult maintained in the Registry established under Section 7.5 of the Adult Protective Services Act. 5 ILCS 140/7.5(y).

(z) Fatality Under Adult Protective Services Act. Records and information provided to a fatality review team or the Illinois Fatality Review Team Advisory Council under Section 15 of the Adult Protective Services Act. 5 ILCS 140/7.5(z).

(aa) Wildlife Code. Information which is exempted from disclosure under Section 2.37 of the Wildlife Code. 5 ILCS 140/7.5(aa).

(bb) Juvenile Court Act.  Information which is or was prohibited from disclosure by the Juvenile Court Act of 1987. 5 ILCS 140/7.5(bb).

Note: The Juvenile Court Act exemption, 5 ILCS 140/7.5(bb), does not restrict disclosure when a minor is listed as a victim or witness. It covers minors that are investigated, arrested or taken into custody. See PAC 18-016 (available at  https://perma.cc/V6VT-6WBD) & PAC Op. 20-008.

(cc) Law Enforcement Officer-Worn Body Camera Act. Recordings made under the Law Enforcement Officer-Worn Body Camera Act, except to the extent authorized under that Act. 5 ILCS 140/7.5(cc).

(dd) Condominium and Common Interest Community Ombudsperson Act. Information that is prohibited from being disclosed under Section 45 of the Condominium and Common Interest Community Ombudsperson Act. 5 ILCS 140/7.5(dd).

(ee) Pharmacy Practice Act. Information that is exempted from disclosure under Section 30.1 of the Pharmacy Practice Act. 5 ILCS 140/7.5(ee).

(ff) Revised Uniform Unclaimed Property Act. Information that is exempted from disclosure under the Revised Uniform Unclaimed Property Act. 5 ILCS 140/7.5(ff).

(gg) Illinois Vehicle Code. Information that is prohibited from being disclosed under Section 7-603.5 of the Illinois Vehicle Code. 5 ILCS 140/7.5(gg).

(hh) Election Code. Records that are exempt from disclosure under Section 1A-16.7 of the Election Code. 5 ILCS 140/7.5(hh).

(ii) Civil Administrative Code. Information which is exempted from disclosure under Section 2505-800 of the Department of Revenue Law of the Civil Administrative Code of Illinois. 5 ILCS 140/7.5(ii).

(jj) Day and Temporary Labor Services Act. Information and reports that are required to be submitted to the Department of Labor by registering day and temporary labor service agencies but are exempt from disclosure under subsection (a-1) of Section 45 of the Day and Temporary Labor Services Act. 5 ILCS 140/7.5(jj).

(kk) Seizure and Forfeiture Reporting Act. Information prohibited from disclosure under the Seizure and Forfeiture Reporting Act. 5 ILCS 140/7.5(kk).

(ll) Illinois Public Aid Code. Information the disclosure of which is restricted and exempted under Section 5-30.8 of the Illinois Public Aid Code. 5 ILCS 140/7.5(ll).

(mm) Crime Victims Compensation Act. Records that are exempt from disclosure under Section 4.2 of the Crime Victims Compensation Act. 5 ILCS 140/7.5(mm).

(nn) Higher Education Student Assistance Act. Information that is exempt from disclosure under Section 70 of the Higher Education Student Assistance Act. 5 ILCS 140/7.5(nn)

(oo) First Responders Suicide Prevention Act. Communications, notes, records, and reports arising out of a peer support counseling session prohibited from disclosure under the First Responders Suicide Prevention Act. 5 ILCS 140/7.5(oo).

(pp) First Responders Suicide Prevention Act. Names and all identifying information relating to an employee of an emergency services provider or law enforcement agency under the First Responders Suicide Prevention Act. 5 ILCS 140/7.5(pp).

(qq) Reproductive Health Act. Information and records held by the Department of Public Health and its authorized representatives collected under the Reproductive Health Act. 5 ILCS 140/7.5(qq).

(rr) Cannabis Regulation and Tax Act. Information that is exempt from disclosure under the Cannabis Regulation and Tax Act. 5 ILCS 140/7.5(rr).

(ss) Illinois Human Rights Act. Data reported by an employer to the Department of Human Rights pursuant to Section 2-108 of the Illinois Human Rights Act. 5 ILCS 140/7.5(ss).

(tt) Children’s Advocacy Center Act. Recordings made under the Children’s Advocacy Center Act, except to the extent authorized under that Act. 5 ILCS 140/7.5(tt).

(uu) Sexual Assault Evidence Submission Act. Information that is exempt from disclosure under Section 50 of the Sexual Assault Evidence Submission Act. 5 ILCS 140/7.5(uu).

(vv) Illinois Public Aid Code. Information that is exempt from disclosure under subsections (f) and (j) of Section 5-36 of the Illinois Public Aid Code. 5 ILCS 140/7.5(vv).

(ww) State Treasurer Act. Information that is exempt from disclosure under Section 16.8 of the State Treasurer Act. 5 ILCS 140/7.5(ww).

(xx) Illinois Insurance Code. Information that is exempt from disclosure or information that shall not be made public under the Illinois Insurance Code. 5 ILCS 140/7.5(xx).

(yy) Illinois Educational Labor Relations Act. Information prohibited from being disclosed under the Illinois Educational Labor Relations Act. 5 ILCS 140/7.5(yy).

(zz) Illinois Public Labor Relations Act. Information prohibited from being disclosed under the Illinois Public Labor Relations Act. 5 ILCS 140/7.5(zz).

(aaa) Illinois Pension Code. Information prohibited from being disclosed under Section 1-167 of the Illinois Pension Code. 5 ILCS 140/7.5(aaa).

Fourteen categories of records specified by the Act are not subject to disclosure unless access is required by state or federal statute or access is ordered by a court under the rules of discovery. Ind. Code §§ 5-14-3-4(a)(1)–(12):

(i) Those declared confidential by state statute. See Groth v. Pence, 67 N.E.3d 1104, 1118 (Ind. Ct. App. 2017) (holding that disclosure of white papers was prohibited from disclosure as a privileged attorney-client communication).

(ii) Those declared confidential by administrative rule under specific statutory authority to classify public records as confidential.

(iii) Those required to be kept confidential by federal law.

(iv) Records containing trade secrets. Trade secrets are defined as: “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure and use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Ind. Code § 24-2-3-2; see also id. § 5-14-3-2(t). Whether information constitutes “trade secrets” is an issue subject to judicial interpretation. See Indiana Bell Tel. Co. v. Indiana Util. Regulatory Comm’n, 810 N.E.2d 1179, 1187 (Ind. App. 2004) (telephone service providers’ responses to an Indiana agency’s survey were public records, not protected by trade secret exemption, where not all providers requested response confidentiality and where most of the information was very general); ESPN Prods., Inc. v. Indiana Dep’t of State Revenue, 28 N.E.3d 378, 381–82 (Ind. Tax Ct. 2015) (holding that a Production Services Agreement was exempt from disclosure under the trade secrets exemption).

(v) Confidential financial information obtained, upon request, from a person. This does not include information that is filed with or received by a public agency pursuant to state statute.

(vi) Information concerning research, including actual research documents, conducted under the auspices of a state college or university.  See Robinson v. Indiana Univ., 659 N.E.2d 153 (Ind. Ct. App. 1995) (holding that titles of research projects in university meeting minutes fell under this exception as “information concerning research”).

(vii) Grade transcripts and license examination scores obtained as part of a licensure process. This provision is limited to test results to the extent that the individual student can be identified. Att’y Gen. Op. 85-10 (1985).

(viii) Records declared confidential by or under rules adopted by the Supreme Court of Indiana. See Ind. Admin. R. 9(G).

(ix) Patient medical records and charts created by a provider, unless the patient gives written consent under Indiana Code Article 16-39 or as provided under Chapter 16-41-8.

(x) Application information declared confidential by board of the Indiana economic development corporation under Indiana Code Chapter 5-28-16.

(xi) A photograph, video recording or audio recording of an autopsy, except as provided in Indiana Code Section 36-2-14-10 (pertaining to coroners’ use of autopsy records). This exemption was added to the Indiana Code in 2002. See Ind. P.L. 1-2002, § 17.

(xii) A Social Security number contained in the records of a public agency.

(xiii) Contact information for a debtor and any document submitted to the court as part of the debtor’s loss mitigation package

Twenty-three categories of documents may be disclosed at the discretion of the public agency. Ind. Code §§ 5-14-3-4(b)(1)–(23):

(i) Investigatory records of law enforcement agencies. However, under Indiana Code Section 5-14-3-5, certain law enforcement information must be made available. This includes information about an individual who is arrested or jailed and also police logs of crimes, accidents, and complaints. See Althaus v. Evansville Courier Co., 615 N.E.2d 441, 446 (Ind. Ct. App. 1993) (holding that the investigatory records exception applied to the coroner’s files).

(ii) The work product of an attorney who, pursuant to state employment or appointment to a public agency, represents a public agency, the state, or an individual.

(iii) Test questions, scoring keys and other examination data used in administering a licensing, employment or academic examination before the examination is given or if it is to be given again.

(iv) Scores of tests if the person is identified by name and has not consented to the release of his scores.

(v) Records relating to negotiations involving certain enumerated agencies and commissions with industrial, research, or commercial prospects. Final offers must be released.

(vi) Intra-agency or inter-agency advisory or deliberative materials that are expressions of opinion or are of a speculative nature that are communicated for purposes of decision-making. See Brandenburg Indus. Serv. Co. v. Indiana Dep’t of State Revenue, 26 N.E.3d 147, 154 (holding that two pages of handwritten notes of the Department of State Revenue were not barred from disclosure under this exception because the exception applies to the general public rather than the litigants) (Ind. Tax Ct. 2015); Groth v. Pence, 67 N.E.3d 1104, 1118 (Ind. Ct. App. 2017) (holding that disclosure of white papers was discretionary as deliberative material).

(vii) Diaries, journals or other personal notes serving as the functional equivalent of a diary or a journal. See Journal Gazette v. Bd. Of Trs. of Purdue Univ., 698 N.E.2d 826, 829 (Ind. Ct. App. 1998) (holding that the compliance log fell within this exception).

(viii) Personnel files of public employees and files of applicants for public employment. However, the following information must be disclosed: the name, compensation, job title, business address, business telephone number, job description, education and training background, previous work experience, dates of first and last employment of present or former officers or employees of the agency, information relating to the status of any formal charge against the employee, and information about disciplinary actions in which final action has been taken and resulted in the employee being disciplined. All personnel file information is available to the affected employee or his representative. See Att’y Gen. Op. 87-16 (1987) (employment contract of any public official or employee available for inspection or copying upon request); S. Bend Tribune v. S. Bend Cmty. Sch. Corp., 740 N.E.2d 937, 938–39 (Ind. Ct. App. 2000) (holding that information regarding candidates for the Superintendent fell within this exception). This subsection does not apply to disclosure of personnel information generally on all employees or for groups of employees without the request being particularized by employee name.

(ix) Minutes or records of hospital medical staff meetings.

(x) Administrative or technical information that would jeopardize a record-keeping or security system. See City of Elkhart v. Agenda: Open Gov’t, Inc., 683 N.E.2d 622, 626–27 (Ind. Ct. App. 1997) (holding that telephone numbers in and of themselves are neither technical nor administrative information).

(xi) Computer programs, computer codes, computer filing systems, and other software that are owned by the public agency or entrusted to it.

(xii) Records specifically prepared for discussion or developed during discussion in an executive session authorized by the Indiana Open Door Law, Indiana Code Section 5-14-1.5-6.1. However, this subsection does not apply to information required to be available under subsection (viii) above, pertaining to personnel files of public employees.

(xiii) The work product of the Legislative Services Agency under personnel rules approved by the Legislative Council.

(xiv) The work product of individual members and the partisan staffs of the General Assembly.

(xv) The identity of a donor of a gift made to a public agency if non-disclosure is required as a condition of the gift or if the donor or the donor’s family member requests nondisclosure after the gift is made.

(xvi) Library or archival records that can be used to identify library patrons or have been acquired by a library with specific conditions on disclosure.

(xvii) The identity of persons who contact the Bureau of Motor Vehicles about a driver’s ability to safely operate a motor vehicle, and related records of the Drivers License Advisory Committee.

(xviii) School safety and security measures, plans, and systems.

(xix) A record or part of a record, the public disclosure of which would have a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack. This section was added in 2003. See Ind. P.L. 173-2003, § 5. The section includes a list of twelve types of records included under this description. See Ind. Code § 5-14-3-4(b)(19)(A)–(L).

(xx) The following information concerning a customer of a municipally owned utility (as defined in Ind. Code § 8-1-2-1): telephone number, address and Social Security number. This section was added in 2002 as a mandatory exception to the Act under § 5-14-3-4(a), but was changed to a discretionary exemption, listed under § 5-14-3-4(b), in 2003. See Ind. P.L. 1-2002, § 17 and Ind. P.L. 173-2003, § 5.

(xxi) The telephone number and address of a complainant in the records of a law enforcement agency, except if the address must be available if it is the location of the suspected crime or accident.

(xxii) The name, compensation, job title, and other information about a law enforcement officer working in an undercover capacity.

(xxiii) Records requested by an offender relating to a correctional or law enforcement officer, the victim of a crime, a judge, or a family member of any of the previous, that concern the security of a jail or correctional facility.

(xxiv) Information concerning an individual less than eighteen years of age who participates in a conference, meeting, program, or activity conducted or supervised by a state educational institution, including certain information about the individual’s parent or guardian.

(xxv) Criminal intelligence information.

(xxvi) Certain information in a report of or claim for unclaimed property under Indiana Code Sections 32-34-1-26 or 32-34-1-36.

(xxvii) Law enforcement records, except as provided under Indiana Code Section 5-14-3-4(b)(19) and under sections 5.1 and 5.2 of this chapter. But before disclosing the recording, the public agency must comply with the obscuring requirements of sections 5.1 and 5.2.

(xxviii) Records relating to negotiations between a state educational institution and another entity concerning the establishment of a collaborative relationship or venture to advance the research, engagement, or educational mission of the state educational institution, if the records are created while negotiations are in progress. However, The terms of the final offer of public financial resources communicated by the state educational institution to an industrial, a research, or a commercial prospect shall be available for inspection and copying under section 3 of this chapter after negotiations with that prospect have terminated. This subdivision does not apply to records regarding research prohibited under IC 16-34.5-1-2 or any other law.

256. Personal information in records regarding a student, prospective student, or former student maintained, created, collected or assembled by or for a school corporation or educational institution maintaining such records. This subsection shall not be construed to prohibit a postsecondary education institution from disclosing to a parent or guardian information regarding a violation of a federal, state, or local law, or institutional rule or policy governing the use or possession of alcohol or a controlled substance if the child is under the age of twenty-one years and the institution determines that the student committed a disciplinary violation with respect to the use or possession of alcohol or a controlled substance regardless of whether that information is contained in the student's education records. This subsection shall not be construed to prohibit a school corporation or educational institution from transferring student records electronically to the department of education, an accredited nonpublic school, an attendance center, a school district, or an accredited postsecondary institution in accordance with section 256.9, subsection 48.  Iowa Code § 22.7(1).

(1) A student's name and address in public records in the custody of a public school is not, however, confidential. 80 Op. Att'y Gen. 720 (June 18, 1980). Cf. 20 U.S.C. § 1232g (school must allow parents opportunity to inform school they do not want this information released without prior consent). See also Iowa Code § 22.9 (provisions of Chapter 22 which would cause denial of federal funds are suspended to the extent necessary to prevent denial).

(2) "We believe a subpoena is a sufficient court order under section 22.7(1) to allow a party to obtain possession of records to allow a court an opportunity to assess their relevancy and materiality." Poole v. Hawkeye Area Cmty. Action Program, Inc., 666 N.W.2d 560 (Iowa 2003) (subpoena served on school district for student records in tenant action against landlord alleging exposure to lead poisoning).

(3) Under FERPA and consistent with U.S. Department of Education regulations, “educational records may be withheld in their entirety where the requester would otherwise know the identity of the referenced student[(s)] . . . even with redactions.” Press-Citizen Co. v. Univ. of Iowa, 817 N.W.2d 480, 492 (Iowa 2012).

(4) Information in confidential personnel records revealing gender, home address, or birth date is personal information which should be kept confidential under this section. Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 44 (Iowa 1999).

(5) Disciplinary information and job performance records are exempt from disclosure and qualify as personal information in confidential personnel records. Am. Civil Liberties Union Foundation of Iowa, Inc. v. Records Custodian, Atlantic Cmty. Sch. Dist., 818 N.W.2d 231, 232 (Iowa 2012); Des Moines Indep. Cmty. Sch. Dist. v. Des Moines Register & Tribune Co., 487 N.W.2d 666, 670 (Iowa 1992).

(6) The amount of sick leave and vacation leave used by individual public employees is a matter of legitimate concern to the public and cannot be kept confidential. Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 44 (Iowa 1999).

(7) The following information relating to individuals who are officials, officers, or employees of government bodies that are public records:

(a) The name and compensation of an individual, including a written agreement establishing compensation or any other terms of employment;

(b) The dates the individual was employed by the government body;

(c) The positions held by the individual with the government body;

(d) The educational institutions attended by the individual, including any diplomas and degrees earned;

(e) The individual’s previous employers and dates of previous employment;

(f) The fact that the individual was discharged as the result of a final disciplinary action upon the exhaustion of all applicable contractual, legal, and statutory remedies.

Access to Personnel Records of Public Employees: What’s Open? What’s Not?, Iowa Attorney General (Dec. 1, 2014), https://www.iowaattorneygeneral.gov/about-us/sunshine-advisories/access-to-personnel-records-of-public-employees-whats-open-whats-not; City of Dubuque v. Telegraph Herald, Inc., 297 N.W.2d 523 (Iowa 1980) (stating personal information in confidential personnel records generally does not include information concerning the employee’s name, address, previous employers, education, training, and experience).

915. Hospital records, medical records, and professional counselor records of the condition, diagnosis, care, or treatment of a patient or former patient or a counselee or former counselee, including outpatient. However, confidential communications between a crime victim and the victim's counselor are not subject to disclosure except as provided in § 915.20A. However, the Iowa department of public health shall adopt rules which provide for the sharing of information among agencies and providers concerning the maternal and child health program including but not limited to the statewide child immunization information system, while maintaining an individual's confidentiality. Iowa Code § 22.7(2).

(1) "Outpatient," as used in § 22.7(2), means one who is "treated at a clinic or dispensary connected with a hospital who is not a hospital inmate." Head v. Colloton, 331 N.W.2d 870, 874 (Iowa 1983).

(2) The identity of a potential bone marrow donor is a hospital record of the condition, diagnosis, care or treatment of a patient or former patient within the meaning of this section. Head, 331 N.W.2d at 876.

(3) But, documents filed in the office of the governor which pertain to the involuntary sterilization of a county home resident were public and not confidential hospital records within the meaning of the exemption because they were not maintained by the governor as hospital or physician records. Howard v. Des Moines Register & Tribune Co., 284 N.W.2d 289, 300 (Iowa 1979).

(4) Records pertaining to medical services, including the identity of doctors, nurses and hospitals receiving public funds for services performed, the number and kind of services performed, and statistical information about patients (so long as identity is not revealed) are not excluded from public examination. 78 Op. Att'y Gen. 677, 678–79 (Sept. 20, 1978). The term “hospital record,” as used in the statute, means a hospital’s medical record relating to a patient. Head, 331 N.W.2d at 875.

22. Trade secrets which are recognized and protected as such by law. Iowa Code § 22.7(3).

(1) "The custodian of such a record (computer program and data base), however, is required to keep it confidential if the record is a trade secret recognized and protected by law." Brown v. Iowa Legislative Council, 490 N.W.2d 551, 552 (Iowa 1992). In applying this exemption to disclosure, the courts use the definition for “trade secrets” found in Iowa’s Uniform Trade Secrets Act. Sysco Iowa, Inc. v. Univ. of Iowa, 889 N.W.2d 235, 237 (Iowa Ct. App. 2016). In order to be exempted from disclosure, there must be proof the information holds economic value—any information which protects owner’s competitive edge or advantage. US West Commc’ns, Inc. v. Office of Consumer Advocate, 498 N.W.2d 711, 714 (Iowa 1993).

(2) "Business information may also fall within the definition of a trade secret, including such matters as maintenance of data on customer lists and needs, source of supplies, confidential costs, price data and figures." US West Commc’ns Inc., 498 N.W.2d at 714.

(3) "A trade secret is a process or device for continuous use in the operation of a business." Basic Chems. Inc. v. Benson, 251 N.W.2d 220, 226 (Iowa 1977).

(4) Information concerning pre-arranged funeral plans which must be filed with the county attorney in the county where the plan is located pursuant to Iowa Code Chapter 523A is not protected as a trade secret. 83 Op. Att'y Gen. 70, 71 (July 18, 1983).

(5) But note, "[T]here is nothing in section 22.7 that suggests the legislature intended to limit the discovery rights of litigants in cases involving governmental entities." Mediacom Iowa, L.L.C. v. Inc. City of Spencer, 682 N.W.2d 62, 69 (Iowa 2004) (cable company sued city and its utilities board for its actions in establishing a competing communications system and sought order compelling discovery of information concerning existing communications system).

(6) District court properly refused to enjoin the Iowa Department of Transportation (IDOT) from releasing test results on a manufacturer's temporary traffic signal to its competitor because the manufacturer did not show that IDOT's report was a confidential public record under Iowa Code ch. 22 as a trade secret under Iowa Code § 22.7(3) or as a report that would give the competitor an advantage under § 22.7(6). O.M.J.C. Signal, Inc. v. Iowa DOT, 2009 Iowa App. LEXIS 1645 (Iowa Ct. App. Dec. 17, 2009).

(7) Information which would give an advantage to competitor and serves no public purpose may be included in the exemption. Compare Sysco Iowa, Inc., 889 N.W.2d at 242 (finding Sysco’s contract with the state university was a trade secret that was exempt because it contained information that had “independent economic value” that would give an unfair advantage to competitors), with Iowa Film Prod. Servs. v. Iowa Dep’t for Econ. Dev., 818 N.W.2d 207 (Iowa 2012) (finding that investor and budget figures for films set forth in the final budget expenditure were not subject to exemption from disclosure under the Open Records Act as there was a legitimate interest in public disclosure of the reports as the public had a right to know how funds in the form of tax credits to filmmakers were spent).

22. Records which represent and constitute the work product of an attorney, which are related to litigation or claims made by or against a public body. Iowa Code § 22.7(4).

(1) Iowa Rule of Civil Procedure 1.503(3) provides in pertinent part that: "[A] party may obtain discovery of documents and tangible things otherwise discoverable . . . and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney . . .) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means."  See also Diercks v. Malin, 894 N.W.2d 12, 23 (Iowa Ct. App. 2016).

22. Peace officers' investigative reports, except where disclosure is authorized elsewhere in this code. However, the date, time, specific location, and immediate facts and circumstances surrounding a crime or incident shall not be kept confidential under this section, except in those unusual circumstances where disclosure would plainly and seriously jeopardize an investigation or pose a clear and present danger to the safety of an individual. Specific portions of electronic mail and telephone billing records may only be kept confidential under this subsection if the length of time prescribed for commencement of prosecution or the finding of an indictment or information under the statute of limitations applicable to the crime that is under investigation has not expired. Iowa Code § 22.7(5).

(1) Information about criminal activity which peace officers receive from third parties is confidential. State ex rel. Shanahan v. Iowa District Court, 356 N.W. 2d 523, 528 (Iowa 1984).

(2) "Daily logs" prepared at the direction of law enforcement agency heads are not protected under this section. 76 Op. Att'y Gen. 559, 561 (April 26, 1976).

(3) "Statements made by witnesses to peace officers investigating a motor vehicle accident to enable the officers to make their reports . . . [are public records]." Shannon By Shannon v. Hansen, 469 N.W.2d 412, 415 (Iowa 1991).

(4) But see Hawk Eye v. Jackson, 521 N.W.2d 750 (Iowa 1994) (privilege protecting peace officers' investigative reports and communications made to public officers in official confidence is qualified, and official claiming privilege must show that public officer is being examined, communication was made in official confidence, and public interest would suffer by disclosure).

(5) State must show public interest would suffer from disclosure of criminal investigative files; concerns about what might happen are insufficient to prevent disclosure. State v. Henderson, No. 01-0295, 2002 WL 987851, at *2-3 (Iowa Ct. App. May 15, 2002).

(6) Summary judgment was properly granted to the State in a case relating to an open records request because video recordings, use of force reports, and pursuit reports were confidential and not subject to disclosure under Iowa Code § 22.7(5). The video recording was a report; moreover, the requested materials were investigatory and did not fall within the date, time, specific location, and immediate facts, and circumstances surrounding the crime exclusion. Neer v. State, 2011 Iowa App. LEXIS 154 (Iowa Ct. App. Feb. 23, 2011).

(7) Though police investigatory reports do not lose their confidential status when the investigation ends, Iowa Code § 22.7(5) allows for “an exemption from confidentiality for basic facts about the incident” if the litigant can show that the public good of disclosure outweighs the associated public harm. Mitchell v. City of Cedar Rapids, 926 N.W.2d 222, 232 (Iowa 2019).

22. Reports to governmental agencies which, if released, would give advantage to competitors and serve no public purpose. Iowa Code § 22.7(6).

(1) Custodians of production data from individual mines are in the best positions to judge when revelation of the data would give advantage or serve no public purpose. 73 Op. Att'y Gen. 55, 56 (February 23, 1973). The agency in possession of the information makes the preliminary decision. 79 Op. Att'y Gen. 224 (June 14, 1979).

(2) Past grant applications are not confidential even though they would give advantage to a competitor, because public funds were involved and public has interest in seeing how its money is spent. Ne. Council on Substance Abuse Inc. v. Iowa Dept. of Public Health, Div. of Substance Abuse, 513 N.W.2d 757, 760 (Iowa 1994).

(3) District court properly refused to enjoin the Iowa Department of Transportation (IDOT) from releasing test results on a manufacturer's temporary traffic signal to its competitor because the manufacturer did not show that IDOT's report was a confidential public record under Iowa Code ch. 22 as a trade secret under Iowa Code § 22.7(3) or as a report that would give the competitor an advantage under § 22.7(6). O.M.J.C. Signal, Inc. v. Iowa DOT, 2009 Iowa App. LEXIS 1645 (Iowa Ct. App. Dec. 17 2009).

(4) Investor and budget figures for films set forth in final budget expenditure reports filmmakers submitted seeking tax credits were not subject to exemption from disclosure because the state did not promise filmmakers confidentiality with respect to the reports and there was a legitimate interest in public disclosure of reports. Iowa Film Prod. Servs. v. Iowa Dep’t of Econ. Dev., 818 N.W.2d 207 (Iowa 2012).

45. Appraisals or appraisal information concerning the sale or purchase of real or personal property for public purposes, prior to the execution of any contract for such sale or the submission of the appraisal to the property owner or other interest holders as provided in section 6B.45.  Iowa Code § 22.7(7).
46. Economic development authority information on an industrial prospect with which the authority is currently negotiating. Iowa Code § 22.7(8).
47. Criminal identification files of law enforcement agencies. However, records of current and prior arrests and criminal history data shall be public records. Iowa Code § 22.7(9).

(1) Disclosure of prosecution witnesses' criminal records in a criminal case (beyond conviction list) is prohibited by this section. State v. Anderson, 410 N.W.2d 231, 235-236 (Iowa 1987).

815. A claim for compensation and reimbursement for legal assistance and supporting documents submitted to the state public defender for payment from the indigent defense fund established in section 815.11, as provided in section 13B.4B. Iowa Code § 22.7(10).

k . Personal information in confidential personnel records of government bodies relating to identified or identifiable individuals who are officials, officers, or employees of the government bodies. However, the following information relating to such individuals contained in personnel records shall be public records:

(1) The name and compensation of the individual including any written agreement establishing compensation or any other terms of employment excluding any information otherwise excludable from public information pursuant to this section or any other applicable provision of law. For purposes of this paragraph, "compensation" means payment of, or agreement to pay, any money, thing of value, or financial benefit conferred in return for labor or services rendered by an official, officer, or employee plus the value of benefits conferred including but not limited to casualty, disability, life, or health insurance, other health or wellness benefits, vacation, holiday, and sick leave, severance payments, retirement benefits, and deferred compensation.

(2) The dates the individual was employed by the government body.

(3) The positions the individual holds or has held with the government body.

(4) The educational institutions attended by the individual, including any diplomas and degrees earned, and the names of the individual's previous employers, positions previously held, and dates of previous employment.

(5) The fact that the individual resigned in lieu of termination, was discharged, or was demoted as the result of a disciplinary action, and the documented reasons and rationale for the resignation in lieu of termination, the discharge, or the demotion. For purposes of this subparagraph, “demoted” and “demotion” mean a change of an employee from a position in a given classification to a position in a classification having a lower pay grade.

22. Personal information in confidential personnel records of government bodies relating to student employees shall only be released pursuant to 20 U.S.C. § 1232g. Iowa Code § 22.7(11) (as amended in 2011).

(1) This section applies only to personal information in confidential personnel records. City of Dubuque v. Tel. Herald Inc., 297 N.W.2d 523, 526 (Iowa 1980). In determining whether information sought is personal information protected by right of privacy, balance public interest served by disclosure and private interest in protecting against invasion of privacy. Id. at 526-27. Applications for appointive city officer were not protected by this section. Id. at 527. But see Iowa Code § 22.7(18).

(2) Ordinarily, information which includes one's name, address, employer, education, training and experience is not considered "personal." City of Dubuque v. Telegraph Herald, Inc., 297 N.W.2d 523, (Iowa 1980); 81 Op. Att'y Gen. 3, 5 (January 19, 1981).

(3) Adjudicator decisions concerning termination of teacher contracts are protected by this section. 79 Op. Att'y Gen. 115, 118 (Apr. 27, 1991).

(4) Lists of state employees participating in deferred compensation plans are public records, but extent of individual participation in plans is personal and confidential. 74 Op. Att'y Gen. 430, 433 (Feb. 27, 1974).

(5) This subsection has also been construed to make settlement agreements between public bodies and employees public records. Des Moines Indep. Cmty. Sch. Dist. Public Records v. Des Moines Register & Tribune Co., 487 N.W.2d 666, 669 Iowa (1992) ("[T]he outstanding characteristic of the settlement agreement was the fact that public funds were being paid to settle a private dispute. We think the document was of the type the legislature designated for disclosure."); Doe v. Univ. of Iowa, No. 12-0357, 2013 WL 85781 (Iowa Ct. App. Jan. 9, 2013) (upholding Des Moines Independent Community School District and applying the balancing test in finding the settlement agreement between Doe and the University was not exempt). See also Iowa Code § 22.13 ("The settlement agreement and any required summary shall be a public record.”).

(6) Decision to enjoin the city from releasing city employees' addresses, birth dates and gender affirmed. Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 48 (Iowa 1999).

(7) Compensation allocated to and used by individual public employees, whether for salary, sick leave or vacation, is a matter of legitimate concern to the public. So long as the information disclosed does not reveal personal medical conditions or professional evaluations, the public has the right to examine it. Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 48 (Iowa 1999).

(8) The court has also found that disciplinary records are exempt from disclosure and the balancing test, although it was applied here, is not necessary. Records Custodian, Atlantic Cmty. Sch. Dist., 818 N.W.2d at 236. Similarly, other job performance records are exempt from disclosure if the information is itself a confidential record. State v. Garrison, No. 04-0141, 2006 WL 138280, at *18-19 (Iowa 2006) (finding documents relating to the investigation and suspension of a Department of Criminal Investigation Agent who had worked the defendant’s murder case were exempt from public disclosure and contained no exculpatory information that should have been disclosed).

22. Financial statements submitted to the department of agriculture and land stewardship pursuant to chapter 203 or chapter 203C, by or on behalf of a licensed grain dealer or warehouse operator or by an applicant for a grain dealer license or warehouse license. Iowa Code § 22.7(12).
23. The records of a library which, by themselves or when examined with other public records, would reveal the identity of the library patron checking out or requesting an item or information from the library. The records shall be released to a criminal or juvenile justice agency only pursuant to an investigation of a particular person or organization suspected of committing a known crime. The records shall be released only upon a judicial determination that a rational connection exists between the requested release of information and a legitimate end and that the need for the information is cogent and compelling. Iowa Code § 22.7(13).

(1) The requirements of particularity and the showing of a rational connection and need were added by amendment in 1984 to overcome the holding of the court in Brown v. Johnston, 328 N.W.2d 510 (Iowa 1983), allowing a county attorney access to library records through the vehicle of a "county attorney's subpoena" issued pursuant to Iowa R. Crim. P. 5(6).

22. The material of a library, museum or archive which has been contributed by a private person to the extent of any limitation that is a condition of the contribution. Iowa Code § 22.7(14).
23. Information concerning the procedures to be used to control disturbances at adult correctional institutions. Such information shall also be exempt from public inspection under § 17A.3. As used in this subsection disturbance means a riot or a condition that can reasonably be expected to cause a riot. Iowa Code § 22.7(15).
24. Information in a report to the Iowa department of public health, to a local board of health, or to a local health department, which identifies a person infected with a reportable disease. Iowa Code § 22.7(16).

(1) The list of "reportable diseases" is found at Iowa Admin. Code § 641-1.3 (Appendix A).

76. Records of identity of owners of public bonds or obligations maintained as provided in § 76.10 or by the issuer of the public bonds or obligations. However, the issuer of the public bonds or obligations and a state or federal agency shall have the right of access to the records. Iowa Code § 22.7(17).

(1) See also Iowa Code § 76.11, allowing access by state agencies.

1. Communications not required by law, rule, procedure, or contract that are made to a government body or to any of its employees by identified persons outside of government, to the extent that the government body receiving those communications from such persons outside of government could reasonably believe that those persons would be discouraged from making them to that government body if they were available for general public examination. As used in this subsection, "persons outside of government" does not include persons or employees of persons who are communicating with respect to a consulting or contractual relationship with a government body or who are communicating with a government body with whom an arrangement for compensation exists. Notwithstanding this provision:
2. The communication is a public record to the extent that the person outside of government making that communication consents to its treatment as a public record.
3. Information contained in the communication is a public record to the extent that it can be disclosed without directly or indirectly indicating the identity of the person outside of government making it or enabling others to ascertain the identity of that person.
4. Information contained in the communication is a public record to the extent that it indicates the date, time, specific location, and immediate facts and circumstances surrounding the occurrence of a crime or other illegal act, except to the extent that its disclosure would plainly and seriously jeopardize a continuing investigation or pose a clear and present danger to the safety of any person. In any action challenging the failure of the lawful custodian to disclose any particular information of the kind enumerated in this paragraph, the burden of proof is on the lawful custodian to demonstrate that the disclosure of that information would jeopardize such an investigation or would pose such a clear and present danger. Iowa Code § 22.7(18).

(1) This section was added by amendment in 1984, subsequent to (and presumably in response to) the holding of the court in City of Dubuque v. Telegraph Herald Inc., 297 N.W.2d 523 (Iowa 1980).

(2) The purpose of this section, as amended, is "to permit public agencies to keep confidential a broad category of useful incoming communications which might not be forthcoming if subject to public disclosure." City of Sioux City v. Press Club, 421 N.W.2d 895, 898 (Iowa 1988).

(3) There are three exceptions to this rule of confidentiality: (a) consent of person making communication; (b) information which does not disclose, or allow others to ascertain the identity of the person making the communication; and (c) information indicating the date, time, specific location and immediate facts and circumstances surrounding the occurrence of a crime (unless disclosure would jeopardize a continuing investigation or endanger an individual).

(4) Pursuant to the provisions of this section, employment applications for appointive city office, disclosure of which is not authorized by the applicants, may be maintained with confidentiality by the lawful custodian. City of Sioux City, 421 N.W.2d at 899.

(5) Documents which can be redacted to protect the identity of outside sources must be made available. Des Moines Indep. Cmty. Sch. Dist. Public Records v. Des Moines Register & Tribune Co., 487 N.W.2d 666, 671 (Iowa 1992).

(6) Grant of summary judgment to a school district and its board in an action brought by a mother, on behalf of her minor child, for disclosing a sexual relationship between the minor and a school coach was affirmed because Iowa Code § 22.7(18) authorized disclosure of the immediate facts and circumstances surrounding the occurrence of a crime or illegal act. V.H. v. Hampton-Dumont Cmty. Sch. Dist., 2009 Iowa App. LEXIS 1721 (Iowa Ct. App. Dec. 30, 2009).

22. Examinations, including but not limited to cognitive and psychological examinations for law enforcement officer candidates administered by or on behalf of a governmental body, to the extent that their disclosure could reasonably be believed by the custodian to interfere with the accomplishment of the objectives for which they are administered. Iowa Code § 22.7(19).

(1) See also Iowa Code Chapter 228, limiting the circumstances under which mental health information may be disclosed.

(2) This exemption is intended to protect the integrity of the examination process. DeLaMater v. Marion Civil Serv. Comm’n, 554 N.W.2d 875, 881 (Iowa 1996) (finding § 22.7(19) did not apply to prohibit the disclosure of examinees’ raw scores on each component of the test were there was no indication of the content of the questions). The court may allow a government body to redact the names of some of names of the individuals achieving the disclosed raw scores where the “public purpose may be satisfied without linking the scores to a particular candidate.”  Id. at 882.

22. Information concerning the nature and location of any archaeological resource or site if, in the opinion of the state archaeologist, disclosure of the information will result in unreasonable risk of damage to or loss of the resource or site where the resource is located. This subsection shall not be construed to interfere with the responsibilities of the federal government or the state historic preservation officer pertaining to access, disclosure, and use of archaeological site records. Iowa Code § 22.7(20).
23. Information concerning the nature and location of any ecologically sensitive resource or site if, in the opinion of the director of the department of natural resources after consultation with the state ecologist, disclosure of the information will result in unreasonable risk of damage to or loss of the resource or site where the resource is located. This subsection shall not be construed to interfere with the responsibilities of the federal government or the director of the department of natural resources and the state ecologist pertaining to access, disclosure, and use of the ecologically sensitive site records. Iowa Code § 22.7(21).
24. Reports or recommendations of the Iowa insurance guaranty association filed or made pursuant to § 515B.10, subsection 1, paragraph "a", subparagraph (2). Iowa Code § 22.7(22).
25. Information or reports collected or submitted pursuant to § 508C.12, subsections 3 and 5, and § 508C.13, subsection 2, except to the extent that release is permitted under those sections. Iowa Code § 22.7(23).
26. Financial information, which if released would give advantage to competitors and serve no public purpose, relating to commercial operations conducted or intended to be conducted by a person submitting records containing the information to the department of agriculture and land stewardship for the purpose of obtaining assistance in business planning. Iowa Code § 22.7(25).
27. Applications, investigation reports, and case records of persons applying for county general assistance pursuant to § 252.25. Iowa Code § 22.7(26).
28. Marketing and advertising budget and strategy of a nonprofit corporation which is subject to this chapter. However, this exemption does not apply to salaries or benefits of employees who are employed by the nonprofit corporation to handle the marketing and advertising responsibilities. Iowa Code § 22.7(27).
29. The information contained in records of the centralized employee registry created in chapter 252G, except to the extent that disclosure is authorized pursuant to chapter 252G. Iowa Code § 22.7(28).

(1) Section 22.7(28) protects social security numbers from disclosure. Schmit v. Iowa Machine Shed Co., No. 05-1927, 2006 WL 2872944, at *3 (Iowa Ct. App. Oct. 11, 2006).

22. Records and information obtained or held by independent special counsel during the course of an investigation conducted pursuant to § 68B.31A. Information that is disclosed to a legislative ethics committee subsequent to a determination of probable cause by independent special counsel and made pursuant to § 68B.31 is not a confidential record unless otherwise provided by law. Iowa Code § 22.7(29).
23. Information contained in a declaration of paternity completed and filed with the state registrar of vital statistics pursuant to § 144.12A, except to the extent that the information may be provided to persons in accordance with § 144.12A. Iowa Code § 22.7(30).
24. Memoranda, work products, and case files of a mediator and all other confidential communications in the possession of a mediator, as provided in chapters 86 and 216. Information in these confidential communications is subject to disclosure only as provided in § § 86.44 and 216.15B, notwithstanding any other contrary provision of this chapter. Iowa Code § 22.7(31).
25. Social security numbers of the owners of unclaimed property reported to the treasurer of state pursuant to section 556.11, subsection 2, included on claim forms filed with the treasurer of state pursuant to section 556.19, included in outdated warrant reports received by the treasurer of state pursuant to section 556.2C, or stored in record systems maintained by the treasurer of state for purposes of administering chapter 556, or social security numbers of payees included on state warrants included in records systems maintained by the department of administrative services for the purpose of documenting and tracking outdated warrants pursuant to section 556.2C. Iowa Code § 22.7(32).
26. Data processing software, as defined in § 22.3A, which is developed by a government body or developed by a nongovernment body and used by a government body pursuant to a contractual relationship with the nongovernment body. Iowa Code § 22.7(33).
27. A record required under the Iowa financial transaction reporting Act listed in § 529.2, subsection 9. Iowa Code § 22.7(34).
28. Records of the Iowa department of public health pertaining to participants in the gambling treatment program except as otherwise provided in this chapter. Iowa Code § 22.7(35).
29. Records of a law enforcement agency or the state department of transportation regarding the issuance of a driver's license under § 321.189A. Iowa Code § 22.7(36).
30. Mediation communications as defined in § 679C.102, except written mediation agreements that resulted from a mediation which are signed on behalf of a governing body. However, confidentiality of mediation communications resulting from mediation conducted pursuant to chapter 216 shall be governed by chapter 216. Iowa Code § 22.7(37).

(1) A district court can seal court records if the parties introduced documents from an earlier mediation. Estate of Cox by Cox v. Dunakey & Klatt, P.C., 893 N.W.2d 295, 305 (Iowa 2017).

(2) Section 679C.102 defines “mediation communication” as any statement, written or oral, “that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation.” Id. (citing Iowa Code § 679C.102 (2017)).

1. a. Records containing information that would disclose, or might lead to the disclosure of, private keys used in a digital an electronic signature or other similar technologies as provided in chapter 554D.
2. Records which if disclosed might jeopardize the security of an electronic transaction pursuant to chapter 554D. Iowa Code § 22.7(38).
3. Information revealing the identity of a packer or a person who sells livestock to a packer as reported to the department of agriculture and land stewardship pursuant to § 202A.2. Iowa Code § 22.7(39).
4. The portion of a record request that contains an internet protocol number which identifies the computer from which a person requests a record, whether the person using such computer makes the request through the IowAccess network or directly to a lawful custodian. However, such record may be released with the express written consent of the person requesting the record. Iowa Code § 22.7(40).
5. a. Medical examiner records and reports, including preliminary reports, investigative reports, and autopsy reports.
6. Notwithstanding paragraph “a”, the following shall be released as follows:

(1) Medical examiner-authored records and reports, including preliminary reports, investigative reports, and autopsy reports, shall be released to a law enforcement agency that is investigating the death, upon the request of the law enforcement agency.

(2) Preliminary reports of investigations by the medical examiner and autopsy reports for a decedent by whom an anatomical gift was made in accordance with chapter 142C shall be released to a procurement organization as defined in section 142C.2, upon the request of such procurement organization, unless such disclosure would jeopardize an investigation or pose a clear and present danger to the public safety or the safety of an individual.

(3) Autopsy reports shall be released to the decedent's immediate next of kin, upon the request of the decedent's immediate next of kin, unless disclosure to the decedent's immediate next of kin would jeopardize an investigation or pose a clear and present danger to the public safety or the safety of an individual.

22. Information regarding the cause and manner of death shall not be kept confidential under this subsection, unless disclosure would jeopardize an investigation or pose a clear and present danger to the public safety or the safety of an individual. Iowa Code § 22.7(41).

(1) The Iowa Supreme Court refused to disclose an autopsy report to a decedent’s mother, determining that the “language is specific and clear that autopsy reports are exempt from disclosure except to ‘the decedent's immediate next of kin,’” which would be the decedent’s estranged wife or children, not his mother.  Simington v. Banwart, 786 N.W.2d 520 (Iowa Ct. App. 2010).

23. Information obtained by the commissioner of insurance in the course of an investigation as provided in § 523C.23. Iowa Code § 22.7(42).
24. Information obtained by the commissioner of insurance pursuant to § 502.607. Iowa Code § 22.7(43).
25. Information provided to the court and state public defender pursuant to section 13B.4, subsection 5; section 814.11, subsection 7; or section 815.10, subsection 5.  Iowa Code § 22.7(44).
26. The critical asset protection plan or any part of the plan prepared pursuant to section 29C.8 and any information held by the department of homeland security and emergency management that was supplied to the department by a public or private agency or organization and used in the development of the critical asset protection plan to include, but not be limited to, surveys, lists, maps, or photographs. Communications and asset information not required by law, rule, or procedure that are provided to the director by persons outside of government and for which the director has signed a nondisclosure agreement are exempt from public disclosures. The department of homeland security and emergency management may provide all or part of the critical asset plan to federal, state, or local governmental agencies which have emergency planning or response functions if the director is satisfied that the need to know and intended use are reasonable. An agency receiving critical asset protection plan information from the department shall not redisseminate the information without prior approval of the director. Iowa Code § 22.7(45).
27. Military personnel records recorded by the county recorder pursuant to section 331.608.  Iowa Code § 22.7(46).
28. A report regarding interest held in agricultural land required to be filed pursuant to chapter 10B.  Iowa Code § 22.7(47).
29. Sex offender registry records under chapter 692A, except as provided in § 692A.121. Iowa Code § 22.7(48).
30. Confidential information, as defined in § 86.45, subsection 1, filed with the workers' compensation commissioner. Iowa Code § 22.7(49).
31. Information and records concerning physical infrastructure, cyber security, critical infrastructure, security procedures, or emergency preparedness developed, maintained, or held by a government body for the protection of life or property, if disclosure could reasonably be expected to jeopardize such life or property.
32. Such information includes but is not limited to information directly related to vulnerability assessments; information contained in records relating to security measures such as security and response plans, security codes and combinations, passwords, restricted area passes, keys, and security or response procedures; emergency response protocols; and information contained in records that if disclosed would significantly increase the vulnerability of critical physical systems or infrastructures of a government body to attack.
33. For purposes of this subsection, “cyber security information and records” include but are not limited to information and records relating to cyber security defenses, threats, attacks, or general attempts to attack cyber system operations.  Iowa Code § 22.7(50).
34. The information contained in the information program established in section 124.551, except to the extent that disclosure is authorized pursuant to section 124.553.  Iowa Code § 22.7(51).
35. a. The following records relating to a charitable donation made to a foundation acting solely for the support of an institution governed by the state board of regents, to the board of the Iowa state fair foundation when the record relates to a gift or deposit in or expenditure from the Iowa state fairgrounds trust fund as provided in section 173.22A, to a foundation acting solely for the support of an institution governed by chapter 260C, to a private foundation as defined in section 509 of the Internal Revenue Code organized for the support of a government body, or to an endow Iowa qualified community foundation, as defined in section 15E.303, organized for the support of a government body:

(1) Portions of records that disclose a donor's or prospective donor's personal, financial, estate planning, or gift planning matters.

(2) Records received from a donor or prospective donor regarding such donor's prospective gift or pledge.

(3) Records containing information about a donor or a prospective donor in regard to the appropriateness of the solicitation and dollar amount of the gift or pledge.

(4) Portions of records that identify a prospective donor and that provide information on the appropriateness of the solicitation, the form of the gift or dollar amount requested by the solicitor, and the name of the solicitor.

(5) Portions of records disclosing the identity of a donor or prospective donor, including the specific form of gift or pledge that could identify a donor or prospective donor, directly or indirectly, when such donor has requested anonymity in connection with the gift or pledge. This subparagraph does not apply to a gift or pledge from a publicly held business corporation.

1. The confidential records described in paragraph "a", subparagraphs (1) through (5), shall not be construed to make confidential those portions of records disclosing any of the following:

(1) The amount and date of the donation.

(2) Any donor-designated use or purpose of the donation.

(3) Any other donor-imposed restrictions on the use of the donation.

(4) When a pledge or donation is made expressly conditioned on receipt by the donor, or any person related to the donor by blood or marriage within the third degree of consanguinity, of any privilege, benefit, employment, program admission, or other special consideration from the government body, a description of any and all such consideration offered or given in exchange for the pledge or donation.

1. Except as provided in paragraphs "a" and "b", portions of records relating to the receipt, holding, and disbursement of gifts made for the benefit of regents institutions and made through foundations established for support of regents institutions, including but not limited to written fund-raising policies and documents evidencing fund-raising practices, shall be subject to this chapter.
2. This subsection does not apply to a report filed with the Iowa ethics and campaign disclosure board pursuant to section 8.7.  Iowa Code § 22.7(52).
3. Information obtained and prepared by the commissioner of insurance pursuant to section 507.14.  Iowa Code § 22.7(53).

aaa. Information obtained and prepared by the commissioner of insurance pursuant to section 507E.5.  Iowa Code § 22.7(54).

bbb. An intelligence assessment and intelligence data under chapter 692, except as provided in section 692.8A.  Iowa Code § 22.7(55).

ccc. Individually identifiable client information contained in the records of the state database created as a homeless management information system pursuant to standards developed by the United States department of housing and urban development and utilized by the Iowa department of economic development.  Iowa Code § 22.7(56).

ddd. The following information contained in the records of any governmental body relating to any form of housing assistance:

1. An applicant's social security number.
2. An applicant's personal financial history.
3. An applicant's personal medical history or records.
4. An applicant's current residential address when the applicant has been granted or has made application for a civil or criminal restraining order for the personal protection of the applicant or a member of the applicant's household.  Iowa Code § 22.7(57).

eee. Information filed with the commissioner of insurance pursuant to sections 523A.204 and 523A.502A.  Iowa Code §.22.7(58).

fff. The information provided in any report, record, claim, or other document submitted to the treasurer of state pursuant to chapter 556 concerning unclaimed or abandoned property, except the name and last known address of each person appearing to be entitled to unclaimed or abandoned property paid or delivered to the treasurer of state pursuant to that chapter.  Iowa Code § 22.7(59).

ggg. Information in a record that would permit a governmental body subject to chapter 21 to hold a closed session pursuant to section 21.5 in order to avoid public disclosure of that information, until such time as final action is taken on the subject matter of that information. Any portion of such a record not subject to this subsection, or not otherwise confidential, shall be made available to the public. After the governmental body has taken final action on the subject matter pertaining to the information in that record, this subsection shall no longer apply. This subsection shall not apply more than ninety days after a record is known to exist by the governmental body, unless it is not possible for the governmental body to take final action within ninety days. The burden shall be on the governmental body to prove that final action was not possible within the ninety-day period.  Iowa Code § 22.7(60).

(1) The court in Hall v. Broadlawns Medical Center interpreted section 22.7(61) when it included the wording that is now section 22.7(60). The internal audit of a hospital pharmacy department is not exempt from public disclosure when the ninety-day period has lapsed. Hall v. Broadlawns Med. Ctr., 811 N.W.2d 478, 485 (Iowa 2012).

hhh. Records of the department on aging pertaining to clients served by the office of substitute decision maker.  Iowa Code § 22.7(61).

iii. Records maintained by the department on aging or office of long-term care ombudsman that disclose the identity of a complainant, resident, tenant, or individual receiving services provided by the department on aging, an area agency on aging, or the office of long-term care ombudsman, unless disclosure is otherwise allowed under section 231.42, subsection 12, paragraph “a.” Iowa Code § 22.7(62).

jjj. Information obtained by the superintendent of credit unions in connection with a complaint response process as provided in section 533.501, subsection 3.  Iowa Code § 22.7(63).

kkk. Information obtained by the commissioner of insurance in the course of an examination of a cemetery as provided in section 523I.213A, subsection 7.  Iowa Code § 22.7(64).

lll. Tentative, preliminary, draft, speculative, or research material, prior to its completion for the purpose for which it is intended and in a form prior to the form in which it is submitted for use or used in the actual formulation, recommendation, adoption, or execution of any official policy or action by a public official authorized to make such decisions for the governmental body or the government body. This subsection shall not apply to public records that are actually submitted for use or are used in the formulation, recommendation, adoption, or execution of any official policy or action of a governmental body or a government body by a public official authorized to adopt or execute official policy for the governmental body or the government body. Iowa Code § 22.7(65).

mmm. Personal information contained on electronic driver's license or nonoperator's identification card records that is provided by the licensee or card holder to the department of transportation for use by law enforcement, first responders, emergency medical service providers, and other medical personnel responding to or assisting with an emergency. Iowa Code § 22.7(66).

nnn. Electronic mail addresses of individuals or phone numbers of individuals, and personally identifiable information about those individuals, collected by state departments and agencies for the sole purpose of disseminating emergency or routine information and notices through electronic communications that are not prepared for a specific recipient. Iowa Code § 22.7(67).

ooo. Information required to be provided by a disclosing entity pursuant to 42 C.F.R. §455.104, pertaining to an individual with an ownership or control interest who is an officer or director of a nonprofit corporation. Iowa Code § 22.7(68).

ppp. The evidence of public employee support for the certification, retention and recertification, or decertification of an employee organization as defined in section 20.3 that is submitted to the public employment relations board as provided in section 20.14 or 20.15. Iowa Code § 22.7(69).

qqq. Information indicating whether a public employee voted in a certification, retention and recertification, or decertification election held pursuant to section 20.15 or how the employee voted on any question on a ballot in such an election. Iowa Code § 22.7(70).

rrr. Information and records related to cyber security information or critical infrastructure, the disclosure of which may expose or create vulnerability to critical infrastructure systems, held by the utilities board of the department of commerce or the department of homeland security and emergency management for purposes relating to the safeguarding of telecommunications, electric, water, sanitary sewage, storm water drainage, energy, hazardous liquid, natural gas, or other critical infrastructure systems. For purposes of this subsection, “cyber security information” includes but is not limited to information relating to cyber security defenses, threats, attacks, or general attempts to attack cyber system operations. Iowa Code § 22.7(70).

sss. The voter verification number, as defined in section 53.2, subsection 4, paragraph “c”, that is assigned to a voter and maintained and updated in the statewide voter registration system. Iowa Code § 22.7(70).

ttt. The personal identification number assigned by the state commissioner of elections pursuant to section 48A.10A, subsection 1. Iowa Code § 22.7(71).

uuu. The voter verification number, as defined in section 53.2, subsection 4, paragraph “c”, that is assigned to a voter and maintained and updated in the statewide voter registration system.  Iowa Code § 22.7(72).

vvv. The personal identification number assigned by the state commissioner of elections pursuant to section 48A.10A, subsection 1. Iowa Code § 22.7(73).

A list of 55 exceptions to mandatory disclosure is found in K.S.A. 45-221(a)(1) through (55).

1. Records specifically prohibited or restricted from disclosure by federal law, state statute, or rule of Kansas Supreme Court. K.S.A. 45-221(a)(1). Includes tax return information. Kan. Att’y Gen. Op. 1990-20; K.S.A. 79-3614. This is the only exception that is mandatory. All other exceptions are discretionary with the public agency, but in practice, public agencies treat all exceptions as absolute.
2. Records privileged under rules of evidence. K.S.A. 45-221(a)(2).
3. Medical, psychiatric, psychological or alcoholism or drug dependency treatment records. K.S.A. 45-221(a)(3); Kan. Att’y Gen. Op. 1994-81.
4. Personnel records, performance ratings or individually identifiable records pertaining to employment, but certain information such as names, positions and salaries of officers and employees of public agencies are not exempt. K.S.A. 45-221(a)(4), Kan. Att’y Gen. Op. 1987-109. 1991-50, 1992-132, 1989-50, 1994-121. Records pertaining to an internal investigation of an agency’s employee, disclosure of which would neither interfere with a prospective administrative adjudication or civil litigation nor disclose the identity of a confidential informant and thus cannot be withheld under K.S.A. 45-221(a)(11), may nevertheless still be discretionarily closed if they fit the definition of a personnel record. Kan. Att’y Gen. Op. 91-127.
5. Information pertaining to the identity of an undercover agent or informant. K.S.A. 45-221(a)(5).

6. Letters of reference or recommendation that speak to the character or qualifications of an identifiable individual. K.S.A. 45-221(a)(6).

7. Library, archive and museum materials contributed by private persons. K.S.A. 45-221(a)(7).

8. Information concerning an individual who lawfully makes a donation to a public agency. K.S.A. 45-221(a)(8).

9. Testing and examination materials before the test is given or individual scores, other than records which show only passage or failure. K.S.A. 45-221(a)(9).
10. Criminal investigation records. A district court may order disclosure in an action brought under K.S.A. 45-222(civil remedies to enforce KORA) if the court finds that disclosure: (1) is in the public interest; (2) would not interfere with any prospective law enforcement action; (3) would not reveal the identity of any confidential source or undercover agent; (4) would not reveal confidential investigation techniques or procedures not known to the general public; (5) would not endanger the life or physical safety of any person; and (6) would not reveal the name, address, phone number or any other information which specifically and individually identifies the victim of any sexual offense in Article 35 of Chapter 21 of the Kansas Statutes Annotated, and amendments thereto. K.S.A. 45-221(a)(10). This is the only judicial protocol for obtaining records among the 55 exceptions.

The Kansas Supreme Court has found that the term "'public interest' means more than 'public curiosity.'" Harris Enters. Inc. v. Moore, 241 Kan. 59, 66, 734 P.2d 1083 (1987). Public interest existed in disclosure of murder investigation files where inconsistent statements were reported and definite disagreements arose between various law enforcement agencies. See Harris Enters. Inc. v. Moore, 241 Kan. 59, 734 P.2d 1083 (1987).   In 2006, in a matter involving KORA but not criminal investigation records, the Attorney General found that “public interest may exist if release of the information would ‘shed any light on the conduct of any Government agency or official.’”  Kan. Att’y Gen. Op. 2006-8 (citing U.S. Dep’t. of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989)).  “If release would shed no such light, the agency may withhold the information.  If disclosure would shed light on governmental conduct, courts next try to balance the public interest in its release against the implicated privacy interest.”  Id.

Records compiled in the process of preventing, detecting or investigating violations of criminal law are not subject to mandatory disclosure.  K.S.A. 45-217(c); K.S.A. 45-221(a)(10); see also Kan. Att’y Gen. Op. 1987-25.  The definition of criminal investigation records “does not include police blotter entries, court records, rosters of inmates of jails or other correctional or detention facilities or records pertaining to violations of any traffic law other than vehicular homicide as defined by K.S.A. 21-3405, prior to its repeal, or K.S.A. 2018 Supp. 21-5406, and amendments thereto.”  K.S.A. 45-217(c)(2).  If a police department does not maintain a blotter, it is under a common law duty to disclose basic information about arrests reasonably contemporaneously with the arrest.  Kan. Att’y Gen. Op. 98-38.  A "jail book" listing persons placed in jail and other general information must be open for public inspection. Kan. Att’y Gen. Op. 1987-25.  The amount of time an inmate has spent in custody is an open record.  Kan. Att’y Gen. Op. 2002-29.  The front page of standard offense report must be open for public inspection. Id.; Kan. Att’y Gen. Op. 1998-38 (All information on the front page except for the victim's social security number is presumed to be open, and portions of the front page can only be closed if the victim was the victim of certain sex crimes or under the unusual event that disclosure would constitute a clearly unwarranted invasion of the victim's personal privacy).  Mug shots may be disclosed. Id. A permanent record of all felony offenses reported in a jurisdiction must be open for public inspection. Kan. Att’y Gen. Op. 1979-17. Reports, memoranda, or other internal government documents made by officers in connection with an investigation or prosecution are not open for public inspection. Id. Motor vehicle accident reports must be open for public inspection. Id. Municipal court DUI diversion agreements are public records under KORA and must be disclosed upon request. Kan. Att’y Gen. Op. 1994-7.  Court records of public judicial proceedings, including the sentencing information and guilty or not guilty findings, are part of the court records and are therefore open to the public unless there is other statutory restriction available to close them.  Kan. Att’y Gen. Op. 93-103.  By the same token, records stating charges filed in municipal court and court dates open.  Kan. Att’y Gen. Op. 87-145.

Breath tests in DUI investigations is an example of a criminal investigation record not required to be disclosed.  Kan. Att’y Gen. Op. 87-63.

11. Records of agencies involved in administrative adjudication or civil litigation, K.S.A. 45-221(a)(11), except certain KPERS settlement records. K.S.A. 45-217(f)(1). Investigatory materials become open at the conclusion of the case or once an agency has determined no proceedings will be filed unless another exemption applies. Kan. Att’y Gen. Op. 97-76.
12. Emergency or security information. K.S.A. 45-221(a)(12).
13. Contents of appraisals or engineering relative to the acquisition of property. K.S.A. 45-221(a)(13). But tax assessment records are open. Kan. Att’y Gen. Op. 1991-145.
14. Correspondence between a public agency and a private individual. K.S.A. 45-221(a)(14).
15. Records pertaining to employer-employee negotiation. K.S.A. 45-221(a)(15). But see State, Dep't of Soc. & Rehab. Servs. v. Pub. Emp. Relations Bd., 249 Kan. 163, 815 P.2d 66 (1991).
16. Software programs for electronic data processing and documentation. K.S.A. 45-221(a)(16).
17. Applications, financial statements and other information submitted in connection with applications for student financial assistance. K.S.A. 45-221(a)(17).
18. Plans, designs, drawings or specifications which are the property of a private person. K.S.A. 45-221(a)(18).
19. Well samples, logs or surveys which the state corporation commission requires to be filed. K.S.A. 45-221(a)(19).
20. Notes, preliminary drafts, research data in the process of analysis, unfunded grant proposals, memoranda, recommendations or other records in which opinions are expressed or policies or actions are proposed. K.S.A. 45-221(a)(20).

Draft minutes of a county commission meeting are "preliminary drafts" that would fall within the exception in K.S.A. 45-221(a)(20), and the board of county commissioners is not required to disclose them to the public prior to being formally approved by the board unless the draft minutes are publicly cited or identified either in an open meeting or in an agenda of an open meeting. Kan. Att’y Gen. Op. 2013-05.  See also Kan. Att’y Gen. Op. 90-14.  Mere announcement of a record’s name in an open meeting without discussion of its content does not require disclosure of a record otherwise permissibly closed. Kan. Att’y Gen. Op. 90-92.  A public agency must disclose records reviewed and discussed during an open meeting or where a public body takes binding action on such a record.  Kan. Att’y Gen. Op. 92-132.

21. Records of a public agency having legislative powers pertaining to proposed legislation. K.S.A. 45-221(a)(21).
22. Records of a public agency having legislative powers, which pertain to research prepared for one or more members of such agency. K.S.A. 45-221(a)(22).
23. Library patron and circulation records. K.S.A. 45-221(a)(23).
24. Records which are compiled for census or research purposes. K.S.A. 45-221(a)(24).
25. Records which represent and constitute the work product of an attorney. K.S.A. 45-221(a)(25). Kan. Att’y Gen. Op. 1987-149.
26. Records of a utility or other public service pertaining to individually identifiable residential customers. K.S.A. 45-221(a)(26).
27. Specifications for competitive bidding. K.S.A. 45-221(a)(27).
28. Sealed bids and related documents. K.S.A. 45-221(a)(28).
29. Correctional records pertaining to an identifiable inmate. K.S.A. 45-221(a)(29). Kan. Att’y Gen. Ops. 1984-124, 1982-226.
30. Public records where the public disclosure would constitute a “clearly unwarranted invasion of personal privacy.” K.S.A. 45-221(a)(30). Kan. Att’y Gen. Ops. 1989-50, 1992-149. K.S.A. 45-217(b) defines this phrase to mean “revealing information that would be highly offensive to a reasonable person, including information that may pose a risk to a person or property and is not of legitimate concern to the public.” This amendment was in response to the decision in Data Tree, LLC v. Meek, 109 P.3d 1226, 279 Kan. 445 (2005). The Attorney General has identified several instances when this provision provides a basis to redact information from requested documents: Kan. Att’y Gen. Op. 99-55(independent contractor consulting contract); 98-38 (SSN of victim of sex offense); 92-149 (victim of sex offense); 87-168 (social security number).
31. Public records pertaining to prospective location of a business or industry, where previous public disclosure has not been made. K.S.A. 45-221(a)(31).
32. Engineering and architectural estimates made by or for any public agency relative to public improvements. K.S.A. 45-221(a)(32).
33. Financial information submitted by contractors. K.S.A. 45-221(a)(33).
34. Records of intellectual property rights vested in state institutions. K.S.A. 45-221(a)(34).
35. Peer review, impaired provider, and risk management records of health care providers. K.S.A. 45-221(a)(35).
36. Records revealing the precise location of an archeological site. K.S.A. 45-221(a)(36)

37. Certain railroad records on sale, lease or rehabilitation of property in Kansas given to public agencies. K.S.A. 45-221(a)(37).

38. Risk-based capital reports and capital plans, corrective orders including the working papers and the results of any analysis filed with the commissioner of insurance in accordance with K.S.A. 40-2c20, and amendments thereto. K.S.A. 45-221(a)(38).
39. Memoranda and related materials supporting the annual actuarial opinions submitted pursuant to K.S.A. 40-409(b), and amendments thereto. K.S.A. 45-221(a)(39).
40. Disclosure reports filed with the commissioner of insurance pursuant to K.S.A. 40-2,156(a)and amendments thereto. K.S.A. 45-221(a)(40).
41. All financial analysis ratios and examination synopses concerning insurance companies that are submitted to the commissioner by the national association of insurance commissioners' insurance regulatory information system. K.S.A. 45-221(a)(41).
42. Any records for which disclosure is restricted or prohibited by a tribal-state gaming compact. K.S.A. 45-221(a)(42).
43. Market research and plans, business plans and the terms and conditions of managed care or other third party contracts, developed or entered into by the University of Kansas Medical Center in the management and operation of the university hospital which the chancellor of the University of Kansas or the chancellor's designee determines would give an unfair advantage to competitors of the University of Kansas Medical Center. K.S.A. 45-221(a)(43).
44. Amount of franchise tax paid to the secretary of state by corporations. K.S.A. 44-221(a)(44).
45. Information with a substantial likelihood of revealing security measures of energy, water, communications, sewer and waste infrastructures. K.S.A. 45-221(a)(45).
46. Military discharge documents (DD Form 214) recorded at a Register of Deeds. K.S.A. 45-221(a)(46).
47. Information on location of shelters or safehouses for victims of abuse. K.S.A. 45-221(a)(47).
48. Policy information provided by an insurance carrier listing covered individuals under group-funded workers’ compensation insurance. K.S.A. 45-221(a)(48).
49. An individual’s e-mail, cell phone number, and other contact information given to a public agency for the purpose of public agency notifications which are widely distributed to the public. K.S.A. 45-221-(a)(49).
50. Information that is protected under the Kansas 911 Act, K.S.A. 12-5362 et. seq.. K.S.A. 45-221(a)(50).
51. Records of a public agency on a public website which are searchable and identify personal information of a law enforcement officer when such officer files with the custodian of the record to have the information restricted. This restriction expires after five years, but the officer may make a new request for restriction at any time. K.S.A. 45-221(a)(51).
52. Records of a public agency on a public website which are searchable and identify personal information of a judge or government attorney when such officer of the law files with the custodian of the record to have the information restricted. This restriction expires after five years, but the officer may make a new request for restriction at any time. K.S.A. 45-221(a)(52).
53. Records of a public agency which identify contact information of a person licensed to carry concealed handguns or any person who enrolled in or completed weapons training. K.S.A. 45-221(a)(53).
54. Records of a utility concerning information about cybersecurity threats provided to law enforcement or other federal, state or regional organizations which have responsibility for safeguarding natural resources and channels of communication. K.S.A. 45-221(a)(54).

55.  Records of a public agency containing information or reports by the state bank commissioner in the course of licensing or examining a person engaged in money transmission business. K.S.A. 45-221(a)(55).

The Kentucky Open Records Act’s exemptions were modified and renumbered when the Act was amended in 1992 and again in 1994. Judicial opinions and Attorney General opinions issued prior to these dates cite to the pre-amendment numbering of the exemptions.

Ky. Rev. Stat. 61.878(1): "The following public records are excluded from the application of [Ky. Rev. Stat.] 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery:"

This limitation does not prevent a non-party from using the Open Records Act to obtain public records relating to litigation involving a public agency. Department of Corrections v. Courier-Journal & Louisville Times Co., 914 S.W.2d 349 (Ky. Ct. App. 1996); see also 95-ORD-18 (discussing limitation). In Dept. of Revenue v. Wyrick, the Kentucky Supreme Court further clarified that this limitation does not prevent even a party to a lawsuit from obtaining records that are open to others. 323 S.W.3d 710, at 714 (Ky. 2010). Rather, the court held the limitation “is an explanation of a court’s authority to order inspection of documents otherwise exempted from disclosure under Ky. Rev. Stat. 61.878(1)(a)-(n). It is not an exception to an agency’s duty to disclose nonexempted records.” Id. (emphasis in original).

Ky. Rev. Stat. 61.878(1)(a): "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."

Kentucky courts apply a two-step balancing test when weighing whether disclosure constitutes a clearly unwarranted invasion of privacy. First, the information must be of a personal nature. If so, second,

[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is "clearly unwarranted" is intrinsically situational, and can only be determined within a specific context.

Kentucky Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 327-28 (Ky. 1992).

The Kentucky Supreme Court applied this test in Cape Publ’ns., Inc. v. Univ. of Louisville Found., when it held that the names of donors to a university foundation were open, except for the donors who had specifically requested anonymity and who believed, at the time of the gift, that the donation was being made to a private entity. 260 S.W.3d 818, 824 (Ky. 2008). There, the court said:

“When weighed against the public’s interest in the source of Foundation funds – and ultimately, University funds – we conclude that the anonymous donors’ interest in privacy are superior in this instance.”

Id.

The court went on to say that future donors’ names would not be closed to the public, because the court’s opinion had put donors on notice that they were giving their money to a public institution. Id.

In applying the balancing test, the courts have given greater weight to the privacy interests of private individuals and low-level public employees than to those of high-level public officials and employees. This is because courts view the Open Records Act as being designed to monitor the activities of government, and not of private individuals:

At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing. That purpose is not fostered however by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct.

Zink v. Kentucky Dept. of Workers' Claims, 902 S.W.2d 825, 829 (Ky. Ct. App. 1994).

In Zink, the court refused an attorney's request to examine injury reports submitted to the Kentucky Department of Workers' Claims. The court found this would constitute an unwarranted invasion of privacy because the records were of private citizens and included their names, marital status, dates of birth, number of dependents, salaries, Social Security numbers, home addresses and telephone numbers. Id. at 827.

The court later distinguished Zink in Palmer v. Driggers, 60 S.W.3d 591, 598-99 (Ky. Ct. App. 2001), finding that a former Owensboro police officer's records revealing alleged misconduct in the form of an inappropriate relationship with another officer while on duty was in the public interest and therefore subject to disclosure. Id. The court held that the public had a legitimate interest in "knowing the underlying basis for a disciplinary charge against a police officer who has been charged with misconduct." Id.

Another example of the public interest tilting toward disclosure can be found in 98-ORD-45 ("we find that complaints of sexual harassment and consequent disciplinary action, or the decision to take no action, are matters of legitimate public concern which outweigh the privacy rights of the public servant").

Similarly, the Attorney General has held that public officials' salaries are subject to disclosure. 99-ORD-209 ("The principle that the salary of a public servant is a matter of legitimate public interest, and records reflecting a public servant's salary must be made available for inspection, is as old as the Open Records Act itself"). See also 85-94; 86-38; 87-76; 88-13; 89-97; 93-ORD-144; 97-ORD-85; and 98-ORD-184.

With regard to settlement agreements, the exemption is not invoked by placing a confidentiality clause within the agreement. Central Kentucky News-Journal v. George, 306 S.W.3d 41, 45 (Ky. 2010); Lexington-Fayette Urban County Gov’t v. Lexington Herald-Leader Co., 941 S.W.2d 469, 473 (Ky. 1997). In Lexington-Fayette Urban County Government, the Kentucky Supreme Court held that “settlement of litigation between private citizens and a governmental entity is a matter of legitimate public concern which the public is entitled to scrutinize." 941 S.W.2d at 473. The Kentucky Supreme Court further clarified that point in Central Kentucky News-Journal, when it held that confidentiality clauses within such agreements do not make them exempt from disclosure under the personal privacy exemption to the Open Records Act. 306 S.W.3d at 45.

If the confidentiality clause contains a provision requiring the public agency to notify the affected party upon receipt of an open records request for the settlement agreement, the public agency must do so within the three business days with which it has to comply with the open records request. 98-ORD-24.

Ky. Rev. Stat. 61.878(1)(b): "Records confidentially disclosed to an agency and compiled and maintained for scientific research. This exemption shall not, however, apply to records the disclosure or publication of which is directed by another statute;"

Ky. Rev. Stat. 61.878(1)(c)(1): "Upon and after July 15, 1992, records confidentially disclosed to an agency, or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records;"

In a case of first impression, the Supreme Court determined that records of the Department of Insurance relating to health insurance rates and form filings are subject to the Open Records Act. Documents that constitute confidential or proprietary information, which would give a competitor an unfair advantage, however, are exempt from disclosure under this exception. Southeastern United Medigroup Inc. v. Hughes, 952 S.W.2d 195, 198-99 (Ky. 1997).

Audited financial records submitted by Marina Management Services ("MMS") to the Cabinet for Tourism are exempt from the Open Records Act. Marina Management Services Inc. v. Kentucky Cabinet for Tourism, 906 S.W.2d 318 (Ky. 1995). The records were submitted in connection with MMS's license agreement with the state to operate marinas in state parks; they included asset values, rental amounts on houseboats, profit margins, net earnings and capital income. Id. at 319; see also 92-66 (withholding audit of private hospital).

Ky. Rev. Stat. 61.878(1)(c)(2): "Upon and after July 15, 1992, records confidentially disclosed to an agency, or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which are compiled and maintained:

1. In conjunction with an application for or the administration of a loan or grant;
2. In conjunction with an application for or the administration of assessments, incentives, inducements and tax credits as described in Ky. Rev. Stat. Chapter 154;
3. In conjunction with the regulation of commercial enterprise, including mineral exploration records, unpatented, secret commercially valuable plans, appliances, formulae or processes, which are used for the making, preparing, compounding, treating or processing of articles or materials which are trade commodities obtained from a person; or
4. For the grant or review of a license to do business;"

To successfully raise this exception an agency must establish that the records "1) are confidentially disclosed to the agency or required by the agency to be disclosed to it; 2) are generally recognized as confidential or proprietary; and 3) are compiled and maintained for the grant or review of a license to do business." 99-ORD-220.

Financial records that General Electric submitted to the Kentucky Industrial Revitalization Authority for investment tax credits are exempt from disclosure. Hoy v. Kentucky Industrial Revitalization Authority, 907 S.W.2d 766 (Ky. 1995). The 61.878(1)(c)(2) exemption is designed "to protect those companies which participate in the revitalization and development of industry in Kentucky." Id. at 769.

An application for a racing license does not satisfy the requirements for this exception. The agency may redact those portions of the application, however, which concern the "inner workings" of the business and are "generally recognized as confidential and proprietary." 99-ORD-220.

Similarly, the Attorney General found that a Hardin County Drug Task Force grant application must be released in part under the Act. The agency was not required to disclose, however, the "names of investigators; geographic target areas; types of targeted substances; and strategic plans of attack." 97-ORD-132.

A private agency's proposal to the state Department for Social Services concerning the use of refugee resettlement funds is not exempt: "We believe such records are of uniquely public interest, insofar as they substantiate that federal funds will be put to proper use, and cannot be characterized as confidential or proprietary." 93-ORD-43; see also 95-ORD-107 (stressing that exception only applies where records are confidential).

Ky. Rev. Stat. 61.878(1)(c)(3): "The exemptions provided for in subparagraphs 1. and 2. of this paragraph shall not apply to records the disclosure or publication of which is directed by another statute;"

Ky. Rev. Stat. 61.878(1)(d): "Public records pertaining to a prospective location of a business or industry where no previous public disclosure has been made of the business' or industry's interest in locating in, relocating within or expanding within the Commonwealth. This exemption shall not include those records pertaining to application to agencies for permits or licenses necessary to do business or to expand business operations within the state, except as provided in paragraph (c) of this subsection;"

Ky. Rev. Stat. 61.878(1)(e): "Public records which are developed by an agency in conjunction with the regulation or supervision of financial institutions, including but not limited to, banks, savings and loan associations and credit unions, which disclose the agency's internal examining or audit criteria and related analytical methods;"

Ky. Rev. Stat. 61.878(1)(f): "The contents of real estate appraisals, engineering or feasibility estimates and evaluations made by or for a public agency relative to acquisition or property, until such time as all of the property has been acquired. The law of eminent domain shall not be affected by this provision;"

This exception only applies to real property, and not to personal property. See 95-ORD-98 (holding records relating to the planned acquisition of computers cannot be withheld under this exception).

Ky. Rev. Stat. 61.878(1)(g): "Test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examination before the exam is given or if it is to be given again;"

"Given the importance of the KIRIS exam as a tool for measuring the efficiency and improvement of [Kentucky's] schools, [the Court of Appeals held that] the KIRIS exam should not be open for general public viewing without a special showing of necessity beyond simple curiosity as to its content." Triplett v. Livingston County Board of Education, 967 S.W.2d 25, 34 (Ky. Ct. App. 1997).

Ky. Rev. Stat. 61.878(1)(h): "Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of [Ky. Rev. Stat.] 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of [Ky. Rev. Stat.] 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by [Ky. Rev. Stat.] 61.870 to 61.884;"

A convicted murderer may not obtain the Commonwealth Attorney's file while preparing a petition for habeas corpus: "[T]he defense of the prospective habeas corpus proceedings is a part of the 'law enforcement action' in the appellant's case." Skaggs v. Redford, 844 S.W.2d 389, 390 (Ky. 1992); see also 99-ORD-170.

Ky. Rev. Stat. 61.878(1)(i): "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;"

This exception and 61.878(1)(j) "are intended to insure the integrity of an agency's decision making process by protecting its pre-decisional documents." 93-ORD-37.

Correspondence means "communication by exchange of letters" and does not apply to "oral complaints or communications recorded on an audio tape." 94-ORD-133.

"Writings from private citizens to government agencies are not considered correspondence from private citizens where an agency is expected to rely on the correspondence to take some action, such as take a disciplinary action against a licensee, or enter into a government contract based on bids." 99-ORD-220.

The governor's daily schedule is a preliminary document exempt from disclosure: "We view the Governor's appointment schedule as nothing more than a draft of what may or may never take place; a notation for inter or intra office use, so the daily affairs of the chief executive can be conducted with some semblance of orderliness; and all of which should be free from media interference." Courier-Journal & Louisville Times Co. v. Jones, 895 S.W.2d 6, 10 (Ky. Ct. App.1995).

This section does not prevent the disclosure of a previous open records request and the agency's response to another requester. 92-ORD-1440.

Ky. Rev. Stat. 61.878(1)(j): "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;"

This exception "is intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and recommendations." Id. (citing 94-ORD-132, p.3); see also 90-97; 89-39; 88-85; 88-24; and 86-64.

This exception includes drafts, notes and outlines. A draft is defined as "a preliminary outline, plan or version." 97-ORD-183 (citing Webster II New Riverside University Dictionary 402 (1988)). The term “note” is defined as "a brief record, especially one written down to aid the memory." Id. (citing Webster at 804). An outline is "a tentative version, sketch or outline of a formal and final written product such as the draft report dealt with in 89-34, 93-ORD-125, and 94-ORD-38." Id.

While preliminary drafts, recommendations and memoranda are exempt under Ky. Rev. Stat. 61.878(1)(i) and Ky. Rev. Stat. 61.878(1)(j), those materials must be disclosed if the agency adopts them as part of its final action:

The public has a right to know what complaints have been made to a public agency once final action is taken. Once notes or recommendations are adopted by the public agency as part of its action the preliminary characterization of those notes or recommendations is lost. Such records would lose their exemption . . . and would become releasable . . . .

Kentucky State Bd. of Medical Licensure v. Courier-Journal & Louisville Times Co., 663 S.W.2d 953, 956 (Ky. Ct. App. 1983); see also University of Kentucky v. Courier-Journal, 830 S.W.2d 373, 378 (Ky. 1992) ("[I]nvestigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action.").

Even though a memorandum may have been the final or last memorandum on a particular topic by a particular individual or department, it remains preliminary as long as the final decision maker does not incorporate that memorandum into his or her final action. For instance, a report by a police department's internal affairs department remains preliminary if the chief of police does not adopt its recommendations as part of the chief's final action — even though the report is the "final" report by the internal affairs department. See City of Louisville v. Courier-Journal & Louisville Times Co., 637 S.W.2d 658 (Ky. Ct. App. 1982); see also 94-ORD-132 (discussing the "dichotomy" between final department reports and final agency actions); 94-ORD-89 (finding a post-decisional memorandum to be preliminary).

An example of a preliminary document that lost its preliminary status is the annual evaluation of the director of the Jefferson County Health Department by the Health Board. See 94-ORD-120. The county judge had the choice of accepting the board's evaluation or formulating his own. When he chose to go with the board's evaluation, the evaluation lost its preliminary status and was no longer exempt from disclosure. Id.

In a second example, the Attorney General found that a use of force inquiry was no longer preliminary in nature "[b]ecause the Commissioner adopted the findings and recommendations of the investigating officer by affixing his signature to the report." 97-ORD-168.

Ky. Rev. Stat. 61.878(1)(k): "All public records or information the disclosure of which is prohibited by federal law or regulation;"

An example of a federal law prohibiting disclosure of information is The Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g. See 94-ORD-17 (finding Act, as incorporated by Open Records Act, prohibits disclosure of students' home addresses and telephone numbers). See also 98-ORD-1 (The Drivers' Privacy Protection Act, 18 U.S.C. § 2721 et seq. "prohibits the release and use of certain personal information from state motor vehicle records"); and 97-ORD-178 (a state correctional facility is prohibited from disclosing FBI Rap Sheets pursuant to 28 USC § 534); 05-ORD-128 (finding that pursuant to Ky. Rev. Stat. 61.878(k)(1) and by incorporation of 49 C.F.R. Part 24.9(b) federal regulation prohibits disclosure of information pertaining to financial data regarding the airport expansion program and a subsequent voluntary relocation program operated by the Louisville International Airport.)

Ky. Rev. Stat. 61.878(1)(l): "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."

An example of a state law prohibiting disclosure under the Open Records Act is Ky. Rev. Stat. 610.320(3), which mandates confidentiality for law enforcement records regarding juveniles. See 93-ORD-42 (discussing Ky. Rev. Stat. 610.320(3) and the Open Records Act); see also 95-ORD-121 (discussing Ky. Rev. Stat. 197.025, which permits nondisclosure of some jail records); 94-ORD-97 (discussing Ky. Rev. Stat. 365.880, the Uniform Trade Secrets Act).

Ky. Rev. Stat. 61.878(1)(m): "Public Records the disclosure of which would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating or responding to a terroristic act and limited to:

1. Critical lists resulting from consequence assessments;
2. Vulnerability assessments;
3. Antiterrorism protective measures and plans;
4. Counterterrorism measures and plans;
5. Security and response needs assessment;
6. Infrastructure records that expose vulnerability referred to in this subparagraph through the disclosure of the location, configuration or security of critical systems, including public utility critical systems. These critical systems shall include but not be limited to information technology, communication, electrical, fire suppression, ventilation, water, wastewater, sewage and gas systems."

Ky. Rev. Stat. 61.878(1)(n): “Public or private records, including books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, having historic, literary, artistic, or commemorative value accepted by the archivist of a public university, museum, or government depository from a donor or depositor other than a public agency. This exemption shall apply to the extent that nondisclosure is requested in writing by the donor or depositor of such records, but shall not apply to records the disclosure or publication of which is mandated by another statute or by federal law.”

Ky. Rev. Stat. 61.878(1)(o): “Records of a procurement process under KRS Chapter 45A or 56. This exemption shall not apply after:

1. A contract is awarded; or
2. The procurement process is canceled without award of a contract and there is a determination that the contract will not be resolicited.”

Ky. Rev. Stat. 61.878(1)(p): “Communications of a purely personal nature unrelated to any governmental function.”

Ky. Rev. Stat. 61.878(1)(q): “[P]hotographs or videos that depict the death, killing, rape, or sexual assault of a person. However, such photographs or videos shall be made available by the public agency to the requesting party for viewing on the premises of the public agency, or a mutually agreed upon location, at the request of:

1. (a) Any victim depicted in the photographs or videos, his or her immediate family, or legal representative; (b) Any involved insurance company or its representative; or (c) The legal representative of any involved party;
2. Any state agency or political subdivision investigating official misconduct; or
3. A legal representative for a person under investigation for, charged with, pled guilty to, or found guilty of a crime related to the underlying incident. The person under investigation for, charged with, pled guilty to, or found guilty of a crime related to the underlying incident or their immediate family shall not be permitted to have access to the photographs or videos.

Police body camera footage is not covered by exemption Ky. Rev. Stat. 61.878(1)(q), and is instead governed by Ky. Rev. Stat. 61.168.

2. Records in use in an investigation by the legislature. La. Rev. Stat. Ann. § 44:2.
3. The following records maintained by prosecutors, law enforcement officials, correctional agencies, investigators, communications districts (911 agencies), intelligence agencies, public water districts, and public health investigators. La. Rev. Stat. Ann. § 44:3(A)(l)-(7).

(1) Records pertaining to pending or reasonably anticipated criminal litigation until such litigation has been finally adjudicated or otherwise settled. La. Rev. Stat. Ann. § 44:3(A)(l). This exception has been construed to prevent disclosure of grand jury records, Revere v. Reed, 675 So.2d 292 (La. App. 1st Cir. 1996); Hewitt v. Webster, 118 So.2d 688 (La. App. 2nd Cir. 1960), but see Op. Att'y Gen. 95-137 (addresses of potential and seated grand jurors are public record). The exception also has been used to prohibit disclosure of police and arrest records of the accused during his term in custody, State v. Walker, 344 So.2d 990 (La. 1977), police department reports, an analysis of objects found at scene of offense, copies of pictures taken of defendants at lineup, and copies of statements allegedly made by witnesses or prospective witnesses which the state intends to use at trial, State v. Ball, 328 So.2d 81 (La. 1976). The determination of whether a specific record pertains to "pending criminal litigation" may be tested in court on a case-by-case basis. The act "requires more than a judicial acceptance of an assertion of privilege by a prosecutor; there must be an opportunity for cross examination and presentation of evidence (at an adversary hearing) to contradict the claim of privilege." Cormier v. DiGiulio, 553 So.2d 806 (La. 1989), citing with approval, Freeman v. Guaranty Broad. Co., 498 So.2d 218 (La. App. 1st Cir. 1986); accord, Revere v. Layrisson, 593 So.2d 397, 399 (La. App. 1st Cir. 1991). The Second Circuit Court of Appeal held that the availability of post-conviction relief does not constitute "criminal litigation" that is either "pending" or "reasonably anticipated." Harrison v. Norris, 569 So.2d 585 (La. App. 2d Cir. 1990), writ denied, 571 So.2d 657 (La. 1990). In Lemmon v. Connick, 590 So.2d 574 (La. 1991), the Supreme Court approved Harrison.

A Court’s determination of whether criminal litigation is “reasonably anticipated” is “guided by objective factors” including “whether criminal litigation may still be initiated given the prescriptive period [statute of limitations] of the offense to be charged; the temporal and procedural posture of each case; whether criminal litigation has been finally adjudicated or otherwise settled; the assertion of the prosecutorial authority as to its intent or lack thereof to initiate criminal litigation; whether the prosecutorial authority has taken objective, positive and verifiable steps to preserve its ability to initiate criminal litigation, including, but not limited to, preserving evidence, maintaining contact with witnesses, and continuing an investigation; the time it would take to appropriately investigate and try an offense; the prosecutor’s inherent authority to determine whom, when and how he will prosecute; the severity of the crime; the availability of witnesses, victims and defendants; the spoilation of evidence; the reasonable likelihood that a missing witness or an absconded defendant might be found; and the reasonable likelihood that additional witnesses might be willing to come forward with the passage of time.”  In re Matter Under Investigation, 15 So.3d 972, 992 (La. 2009).

This exemption applies only to records held by the specified agencies, not to the Department of Health and Hospitals or the Division of Administration.  McKay v. State, Div. of Admin., 143 So.3d 510 (La.App. 1st Cir. 2014).  Additionally, because the New Orleans Department of Homeland Security and Emergency Preparedness was not an “intelligence agency” or a law enforcement agency, this exemption did not apply and the records of the location of over 400 “crime cameras” throughout the City were public records.  Bixby v. Arnold, 287 So.3d 43 (La.App. 4th Cir. 2019).

Since Lemmon, the First and Fifth Circuit Courts of Appeal have defined "criminal litigation" as "an adversarial contest begun by formal accusation and waged in judicial proceedings in the name of the State, by the district attorney on the one hand, and against the defendant on the other." Nix v. Daniel, 669 So.2d 573 (La.  App. 1st Cir.), writ denied, 681 So.2d 360 (La. 1996), citing Voelker v. Miller, 613 So.2d 1143 (La. App. 5th Cir. 1993), citing Harrison, 569 So.2d at 589. Similarly, criminal litigation is "pending" only when the formal accusation is instituted by the district attorney or grand jury, Id., and criminal litigation is "reasonably anticipated" only when the district attorney concludes that "it is probable that an arrest will be made and formal accusation will be instituted." Id. Using these definitions, the 5th Circuit has determined that Federal habeas corpus proceedings are not criminal litigation under the exception, Voelker v. Miller, 613 So.2d 1143 (La. App. 5th Cir. 1993).

(2) Records which would identify or which would tend to reveal the identity of a confidential source or information. La. Rev. Stat. Ann. § 44:3(A)(2). But the identity of a confidential informant is not privileged when the state police have publicly identified the person. Freeman v. Guaranty Broad. Corp., 498 So.2d 218 (La. App. 1st Cir. 1986).  That the police may have marked a document as “confidential” is not sufficient to claim this exemption.  There must be an indication that the source requested that his identity be confidential.  Posner v. Gautreaux, 192 So.3d 120 (La. App. 1st Cir. 2016).

(3) Records which contain investigative or security procedures or techniques, criminal intelligence information pertaining to terrorist-related activity, or threat or vulnerability assessments collected or obtained in the prevention of terrorist-related activity. La. Rev. Stat. Ann. § 44:3(A)(3). See Op. Att'y Gen. 92-552 (§ 44:3(A)(3) exemption refers to investigative procedures and techniques, not to information furnished to ABC unit in license application).

(4) Records of the arrest of a person until the arrested party has been adjudged or pleads guilty. Exceptions: initial investigative reports, booking records, summons or citation records and bill of information records are public records, but not any information that would reveal undercover or intelligence operations, any information that would reveal identity of a victim of a sexual offense. A 1988 amendment to this section specifies that the initial investigative report must set forth a narrative description of the alleged offense, the name and identification of each person charged with or arrested for the alleged offense, the time and date of the alleged offense, the location of the alleged offense, the property involved, the vehicles involved, and the names of investigating officers. La. Rev. Stat. Ann. § 44:3(A)(4). Cormier v. DiGiulio, 553 So.2d 806 (La. 1989) (initial report of officers "investigating a complaint" not limited to reports on complaints received from the public; covers initial reports on all matters police investigate, even on their own initiative); State v. McEwen, 504 So.2d 817 (La. 1987) (initial report must include all information obtained by officer in the initial investigation of complaint; selective information cannot be placed in the initial report with the remainder placed in a separate and exempt supplemental report); State v. Shropshire, 471 So.2d 707 (La. 1985) (labeling initial investigative report an "incident report" does not exempt it from Public Records Act); Hilliard v. Litchfield, 822 So.2d 743 (La. App. 1st Cir. 2002) (initial report of officers investigating the complaint not a public record); Op. Att'y Gen. 91-390 (public university campus police initial reports covered); Francois v. Capitol City Press, 166 So.2d 84 (La. App. 3rd Cir. 1964) (police log books used to record all activities and events within the jurisdiction, including records of arrests and investigations, are public records). The initial report must be released regardless whether subsequent charges are filed. Op. Att'y Gen. 94-134.

Information that would be exempt, however, under another specific provision of section 3 (e.g., names of confidential informants or undercover officers) or that would reveal ongoing undercover or intelligence operations or the identity of the victim of a sexual offense need not be disclosed. La. Rev. Stat. Ann. 44:3(A)(4)(c), (d); State v. Campbell, 566 So.2d 1038 (La. App. 3rd Cir. 1990) (en banc).

(5) Records which contain the identity of undercover police officers. La. Rev. Stat. Ann. § 44:3(A)(5).

(6) Records which concern status offenders as defined in the Children’s Code. La. Rev. Stat. Ann. § 44:3(A)(6).

(7) Records collected and maintained by the Louisiana Bureau of Criminal Identification and Information. This exception does not apply to the central registry of sex offenders maintained by the bureau. La. Rev. Stat. Ann. § 44:3(A)(7).

(8) Police body-camera audio or video that is found by the custodian of the records “to violate an individual’s reasonable expectation of privacy.”  La. Rev. Stat. Ann. § 44:3(A)(8).

1. Tax returns, except for the name and address of a person who obtains an occupational license, the information on the face of the license, and the name of the person to whom the license is issued. La. Rev. Stat. Ann. § 44:4(l); Op. Att'y. Gen. 00-165 (tax returns of public employees or information taken from them are exempt). See also Op. Att'y Gen. 96-532 (Dept. of Revenue and Taxation is not prohibited from disclosing names of individuals who have not filed tax returns when requested).
2. Records of persons receiving entitlement payments (old age, blind or dependent children's payments). La. Rev. Stat. Ann. § 44:4(2).
3. Records which pertain to a private person or firm which are in their nature confidential "in the custody or control of any officer . . . whose duties . . . are to investigate, examine, manage . . . or liquidate the business of any private person. . . ." La. Rev. Stat. Ann. § 44:4(3). Several opinions of the Attorney General conclude that this exemption includes proprietary and financial information of private persons and companies if confidential in nature, Op. Att'y Gen. 00-36; Op. Att'y Gen. 92-698, Op. Att'y Gen. 89-550, Op. Att'y Gen. 89-598, Op. Att'y Gen. 83-493, and 82-860; and of nonprofit organizations, Op. Att'y Gen. 87-320. Information which would tend to disclose the income of a private individual is also exempt from disclosure. Op. Att'y Gen. 87-355. Thus, the identities of tenants deemed eligible for low-income housing also is exempt. Op. Atty'y Gen. 97-77. This exemption is said to be grounded in the Louisiana constitutional protection against invasions of privacy. La. Const. Article 1, Section 5. But see Op. Att'y Gen. 98-26 (names and salaries of public employees are not exempt, either under act or constitutional right of privacy), Op. Att'y Gen. 92-367, Op. Att'y Gen. 92-715, Op. Att'y Gen. 85-724, and Op. Att'y Gen. 81-353.
4. Various records of financial institutions maintained by the Office of Financial Institutions. La. Rev. Stat. Ann. § 44:4(4).
5. Daily reports and endorsements filed by insurers with the Louisiana Casualty and Surety Rating Commission. La. Rev. Stat. Ann. § 44:4(5).
6. Records in the custody of the Supervisor of Public Funds and working papers of the internal auditor of a municipality, until the audit is complete. La. Rev. Stat. Ann. § 44:4(6).
7. Records in the custody of the Louisiana State Board of Medical Examiners which concern a person's fitness to practice medicine or midwifery. La. Rev. Stat. Ann. § 44:4(7).
8. Records in the custody of the Department of Conservation which concern proven or estimated reserves of petroleum, natural gas or other minerals. This exemption applies only when the record has "been declared, presented or received as confidential at the request of the lawful owner thereof. . . ." La. Rev. Stat. Ann. § 44:4(8).
9. Records in the custody of the Louisiana State Board of Nursing, Louisiana State Board of Dentistry, Louisiana Board of Veterinary Medicine, Louisiana State Board of Social Work Examiners, Louisiana State Board of Examiners of Psychologists, Louisiana State Board of Practical Nurse Examiners, Louisiana Board of Pharmacy, Louisiana State Board of Optometry Examiners, Louisiana Licensed Professional Counselors Board of Examiners, State Licensing Board for Contractors, and Board of Examiners of Certified Shorthand Reporters relating to a person's fitness to hold a license to practice nursing, dentistry, veterinary medicine, social work, psychology, practical nursing, pharmacy, optometry, counseling, contracting, or court reporting, excluding any action taken by those Boards, and any legal grounds upon which such action is based, relative to an individual's fitness to receive or to continue to hold a license. La. Rev. Stat. Ann. § 44:4(9), (11), (12) (26), (29), (32), (35), (39), (46), (51), and (53).
10. Records in the control or custody of the Governor and which are used in the discharge of his duties. La. Rev. Stat. Ann. § 44:5.
11. Hospital records of individual patients and the records and proceedings of hospital committees. La. Rev. Stat. Ann. § 44:7. Op. Att'y Gen. 92-600. Generally, however, documentation submitted by a health care provider is subject to disclosure. Op. Att'y Gen. 92-367.
12. Records received by the Department of Natural Resources where nondisclosure is required by federal law. La. Rev. Stat. Ann. § 44:4(10).
13. Computer programs or financial or proprietary information used with any automated broker interface system or an automated manifest system conducted by any port commission. La. Rev. Stat. Ann. § 44:4(13).
14. Records in the custody of the Department of Health and Human Resources containing trade secrets submitted by the manufacturer of a product. La. Rev. Stat. Ann. § 44:4(14).
15. Home address and telephone numbers of public employees when the employee requests that they be confidential (La. Rev. Stat. Ann. § 44:11; Op. Att'y Gen. 00-165 and 95-243), and medical and insurance records of public employees (La. Rev. Stat. Ann. § 44:12). Employee performance evaluations are exempt. Op. Att'y Gen. 85-724; Trahan v. Larrivee, 365 So.2d 294 (La. App. 3rd Cir. 1978), writ denied, 366 So.2d 564 (La. 1979). But see Op. Att'y Gen. 98-26, Op. Att'y Gen. 92-367, Op. Att'y Gen. 92-715, Op. Att'y Gen. 81-353, and Op. Att'y Gen. 85-724 (names and salaries of public employees are not exempt, either under act or constitutional right of privacy). Information concerning marital status and organizational memberships of public appointees is exempt, but education and employment histories are not exempt. Op. Att'y Gen. 83-648. Transcripts, medical records, letters of recommendation and other "personally identifiable documents" of personnel are exempt. Op. Att'y Gen. 79-242.
16. Personally identifiable student records are exempt (e.g., grades, test scores, birth dates), but statistics and reports that do not identify an individual are public records. Op. Att'y Gen. 76-186; LaPlante v. Steward, 470 So.2d 1018 (La. App. 1st Cir.), writ denied, 476 So.2d 352 (La. 1985). But see La. Rev. Stat. Ann. § 17:391.4(E) (pupil assessment test scores of individual students, classes, schools and school systems are exempt from the Public Records Act but may be released by school boards if they do not identify individual students, classes, and teachers).
17. Working papers and interim reports developed in conjunction with a strategic plan prepared by private consulting firms and possessed by the Board of Commissioners of the Port of New Orleans that contain sensitive commercial data, the disclosure of which would diminish the competitive advantage of the Port of New Orleans, are not public records. Information that is confidential and proprietary in nature may be excised from the public records. Op. Att'y Gen. 86-669.
18. Upon the request of the owner, certain electronic logs and other electronic surveys produced from wells drilled in search of oil and gas which are filed with the assistant secretary of the Office of Conservation. La. Rev. Stat. Ann. § 44.1(B)
19. All documents filed with, and evidence and proceedings before the judicial commission. La. Rev. Stat. Ann. § 44:10.
20. Records of any library indicating which of its materials have been loaned to or used by an identifiable individual or group of individuals and records of any library which are maintained for purposes of registration or for determining eligibility for the use of library services. La. Rev. Stat. Ann. § 44:13. Op. Att'y Gen. 98-496 (records concerning complaints about Internet usage, specifically about patrons accessing pornographic or sexually explicit material, are public records but the identity of the user of the material must be redacted from the record before release).
21. Identifiable information on their insureds provided by law to the state Department of Health and Hospitals by those issuing health insurance. La. Rev. Stat. Ann. § 44:14.
22. Claim files relating to pending claims in the custody of the Office of Risk Management, Division of Administration, or similar records of a municipality or parish. La. Rev. Stat. Ann. § 44:4(15). See Op. Att'y Gen. 91-98, which expresses the opinion that section 44:4(15) must be construed in pari materia with a wide range of other laws, including the work product privilege and the purported privacy rights of health care providers, and suggests that closed medical malpractice claim files are subject to item-by-item review and non-disclosure.
23. Records of boards and institutions of higher learning involving trade secrets and commercial or financial information obtained from a person and "pertaining to research or to the commercialization of technology"; proposals and commercial or technical research by faculty "of a patentable or licensable nature"; private document collections designated by their donors as having restricted access for a specific period of time. La. Rev. Stat. Ann. § 44:4(16). One Attorney General's opinion expresses the surprising conclusion that "any information which pertains to research is deemed to be 'commercial' under section 4(16)(a) and thus is exempt until published." Op. Att'y Gen. 92-94 would extend a blanket exemption to any information obtained by a public university research center collecting "demographic information" and doing "political polling."
24. Records required of hospitals by the Department of Health and Hospitals as a condition of licensure. La. Rev. Stat. Ann. § 44:4(17).
25. Records of Board of Chiropractic Examiners concerning fitness of licensees. La. Rev. Stat. Ann. § 44:4(18).
26. Records of Office of Public Health gathered or prepared in connection with studies and investigations to determine any "cause or condition of health." Statistics relating to morbidity and mortality may be released if they do not identify individual cases and sources of information or religious affiliations. La. Rev. Stat. Ann. § 44:4(19).
27. Records of Department of Wildlife and Fisheries on "rare, threatened, or endangered species or unique natural communities" and on shipments of alligators or alligator skins La. Rev. Stat. Ann. § 44:4(20), (45).
28. Questionnaire information concerning the timber industry received by the Department of Agriculture and Forestry. Compiled results, however, are public records. La. Rev. Stat. Ann. § 44:4(21).
29. Medical and vital records relating to maternal and infant mortality studies of the Commission on Perinatal Care and Prevention of Infant Mortality of the Department of Health and Hospitals. La. Rev. Stat. Ann. § 44:4(22); § 40:2018(I).
30. Name and address of a law enforcement officer in the custody of the registrar of voters or the commissioner of elections, if the law enforcement officer's employer agency certifies that the officer is engaging in "hazardous activities" that make it necessary for his or her name and address to be kept confidential. La. Rev. Stat. Ann. § 44:4(23).
31. Motor vehicle accident reports required to be submitted to the State by the driver of vehicles involved in an accident involving death, injury or more than $100 property damage. Reports are available, however, to parties to accident, insurers, attorneys, and "news-gathering organizations." La. Rev. Stat. Ann. § 44:4(24); 32:398(H). This exception was challenged on First Amendment and equal protection grounds but was held to be constitutional. DeSalvo v. Louisiana, 624 So.2d 897 (La. 1993), cert. denied, 510 U.S. 1117 (1994).
32. Records of the retired members of the state and municipal employees retirement systems except for the amount of the retired member's retirement allowance, final average compensation, years of creditable service, and the names of the agencies with which he was employed and dates employed. La. Rev. Stat. Ann. § 44:16. This information may be requested by a member of the legislature or an individual reporting to the public retirement system or group receiving benefits from the retirement system. La. Rev. Stat. Ann. 44:16(B); Op. Att'y Gen. 95-243A.
33. Information and records pertaining to the immunization status of persons against childhood diseases, unless the information is disclosed only for the purpose of administering or receiving vaccinations, and the information is released to one of the following individuals: (1) state health care provider; (2) private health care provider; (3) representative of a patient; or (4) a patient who is not a minor. La. Rev. Stat. Ann. § 44:17(B)-(C).
34. Certificates of official driving records in the custody and control of the Department of Public Safety and Corrections, office of motor vehicles, except as provided in R.S. 15:521. La. Rev. Stat. Ann. § 44:3(G).
35. Records of the Louisiana State Child Death Review Panel. La. Rev. Stat. Ann. § 44:4(25).
36. Testing instruments used by the state Department of Education or the State Board of Elementary and Secondary Education. La. Rev. Stat. Ann. § 44:4(27).
37. The name of any person applying for or receiving funds from the Crime Victims Reparations Fund. “In lieu of the person's name, the person's file number shall be used." La. Rev. Stat. Ann. § 44:4(28).
38. Proprietary information provided to a communications district by a service supplier. La. Rev. Stat. Ann. § 44:4(31), 33:9106.
39. Names, addresses, and telephone numbers of students in public elementary or secondary schools. La. Rev. Stat. Ann. § 44:4(33).
40. Social security numbers of teachers and other school employees. La. Rev. Stat. Ann. § 44:4(34).
41. Terms and conditions of rebates concerning prescription drug pricing, in the custody of the Louisiana Department of Health. La. Rev. Stat. Ann. § 44:4(36).
42. Protected health information as defined in the Louisiana Health Emergency Powers Act. La. Rev. Stat. Ann. § 44:4(37), 29:762.
43. Records in the custody of the Office of Conservation pertaining to pipeline security procedures. La. Rev. Stat. Ann. § 44:4(38).
44. Information pertaining to security systems contained in building permit files. La. Rev. Stat. Ann. § 44:4(40).
45. Card numbers, expiration dates, and PIN numbers for credit cards issued to public bodies. La. Rev. Stat. Ann. § 44:4(41).
46. Questions and answers on the notarial exam. La. Rev. Stat. Ann. § 44:4(42).
47. Information on applications by persons under 18 years of age for membership on the Louisiana Legislative Youth Advisory Council. La. Rev. Stat. Ann. § 44:4(43).
48. Louisiana Cemetery Board records pertaining to investigations. La. Rev. Stat. Ann. § 44:4(44).
49. Court reporter’s records. La. Rev. Stat. Ann. § 44:4(47).
50. Tax information in the possession of the Board of Tax Appeals. La. Rev. Stat. Ann. § 44:4(48).

aaa. Jury questionnaires. La. Rev. Stat. Ann. § 44:4(49).

bbb. Security surveillance video of the state capitol area and grounds. La. Rev. Stat. Ann. § 44:4(50).

ccc. Questions and answers on contractors licensing exams. La. Rev. Stat. Ann. § 44:4(52).

ddd. Personal information of peace officers in the custody of the Council on Peace Officer Standards and Training or the Louisiana Commission on Law Enforcement and Administration of Criminal Justice. La. Rev. Stat. Ann. § 44:4(54).

eee. “Blueprints and floor plans of the interior of a public school building.”  La.R.S. 44:3.1(C) and La.R.S. 17:410.1

fff. Data concerning “adverse events and health outcomes associated with a patient’s use of medical marijuana,” that is required to be reported to a state database.  La.R.S. 40:1046(A)(6).

ggg. Records of the State Board of Architectural Examiners concerning the fitness of any person to receive or continue to hold a license.  La. Rev. Stat. Ann. § 44:4 (55).

hhh. “Personally identifiable information of any person who reports a violation of a student code of conduct . . . any reported witness to the reported violation, and, if the reported violation involves violence or abuse, personally identifiable information of any person who may be a victim of violence or abuse. . . .”  La. Rev. Stat. Ann. § 44:4(56).

iii. The “social security number, driver’s license number, financial institution account number, credit or debit card number, or armed forces identification number of a private person who has submitted the information to a public body or official.”  La. Rev. Stat. Ann. § 44:4(57).

jjj. “Patient healthcare data required . . . to be reported by a healthcare provider to the state without the express written consent of the patient.”  La. Rev. Stat. Ann. § 44:4(58).

kkk. Records “concerning cybersecurity plans, financial security procedures, or the assessment or implementation of any such plans or procedures.”  La. Rev. Stat. Ann. § 44:4(59).

lll. Information held by the state “pursuant to the Uniform Unclaimed Property Act of 1997.”  La. Rev. Stat. Ann. § 44:4 (60) and (61).

mmm. Records “in connection with a peace officer and public safety personnel peer support program or session conducted by a trained peer support member.”  La. Rev. Stat. Ann. § 44:4(62).

nnn.  Records of the “Louisiana Domestic Abuse Fatality Panel, or any local or regional panel of the Louisiana Domestic Abuse Fatality Review Panel.”  La. Rev. Stat. Ann. § 44:4(63).

ooo. Any writings, records, or other accounts that reflect the mental impressions, conclusions, opinions, or theories of an attorney or an expert, obtained or prepared in anticipation of litigation or in preparation for trial. La. Rev. Stat. Ann. § 44:4.1. However, internal investigations are not considered “in anticipation of litigation” when they would occur in the regular course of business.  Lewis v. Louisiana State Univ., 21-198, 2023 WL 2504253,at *12 (M.D. La. Mar. 14, 2023).

ppp. Criminal history records and identification files collected by the Louisiana State Board of Private Security Examiners. La. Rev. Stat. Ann. § 44:4.1(23).

The following categories of records or information are not public records under the FOAA:

1. Records Designated Confidential by Statute. The most troublesome general exemption contained in the FOAA is an exemption for records otherwise designated confidential by statute. 1 M.R.S.A. § 402(3)(A). The Maine Supreme Judicial Court discussed the property taxpayer information exemption in Blue Sky West, LLC v. Maine Revenue Services, 2019 ME 137, ¶ 41, 215 A.3d 812, which held the property information submitted by the wind energy developer to Maine Revenue Services could not be shared with the County unless the record (1) was designated as confidential when submitted and (2) contained proprietary information. There are many exemptions scattered throughout Maine statutes. See e.g., 36 M.R.S.A. § 706-A(1) (exempting confidential and proprietary property tax information as public record). Each one must be consulted individually. A useful searchable database of exemptions not listed within the FOAA itself can be found on the Maine Legislature’s website, here: http://www.mainelegislature.org/legis/foa/ (last visited July 6, 2021). Effective June 16, 2020, the Office of Policy and Legal Analysis, in consultation with the Revisor’s Office and the Right to Know Advisory Committee, must identify nonstandard statutory language “related to the designation as confidential or not subject to public disclosure” and “recommend standardized language . . . to clearly delineate what information is confidential and the circumstances under which that information may be appropriately released.” P.L. 2019, ch. 667, §B-8. The Office of Policy and Legal Analysis must then develop recommended legislation to standardize the statutory language by September 1, 2021.
2. Privileged Records. Records "that would be within the scope of a privilege against discovery or use as evidence recognized by the courts of this State in civil or criminal trials if the records or inspection thereof were sought in the course of a court proceeding" are exempt from disclosure. 1 M.R.S.A. § 402(3)(B). The general purpose of this exemption is to achieve consistency between rules that would be applied to government agencies and officials in a lawsuit and the FOAA. Relying on the state’s privilege to withhold names of informants, the Maine Supreme Judicial Court in Dubois v. Department of Agriculture, Conservation and Forestry, 2018 ME 68, ¶ 22, 185 A.3d 743 held the privilege exemption extends to records containing the names of people who had complained to the state agency about the odor from Dubois’s composting facility. SeeR. Evid. 509(a)(1). The Maine Supreme Judicial Court prior discussed the exemption in Moffett v. City of Portland, 400 A.2d 340 (Me. 1979), which held that the transcripts of statements made by police officers during an internal police disciplinary investigation were protected by the Fifth Amendment privilege of the officers and therefore need not be made available for inspection by the press. On at least one occasion a municipality joined with a taxpayer in an action requesting a declaratory judgment that business records submitted in support of a property tax abatement were trade secrets and therefore privileged. The attorney-client privilege applicable to governments and government agencies only applies to communications concerning a pending investigation, claim or action and then only if disclosure would seriously impair the government's ability to conduct that investigation or proceeding in the public interest. M.R. Evid. 502(d)(6); M.R. Civ. P. 26(b)(3). The Supreme Judicial Court discussed this exemption in Dubois v. Office of the Attorney General, 2018 ME 67, ¶¶ 18-25, 185 A.3d 734 and held that draft letters circulated within state agencies in anticipation of litigation were not subject to disclosure under the Act. The Court also held the email correspondences that “involved planning for a strategy meeting” fell within the work product “privilege” and, thus, were not subject to public disclosure.  Id. at ¶ 24.
3. Legislative Papers and Reports. The open records statute contains an exemption for legislative papers and reports until they are signed and publicly distributed and records, working papers, drafts and inter-office and intra-office memoranda used or maintained by any legislator or legislative employee to prepare proposed legislative papers or reports. 1 M.R.S.A. § 402(3)(C).
4. Communications between a Constituent and an Elected Official. An exemption protects information contained in these communications if the information is “of a personal nature” or “would be confidential if it were in the possession of another public agency or official.” 1 M.R.S.A. § 402(3)(C-1).
5. Labor Negotiations. Materials prepared "specifically and exclusively" for negotiations by a "public employer in collective bargaining with its employees and their designated representatives" are exempt from disclosure. 1 M.R.S.A. § 402(3)(D). The concern originally prompting this exemption arose out of collective bargaining negotiations between a public employer and its employees. The purpose was to allow the public employer to develop a bargaining strategy that would not be known by its employees in advance. Despite the plain language of the exemption, a few local governments have assumed that it may be used in other negotiations.
6. University of Maine Faculty and Administrative Committee Records. An exemption protects "records, working papers, inter-office and intra-office memoranda used by or prepared for faculty and administrative committees of the Maine Maritime Academy, the Maine Community College System, and the University of Maine System, when the subject matter is confidential or otherwise protected from disclosure . . . ." 1 M.R.S.A. § 402(3)(E). The chief purpose of the exemption was to protect such records as academic examinations and tests from premature disclosure.
7. Exemption Not Lost by Transfer to Other Governmental Entity. An exemption applies to records in the possession of local governments or intra-state organizations that would be declared confidential if they were in the possession of an agency or official of the state or a political or administrative subdivision thereof. 1 M.R.S.A. § 402(3)(F).
8. Insurance Records. An exemption protects "materials related to the development of positions on legislation or materials that are related to insurance or insurance like protection or services which are in the possession of an association" whose membership is composed exclusively of political or administrative subdivisions of the state or of other organizations of any such subdivision. 1 M.R.S.A. § 402(3)(G).
9. Medical Records and Reports of Municipal EMS. An exemption protects from disclosure medical records and reports of municipal ambulance, rescue and emergency medical service units. 1 M.R.S.A. § 402(3)(H).
10. Juvenile Records. Juvenile records and reports of municipal fire departments regarding the investigation and family background of a juvenile fire setter are confidential. 1 M.R.S.A. § 402(3)(I).
11. Gubernatorial Advisory Organizations. Working papers, including records, drafts and inter-office and intra-office memoranda, used or maintained by certain advisory boards and commissions established, authorized or organized by law or resolve or by Executive Order issued by the Governor or by any staff or members of the board or commission are confidential, unless such working paper is distributed in a public meeting. 1 M.R.S.A. § 402(3)(J).
12. Municipal Recreation Records Concerning Minors. Personally identifying information concerning minors participating in municipal recreation and non-mandatory educational programs are confidential.. 1 M.R.S.A. § 402(3)(K).
13. Security Records. An exemption protects records describing security plans, security procedures or risk assessments prepared specifically for the purpose of preventing or preparing for acts of terrorism, but only to the extent that release of information contained in the record could reasonably be expected to jeopardize the physical safety of government personnel or the public. 1 M.R.S.A. § 402(3)(L). For purposes of this paragraph, "terrorism" means conduct that is designed to cause serious bodily injury or substantial risk of bodily injury to multiple persons, substantial damage to multiple structures whether occupied or unoccupied or substantial physical damage sufficient to disrupt the normal functioning of a critical infrastructure.
14. Information Technology Infrastructure and Systems. An exemption protects records or information describing the architecture, design, access authentication, encryption or security of information technology infrastructure, systems, and software. 1 M.R.S.A. § 402(3)(M). This includes records or information maintained to ensure government operations and technology continuity and to facilitate disaster recovery.
15. Social Security Numbers. Social security numbers are confidential. 1 M.R.S.A. § 402(3)(N).
16. Personal Contact Information Concerning Public Employees.  A public employee’s personal address, telephone number, facsimile number, e-mail address, cellular telephone number, pager number and username, password and uniform resource locator for a personal social media account are exempt, unless that information is made public by other law.  1 M.R.S.A. § 402(3)(O). This exemption does not apply to elected officials.
17. Geographic Information on Trails on Private Land.  Geographic information regarding recreational trails that are located on private land that are authorized voluntarily as such by the landowner with no public deed or guaranteed right of public access, unless the landowner authorizes the release of the information. 1 M.R.S.A. § 402(3)(P).
18. Department of Corrections Security.  Security plans, staffing plans, security procedures, architectural drawings or risk assessments prepared for emergency events that are prepared for or by or kept in the custody of the Department of Corrections or a county jail if there is a reasonable possibility that public release or inspection of the records would endanger the life or physical safety of any individual or disclose security plans and procedures not generally known by the general public. Information contained in records covered by this paragraph may be disclosed to state and county officials if necessary to carry out the duties of the officials, the Department of Corrections or members of the State Board of Corrections under conditions that protect the information from further disclosure. 1 M.R.S.A. § 402(3)(Q).
19. [intentionally omitted]
20. Certain E-mail Mailing Lists. E-mail addresses obtained by a political subdivision of the State for the sole purpose of disseminating noninteractive notifications, updates and cancellations that are issued from the political subdivision or its elected officers to an individual or individuals that request or regularly accept these noninteractive communications. 1 M.R.S.A. § 402(3)(S).
21. Certain Department of Marine Resources Trade Secrets. Records describing research for the development of processing techniques for fisheries, aquaculture and seafood processing or the design and operation of a depuration plant in the possession of the Department of Marine Resources. 1 M.R.S.A. § 402(3)(T).
22. Railroad Hazardous Waste Records. Records provided by railroad companies describing certain information about hazardous materials transported by railroad. 1 M.R.S.A. § 402(3)(U). In contrast, the exemption does not cover records related to the discharge of certain hazardous materials transported by railroad companies.
23. Community Well-Being Check Program Information.  The Act protects from disclosure participant application materials and other personal information obtained or maintained by a municipality or other public entity in administering a community well-being check program, except that a participant's personal information, including health information, may be made available to first responders only as necessary to implement the program. A “community well-being check program” means a voluntary program that involves daily, or regular, contact with a participant and, when contact cannot be established, sends first responders to the participant's residence to check on the participant's well-being. 1 M.R.S.A. § 402(3)(V).

(1). Mandatory exemption of specific records — § 4-304 et seq.

Adoption records — Public records that relate to the adoption of an individual are exempt from disclosure. § 4-305. PIA Manual, at 3-8 (citing 89 Opinions of the Attorney General 31, 43 & n.7 (2004)).

Welfare records — Public records that relate to welfare for an individual are exempt from disclosure. § 4-307; see also 71 Opp. Att'y Gen. 368 (1986) (under certain circumstances, information regarding child abuse cases handled by the Department of Social Services may be disclosed). PIA Manual, at 3-8 (citing 89 Opinions of the Attorney General 31, 43 & n.7 (2004)).

Personnel records — A custodian shall deny inspection of a personnel record of an individual, including an application, a performance rating, or scholastic achievement information. § 4-311(a). Inspection by the person in interest or the elected or appointed official who supervises the work of the individual is permitted. § 4-311(b).

Letters of reference — All solicited or unsolicited letters concerning a person's fitness for public office or employment are exempt from disclosure. § 4-310; 68 Op. Att'y Gen. 335 (1983).

Circulation records — A custodian shall prohibit inspection, use, or disclosure of a circulation record of a public library or other item, collection, or grouping of information about an individual that is maintained by a library and that contains an individual's name or the identifying number, symbol, or other identifying particular assigned to the individual, and identifies the use a patron makes of that library's materials, services or facilities. § 4-308.

Gifts — Records concerning material given to a library, archive or museum are exempt, if the person making the gift limits disclosure as a condition of the gift. § 4-309.

Retirement records — Individual retirement records are generally exempt from disclosure. § 4-312. This exemption does not apply if the records are requested by: (a) the person in interest; (b) the appointing authority of the individual; (c) a beneficiary, personal representative, or other person who has a valid claim to the individual's benefits after the individual has died; or (d) any law enforcement agency for the purpose of obtaining the home address of a retired employee, provided the contact is documented as necessary for official agency business. See § 4-312(b). The exemption also does not apply to county employees obtaining such records for audit purposes. §4-312(b)(1)(v). However, those employees are prohibited from disclosing information that would reveal the identity of a person in interest. §4-312(b)(2). On request, a custodian of records shall state whether an individual receives a retirement or pension allowance. § 4-312(d).

Student records — A custodian shall deny inspection of a school district record about the home address, home telephone number, biography, family, physiology, religion, academic achievement, or physical or mental ability of a student. § 4-313(a). Inspection by the person in interest or an elected or appointed official who supervises the student is permitted. § 4-313(b).

Hospital records — A hospital record that relates to medical administration, staff, medical care, or other medical information and contains information about one or more individuals is exempt from disclosure. § 4-306. The Legislative Auditor may have access to the records of the Department of Health and Mental Hygiene for the performance of his/her duties. 63 Op. Att'y Gen. 453 (1978).

Risk Based Capital Reports or Plans — Subject to Section 4-310 of Maryland Code Ann., Insurance Article, all RBC reports, RBC plans, and all records that relate to those reports or plans are exempt from disclosure. § 4-323.

Maryland Transportation Authority ("MTA") records — Photographs, videotapes or electronically recorded images of vehicles, vehicle movement records, personal financial information, credit reports or other personal or financial data created, recorded, obtained by or submitted to the MTA in connection with any electronic toll collection system are exempt from disclosure. § 4-319(a). However, the individual named in the record, the individual's attorney of record, MTA employees or agents who are investigating or proceeding against an individual for failure to pay a toll, employees or agents of third parties that have entered into agreements with the MTA to use the toll collection system for non-toll applications in the collection of revenues due to the third party, and employees or agents of an entity in another state operating or having jurisdiction over a toll facility may obtain the records. § 4-319 (b).

Higher education investment contracts — Records disclosing the name of an account holder or qualified beneficiary of a higher education contract under Title 18, Subtitles 19 and 19A of the Annotated Code of Maryland Education Article are generally exempt from disclosure. § 4-314(a). Such records must be made available for inspection by persons in interest and may be released to eligible institutions of higher education designated by an account holder or qualified beneficiary under Subtitles 19 or 19A. § 4-314.

Traffic-related reports — Inspection of police reports of traffic accidents, criminal charging documents before service on the defendant, and traffic citations filed in the Automated Traffic System by persons who request records for the purpose of soliciting or marketing legal services, such as an attorney who is not an attorney of record or a person employed or retained by, associated with, or acting on the behalf of such an attorney is prohibited. § 4-315.

Arrest warrants and charging documents — Arrest warrants and charging documents cannot be made available for inspection until the arrest warrant has been served and the return of service has been filed or 90 days have elapsed since issuance of the warrant. § 4-316(a). Court files and records pertaining to an arrest warrant or charging document associated with a grand jury indictment or conspiracy investigation cannot be made available for inspection until after all arrest warrants for co-conspirators have been served and all returns of service have been filed. § 4-316(b).  Information in arrest warrants, including the name, address, birth date, driver’s license number, sex, height, and weight, may be released to the MVA in accordance with certain provisions of the Transportation Article. § 4-316(d). These provisions do not preclude release of statistical information concerning unserved warrants or of information concerning an unserved arrest warrant and the associated charging document; inspection of court files and records regarding an unserved arrest warrant and associated charging document by a judicial officer, authorized court personnel, a State's Attorney, a peace officer, a correctional officer authorized to serve the warrant, a bail bondsman or other surety who executed a bond for the individual subject to arrest under the warrant, an attorney authorized by the individual subject to arrest, the Department of Juvenile Services, or a criminal justice agency; or release of information to notify a victim. § 4-316(e).

Recorded images from traffic control signal monitoring systems — Images are exempt from disclosure, except as required in §§ 21-202.1, 21-809, 21-810, or 24-111.3 of the Transportation Article of the Maryland Code Annotated, to any person issued a citation under such provisions or the attorney or record for that person, or to any employee or agent of an agency in an investigation or a proceeding related to the imposition of or indemnification from civil liability under those same provisions. § 4-321.

Surveillance images — A custodian shall deny inspection of surveillance images, as that term is defined in the Criminal Law Article of the Maryland Code at Section 10-112. § 4-322(b). Inspection by the person issued a citation or that person’s attorney, an employee or agent of the Baltimore City Department of Public Works in an investigation relating to civil liability under Section 10-112 of the Criminal Law Article, or as required under that same section is permitted. § 4-322(c).

MVA records containing personal information — Records may not be knowingly disclosed, except with the person's written consent, or for use by a federal, state, or local government, or for specifically delineated uses. § 4-320(f)(1)-(2). Licensed private detective agencies may obtain information pursuant to § 4-320(f)(3). The custodian is required to disclose personal information, inter alia, for use in connection with a civil, administrative or criminal proceeding; in connection with the execution or enforcement of judgment or orders; for the purposes of research or statistical reporting; for use by an insurer in connection with rating, underwriting, investigating and antifraud activities; for use in the normal course of business by a legitimate business entity to verify accuracy of personal information submitted by the person to the entity; and if the information submitted is inaccurate to obtain correct information. § 4-320(f).

The Attorney General has opined that "a driver whose fitness to drive is under review because of the driver's health condition is generally entitled to inspect the MVA's records pertaining to that review" under Section 16-118(d) of the Transportation Article of the Maryland Code. 82 Op. Att'y Gen. 49, 51, (1997). Because the driver is a person in interest and entitled to a hearing on the issue, the driver may also inspect the MVA Medical Advisory Board's files about that individual. Id.; contra Md. Code Ann., Transp. § 16-118(d)(1)(i) (declaring Medical Advisory Board records confidential without exception). The driver may not inspect the letter that initiated the MVA's review if the letter would reveal the identity of a confidential source. 82 Op. Att'y Gen 49, 51 (1997); see also § 4-351(b)(4).

Maryland Transit Administration records — Records of persons created, generated, obtained by, or submitted to the Maryland Transit Administration, its agents, or employees in connection with the use or purchase of electronic fare media provided by the Maryland Transit Administration, its agents, employees or contractors, shall not be disclosed. However, these records may be disclosed to an individual named in the record or the attorney of record of an individual named in the record. § 4-318.

Department of Natural Resources' records containing personal information — Public records of the Department of Natural Resources containing personal information may not be disclosed. However, the personal information may be disclosed for use in the normal course of business activity by a financial institution as defined in § 1-101(i) of the Financial Institutions Article, but only to verify the accuracy of personal information submitted by the individual to that financial institution, and to correct inaccurate information for the purpose of preventing fraud by the individual, pursuing legal remedies against the individual, or recovering a debt or security interest against the individual. § 4-317.

Applications for Renewal Energy Credit Certification or a Claim for Renewable Energy Credits - An application for renewable energy credit certification or a claim for renewable energy credits under Title 10, Subtitle 15 of the Agricultural Article shall not be disclosed. § 4-324.

Firearm and handgun records — A custodian shall deny inspection of records of a person authorized to sell, purchase, rent or transfer regulated firearms or to carry, wear, or transport a handgun. § 4-325(a). Inspection by the individual named in the record or that individual’s attorney is permitted. § 4-325(b). The Departments of State Police and Public Safety and Correctional Services are also permitted to access firearm or gun records in the performance of official duties. § 4-325(c).

License plate data — A custodian shall deny inspection of captured plate data collected by an automatic license plate reader system. § 4-326(b). Use or sharing of captured data in the course of the custodian’s official duties is permitted. § 4-326(c). This section does not apply to an electronic toll collection system or associated transaction system operated by the MTA. § 4-326(d).

Shielded records — A custodian shall deny inspection of criminal and police records relating to the conviction of a crime that have been shielded under Title 10, Subtitle 3 of the Criminal Procedure Article of the Maryland Code. § 4-327(a). Only persons authorized to access such records under Section 10-302(b) of the Criminal Law Article of the Maryland Code are permitted to do so. § 4-327(b).

(2) Mandatory exemption of specific information — § 4-328 et seq.

Medical and psychological information — The custodian shall deny inspection of the part of the public record that contains medical or psychological information about an individual. § 4-329. For example, medical information such as the symptoms of an ill or injured individual recorded during a 911 call may not be released. PIA Manual, at 3-17 (citing to 90 Opinions of the Attorney General 45 (2005)). This exemption applies only to the part of a public record that contains information about an identified individual. § 4-329(b). This exemption does not apply to autopsy reports of a medical examiner. Id.; 63 Op. Att'y Gen. 659 (1978).

The person in interest may have access to such records to the extent permitted by Md. Code Ann., Health-Gen. § 4-304(a). A request by a person in interest may not be denied, however, by an agency merely because the person seeks the identity of the source of infection, or because the information sought was gathered in the course of an agency's investigation of an outbreak or an infectious disease. See Haigley v. Department of Health and Mental Hygiene, 128 Md. App. 194, 228, 736 A.2d 1185, 1202-03 (1999). See also 71 Op. Att'y Gen. 297 (1986) (tape recording of involuntary admission hearing may be disclosed to patient or authorized representative). With the consent of the individual or person in interest, non-profit health service plans and insurance companies may release personal medical record information to employers who sponsor and maintain group health plans. 63 Op. Att'y Gen. 432 (1978). With respect to non-profit health services plans, consent would not be necessary if the information was released without identifying the subscriber. Id.

A State's Attorney may obtain medical records for purposes of a criminal case if he first establishes written confidentiality procedures, determines whether compulsory process is required, identifies whether the records are covered by general or specific confidentiality categories; ascertains applicable restrictions; and decides on the appropriate type of compulsory process, depending on whether the prosecutor is conducting investigations or prosecuting cases that have been charged. 94 Op. Att'y Gen. 44 (2009).

Commercial information — This exemption applies to trade secrets and confidential commercial, financial, geological or geophysical information obtained from or provided by a person or governmental unit. § 4-335. This exemption does not cover commercial or financial information generated by the agency itself; however, such information may be covered by other law. See Stromberg Metal Works Inc., v. University of Maryland, 382 Md. 151, 167-70, 854 A.2d 1220 (2004),  Federal Open Market Comm. v. Merrill, 443 U.S. 340 (1979) (interpreting Exemption 5 of FOIA to include a qualified privilege permitting the non-disclosure of confidential commercial information generated by the government in the process leading up to the award of a contract). Federal cases and the legislative history of the comparable FOIA exemptions regarding commercial information provide persuasive authority in interpreting § 4-335. 63 Op. Att'y Gen. 355 (1978).

The Attorney General has adopted an objective test requiring an inquiry into whether such data is customarily considered confidential in the business and whether withholding access would serve a governmental or private purpose sufficiently compelling to overcome the state's liberal disclosure policy. 63 Op. Att'y Gen. 355, 362 (1978). In a later opinion, the Attorney General more clearly delineated the test for determining the confidential nature of commercial or financial information. See 69 Op. Att'y Gen. 231, 234 (1984). The test requires a showing that disclosure of the requested information would: (1) impair the government's future access to such information; or (2) cause substantial harm to the competitive position of the person submitting the information. Id. at 234-35.

In addition, the PIA Manual points out that commercial or financial information voluntarily provided to the government should be considered confidential "if it is of the kind that the provider would not customarily release to the public." PIA Manual, at 3-23. The Attorney General's Office recommends that under such circumstances, the submitter should be consulted before the material is disclosed. Id.

Coverage and premium calculations of the Maryland Automobile Insurance Fund's insureds have been held to be confidential commercial and financial data. Progressive Casualty v. MAIF, No. 83/E1074, Baltimore County Cir. Ct. (Feb. 15, 1986).

The Maryland Attorney General has defined a trade secret as:

[a]n unpatented secret formula or process known only to certain individuals using it in compounding some article of trade having commercial value. Secrecy is the essential element. Thus, [a] trade secret is something known to only one or a few, kept from the general public, and not susceptible of general knowledge. If the principles incorporated in a device are known to the industry, there is no trade secret which can be disclosed.

63 Op. Att'y Gen., at 359 (footnotes and citations omitted).

Public employees — Home addresses and telephone numbers of public employees are exempt from disclosure, unless the employee permits the disclosure or the public employer determines that disclosure is necessary to protect the public interest. § 4-331. However, public employee organizations may have access to such information under certain conditions. See Md. Code Ann., State Pers. § 21-504. Public employee's salaries, however, are not exempt from disclosure § 4-101(j)(2); see also § 4-336(a). The Maryland Attorney General has construed the term "salary" to include records reflecting individual bonuses or performance awards paid to merit system employees and appointed officials. 83 Op. Atty. Gen. 163, 164 (1998).

Financial information — This exemption applies to information about an individual, including assets, income, liabilities, net worth, bank balances, financial history or activities, or creditworthiness. § 4-336(b). University System of Maryland, et al. v. The Baltimore Sun Company, 381 Md. 79, 105 847 A.2d 427, 442 (2004). This exemption does not apply to the person in interest; nor does it apply to the salary of a public employee. § 4-336(a).

A hodgepodge of opinions authored by the Maryland Court of Appeals and the Attorney General shed light upon information subject to this exemption. In Kirwan v. The Diamondback, 352 Md. 74, 721 A.2d 196 (1998), the Maryland Court of Appeals rejected the University of Maryland's argument that records of traffic citations received by its head basketball coach were financial records under the Act. 352 Md. at 85, 721 A.2d at 201. In so doing, the court noted that a parking ticket is a citation charging a misdemeanor; it is not a record of indebtedness or liability. Accordingly, because the documents did not fall within the categories of documents identified as financial records within the statute, it was not exempt under the PIA. Id. The Attorney General has construed the term "salary" to include records reflecting individual bonuses or performance awards paid to merit system employees and appointed officials. 83 Op. Atty. Gen. 163, 1644 (1998). Contrarily, disclosure statements filed with county ethics commissions are filed pursuant to the financial disclosure sections of county ordinances and, thus, must be maintained as public records available for inspection and copying in their entirety. 71 Op. Att'y Gen. 282 (1986).

The Attorney General has opined that any record that shows how much money or what type of property people have left unclaimed reveals information about the "assets" of those people. 77 Op. Att'y Gen. 233, 234 (1992). Therefore, any part of a public record that discloses the monetary value or description of property reported to the Unclaimed Property Section as abandoned property must be withheld from public disclosure. Id.

Information systems — Information concerning the security of an information system is exempt from disclosure. § 4-338. On October 24, 1983, the Governor issued Executive Order 01.01.1983.18, establishing a State Data Security Committee regarding security measures for the protection of state agencies maintaining computerized record systems. COMAR 01.01.1983.18.

Licensing records — Although a person's occupational or professional licensing records are generally exempt, the exemption does not apply to that part of a public record that gives the licensee's name, business address (or home address in the absence of a business address), business telephone number, educational and occupational background, professional qualifications, any orders and findings resulting from formal disciplinary actions, and any evidence that has been provided to the custodian to meet the requirements of a statute as to financial responsibility. § 4-333(b). Note that a member of the General Assembly may acquire the names and addresses of and statistical information about individuals who are licensed or, as required by a State law, registered. § 4-103(c).

Other information may be disclosed about a licensee if the custodian finds a compelling public purpose and the rules and regulations of the official custodian permit disclosure. § 4-333(c). The Department of Labor, Licensing and Regulation has concluded that a compelling public interest is served by the disclosure of additional information to an individual who is contemplating a contract with the licensee. Such additional information includes the number, nature, and status of complaints against a licensee. COMAR 09.01.04.11.

The person in interest may review information relating to him or herself. § 4-333(d). In addition, a custodian who sells lists of licensees must omit from the list the name of any licensee on written request of the licensee. § 4-333(e).

Suspected collusive or anticompetitive activity — Disclosure of any part of a public record that contains information generated by the bid analysis management system concerning an investigation of a transportation contractor’s suspected collusive or anticompetitive activity  and submitted to the Maryland Department of Transportation by the U.S. Department of Transportation or another state is exempt from disclosure. § 4-337. The purpose of this section is to provide assurances of confidentiality to investigatory sources of the Maryland Department of Transportation during the course of investigations into bid-rigging. See Bill Analysis, House Bill 228 (1994) (quoted in PIA Manual, at 3-25).

Notary publics — A custodian shall deny inspection of the part of a public record that contains information about the application and commission of a notary public. § 4-332(a). However, the notary public's name, home address, home and business telephone numbers, commission issue and expiration dates, date of taking the oath of office, and signature are not exempt from disclosure. § 4-332(b). Other information may be disclosed if the custodian finds a compelling public purpose. § 4-332(c). Inspection of the record by a notary public or any other person in interest may be denied only to the extent that the inspection could: (1) interfere with a valid and proper law enforcement proceeding; (2) deprive another person of a right to a fair trial or an impartial adjudication; (3) constitute an unwarranted invasion of personal privacy; (4) disclose the identity of a confidential source; (5) disclose an investigative technique or procedure; (6) prejudice an investigation; or (7) endanger the life or physical safety of an individual. § 4-332(d).

In addition, on written request from the notary public, a custodian who sells lists of notaries public shall omit that person's name from the lists. § 4-332(e).

License application containing Social Security number — A custodian shall deny inspection of the part of an application for a marriage license or a recreational license that contains a Social Security number, except to a person in interest or upon the request of the State Child Support Enforcement Administration. § 4-334.

Personal information about a person who maintains an alarm or security system — A custodian shall deny inspection of the part of a public record that identifies or contains personal information about a person, including a commercial entity, that maintains an alarm or security system. § 4-339(a). Inspection shall, however, be permitted by the person in interest, the alarm or security system company that can document it currently provides services to the person of interest, law enforcement personnel and emergency services personnel. § 4-339(b). Personal information is defined in § 4-101(h)(2) as information identifying an individual's name, address, driver's license number or other identification number, medical or disability information, photograph or computer-generated image, Social Security number, or telephone number. Personal information does not include an individual's driver's status, driving offenses, five-digit zip code or information on vehicle accidents. § 4-101(h)(3).

Senior citizen activity centers — A custodian shall deny inspection of any part of a public record that contains the name, address, telephone number or electronic mail address of an individual enrolled in or any member of a senior citizen activities center. § 4-340(b). Inspection by the person in interest, law enforcement personnel or emergency services personnel is permitted. § 4-340(c).

(3) Discretionary exemption of specific records: With respect to exemptions within this category, a custodian may deny access to a part of a public record if he or she believes such disclosure to be contrary to the public interest. § 4-343. The determination of whether disclosure would be contrary to the public interest rests in the sound discretion of the official custodian. 58 Op. Att'y Gen. 563, 566. (1973).

Interagency and intra-agency documents — This exemption applies to any part of an interagency or intra-agency letter or memorandum that would not be available by law to a private party in litigation with the unit. § 4-344; see also Maryland Comm. Against Gun Ban v. Mayor and City Council of Baltimore, 91 Md. App. 251, 603 A.2d 1364 (1992), rev'd on other grounds, 329 Md. 78, 617 A.2d 1040 (1993), Caffrey v. Dep't of Liquor Control for Montgomery County, 370 Md. 272, 297 805 A.2d 268, 282 (2002), Prince George's County v. Washington Post Co., 149 Md. App. 289, 320, 815 A.2d 859, 877 (2003). The exemption applies only to information that may be regarded as deliberative or consultative in nature, and it does not apply to information that is largely factual. See Stromberg Metal Works Inc., v. University of Maryland, et al., 382 Md. 151, 163-67, 854 A.2d 1220, 1227-1230 (2004) (holding that the University could not assert the privilege allowed in § 4-344 for numbers it redacted from a construction project budget report since those numbers were largely factual in nature. The Court noted that the number does not, therefore, constitute a memorandum that would not be available to a private party in litigation). The Maryland Court of Appeals has also made clear that § 4-344 includes information covered under the attorney work product doctrine. Caffrey, 370 Md. at 307, 805 A.2d at 289, see also PIA Manual, at 3-30.

This exemption is substantially similar to its comparable FOIA counterpart and, thus, federal case law provides persuasive authority in interpreting its scope. Stromberg Metal Works Inc. v. University of Maryland, 382 Md. 151, 163, 854 A.2d 1220 (2004), 58 Op. Att'y Gen. 53 (1973). The FOIA exemption is "intended to preserve the process of agency decision-making from the natural muting of free and frank discussion which would occur if each voice of opinion and recommendation could be heard and questioned by the world outside the agency." PIA Manual, at 3-29 (quoting from O'Reilly, Federal Information Disclosure: Procedure; Procedures; Forms and the Law, § 15.01(3d ed. 2000). It has also been observed that the basis of the exemption is the executive privilege doctrine. The privilege arose from the common law, the rules of evidence, and the discovery rules for civil proceedings. Stromberg Metal Works Inc. v. University of Maryland, 382 Md. 151, 163, 854, A.2d 1220 (2004); see also PIA Manual, at 3-28. The Maryland Court of Appeals examined the nature of the privilege in Maryland in Hamilton v. Verdow, 287 Md. 544, 414 A.2d 914 (1980); see also 66 Op. Att'y Gen. 98 (1981).

The exception covers only deliberative aspects of agency memoranda or letters, and not records that are purely factual, objective, or that contain scientific data. PIA Manual, at 3-30. The Attorney General's office recommends that in determining into which category a given record falls, "a presumption of disclosure should prevail, unless the responsible agency official can demonstrate specific reasons why agency decision making may be compromised if the questioned records are released." PIA Manual, at 3-31. In addition, the agency must articulate specific reasons for withholding documents. Cranford v. Montgomery County, 300 Md. 759, 481 A.2d 221 (1984).

Examinations — Test questions, scoring keys, and other examination information that relates to the administration of licenses, employment, or academic matters may be withheld from disclosure. § 4-345(a). Mayer v. Montgomery County, 143 Md. App. 261, 291, 794 A.2d 704, 724 (2002). A person in interest shall have access to a written promotional examination and to the results of the person's examination after the examination has been given and graded, but that person shall not be permitted to copy or otherwise reproduce the examination. § 40345(b).

Research projects — A public record that sets forth the specific details of a research project that a state institution or a political subdivision is conducting may be exempt. § 4-346(a). A custodian may not deny access to the part of a public record that gives only the name, title, expenditures, and date when the final project summary will be available. § 4-346(b); see also 58 Op. Att'y Gen. 53, 59 (1973) (applying this exemption to a consultant's report).

For a thorough discussion of what types of activities constitute research projects within the scope of § 10-618(d), see Haigley v. Department of Health & Mental Hygiene, 128 Md. App. 194, 736 A.2d 1185 (1999). In that decision, the Maryland Court of Special Appeals addressed the interplay between the Maryland Code Health General article's provisions concerning confidentiality of medical records and § 4-346's permissive exemption of records relating to a study. The court rejected the Department's interpretation that anytime the Department gathered information concerning an outbreak of an infectious disease, it was conducting a study falling within the exemption. 128 Md. App. at 216, 736 A.2d at 1196. Rather, the court held that a study had to be academic in nature. To hold otherwise, the court noted, would allow the Department — or any other agency — to declare virtually all of its records non-disclosable "studies," an action that would violate both the spirit and the letter of the PIA. 128 Md. App. at 214, 736 A.2d at 1195.

Site-specific location of certain plants, animals or property — With the exception of the owner of the land upon which the resource is located or any entity that could take the land through the right of eminent domain, a custodian may deny inspection of a public record that contains information concerning: (a) the site-specific location of an endangered or threatened species of plant or animal; (b) a species of plant or animal in need of conservation; (c) a cave; or (d) a historic property as defined in § 5A-301 of the State Finance and Procurement Article in the Maryland Code. § 4-350.

Inventions owned by state public institutions of higher education — A custodian may deny disclosure of information disclosing or relating to an invention owned in whole or in part by a state public institution of higher education for four years to permit the institution to evaluate whether to patent or market the invention and pursue economic development and licensing opportunities. § 4-347(a). If the information has already been disclosed by the inventors, licensed by the institution for at least four years, or four years have elapsed since the date of written disclosure, the custodian may not deny inspection. § 4-347(b).

Real estate appraisals — Until the State or political subdivision acquires title to property, a custodian my deny inspection of a public record that contains a real estate appraisal of the property. § 4-349(a). A custodian may not deny inspection by the owner of the appraised property. § 4-349(b).

State-owned information - A custodian may deny inspection of that part of a public record that contains information disclosing or relating to a trade secret, commercial information, or confidential financial information owned in whole or in party by the Maryland Technology Development Corporation or a public institution of higher education, if the information is part of the institution’s activities under Section 15-107 of the Education Article of the Maryland Code. § 4-348.

Investigatory information — A custodian may deny inspection of records of investigations conducted by the Attorney General, a State's Attorney, a municipal or county attorney, a police department, or a sheriff; an investigation file compiled for any other law enforcement, judicial, correctional, or prosecution purpose; or records that contain intelligence information or security procedures of the Attorney General, a State's Attorney, a municipal or county attorney, a police department, a State or local correctional facility, or a sheriff. § 4-351(a). A person in interest generally may inspect such records, except to the extent the inspection would interfere with a valid and proper law enforcement proceeding; deprive another person of a right to a fair trial or an impartial adjudication; constitute an unwarranted invasion of personal privacy; disclose the identity of a confidential source; disclose an investigative technique or procedure; prejudice an investigation; or endanger the life or physical safety of an individual. § 4-351(b). The person making the complaint that triggered an internal investigation is not a "person in interest." Md. Dep't of State Police v. Dashiell, 443 Md. 435 (2015).

Emergency Management — The custodian may deny inspection of response procedures or plans prepared to prevent or respond to emergency situations, the disclosure of which would reveal vulnerability assessments, specific tactics, emergency or security procedures; building plans, blueprints, schematic drawings, diagrams, operational manuals, or any other records of ports and airports and any other mass transit facilities, bridges, tunnels, emergency response facilities or structures, buildings where hazardous materials are stored, arenas, stadiums, waste and water systems, and any other building, structure, or facility, the disclosure of which would reveal the building's, structure's, or facility's internal layout, specific location, life, safety, and support systems, structural elements, surveillance techniques, alarm or security systems or technologies, operational and transportation plans or protocols, or personnel deployments; or records prepared to prevent or respond to emergency situations and that identify or describe the name, location, pharmaceutical cache, contents, capacity, equipment, physical features, or capabilities of individual medical facilities, storage facilities, or laboratories. § 4-352(a). Disclosure may be denied only to the extent that the inspection would jeopardize the security of any building, structure or facility, facilitate the planning of a terrorist attack, or endanger the life or physical safety of an individual. § 4-352(b). Police Patrol Security Systems Inc. v. Prince George's County, 378 Md. 702, 719 838 A.2d 1191, 1201 (2003). This subsection does not apply to buildings, structures, or facilities owned by the State or any political subdivision; to any building, structure, or facility subject to a catastrophic event like a fire, explosion or natural disaster; or to an inspection or issuance of a citation concerning a building, structure, or facility by an agency of the State or any political subdivision. § 4-352(c).

Maryland Port Administration — A custodian may deny inspection of the part of the public record containing information concerning stevedoring or terminal services or facility use rates or proposed rates; a proposal generated, received, or negotiated by the Maryland Port Administration or any private operating company created by the Administration for use of stevedoring or terminal services or facilities to increase waterborne commerce; or research or analysis related to maritime businesses or vessels compiled for the Administration or any private operating company created by the Administration to evaluate its competitive position with respect to other ports. § 4-353(a). A custodian may not deny inspection by the exclusive representative identified in the memorandum of understanding between the State and the American Federation of State, County and Municipal Employees, the memorandum of understanding between the State and the Maryland Professional Employees Council, or any successor memoranda. § 4-353(b).

University of Maryland University College — A custodian may deny inspection of any part of a public record that relates to the University of Maryland University College's ("UMUC") competitive position with respect to other providers of education services that contains fees, tuition, charges and any information supporting same proposed, generated, received, or negotiated by UMUC, except fees, tuition, and charges published in catalogues and ordinarily charged to students; a proposal generated, received, or negotiated by UMUC for education services except proposals with its students; or any research, analysis or plans relating to UMUC operations or proposed operations. § 4-354(a).

However, a custodian may not deny inspection if the record relates to a procurement by UMUC, if UMUC is required to develop or maintain the record by law or at the direction of the Board of Regents, if the record relates to a matter that is the subject of collective bargaining negotiations, if the exclusive representative has entered into a nondisclosure agreement with UMUC to ensure the confidentiality of the information provided. § 4-354(b).

Public institutions of higher education — A custodian of a record kept by a public institution of higher education that contains personal information relating to a student, a former student, or an applicant may require that a request to inspect a record containing personal information be made in writing and sent by first-class mail; and deny inspection of the part of the record containing the personal information if the information is requested for commercial purposes. § 4-355(b).

(4) Substantial injury to the public interest — Section 4-358 permits a temporary denial of inspection whenever the custodian believes that inspection of a public record otherwise subject to disclosure would cause substantial injury to the public interest. This exemption permits only a temporary denial of access and requires the official custodian to petition the court for an order permitting the continued denial of access within ten working days after the initial denial is made. § 4-358(b). The denial may continue if the court finds after a hearing that disclosure of the public record would cause substantial injury to the public interest. § 4-358(d). In addition, an official custodian who fails to petition the court for an order to continue a denial of access under § 4-358, is liable for actual damages that the court deems appropriate. § 4-362(d)(2); but see ACLU v. Leopold, 223 Md. App. 97, 123 (2015) ("actual damages" under the statute does not include emotional damages).

The initial determination of whether disclosure is contrary to the public interest, however, is within the discretion of the custodian. 64 Op. Att'y Gen. 236 (1979). A technical disadvantage that a governmental entity might suffer in resolving a pending claim because of a disclosure is insufficient to establish a "substantial injury to the public interest" in order to qualify for the exemption. Mayor of Baltimore v. Burke, 67 Md. App. 147, 506 A.2d 683 (1985), cert. denied, 306 Md. 110, 507 A.2d 631 (1986).

The general statute defining "public records" (G.L. c. 4, § 7, cl. 26) contains limited exemptions for those parts of books, papers, photographs, tapes, electronic information and other documents that fall within the categories listed below.

(a) Statutory exemptions: “specifically or by necessary implication exempted from disclosure by statute.”  See Attorney Gen. v. Collector of Lynn, 377 Mass. at 154 (records of municipal tax delinquents not exempt from disclosure); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977) (confidential bank examination report exempt from disclosure). The exemption contemplates two kinds of statutes.  The first kind, statutes that specifically exempt records from disclosure, are those that say a record shall be kept confidential, shall not be a public record, or shall not be subject to the Public Records Law.  See, for example, G.L. c. 41, § 97D (reports of rape or sexual assault “shall not be public reports”).  The second kind, statutes that provide an exemption by necessary implication, are those that expressly limit dissemination of records to a defined group of individuals or entities.  See, for example, G.L. c. 6, § 172 (“Criminal offender record information … shall only be disseminated to: criminal justice agencies…”). A list of some of the statutory exemptions that exist under Massachusetts law is provided below.

(b) Personnel rules and practices (if necessary): “related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding.”  A custodian relying on exemption (b) must show both that records relate solely to the entity’s internal personnel practices, but also that proper performance of necessary government functions would be inhibited by disclosure.  Like the cognate federal exemption, exemption (b) is designed to relieve agencies of the burden of maintaining, assembling, and disseminating records “in which the public cannot reasonably be expected to have a legitimate interest.”  Guide to Mass. Pub. Recs. Law at 16 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf .  The state exemption is narrower than the federal one, by virtue of the addition of the “proper performance” clause.  Id.

(c) Privacy (sometimes), personnel (often), and medical: “personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.”  The privacy standard contained in exemption (c) is “more favorable to nondisclosure” than the Massachusetts privacy statute, G.L. c. 214, § 1B, which provides a right only against “unreasonable, substantial or serious interference with ... privacy.” Pottle v. Sch. Comm. of Braintree, 395 Mass. 861, 866, 482 N.E.2d 813, 817 (1985).  It is a complicated exemption, best understood through a process of linguistic dissection.

Under the first clause of exemption (c), “[a]s a general rule, medical information will always be of a sufficiently personal nature to warrant exemption.” Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf. See Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438, 446 N.E.2d 1051 (1983) (“medical ... files or information are absolutely exempt from mandatory disclosure where the files or information are of a personal nature and relate to a particular individual”); see also Logan v. Comm’r of Dep’t of Industrial Accidents, 68 Mass. App. Ct. 533, 535-36, 863 N.E.2d 559, 562 (Mass. App. Ct. 2007). Even redacted medical records (shorn of names and other data) will be withheld where there is a “grave risk” that individuals familiar with the patient (such as co-workers) could identify the patient and his or her medical condition.  Id. (“indirect identification”); see also Globe Newspaper Co., 388 Mass. at 438; Wakefield Teachers Assn. v. Sch. Comm. of Wakefield, 431 Mass. 792, 795, 731 N.E.2d 63 (2000).

Whether certain records constitute personnel files or information is a case-specific question, depending on “the nature or character of the documents, as opposed to the documents’ label.”  Id.  Personnel information useful in making individual employment decisions – employment applications, performance evaluations, disciplinary records, documentation regarding promotion, demotion, or termination – will generally be exempt. Wakefield Teachers Ass’n v. Sch. Comm. of Wakefield, 431 Mass. 792, 798 (2000); Connolly v. Bromery, 15 Mass. App. Ct. 661, 664 (1983).  But internal affairs records – including officers’ reports, witness interview summaries, and the internal affairs report itself – are not exempt because they relate to the workings of a process designed to ensure public confidence in the government. Wakefield Teachers Ass’n, 341 Mass. at 799.

As to the second half of exemption (c) (the clause following the semicolon), that half of the exemption only comes into play if disclosure of the materials is an invasion of privacy, which under Massachusetts law means that it would disclose “intimate details” of “a highly personal nature.” See G.L. c. 214, § 1B.  This includes information like marital status, paternity, substance abuse, government assistance, or family disputes. Att’y Gen. v. Assistant Comm’r of the Real Prop. Dep’t of Boston, 370 Mass. 623, 625 (1980). If such an invasion of privacy is at issue, then the analysis proceeds to whether the public interest in disclosure outweighs the privacy interest. Like the federal privacy exemption, this part of exemption (c) “requires a balancing between the seriousness of any invasion of privacy and the public right to know.”

Despite the Public Records Law’s presumption favoring openness, the “balancing” under the state privacy exemption is weighted toward non-disclosure (perhaps in deference to the exemption’s application whenever the invasion of privacy “may” be unwarranted).  Thus, a record that invades privacy is deemed public only if “the public interest in obtaining information substantially outweighs the seriousness of any invasion of privacy.” Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 156, 385 N.E.2d 505, 508 (1979) (emphasis added); see also Hastings & Sons Pub. Co. v. City Treasurer of Lynn, 374 Mass. 812, 375 N.E.2d 299 (1978); Peckham v. Boston Herald, Inc., 48 Mass. App. Ct. 282, 286 n.6, 719 N.E.2d 888, 892 n.6 (1999).

The analysis relies to some extent on the contours of the Massachusetts privacy law, G.L. c. 214, § 1B.  Compare Attorney Gen. v. Assistant Comm'r of Real Prop. Dep't, 380 Mass. 623, 404 N.E.2d 1254 (1980) (privacy exemption covers mental health condition, legitimacy of children, medical condition, welfare payments, alcohol consumption, HIV status, family fights) with Doe v. Registrar of Motor Vehicles, No. 85-3449, 1993 WL 496590 (Mass. Super. June 8, 1993) (stating age and height are not “intimate details of a highly personal nature”). But courts have cautioned that whether a privacy interest is implicated in a particular case “requires a somewhat more nuanced examination” in light of the context of the disclosure. Georgiou v. Comm’r of Dep’t of Indus. Accidents, 67 Mass. App. Ct. 428, 434 (2006), quoted in Globe Newspaper Co. v. Exec. Office of Admin. & Fin., No. 011-1184 (Suffolk Super. Ct. April 25, 2011).  The factors considered include “whether disclosure would ‘result in personal embarrassment to an individual of normal sensibilities,’ … ; whether the materials sought contain ‘“intimate details” of a “highly personal” nature,’ …; and whether ‘the same information is available from other sources.’” Globe Newspaper Co. v. Police Comm'r of Boston, 419 Mass. 852, 858, 648 N.E.2d 419, 425 (1995) (internal citations omitted).

Thus, for example, the Superior Court denied an accident victim’s request for the names of certain individuals whose testimony would be integral to his recovering insurance benefits, on the grounds that the individuals had come forward on a promise of anonymity.  Pintado v. Nat'l Carpentry Contractors, Inc., No. 073898, 2009 WL 4282102 (Mass. Super. Nov. 6, 2009).  “Generally, names and addresses of adults are not considered to be intimate details of a highly personal nature,” the Superior Court noted.  But because “the expectations of the data subject are relevant,” such information “might be protected against disclosure as an unwarranted invasion of privacy in one context and not another.” Id.  The balancing of a privacy interest against the public interest in disclosure must be done on a case-by-case basis. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Georgiou, 67 Mass. App. Ct. at 433.

When it comes to records that relate to a public employee's performance of official duties, however, the privacy interest will be particularly muted. See, e.g., George W. Prescott Publ’g Co. v. Register of Probate, 395 Mass. 274, 79 N.E.2d 658 (1985) (newspaper successfully sought access to divorce records, including financial statements, of county treasurer).  Under specific circumstances, courts have deemed that individual privacy interests were trumped by the public’s right to know “whether the burden of public expenses is equitably distributed,” “whether public servants are carrying out their duties in an efficient and law-abiding manner,” Attorney Gen. v. Collector of Lynn, 374 Mass. at 158, 385 N.E.2d at 509; the “expenditure of public monies by public officials,” Attorney General v. Assistant Comm’r of Real Property Dep’t, 380 Mass. at 626, 404 N.E.2d at 1256 (1980); and “what its public servants are paid,” Hastings, 374 Mass. at 818, 375 N.E.2d at 304.

(d) Deliberative process:  “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.”  Where it applies, this exemption “protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete.”  Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n. 8, 526 N.E.2d 1261, 1265 n. 8 (1988). Thus, factual reports that are reasonably complete, even if labeled as opinions or conclusions, are not exempt under this exemption. See Moore-McCormack Lines, Inc. v. I.T.O. Corp. of Baltimore, 508 F.2d 945, 948 (4th Cir. 1974); Guide to Massachusetts Public Records Law at 20 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf.

(e) Employee’s personal notebooks:  “notebooks and other materials prepared by an employee of the Commonwealth which are personal to him and not maintained as part of the files of the governmental unit.”  This category does not include materials that are created by virtue of an individual’s public office.  See, e.g., Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. at 594, 823 N.E.2d at 381-82 (2005).

(f) Secret investigatory materials: “investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.”  Often misused, this provision only allows withholding of material that “could compromise investigative efforts if disclosed.” Guide to Mass. Pub. Records Law at 21 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf. It “does not . . . create a blanket exemption for all records that investigative officials create or maintain.”  Id.; Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. at 512; WBZ-TV4 v. Dist. Attorney for the Suffolk Dist., 408 Mass. 595, 603 (1990).

The custodian must show disclosure will prejudice investigative efforts. Id. Generally, it applies to three kinds of materials.  First, it covers “information relating to an ongoing investigation that could potentially alert suspects to the activities of investigative officials” (applicable only so long as the investigation is ongoing).  Id. Second, it covers information that would reveal “confidential investigative techniques” the disclosure of which would prejudice future law enforcement efforts (applicable indefinitely).  Id. at 20; Bougas v. Chief of Police of Lexington, 371 Mass. 59 62 (1976).  Third, and finally, it requires redaction of information, such as details in witness statements, “which if released create a grave risk of directly or indirectly identifying a private citizen who volunteers as a witness” (applicable indefinitely). Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983) (defining “identifying details” and “grave risk of indirect identification”). The exemption may be employed “to allow for the redaction of the names and addresses of witnesses and victims or to remove information on the record which if released, will so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” SPR Bulletin 3-03, Public Record Requests and C.O.R.I. (Nov. 21, 2003) (noting, however, that Supervisor of Public Records “will not uphold any claim of an exemption if it is not substantiated by clear evidence”).

(g) Trade secrets voluntarily divulged on promise of confidentiality: “trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this subclause shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other benefit.”  All six criteria must be met: (1) trade secrets, commercial information, or financial information; (2) provided voluntarily to a government entity; (3) for use in developing government policy; (4) upon an assurance of confidentiality; (5) not as required by law; and (6) not as a condition of a governmental benefit.  It does not apply to information provided in connection with a contract bid or pursuant to a filing requirement.  Guide to Massachusetts Public Records Law at 22 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf.

(h) Bids and contract proposals (for a short time):  “proposals and bids to enter into any contract or agreement until the time for the opening of bids in the case of proposals or bids to be opened publicly, and until the time for the receipt of bids or proposals has expired in all other cases; and inter-agency or intra-agency communications made in connection with an evaluation process for reviewing bids or proposals, prior to a decision to enter into negotiations with or to award a contract to, a particular person.” The exemption, designed to protect the integrity of the government bidding process, is time-limited. Proposals may be withheld only until the time for receiving proposals has expired.  Bids may be withheld until they are publicly opened and read.  (In other words, the agency may not continue withholding such information once a contract is finalized.)  The second clause of the exemption is similar to exemption (d), in that it allows withholding of communications regarding the evaluation of the bids or proposals while the decision process is ongoing.  These evaluative materials must be disclosed once a decision is reached.  See Guide to Mass. Pub. Records Law at 24 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf.

(i) Real property appraisals (for a short time): “appraisals of real property acquired or to be acquired until (1) a final agreement is entered into; or (2) any litigation relative to such appraisal has been terminated; or (3) the time within which to commence such litigation has expired.”  Once any one of those three conditions has occurred, the appraisals must be disclosed.  The law defines an “appraisal” as any written analysis, opinion, or conclusion prepared by a real estate appraiser relating to the nature, quality, value or utility of specified interest in, or aspects of, identified real estate.”  G.L. c. 112, § 173. The analysis is parcel-specific; details about one parcel may not be withheld pending final agreement on all parcels involved in a project.  See Coleman v. Boston Redevelopment Auth., 61 Mass. App. Ct. 239 (2004).

(j) Firearms license data: “the names and addresses of any persons contained in, or referred to in, any applications for any licenses to carry or possess firearms issued pursuant to Chapter one hundred and forty [140] or any firearms identification cards issued pursuant to said Chapter one hundred and forty [140] and the names and addresses on sales or transfers of any firearms, rifles, shotguns, or machine guns or ammunition therefor, as defined in said Chapter one hundred and forty [140] and the names and addresses on said licenses or cards.” This exemption permits withholding of identifying details, but not the entirety, of any firearm application or identification card. (Other statutory exemptions may permit further redactions, for example, of the holder’s social security number (exemption (c)) or CORI information (exemption (a)). Notably, the Public Records Law contains an independent provision expressly prohibiting the release, by the state or any licensing authority, of information “divulging or tending to divulge” names and addresses of individuals who own, possess, or are licensed to carry firearms.  G.L. c. 66, § 10(d). See also G.L. c. 140, §§ 121-131P (discussing sale of firearms).  Thus, a request for firearm records of a specific individual would be denied in its entirety, as there is no other way to shield the individual’s identity.

(k) [Subparagraph (k) of G.L. c. 4, § 7, cl. 26 has been repealed. See St. 1988, c. 180, § 1. However, the same act added an essentially similar provision to the public library laws providing that "[t]hat part of the records of a public library which reveals the identity and intellectual pursuits of a person using such library shall not be a public record." G.L. c. 78, § 7, as amended by St. 1988, c. 180, § 2.  That statutory exemption is incorporated into the Public Records Law by virtue of exemption (a).]

(l) Reusable tests and score sheets: “questions and answers, scoring keys and sheets and other materials used to develop, administer or score a test, examination or assessment instrument; provided, however, that such materials are intended to be used for another test, examination or assessment instrument.”  Under this exemption, a school may deny a parent’s request for a copy of a midterm exam, if the school establishes that the test questions will be re-used for future examinations.  The same would hold for testing materials used for the statewide Massachusetts Comprehensive Assessment System (MCAS) testing regimen. Guide to the Mass. Pub. Records Law (Sec’y of State, rev. Jan. 2017), at p. 26. The exemption is meant to protect competitively scored, standardized tests and examinations, and does not apply to guidelines used by government agencies to effect policy.  Mass. Corr. Legal Servs. v. Comm'r of Corr., 76 Mass. App. Ct. 1128, 925 N.E.2d 573 (Mass. App. Ct. 2010) (requiring disclosure of unredacted “Risk Factor Tool” used by jails to determine double-bunking of inmates).

(m) Certain hospital contracts: “contracts for hospital or related health care services between (i) any hospital, clinic or other health care facility operated by a unit of state, county or municipal government and (ii) a health maintenance organization arrangement approved under [ch. 176] I, a non-profit hospital service corporation or medical service corporation organized pursuant to [ch. 176] A and [ch. 176] B, respectively, a health insurance corporation licensed under [ch. 175] or any legal entity that is self-insured and provides health care benefits to its employees.” Withholding is permitted only if all four criteria are met: (1) a contract; (2) for hospital or related health care services; (3) one party being a government-operated medical facility; and (4) the other party being an entity as described in the exemption.

(n) Public Safety/Homeland Security: “records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security.” This post-9/11 exemption was enacted even though the Legislature was advised that it requires a records custodian to make a “value judgment” regarding the requester – something that is “specifically antithetic to the … presumptions that all records are public records and all requesters shall be treated uniformly.” Guide to the Mass. Pub. Records Law (Sec’y of State, rev. Jan. 2017), at 27. The custodian may communicate with the requester and ask for sufficient information to reach a “reasonable judgment” about the risk to public safety by disclosure, although the requester need not respond. Id. Under this exemption, it is entirely possible, and permissible, that a custodian might properly provide requested blueprints to one requester, and deny the same blueprints to another.

(o) Home address information of public employees: “the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6..”  Similar language is repeated in the body of the Public Records Law, see G.L. c. 66, § 10(d).  Note that this exemption does not apply to the employees’ names, only to their home addresses, personal email address, and home telephone numbers.

(p) Names and home address information of public employees’ family members: “the name, home address, personal email address and home telephone number of a family member of a commonwealth employee, contained in a record in the custody of a government agency which maintains records identifying persons as falling within the categories listed in subclause (o)..”  Similar language is repeated in the body of the Public Records Law, see G.L. c. 66, § 10(d).  Note that this exemption extends to the names of the employees’ family members, and not merely to their home addresses, email address, and telephone numbers.

(q) Adoption information: “adoption contact information and indices therefore [sic] of the adoption contact registry established by section 31 of chapter 46.”

(r) Child advocate information: “information and records acquired under chapter 18C by the office of the child advocate.”

(s) Energy supplier’s confidential information: “trade secrets or confidential, competitively-sensitive or other proprietary information provided in the course of activities conducted by a governmental body as an energy supplier under a license granted by the department of public utilities pursuant to section 1F of chapter 164, in the course of activities conducted as a municipal aggregator under section 134 of said chapter 164 or in the course of activities conducted by a cooperative consisting of governmental entities organized pursuant to section 136 of said chapter 164, when such governmental body, municipal aggregator or cooperative determines that such disclosure will adversely affect its ability to conduct business in relation to other entities making, selling or distributing electric power and energy; provided, however, that this subclause shall not exempt a public entity from disclosure of a private entity so licensed.”

(t) Public retirement board records: “statements filed under section 20C of chapter 32.” The Public Employee Retirement Administration Commission receives statements of financial interest from members of public retirement boards.  Those records are exempt.

(u) University of Massachusetts research: “trade secrets or other proprietary information of the University of Massachusetts, including trade secrets or proprietary information provided to the University by research sponsors or private concerns.” Exempts certain records held by the University of Massachusetts.

15. The FOIA exempts "[i]nformation of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy." Mich. Comp. Laws Ann. § 15.243(1)(a). Michigan courts have tended to interpret the privacy exemption as requiring a weighing process between the harm to the individual and the public policy served by disclosure. For example, the Michigan Court of Appeals has held that although one seeking information under the Act is not generally required to divulge the reasons for the request where an invasion of privacy may occur, the person seeking disclosure must show that the benefit to the public interest in releasing the information outweighs the possibility of harm to the people involved. Kestenbaum v. Mich. State Univ., 294 N.W.2d 228, 235, aff'd, 327 N.W.2d 783 (1982); see also Tobin v. Mich. Civ. Serv. Comm’n, 296 N.W.2d 320 (1980), aff'd, 331 N.W.2d 184 (1982) (agency should weigh interests of those whose privacy is affected against public purpose to be served by releasing the information).

The Michigan Supreme Court remained divided on the issue for a number of years. In International Union, United Plant Guard Workers of America (UPGWA) v. Dep’t of State Police, 422 Mich. 432, 373 N.W.2d 713 (1985), the court declined to determine whether the FOIA requires courts to balance the benefits of disclosure against the intrusion of privacy, or to simply measure the nature and extent of the asserted privacy invasion, because the information requested in that case did not constitute a clearly unwarranted invasion of privacy under either approach. 373 N.W.2d at 715.

However, an evenly divided court considered the question in State Employees Ass’n v. Dep’t of Mgmt. & Budget, 428 Mich. 104, 404 N.W.2d 606 (1987). In an opinion by Justice Cavanagh with two justices concurring, the court held that the legislature did not intend a balancing of interests to occur in judicial evaluations of the privacy exemption. They reasoned that the legislature specifically indicated five exemptions where it intended a balancing of interests to occur (Mich. Comp. Laws Ann. §§ 15.243(c), (l), (n), (o), and (t)) and the privacy exemption is not among those exemptions.  Id. at 118. The court held that, in determining whether to withhold information under the privacy exemption, the agency should not consider the requester's identity or evaluate the purpose for which the information would be used. Id. at 119-20 . The sole issue in the case was whether disclosure of the home addresses of various public employees would constitute a clearly unwarranted invasion of privacy. That inquiry was guided by common law and constitutional principles:

“The legislature made no attempt to define the right of privacy. We are left to apply the principles of privacy developed under the common law and our constitution. The contours and limits are thus to be determined by the court, as the trier of fact, on a case-by-case basis in the tradition of the common law. Such an approach permits, and indeed requires, scrutiny of the particular facts of each case, to identify those in which ordinarily impersonal information takes on ‘an intensely personal character’ justifying nondisclosure under the privacy exemption.”

Id. at 123 (footnotes omitted).

The court concluded that disclosure in that case would not constitute a clearly unwarranted invasion of privacy. Id. at 124-25.

The judicial balancing test advocated by three other justices in State Employees is the one proposed by Justice Ryan in Kestenbaum, and has two parts. First, it must be determined whether the requested information is "of a personal nature" which thereby gives rise to a cognizable privacy interest. If the information is of a personal nature, then the public's interest in disclosure is balanced against the privacy interest to determine whether disclosure would amount to a "clearly unwarranted invasion of an individual's privacy" within the meaning of the privacy exemption. When applying this test, the court must balance the public interest against the privacy interest with a tilt in favor of disclosure. The court is obligated to remember that the alleged invasion of privacy must be clearly unwarranted. Id. at 107.

Analyses of the privacy exemption have evolved into a two part inquiry: (1) whether the information is of a "personal nature" and (2) whether the disclosure of such information would be a "clearly unwarranted invasion of privacy." Bradley v. Saranac Cmty. Sch., 455 Mich. 285, 565 N.W.2d 650 (1997). If the information is not of a "personal nature," the inquiry ends. Id. In cases interpreting the privacy exemption, the Michigan Supreme Court has fleshed out what courts should look at in determining whether information is of a "personal nature." In Swickard v. Wayne County Medical Examiner, 438 Mich. 536, 475 N.W.2d 304 (1991), the Michigan Supreme Court held that in determining whether information withheld is of a "personal nature," "the customs, mores, or ordinary views of the community" must be taken into account. Id. at 547. Applying this standard, courts have held that autopsy reports and toxicology test results of a deceased judge, travel expense reports of a public body, business documents submitted to a public body in connection with a redevelopment proposal, and the names of elected officials and public employees for whom the city was paying attorney’s fees related to a grand jury investigation were not records of a "personal nature." See Swickard; Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents, 444 Mich. 211, 507 N.W. 2d 422 (1993); Nicita v. City of Detroit, 216 Mich. App. 746, 550 N.W.2d 269 (1996); Detroit Free Press v. City of Warren, 250 Mich. App. 164 (2002).

In Bradley, the Michigan Supreme Court succinctly stated the test: "[W]e conclude that information is of a personal nature if it reveals intimate or embarrassing details of an individual's private life. We evaluate this standard in terms of the customs, mores, or ordinary views of the community." 455 Mich. at 294 (internal quotations omitted). A mere "deleterious effect" on the individual who is the focus of the requested record is not equivalent to the disclosure of "intimate or embarrassing details." Detroit Free Press, 250 Mich. App. at 170. Further, the fact that the disclosure of information "could conceivably lead to the revelation of personal information is not sufficient to satisfy the "personal nature" exemption. Booth Newspapers, 444 Mich. at 233; Nicita, 550 N.W.2d at 273.

Analogizing to the federal FOIA, the Michigan Supreme Court in Booth Newspapers, Inc. v. University of Michigan Board of Regents held that Mich. Comp. Laws Ann. § 15.243(1)(a) is "directed at threats to privacy interests more palpable than mere possibilities." 444 Mich. at 233 (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 380 n. 19 (1976)). More recently, the Michigan Supreme Court held that “private or confidential information, including embarrassing or intimate details, is information of a personal nature. Mich. Fed’n of Teachers v. Univ. of Mich., 481 Mich. 657, 753 N.W.2d 28 (2008).

As to the second prong, whether disclosure would be a "clearly unwarranted invasion of privacy," the Michigan Supreme Court stated in Bradley that "[p]rinciples of common-law privacy do come into play when the court is determining whether information of a personal nature constitutes a clearly unwarranted invasion of an individual's privacy." 455 Mich. at 302. Further, in Mager v. Dep’t of State Police, 460 Mich. 134, 595 N.W.2d 142 (1999), the court looked to federal decisions concerning the federal FOIA and found that "a court must balance the public interest in disclosure against the interest [the Legislature] intended the exemption to protect.'" 460 Mich. at 140-45 (quoting U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 495 (1994)). The court further held that the relevant "public interest" to be weighed in this balance "is the extent to which disclosure would serve the core purpose of the FOIA, which is contributing significantly to public understanding of the operations or activities of the government." 460 Mich. at 145 (quoting Dep’t of Def., 510 U.S. at 495). The court held that fulfilling a request for personal information concerning private citizens, where the request was "entirely unrelated to any inquiry regarding the inner workings of government," would constitute a clearly unwarranted invasion of privacy. 460 Mich. at 146. The Michigan Court of Appeals held in Rataj v. City of Romulus that disclosure of a video recording of an officer assaulting a citizen was not an unwarranted invasion of privacy even though the assault victim requested that the video not be disclosed. 306 Mich. App. 735, 749 (2015). The court determined that the names of the citizen and the officer were subject to disclosure because they are not information of personal nature, but the home addresses, dates of birth, and telephone numbers of the individuals were exempt. Id. at 753-54.

Previously, Michigan decisions had rejected the "core purpose" requirement in applying the privacy exception. But the Michigan Federation court affirmatively held that the Mager core purpose test should be applied under the second prong (and Bradley should be applied under the first prong). 481 Mich. at 675. Moreover, in Practical Political Consulting v. Secretary of State, the Michigan Supreme Court held that the test articulated in Michigan Federation must be applied consistently with the overarching principles found in common and constitutional law.287 Mich. 434, 789 N.W.2d 178 (2010).

Information held to be exempt under the privacy exemption includes salaries paid to university employees, Penokie v. Mich. Tech. Univ., 93 Mich. App. 650, 287 N.W.2d 304 (1979); retirement and pension information of retired employees, 1979-80 Op. Att'y Gen. 255, 273 (1979); disciplinary memos in an employee's personnel file, 1979-80 Op. Att'y. Gen. at 272-73; a crime victim's past sexual history, address, and telephone number, Pennington v. Washtenaw Cty. Sheriff, 125 Mich. App. 556, 336 N.W.2d 828 (1983); identity of a teacher charged with allegations of sexual misconduct, but not documents related to the charges, with the teacher's name redacted, Booth Newspapers, Inc. v. Kalamazoo Sch. Dist., 181 Mich. App. 752, 450 N.W.2d 286, 289 (1989); addresses of donors to university, Clerical-Tech. Union of Mich. State Univ., 190 Mich. App. 300, 475 N.W.2d 373, 375 (1991); names and addresses of persons who owned registered handguns, Mager; addresses of persons who had unclaimed property, Kocher v. Dep’t of Treasury, 241 Mich. App. 378, 615 N.W. 2d 767 (2000); municipal information regarding the death of private citizens by traffic accident, Larry S. Baker, P.C. v. City of Westland, 245 Mich. App. 90, 627 N.W.2d 27 (2001); and names and addresses of people who receive lottery winnings over $10,000 by assignment, Stone Street Capital, Inc. v. Mich. Bureau of State Lottery, 263 Mich. App. 683, 689 N.W.2d 541 (2004).

Information held not to qualify under this exemption, and therefore required to be disclosed under the FOIA, includes home addresses of various public employees, State Emps. Ass'n, 404 N.W.2d at 607 and Tobin, 331 N.W.2d at 327; the arrest records of someone eventually convicted of the crime in question, 1979-80 Op. Att'y. Gen. at 203; mug shots of persons charged with bank robbery, Detroit Free Press v. Oakland Cty. Sheriff, 164 Mich. App. 656, 418 N.W.2d 124 (1987); the names and addresses of persons who leased suites at Pontiac Stadium, Oakland Press v. Pontiac Stadium Building Auth., 173 Mich. App. 41, 433 N.W.2d 317, 319 (1988); business records submitted to a public body in connection with a redevelopment proposal, Nicita, 487 N.W.2d at 819; records regarding taxes paid by hotels and motels in Kent County, Booth Newspapers, Inc. v. Kent Cty. Treasurer, 175 Mich. App. 523, 438 N.W.2d 317, 320 (1989); school file of minor student requested by his mother, Lepp v. Cheboygan Area Sch., 190 Mich. App. 726, 476 N.W.2d 506, 509-10 (1991); autopsy reports and toxicology test results regarding a deceased district court judge, Swickard, 475 N.W.2d at 313; travel expense records of public bodies, Booth Newspapers, Inc. v. Univ. of Mich. Regents; names, current employment, age and residence of candidates for fire chief, Herald Co. v. Bay City, 463 Mich. 111, 614 N.W. 2d 873 (2000); consumer complaints filed with a state agency against property insurers, Detroit Free Press v. Dep't of Consumer & Industry, 246 Mich. App. 311, 631 N.W.2d 769 (2001) (names and addresses of private individuals required to be redacted); information concerning a police deputy's psychological counseling and treatment, Herald Co. v. Kent Cty. Sheriff's Dep't, 261 Mich. App. 32, 680 N.W.2d 529 (2004); personnel records of public employees, other than law enforcement agencies, including disciplinary records, are public records subject to FOIA, Bradley; Herald Co. v. Ann Arbor Pub. Sch., 224 Mich. App. 266, 568 N.W.2d 411 (1997); and names of donors to village police funds, Bitterman v. Vill. of Oakley, 309 Mich. App. 53, 868 N.W.2d 642 (2015).

Pension benefits of retired police officers and firemen were not of personal nature despite the fact that they were drawn from private assets; these amounts reflected the government’s decision-making and hence were more comparable to public salaries. Detroit Free Press v. City of Southfield, 269 Mich. App. 275, 713 N.W. 2d 28 (2005).

15. Mich. Comp. Laws Ann. § 15.243(l)(b) exempts "[i]nvestigating records compiled for law enforcement purposes" where disclosure would do any of the following:

(i) Interfere with law enforcement proceedings;

(ii) Deprive a person of the right to a fair trial or impartial administrative adjudication;

(iii) Constitute an unwarranted invasion of personal privacy;

(iv) Disclose the identity of a confidential source or, if the record is compiled by a law enforcement agency in the course of a criminal investigation, disclose confidential information furnished only by a confidential source;

(v) Disclose law enforcement investigative techniques or procedures; or

(vi) Endanger the life or physical safety of law enforcement personnel.

To establish that this exemption applies, “the public body must show that (1) an investigation was open and ongoing, and (2) release of the requested documents ‘would’ interfere with law enforcement proceedings.” Cox v. Grosse Ile Twp., No. 341518, 2018 WL 6252546, at *2 (Mich. Ct. App. Nov. 29, 2018) (citing King v. Oakland Cty. Prosecutor, 303 Mich. App. 222, 231, 842 N.W.2d 403 (2013)).

The Michigan Court of Appeals has held that these exemptions for investigative records are to be construed narrowly and "must be supported by substantial justification and explanation, not merely by conclusory assertions." Pennington v. Washtenaw Cty. Sheriff, 125 Mich. App. 556, 336 N.W.2d 828 (1983) (quoting Penokie v. Mich. Tech. Univ., 93 Mich. App. 650, 658-59, 287 N.W.2d 304, 308 (1979)). The Michigan Court of Appeals reaffirmed this principle: the “justification of [an] exemption must be more than conclusory, i.e., simple repetition of statutory language.” State News v. Mich. State Univ., 274 Mich. App. 558, 570, 735 N.W.2d 649, 658 (2007), rev’d in part on other grounds. Specifically, “a bill of particulars is in order.” Id. The Michigan Supreme Court has likewise interpreted the law enforcement exemptions strictly. Evening News Ass'n v. City of Troy, 417 Mich. 481, 486, 339 N.W.2d 421, 423 (1983) (error to use "generic determination" standard that release of police reports along with the information contained in them would "interfere with law enforcement proceedings" and would have a "chilling effect on the investigation,” without a showing by defendants of particular risk); Payne, 443 N.W.2d at 481 (error to deny request to review tape recording of 911 emergency calls made to police department on grounds that, unless names, addresses and telephone numbers of the callers were deleted, disclosure could interfere with law enforcement procedures or disclose the identity of confidential sources because trial court failed to find with sufficient particularity that defendant had justified its claimed exemption); Herald Co. v. City of Kalamazoo, 229 Mich. App. 376, 581 N.W.2d 295 (1998) (an open investigation cannot be construed to continue until the expiration of the applicable period of limitation for criminal prosecution without actual, ongoing law enforcement investigation); Herald Co. v. Kent Cty. Sheriff's Dep't, 261 Mich. App. 32, 680 N.W.2d 529 (2004) (internal affairs investigation records not exempt because not compiled for law enforcement purposes and disclosure would not interfere with an ongoing investigation). However, this exemption is not limited in application to police investigations of criminal matters, and can apply to investigations of sexual harassment. Yarbrough v. Dep't of Corr., 199 Mich. App. 180, 501 N.W.2d 207 (1993).

15. Public bodies are not required to disclose records where disclosure "would prejudice a public body's ability to maintain the physical security of custodial or penal institutions occupied by persons arrested or convicted of a crime or admitted because of a mental disability, unless the public interest in disclosure . . . outweighs the public interest in nondisclosure." Mich. Comp. Laws Ann. § 15.243(1)(c). The Michigan Court of Appeals has held that, because of the public policy of disclosure of complete information concerning the affairs of government, this exemption must be given a narrow construction, balancing the public interests in institutional security and freedom of information on a case-by-case basis. Ballard v. Dep’t of Corr., 122 Mich. App. 123, 332 N.W.2d 435 (1982). But see Walen v. Dep’t of Corr., 443 Mich. 240, 505 N.W.2d 519 (1993) (holding that FOIA applied to disciplinary hearings and that final orders and decisions of such hearings should be made available to the public); see also Mithrandir v. Dep’t of Corr., 164 Mich. App. 143, 416 N.W.2d 352 (1987) (maximum security prisoner who had made previous escape attempt must either accept copies of requested files or appoint a representative to inspect the original files because files were located outside the maximum security area); Lee v. Assistant Records Supervisor of Marquette Branch Prison, No. 105932 (Mich. Ct. App. July 12, 1989) (per curiam) (upholding denial of prisoner's request for information about other inmates because defendant's affidavit adequately explained why release of the information would jeopardize prison security). The 1996 amendments to FOIA narrowed the definition of "persons" who may request records under the act by excluding "an individual serving a sentence of imprisonment." Mich. Comp. Laws Ann. § 15.232(g).

Moreover,

“ . . . from a policy standpoint, a blanket exemption should apply for requests by inmates for information about other inmates under the prison security exemption . . . That approach is consistent with the high public interest in maintaining security of penal institutions and the relatively low interest in disclosure when the requested documents do not pertain to the inmate making the request, but rather to other inmates.”

Mackey v. Dep’t of Corr., 205 Mich. App. 330, 333, 517 N.W.2d 303, 305 (1994).

15. Public bodies need not disclose "[r]ecords or information specifically described and exempted from disclosure by statute." Mich. Comp. Laws Ann. § 15.243(1)(d). For example, Mich. Comp. Laws § 38.104 allows the Teacher Tenure Commission to hold private hearings at the request of the affected teacher only at the administrative level. However, beyond that, there is no basis for statutory exemption. Hagen v. Dep’t of Educ., 431 Mich. 118, 427 N.W.2d 879 (1988). Similarly, since Mich. Comp. Laws Ann. § 207.511(a) exempts affidavits stating the value of real estate from disclosure to any person except for county fund auditing purposes, such affidavits need not be disclosed under the FOIA. 1981-82 Op. Att'y. Gen. 518 (1982). This exemption was found not to apply in Oakland County Prosecutor v. Dep’t of Corrections, 222 Mich. App. 654, 564 N.W.2d 922 (1997) where a prosecutor's request for a parolee's psychological records was granted under a statute that states disclosure is allowed when “necessary to comply with another provision of law.” Id. at 660. Voter registration records were exempt from Mich. Comp. Laws § 168.495(a)(2), but the “separate records” in this case did not meet the definition and were not exempt from disclosure, Prac. Pol. Consulting, 287 Mich. App. at 450; Messenger v. Consumer & Indus. Servs., 238 Mich. App. 524, 606 N.W.2d 38 (1999) (passive collection of data does not qualify as "investigation" under the public health code). But see Anzaldua v. Neogen Corp., 292 Mich. App. 626, 808 N.W.2d 804 (2011) (“investigation” under the Whistleblower's Protection Act is defined differently from “investigation” under the Public Health Code); 2010 Op. Att’y Gen. 7247 (2010) (voting ballots were not exempt from FOIA because there is no statute that explicitly exempts them).
16. Where a public record fitting the description of exempt information under Mich. Comp. Laws Ann. § 15.243 is furnished by the public body which originally compiled, prepared, or received the information to another public officer or body in connection with the duties of that officer or body, such information remains exempt from disclosure, so long as "the considerations originally giving rise to the exempt nature of the public record remain applicable." Mich. Comp. Laws Ann. § 15.243(1)(e) (formerly Mich. Comp. Laws Ann. § 15.243(1)(f)).
17. "Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy" are exempt from disclosure when:

“(i) The information is submitted upon a promise of confidentiality by the public body.

(ii) The promise of confidentiality is authorized by the chief administrative officer of the public body or by an elected official at the time the promise is made.

(iii) A description of the information is recorded by the public body within a reasonable time after it has been submitted, maintained in a central place within the public body, and made available to a person upon request. This subdivision does not apply to information submitted as required by law or as a condition of receiving a governmental contract, license, or other benefit.”

Mich. Comp. Laws Ann. § 15.243(1)(f) (formerly Mich. Comp. Laws Ann. § 15.243(1)(g)). The Michigan Supreme Court interpreted section 15.243(1)(f)(iii) in Coblentz v. City of Novi: “Whether the time it takes to record a description of the material is reasonable is measured from the date the material is submitted. It is not measured from the date the parties designate it as confidential. Reasonableness is a discretionary determination.” 475 Mich. 588, 719 N.W.2d 73 (2006).

The trade secrets exemption does not apply to information submitted as required by law or as a condition of receiving a governmental contract, license or other benefit. Blue Cross & Blue Shield v. Ins. Bureau Hearing Officer, 104 Mich. App. 113, 304 N.W.2d 499 (1981). Information submitted to the insurance bureau in support of a request for a rate hike is not subject to exemption from public disclosure under FOIA as a trade secret where competitors of the party seeking nondisclosure can acquire the information sought to be exempted “without substantial difficulty by direct contract” with the individual subscriber groups covered by policies issued by the party seeking nondisclosure. Id. at 131.

15. "Information or records subject to the attorney-client privilege." Mich. Comp. Laws Ann. § 15.243(1)(g) (formerly Mich. Comp. Laws Ann. § 15.243(1)(h)). Thus, for example, when the Attorney General or State Public Administrator acting in his or her capacity as Assistant Attorney General is representing the state, his or her files and work-product are subject to the attorney-client privilege and may be exempt from disclosure. This exemption continues regardless of whether the files and work-product are retained by the Attorney General or delivered to the agency for preservation and safe keeping. 1979-80 Op. Att'y Gen. 255, 291-92 (1979); see also McCartney v. Att’y Gen., 231 Mich. App. 722, 587 N.W.2d 824 (1998) (letters received from third parties forwarded by Governor's office to Attorney General were exempt from disclosure); Estate of Nash by Nash v. City of Grand Haven, 321 Mich. App. 587, 909 N.W.2d 862 (2017) (documents created under the common legal interest doctrine are exempt under the attorney-client privilege exemption when the parties undertake a joint effort with respect to a common legal interest). But see Herald Co. v. Ann Arbor Pub. Sch., 224 Mich. App. 266, 568 N.W.2d 411 (1997) (tape recording of interview between school district teacher and school district's attorney not exempt because the interview was adversarial and was not about how school was going to defend itself in legal action).
16. Likewise, information or records subject to "other privilege recognized by statute or court rule," including confidential communications between physicians or psychologists and their patients, and between ministers, priests, or Christian Science practitioners and those they counsel, are also exempt from disclosure. Mich. Comp. Laws Ann. § 15.243(1)(h) (formerly Mich. Comp. Laws Ann. § 15.243(1)(i). See Herald Co., 224 Mich. App. 276-77 (medical records submitted by teacher to schools were protected by physician-patient privilege).
17. A public body need not disclose a bid or proposal to enter into a contract or agreement "until the time for the public opening of bids or proposals, or if a public opening is not to be conducted, until the deadline for submission of bids or proposals has expired." Mich. Comp. Laws Ann. § 15.243(1)(i) (formerly Mich. Comp. Laws Ann. § 15.243(1)(j)); see also Nicita, 194 Mich. App at 665-66 (1992) (exemption applies only to a competitive bidding process where bids are solicited but not to unsolicited bids).
18. Appraisals of real property to be acquired by a public body need not be disclosed until "(i) an agreement is entered into or (ii) three years has elapsed since the making of the appraisal, unless litigation relative to the acquisition has not yet terminated." Mich. Comp. Laws Ann. § 15.243(1)(j) (formerly Mich. Comp. Laws Ann. § 15.243(i)(k)).
19. "Test questions and answers, scoring keys, and other examination instruments or data used to administer a license, public employment, or academic examination" need not be disclosed "unless the public interest in disclosure outweighs the public interest in nondisclosure." Mich. Comp. Laws Ann. § 15.243(1)(k) (formerly Mich. Comp. Laws Ann. § 15.243 (1)(1)). See Schroeder v. City of Detroit, 221 Mich. App. 364, 561 N.W.2d 497 (1997) (the public interest in disclosure of psychological evaluation used by city to determine applicants' fitness for police officer position was outweighed by strong public interest in preserving integrity of hiring process through nondisclosure).
20. The Act exempts from disclosure "[m]edical, counseling, or psychological facts or evaluations concerning an individual if the individual's identity would be revealed by a disclosure of those facts or evaluation, including protected health information." Mich. Comp. Laws Ann. § 15.243(1)(l) (formerly Mich. Comp. Laws Ann. § 15.243(1)(m)). In Bradley, the Michigan Supreme Court found that performance evaluations of teachers are not "counseling" evaluations and that the exemption was not applicable when the requester asked for records of a particular individual; in that case, the patient's identity would not be revealed because it was already known. 455 Mich. at 297-98.
21. "[C]ommunications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action" are also exempt from disclosure. Mich. Comp. Laws Ann. § 15.243(1)(m) (formerly Mich. Comp. Laws Ann. § 15.243(1)(n)). However, in order for this exemption to apply, the public body must show that "in the particular instance the public interest in encouraging frank communications between officials and employees of public bodies clearly outweighs the public interest in disclosure." Id. Thus, portions of preliminary drafts of documents which do not exist as final drafts may be exempt from disclosure unless they contain purely factual material. In the statute, the phrase “preliminary to a final agency determination” modifies “communications and notes.” The inclusion of this limiting phrase signifies the Michigan Legislature’s intent “to exclude from the ambit of the frank communication exemption those communications and notes that were not preliminary to a final agency determination of policy or action when they were created.” Bulowski v. City of Detroit, 478 Mich. 268, 276, 732 N.W.2d 75, 80 (2007). Preliminary and advisory communications between and within public bodies are also exempt. 1979-80 Op. Att'y Gen. 255, 297-98 (1979). However, the mere showing that a document falls within this exemption is not adequate where the public body does not prove specifically that the need for nondisclosure clearly outweighs the public interest in disclosure. Nicita v. City of Detroit (After Remand), 216 Mich. App. 746 (1996) (documents ordered produced where city failed to make such showing with regard to each document). In Bradley, the Michigan Supreme Court held that only a public body had standing to assert this exemption and that the person whose records were sought could not raise this exemption in a "reverse FOIA" action. 455 Mich. at 296.

Further, this section specifically states that it does not constitute an exemption under state law for purposes of section 8(h) of Michigan's Open Meetings Act (Mich. Comp. Laws Ann. § 15.268(h)), which allows public bodies to meet in closed session "[t]o consider material exempt from discussion or disclosure by state or federal statute." Thus, information which is exempt from disclosure under Mich. Comp. Laws Ann. § 15.243(1)(m) may not for that reason be discussed in closed session under Mich. Comp. Laws Ann. § 15.268(h). Also, the phrase "determination of policy or action" includes determinations relating to collective bargaining, "unless the public record is otherwise required to be made available under [Mich. Comp. Laws Ann. § 423.201-.217, which are labor regulations governing public employees]." Mich. Comp. Laws Ann. § 15.243(1)(m); see also McCartney v. Attorney Gen., 231 Mich. App. 722, 587 N.W.2d 824 (1998) (internal memoranda written by Assistant Attorney General exempt from disclosure); Herald Co. v. Ann Arbor Pub. Sch., 224 Mich. App. 266, 568 N.W.2d 411 (1997) (significant public interest in disclosing a memorandum that contains public observations of a teacher who has been convicted of carrying a concealed weapon not outweighed by public interest in encouraging frank communications within a public body); Mich. Prof’l Emps. Soc’y v. Dep’t of Natural Res., 192 Mich. App. 483, 482 N.W.2d 460 (1991) (request by employee who was an unsuccessful candidate for promotion for all screening and interview documents, including handwritten interview notes and evaluations regarding him were properly denied because any personal benefit to plaintiff through disclosure was greatly outweighed by the public interest in protecting the discretionary employment decision-making process and encouraging frank communications regarding employment of public officers); Favors v. Dep’t of Corr., 192 Mich. App. 131, 480 N.W.2d 604 (1991) (request by prisoner for copy of worksheet used by disciplinary credit committee to determine whether to recommend good-time credits was properly denied because release of document could discourage frank appraisals by the committee and thus inhibit accurate assessment of inmate's merits); 1979 Op. Att'y Gen. 5500, 275-76, 287-88 (1979) (observation sheets used by state police that contained review board members' candid impressions of candidates for promotion exempt from disclosure); Traverse City Record Eagle v. Traverse City Area Pub. Sch., 184 Mich. App. 609, 459 N.W.2d 28 (1990) (tentative collective bargaining agreement between school district and unions exempt from disclosure because it was message from school board and union representatives to their respective bodies, advisory in nature, and because premature disclosure would have negative impact on negotiation process); Herald Co. v. E. Mich. Univ. Bd. of Regents, 265 Mich. App. 185, 204, 693 N.W.2d 850 (2005) (letter from university VP to a Regent regarding expenditures at the university president's home exempt because disclosure "would likely hurt, not advance, the public interest").

15. "Records of law enforcement communication codes, or plans for deployment of law enforcement personnel" need not be disclosed if disclosure "would prejudice a public body's ability to protect the public safety unless the public interest in disclosure . . . outweighs the public interest in nondisclosure in the particular instance." Mich. Comp. Laws Ann. § 15.243(1)(n) (formerly Mich. Comp. Laws Ann. § 15.243(1)(o)).
16. "Information that would reveal the exact location of archeological sites" is exempt. However, the section allows the secretary of state to promulgate rules to provide for the disclosure of the location of such sites "for purposes relating to the preservation or scientific examination of sites." Mich. Comp. Laws Ann. § 15.243(1)(o) (formerly Mich. Comp. Laws Ann. § 15.243(1)(p)).
17. "Testing data developed by a public body in determining whether bidders' products meet the specifications for purchase of those products by the public body" are exempt from disclosure if it would reveal that only one bidder has met the specifications. However, this exemption applies only until one year has elapsed from the time the public body completes the testing. Mich. Comp. Laws Ann. § 15.243(1)(p) (formerly Mich. Comp. Laws Ann. § 15.243(1)(q)).
18. Academic transcripts of state colleges and universities are exempt from disclosure "if the transcript pertains to a student who is delinquent in the payment of financial obligations to the institution." Mich. Comp. Laws Ann. § 15.243(1)(q) (formerly Mich. Comp. Laws Ann. § 15.243(1)(r)).
19. Disclosure of campaign committee records, including those of committees that receive money from a state campaign fund, is not required. Mich. Comp. Laws Ann. § 15.243(1)(r) (formerly Mich. Comp. Laws Ann. § 15.2431(1)(s)).
20. Mich. Comp. Laws Ann. § 15.243(1)(s) (formerly Mich. Comp. Laws Ann. § 15.243(1)(t)), the section regulating police records, explicitly requires use of a balancing process: "Unless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance, public records of a law enforcement agency" are exempt from disclosure where the release of such records would do any of the following:

(i) Identify or provide a means of identifying an informant;

(ii) Identify or provide a means of identifying a law enforcement undercover officer or agent or a plain clothes officer as a law enforcement officer or agent;

(iii) Disclose the personal address or telephone number of law enforcement officers or agents or any special skills that they may have;

(iv) Disclose the name, address, or telephone numbers of family members, relatives, children, or parents of law enforcement officers or agents;

(v) Disclose operational instructions for law enforcement officers or agents;

(vi) Reveal the contents of staff manuals provided for law enforcement officers or agents;

(vii) Endanger the life or safety of law enforcement officers or agents or their families, relatives, children, parents, or those who furnish information to law enforcement departments or agencies;

(viii) Identify or provide a means of identifying a person as a law enforcement officer, agent, or informant;

(ix) Disclose personnel records of law enforcement agencies. See, e.g., Kent Cty. Deputy Sheriff's Ass'n v. Kent Cty. Sheriff, 463 Mich. 353 (2000) (union's request for copies of reports on which sheriff based disciplinary decisions properly denied because the public interest in meaningful arbitration of grievances did not outweigh public interest in nondisclosure to preserve sheriff's department's ability to effectively conduct such investigations); Landry v. City of Dearborn, 259 Mich. App. 416, 674 N.W.2d 697 (2003) (employment applications for all individuals applying for the position of police officer are exempt); Sutton v. City of Oak Park, 251 Mich. App. 345, 650 N.W.2d 404 (2002) (internal investigation records of a police officer constitute personnel records and are exempt where public interest favors nondisclosure). But see Herald Co. v. Kent Cty. Sheriff's Dep't, 261 Mich. App. 32, 680 N.W.2d 259 (2004) (internal affairs investigation report not exempt as personnel record when the document "shed[s] light on the official acts and workings of the government"); Rudd v. City of Norton Shores, No. 343759, 2019 WL 2517404, at *4 (Mich. Ct. App. June 18, 2019) (noting that the “location of a document is not determinative of the applicability of the personnel records exemption” and holding that citizen complaints located in a “personnel file” are not exempt under the personnel records exemption) (citing Newark Morning Ledger Co. v. Saginaw Cty. Sheriff, 204 Mich. App. 215, 219, 514 N.W.2d 213 (1994)); or,

(x) Identify or provide a means of identifying residences which law enforcement agencies are requested to check in the absence of their owners or tenants. See Haskins v. Oronoko Twp. Supervisor, 172 Mich. App. 73, 431 N.W.2d 210 (1988) (prisoner's request for all police reports regarding his case properly denied as to documents protected by various subsections of this exemption).

The Michigan Court of Appeals held that a plaintiff, under Mich. Comp. Laws 15.243(1)(s)(ix), should have been given an opportunity to show at the trial level that public interest in disclosure outweighed the public interest in nondisclosure. Liddell v. Wayne Cty. Records, No. 283839, 2009 WL 2170663 (Mich. Ct. App. July 21, 2009). The Michigan Supreme Court held that “in light of this language . . . public records reviewed under the FOIA balancing test must be organized within reasonably specific categories that enable the circuit court to weigh similar competing aspects of the public interest.” Federated Publ’ns v. City of Lansing, 467 Mich. 98, 110, 649 N.W. 2d 383, 389 (2002) abrogated on other grounds by Herald Co. v. E. Mich. Univ. Bd. of Regents, 475 Mich. 463, 719 N.W.2d 19 (2006).

333. Records and information pertaining to an investigation or a compliance conference conducted by the department of consumer and industry services under Mich. Comp. Laws § 333.16101-333.18838 are exempt from disclosure as a public record "before a complaint is issued" except for the following information:

(i) the fact that an allegation has been received, the date the allegation was received, and the fact that an investigation is being conducted;

(ii) the fact that an allegation was received by the department of consumer and industry services, the fact that the department did not issue a complaint for the allegation, and the fact that the allegation was dismissed. Mich. Comp. Laws Ann. § 15.243(1)(t) (formerly Mich. Comp. Laws Ann. § 15.243(1)(u)).

15. Records of a public body's security measures "to the extent that the records relate to the ongoing security of the public body." Mich. Comp. Laws Ann. § 15.243(1)(u) (formerly Mich. Comp. Laws Ann. § 15.243(1)(v)).
16. Records of information relating to a civil action in which the requesting party and the public body are parties. Mich. Comp. Laws Ann. § 15.243(1)(v) (formerly Mich. Comp. Laws Ann. § 15.243(1)(w)). The Michigan Court of Appeals held that “the plain language . . . applies to only to information relating to a civil action in which both the requesting party and the public body are parties.” Taylor v. Lansing Bd. of Water & Light, 272 Mich. App. 200, 205–06, 725 N.W. 2d 84, 87 (2006). It does not apply to a person acting on behalf of a “party.” Id. For the definition of “parties,” the court relied on the Black Law’s Dictionary: “those by or against whom a legal suit is brought.” Id. at 206. A proceeding in the State Tax Tribunal is an “administrative proceeding,” and “not the equivalent of a civil action.” Fed.-Mogul Corp. v. Dep’t of Treasury, 161 Mich. App. 346, 368 (1987). Similarly, the exception does not apply to arbitration. Kent Cty. Deputy Sherriff’s Ass’n v. Kent Cty. Sheriff, 463 Mich. 353, 364 n. 18 (2002).
17. Information or records that would disclose the Social Security number of any individual. Mich. Comp. Laws Ann. § 15.243(1)(w) (formerly Mich. Comp. Laws Ann. § 15.243(1)(x)).
18. An application for the position of president of an institution of higher education established under section 4, 5 or 6 of article VIII of the Michigan Constitution, the materials submitted with the application, letters of recommendation or references concerning the applicant, and records or information relating to the process of searching for and selecting an individual for such a position, "if the records or information could be used to identify a candidate for the position." Mich. Comp. Laws Ann. § 15.243(1)(x) (formerly Mich. Comp. Laws Ann. § 15.243(1)(y)). However, after one or more individuals have been identified as finalists, this exemption does not apply to a public record described in this exemption, "except a letter of recommendation or reference, to the extent that the public record relates to an individual identified as a finalist for the position." Id. The effect of this 1996 provision is to override, in part, the Michigan Supreme Court's decision in Booth Newspapers, Inc. v. University of Michigan Board of Regents, 444 Mich. 211, 507 N.W.2d 422 (1993).
19. Records or information of measures designed to protect the security or safety of persons or property, or the confidentiality, integrity, or availability of information systems, whether public or private, including, but not limited to, building, public works, and public water supply designs to the extent that those designs relate to the ongoing security measures of a public body, capabilities and plans for responding to a violation of the Michigan anti-terrorism act, chapter LXXXIII-A of the Michigan penal code, 1931 PA 328, MCL 750.543a to 750.543z, emergency response plans, risk planning documents, threat assessments, domestic preparedness strategies, and cybersecurity plans, assessments, or vulnerabilities, unless disclosure would not impair a public body’s ability to protect the security or safety of persons or property or unless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance. The portions concerning cybersecurity were added by an amendment signed into law in March 2018.
20. Information that would identify or provide a means of identifying a person that may, as a result of disclosure of the information, become a victim of a cybersecurity incident or that would disclose a person’s cybersecurity plans or cybersecurity-related practices, procedures, methods, results, organizational information system infrastructure, hardware, or software. This entire exemption was signed into law in March 2018.
21. Research data on road and attendant infrastructure collected, measured, recorded, processed, or disseminated by a public agency or private entity, or information about software or hardware created or used by the private entity for such purposes. This entire exemption was signed into law in March 2018.

Additionally, "[a] public body shall be exempt from disclosure of information that, if released, would prevent the public body from complying with section 444 of subpart 4 of part C of the General Education Provisions Act, Title IV of Public Law 90-247, 20 U.S.C. 1232(g), commonly referred to as the Family Educational Rights and Privacy Act of 1974." Mich. Comp. Laws Ann. § 15.243(2) (formerly Mich. Comp. Laws Ann. § 15.243(1)(e)). Under that act, "an educational institution may not disclose the education records or any personally identifiable information contained in the record other than directory information to any third parties without the written consent of the student's parents, . . . or the written consent of the student when the student attends an institution of post-secondary education . . . ." Connoisseur Commcn’s of Flint v. Univ. of Mich., 230 Mich. App. 732, 735, 584 N.W.2d 647 (1998).

Mich. Comp. Laws Ann. § 15.243(3) provides that “[t]his act does not authorize the withholding of information otherwise required by law to be made available to the public or to a party in a contested case under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.” Mich. Comp. Laws Ann. § 15.243(4) makes it clear that an employee or public body subject to the FOIA cannot withhold a public record that would not otherwise be exempt by transferring the public record "to the executive office of the governor or lieutenant governor, or an employee of either executive office, after a request for the public record has been received" by the employee or public body.

While the legislature attempted to draft the Act as broadly as possible, the Act makes it clear that provisions of other laws do not lose their force because of the existence of the Act, nor does the Act create any priority. Minn. Stat. § 13.03, subd. 1. Moreover, the Act specifically refers to other rules in order to ensure that no confusion arises. For example, Minn. Stat. § 13.393 makes it clear that the Act does not alter the rights and obligations of attorneys acting for the state relating to information the attorney must disclose or may protect.
That said, a generalized exemption does exist in Minn. Stat. § 13.06, whereby a government entity may apply to the Minnesota Department of Administration for a "temporary classification" of data as private or non-public until a proposed statute can be acted on by the legislature. Minn. Stat. § 13.06, subd. 1(a). The Commissioner is given 45 days in which to decide on the application, during which time, the data are deemed private. Minn. Stat. § 13.06, subd. 1(b). If the application is granted, the temporary classification is effective immediately and the application is submitted to the attorney general who has 25 days to approve or disapprove the classification. Minn. Stat. § 13.06, subd. 5(b). If the attorney general disapproves, the information becomes public five working days after the date of disapproval. Minn. Stat. § 13.06, subd. 5(b). By January 15 of each year, the commissioner shall submit all temporary classifications in effect as of January 1 in bill form to the legislature. Minn. Stat. § 13.06, subd. 7. The information remains private until acted upon by the legislature, or until August 1 of the year following its submission. Minn. Stat. § 13.06, subd. 7.

a. Documents subpoenaed by the Attorney General under his authority to investigate white collar and official crime. § 7-5-59(6).

b. Records developed among judges and their aides. § 9-1-38.

c. Records developed among juries concerning judicial decisions. § 13-5-97.

d. Social security numbers, telephone numbers and date of birth and age information in voter registration files are exempt.  § 23-15-165(6)(a).

e. Personnel records and applications for employment except those which may be released to the applicant or with the prior written consent of the applicant. § 25-1-100(1). This does not exempt the names of persons employed and the compensation paid to such person. Att'y Gen. June 5, 1984 to Bennie G. Thompson. Gross salary and accrued leave time are not exempt.  Miss. Dept. of Wildlife, Fisheries & Parks v. Miss. Wildlife Enforcement Officers Ass’n, 740 So. 2d 925 (Miss. 1999).  A form listing teachers by name, race, sex, areas of endorsement, grade ranges, and salary is not exempt, but teachers' home telephone numbers would be. Att'y Gen. July 2, 1984 to Smith. A mailing list for employees is not exempt. Att'y Gen. June 10, 1987 to Singletary.  A “Form for Absence of Staff” not kept in a personnel file is not exempt.  Att’y Gen. May 20, 1992 to Oakes.  Documents relating to contract employee authorizations under § 25-9-120 are not exempt. § 25-1-100(4). Statements made by a police officer during an internal affairs investigation are not subject to disclosure.  Miss. Ethics Commission Op. R-08-001 (March 6, 2009).  Contracts between a university and a university football coach and basketball coach are public records that are not exempt as personnel records.  Miss. Ethics Commission Op. R-08-009 (April 3, 2009).

f. Employment test questions and answers. § 25-1-100(2).

g. Letters of recommendation. § 25-1-100(3).

h. Records which represent or constitute the work product of any attorney, district attorney or county prosecuting attorney representing a public body and which are related to litigation made by or against such public body, or in anticipation of prospective litigation. § 25-1-102. This includes itemized statements relating to attorney’s fees, but not the total dollar amount of attorney’s fees and expenses paid. Op. Att'y Gen. Jan. 14, 1985 to Orma R. Smith Jr., citing Journal Publishing Co. v. Board of Trustees,No. 125,759 (Hinds County Chancery Court, Nov. 2, 1984).  An expert’s appraisal prepared in anticipation of an eminent domain suit is exempt.  Att’y Gen. Op. 2005-0294 July 1, 2005, to Graham.

i. Records of executive sessions of public bodies are exempt by implication of the Open Meetings Act, Miss. Code Ann. § 25-41-7, according to the Attorney General. Op. Att'y Gen. April 2, 1990 to W. Rayford Jones.

j. Trade secrets and confidential commercial and financial information developed by a college or public hospital under contract with a business are exempt. § 25-61-9(3).  The definition of “trade secret” in this statute is broader than the definition found in §75-26-3.  Caldwell & Gregory, Inc. v. University of Southern Miss., 716 So. 2d 1120 (Miss. Ct. App. 1998).

k. Waste minimization plans developed under the Mississippi Comprehensive Multimedia Waste Minimization Act of 1990 are exempt. § 25-61-9(5). See also§ 49-31-1 et seq.

l. Data processing software that is subject to license restrictions, or is a trade secret, or is "sensitive" is exempt. § 25-61-9(6).

m. Home address and telephone number of any law enforcement officer, criminal private investigator, judge, district attorney or their spouse or child.  §25-61-12(1).

n. Investigative reports in the possession of a law enforcement agency are exempt.  § 25-61-12(2)(a). Investigative reports go beyond the scope of incident reports and include records whose disclosure would harm an investigation, or reveal the identity of informants or witnesses, or disclose investigative techniques, or deprive a person of the right to a fair trial, or endanger a public official or impede a prosecutor, or pertain to quality control or PEER review.  §25-61-3(f)(i); Mississippi Publishers Corp. v. Coleman,515 So. 2d 1163, 1167 (Miss. 1987). The interests protected by this statute may be outweighed by a First Amendment interest in airing a videotape used as evidence at a hearing. TV-i Inc. v. Jackson, 19 Med. L. Rptr. 1312 (Aug. 28, 1991).

o. Records which disclose information about a person's individual tax payment or status. § 27-3-77. A public employee's salary deductions for taxes are exempt. Att'y Gen. Aug. 8, 1985 to Williamson; Att’y Gen. Op. 2001-0753, Jan. 22, 2002 to Howell.

p. Appraisal information which concerns the sale or purchase of real property for public purposes prior to public announcement of the purchase or sale, where the release of such records would have a detrimental effect on such sale or purchase. § 31-1-27.

q. Test questions and answers to be used in future academic examinations, and letters of recommendation respecting admission to any educational agency or institution. § 37-11-51. This does not exempt records of student performance at the Mississippi Law Enforcement Officers' Training Academy. Op. Att'y Gen. July 28, 1983 to Kent McDaniel.

r. Records which contain information about the location of any specific archaeological site, where in the opinion of the agency disclosure would create a substantial risk of damage or destruction to the historical value of the site or to private property rights. § 39-7-41.

s. Records maintained by public hospitals, except the official minutes of the board of trustees and certain financial reports. § 41-9-68.  Att’y Gen. No. 2009-160, May 1, 2009 to Sanders.

t. Individually identifiable information given to the State Birth Defects Registry is exempt.  § 41-21-205(8)(b).

u. Records in the possession of the Mississippi Department of Health, Bureau of Vital Statistics, which would be of no legitimate and tangible interest to the person making a request for access to such records. § 41-57-2.  Lists of deceased persons sent to circuit clerks are not exempt if a person has a legitimate tangible interest in such records.  Att’y Gen. Op. 2003-0555, Oct. 24, 2003 to Allen.

v. Reports of the state medical examiner are "maintained as confidential so as to protect the doctor/patient privilege." § 41-61-63(2) (a).

w. The State's Concealed Weapon's Law exempts applications for licenses to carry stun guns, concealed pistols or revolvers and records relating to license holders . § 45-9-101(8).

x. Records of the Mississippi Justice Information Center, which collects information on crime and criminal offenders, including finger prints and criminal records, and separately-maintained intelligence and investigative files, are exempt.  § 45-27-19(1), (2).  Unauthorized release of criminal history record information is a crime.  § 45-27-13(1).

y. Trade secrets in records of state authorized but privately run prisons are exempt. § 47-5-575.

z. Voluntary internal environmental self-evaluation reports of industries regulated by the Department of Environmental Quality are exempt from the Public Records Act. § 49-2-71(6).

aa. Noncontroverted case medical reports, rehabilitation counselor reports and psychological reports of the Workers Compensation Commission "insofar as they refer to accidents, injuries and settlements." § 71-3-66. The Attorney General's office has said this exempts the names of all persons filing claims of work-related injuries. Att'y Gen. June 3, 1987 to Bennett. These records are open, however, to "the parties satisfying the commission of their interest in such records and the right to inspect them." § 71-3-66.

bb. Test questions to be used in future license examinations, license applications, and recommendations for action on applications are exempt except when the application is requested by the applicant or is released with the applicant's prior written consent. § 73-52-1(2).

cc. Information in connection with an audit, inspection or investigation under the Mississippi Securities Act is exempt. § 75-71-111(c).

dd. Commercial and financial information of a proprietary nature required to be submitted to a public body is exempt, unless it is submitted to a regulatory agency by a public utility and is related to the establishment of, or changes in, rates regulated by the agency. § 79-23-1(1). In fact, if the agency seeks to disclose voluntarily trade secret or confidential commercial or financial information, whether it comes from a utility or not, the agency must give notice to the submitter. The submitter may then file a petition in chancery court seeking a protective order. § 25-61-9(1) (Supp. 1996). South Central Bell Telephone Co. v. Mississippi Public Service Corp.,No. 123,666 (Hinds Co. Chancery Ct., June 12, 1984) (utility costs, market analysis, market projections protected); Att'y Gen. Oct. 16, 1989 to McKinley (Public Service Commission records). This would apply to Medicaid cost reports for nursing homes. Att'y Gen. March 4, 1987 to Simmons. Cf Mississippi Health Care Ass'n v. State of Mississippi,No. 134, 127 (Hinds Co. Chancery Ct., April 12, 1988). It would also apply to a computer database of investors and investment information compiled by the Research and Development Center. Att'y Gen. Nov. 21, 1986 to Thrash. A list of public water district customers is not confidential, but their customers' bank account numbers are confidential. Att'y Gen. July 18, 1994 to Harper.

ee. Records provided by an insurer in the course of financial examination by the Commissioner of Insurance are exempt. § 83-5-209.

ff. Records maintained by domestic violence shelters, except official minutes and certain financial reports. § 93-21-109.

a. Litigation.
Mo.Rev.Stat. § 610.021(l).
Scope. The so-called “litigation” exception encompasses more than litigation.
• records relating to legal actions, causes of action, or litigation involving a public governmental body; and
• confidential or privileged communications between a public governmental body or its representatives and its attorneys; and
• legal work product. See Librach v. Cooper, 778 S.W.2d 351, 353-354 (Mo.Ct.App. 1989) (held settlement agreement between board of education and superintendent of school district was not a confidential or privileged communication between a public governmental body and its attorneys); but see Calvert v. Mehlville R-IX Sch. Dist., 44 S.W.3d 455 (Mo.Ct.App. 2001) (holding that school board must acknowledge existence of settlement agreement in response to a request, but pursuant to confidentiality clause in the agreement could refuse to disclose its contents); State ex rel. Moore v. Brewster, 116 S.W.3d 630 (Mo.Ct.App. 2003) (holding that letter from school board attorney concerning investigation of board members was legal work product and the trial court erred in finding that the board president violated the Sunshine Law by refusing to release a copy of the letter to the board members under investigation).
Mere reference to litigation is not sufficient to trigger this exception. See Tipton v. Barton, 747 S.W.2d 325, 330 (Mo.Ct.App. 1988) (litigation exception applies to analytical work product, but not to general descriptions of legal services rendered appearing on city attorneys’ itemized monthly billing statements). The exception only applies to actions brought by the public pursuant to the Sunshine Law, the privilege does not extend to actions independent of the Sunshine Law. See City of Grandview v. Missouri Gas Energy, 2012 WL 12897093 (W.D. Mo. 2012).
Exception Removed Upon Final Disposition of Litigation. Any minutes, vote or settlement agreement relating to legal actions, causes of action, or litigation involving a public governmental body or any agent or entity representing the public body’s interests or acting as its insured, shall be made public upon final disposition of the matter voted upon, or upon the signing by the parties of the settlement agreement, unless prior to final disposition, the settlement agreement is ordered closed by a court after a written finding that the adverse impact to a plaintiff or plaintiffs to the action clearly outweighs the public policy considerations enumerated in § 610.011. However, the amount of any monies paid by, or on behalf of, the public governmental body shall be disclosed. Mo.Rev.Stat. § 610.021(1), modifying the holding in Tuft v. City of St. Louis, 936 S.W.2d 113, 119 (Mo.Ct.App. 1996). Also, a public or quasi-public official does not have the same right of privacy as an ordinary citizen, and so cannot rely on such a right to oppose a request to unseal court records relating to the official’s compensation. Pulitzer Publishing Co. v. Transit Casualty Co., 43 S.W.3d 293 (Mo. banc 2001) (in the context of a special deputy receiver appointed to oversee the liquidation of an insurance company).
Eminent Domain/Condemnation. When a public governmental body undertakes to exercise the power of eminent domain, the vote must be made public immediately following the action on the motion to authorize institution of a condemnation action. Mo.Rev.Stat. § 610.021(1).
b. Real Estate.
Mo.Rev.Stat. § 610.021(2).
Scope. Government records relating to the leasing, purchase or sale of real estate by a public governmental body may be closed. Id. Such records, including minutes of closed meetings, may be closed even if no actual lease, purchase or sale of real estate results. See State ex rel. Birk v. City of Jackson, 907 S.W.2d 181, 187 (Mo.Ct.App. 1995).
Required Finding. Before a “real estate” record may be closed, the public governmental body must first find that public knowledge of the transaction might adversely affect the legal consideration for that real estate. Mo.Rev.Stat. § 610.021(2); State ex rel. Birk v. City of Jackson, supra.
Exception Removed Upon Completion of Transaction. Minutes of closed meetings, votes or other public records approving the contract relating to the leasing, purchase or sale of real estate by a public governmental body must be made public upon execution of the lease, purchase or sale of the real estate. See State ex rel. Birk v. City of Jackson, 907 S.W.2d 181, 187 (Mo.Ct.App. 1995) (city properly withheld minutes of closed council meetings where agreements to operate city-owned landfill were discussed with independent contractors until the agreements were finally approved); City of St. Louis v. City of Bridgeton, 806 S.W.2d 717, 719 (Mo.Ct.App. 1991) (held that the meaning of the term “transaction” in the real estate exception is broad enough to encompass multi-lot bulk real estate acquisition or buyout program by public governmental body, and contracts on individual lots need not be available for public inspection until buyout program is complete and knowledge of purchase prices on individual lots would not adversely affect subsequent contracts); Tipton v. Barton, 747 S.W.2d 325, 331 (Mo.Ct.App. 1988) (mere reference in a public record to a real estate transaction is not sufficient to trigger application of the real estate exception; the exception applies only where the actual terms of any real estate transaction or a negotiating position of the public governmental body is reflected in the record); Spradlin v. City of Fulton, 982 S.W.2d 255, 259 (Mo. banc 1998) (to trigger the real estate exception 1) information must relate directly to the leasing, purchase, or sale of real estate by a public governmental body, and 2) public knowledge of the transaction might adversely affect the legal considerations thereof).
c. Employment.
Mo.Rev.Stat. § 610.021(3).
Scope. Governmental records relating to hiring, firing, disciplining or promoting an employee of a governmental body may be closed, but only if “personal information” about the employee is discussed or recorded therein.
Personal Information About the Employee. The above records may be closed only if “personal information” about the employee is discussed or recorded therein. “Personal information” is defined to include information relating to the performance or merit of individual employees. Id.
See also, Mo.Rev.Stat. § 610.021(13) (relating to personnel records), discussed below.
When Information May be Made Public. Any vote on a final decision made by a public governmental body, to hire, fire, promote or discipline one of its employees shall be made available to the public within 72 hours of the close of the meeting where such action occurs, provided, however, that the affected employee is entitled to prompt notice of the decision before such decision is made available to the public. See Draper v. City of Festus, No. 4:11-CV-1652-TCM, 2013 WL 5651380, at *31-32 (E.D. Mo. 2013) (Defendants’ Motion for Summary Judgment denied because plaintiff employee was notified of final employment decision after the public was notified).
Particular cases related to public employee matters: See Pulitzer Publishing Co. v. Missouri State Employees’ Retirement System, 927 S.W.2d 477 (Mo.Ct.App. 1996) (pension payments made to former state employees must be disclosed); Paskon v. Salem Memorial Hospital District, 806 S.W.2d 417, 423-424 (Mo.Ct.App. 1991) (board of directors of hospital district could conduct closed meeting to discuss suspension of physician’s hospital staff privileges); Librach v. Cooper, 778 S.W.2d 351 (Mo.Ct.App. 1989) (held records reflecting severance pay paid to former superintendent of public school district are public records subject to disclosure under the Sunshine Law); Tipton v. Barton, 747 S.W.2d 325, 331 (Mo.Ct.App. 1988) (mere identification of personnel matters within a description of legal services rendered on a city attorney’s itemized monthly billing statement is not sufficient to place the statement within the employment exception); Hudson v. School District of Kansas City, 578 S.W.2d 301, 309 (Mo.Ct.App. 1979) (meeting in which school board decided to furlough several hundred probationary teachers and reassign a large number of administrative employees did not fall within the employment exception because the motivation behind the furloughs was financial. The Board was attempting to solve a huge budget deficit and the individual employees affected were not discussed); Chasnoff v. Mokwa, 466 S.W.3d 571, 585 (Mo. App. E.D. 2015) (Court held that 610.021(3) was an optional exception to Sunshine disclosures; so long as Board of Police Commissioners sought to release the information, police officers could not use 610.021(3) to intervene and prevent release of public records regarding misconduct in performance of official duties).
d. State Militia or National Guard.
Mo.Rev.Stat. § 610.021(4). Records relating to the state militia or National Guard may be closed.
e. Non-Judicial Mental Health or Physical Health Proceedings.
Mo.Rev.Stat. § 610.021(5). Records relating to non-judicial mental or physical health proceedings involving identifiable persons, including medical, psychiatric, psychological, or alcoholism or drug dependency diagnosis or treatment may be closed.
f. Scholastic Records.
Mo.Rev.Stat. § 610.021(6). Government records relating to scholastic probation, expulsion or graduation of identifiable individuals, including records of individual test or examination scores, may be closed. Mo.Rev.Stat. § 610.021(6). However, personally identifiable student records maintained by public educational institutions are open for inspection by the parents, guardian or other custodian of a student under the age of 18 years and by the parents, guardian or other custodian and the student if the student is over the age of 18 years.
g. Testing or Examination Materials.
Mo.Rev.Stat. § 610.021(7). Testing and examination materials, before the test or examination is given or, if it is to be given again, before so given again, may be closed.
h. Welfare.
Mo.Rev.Stat. § 610.021(8). Government records relating to welfare cases of identifiable individuals may be closed.
i. Public Employee Negotiations.
Mo.Rev.Stat. § 610.021(9). Government records relating to preparation, including any discussions or work product, on behalf of a public governmental body or its representatives for negotiations with employee groups may be closed. See State ex rel. Board of Public Utilities v. Crow, 592 S.W.2d 285 (Mo.Ct.App. 1979) (collective bargaining sessions of city board of public utilities not required to be open to the public).
j. Computer Programs.
Mo.Rev.Stat. § 610.021(10). Software codes for electronic data processing and documentation thereof may be closed.
k. Specifications for Competitive Bidding.
Mo.Rev.Stat. § 610.021(11). Specifications for competitive bidding, until either the specifications are officially approved by the public governmental body or the specifications are published for bid may be closed. See Hanten v. School Dist. of Riverview Gardens, 183 F.3d 799, 810-811 (conclusion that school board members meeting privately did not intend to violate the Sunshine Law was supported by § 611.021(11) of the Sunshine Law, which permitted them to meet in closed session to discuss bid specifications).
l. Sealed Bids.
Mo.Rev.Stat. § 610.021(12). Sealed bids and related documents, until the earlier of either when the bids are opened, or all bids are accepted or all bids are rejected, may be closed.
m. Personnel Records.
Mo.Rev.Stat. § 610.021(13). Individually identifiable personnel records, performance ratings or records pertaining to employees or applicants for employment may be closed, including the names of private sources contributing to the salary of a chancellor or president at all public colleges and universities in Missouri, together with the amount of money contributed. See Pulitzer Publishing Co. v. Missouri State Employees’ Retirement System, 927 S.W.2d 477, 481-83 (Mo.Ct.App. 1996) (pension payments made to former state employees are encompassed in “salaries” and must be disclosed); Librach v. Cooper, 778 S.W.2d 351 (Mo.Ct.App. 1989) (records reflecting severance pay paid to former superintendent of public school district are public records subject to disclosure under the Sunshine Law); There is likely to be some overlap between this section and the employment exception in Mo.Rev.Stat. § 610.021(3).
n. Records Protected From Disclosure by Law.
Mo.Rev.Stat. § 610.021(14). See more detailed discussion in section II.B., below.
o. Scientific or Technological Innovations.
Mo.Rev.Stat. § 610.021(15). Records relating to scientific and technological innovations in which the owner has a proprietary interest may be closed.
p. Abuse Hotlines.
Mo.Rev.Stat. § 610.021(16). Records related to municipal hotlines established for the reporting of abuse and wrongdoing may be closed.
q. Auditor Records.
Mo.Rev.Stat. § 610.021(17). Confidential or privileged communications between a public governmental body and its auditor, including all auditor work product, may be closed. Final audit reports, however, are considered open records.
r. Anti-terrorism Records.
Mo.Rev.Stat. § 610.021(18); Mo.Rev.Stat. § 610.021(19). Operational guidelines, policies and specific response plans developed, adopted or maintained by any public agency responsible for law enforcement, public safety, first response, or public health for use in responding to any critical incident which is or appears to be terrorist in nature and has the potential to endanger individual public safety or health. This exception does not close information relating to contracts and expenditures made in implementing these guidelines and policies. An agency seeking to use this exception must state in writing that disclosure would impair its ability to protect health or safety of persons and must further state in writing that the public interest in nondisclosure outweighs the public interest in disclosure. Mo.Rev.Stat. § 610.021(18).
Records relating to existing or proposed security systems and structural plans or real property owned or released by a public governmental body may be a closed record, however, records related to the procurement of security systems purchased with public funds shall be open.. Mo.Rev.Stat. § 610.021(19).
s. Security System Access Codes.
Mo.Rev.Stat. § 610.021(20). The portions of a record that identifies security systems or access codes or authorization codes for security systems of real property may be closed.
t. Computer System Information.
Mo.Rev.Stat. § 610.021(21). Records identifying the configuration of components or the operation of a computer, computer system, computer or telecommunications network of a public governmental body that would allow unauthorized access to or disruption of same may be closed; however, procurement information, including moneys paid, shall be open, and this provision cannot be used to limit or deny access to public records in a file or database.
u. Credit Card Numbers.
Mo.Rev.Stat. § 610.021(22). Credit card and PIN numbers, access or authorization codes that are used to protect the security of electronic transactions between a public governmental body and a person or entity doing business with that body. This section does not include credit card usage information for a card held by a public governmental body.
v. Intellectual Property Licensing Information.
Mo.Rev.Stat. § 610.021(23). Records submitted by an individual, corporation, or other business entity to a public institution of higher education in connection with a proposal to license intellectual property or perform sponsored research and which contains sales projections or other business plan information the disclosure of which may endanger the competitiveness of a business may be closed.
w. Social Security Numbers.
Mo.Rev.Stat § 610.035. No state entity shall disclose any Social Security number unless 1) such disclosure is permitted by federal law, federal regulation or state law; 2) unless such disclosure is authorized by the holder of the Social Security number; and 3) unless such disclosure is for use in connection with any civil, criminal, administrative or arbitration proceeding in any federal, state, or local court or agency or arbitration proceeding in any federal, state, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation and the execution of enforcement of judgments and orders, or pursuant to an order of federal, state, or local court.

The Montana Constitution sets the standard for exemptions. It provides that no person may be deprived of the opportunity to examine documents except when "the demand of individual privacy clearly exceeds the merits of public disclosure." Mont. Const., Art. II, § 9.

The Montana Supreme Court has frequently addressed the privacy exemption to the right to know. In 2003, the Montana Supreme Court, in Great Falls Tribune v. Mont. Pub. Serv. Comm’n, 319 Mont. 38, 82 P.3d 876 (2003), held that the individual privacy exception to the public's right to know and the right of individual privacy in the Montana Constitution are limited to natural human beings only, do not extend to non-human entities such as corporations, and cannot serve as a basis for protecting trade secrets and other confidential proprietary information of non-human entities, overruling Mountain States, Etc. v. Dept. of Pub. Serv. Reg., 194 Mont. 277, 634 P.2d 181 (1981), and its progeny. Great Falls Tribune, 319 Mont. 38, 82 P.3d 876 (2003). The Court also held that nothing in Article II, § 9, requires disclosure of trade secrets and other confidential proprietary information where the data is protected from disclosure elsewhere in the federal or state constitutions or by statute. Id.

In Svaldi v. Anaconda-Deer Lodge County, 325 Mont. 365, 106 P.3d 548 (2005), a retired public school teacher sued the county, alleging breach of her right to privacy and seeking damages for severe emotional distress, based upon the county attorney's disclosure of his discussions with the teacher's attorney in connection with the deferred prosecution agreement. The Montana Supreme Court held that the teacher's privacy rights were not violated by the county attorney's disclosure of discussions and the public's right to know outweighed the teacher's right to privacy.

In Jefferson County v. Montana Standard, 318 Mont. 173, 79 P.3d 805 (2003), the Montana Supreme Court held that any expectation that a county commissioner had as to privacy of information regarding her arrest for driving under the influence was unreasonable, and thus, the right to privacy provision of the Montana Constitution did not preclude disclosure of such information to the newspaper pursuant to the "Right to Know" provision of the Montana Constitution.

In Bryan v. Yellowstone Co. Elem. Sch. Dist. No. 2, 312 Mont. 257, 60 P.3d 381 (2002), the Montana Supreme Court held that a committee created by a school district to research a proposition and submit a recommendation to the school board was a public or governmental body subject to the “Right to Know” provision of the Montana Constitution, that a spreadsheet created by the committee was a public document subject to inspection, and that the school district violated a parent's right to examine public documents when it failed to divulge the spreadsheet upon request. The Court further held that the school board did not provide the parent with reasonable opportunity to participate at the school board meeting due to the board's partial disclosure of information. As a remedy, the Court declared the school board's closure decision null and void.

In Montana Human Rights Division v. City of Billings, 199 Mont. 434, 649 P.2d 1283 (1982), the Supreme Court ruled that certain personnel records could be closed, including matters related to family problems, health problems, employee evaluations, military records, IQ test results, prison records, drug and alcohol problems, and information "most individuals would not willingly disclose publicly." 649 P.2d at 1287.

Read together, these cases have imposed the following judicial guidelines by which records can be withheld from public inspection under the constitutional balancing test:

1. Did the person involved have an actual or "subjective" expectation of privacy; and, if so

2. Is that expectation "reasonable"?

3. If the answers to paragraphs 1 and 2 are affirmative, then the documents containing private information may be withheld if the demands of individual privacy clearly outweigh the merits of public disclosure. If the answer to either 1 or 2 is negative, then the documents are available for public inspection.

In Great Falls Tribune Co. Inc. v. Cascade County, 238 Mont. 103, 775 P.2d 1267 (1989), the Supreme Court held that the privacy of police officers subject to disciplinary proceedings did not outweigh the public's right to know their names and the subject of the disciplinary charges.

Bozeman Daily Chronicle v. City of Bozeman Police Department, 260 Mont. 218, 859 P.2d 435 (1993), held that the newspaper was entitled to obtain the name of a police officer and investigative documents regarding alleged unconsented sexual intercourse with a cadet at the State Law Enforcement Academy, even though the documents were confidential criminal justice information, where the alleged misconduct went directly to the police officer's breach of a position of public trust.

A mayor did not have a "reasonable expectation of privacy" in preventing the disclosure of a report regarding an independent investigation of his alleged sexual harassment of a city employee. Citizens to Recall v. Whitlock, 255 Mont. 517, 844 P.2d 74 (1992).

None of these opinions involved construction of the open records act itself. However, the open records act has been the subject of several attorney general opinions. In 35 A.G. Op. 27 (1973) the attorney general ruled that the list of registered nurses and licensed practical nurses must be issued to members of the public who wish to purchase it. In 36 A.G. Op. 28 (1975) the attorney general ruled that salaries of teachers and administrators of a public school district are subject to inspection by the public.

The following types of records, unless previously disclosed in "an open court, open administrative proceeding, or open meeting, or disclosed by a public entity pursuant to its duties," may be withheld from the public (Neb. Rev. Stat. §84-712.05(1) to (20)):

1. "Personal information in records regarding a student, prospective student, or former student of any educational institution or exempt school that has effectuated an election not to meet state approval or accreditation requirements pursuant to section 79-1601 when such records are maintained by and in the possession of a public entity, other than routine directory information specified and made public consistent with 20 U.S.C. 1232g, as such section existed on February 1, 2013, and regulations adopted thereunder."
2. "Medical records, other than records of births and deaths and except as provided in subdivision (5) of this Section, in any form concerning any person, and also records of elections filed under section 44-2821 and patient safety work product under the Patient Safety Improvement Act;"
3. "Trade secrets, academic and scientific research work which is in progress and unpublished, and other proprietary or commercial information which if released would give advantage to business competitors and serve no public purpose;"
4. "Records which represent the work product of an attorney and the public body involved which are related to preparation for litigation, labor negotiations, or claims made by or against the public body, or which are confidential communications as defined in section 27-503 [attorney/client privilege];"
5. "Records developed or received by law enforcement agencies and other public bodies charged with duties of investigation or examination of persons, institutions, or businesses, when the records constitute a part of the examination, investigation, intelligence information, citizen complaints or inquiries, informant identification, or strategic or tactical information used in law enforcement training, except that this subdivision shall not apply to records so developed or received relating to the presence of and amount or concentration of alcohol or drugs in any body fluid of any person;"
6. "Appraisals or appraisal information and negotiation records, concerning the purchase or sale, by a public body, of any interest in real or personal property, prior to completion of the purchase or sale;"
7. "Personal information in records regarding personnel of public bodies other than salaries and routine directory information;"
8. "Information solely pertaining to protection of the security of public property and persons on or within public property, such as specific, unique vulnerability assessments or specific unique response plans, either of which is intended to prevent or mitigate criminal acts the public disclosure of which would create a substantial likelihood of endangering public safety or property; computer or communications network schemes, passwords, and user identification names; guard schedules; lock combinations; or public utility infrastructure specifications or design drawings the public disclosure of which would create a substantial likelihood of endangering public safety or property, unless otherwise provided by state or federal law;"
9. "The security standards, procedures, policies, plans, specifications, diagrams, access lists, and other security-related records of the Lottery Division of the Department of Revenue and those persons or entities with which the division has entered into contractual relationships. Nothing in this subdivision shall allow the division to withhold from the public any information relating to amounts paid persons or entities with which the division has entered into contractual relationships, amounts of prizes paid, the name of the prize winner, and the city, village, or county where the prize winner resides;"
10. "With respect to public utilities and except as provided in sections 43-512.06 and 70-101, personally identified private citizen account payment and customer use information, credit information on others supplied in confidence, and customer lists;"
11. "Records or portions of records kept by a publicly funded library which, when examined with or without other records, reveal the identity of any library patron using the library's materials or services;"
12. "Correspondence, memoranda, and records of telephone calls related to the performance of duties by a member of the Legislature. The lawful custodian of such correspondence, memoranda, and records of telephone calls, whether created prior to, on, or after April 2, 1993, upon approval of the Executive Board of the Legislative Council, shall release such correspondence, memoranda, and records of telephone calls which are not designated as sensitive or confidential in nature pursuant to subsection (3) of section 81-1120.27 to the person the Executive Board of the Legislative Council has contracted with pursuant to section 50-401.04. A member's correspondence, memoranda, and records of telephone calls related to the performance of his or her legislative duties shall only be released to any other person with the explicit approval of the member;"
13. "Records or portions of records kept by public bodies which would reveal the location, character, or ownership of any known archaeological, historical, or paleontological site in Nebraska when necessary to protect such site from a reasonably held fear of theft, vandalism, or trespass. This section shall not apply to the release of information for the purpose of scholarly research, examination by other public bodies for the protection of the resource or by recognized tribes, the Unmarked Human Burial Sites and Skeletal Remains Protection Act, or the federal Native American Graves Protection and Repatriation Act;"
14. "Records or portions of records kept by public bodies which maintain collections of archaeological, historical, or paleontological significance which reveal the names and addresses of donors of such articles of archaeological, historical, or paleontological significance unless the donor approves disclosure, except as the records or portions thereof may be needed to carry out the purposes of the Unmarked Human Burial Sites and Skeletal Remains Protection Act or the federal Native American Graves Protection and Repatriation Act."
15. "Job application materials submitted by applicants, other than finalists or a priority candidate for a position described in Section 85-106.06 selected using the enhanced public scrutiny process in Section 85-106.06, who have applied for employment by any public body as defined in section 84-1409. For purposes of this subdivision, (a) job application materials means employment applications, resumes, reference letters, and school transcripts, and (b) finalist means any applicant who is not an applicant for a position described in Section 85-106 and (i) who reaches the final pool of applicants, numbering four or more, from which the successful applicant is to be selected, (ii) who is an original applicant when the final pool of applicants numbers less than four, or (iii) who is an original applicant and there are four or fewer original applicants;”
16. “Records obtained by the Public Employees Retirement Board pursuant to Section 84-1512;”
17. "Social security numbers, credit card, charge card, or debit card numbers and expiration dates; and financial account numbers supplied to state and local governments by citizens."
18. “Information exchanged between a jurisdictional utility and city pursuant to section 66-1867.”
19. “Draft records obtained by the Nebraska Retirement Systems Committee of the Legislature and the Governor from Nebraska Public Employees Retirement Systems pursuant to subsection (4) of section 84-1503;” and
20. “All prescription drug information submitted pursuant to Section 71-2454, all data contained in the prescription drug monitoring system, and any report obtained from data contained in the prescription drug monitoring system.”

NRS 239.0105 provides that records of a local governmental entity are confidential and not public records if they contain “(a) the name, address, telephone number or other identifying information of a natural person; and (b) [t]he natural person whose name, address, telephone number or other identifying information is contained in the records provided such information to the local governmental entity for the purpose of:

(1) Registering with or applying to the local governmental entity for the use of any recreational facility or portion thereof that the local governmental entity offers for use through the acceptance of reservations; or

(2) On his or her own behalf or on behalf of a minor child, registering or enrolling with or applying to the local governmental entity for participation in an instructional or recreational activity or event conducted, operated or sponsored by the local governmental entity.”

NRS 239.013 provides that any “records of a public library or other library which contain the identity of a user and the books, documents, films, recordings or other property of the library which were used are confidential and not public books or records within the meaning of NRS 239.010.”

The Statute contains specific categories of records that are exempt from its reach.

1. Records of grand and petit juries. RSA 91-A:5, I. Grand jury transcripts are not subject to disclosure. State v. Purrington, 122 N.H. 458 (1982).
2. Records of parole and pardon boards. RSA 91-A:5, II.
3. Personal school records of pupils. RSA 91-A:5, III. Names and addresses of students kept by the school may not be disclosed. Brent v. Paquette, 132 N.H. 415 (1989). The exemption refers simply to "personal school records of pupils." Several decisions allow access to school-related records. Mans v. Lebanon Sch. Bd., 112 N.H. 160 (1972) (teachers' contracts); Timberlane Regional Educ. Ass'n v. Crompton, 114 N.H. 315 (1974) (names and addresses of substitute teachers).
4. Minutes of non-public sessions of boards and agencies, if "in the opinion of 2/3 of the members present, divulgence of the information likely would affect adversely the reputation of any person other than a member of the body or agency itself. . . . [this] information may be withheld until, in the opinion of a majority of [the Board's] members," the confidentiality is no longer necessary. RSA 91-A:3, III.
5. Catch-all exemption. RSA 91-A:5, IV. “Records pertaining to internal personnel practices; confidential, commercial or financial information; test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination; and personnel, medical, welfare, library user, videotape sale or rental, and other files whose disclosures would constitute invasion of privacy. Without otherwise compromising the confidentiality of the files, nothing in this paragraph shall prohibit a body or agency from releasing information relative to health or safety from investigative files on a limited basis to persons whose health or safety may be effected.” Notwithstanding this exemption, the Supreme Court has ruled that this provision creates a three-step privacy balancing test rather than a per se exemption. See Provenza v. Town of Canaan, 175 N.H. 121, 130 (2022) (“This balancing test applies to all categories of records enumerated in RSA 91-A:5, IV.”); Union Leader Corp. v. Town of Salem, 173 N.H. 345 (2020) (overruling prior decisions and finding that privacy balancing test applies to records relating to “internal personnel practices”); Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 553 (1997) (finding privacy balancing test applies with respect to “confidential, commercial, or financial” information); Lamy v. N.H. Public Utilities Commission, 152 N.H. 106 (2005) (records of names and addresses of residential customers filing voltage complaints exempt from disclosure; names and addresses of business customers must be disclosed).  The balancing test requires that the court (1) evaluate whether there is a privacy interest hat would be invaded by the disclosure; (2) assess the public interest in disclosure; and (3) balance the public interest in disclosure against the government’s interest in nondisclosure and the individual’s interest in nondisclosure.  Provenza, 175 N.H. at 130.
6. Teacher certification records. In the Department of Education, including teacher certification status information. RSA 91-A:5,V.
7. Emergency function records directly intended to thwart deliberate acts that might result in widespread or severe property damage, injury or loss of life. RSA 91-A:5,VI.
8. Unique pupil identification information collected pursuant to RSA 193-E:5. RSA 91-A:5,VII.
9. Personal notes made by public officials or members of public bodies that do not have an official purpose, including notes and materials they make prior to, during or after public proceedings. RSA 91-A:5,VIII.
10. Preliminary drafts, notes, memoranda and other documents not in final form and not disclosed, circulated, or available to a quorum or a majority of public bodies. RSA 91-A:5, IX.

See previous section.

1. Medical records.

Although the statute suggests the exemption from disclosure for medical records may concern (only) persons confined to public institutions, the exception has been interpreted by the New Mexico Supreme Court to exempt any medical records.  Newsome v. Alarid, 1977-NMSC-076, ¶¶ 9-10, 568 P.2d 1236 (rev’d on other grounds and separate portion of opinion superseded by statute); see also N.M. Op. Att'y Gen. 60-155 (1960) ("[a]ny record which might fairly be called a record of examination of a patient or record of medical treatment of a patient of any institution is not a public record and need not be submitted to public scrutiny."); cf. 1968 N.M. Op. Att'y Gen. 68-110.  Medical records that may otherwise be exempt from disclosure but are introduced into evidence in any public hearing lose their exempt status and may be inspected by the public.  N.M. Op. Att'y Gen. 88-16 (1988).

1. Letters of reference concerning employment, licensing or permits.

Under former law, this exception was determined to allow a public body to withhold the names of former state employees terminated for disciplinary reasons.  State ex rel., Barber v. McCotter, 1987-NMSC-046, ¶¶ 7-12, 738 P.2d 119.  It is not clear that Barber v. McCotter would be decided in the same manner after the 1993 amendments.  See City of Las Cruces v. Pub. Emp. Labor Relations Bd., 1996-NMSC-024, ¶11, 917 P.2d 451 (upholding Barber v. McCotter, stating “[a] public employee's privacy interest in his personal position regarding union representation requires protecting representation petitions from public disclosure.”); see also City of Farmington v. Daily Times, 2009-NMCA-057, ¶¶ 19, 22, 146 N.M. 349, 210 P.3d 246 (rev’d on other grounds) (requiring disclosure of applications of the position of city manager).

1. Letters or memoranda that are matters of opinion in personnel files or students' cumulative files.

Prior to the 1993 amendments, which created a presumption of open records, a variety of court decisions suggested a broad reading of this authority to withhold documents, a reading that is no longer warranted.  See, e.g., Spadaro v. Univ. of N.M. Bd. Of Regents, 1988-NMSC-064, ¶ 11, 107 N.M. 402, 759 P.2d 189 (1988) (complaints filed in a student job office at the University are not public records); but see Cox v. N.M. Dep’t of Pub. Safety, 2010-NMCA-096, ¶ 10, 242 P.3d 501 (holding that citizens’ complaints are pubic records and stating “[t]he Court in Spadoro applied a previous version of the IPRA which, unlike the current version, did not contain a definition of public record”).

1. Law enforcement records that reveal confidential sources, methods, information or individuals accused, but not charged with a crime.

Law enforcement records include evidence in any form received or compiled in connection with any criminal investigation or prosecution by any law enforcement or prosecuting agency, including inactive matters or closed investigations to the extent they contain the information listed above.  See also Arrest Record Information Act, NMSA 1978 § 29-10-1 to -8 (1975, as amended through 1999).  After the 1993 amendments, the Inspection of Public Records Act had been largely reconciled and specifically provides a wide variety of documents are now public: posters, announcements or lists identifying fugitives or wanted persons, police blotters, court records of public judicial proceedings, records of traffic defenses and accident reports, etc.  This exception has been the focus of most of the public records battle over the last few years. The New Mexico Supreme Court held that this IPRA exception does not create a “blanket exception from inspection for law enforcement records relating to an ongoing criminal investigation.” Jones v. City of Albuquerque Police Dep't, 2020-NMSC-013, ¶ 1, 470 P.3d 252, 255.

1. As provided in the Confidential Materials Act.

This very narrow exemption covers only those documents donated to a museum, university, or other public institution wherein the grantor specifically reserves and requires confidentiality for a certain term of years. See NMSA 1978 § 14-3A-2 (1981).

1. Trade secrets, attorney-client privileged information and strategic business plans of hospitals.

IPRA lists a number of documents where policy considerations in confidentiality override public disclosure, including trade secrets, attorney-client communications, and confidential business plans of hospitals. Pacheco v. Hudson, 2018-NMSC-022, ¶ 38.

1. Tactical response plans and procedures propounded by the state government to address terrorist threats are exempt from disclosure.

There is no case law on this issue.

1. Protected personal identifier information.

There is no case law on this issue.

1. As otherwise provided by law, meaning by regulation or other specific statutory exception.

The Supreme Court of New Mexico has determined that regulations adopted by a public body may have the force of law.  City of Las Cruces v. Pub. Emps. Labor Relations Bd., 1996-NMSC-024, ¶¶ 5, 12, 917 P.2d 451. The case before the court concerned a labor board's promulgation of regulations to withhold representation petitions otherwise public.  The Supreme Court determined the regulations were necessary to accomplish performance functions and duties which included “protecting representation petitions from public disclosure." Id. ¶¶ 7-11. The Supreme Court resurrected the "balancing test" (see Newsome, 1977-NMSC-076, 568 P.2d 1236) and held that public employees' privacy interests related to union representation required the protection of the representation petitions from public disclosure. Id. ¶¶ 8-11.  Given the (assumed) possibility of retaliation against employees who support labor activities and the failure of the plaintiff to offer any evidence of the benefit to the public that would outweigh the privacy interest, the court's resurrection of the balancing test, and the balancing test itself, may be more narrowly construed in the future.

There are ten categories of exempted records under FOIL. New York Public Officers Law § 87(2) states that each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that:

(a) are specifically exempted from disclosure by state or federal statute;

(b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article;

(c) if disclosed would impair present or imminent contract awards or collective bargaining negotiations;

(d) are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise;

(e) are compiled for law enforcement purposes and which, if disclosed, would:

1. interfere with law enforcement investigations or judicial proceedings;
2. deprive a person of a right to a fair trial or impartial adjudication;

iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or

1. reveal criminal investigative techniques or procedures, except routine techniques and procedures;

(f) if disclosed would endanger the life or safety of any person;

(g) are inter-agency or intra-agency materials which are not:

1. statistical or factual tabulations or data;
2. instructions to staff that affect the public;

iii. final agency policy or determinations; or

1. external audits, including but not limited to audits performed by the comptroller and the federal government; or

(h) are examination questions or answers which are requested prior to the final administration of such questions;

(i) if disclosed, would jeopardize an agency’s capacity to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures; or

(j) are photographs, microphotographs, video-tape or other recorded images prepared under authority of section eleven hundred eleven-a of the vehicle and traffic law.

N.Y. Pub. Off. Law § 87(2)(a)-(j) (McKinney 1988 and McKinney Supp. 1993).

1. Exemption from disclosure by other state or federal statute.

An agency may deny access to records or portions thereof that are specifically exempted from disclosure by state or federal statute. N.Y. Pub. Off. Law § 87(2)(a).

In applying this exemption, the Court of Appeals has stated that “[a]lthough we have never held that a State statute must expressly state it is intended to establish a FOIL exemption, we have required a showing of clear legislative intent to establish and preserve that confidentiality which one resisting a FOIL disclosure claims as protection.” Capital Newspapers Division of Hearst Corp. v. Burns, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986). Accord M. Farbman & Sons v. New York City, 62 N.Y.2d 75, 464 N.E.2d 437, 476 N.Y.S.2d 69 (l984); In Re New York Comm., 72 A.D.3d 153, 892 N.Y.S.2d 377 (1st Dep’t 2010) (holding that because City could not demonstrate that requested documents were at some point in possession of the Worker’s Compensation Board it failed to establish that records were exempt under the Workers Compensation Law).

An agreement of confidentiality without a statutory predicate cannot form the basis for denial of access under FOIL. Washington Post v. Ins. Dep’t, 61 N.Y.2d 557, 463 N.E.2d 604, 475 N.Y.S.2d 263 (1984) (granting access to minutes of insurance company meetings voluntarily given by the companies to Insurance Department for its examination; the agreement of confidentiality between the companies and Department did not have a statutory predicate that could preempt FOIL); Town of Waterford v. New York State Dep’t of Environmental Conservation, 77 A.D.3d 224, 906 N.Y.S.2d 651 (3d Dep’t 2010) (FOIL does not specifically exempt documents created as part of settlement negotiations).

The statutory exemption must be based upon a state or federal statute; not a local law. See Morris v. Martin, 82 A.D.2d 965, 440 N.Y.S.2d 365 (3d Dep’t 1981), rev’d, 55 N.Y.2d 1026, 434 N.E.2d 1079, 449 N.Y.S.2d 712 (1982) (granting request by property owners for sales data lists during course of tax certiorari litigation, despite contention that New York City Admin. Code 1146-15.0 prohibited disclosure of such lists).

It has also been held that “exemptions can only be controlled by other statutes, not by regulations which go beyond the scope of specific statutory language.” Zuckerman v. Bd. of Parole, 53 A.D.2d 405, 407, 385 N.Y.S.2d 811 (3d Dep’t 1976); see also N.Y.P.I.R.G. Inc. v. City of New York, N.Y.L.J., Sept. 27, 1982 (Sup. Ct., New York Cty., 1982) (denying access to certain tax records based upon Tax Law Article 31-A and regulations on confidentiality promulgated thereunder); Herald Co. v. Sch. District, 104 Misc.2d 1041, 430 N.Y.S.2d 460 (Sup. Ct. 1980) (denying access to name of and charges against a tenured teacher on the basis of Education Law § 3020-a and regulations promulgated thereunder).

For cases finding an exemption from disclosure by state or federal statutes, see Waldman v. Vill. of Kiryas Joel, 31 A.D.3d 569, 819 N.Y.S.2d 72 (2d Dep’t 2006) (under New York Election law, election records may not be publicly disseminated, but are subject only to inspection); Argentieri v. Goord, 25 A.D.3d 830, 807 N.Y.S.2d 445 (3rd Dep’t 2006) (documents generated during an investigation of a corrections officer constitute “personnel record” for the purposes of Civil Rights Law § 50-a, and thus are exempt from disclosure under FOIL); Molloy v. New York City Police Dep’t, 50 A.D.3d 98, 851 N.Y.S.2d 480 (1st Dep’t 2008) (although remanding for further administrative action, court opined that request relating to investigations by NYPD Internal Affairs Bureau which purportedly involved a police officer would likely be exempt from disclosure under Civil Rights Law § 50-a, which makes confidential personnel records of police officers used to evaluate performance toward continued employment and promotion); Matter of U.S. Claims Servs. Inc. v. New York State Dep’t of Audit & Control, 873 N.Y.S.2d 897, 23 Misc. 3d 923, 2009 N.Y. Misc. LEXIS 363 (Sup. Ct. N.Y. Cty, 2009) (Abandoned Property Law section 1401 prohibited disclosure of certain abandoned property claims and, as such, those same documents were not subject to FOIL disclosure); Asian Am. Legal Defense & Educ. Fund v. N.Y. City Police Dep’t, 964 N.Y.S.2d 888, 41 Misc. 3d 471, 2013 N.Y. Misc. LEXIS 1912 (Sup. Ct. N.Y. Cty. 2013), aff'd, 125 A.D.3d 531, 5 N.Y.S.3d 13, 2015 N.Y. App. Div. LEXIS 1550 (1st Dep’t 2015); Matter of Karimzada v. O’Mara, 111 A.D.3d 1088, 975 N.Y.S.2d 248, 2013 N.Y. App. Div. LEXIS 7741 (3d Dep't 2013) (documents exempt from disclosure due to provisions of New York Executive Law); Newsday, Inc. v State DOT, 10 A.D.3d 201, 780 N.Y.S.2d 402, 2004 N.Y. App. Div. LEXIS 9272 (3d Dep’t 2004), aff'd, 5 N.Y.3d 84, 800 N.Y.S.2d 67, 833 N.E.2d 210, 2005 N.Y. LEXIS 1215 (2005) (documents exempt from disclosure due to Highway Hazard Education Act).

b. Exemption based on unwarranted invasion of privacy.

An agency may deny access to records or portions thereof that, if disclosed, would constitute an unwarranted invasion of personal privacy. N.Y. Pub. Off. Law § 87(2)(b).

Per N.Y. Pub. Off. Law § 89(2), an unwarranted invasion of personal privacy includes, but shall not be limited to:

i. disclosure of employment, medical or credit histories or personal references of applicants for employment;

ii. disclosure of items involving the medical or personal records of a client or patient in a medical facility;

iii. sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes;

iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or

v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency.

Specifically, unless otherwise provided by this article, disclosure shall not be construed to constitute an unwarranted invasion of personal privacy when:

i. identifying details are deleted;

ii. the person to whom a record pertains consents in writing to disclosure; or

iii. upon presenting reasonable proof of identity, a person seeks access to records pertaining to him.

(i) General invasion of privacy argument.

The invasion of personal privacy exemption is not limited to the examples set forth in the statute. See Hanig v. Department of Motor Vehicles, 79 N.Y.2d 106, 588 N.E.2d 750, 580 N.Y.S.2d 715 (1992) (medical histories are but one example of information that could intrude on personal privacy).

For cases which have limited access to records based upon a general invasion of privacy argument, see Matter of Irwin v Onondaga Cty. Resource Recovery Agency, 72 A.D.3d 314, 895 N.Y.S.2d 262, 2010 N.Y. App. Div. LEXIS 1317 (4th Dep't 2010) (agency’s nondisclosure of unpublished photos of individuals other than petitioner where consent to use photos was limited to public education purposes was proper); Matter of Irwin v Onondaga Cty. Resource Recovery Agency, 72 A.D.3d 314, 895 N.Y.S.2d 262, 2010 N.Y. App. Div. LEXIS 1317 (4th Dep't 2010) (agency’s nondisclosure of photographs of all arrested or booked individuals proper); Hearst Corp. v. Office of State Comptroller, 24 Misc.3d 611, 882 A.D.3d 862 (Sup. Ct. N.Y. Cty. 2009) (birth dates of state employees are exempt);  Rodriguez v. Johnson,, 66 A.D.3d 536, 886 N.Y.S.2d 695 (1st Dep’t 2009) (pursuant to the public interest, respondent properly withheld certain identifying characteristics of witnesses and the statements of two witnesses who spoke to law enforcement personnel); Rhino Assets, LLC v. New York City Dep’t for Aging (SCRIE PROGRAMS), 60 A.D.3d 538, 876 N.Y.S.2d 20 (1st Dep’t 2009) (holding that names of those receiving SCRIE benefits are exempt from disclosure because the nature of program requirements would reveal the age and income of individuals receiving benefits); N.Y . State Rifle and Pistol Ass’n, Inc. v. Kelly, 55 A.D.3d 222, 863, N.Y.S.2d 439 (1st Dep’t 2008) (request for digital list of names and addresses of all pistol licensees in New York City was exempt from disclosure, as disclosure of the lists would constitute an “unwarranted invasion of privacy stemming from … the ‘sale or release of lists of names and addresses if such lists would be used for commercial or fundraising purposes.’”); Humane Soc’y of the United States v. Brennan, 53 A.D.3d 909, 861 N.Y.S.2d 234 (3d Dep’t 2008) (disclosure of telephone numbers of personal targets of an investigation was exempt from disclosure); Edwards v. New York State Police, 44 A.D.3d 1216, 843 N.Y.S.2d 729 (3rd Dep’t 2007) (disclosure of crime-scene photographs were exempt from disclosure on the ground that their release would constitute an unwarranted invasion of privacy of the victim’s surviving family members); Hawley v. Vill. of Penn Yan, 35 A.D.3d 1270, 827 N.Y.S.2d 390 (4th Dep’t 2006) (unlisted and wireless numbers may be redacted from a request for a list of all calls made and received by a public official during a two-month period); New York Times Co. v. City of New York Fire Dep’t, 4 N.Y.3d 477, 796 N.Y.S.2d 302 (2005) (with respect to 911 calls made in connection with the September 11, 2001 terrorist attacks on the World Trade Center, “the public interest in the words of the 911 callers is outweighed by the interest in privacy of those family members and callers who prefer that those words remain private”); Tate v. De Francesco, 217 A.D.2d. 831, 629 N.Y.S.2d 529 (3d Dep’t 1995) (inmate privacy); Seeling v. Sielaff, 201 A.D.2d 298, 607 N.Y.S.2d 300 (1st Dep’t 1994) (the release of Social Security numbers constitutes an unwarranted invasion of privacy); Lyon v. Dunne, 180 A.D.2d 922, 580 N.Y.S.2d 803, (3d Dep’t 1992), motion for leave to appeal denied, 79 N.Y.2d 758 (1992) (redacting names, addresses, dates of birth, and phone numbers of troopers, attorneys, investigators and sources after balancing competing interests of public access and individual privacy); Buffalo Broad. Company Inc. v. New York State Dep’t of Correctional Services, 174 A.D.2d 212, 578 N.Y.S.2d 928 (3d Dep’t 1992) (allowing redaction of video tape of frisks of inmates during Attica uprising); Buffalo Broad. Company Inc. v. New York State Dep’t of Correctional Services, 155 A.D.2d 106, 552 N.Y.S.2d 712, (3d Dep’t 1990) (inmates have no general expectation of privacy, but videotape of inmates showering or going to the bathroom or which is unduly degrading or humiliating is of a personal nature and would result in personal hardship); Bernier v. Mann, 166 A.D.2d 798, 563 N.Y.S.2d 158 (3d Dep’t 1990) (inmate privacy); Dobranski v. Houper, 154 A.D.2d 736, 546 N.Y.S.2d 180 (3d Dep’t 1989) (redacting inmates’ prison identification, dietary requirements and name and address of next of kin); Messina v. Lufthansa German Airlines, 83 A.D.2d 831, 441 N.Y.S.2d 557 (2d Dep’t 1981) (denying access to information concerning a claim for unemployment insurance benefits as an unwarranted invasion of personal privacy); Waste-Stream Inc. v. Solid Waste Disposal Authority, 166 Misc.2d 6, 630 N.Y.S.2d 1020 (Sup. Ct. St. Lawrence Cty. 1995) (personal privacy exemption rendered moot); Inner City Press v. New York City Dep’t of Housing Preservation, No. 126653/93 (Sup. Ct., New York Cty., 1993) (denying access to home addresses and Social Security numbers); Village Times v. Three Village Cent. Sch. Dist., No. 20325-83 (Sup. Ct., Suffolk Cty., March 21, 1984) (allowing redaction of name upon release of disciplinary settlement); N.Y. PIRG Inc. v. City of New York, N.Y.L.J., Sept. 27, 1982 (Sup. Ct., New York Cty., 1982) (denying access to New York City capital gains tax returns); In re Lipsman, N.Y.L.J., Oct. 1, 1981 (Sup. Ct., New York Cty., 1981) (denying access to graduate school transcripts).

For cases rejecting a claim of privacy, see Matter of Harbatkin v. N.Y. City Dep’t of Records & Info. Servs., 19 N.Y.3d 373, 948 N.Y.S.2d 220, 971 N.E.2d 350, 2012 N.Y. LEXIS 1278 (2012), cert. denied, 568 U.S. 1157, 133 S. Ct. 1239, 185 L. Ed. 2d 177, 2013 U.S. LEXIS 1101 (2013) (holding that historian entitled to disclosure of the names and identifying details of people, other than the people interviewed, mentioned in certain interview transcripts in her Freedom of Information Law request because such disclosure would not have been an unwarranted invasion of personal privacy); Mulgrew v. Board of Educ. of City Sch. Dist. of City of New York, 31 Misc.3d 296, 919 N.Y.S.2d 786 (Sup. Ct. 2011) (rejecting a claim that releasing the names of public school teachers in Teacher Data Reports are an invasion of privacy because their release rationally balanced in the public interest); Schenectady Cty. Soc. For Prevention of Cruelty To Animals, Inc v. Mills, 74 A.D.3d 1417, 904 N.Y.S.2d 512 (3d Dep’t 2010) (respondent did not meet burden of showing that names and street addresses of licensed veterinarians was an unwarranted invasion of privacy because respondent was unsure whether the addresses it maintained were home or business addresses); Humane Soc’y of United States v. Fanslau, 54 A.D.3d 537, 863 N.Y.S.2d 519 (3d Dep’t 2008) (holding that disclosure of  Sullivan County District Attorney’s financial disclosure statements pertaining to family members’ income and/or investments did not constitute an unwarranted invasion of personal privacy under FOIL); Legal Aid Society of Northeastern New York v. New York State Department of Social Services, 195 A.D.2d 150, 605 N.Y.S.2d 785 (3d Dep’t 1993) (granting access to certain fair hearing decisions; rejecting a privacy argument where identifying information is redacted); Geames v. Henry, 173 A.D.2d 825, 572 N.Y.S.2d 635 (2d Dep’t 1991) (granting access to conviction record); Cornell University v. City of New York Police Dep’t, 153 A.D.2d 515, 544 N.Y.S.2d 356, (1st Dep’t 1989), leave denied, 75 N.Y.2d 707 (1990) (revelation of details of sex crime would not constitute unwarranted invasion of privacy where victim commenced civil action); Thompson v. Weinstein, 150 A.D.2d 782, 542 N.Y.S.2d 33 (2d Dep’t 1989) (granting access to criminal convictions and pending criminal action against witness as public records and not an invasion of privacy); Gannett Co. v. City Clerk’s Office, City of Rochester, 157 Misc.2d 349, 596 N.Y.S.2d 968 (Sup. Ct. 1993) (granting access to names of marriage license applicants sought by newspaper); Faulkner v. DelGiacco, 139 Misc.2d 790, 529 N.Y.S.2d 255 (Sup. Ct. 1988) (granting access to inmates statements and names of prison guards, but denying access to investigative records of prison melee); Rainey v. Levitt, 138 Misc.2d 962, 525 N.Y.S.2d 551 (Sup. Ct. 1988) (granting access to examination grades of certain persons taking the civil service examination for sergeant, rejecting a privacy argument); Herald Company v. New York State Lottery, No. 01-87-ST0944, (Sup. Ct., Albany Cty., August 28, 1987) (granting access to lottery sales figures); Bensing v. LeFevre, 133 Misc.2d 198, 506 N.Y.S.2d 822 (Sup. Ct. 1986) (granting access to names of inmates in special housing unit, rejecting arguments under Personal Privacy Protection Law and privacy exemption); Bahlman v. Brier, 119 Misc.2d 110, 462 N.Y.S.2d 381 (Sup. Ct., 1983) (deleting names from report on sick leave of city employees); ABC Inc. v. Siebert, 110 Misc.2d 744, 442 N.Y.S.2d 855 (Sup. Ct. 1981) (revealing identity of applicant for check cashing license, rejecting invasion of personal privacy argument); Geneva Printing v. Village of Lyons, No. 18713 (Sup. Ct., Wayne Cty., March 25, 1981) (granting access to confidential settlement of disciplinary action against village employee, rejecting privacy argument).

(ii) Employment, credit histories, medical histories or medical records.

An unwarranted invasion of personal privacy includes, but shall not be limited to:

1. disclosure of employment, medical or credit histories or personal references of applicants for employment;
2. disclosure of items involving the medical or personal records of a client or patient in a medical facility.

N.Y. Pub. Off. Law § 89(2)(b).

A medical history is information that one would reasonably expect to be included as a relevant and material part of a proper medical history. A medical history is exempt from disclosure whether or not given to a health care provider or contained in an employment application. Hanig v. Department of Motor Vehicles, 79 N.Y.2d 106, 588 N.E.2d 750, 580 N.Y.S.2d 715 (1992) (responses on driver’s license application regarding disabilities is exempt as a medical history); New York 1 News v. President of the Borough of Staten Island, 766 Misc.2d 270, 631 N.Y.S.2d 479 (Sup. Ct. 1995) (granting access to elements of a staff member’s prior oral or written discussion expressly adopted by agency in explaining its final decision). Rold v. Coughlin, 142 Misc.2d 877, 538 N.Y.S.2d 896, (Sup. Ct. 1989) (access to inmate health care records granted with identifying details redacted); Canty v. Office of Counsel, 30 Misc.3d 705, 913 N.Y.S.2d 528 (Sup. Ct. 2010) (exempting portions of accident reports of correctional officer describing officers’ injuries as medical records).

An employment history also may be exempt. See Obiajulu v. City of Rochester, 213 A.D.2d 1055, 625 N.Y.S.2d 779 (4th Dep’t 1995) (holding that disclosure of performance evaluations and appraisals do not constitute an invasion of privacy when identifying details are deleted; disciplinary charges, the agency determination of those charges, and the penalties imposed are not exempt from disclosure); Kwasnik v. City of N.Y., 262 A.D.2d 171, 691 N.Y.S.2d 525, 1999 N.Y. App. Div. LEXIS 6756 (1st Dep’t 1999) (same); Stone v. Department of Investigation of City of New York, 172 A.D.2d 165, (1st Dep’t 1991) (denying access to employment histories and confidential reports of investigatory file); LaRocca v. Bd. of Educ., 159 Misc.2d 90, 602 N.Y.S.2d 1009 (Sup. Ct. 1993) (denying access to records relating to a disciplinary matter as an employment record), modified, 220 A.D.2d 424, 632 N.Y.S.2d 576 (granting access to portions of documents not constituting “employment history” and to redacted settlement agreement); Willson v. Washburn (Sup. Ct. Oneida Cty. November 18, 1993) (granting access to requester’s own personnel file); Inner City Press/Cmty. on the Move v. New York City Dep’t of Housing Preservation and Development, No. 35882/92 (Sup. Ct., New York Cty., January 26, 1993) (holding that credit histories are exempt from disclosure, but that asset statements are distinguishable from credit histories and, therefore, subject to disclosure). See George v. New York Newsday, N.Y.L.J. October 4, 1994 (Sup. Ct., New York Cty., 1994) (Public Officers Law does not create a privacy cause of action against a private publisher of improperly released materials).

(iii) Commercial or fundraising purposes. An unwarranted invasion of personal privacy includes, but shall not be limited to:

iii. sale or release of lists of names and addresses if such lists would be used for commercial or solicitation purposes.

The 2008 amendments to FOIL substitute “solicitation” for “commercial” to clarify that the intent of the exemption is to avoid the use of a list of persons’ names and residential addresses when the list would be used to contact citizens directly in their homes to solicit their business. Further, when a requester seeks names and addresses, an agency may require the requester to “provide a written certification” that the list will not be used for the purpose of engaging in solicitation or fund-raising.

N.Y. Pub. Off. Law § 89(2)(b).

For cases applying the exemption’s clause relative to requests for commercial or fundraising purposes, see  New York State Rifle and Pistol Ass’n, Inc. v. Kelly, 55 A.D.3d 222, 863 N.Y.S.2d 439 (1st Dep’t 2008) (digital list of names and addresses of all pistol licensees in New York City was exempt from disclosure because respondent provided specific proof of petitioner’s intent to use the requested materials for the purposes of fund-raising and/or commercial gain); Scott v. Records Access Officer, 65 N.Y.2d 294, 480 N.E.2d 1071, 491 N.Y.S.2d 289 (1985) (deleting names and addresses of accident victims from accident reports sought by law firm for solicitation purposes); Gannett Co. v. City Clerk’s Office, City of Rochester, 157 Misc.2d 349, 596 N.Y.S.2d 968 (Sup. Ct. Monroe Cty. 1993) (granting access to names of marriage license applicants sought by newspaper); Goodstein v. Shaw, 119 Misc.2d 400, 463 N.Y.S.2d 162 (Sup. Ct. 1983) (denying access to names and addresses of persons filing complaints with Division of Human Rights when requested by private attorney); In re Nicholas, 117 Misc.2d 630, 458 N.Y.S.2d 858 (Sup. Ct. 1983) (denying access to income executions to a lawyer seeking to send correspondence to judgment debtors); Gramet v. Gilmartin, No. 81-26110 (Sup. Ct., Suffolk Cty., March 31, 1982) (denying access to desk sergeant’s daily journal where requester wanted to inform accident victims of their rights); Golbert v. Suffolk Dep’t of Consumer Affairs, No. 80-9249 (Sup. Ct., Suffolk Cty., Sept. 5, 1980) (denying access to list of home improvement contractors); New York State United Teachers v. Brighter Choice Charter Sch., 15 N.Y.3d 560, 940 N.E.2d 899, 915 N.Y.S.2d 194 (2010) (holding that the names of teachers employed at Charter Schools are exempt from disclosure as an invasion of privacy).

(iv) Economic or personal hardship. An unwarranted invasion of personal privacy includes, but shall not be limited to:

iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it.

N.Y. Pub. Off. Law § 89(2)(b).

For cases where a privacy argument has been asserted based on economic or personal hardship, see Buffalo News v. Buffalo Municipal Housing Authority, 163 A.D.2d 830, 558 N.Y.S.2d 364, (4th Dep’t 1990) (granting access to payroll records and disciplinary records as not creating economic or personal hardship and such records are relevant to day-to-day operations of the agency); Buffalo Broad. Company Inc. v. New York State Dep’t of Correctional Services, 155 A.D.2d 106, 552 N.Y.S.2d 712, (3d Dep’t 1990) (inmates have no general expectation of privacy, but videotape of inmates showering or going to the bathroom or which is unduly degrading or humiliating is of a personal nature and would result in personal hardship); Hopkins v. City of Buffalo, 107 A.D.2d 1028, 486 N.Y.S.2d 514 (4th Dep’t 1985) (granting access to payroll records of several public work projects); Gannett Co. v. Cty. of Monroe, 59 A.D.2d 309, 399 N.Y.S.2d 534 (4th Dep’t 1977), aff’d, 45 N.Y.2d 954, 383 N.E.2d 1151, 411 N.Y.S.2d 557 (1978) (granting access to names and salary levels of terminated county employees, because the records were relevant and essential to the ordinary work of the municipality); Smith v. Cty. of Rensselaer, No. 41-1156-92 (Sup. Ct. Rensselaer Cty.) (granting access to itemized bills prepared or submitted by an attorney working for an agency); Tri-State Publishing Company v. City of Port Jervis, No. 7498-91 (Sup. Ct. Orange Cty., March 4, 1992) (denying access to names and addresses of tenants in housing subsidy program or of property owners where all tenants are in subsidy program as an unwarranted invasion of privacy); Minerva v. Village of Valley Stream, No. 7566/81 (Sup. Ct., Nassau Cty., May 20, 1981) (granting access to front of village attorney’s paycheck, but denying request to examine and copy the back of the check on the basis of privacy exemption); MacHacek v. Harris, 106 Misc.2d 388, 431 N.Y.S.2d 927 (Sup. Ct. 1980) (the manner in which information will be used is an improper standard to determine economic or personal hardship).

(v) Confidentiality. An unwarranted invasion of personal privacy includes, but shall not be limited to:

v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency.

N.Y. Pub. Off. Law § 89(2)(b).

For cases considering the issue of confidentiality, see Stone v. Department of Investigation of City of New York, 172 A.D.2d 165 (1st Dep’t 1991) (denying access to employment histories and confidential reports of investigatory file); Cornell University v. City of New York Police Dep’t, 153 A.D.2d 515, 544 N.Y.S.2d 356 (1st Dep’t 1989), leave denied, 75 N.Y.2d 707 (1990) (granting disclosure of police investigative file where witnesses were not promised anonymity); Allen v. Strojnowski, 129 A.D.2d 700, 514 N.Y.S.2d 463 (3d Dep’t 1987), motion for leave to appeal denied, 70 N.Y.2d 871, 518 N.E.2d 5, 523 N.Y.S.2d 493 (1987) (denying access to names, addresses, and statements of confidential witnesses compiled during a criminal investigation); see Buffalo Evening News v. City of Lackawanna, (Sup. Ct., Erie Cty., June 24, 1985) (granting access to real estate escrow records and holding that the identity of a proposed supplier to a city contract is not information of a personal nature); Gannett News Service Inc. v. State Office of Alcoholism and Substance Abuse, 99 Misc.2d 235, 415 N.Y.S.2d 780 (Sup. Ct. 1979) (granting access to drug abuse surveys taken of secondary school students, although schools had been promised confidentiality).

(vi) Deletion of identifying details.

Unless otherwise provided by this article, disclosure shall not be construed to constitute an unwarranted invasion of personal privacy when identifying details are deleted.

N.Y. Pub. Off. Law § 89(2)(c).

Under the privacy exemption, an agency has authority to delete identifying details prior to disclosure. N.Y. Pub. Off. Law § 89(2)(c)(i). See, e.g., Scott v. Records Access Officer, 65 N.Y.2d 294, 480 N.E.2d 1071, 491 N.Y.S.2d 289 (1985) (deleting names and addresses of accident victims prior to release of accident reports for commercial purposes); Matter of Brown v. Goord, 45 A.D.3d 930, 845 N.Y.S.2d 495, 2007 N.Y. App. Div. LEXIS 10962 (3d Dep't 2007), app. dismissed, 10 N.Y.3d 796, 857 N.Y.S.2d 25, 886 N.E.2d 789, 2008 N.Y. LEXIS 659 (2008) (same); Obiajulu v. City of Rochester, 625 N.Y.S.2d 779 (4th Dep’t 1995) (disclosure of performance evaluations and appraisals do not constitute an invasion of privacy when identifying details are deleted; disciplinary charges, the agency determination of those charges, and the penalties imposed are not exempt from disclosure); Harris v. City University, 114 A.D.2d 805, 495 N.Y.S.2d 175 (lst Dep’t 1985) (granting access to certain curricula vitae but first ordering deletion of identifying information such as names, addresses and Social Security numbers); Malowsky v. D’Elia, 160 A.D.2d 798, 163 N.Y.S.2d 479, (2d Dep’t 1990) (medical histories of a child in foster care and of his natural parents shall be provided under Social Services law § 373(a) after deletion of identifying details); Bahlman v. Brier, 119 Misc.2d 110, 462 N.Y.S.2d 381 (Sup. Ct., 1983) (deleting names from report on sick leave of city employees); Cirino v. Board of Education, N.Y.L.J., July 10, 1980 (Sup. Ct., New York Cty., 1980) (granting access to archival records on alleged communists and subversives, with identifying details deleted).

Where records are subject to other specific statutory exemptions FOIL’s provisions for deletion of identifying details do not remove confidentiality requirements. Short v. Board of Managers, 57 N.Y.2d 399, 442 N.E.2d 1235, 456 N.Y.S.2d 724 (1982).

1. Exemption based on impairment of contract awards or collective bargaining negotiations.

The FOIL authorizes an agency to deny access to records or portions thereof that, if disclosed, would impair present or imminent contract awards or collective bargaining negotiations. N.Y. Pub. Off. Law § 87(2)(c). Efforts by agencies to withhold documents through assertion of collective bargaining impairment arguments have generally proved unsuccessful. See, e.g., Doolan v. BOCES, 48 N.Y.2d 341, 398 N.E.2d 533, 422 N.Y.S.2d 927 (1979) (granting access to a BOCES prepared annual document containing regional data on salaries and fringe benefits of teachers and administrators); Matter Verizon N.Y., Inc. v. Bradbury, 40 A.D.3d 1113, 837 N.Y.S.2d 291, 2007 N.Y. App. Div. LEXIS 6637 (2d Dep’t 2007) (When a provider submitted documents to a village in connection with negotiations for a cable television franchise, those documents were not exempt from disclosure to the provider’s competitor, under N.Y. Pub. Off. Law § 87(2)(c), because the provider and the competitor were not competitors for a single cable television franchise, so disclosure of the documents would not impair the provider’s negotiations with the village); Professional Standards Review of America v. New York State Department of Health, 193 A.D.2d 937 (3d Dep’t 1993) (granting access to contract bid submitted by private organization and to factual and statistical data used by agency in making its final determination to award the contract); Waste-Stream Inc. v. Solid Waste Disposal Authority, 166 Misc.2d 6, 630 N.Y.S.2d 1020 (Sup. Ct. 1995) (granting access to lists of potential customers, names and addresses of customers responding to a questionnaire, proposed contracts with customers and lists of all accounts extended credit within the past two years); Babigian v. Evans, 104 Misc.2d 140, 427 N.Y.S.2d 688 (Sup. Ct. 1980), aff’d, 97 A.D.2d 992, 469 N.Y.S.2d 834 (lst Dep’t 1983) (granting access to list of employees who were awarded back pay); Geneva Printing v. Village of Lyons, No. 18713 (Sup. Ct., Wayne Cty., March 25, 1981) (granting access to terms of confidential settlement of employee’s arbitration hearing); United Fed’n v. New York City Health and Hosp. Corp., 104 Misc.2d 623, 428 N.Y.S.2d 823 (Sup. Ct. 1980) (granting access to grievances and decisions rendered thereon). But see Cohalan v. Board of Education, 74 A.D.2d 812, 425 N.Y.S.2d 367 (2d Dep’t 1980) (denying access to preliminary contract proposals and demands between school board and teachers’ association).

The “impairment of contract award” language has been held to allow an agency to withhold documents in cases of imminent, or even potential, awards of contracts, but not in cases where contractual agreements are consummated. Compare Murray v. Troy Urban Renewal Agency, 84 A.D.2d 612, 444 N.Y.S.2d 249 (3d Dep’t 1981), aff’d, 56 N.Y.2d 888, 438 N.E.2d 1115, 453 N.Y.S.2d 400 (1982) (denying access to reports by an independent appraiser for the potential sale of buildings) and Pirro v. Murray, (Sup. Ct., Onondaga Cty., Aug. 2, 1982) (denying access to records of resource survey project) with Shaw v. Triborough Bridge and Tunnel Auth., N.Y.L.J., June 17, 1980 (Sup. Ct., New York Cty., 1980) (granting access to records related to a “consummated” contractual agreement). See also Buffalo Evening News v. City of Lackawanna, (Sup. Ct., Erie Cty., June 24, 1985) (granting access to names of persons making escrow deposits relating to negotiations for development of aluminum mill); Faxton Hospital v. Plumley, No. 84-9 64 (Sup. Ct., Oneida Cty., May 30, 1984) (granting access to documents submitted by applicant for industrial development revenue bonds).  See also Verizon New York, Inc. v. Bradbury, 40 A.D.3d 1113, 837 N.Y.S.2d 291 (2d Dep’t 2007) (draft of cable franchise agreement with municipality was not exempt from disclosure as the impairment of an imminent contract award because party seeking the records and Verizon were not competitors for the issuance of a cable television franchise).

h. Exemption for examination questions or answers.

Any examination questions or answers which are requested prior to the final administration of such questions are exempt. N.Y. Pub. Off. Law § 87(2)(h). See Social Services Employee Union v. Cunningham, 109 Misc.2d 331, 437 N.Y.S.2d 1005 (Sup. Ct. 1981) (denying access to copies of Civil Service examination questions to allow for re-use); Livoti v. Bahou, No. 8418-81 (Sup. Ct., Albany Cty., Oct. 2, 1981) (denying access to copies of police sergeant exam questions and answers).

i. Exemption for computer access codes.

Computer access codes are exempt from disclosure. This law was amended recently to include any information that “would jeopardize an agency’s capacity to guarantee the security of its information technology assets.” N.Y. Pub. Off. Law § 87(2)(i) (McKinney 1988).  But see Matter of TJS of N.Y., Inc. v. N.Y. State Dep’t of Taxation & Fin., 89 A.D.3d 239, 932 N.Y.S.2d 243, 2011 N.Y. App. Div. LEXIS 7602 (3d Dep't 2011) (computer software is a “record” subject to disclosure unless a “legitimate concern” covered by an exemption).

j. Exemption for traffic-control signal photographs.

Photographs, microphotographs, video-tape or other recorded images prepared under authority of section eleven hundred eleven-a of the vehicle and traffic law are exempt. N.Y. Pub. Off. Law § 87(2)(j).

A few exemptions are set out in the text of the public records law.

One exemption covers written communications from an attorney acting within the scope of the attorney-client privilege. G.S. § 1321.1(a). The exemption covers only communications from the attorney to the public body, not vice versa. Even then, such communications are excluded from the coverage of the law only for a period of three years, after which they become public records.

A second exemption covers state and local tax information, which may not be disclosed except in limited circumstances set out in the state tax code. G.S. § 132-1.1(b).

The law also exempts “Public Enterprise Billing information,” which includes the bills for electric power and other public utilities sent to consumers by counties and municipalities that provide such services to their citizens. G.S. § 132-1.1(c).

G.S. § 132-1.1(d) exempts the addresses and telephone numbers of persons enrolled in a program to protect the confidentiality of a relocated victim of domestic violence, sexual offense or stalking.

G.S. § 132-1.1(e) exempts information contained in the state’s Controlled Substances reporting System.

G.S. § 132-1.1(f) exempts personally identifiable admissions information for the University of North Carolina and its constituent institutions.

G.S. § 132-1.2(1) exempt information which: (1) constitutes a “trade secret” as defined in G.S. § 66-152(3); (2) is the property of a private “person” as defined in

G.S. § 66-152(2); (3) is disclosed or furnished to the public agency in connection with the owner’s performance of a public contract or in connection with a bid, application, proposal, industrial development project, or in compliance with laws, regulations, rules, or ordinances of the United States, the state, or political subdivisions of the state and (4) is designated or indicated as “confidential” or as a “trade secret” at the time of its initial disclosure to the public agency. Note that all four criteria must be met in order for a document to be withheld lawfully.

G.S. § 132-1.2(2) exempts account numbers for electronic payments

G.S. § 132-1.2(3) exempts document, file number, or passwords maintained by the Secretary of State.

G.S. § 132-1.2(4) exempts electronically capture images of an individual’s signature, date of birth, driver’s license number or social security number.

G.S. § 132-1.2(5) exempts the seal of certain licensed professionals.

The Public Records Law also provides that public records relating to the expansion or location of specific business or industrial projects “may be withheld so long as their inspection, examination or copying would frustrate the purpose for which such public records were created.” G.S. § 132-6(d). The section of the law setting out this exemption includes detailed provisions as to when such information must be released. This exemption does not protect records relating to general economic policies or activities.

Public Records Law provides an exemption for certain records of criminal investigations conducted by law enforcement agencies or records of criminal intelligence information compiled by public law enforcement agencies. G.S. § 132-1.4.

G.S. § 132-1.6 exempts emergency response plans of UNC, community colleges or public hospitals.

G.S. § 132-1.7 exempts certain emergency security plans.

In 2002, the General assembly added the following language to the Public records law under the heading “Sensitive Public Security information”:

(a)       Public records as defined in G.S. 132-1 shall not include information containing specific details of public security plans and arrangements or the detailed plans and drawings of public buildings and infrastructure facilities.

(b)       Public records as defined in G.S. 132-1 do not include plans to prevent or respond to terrorist activity, to the extent such records set forth vulnerability and risk assessments, potential targets, specific tactics, or specific security or emergency procedures, the disclosure of which would jeopardize the safety of governmental personnel or the general public or the security of any governmental facility, building, structure, or information storage system.

(c)        Information relating to the general adoption of public security plans and arrangements, and budgetary information concerning the authorization or expenditure of public funds to implement public security plans and arrangements, or for the construction, renovation, or repair of public buildings and infrastructure facilities shall be public records. G.S. § 132-1.7.

G.S. § 132-1.8 exempts photographs and audio or video recordings made pursuant to an autopsy.

G.S. § 132-1.9 exempts certain trial preparation materials (otherwise known as litigation work product).

G.S. § 132-1.10 exempts social security numbers and other identifying information but also puts limitations on when such information may be collected.

G.S. § 132-1.11 temporarily exempts certain information about economic development incentives.

G.S. § 132-1.12 exempts identifying information about minors participating in local government parks and recreation programs.

Some other provisions of the Public Records Law that create exemptions or limitations on specific types of records are discussed in Sections ii(E) and iV, below.

The following records are exempt from the general open records statutes as set forth below.

Court Records:

1. Adoption records, except when the child-placing agency authorizes exchanges of information between the genetic parents, adoptive parents, and adopted child. N.D.C.C. § 14-15-16.
2. Records of judicial hearings concerning a minor’s application to obtain an abortion without parental consent. N.D.C.C. § 14-02.1-03.1(3).
3. The identity of a woman suing a person who conducted an abortion without informed consent and other records of the proceedings, when the court, on its own or upon motion, determines that the woman’s anonymity should be preserved. N.D.C.C. § 14-02.1-03.3.
4. The record of any court hearing conducted under N.D.C.C. § 23-07.5-02(4), relating to testing for bloodborne pathogens. N.D.C.C. § 23-07.5-02(4).
5. The report of genetic testing for parentage, as well as court records concerning hearings on parentage (unless the parties consent or on order of the court for good cause). N.D.C.C. §§ 14-20-35, 14-20-54.
6. All files and records of juvenile courts. N.D.C.C. § 27-20-51. (Procedures for the disposal of juvenile court records are outlined in N.D.C.C. § 27-20-54.)
7. Social services reports requested by judges, including social-psychological evaluations, predisposition reports, treatment, probation, and aftercare services (except as may be disclosed by the judge), as well as records of the Department of Human Services containing individually identifiable information on an individual applying for or receiving assistance or services under any program of the department. N.D.C.C. §§ 50-06-05.1(15)-(16), 50-06-15.
8. Reports, transcripts, records, or other information relating to State Health Officer legal actions to enjoin a person with human immunodeficiency virus infection from continuing to engage in an activity that presents an imminent danger to the public. N.D.C.C. § 23-07.4-03.
9. All information and records obtained in the course of an investigation, evaluation, examination, or treatment under the state’s civil commitment procedures and the presence or past presence of a patient in a treatment facility. N.D.C.C. § 25-03.1-43.
10. The name of the respondent to an appeal from an order of involuntary commitment or alternative treatment, a continuing treatment order, an order denying a petition for discharge, or an order of transfer. N.D.C.C. § 25-03.1-29.
11. Veterans discharge documents recorded by clerks of district courts, which can only be made available to designated persons. N.D.C.C. § 37-01-34.
12. Probation records when the plea of guilty is withdrawn by the defendant or the verdict of guilty is set aside by the court, except upon the written order of the court. N.D.C.C. § 12.1-32-07.2.
13. Statements and votes made by grand jurors and other grand jury matters, except when ordered by a court to disclose certain testimony. N.D.C.C. §§ 29-10.1-30(3), 29-10.1-31. Matters other than the deliberations and vote of any grand juror may be disclosed by the state’s attorney, prosecutor, or attorney general solely with regard to performing their duties. N.D.C.C. §§ 29-10.1-30(2). The attorney general may disclose these matters to law enforcement agencies only to the extent the attorney general deems them essential to the public interest and effective law enforcement. N.D.C.C. § 29-10.2-05(2).
14. The testimony of a witness who is interrogated before a grand jury, or any proceedings of the grand jury in the witness’ presence, until an indictment is filed and the accused person is in custody. N.D.C.C. § 29-10.1-30.
15. Reports or presentments of state grand juries that are not accompanied by true bills of indictment, until the individuals concerned have been furnished a copy thereof and given thirty days to file with the district court a motion to suppress or expunge the reports or those portions which are improper and unlawful. N.D.C.C. § 29-10.2-05(3). Any such motion, whether granted or denied, automatically acts as a stay of public announcement of such a report, or portion thereof, until the district court’s ruling on the motion is either affirmed or denied by an appellate court, or until the time within which such order may be so appealed has expired, whichever occurs first.
16. Sealed jury verdicts, until they have been rendered in open court. N.D.C.C. § 29-22-21.
17. Names of qualified jurors and the contents of jury qualification forms completed by those jurors shall be made available to the public, unlessthe court determines in any instance that this information in the interest of justice should be kept confidential or its use limited in whole or in part. N.D.C.C. § 27-09.1-09(3). See also Forum Comm. Co. v. Paulson, 752 N.W.2d 177 (N.D. 2008).
18. The contents of any records or papers used by the clerk in connection with the jury selection process, until after all persons selected to serve as jurors have been discharged. N.D.C.C. § 27-09.1-12(4).
19. Wills deposited by testators or their agents with recorders for safekeeping, until the testator’s death, when the recorders deliver the wills to the persons designated to receive them or to the appropriate courts. N.D.C.C. § 30.1-11-01.
20. Information contained in a complaint and warrant, if the magistrate orders the information confidential after a law enforcement officer articulates a reason for the confidentiality that convinces the issuing magistrate that limited confidentiality is necessary for the safety of the law enforcement officer or to enable the warrant to be properly served. N.D.C.C. §§ 29-05-32; 29-29-22. The magistrate shall limit the duration of the order to the time of arrest of the accused and shall exempt law enforcement officers in the performance of official duties. N.D.C.C. §§ 29-05-32; 29-29-

Legislative Materials

21. Testimony and other evidence given or adduced at a legislative investigative hearing closed to the public, unless authorized by a majority of the members of the committee. N.D.C.C. § 54-03.2-12(7).

22. All information of a defamatory or highly prejudicial nature received by or for a legislative committee conducting an investigation, unless the information was received at a hearing (but see exception above), a majority of the committee authorizes public release, or its use is required for judicial purposes. N.D.C.C. § 54-03.2-12(8).

23. The following records, regardless of form or characteristic, of or relating to the legislative counsel, the legislative management, the legislative assembly, the House of Representatives, the Senate, or a member of the legislative assembly: records of a purely personal or private nature, records that are legislative council work product or legislative council-client communication, records that reveal the content of private communications between a member of the legislative assembly and any person, and (except with respect to a governmental entity determining the proper use of telephone service) records of telephone usage that identify the parties or list the telephone numbers of the parties involved, except records distributed at open meetings. N.D.C.C. § 44-04-18.6.

State Department of Health Records and Information:

The state legislature in 2021 significantly expanded privacy protections for medical information that the state government possesses. “Unless otherwise provided by law, a medical record or a record containing medical information in the possession of a public entity is an exempt record.” N.D.C.C. § 44-04-18.32.

24. The medical records of abortion facilities and hospitals in which abortions are performed and all information contained therein. N.D.C.C. § 14-02.1-07(1)(b). The records may be used by the state department of health only for gathering statistical data and ensuring compliance with the laws. N.D.C.C. § 14-02.1-07(1)(b).

25. Records, reports, and information obtained by the department of health in its enforcement of air pollution control standards, where a satisfactory showing is made to the department that the records, reports, or information (other than emission data), if made public, would divulge trade secrets. N.D.C.C. § 23-25-06.
26. All information, records of interviews, written reports, statements, notes, memoranda, or other data procured by the department of health (or a co-sponsoring person, agency, or organization) in connection with studies conducted for the purpose of reducing morbidity or mortality from any cause or condition of health. N.D.C.C. § 23-01-15.
27. All Health Care Data Committee records, data, and information that could be used to identify individual patients. N.D.C.C. § 23-01.1-05.
28. Department of health information (other than reports relating to vital statistics) concerning licensure of medical hospitals and state hospitals, except that information may be disclosed in a proceeding involving the question of licensure. N.D.C.C. § 23-16-09.
29. Records of maternity homes and reports received therefrom. N.D.C.C. § 50-19-10.
30. Ionizing radiation development records, reports, or information provided to the department of health under chapter 23-20.1 of the North Dakota Century Code, if the department grants confidentiality following a written request, notice of opportunity for a public hearing under chapter 28-32, and a satisfactory showing that confidentiality is required to protect trade secrets or medical and individual radiation exposure files, the disclosure of which would constitute a clear invasion of personal privacy. N.D.C.C. § 23-20.1-09.1.
31. Reports to the department of health concerning individuals with a diagnosis of human immunodeficiency virus infection, acquired immune deficiency syndrome, or human immunodeficiency virus-related illness, including death from human immunodeficiency virus infection (with certain exceptions). N.D.C.C. § 23-07-02.2.
32. Information contained in disease control records, including the results of laboratory tests, except as authorized by department of health rules. N.D.C.C. § 23-07-20.1.
33. Statements of antifreeze formula and other trade secrets that must be furnished to the state health department. N.D.C.C. § 19-16.1-10.
34. For health-related records outside of the department of health, see N.D.C.C. §§ 12-59-04 (parole records), 15-10-17(7) (state board of higher education adopted rules), 23-01-03.1 (newborn metabolic and genetic disease screening tests), 23-17-09 (state board of chiropractic examiners records), and 43-17.1-08 (board of medical examiners investigative panels records).

Department of Human Services Records and Information:

35. Individually identifiable information concerning an individual applying for or receiving assistance or services under any program of the department of human services. N.D.C.C. § 50-06-15(1); see alsoN.D. Admin. Code ch. 75-01-02 and 75-01-03.
36. Information received by the department of human services through inspections of substance abuse treatment programs, except in a proceeding involving the issuance of a license. N.D.C.C. § 50-31-06.
37. The contents of records of licensed foster care facilities and the records of the department of human services pertaining to the children or adults receiving care. N.D.C.C. § 50-11-05; see alsoNorth Dakota Administrative Code § . 75-03-16-27.
38. Records and information maintained with respect to children receiving early childhood services. N.D.C.C. § 50-11.1-07.
39. Reports to the department of human services, and any other information obtained, concerning child abuse and neglect. N.D.C.C. § 50-25.1-11.
40. Information regarding aid to dependent children provided to state agencies and their officials, employees, and agents. N.D.C.C. § 50-09-08.2.
41. The contents of the individual records of a treatment or care center for developmentally disabled individuals, or reports received from those records. N.D.C.C. § 25-16-07.
42. All records and information regarding students with disabilities receiving boarding home care. N.D.C.C. § 15.1-34-10.
43. Information supplied by the tax commissioner to certain state agencies to effectuate the intent of the setoff of income tax refund chapter. N.D.C.C. § 57-38.3-08.
44. Records and files of state and regional long-term care ombudsmen and their authorized agents that relate to, or identify, any resident of a long-term care facility or a complainant, except where a resident or legal representative consents in writing to the release and designates to whom the information shall be disclosed, where the ombudsman authorizes a disclosure that does not reveal the identity of any complainant or resident, or where a court of competent jurisdiction orders disclosure. N.D.C.C. § 50-10.1-07.
45. Reports and all records and information obtained or generated as a result of reports relating to vulnerable adult protection services. N.D.C.C. § 50-25.2-12.

State Institutions and the Department of Corrections and Rehabilitation Records and Information:

46. Records of individuals in institutions maintained by the supervising departments of institutions. N.D.C.C. § 25-01.1-13.
47. The medical, psychological, and treatment records of the department of corrections and rehabilitation relating to individuals in the custody or under the supervision of the division of adult services of the department. N.D.C.C. § 12-47-36(2).
48. The case history records of the department of corrections and rehabilitation are exempt records, but upon application to the district court, the court may order the inspection of a case history record unless there is a showing that a proper and legitimate reason exists for denying the inspection. N.D.C.C. § 12-47-36(1). “Case history record” includes inmate disciplinary proceedings, administrative and disciplinary segregation placements, institutional and criminal investigation reports, supervision histories, job placements, education programs, inmate financial accounts, and protective management cases. N.D.C.C. § 12-47-36(1).
49. Additionally, the records of an applicant for commutation, reprieve, pardon, conditional pardon, or remission of fine are subject to N.D.C.C. § 12-47-36. N.D.C.C. § 12-55.1-11. The pardon clerk may permit the inspection of an application for a commutation, reprieve, pardon, conditional pardon, or remission of fine; the recommendations of the pardon advisory board, if any; and the decision of the governor, including any decision made after reconsideration or after proceedings for revocation. N.D.C.C. § 12-55.1-11.
50. All parole records of the department of corrections and rehabilitation obtained in the discharge of official duty by any member of the parole board or employee of a division or department of the department of corrections and rehabilitation on behalf of the parole board. N.D.C.C. § 12-59-04. An application for parole and the decision of the parole board on the application are open records. N.D.C.C. § 12-59-04.
51. Records of the division of adult services of the department of corrections and rehabilitation concerning the application for or award of compensation under the Crime Victims Compensation Act. N.D.C.C. § 54-23.4-17.
52. Information, data, reports, and records made available to an internal quality assurance review committee of the developmental center at Grafton (except that information, documents, and records otherwise available from original sources are not immune from discovery merely because they were presented during the proceedings of the committee). N.D.C.C. § 25-04-19.

Department of Transportation Records and Information:

53. The following entries on a driver’s record or abstract are not open records, except for statistical purposes, other than by order of a court of competent jurisdiction: 1) Entries more than three years old; 2) After the period of suspension ceases, entries concerning a suspension under certain provisions; 3) Entries concerning suspension as the result of a person under 21 years old who has an alcohol concentration of at least two one-hundredths of one percent, but under eight one-hundredths of one percent by weight within two hours after driving or being in actual physical control of a vehicle. N.D.C.C. § 39-16-03.1.
54. In accident report forms, the opinion (as to fault or responsibility) of the investigating officer, except upon affirmation by a party to the accident that the investigating officer’s opinion is material to a determination of liability and a payment of a five dollar fee. N.D.C.C. § 39-08-13.
55. Department of transportation records relating to the financial condition of any party if that party has applied for prequalification as a bidder, is designated as a prequalified bidder, is an applicant under the disadvantaged business enterprise program, makes a submission in furtherance of being selected as a consultant, is selected as a consultant, or is subject to audit by the department. N.D.C.C. § 24-02-11.
56. All accident reports made by persons involved in accidents or by garages to the department of transportation or other state agencies. N.D.C.C. § 39-08-14(1).
57. All accident reports and supplemental information filed in connection with the administration of the laws relating to the deposit of security or proof of financial responsibility. N.D.C.C. § 39-08-14(2).
58. Reports of the county auditors to the department of transportation listing the names of blind persons for whom a property tax exemption is claimed, except that such reports may be introduced at hearings on license suspension or revocation. N.D.C.C. § 11-13-18.

Records of the Insurance Commissioner:

59. Nonpublic personal information of insured individuals, as well as names and individual identification data for all owners, purchasers, and insureds. See, e.g., N.D.C.C. § 26.1-02-27; N.D.C.C. § 26.1-02-28; N.D.C.C. § 26.1-36-12.4; N.D.C.C. § 26.1-18.1-23; N.D.C.C. § 26.1-33.4-05; N.D.C.C. § 26.1-33.4-06; N.D.C.C. § 26.1-17.1-24; ; N.D.C.C. § 26.1-50-03.
60. Any confidential documents or information received by the insurance commissioner from the national association of insurance commissioners or state, federal, or international regulatory or law enforcement officials. N.D.C.C. § 26.1-03-11.3.
61. Any documents, materials, or other information in the possession of the insurance commissioner relating to the report or investigation of suspected or actual fraudulent insurance acts. N.D.C.C. §§ 26.1-02.1-06, 26.1-02.1-07; see alsoN.D.C.C. § 26.1-33.4-13. As of 2021, the Medicaid Fraud Control Unit’s active investigation records are exempt from disclosure “unless the investigation is closed and not referred for further investigation or adjudication.” N.D.C.C. § 50-24.8-12(6).
62. Proceedings, hearings, notices, correspondence, reports, records, and other information in the possession of the insurance commissioner or the department relating to the supervision of any insurer, unless the commissioner deems it is in the best interest of the public or the insurer to make the information public. N.D.C.C. § 26.1-06.2-04.
63. Documents, materials, and other information in the possession of the insurance commissioner that are an actuarial report, work papers, or actuarial opinion summary provided in support of the actuarial opinion, and any other material provided by the insurance company to the commissioner in connection with the actuarial report, work papers, or actuarial opinion summary. N.D.C.C. § 26.1-03-11.1.
64. Reports of financial examinations of insurers, for a period of fifteen days after the adoption of a report, so long as no court has stayed publication. N.D.C.C. 26.1-03-19.4(5)(a). Additionally, all working papers, recorded information, documents, and copies disclosed to the commissioner in the course of a financial examination are confidential. N.D.C.C. 26.1-03-19.4(6)(a).
65. For purposes of any examination other than financial examinations, all preliminary data, drafts, notes, impressions, memoranda, working papers, and work product generated by the insurance commissioner or the person making the examination are confidential until the commissioner releases a final report or upon a declaration by the commissioner of nonconfidentiality. N.D.C.C. § 26.1-03-19.4(6)(b).
66. Any information obtained by the insurance commissioner in the course of an examination relating to insurance holding company systems, unless the insurance company to which it pertains gives written consent or the commissioner, after notice and a hearing, determines that the interests of the policyholders, shareholders, or the public will be served by the publication of the information. N.D.C.C. § 26.1-10-07.
67. In delinquency proceedings brought by the insurance commissioner, all records of the insurer, other documents, and all insurance department files and court records, so far as they pertain to or are a part of the record of the proceedings, unless and until the court orders otherwise or unless the insurer requests that the matter be made public. N.D.C.C. § 26.1-06.1-10.
68. All examination reports, working papers, recorded information, documents, and copies obtained in the course of an examination made under the life settlements chapter or in the course of analysis or investigation by the insurance commissioner of the financial condition or market conduct of a licensee. N.D.C.C. 26.1-33.4-06(7)(b)
69. Any memorandum in support of an actuarial opinion of reserves, and any other material provided by an insurance company to the insurance commissioner in connection therewith. N.D.C.C. § 26.1-35-01.1(1)(d)(8).
70. Health maintenance organization enrollee clinical records available to the insurance commissioner for compliance with the quality assurance program, except upon written consent for disclosure by the enrollee or the enrollee’s authorized representative. N.D.C.C. § 26.1-18.1-06(5).
71. Any data or information pertaining to the diagnosis, treatment, or health of any enrollee or applicant obtained by any health maintenance organization, as well as the information considered by a health care review committee and the records of their actions and related proceedings. N.D.C.C. § 26.1-18.1-23.
72. Annual financial statements filed by government self-insurance pools and all working papers of the insurance commissioner’s staff, until the report is final, unless the commissioner declares that the material or any party of the material is not confidential. N.D.C.C. § 26.1-23.1-04.
73. Information regarding the portion of the funds or liability reserves of a self-insured government pool established for the purposes of satisfying a specific claim or cause of action. N.D.C.C. § 26.1-23.1-06.
74. Risk-based capital reports and plans. N.D.C.C. §§ 26.1-03.1-08; 26.1-03.2-08.
75. Asset and agreement reports filed by insurers with the insurance commissioner. N.D.C.C. § 26.1-10.1-01.

Job Service/Unemployment Compensation Records:

76. Records of employers doing business in the state which are obtained by North Dakota job service in the administration of the unemployment compensation law. N.D.C.C. §§ 52-01-02, 03.

Workers Safety and Insurance Records:

77. Information contained in employers’ files and reports obtained by Workforce Safety and Insurance. N.D.C.C. § 65-04-15.
78. Information contained in the claims files and records of injured employees, except the claimant’s name, date of birth, injury date, employer name, type of injury, whether the claim is accepted, denied, or pending, and whether the claim is active or inactive. N.D.C.C. § 65-05-32.

Records of the Labor Commissioner:

79. Information furnished to the labor commissioner by public officers and employers relating to their respective offices or businesses. SeeN.D.C.C. § 34-05-03.

Records of the Tax Commissioner and Other Tax Materials:

80. Confidential information provided to the tax commissioner. See, e.g., N.D.C.C. § 57-02-11.2 (records and information provided by the owner or occupant of commercial property with regard to income and expenses of the property); N.D.C.C. § 57-39.2-23 (information obtained in the enforcement of the sales tax); N.D.C.C. § 57-05-11 (information obtained during assessment of railroad property); N.D.C.C. § 57-37.1-22 (estate tax returns); N.D.C.C. § 57-38-57 (income tax returns).
81. Any federal tax return or return information opened to inspection or disclosed by the United States secretary of the treasury to the state tax commissioner for the administration of the tax laws. N.D.C.C. § 57-01-14.

Department of Financial Institutions Records and Information:

82. Facts and information obtained by the commissioner or department of financial institutions or the department in the course of examinations, receiving reports, investigations, and receiving applications containing trade secrets, commercial, financial, personnel, medical, or examination report information. N.D.C.C. § 6-01-07.1.

Industrial Commission Records and Information:

83. Other pertinent information related to basic exploration data requested by the state geologist, for a period of one year, when requested by the operator (the time period may be further extended upon approval by the industrial commission). N.D.C.C. § 38-12-02(1)(b)(4).
84. Basic exploration data of coal submitted to the state geologist, for a period of two years (the time period may be extended for one-year periods by the state geologist, for a total period not to exceed ten years, unless it is demonstrated that the time period should be further extended to prevent possible resulting harm). N.D.C.C. § 38-12.1-04(1)(b).

85.Oil and gas well data reported to the industrial commission (if confidential treatment is requested in writing by those reporting the data), for a period not to exceed six months. N.D.C.C. 38-08-04(6).

Bank of North Dakota Records and Information:

86. Certain records of the Bank of North Dakota. SeeN.D.C.C. § 6-09-35.
87. Certain customer information held by the Bank of North Dakota (or other financial institution). SeeN.D.C.C. ch. 6-08.1.

Housing Finance Agency Records and Information:

88. The following records of the housing finance agency: 1) Personal or financial information of a participant in any of the housing finance agency’s programs, obtained directly or indirectly, except for routine credit inquiries or as required by court order; 2) Internal or interagency memorandums or letters of a personal nature which are not available by law to a party, except insofar as they are available in litigation with the agency; 3) Personal financial statements which the industrial commission requires of any housing finance agency employee or member of the housing finance agency’s advisory board. N.D.C.C. § 54-17-07.8

State Geologist Records and Information:

89. Geological and geophysical data obtained by the state geologist, when requested by the seller or donor, until such time as the seller or donor notifies the state geologist that confidentiality is no longer required. N.D.C.C. § 54-17.4-08.

Lignite Records and Information:

90. Lignite industry materials and data submitted to, or made or received by, the industrial commission, to the extent that the commission determines (following a request by a person or entity, which is also confidential) the material or data consist of trade secrets, or commercial, financial, or proprietary information of individuals or entities applying to or contracting with the commission or receiving commission services. N.D.C.C. § 54-17.5-06.

Public Service Commission Records and Information:

91. Public service commission reports of the stock of crude petroleum of any particular pipeline, except the aggregate amounts held by all the pipelines making reports and their aggregate storage capacity. N.D.C.C. § 49-19-02.
92. Specific information included in surface coal mining plans, upon request by the permit applicant and in the discretion of the public service commission, provided such information pertains only to the analysis of the chemical and physical properties of the coal (excepting information regarding such mineral or elemental contents which is potentially toxic in the environment), for a period not to exceed ten years. N.D.C.C. § 38-14.1-13.

Records of State Boards or Commissions Regulating Professions or Industries:

93. State chiropractic board of examiners information concerning licensing of chiropractic hospitals, except that information may be disclosed in a proceeding involving the question of licensure. N.D.C.C. § 23-17-09.
94. Communications to the board of medical examiners investigative panels, as well as their records (except financial records). N.D.C.C. § 43-17.1-08.
95. Information acquired by counselors licensed by the board of counselor examiners in rendering counseling services. N.D.C.C. § 43-47-09.
96. The contents of any document, paper, or record examined by a member, officer, agent, or employee of the board of barber examiners, or any information obtained in the course of his investigation, except as disclosure is required to carry out the barber statute. N.D.C.C. § 43-04-15.
97. Investigative files of the state board of pharmacy, until a complaint is filed or the board decides not to file a complaint. N.D.C.C. § 43-15-10(15).
98. All data and information, including client and juvenile records, acquired by the board of social work examiners in its investigations. N.D.C.C. § 43-41-10(6) and (7).
99. Examination or test questions, scoring keys, and other data used to administer any licensing, employment, academic, or certification examination or test, if the examination or test is to be used again in whole or in part, and records establishing examination or test procedures and instructions regarding the administration, grading, or evaluation of any examination or test, if disclosure may affect scoring outcomes. N.D.C.C. § 44-04-18.8.

Agricultural Records and Information:

100. Audited annual financial statements that must be filed with the department of agriculture by dairy license applicants who purchase milk from dairy producers. N.D.C.C. § 4-30-03.2.
101. Any information created, collected, or maintained by the milk marketing board, except the board may use the information in compiling and disseminating general statistical data. N.D.C.C. § 4.1-26-29.
102. Criminal history records listed in an application for an industrial hemp license provided to the agricultural commissioner. N.D.C.C. § 4.1-18-02.
103. Records pertaining to pesticide application, sales, purchases, and repackaging received by the agriculture commissioner in enforcing the North Dakota Pesticide Act of 1975, except that the commissioner may disclose information where required to enforce the Act. N.D.C.C. § 4-35-24(5).
104. Information created, collected, and maintained by the agricultural mediation service in the course of any mediation, except upon written consent of all parties to the mediation or by an order issued by a court upon a showing of good cause. N.D.C.C. § 6-09.10-10.
105. Registered pesticide information, when the agriculture commissioner determines it contains or relates to trade secrets, or to commercial or financial information. N.D.C.C. § 19-18-04.2.
106. Information gained by the agriculture commissioner through the use of the release that a dairy processor license applicant must file. N.D.C.C. § 4-30-02.1.

Secretary of State Records and Information:

107. Interrogatories propounded by the Secretary of State the answers thereto, except that the secretary may disclose facts or information obtained therefrom insofar as permitted by law or insofar as required for evidence in any criminal proceedings or in any other action by the state. N.D.C.C. §§ 10-19.1-148(2)(f) (corporations), 10-32.1-85(f) (LLCs), 10-33-141(2)(f) (nonprofit corporations), 10-35-32(2)(f) (publicly traded corporations), 10-36-09(2)(f) (nonprofit LLCs), 45-10.2-111(2)(f) (partnerships), 45-22-23(2)(f) (LLPs).
108. Information in the Secretary of State’s registry system regarding the execution of international wills, until the death of the maker and then only to any person who presents a death certificate or other satisfactory evidence of the testator’s death to the center. N.D.C.C. § 30.1-08.2-09.

State Auditor Records and Information:

109. Information obtained by the state auditor, including the contents of any return, report or other information examined or any listing made therefrom by the state auditor, except when otherwise directed by judicial order or as otherwise provided by law. N.D.C.C. § 54-10-25.
110. Working papers of the state auditor, including records kept by the auditor of the procedures applied, the tests performed, the information obtained, draft audit reports, and the pertinent conclusions reached in the engagement. N.D.C.C. § 54-10-26.Working papers may be, at the discretion of the auditor and unless otherwise prohibited by law, open records. N.D.C.C. § 54-10-26.The final, issued audit report is public information, as are the working papers of an issued audit report, subject to the auditor’s discretion to declare all or a portion of such work papers confidential. N.D.C.C. § 54-10-26. The declaration must state the reason for the confidentiality and the date when the working papers will be made public. N.D.C.C. § 54-10-26.

State Toxicologist Records and Information:

111. Results of toxicological or chemical testing or analysis made by the state toxicologist at the request of law enforcement agencies for criminal investigation. N.D.C.C. § 54-12-24.

Securities Commissioner Records and Information:

112. Securities commissioner records regarding the franchise investment law, where the commissioner withholds from public inspection any information the disclosure of which is, in the judgment of the commissioner, not necessary in the public interest or for the protection of investors. N.D.C.C. § 51-19-17(4).
113. The information or documents obtained or prepared in the course of any investigation regarding the issuance and sale of securities, if the securities commissioner chooses to keep the information confidential, but confidential treatment is allowed only during an active and ongoing investigation. N.D.C.C. § 10-04-16.1(1)(c). If an investigation extends beyond six months, the commissioner shall, upon request, state in writing that the need for confidentiality still exists, the general reason why the need exists, and the date, as can best be determined at the time, when the need for confidentiality will cease. N.D.C.C. § 10-04-16.1(1)(c).

Department of Veterans Affairs Records and Information:

114. Records and papers pertaining or relating to veterans that are transmitted by the United States government to the Department of Veterans Affairs, in some cases. N.D.C.C. § 37-18-11.

State Historical Society Records and Information:

115. Information from the files of the State Historical Society containing data that specifically identifies the location of archaeological, historical, or paleontological sites in North Dakota, unless the director of the society is satisfied that the applicant has a reasonable need for the information contained in the files and professionally acceptable qualifications to assure that release of the information will not result in unnecessary destruction of the resource. N.D.C.C. § 55-02-07.1.

Vital Records:

116. Birth, death, and fetal death records, filings, data, or other information related to birth, death, and fetal death records, except as authorized. SeeN.D.C.C. § 23-02.1-27.

Judicial Conduct Commission Records and Information:

117. Before the filing and service of formal charges, all proceedings of the judicial conduct commission; after the filing and service of formal charges, all proceedings are public except incapacity proceedings. N.D.C.C. § 27-23-03(5); N.D. R. Jud. Conduct Comm. 6.
118. Before the filing and service of formal charges, all information relating to a complaint that has not been dismissed, unless the judicial conduct commission has determined there is a need to notify another person to protect that person or to notify a government agency to protect the public or the administration of justice, or upon waiver in writing by the judge. N.D.C.C. § 27-23-03(5); N.D. R. Jud. Conduct Comm. 6.
119. All information relating to a complaint that has been dismissed without formal charges being filed. N.D.C.C. § 27-23-03(5); N.D. R. Jud. Conduct Comm. 6.
120. Disciplinary counsel’s work product, judicial conduct commission deliberations, and records of the commission’s deliberations. N.D.C.C. § 27-23-03(5); N.D. R. Jud. Conduct Comm. 6.

Records of the Attorney General’s Office (Including State Fire Marshal):

121. Arson information received by the state fire marshal, any law enforcement officer, or any insurance company, until its release is required pursuant to a criminal or civil proceeding. N.D.C.C. § 18-01-05.1(7).
122. Testimony, correspondence, or other matter secured in an investigation by the state fire marshal. N.D.C.C. § 18-01-28.
123. The attorney general’s or state’s attorney’s investigation and proceedings of alleged violations of the statement of interests law for public officers and candidates, until a determination has been reached by the investigating officer that enough incriminating evidence exists to bring an action and such action is commenced in the appropriate district court. N.D.C.C. § 16.1-09-06.

For information regarding release of criminal history information by the bureau of criminal investigation, see N.D.C.C. § 12-60-16.6.

Law Enforcement Records and Information:

124. Active criminal intelligence information and active criminal investigative information. N.D.C.C. § 44-04-18.7. Active investigations of the state fire marshal, fire departments, and rural fire protection entities are also confidential as long as the investigation is active. N.D.C.C. § 44-04-30.
125. Law enforcement records and files concerning children, except where the child is prosecuted as an adult, where the interests of national security require disclosure, or where the court otherwise orders disclosure in the interest of the child. N.D.C.C. § 27-20-52. Additionally, fingerprint files of children are confidential. SeeN.D.C.C. § 27-20-53(4).
126. The address, telephone number, or any identifying information that, if released, could reasonably be used to locate a victim or alleged victim of domestic violence, sexual offense, or human trafficking contained in any record maintained by a law enforcement facility is exempt and may be redacted from the record before release. N.D.C.C. § 44-04-18.20.
127. Any telephone number and the home address of a juvenile court director or probation officer, an employee of a law enforcement agency, employee of a state or local correctional facility, and an employee of the department of corrections and rehabilitation. N.D.C.C. § 44-04-18.3(1).
128. Records or other information that would reveal the identity, or endanger the life or physical well-being, of an undercover law enforcement officer. N.D.C.C. § 44-04-18.3(2).
129. Any record containing the work schedule of employees of a law enforcement agency. N.D.C.C. § 44-04-18.3(3).County Records: A report of death, an autopsy report, and any working papers, notes, images, pictures, photographs, or recordings of the medical county coroner in any form. N.D.C.C. § 11-19.1-11(4). 165.Municipality Records:131. Motor vehicle accident reports required by incorporated cities, towns, and other municipalities, except that a city department may disclose the identity of a person involved in an accident when such identity is unknown or when the individual denies presence at the accident. N.D.C.C. § 39-08-14.
130. Records of libraries that provide a library patron’s name or identification sufficient to identify a patron together with the subject about which the patron requested information (in the absence of a subpoena or court order requiring disclosure). N.D.C.C. § 40-38-12.

Education Records and Information:

133. Certain student records and medical records. See, e.g.,N.D.C.C. § 15-10-17(7) (granting the state higher board of education ability to adopt confidentiality rules for certain records); N.D.C.C. § 15.1-24-04 (records related to student’s medical treatment for chemical abuse); N.D.C.C. § 15.1-26-06 (results of general education development tests); N.D.C.C. § 15.1-34-10 (records regarding boarding home care provided to students with disabilities); see alsothe federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g.
134. Records of a school law enforcement unit regarding a student at a school. N.D.C.C. § 15.1-19-14.
135. Criminal history records provided to the education standards and practices board. N.D.C.C. § 15.1-13-14.
136. Consideration of the appointment or removal of any president, faculty head, professors, instructors, teachers, officers, and other employees of the institutions under the Board of Higher Education’s control, unless the individual involved requests that the meeting be open to other individuals or to the public. N.D.C.C. § 15-10-17(1).
137. Fundraising and donor records of the state board of higher education, university system, and affiliated nonprofit organizations. N.D.C.C. § 44-04-18.15.
138. Patient records at student health services and university system medical centers and clinics. N.D.C.C. § 44-04-18.16.

Public Employee Records and Information:

139. Any record of a public employee’s medical treatment or use of an employee assistance program. N.D.C.C. § 44-04-18.1(1).
140. Personal and non-confidential information regarding a public employee contained in a personnel record or given to the state or a political subdivision in the course of employment is exempt. N.D.C.C. § 44-04-18.1(2).
141. Personal information regarding a licensee maintained by an occupational or professional board, association, state agency, or commission created by law is exempt. N.D.C.C. § 44-04-18.1(4).
142. Records and information pertaining to a public employee’s medical and dependent care reimbursement under the pretax benefits program. N.D.C.C. § 54-52.3-05.
143. All records relating to the retirement benefits of a member or beneficiary under the teacher, Highway Patrol member, and public employee retirement funds, as well as records under the uniform group insurance program. SeeN.D.C.C. § 15-39.1-30 (teachers); N.D.C.C. § 39-03.1-28 (highway patrol); N.D.C.C. § 54-52-26 (public employee); N.D.C.C. § 54-52.1-11 (uniform group insurance program).
144. The medical records and related data of the employees, retirees, and dependents obtained as a result of enrollment in the uniform group insurance program. N.D.C.C. § 54-52.1-12.

Child Fatality Review Panel Records:

145. All documentation and reports, except for an annual report, of the child fatality review panel. N.D.C.C. § 50-25.1-04.5.

Attorney Work Product:

146. Attorney work product, meaning a document or record that was prepared by an attorney representing a public entity, which reflects a mental impression, conclusion, litigation strategy, or legal theory of that attorney or the entity and was prepared exclusively for civil or criminal litigation, for adversarial administrative proceedings or in anticipation of reasonably predictable civil or criminal litigation or adversarial administrative proceedings. N.D.C.C. § 44-04-19.1. Withholding a public record under the attorney work product doctrine is improper if the record is merely a simple factual narrative with no mental impressions. N.D. Op. Att’y Gen. 2022-O-09; N.D. Op. Att’y Gen. 2021-O-05.

Following the final completion of the civil or criminal litigation or the adversarial administrative proceeding, including the exhaustion of all appellate remedies, attorney work product must be made available for public disclosure by the public entity, unless another exception applies, or unless disclosure would have an adverse fiscal effect on the conduct or settlement of other pending or reasonably predictable proceedings, or unless the attorney work product reflects mental impressions, opinions, conclusions, or legal theories regarding potential liability of a public entity. N.D.C.C. § 44-04-19.1. In July 2023, the North Dakota Supreme Court held that the potential liability exception did not apply to documents requested from a state insurance reserve fund that related to state expenditures on litigation costs for a public condemnation action. Hagen v. N. Dakota Ins. Rsrv. Fund, 993 N.W.2d 519 (N.D. 2023).

Economic Development Records and Information:

147. Records and information pertaining to a prospective location of a business or industry, including the identity, nature, and location of the business or industry, when no previous public disclosure has been made by the business or industry of the interest or intent of the business or industry to locate in, relocate within, or expand within this state, or partner with a public entity to conduct research or to license a discovery or innovation. N.D.C.C. § 44-04-18.4. This exemption does not include records pertaining to the application for permits or licenses necessary to do business or to expand business operations within this state, except as otherwise provided by law. N.D.C.C. § 44-04-18.4.
148. Trade secrets and proprietary, commercial, or financial information received from a person who is interested in or is applying for or receiving financing, technical assistance, or other forms of business assistance. N.D.C.C. § 44-04-18.4.

Critical Incident Stress Management Team Records and Information:

149. All records and proceedings of a critical incident stress management team in connection with its critical incident stress debriefing activities (except that information, documents, or records otherwise available from original sources are not immune from discovery because they were presented during a critical incident stress debriefing). N.D.C.C. § 32-03-50.

Abandoned Property Records:

150. Documentation and working papers obtained or compiled by the administrator of the state abandoned property office in the course of conducting an audit for unclaimed property, but the administrator’s final, completed audit reports are open records. N.D.C.C. § 47-30.1-30.1.
151. Reports filed with the administrator of the state abandoned property office, until twenty-four months after the date payment or delivery is made. N.D.C.C. § 47-30.1-19.1.

Records of Ownership in Registered Public Obligations:

152. Records regarding ownership of or security interests in registered public obligations. N.D.C.C. § 21-03.1-09.

Domestic Violence and Sexual Assault Program Records:

153. Domestic violence or sexual assault program records. SeeN.D.C.C. § 14-07.1-18.
154. Private information concerning a minor received by a domestic violence organization. N.D.C.C. § 14-07.3-02. The counseling center must establish procedures to provide access by a parent, guardian, or custodian of a minor to private information concerning the minor, subject to the following: 1) The counseling center may deny parental access to private information upon the request of the minor; 2) Upon receipt of the request, the counseling center must determine if honoring the request to deny parental access would be in the best interest of the minor. N.D.C.C. § 14-07.3-03.

911 Records:

155. Unpublished names and telephone numbers generated by or provided to an emergency services communication system coordinator or public safety answering point are confidential. N.D.C.C. § 57-40.6-07(1). Published names and telephone numbers are exempt. N.D.C.C. § 57-40.6-07(2).
156. Records which reveal personal information or the identity, address, or telephone number of a person requesting emergency service or reporting an emergency are exempt and may be redacted before being released. N.D.C.C. § 57-40.6-07(3). Additionally, the medical condition of an individual, medical treatment provided to an individual, and the name of an individual who received medical treatment from a public entity during an emergency medical response is an exempt record. N.D.C.C. § 44-04-18.22.
157. An audio recording of a request for emergency services or of a report of an emergency is an exempt record; however, upon request, a person may listen to the audio recording, but may not copy or record the audio. N.D.C.C. § 57-40.6-07(4). A person may also request a written transcript of the audio recording, which must be provided to the person within a reasonable time. N.D.C.C. § 57-40.6-07(4).

Computer Software Programs:

158. Any computer software program or component of a computer software program contracted, developed, or acquired by a public entity or state agency, institution, department, or board and for which the public entity or state agency, institution, department, or board acquires a license, copyright, or patent is exempt. N.D.C.C. § 44-04-18.5. The governor must grant the state entity approval before entering into these agreements, and the state can pursue claims of copyright infringement if necessary. Id.

Other Trade Secret, Proprietary, Commercial, and Financial Information:

159. Trade secret, proprietary, commercial, and financial information is confidential if it is of a privileged nature and it has not been previously publicly disclosed. SeeN.D.C.C. § 44-04-18.4 for definitions.

Access to Financial Account Numbers:

160. Any credit, debit, or electronic fund transfer card or account number and any financial institution account number that a public entity, elected official, or appointed official uses or has available. N.D.C.C. § 44-04-18.9.

Lists of Minors:

161. Any record of a public entity that is a compilation of minors’ names, addresses, telephone numbers, or any combination thereof is exempt. N.D.C.C. § 44-04-18.13.

Personal and Financial Information in a Consumer Complaint:

162. Personal and financial information submitted to a state agency as part of a consumer complaint, or gathered as part of an investigation of a consumer complaint, is exempt. N.D.C.C. § 44-04-18.17.

Autopsy Images:

163. An autopsy photograph or other visual image or a video or audio recording of an autopsy. N.D.C.C. 44-04-18.18. However, a criminal justice agency has the discretion to view or disclose autopsy images for reasons related to investigations or prosecutions. Additionally, medical examiners, coroners, or doctors can view or disclose an autopsy photo for educational purposes. The family of the decedent can obtain the autopsy image if they obtain a court order to do so. North Dakota Attorney General’s Office, Open Records Manual (Oct. 2022) at 38, https://attorneygeneral.nd.gov/wp-content/uploads/2022/11/OpenRecordsManual.pdf.

Individual Recipients of Economic Assistance or Benefits:

164. Records concerning individual applicants or recipients of economic assistance or support administered under the division of community services or a community action agency, including benefits or services, are exempt. N.D.C.C. § 44-04-18.19. The exempt records include applications, income or eligibility verification, assessments, or other personal, medical, or financial data. N.D.C.C. § 44-04-18.19.

Electronic Mail Addresses and Telephone Numbers:

165. The e-mail address or telephone number of an individual which is provided for the purpose of communicating with a public entity is an exempt record. N.D.C.C. § 44-04-18.21. The provision may not be used to shield the identity of the individual communicating with the public entity. N.D.C.C. § 44-04-18.21.

Library, Archive, and Museum Collections:

166. A public library, archive, or museum may designate a donated record as an exempt record if the donor of the record requests as a condition of the donation that the record not be released to the public for a specific period of time, which may not exceed twenty years beyond the death of the donor. N.D.C.C. § 44-04-18.23.

a. Medical records: "any document or combination of documents, except births, deaths, and the fact of admission to or discharge from a hospital, that pertains to the medical history, diagnosis, prognosis, or medical condition of a patient and that is generated and maintained in the process of medical treatment." Ohio Rev. Code § 149.43(A)(3); see § 149.43(A)(1)(a).

To be exempt, a "medical record" must be maintained or generated in the process of medical treatment. A patient care report generated by an emergency medical service squad did not qualify where the squad found the victim dead when it arrived, and thus provided no medical treatment. State ex rel. Ware v. City of Cleveland, 55 Ohio App. 3d 75, 562 N.E.2d 946 (1989).

A psychological exam administered to candidates for public employment for the purposes of making hiring decisions is not a "medical record," and is not subject to the exemption. State ex rel. Multimedia Inc. v. Snowden, 72 Ohio St. 3d 141, 647 N.E.2d 1374 (1995)

b. Records pertaining to parole proceedings or proceedings related to the imposition of community control sanctions and post-release control sanctions. Ohio Rev. Code § 149.43(A)(1)(b).

c. Records of a minor female's action in juvenile court for approval of an abortion without parental notification and to appeals of those actions. Ohio Rev. Code §§ 149.43(A)(1)(c); 2151.85, 2919.121(C)(7); 2505.073. When an appeal of an action under § 2151.85 is taken in a court of appeals under § 2505.073, the public is entitled to certain information that does not directly or indirectly identify the minor or otherwise compromise the minor’s anonymity. That includes “(1) the docket number, (2) the name of the judge, and (3) the decision including, if appropriate, a properly redacted opinion.” State ex rel. Cincinnati Post v. Second Dist. Court of Appeals, 65 Ohio St. 3d 378, 381 604 N.E.2d 153, 156 (1992).

d. Records pertaining to adoption proceedings, including the contents of an adoption file maintained by the Ohio Department of Health. Ohio Rev. Code § 149.43(A)(1)(d); Ohio Rev. Code §  3705.12 et seq.

e. Records filed with state agencies related to the putative father registry established by Ohio Rev. Code § 3107.062. The putative father registry contains the name and address of individuals for the purpose of receiving notice of a petition to adopt the minor he claims as his child  Ohio Rev. Code § 149.43(A)(1)(e).

f. Records filed with the Ohio health department containing information identifying the biological relatives of an adopted child. Ohio Rev. Code § 149.43(A)(1)(f); Ohio Rev. Code § 3107.52(A) (Formerly § 3107.42(A)).

g. Confidential records pertaining to mediation communications.  Ohio Rev. Code § 149.43(A)(1)(i); Ohio Rev. Code § 2710.03.

h. Confidential records generated by the Ohio Civil Rights Commission during a preliminary investigation of alleged unlawful discriminatory practices. Ohio Rev. Code § 149.43(A)(1)(i); Ohio Rev. Code §  4112.05.

i. DNA records of the Ohio Bureau of Criminal Identification and Investigation, which is part of the office of the Ohio Attorney General. Ohio Rev. Code § 149.43(A)(1)(j); Ohio Rev. Code §  109.573.

j. Inmate records regarding youths released by the Ohio Department of Rehabilitation and Corrections to the Ohio Department of Youth Services or a court of record. Ohio Rev. Code § 149.43(A)(1)(k); Ohio Rev. Code §  5120.21(E).

k. Records of the Ohio Department of Youth Services related to children in its custody that are released to the Ohio Department of Rehabilitation and Correction. Ohio Rev. Code §§ 149.43(A)(1)(l), 5139.05.

l. "Intellectual property records," which are the work of researchers at state colleges or universities that has not yet been patented, published or publicly released. Ohio Rev. Code §§ 149.43(A)(1)(m); 149.43(A)(5).

m. "Donor profile records," which are records "about" donors or potential donors to a state college or university. However, the names, reported addresses of actual donors, the amount donated, the dates of donations, and the conditions of donations are not exempted. Ohio Rev. Code §§ 149.43(A)(1)(n), 149.43(A)(6).

n. Information maintained by the Ohio Department of Job and Family Services in its new hires directory. Ohio Rev. Code §§ 149.43(A)(1)(o), 3121.894.

o. Trade secrets of a county or municipal hospital. Ohio Rev. Code § 149.43(A)(1)(q); see Ohio Revised Code § 1333.61.

p. The address, telephone number, birth date, Social Security number, medical information and photographic image of a minor as that information pertains to the recreational activities of the minor or the obtaining of privileges to use public recreational facilities, as well as the address and phone number of the minor’s parent, guardian, or emergency contact. Ohio Rev. Code §§ 149.43(A)(1)(r), 149.43(A)(8).

q. Various records of a child fatality review board. Ohio Rev. Code § 149.43(A)(1)(s).

r. Certain statements provided to or by the executive director of a public children services agency or a prosecutor related to the death of a minor likely to have been caused by abuse, neglect, or other criminal conduct. Ohio Rev. Code §§ 149.43(A)(1)(t), 5153.171.

s. Test materials, examinations, evaluation tools used in an examination to license a person as a nursing home administrator. Ohio Rev. Code § 149.43(A)(1)(u).

t. Proprietary information related to Ohio's Venture Capital Program. Ohio Rev. Code §§ 149.43(A)(1)(w), 150.01.

u. Financial statements and other data submitted to the Ohio housing finance agency or the controlling board related to financial assistance provided by the agency. Ohio Rev. Code § 149.43(A)(1)(x).

v. Certain records related to day-care facilities regulated by the State. Ohio Rev. Code. § 149.43(A)(1)(y)

w. Records filed with a county recorded related to certain military discharges. Ohio Rev. Code § 149.43(A)(1)(z).

x. Names, addresses, and usage information for residential and commercial customers of a public utility. Ohio Rev. Code § 149.43(A)(1)(aa).

y. Certain records related to JobsOhio, “a private non-profit corporation designed to drive job creation and new capital investment in Ohio through business attraction, retention and expansion efforts.” Ohio Rev. Code § 149.43(A)(1)(bb); Ohio Rev. Code § 187.04(C); https://jobs-ohio.com/about-jobsohio/.

z. Certain information and records related to manufacturers and suppliers of drugs for lethal injections. Ohio Rev. Code § 149.43(A)(1)(cc); Ohio Rev. Code § 2949.221(B) and (C).

aa. Individuals’ social security numbers, tax identifications numbers, driver’s license or other state identification number, and financial or medical account numbers. Ohio Rev. Code § 149.43(A)(1)(dd); 149.45(A)(1).

bb. The name, address, and other personally identifiable information for individuals who have applied with the secretary of state for the address confidentiality program for certain victims of crime and other applicants who attest to fears for safety. Ohio Rev. Code § 149.43(A)(1)(ee); Ohio Rev. Code § 111.42 et seq.

cc. Certain orders related to military service (time-limited to fifteen years after the date of the call to order). Ohio Rev. Code § 149.43(A)(1)(ff).

dd. Home addresses, home telephone numbers, bank account numbers, and a variety of similar personal information used to administer employment benefits to and to employ a variety of public-safety officers in state and local government are exempt from mandatory disclosure. That variety of information is labeled "residential and familial" information. Ohio Rev. Code §§ 149.43(A)(1)(p), (A)(7). 

But a journalist making a signed written request asserting that information would be in the public interest may obtain the street address of a peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, investigator of the Bureau of Criminal Identification and Investigation, or EMT's residence and certain information about their family members. Ohio Rev. Code § 149.43 (B)(9).

Ohio Rev. Code § 149.43(B)(9)(c) defines “journalist” as “a person engaged in, connected with, or employed by any news medium, including a newspaper, magazine, press association, news agency, or wire service, a radio or television station, or a similar medium, for the purpose of gathering, processing, transmitting, compiling, editing, or disseminating information for the general public.”

The exemption for "residential and familial" information used to exempt "any record that identifies a person's occupation as" a police officer, firefighter, or emergency medical technician, which allowed the City of Cleveland to withhold from a newspaper photographs kept by the city of several uniformed officers who had been the subject of a city-promoted "photo op" when they were honored for valor. That provision is no longer in the statute. See State ex rel. Plain Dealer Publishing Co. v. Cleveland, 106 Ohio St. 3d 70, 831 N.E.2d 987 (2005).

v. Trial preparation records: "any record that contains information that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding, including the independent thought processes and personal trial preparation of an attorney." Ohio Rev. Code §§ 149.43(A)(1)(g), (A)(4).

Where a public office is litigating against a private party, and obtains records from that private party in discovery, those records ordinarily qualify as "trial preparation records" during "the discovery phase of the litigation." Cleveland Clinic Found. v. Levin, 120 Ohio St. 3d 1210, 1212, 898 N.E.2d 589, 591, 2008-Ohio-6197, ¶ 10.

“[W]hen an investigation has multiple purposes, the records of that investigation cannot be said to be trial preparation records.” State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St. 3d 392, 395–96, 31 N.E.3d 616, 621, 2015-Ohio-974, ¶ 14.

The recording of a 911 call in which the caller says that he murdered someone is not a "trial preparation record" because all of those calls are recorded automatically, regardless of whether they have any actual or potential relation to civil or criminal litigation. So they are not "specifically complied in reasonable anticipation of" litigation. State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St. 3d 392, 395–96, 31 N.E.3d 616, 621, 2015-Ohio-974.

Investigations that precede a decision to litigate—just "to find out what the facts were"—is not sufficiently linked to the prospect of litigation to generate "trial preparation records." State ex rel. Coleman v. Cincinnati, 57 Ohio St.3d 83, 84, 566 N.E.2d 151 (1991); Franklin Co. Sheriff's Dept. v. SERB, 63 Ohio St. 3d 498, 589 N.E.2d 24 (1992) (State Employment Relations Board had to submit its investigatory records to court to decide in camera whether they would qualify as "trial preparation records").

Police investigations to see if a crime was committed —that precede any decision to initiate or defend litigation—"do not easily fit within" the exemption for "trial preparation records." State ex rel. Coleman v. Cincinnati, 57 Ohio St.3d 83, 84, 566 N.E.2d 151 (1991).

Trial preparation records do not lose their exempt status merely because they were produced in discovery to a criminal defendant—even though the criminal defendant has no legal duty to keep them confidential. The criminal defendant has them, and may be free to disseminate them, but that doesn't mean that the public office must disclose them to the public upon request. State ex rel. WHIO v. Lowe, 77 Ohio St.3d 350, 673 N.E.2d 1360 (1997).

Where the record was a public record at its inception, and later became part of the prosecutor's file, the record retains its status as a public record. So, a tape of a 911 call containing a homicide confession, which was a public record at its inception, does not become an exempt trial preparation record merely because the prosecutor has chosen to use it as evidence in a criminal prosecution. State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St. 3d 374, 662 N.E.2d 334 (1996).

A "trial preparation record" retains its exempt status only until the completion of all trial court and appellate court proceedings. State ex rel. Steckman v. Jackson, 70 Ohio St. 3d 420, 639 N.E.2d 83 (1994), rev’d on other grounds in State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 89 N.E.3d 598, 2016-Ohio-8394.

A record generated in anticipation of internal employee discipline is not a "trial preparation" record. State ex rel. Police Officers For Equal Rights v. Lashutka, 72 Ohio St. 3d 185, 648 N.E.2d 808 (1995).

Settlement agreements that end a lawsuit are not "trial preparation" records. State ex rel. Kinsley v. Berea Bd. of Edn, 64 Ohio App. 3d 659, 582 N.E.2d 653 (1990); see also State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St. 3d 126, 781 N.E.2d 163 (2002) (trial preparation exemption does not apply to a proposal to settle potential litigation).

w. Confidential law enforcement investigatory records. Ohio Rev. Code § 149.43(A)(1)(h); Ohio Rev. Code § 149.43(A)(2). Requesters often seek records that public offices insist fall within this sophisticated exemption.

First: To qualify under this exemption, the records first must pertain to a "law enforcement matter." But enforcing a law is not confined to enforcing laws with criminal penalties. It applies also to enforcing laws that have sanctions that are treated as civil or administrative, and so have no potential imprisonment of other criminal attributes. Enforcing a regulation of the state environmental protection agency counts under this exemption because the regulation has an administrative sanction for failing to comply with the duty that it imposes.

Deciding whether a public office is acting to enforce a law isn't always easy. When a city fires an employee for insubordination, is the city enforcing a law? Usually the answer is "no." Instead the city is exercising its right to end its informal contract to employ the discharged worker.

Unlike a contract—where both sides agree—a law is a rule that binds the public or some portion of the public whether they agree with the rule or not. Only a government body authorized by a city charter or a state or federal constitution to produce such binding rules can produce laws. Legislatures and city councils have the power to create laws. Administrative agencies have the power to adopt regulations that are enforceable as laws, but only if a legislature or council has authorized the agency to do that. A single public official in the executive branch, such as the mayor or the public safety director or the director of human resources, rarely has the authority to make a law.

So, when police undertake a background investigation of a prospective public employee, or when they investigate facts for an official to decide whether to discipline or fire an existing employee, police are not "enforcing" a "law." State ex rel. Multimedia v. Snowden, 72 Ohio St. 3d 141, 647 N.E.2d 1374 (1995); State ex rel. Police Officers For Equal Rights v. Lashutka, 72 Ohio St. 3d 185, 648 N.E.2d 808 (1995); State ex rel. Freedom Communications v. Elida Community Fire Company, 82 Ohio St. 3d 578, 697 N.E.2d 210 (1998) (investigation of alleged sexual assault conducted internally as personnel matter is not law enforcement matter); State ex rel. Lorain Journal Co. v. City of Lorain, 87 Ohio App. 3d 112, 621 N.E.2d 894 (1993) (results of polygraph tests given to prospective employee).

Also, an agency cannot withhold records produced by a law enforcement investigation where that agency was not the one doing the investigating, and had no authority to undertake the investigation. State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 684 N.E.2d (1997) (records of an investigation of alleged child abuse in the custody of county ombudsman office that has no law enforcement authority).

Second: Second, the release of the requested records must "create" a "high probability" of disclosing certain "taboo" information listed in the exemption.

One would expect that, where the press already has publicized the "taboo" information, then releasing a record of that information could not "create" the probability of disclosing the information because that information already is in the public domain.

But the Ohio Supreme Court has decided otherwise. An uncharged suspect's identity may be "confidential" and thus redacted—even though press coverage already has identified the suspect. State ex rel. WLWT v. Leis, 77 Ohio St.3d 357, 673 N.E.2d 1365 (1997)(overruled on other grounds in State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 89 N.E.3d 598, 2016-Ohio-8394); State ex rel. Master v. City of Cleveland, 76 Ohio St. 3d 340, 667 N.E.2d 974 (1996).

The "taboo" information is:

a. The identity of a suspect who has not been charged with the offense to which the record pertains. What about the record of the police arresting someone who has not been charged with an offense? The authorities have taken away that person's liberty. Does the absence of a formal charge against that person mean that police may conduct essentially secret arrests so long as they detain the person without formally charging him or her? No. The Ohio Supreme Court has ruled that the exemption does not apply to records of arrests—regardless of whether the arrested person has not been charged with any offense. State ex rel. Outlet Communications Inc. v. Lancaster Police Dept., 38 Ohio St. 3d 324, 528 N.E.2d 175 (1988); State ex rel. Moreland v. City of Dayton, 67 Ohio St. 3d 129, 616 N.E.2d 234 (1993).

A "suspect" is a person who is a subject of investigation, but who has not been arrested, has not received a citation, and has not been indicted or named as a defendant in a criminal complaint. State ex rel. Polovischak v. Mayfield, 50 Ohio St. 3d 51, 552 N.E.2d 635 (1990).

That the police have labeled an investigation "inactive" so that the person in question is not currently a suspect is irrelevant; the exemption still applies. State ex rel. Moreland v. City of Dayton, 67 Ohio St. 3d 129, 616 N.E.2d 234 (1993); State ex rel. Ohio Patrolmen's Benevolent Association v. City of Mentor, 89 Ohio St. 3d 440, 732 N.E.2d 969 (2000) (The "absence of pending or highly probable criminal charges is not fatal to the applicability of the uncharged-suspect exemption"); State ex rel. Musial v. North Olmsted, 106 Ohio St. 3d 459, 835 N.E.2d 1243 (2005) (rejecting argument that exemption does not apply when a grand jury declines to indict and charges are unlikely). But see, Bentkowski v. Trafis, 56 N.E.3d 230, 239, 2015-Ohio-5139, ¶ 26, (The uncharged suspect exemption does not apply “because the closed police investigation did not include the name of any suspect since no crime was committed”).

b. The identity of an information source to whom confidentiality has been reasonably promised. The obvious choice here is a confidential police informant. The exemption applies even where police did not put a promise of confidentiality in writing. State ex rel. Martin v. City of Cleveland, 67 Ohio St. 3d 155, 616 N.E.2d 886 (1993).

Before a promise of confidentiality can be reasonable, it must be made on the basis of an individualized determination by the official that the promise is necessary to obtain the information. State ex rel. Toledo Blade Co. v. Telb, 50 Ohio Misc. 2d 1, 552 N.E.2d 243 (1990).

c. The identity of a witness to whom confidentiality has been reasonably promised. This part of the exemption is bad policy. For someone to qualify as a "witness," that person must have firsthand knowledge of information that is relevant to a violation of the law that authorities are trying to enforce. Despite the statutory exemption, witnesses testify publicly in open court virtually always, and their identities are placed on witness lists that are open to the public when filed with the court. Therefore, promising confidentiality to a bona fide "witness" should rarely be "reasonably" promised because the court system mandates making that person's identity public, and exceedingly rarely would abide by the promise if the law enforcement agency insisted that the witness testify in some way that conceals the witness' identity.

The exemption did not authorize a university to promise confidentiality to employees in exchange for obtaining information for use in deciding whether to promote or give tenure to another employee. State ex rel. James v. Ohio State Univ., 70 Ohio St. 3d 168, 637 N.E.2d 911 (1994).

Where an agency is investigating whether one of the agency's supervisors for allegedly sexually harassing subordinate employees, the investigator reasonably promised confidentiality to the alleged victims when interviewing them, and to other employees whom he interviewed. State ex rel. Yant v. Conrad, 74 Ohio St. 3d 681, 684, 660 N.E.2d 1211, 1214 (1996).

d. Information provided by an information source or witness to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose the source's or witness' identity. State ex rel. Beacon Journal Pub. Co. v. Kent State Univ., 68 Ohio St. 3d 40, 43, 623 N.E.2d 51, 54, 1993-Ohio-146 (“If the victim's name and any identifying features are deleted, the text of the letters would not, directly or by inference, identify the informant. Thus, releasing the redacted letters creates no 'high probability of disclosure' of the confidential informant's identity.").

e. Specific confidential investigatory techniques.

f. Specific confidential investigatory procedures. Routine investigatory procedures do not qualify under this exemption. State ex rel. Beacon Journal Pub. Co. v. Univ. of Akron, 64 Ohio St. 2d 392, 415 N.E.2d 310 (1980).

g. Specific investigatory work product. This is probably the most litigated part of the confidential law investigatory records exemption. It covers the records produced by investigators in the course of a law enforcement investigation. Work product “means notes, working papers, memoranda, or similar materials prepared by law-enforcement officials in anticipation of litigation.” State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St. 3d 392, 397, 31 N.E.3d 616, 622, 2015-Ohio-974, ¶ 18.

The exemption applies to coroners' autopsy reports. State ex rel. Cincinnati Enquirer v. Pike County Coroner’s Office, __ N.E.3d __, 2017-Ohio-8988 (Ohio Supreme Court).

But records that were public records before the investigation started retain that status even if investigators gather and keep them in the course of investigating—even if they contain evidence of a crime. State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 662 N.E.2d 334 (1996) (911 tape with confession of homicide is public record).

Records that are unquestionably nonexempt, e.g., newspaper articles, contracts, campaign contributions, do not become exempt simply because they are the subject of grand jury subpoenas. State ex rel. Gannett Satellite Network Inc. v. Petro, 80 Ohio St. 3d 261, 685 N.E.2d 1223 (1997).

Information gathered during an investigation is not specific investigatory work product when it is not clear that a crime has occurred, because the records are then compiled by law enforcement investigators to determine if any crime has occurred. State ex rel. Ohio Patrolmen's Benevolent Association v. City of Mentor, 89 Ohio St. 3d 440, 732 N.E.2d 969 (2000).

When police officers first respond to a call for service, they document on a preprinted form (or digital form) what they saw and heard when they arrived at the scene of the incident. Those reports often are referred to by the press and public as "police reports." Caselaw interpreting the exemption for specific investigatory work product calls them "incident" reports or "offense/incident" reports—which often is the title that appears at the top of the form.

Incident reports are not specific investigatory work product, and so are public records. E.g., State ex rel. Miller v. Pinkney, 149 Ohio St.3d 662, 77 N.E.3d 915, 2017-Ohio-1335.

Because initial offense incident reports are public records, a narrative attached to an incident report must be disclosed without redaction even though it contains the name of an uncharged suspect. State ex rel. Beacon Journal Publishing Co. v. Maurer, 91 Ohio St. 3d 54, 741 N.E.2d 511, 2001-Ohio-282.

But the Ohio Supreme Court later addressed its decision in Maurer, saying that Maurer “did not adopt a per se rule that all police offense-and-incident reports are subject to disclosure notwithstanding the applicability of any exemption.” State ex rel. Cincinnati Enquirer v. Ohio Dep't of Pub. Safety, 148 Ohio St. 3d 433, 442, 71 N.E.3d 258, 267, 2016-Ohio-7987, ¶ 44.

The court noted that it had ruled a decade earlier that an incident report could be redacted to delete personal information about a child rape victim. State ex rel. Beacon Jrnl Pub. Co. v. City of Akron, 104 Ohio St.3d 399, 819 N.E.2d 1087, 2004-Ohio-6557.

In the Cincinnati Enquirer case decided in 2016, the court declined to rule that all video and audio recordings from police squad car dash-cameras are per se outside the exemption for specific investigatory work product. In that case, the court ruled that some of the recording documented specific investigatory work produce, and some did not. The court ruled that the exemption applied to the part of the recording where police questioned a suspect after advising him of his Miranda rights.

The exemption for specific investigatory work-product ceases to apply to investigatory records once the trial for which the records were generated is over. State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 89 N.E.3d 598, 2016-Ohio-8394 (overturning State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994), which held that the work-product exemption continued to apply until all trial and post-trial proceedings are over and the criminal defendant has no possibility of retrial, and State ex rel. WLWT–TV5 v. Leis, 77 Ohio St.3d 357, 360, 673 N.E.2d 1365 (1997), which held that the exemption applied “until all proceedings are fully completed.”).

h. Information that would endanger the life or physical safety of at least one of these kinds of people:

• law enforcement personnel;

• a crime victim (which is almost always an accusing witness);

• a witness (which would include the victim);

• a confidential informant (called a "confidential information source").

The proponent of this exemption must show that "disclosure of the records will really pose a risk." State ex rel. Lippitt v. Kovacic, 70 Ohio App. 3d 525, 591 N.E.2d 422 (Cuya. App. 1991).

Apart from the exemption, the Ohio Supreme Court and the United States Court of Appeals for the Sixth Circuit, whose jurisdiction includes Ohio, have interpreted the 14^th Amendment to the United States Constitution as barring the release of records to protect law enforcement officers from potential threats to their safety. If release of the records would place a law enforcement officer at substantial risk of death or serious bodily harm, a public office cannot release the records even if the Public Records Act would require a public office to release it. State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999); Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998); but see Kallstrom on remand, 165 F.Supp.2d 686 (S.D. Ohio 2001) (same police officers had no constitutional privacy interest where much of the information claimed to be constitutionally-protected was already in the public domain). 

x. Records the release of which is prohibited by state law. Ohio Rev. Code § 149.43(A)(1)(v). The Ohio Revise Code contains hundreds of separate provisions excluding classes of records as "public records."

It is possible that a protective order, issued by a judge, may qualify a confidential settlement for the state law exemption, thus maintaining the secrecy of the settlement terms. See State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St. 3d 126, 781 N.E.2d 163 (2002).

The Ohio Supreme Court has adopted principles grounded in the constitutional separate of powers to find an executive privilege for the Ohio Governor’s internal communications. See State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 368-380, 848 N.E.2d 472, 477-487, 2006-Ohio-1825 ¶¶ 20-74.

y. Records the release of which is prohibited by federal law. Ohio Rev. Code § 149.43(A)(1)(v).

The Ohio Supreme Court has ruled that the federal Copyright Act barred a county engineer from releasing digital copies of public records where the county would also have to release a copy of copyright-protected software to make the records readable. State ex rel. Gambill v. Opperman, 135 Ohio St.3d 298, 986 N.E.2d 931, 2013-Ohio-761.

The United States Court of Appeals for the Sixth Circuit and the Ohio Supreme Court have interpreted the federal constitutional right of privacy as barring release of public records if the release poses a substantial risk of death or serious bodily harm, specifically to law enforcement officers, but the principle could apply to anyone. Kallstrom v. City of Columbus, 136 F.3d 1055 (1998) (names, addresses, drivers licenses of alleged undercover police officers contained in police personnel files when requested by attorney for dangerous criminal defendants); but see Kallstrom on remand, 165 F.Supp.2d 686 (S.D. Ohio 2001) (same police officers had no constitutional privacy interest where much of the information claimed to be constitutionally-protected was already in the public domain). 

See also State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999) (relying on the federal court of appeals' ruling in Kallstrom); State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 725 N.E.2d 1144, 2000-Ohio-345 (home addresses and telephone numbers for minors who applied for identification badges to facilitate use of municipal recreation facilities to requester who posed no demonstrated threat of harm).

The Ohio Supreme Court also has applied the 14^th Amendment right to informational privacy to social security numbers of public employees because releasing the social security numbers posed a threat that someone might use them for identity theft. State ex rel. Beacon Journal Publishing Co. v. City of Akron, 70 Ohio St.3d 605, 640 N.E.2d 164 (1994).

1. Personnel records.May be kept confidential if they relate to internal personnel investigations or where disclosure would constitute a clearly unwarranted invasion of the personal privacy of the employee. Also, any college transcripts contained in the files are confidential except as to the degree obtained and the curriculum on the transcripts of certified public employees. The home address, telephone number and Social Security number of any current or former employee shall be kept confidential. 51 O.S. § 24A.7; see also 1999 OK AG 30. The Oklahoma Attorney General has concluded that a public body has the discretion to determine whether disclosing a personnel record indicating the date of birth of an employee is an unwarranted invasion of personal privacy. 2009 OK AG 3. However, the Oklahoma Supreme Court has held that releasing the birth dates and employee identification numbers of state employees would constitute a clearly unwarranted invasion of personal privacy. Okla. Public Employees Assoc. v. State ex rel Okla. Office of Personnel Management, 2011 OK 68. Further, when an employee of a public body has been placed on administrative leave with pay, the public body may keep the employee’s name confidential, provided that placement on administrative leave with pay does not represent a final disciplinary action. 2009 OK AG 33.
2. Law enforcement records.May be kept confidential if they do not fit into the ten specific categories of records to be made available for public inspection or if they are not made open by other state or local laws. 51 O.S. § 24A.8(A)(1)–(10). Access to the records may be denied unless the Court finds a public interest or individual interest outweighs the reason for denial. 51 O.S. § 24A.8(A)–(D). Registration maintained by the Department of Corrections pursuant to the Sex Offenders’ Registration Act are open to public inspection. 51 O.S. § 24A.8(D), see also 57 O.S. § 584(E)–(F). The Council on Law Enforcement Education and Training (CLEET) maintains confidential records related to law enforcement officers subject to few exceptions. 51 O.S. § 24A.8(E). Oklahoma Highway Patrol (OHP) records related to things like training, procedures of a tactical nature, radio log information, etc. are confidential. 51 O.S. § 24A.8(F).
3. Personal notes.Notes prepared as an aid to memory or research leading to adoption or implementation of a public act may be kept confidential prior to the time the action is taken. However, if the materials are part of a departmental budget request the exemption does not apply. 51 O.S. § 24A.9.
4. Bids, appraisals, etc.Bid specifications, contents of sealed bids, computer programs, appraisals of real estate and prospective locations of private business or industry may be kept confidential if disclosure would give an unfair advantage to competitors or bidders. This does not include records which would otherwise be open to inspection such as applications for permits or licenses. 51 O.S. § 24A.10(A)–(B). The Oklahoma Department of Commerce, the Oklahoma Department of Career and Technology Education, the technology center school districts, the Oklahoma Film and Music, and institutions within the Higher Education system may keep much of their activities confidential. 51 O.S. § 24A.10(C). A public body that performs billing or collection services for a utility regulated by the Corporation Commission may keep confidential any customer or individual payment data obtained or created by the public body. 51 O.S. § 24A.10(D).
5. Market research and marketing plans. The Oklahoma Medical Center may keep confidential certain market research and marketing plans if disclosure would give an unfair advantage to competitors of the center. 51 O.S. § 24A.10a.
6. Library archive or museum materials.Donated materials may be kept confidential if the donor has imposed limitations. The identity of the individual may be kept secret if anonymity is a condition of the donation. See 2002 OK AG 27. However, if a tax deduction is claimed with the donation, the public body must make available the date of the donation, the appraised value claimed for the donation for tax purposes and a general discussion of the materials donated. 51 O.S. § 24A.11.
7. Litigation and investigatory files.The Oklahoma Attorney General, District Attorneys and Municipal Attorneys may keep litigation files confidential. 51 O.S. § 24A.12. A district attorney may keep confidential records contained in litigation files. 1999 OK AG 58. However, access to a document that would otherwise be available for inspection and copying cannot be denied because a public official or agency has taken possession of the document and placed it in a litigation file. 51 O.S. § 24A.20.
8. Federal records. Records coming into possession of a public body either from a federal agency or as a result of federal legislation may be kept confidential to the extent required under federal law. 51 O.S. § 24A.13. Nursing registry information required to be compiled by federal law is exempt from disclosure under the Act. 2001 OK AG 7.
9. Communications Received by Public Official. Personal communications made to a public official by a person exercising a state or federal constitutional right may be kept confidential except that the public official must acknowledge receipt of the communication and whether the communication is or is not a complaint. The rights secured relate only to those associated with the government’s power to redress grievances. 1988 OK AG 86. Any official response may be kept confidential only to the extent necessary to protect the individual’s identity. 51 O.S. § 24A.14. Further, records created by a public body after receipt of the complaint must be open to the public for review with the public body taking whatever steps are necessary to protect the identity of the complainant. Bd. of Med. Licensure v. Miglaccio, 1996 OK CIV APP 37. The Oklahoma Attorney General has also determined that a written request for the issuance of a formal written Attorney General Opinion made by a member of the Legislature or another public official is a record under the Act and must be made available upon request. 2015 OK AG 3.
10. Crop and livestock reports.Reports provided by farmers, ranchers and agribusinesses to the Division of Agricultural Statistics may be kept confidential to the extent the report identifies the individual. 51 O.S. § 24A.15.
11. Educational records and materials. Such records may be kept confidential to the extent that the documents are individual student records, teacher lesson plans, tests and other material, and personal communications about the individual students. Statistical information which does not identify a particular student and directory information must be made available. Directory information may be withheld if the parent of the individual student notifies the school that the information should not be released. 51 O.S. § 24A.16.
12. Donor Information. Oklahoma State System of Higher Education may keep confidential all information pertaining to donors and prospective donors to or for the benefit of its institutions or agencies. 51 O.S. § 24A.16a.
13. Research Records. Information related to research done by a public body may be kept confidential when the disclosure of such information may affect the proprietary rights the public entity may have in the research and results of such research. 51 O.S. § 24A.19.
14. Public Utilities. Corporation Commission, and all entities regulated by the Commission, shall keep confidential those records of a public utility, its affiliates, suppliers and customers which are determined to be confidential books and records or trade secrets. 51 O.S. § 24A.22.
15. Department of Wildlife Conservation.The Department shall keep confidential the information provided by persons, including the name and address of the person, applying for or holding any permit or license issued by the Department, to the extent the information individually identifies the person. This does not apply to information provided by persons applying for or holding a commercial hunting or fishing license. 51 O.S. § 24A.23(A). The Department shall also disclose online or in published listings the antler description of each deer harvested and the name of the hunter who harvested the deer unless the hunter elects to not have his named released. 51 O.S. § 24A.23(D).
16. Office of Juvenile System Oversight. The Office may keep its investigatory records and notes confidential, unless ordered by a court of competent jurisdiction to disclose the information. 51 O.S. § 24A.24.
17. Intergovernmental self-insurance pools. These self-insurance pools may keep proprietary information confidential. 51 O.S. § 24A.26.
18. Vulnerability assessments of critical assets. State environmental agencies or public utilities may keep confidential vulnerability assessments of critical assets in both water and wastewater systems. 51 O.S. § 24A.27.
19. Act or Threat of Terrorism. All information relating to the investigation, deterrence, prevention or protection from an act or threat of terrorism including informational technology related to same is considered confidential pursuant to 51 O.S. § 24A.28. The Act also carves out several additional exceptions in § 24A.28. For example, records received, maintained and generated by the Department of Environmental Quality that contain information regarding sources of radiation in quantities deemed significant to public health and safety are considered confidential. 51 O.S. § 24A.28(A)(9). As are the names of school district personnel who have been designated to a carry firearm in school. 25 O.S. § 24A.28(A)(10). Information technology of the State Election Board or a county election board which is determined jointly by the Secretary of the State Election Board and the State Chief Information Officer to be technology that could reasonably be expected to be useful to persons with intent to interfere with the conduct of an election, voter registration or other election processes is also considered confidential. 51 O.S. § 24A.28(A)(11). Further, records received, maintained, or generated by the Oklahoma Municipal Power Authority and in its role as an electric utility regulated by the federal government, related to security plans and procedures including, but not limited to, cybersecurity matters are confidential. 51 O.S. § 24A.28(A)(12). Finally, campus security plans of public educational institutions may be kept confidential. 51 O.S. § 24A.28(D)(1).
20. Protective Orders. Protective orders directing the withholding or removal of pleadings or other materials from a public record may only be issued after a court has determined it is necessary in the interests of justice. 51 O.S. § 24A.29. The Oklahoma Supreme Court has stated that there are no provisions in the Open Records Act that allow parties to simply agree to seal a public record and submit a summary agreed order to the court. Shadid v. Hammond, 2013 OK 103; see alsoOber v. State ex rel. Dep’t of Public Safety, 2016 OK CIV APP 2 (appellate court reversed a trial court’s issuance of a protective order that sealed the entire record and prevented public knowledge of teacher’s conviction for driving under the influence and revocation of teacher’s driver’s license).
21. Wine Shipment Records. Reports, known as “Confidential Wine Shipment Reports,” produced in compliance with 37A O.S. § 3-106 may be kept confidential by public bodies. 51 O.S. § 24A.31.
22. Multidisciplinary Child Abuse Teams Reports. Reports produced or information received by the multidisciplinary child abuse team established according to 10A O.S. § 1-9-102 are confidential. 51 O.S. § 24A.32.
23. Confidential Contact Information. Any contact information of persons or entities responsible for emergency contracts and property maintenance and the names of persons or entities in this state authorized to receive notice and service of process for property outlined in 11 O.S. § 22-110.1 shall be kept confidential by the requesting municipal governments. 51 O.S. § 24A.33.

Exemptions under ORS 192.345 (formerly ORS 192.501). Each of these exemptions is conditional, that is, even if its scope applies, the exemption is subject to whether “the public interest requires disclosure in the particular instance.” The burden of proving the applicability of any exemption under ORS 192.345 (formerly ORS 192.501) is on the public body. Moreover, there is always a presumption in favor of disclosure. Guard Publ’g Co. v. Lane Cnty. Sch. Dist. No. 4J, 310 Or. 32, 791 P.2d 854 (1990); Turner v. Reed, 22 Or. App. 177, 538 P.2d 373 (1975). The identity of the requester and her motives are not relevant in determining whether the request falls within the scope of the exemption. They are relevant, however, if the question of the public interest in disclosure is reached.

(1) Records of a public body pertaining to litigation in which the public body is a party or where the public body shows that such litigation is reasonably likely to occur. This exemption applies only to those records compiled or acquired by the public body for use in existing or demonstrably expected litigation and not records collected in the ordinary course of business, even if subsequently relevant to litigation. Lane Cnty. Sch. Dist. v. Parks, 55 Or. App. 416, 637 P2d 1383 (1981). It does not apply to administrative proceedings or to litigation that has been concluded.

(2) Trade Secrets. Trade secrets are defined by statute as non-patented formula, plans, processes, production data and similar information. In order to qualify for the exemption, the information must be known only to certain persons within an organization, be used for business purposes, have an actual or potential commercial value, and give a user an opportunity to obtain a business advantage over competitors. Fee schedules and price lists may qualify. The “trade secret” definition in the Oregon statute is somewhat narrower than in the Uniform Trade Secrets Act, and this relationship is not clear.

(3) Investigatory information compiled for criminal law purposes, other than the record of an arrest or the report of a crime, unless there is a clear need in a particular case to delay disclosure of an arrest or crime report. Disclosure of arrest information or the report of a crime may be delayed only if and for so long as a clear need is shown, including protection of the victim or complaining party. Again, this is a conditional exemption, and the public interest may require disclosure.

(4) Test questions, scoring keys, and other licensing examinations or employment testing data. The statute also covers procedures relating to administration and grading of examinations where the results might be affected by disclosure. This exemption is designed to protect the integrity of the testing or examination process.

(5) Production, sale or purchase records or other private records required by law to be submitted to a public agency in order to determine fees or assessments and the amounts of fees or assessments payable. This exemption applies only if the information would permit identification of a specific business concern. The exemption does not cover business records submitted in connection with an application for a license or permit because this information is not utilized to determine a fee or assessment for establishing a production quota.

(6) Real estate appraisals provided prior to acquisition. This exemption applies where the public body is interested in acquiring or condemning (but not disposing of) real property.

(7) Names of employees requesting representation or decertification elections. This exemption is applicable only to information on specific individuals, not to the number of employees who have voted for or against such actions.

(8) Investigatory information relating to a complaint filed with the Bureau of Labor. This exemption does not apply to the complaint itself. The exemption also does not apply when the complaint is resolved or a final order is issued.

(9) Investigatory information relating to unfair labor practice complaints. Again, the complaint itself is not exempt.

(10) Reports or information received or compiled by the Director of the Department of Consumer and Business Services. This relates to investigations and enforcements concerning debt consolidating agencies.

(11) Information relating to location of archeological sites or objects except in cases where a governing body of an Indian tribe requests such information for purposes of the tribe’s cultural or religious activities. This exemption does not apply to commonly known and publicized tourist facilities or attractions.

(12) Personnel discipline action or information supporting such action. This exemption relates only to records concerning a completed disciplinary action. It does not apply if an employee resigns. The Attorney General has taken the position that a public body may postpone fulfilling a request for records while a disciplinary action is still pending. The public interest may, in any event, require disclosure.

(13) Information developed under state statute regarding the habitat, location or population of any threatened or endangered species. This exemption is similar to the archeological site exemption, subsection (11) above.

(14) Writings prepared by, or under the direction of, faculty of public educational institutions completed in connection with research. This exemption applies only before the information is released, copyrighted or patented.

(15) Computer programs developed by a public body for its own use. This exemption does not pertain to original data or analyses of original data. The exemption includes information that would permit computer access.

(16) Agricultural producers mediation records. This applies to information in connection with certain agricultural foreclosure proceedings.

(17) Unsafe workplace investigations. This applies to workplace investigatory information but only until a final determination is made.

(18) Operational plans regarding threats to individual or public safety. This deals with anticipated threats to individuals or to public safety and applies where disclosure would endanger individuals or jeopardize law enforcement activity.

(19) Audits of a telecommunications utility. This exemption is designed to protect internal evaluations or critiques of the utility’s operations and financial statements required to be filed under state law. It does not protect an audit of a cost study that would be discoverable in a contested case dealing with rates or other matters.

(20) The residence address of an elector (voter) where a showing of a reasonable threat to personal safety is present. The withholding of such information must be at the request of the voter, accompanied by verifiable information demonstrating the basis of the threat. This is similar to the exemption under ORS 192.368 (formerly ORS 192.445).

(21) Housing authority information submitted by applicants for and recipients of loans, grants and tax credits. This exemption applies to a variety of financial information relating to low income housing developers.

(22) Records that, if disclosed, would allow unauthorized access to public property or would identify areas of structural or operational vulnerability allowing unlawful disruption of public services. This exemption protects the delivery of public services and permits withholding of building information and information that would allow access to public funds or information processing systems.

(23) Records that, if disclosed, would reveal security measures relating to public employees, public buildings, computer or telecommunications services or the secured operations of the Oregon Lottery. This is a companion provision to ORS 192.345(22) (formerly ORS 192.501(22)).

(24) Personal information held by Oregon Health Sciences University (OHSU) or referenced public universities relating to a person who has donated or is interested in donating to OHSU or a public university. The exemption applies to information that is personal in nature.

(25) Public university donation records. This exempts the home address, professional address and telephone number of any person who has donated or is interested in donating to a state university, regardless of what public body holds that information.

(26) Records of persons who file with or pay an assessment to certain state-created agricultural marketing groups. This exempts disclosure of the names and addresses of those filing.

(27) Financial transfer records. This exempts all information a public body possesses in relation to fund transfers.

(28) Social Security numbers related to marital annulment, dissolution or separation. Court records on these subjects must redact SSN information.

(29) Student e-mail addresses. This exempts all e-mail addresses of students attending referenced public universities or OHSU.

(30) OHSU medical researcher information. This exempts the personal information and location of those conducting research using animals.

(31) Certain personal information of public safety officers, if requested.

(32) Personal information of certain government attorneys that is contained in deeds and records not in records of the county clerk. This exempts certain personal information if requested by prosecuting attorneys, except that certain financial, mortgage, and title companies may successfully request such information.

(33) Certain land management plans and conservation agreements.

(34) Sensitive records of the Oregon State Accident Insurance Fund Corporation (SAIF). This exempts sensitive business, financial, and commercial information of SAIF that is “not customarily provided to business competitors,” with certain enumerated exceptions.

(35) Records of pending investigations by the Department of Public Safety Standards and Training. This exempts information relating to investigations conducted under ORS 181A.640 (formerly ORS 181.662) or ORS 181A.870 (6) (formerly ORS 181.878 (6)), until the department issues the report described in ORS 181A.640 or ORS 181A.870 (formerly ORS 181.662 and ORS 181.878).

(36) Medical examiner’s reports. This exempts a medical examiner’s report, autopsy report or laboratory test report ordered by a medical examiner under ORS 146.117.

(37) Audit-related materials of auditors related to audits of public bodies prior to issuance of final reports, with exceptions.

(38) Personally identifiable information concerning electronic fares related to public transit.

(39) Personal information of civil code enforcement officers, upon request.

(40) Police body camera audio and video recordings of interactions with the public.

Exemptions which either are unconditional or have a self-contained balancing test concerning the public interest. ORS 192.355 (formerly ORS 192.502).

(1) Communications within a public body or between public bodies of an advisory nature. This exemption applies to matters which are not factual and are preliminary. It applies only if the public body demonstrates in a particular instance that the interest in encouraging “frank communication” between public officials “clearly outweighs” the public interest in disclosure. Drafts of materials and preliminary reports are subject to this exemption. Attorney General’s Manual, § I.G.b(1). Factual matters must be disclosed in any event.

(2) Information of a personal nature, including but not limited to the type of information kept in a personal, medical or similar file, if public disclosure of the information would constitute an “unreasonable invasion of privacy.” This exemption applies only to information of a personal nature. The public body has the burden of establishing this. Moreover, it must be established that disclosure would constitute an unreasonable invasion of privacy, that is, disclosure would be “highly offensive” to a reasonable person. Even if this is shown, disclosure is appropriate if, by clear and convincing evidence, it is shown that the public interest requires it.

(3) Public employee or volunteer addresses, birthdates, Social Security and telephone numbers maintained by a public agency. This exemption does not apply to elected officials except judges and district attorneys, or to substitute teachers when requested by the teacher’s professional union, and it does not apply when the party seeking disclosure shows by clear and convincing evidence that the public interest requires disclosure. By amendment in 2015, the party seeking disclosure must satisfy the requirements of ORS 192.363 to obtain the records, and the public body must follow the specified process therein as well.

(4) Information submitted to a public body in confidence where such information is not required by law to be submitted. This exemption employs a five-part test: first, the information was submitted on the condition it would be kept confidential; second, the information was not required by law to be submitted; third, the information should reasonably be considered confidential; fourth, the public body must have committed itself, in good faith, to keep the information confidential; and finally, the public interest would suffer if the information were disclosed.

(5) Information or records of the Department of Corrections (including State Parole Board) to the extent that disclosure would interfere with rehabilitation. This exemption does not apply unless the interest in confidentiality “clearly outweighs” the public interest in disclosure.

(6) Records, reports and other information compiled by the Director of the Department of Consumer and Business Services relating to lending institutions. This exemption applies only where the interests of lending institution officers, employees and customers in preserving confidentiality outweigh the public interest in disclosure.

(7) Pre-sentence reports, reports of probation officers and victims statements. This exemption incorporates statutes prohibiting disclosure.

(8) Any records which are prohibited from disclosure by federal law or regulations. The Attorney General concludes that this exemption applies even if the federal law enforces nondisclosure only indirectly, through loss of funds.

(9) Records or information prohibited or restricted or otherwise made confidential or privileged under Oregon law. This is an unconditional exemption relating to numerous statutes found outside of the Public Records Law. It includes evidentiary privileges, although it includes a limitation on the attorney-client privilege under certain circumstances. The Attorney General's Manual gathers many of these provisions in its Appendix F.

(10) Public records otherwise exempt which are transferred between or among public agencies. This exemption is designed to ensure that an otherwise applicable exemption applies when records are transferred to another agency if the relevant records were originally exempt or confidential. Under ORS 192.311(2) (formerly ORS 192.410(1)), the custodian of a public record does not include a public body that has custody only as agent of another public body, unless the record is not otherwise available.

(11) Records of the Energy Facility Siting Council concerning security programs. This exemption generally relates to security of nuclear power plants.

(12) Employee and retiree personal information obtained by the Public Employees’ Retirement System. This relates to personal financial information to be released only to the individuals it concerns.

(13) Records submitted by private persons or businesses to the State Treasurer or to the Oregon Investment Council relating to matters under consideration for public investment. This exemption applies only to the extent that disclosure of such records would reasonably be expected to limit the ability of the Oregon Investment Council to compete effectively in pursuit of investment objectives. This exemption does not apply to concluded transactions.

(14) Certain investment records of or submitted to the State Treasurer, the Oregon Investment Council, the Oregon Growth Account Board or the agents of those entities relating to investments in private investment funds under ORS 293 or 348. Exempts background material such as financial statements, portfolio information, and agreements, but does not exempt information on the identity of funds and the value of investments.

(15) Monthly reports concerning the Public Employees’ Retirement Fund and Industrial Accident Fund. This exemption applies to such records for a period of 90 days at the end of each calendar quarter.

(16) Reports of abandoned property until such time as the Director of the Division of State Lands has provided public notice thereof. This exemption applies for two years only.

(17) Records submitted to various economic development organizations. This exemption covers personal financial statements, certain agribusiness records, customer lists, marketing strategies, and negotiations where information is provided by applicants “for loans or services.”

(18) Reports submitted by private concerns used for computation of a transient lodging tax where the report would allow identification of the private concern. If the tax is delinquent for more than 60 days, however, disclosure of the identifying information shall occur, along with other data about the delinquency.

(19) Information supplied for purposes of requesting court-appointed legal counsel. Exempts personal information submitted to obtain indigent defense.

(20) Workers’ compensation claim records. Under certain limited circumstances, these records can be released to insurers or government agencies.

(21) Sensitive business records of Oregon Health Sciences University (OHSU). This relates to records “not customarily provided to business competitors.”

(22) Records of OHSU regarding candidates for university president.

(23) Library records showing use of library materials by a named person. This exemption permits, but does not require, libraries to shield information about their patrons.

(24) Financial information submitted by applicants for, and recipients of, low income loans, grants and tax credits through the state Housing and Community Services Department.

(25) Geographic information submitted by private forestland owners, voluntarily and in confidence to the State Forestry Department not otherwise required by law to be submitted.

(26) Sensitive business records concerning the sale or purchase of electric power, where a competitive disadvantage would result. This applies to community-owned utilities.

(27) Sensitive business records submitted to or developed by the City of Klamath Falls relating to the Klamath Cogeneration Project.

(28) Personally identifiable public utility customer information. This now extends to all identifying information of customers of electric utilities and those public bodies that provide water, sewer, or storm drain services.

(29) A record of a person’s address submitted to a special district for bus, carpool, or similar public transit purposes.

(30) Sensitive business records relating to Oregon Corrections Enterprises not customarily provided to business competitors.

(31) Confidential submissions to the Department of Consumer and Business Services.

(32) County election security plans. Exempts plans pursuant to ORS 254.074.

(33) Security programs concerning utilities, petroleum, telecommunications, and data transmission.

(34) Information concerning paternity or support judgments or orders as designated by the Chief Justice of the Oregon Supreme Court.

(35) Employer account records of the State Accident Insurance Fund Corporation (SAIF). Exempts all records specifically related to an employer’s account records at SAIF.

(36) Claimant files of the State Accident Insurance Fund Corporation (SAIF). Exempts all SAIF files and associated records of any person who has made a claim as defined in ORS 656.005.

(37) Military discharge records. Exempts, except as authorized by ORS 408.425, “records that certify or verify an individual’s discharge or other separation from military service.”

(38) Personal information related to visitors of domestic violence service and resource centers.

(39) Certain information reported to the Oregon Health Authority concerning prescription monitoring.

(40) Electronic mail addresses in the custody of public bodies, with the exception of e-mail addresses of employees used in their ordinary course of employment, with some exceptions. The Attorney General takes the position that the purpose of this exemption is to allow custodians to refuse requests for e-mail lists to send unsolicited e-mails or spam. Attorney General's Manual § I.G.b(40).

(41) Personal information of individuals certified or licensed by the Department of Public Safety Standards and Training contained in the records maintained by the department.

(42) Personally identifiable information about veterans obtained by the Department of Veterans’ Affairs.

65 Pa. Stat. Ann. § 67.708, which is divided into 30 subparts, consists of general and specific records exceptions. The exceptions follow below.

(1) “A record the disclosure of which: (i) would result in the loss of Federal or State funds by an agency or the Commonwealth; or (ii) would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual.”

The old Act included nearly identical records exceptions.

First, the old act provided an exemption for records that “if disclosed would result in loss by the Commonwealth or any subdivision or authority of federal [but not state] funds, except records of criminal convictions.” (emphasis added).  The old exemption was rarely invoked.  Moreover, it was understood to apply only when federal law mandated the loss of federal funds for records disclosures.  See Envirotest Partners v. Commonwealth Dep’t of Transp., 664 A.2d 208 (Pa. Commw. Ct. 1995) (explaining that “the possibility that an agency would lose [f]ederal funds is insufficient to trigger an exemption from inspection under the Act”) (emphasis added) (citing Ryan v. Pa. Higher Educ. Assistance Agency, 448 A.2d 669 (Pa. Commw. Ct. 1982) (determining that contracts not exempt from disclosure when no federal law or regulation mandated that federal funds be cut off if public access to the contracts was allowed).  In a more recent decision, the Commonwealth Court recognized that the same standard applies when an agency invokes this exemption.  Cent. Dauphin Sch. Dist. v. Hawkins, 199 A.3d 1005, 1016 (Pa. Commw. Ct. 2018).

Second, the old Act also contained an exemption for records “which if disclosed would operate to prejudice or impair a person’s reputation or personal security.”  Originally, in decisions applying that exception, Pennsylvania courts interpreted “personal security” solely as “freedom from harm, danger, fear or anxiety.” See Times Publ’g Co., Inc. v. Michel, 633 A.2d 1233 (Pa. Commw. Ct. 1993). The cases required disclosure of information to be “‘intrinsically harmful’ to fall within the personal security exception to the Act.” Id. (quoting Moak v. Phila. Newspapers, Inc., 336 A.2d 920 (Pa. Commw. Ct. 1975)).

In Times Publishing, the Commonwealth Court expanded upon the exception, applying it to “personal security” information (i.e., addresses, telephone numbers, and social security numbers of firearm applicants). The court “decided that deference to personal privacy rights must be accommodated pursuant to the ‘personal security’ exception in the [former Act].”  Pa. State Edu. Ass’n v. Pa. Dep’t of Cmty. and Econ. Dev., 148 A.3d 142, 153 (Pa. 2016) (PSEA) (citing Times Publ’g, 633 A.2d at 1239).  The court also “found that when evaluating claims involving constitutional privacy interests related to . . . requests for personal information [under the old Act], courts must ‘apply a balancing test, weighing privacy interests and the extent to which they may be invaded, against the public benefit which would result from disclosure.’”  Id. (quoting Times Publ’g, 633 A.2d at 1239).

Following Times Publishing, the Supreme Court of Pennsylvania adopted the Commonwealth Court’s analysis in a trilogy of cases.  See Sapp Roofing Co. v. Sheet Metal Workers' Int'l Ass'n, Local Union No. 12, 713 A.2d 627 (Pa. 1998) (plurality); Pa. State Univ. v. State Emps.’ Ret. Bd., 935 A.2d 530 (Pa. 2007); Tribune–Review Publ’g Co. v. Bodack, 961 A.2d 110 (Pa. 2008).  According to the Supreme Court of Pennsylvania, “the determination of whether personal information [could] be disclosed [under the old law] require[d] a balancing to assess whether the privacy interests outweigh[ed] the public’s interest in the dissemination of the information.”  PSEA, 148 A.3d at 153-54.

In the current Law, the Legislature clearly retained the personal-security exemption.  And in 2016, the Pennsylvania Supreme Court reversed a Commonwealth Court decision that ruled there is no constitutional right to privacy in one’s home address, in connection with requests under the current Law.  PSEA, 148 A.3d at 158.  According to the Supreme Court, the “right to informational privacy is guaranteed by Article 1, Section 1 of the Pennsylvania Constitution, and may not be violated unless outweighed by a public interest favoring disclosure.”  Id.  Accordingly, the Supreme Court ruled that the prior analysis under the old Act applies to personal-security information that agencies attempt to shield from disclosure under the personal-security exemption in the current Law.  Applying the balancing test, the court concluded that the public school employees’ strong privacy interest in their home addresses outweighed any public interest in disclosure of that information.  Id.

In terms of the “physical harm” aspect of this exemption, agencies cannot satisfy the “reasonably likely” burden by relying on speculation or conjecture.  See, e.g., Cal. Borough v. Rothey, 185 A.3d 456, 468 (Pa. Commw. Ct. 2018) (holding that where the agency’s evidence solely consisted of speculation or conjecture about security-related exceptions under the RTKL, 65 Pa. Stat. Ann. § 67.708(b)(2), the trial court did not err in ruling that public-safety exception did not apply to video recording of a holding cell at the Borough Police Department).

An agency must present sufficient evidence supporting the proposition that disclosure would be more likely than not to cause physical harm to an individual. Pa. State Troopers Ass’n v. Scolforo, 18 A.3d 435 (Pa. Commw. Ct. 2011); but see id. at 443 (J. McCullough, concurring) (stating that the test under Section 708 is clearly a reasonable likelihood of physical harm).

(2) “A record maintained by an agency in connection with the military, homeland security, national defense, law enforcement or other public safety activity that if disclosed would be reasonably likely to jeopardize or threaten public safety or preparedness or public protection activity, or a record that is designated classified by an appropriate Federal or State military authority.”

As with all of the “reasonably likely” thresholds contained within certain exceptions, agencies asserting this exception cannot satisfy their burden by relying on speculation or conjecture. See, e.g., Rothey, 185 A.3d at 468 (holding that where the agency’s evidence solely consisted of speculation or conjecture about security-related exceptions under the RTKL, the trial court did not err in ruling that public-safety exception did not apply to video recording of a holding cell at the Borough Police Department).

65 Pa. Stat. Ann. § 67.102 also supplies definitions pertinent to this exemption:

“Homeland security” is defined by the Law to mean: “Governmental actions designed to prevent, detect, respond to and recover from acts of terrorism, major disasters and other emergencies, whether natural or manmade.” The term includes activities relating to the following: (1) emergency preparedness and response, including preparedness and response activities by volunteer medical, police, emergency management, hazardous materials and fire personnel; (2) intelligence activities; (3) critical infrastructure protection; (4) border security; (5) ground, aviation and maritime transportation security; (6) biodefense; (7) detection of nuclear and radiological materials; and (8) research on next-generation securities technologies.  65 Pa. Stat. Ann. § 67.102.

“Terrorist act” is defined as a “violent or life-threatening act that violates the criminal laws of the United States or any state and appears to be intended to: (1) intimidate or coerce a civilian population; (2) influence the policy of a government; or (3) affect the conduct of a government by mass destruction, assassination or kidnapping.”  Id.

In addition, “Supervision Strategies” employed by Board of Probation and Parole (the “Board”) employees to monitor sex offenders also fall within this exemption. Woods v. Office of Open Records, 998 A.2d 665 (Pa. Commw. Ct. 2010). The Commonwealth Court reasoned that releasing “Supervision Strategies” might aid sex offenders wishing to avoid Board supervision and monitoring, and thus facilitate recidivism. Id.  “The critical factor in th[e] [c]ourt’s decision was the detail which the affiant provided regarding the substance of the records and the ways in which a sex offender might use the information to evade or avoid detection.”  Pa. State Police v. ACLU, 2018 WL 2272597, at *3 (Pa. Commw. May 18, 2018) (internal citations omitted).

(3) “A record, the disclosure of which creates a reasonable likelihood of endangering the safety or the physical security of a building, public utility, resource, infrastructure, facility or information storage system, which may include: (i) documents or data relating to computer hardware, source files, software and system networks that could jeopardize computer security by exposing a vulnerability in preventing, protecting against, mitigating or responding to a terrorist act; (ii) lists of infrastructure, resources and significant special events, including those defined by the Federal Government in the National Infrastructure Protections, which are deemed critical due to their nature and which result from risk analysis; threat assessments; consequence assessments; antiterrorism protective measures and plans; counterterrorism measures and plans; and security and response needs assessments; and (iii) building plans or infrastructure records that expose or create vulnerability through disclosure of the location, configuration or security of critical systems, including public utility systems, structural elements, technology, communication, electrical, fire suppression, ventilation, water, wastewater, sewage and gas systems.”

Relevant to this exemption, the Pennsylvania Emergency Management Agency (PEMA) must disclose records of goods and services purchased with Department of Homeland Security grant funds unless disclosure is “reasonably likely” to endanger public infrastructure. See Bowling v. Office of Open Records, 990 A.2d 813 (Pa. Commw. Ct. 2010). Although the court recognized “the enormity of the task before PEMA,” it held that PEMA cannot redact the names of all recipients of goods or services purchased with such funds. Id. at 826. Instead, the court held that PEMA must analyze its documents to determine the “reasonable likelihood” of a threat to the Commonwealth’s infrastructure resulting from disclosure. Id. at 825-26.

Additionally, in Mission Pennsylvania, LLC v. McKelvey, the Commonwealth Court reversed the OOR’s final determination that the objecting parties did not meet their evidentiary burden to prove that the exemption applied to “minimal redactions” made to applications under the Medical Marijuana Act.  --- A.3d ----, 2019 WL 2345090 (Pa. Commw. Ct. 2019).  The redactions related to physical features and security measures of permitted medical-marijuana facilities.  The court held that the record supported the redactions under the exemption.  To that end, the court concluded that the objecting parties satisfied the “reasonable likelihood” threshold.  Moreover, the court noted that the medical marijuana industry (a “cash-based industry”) involves “inherent risk” such that “disclosure of security measures and locations of surveillance systems presents a credible threat to physical security of facilities that amounts to more than mere speculation.”  Id. at *10.

(4) “A record regarding computer hardware, software and networks, including administrative or technical records, which, if disclosed, would be reasonably likely to jeopardize computer security.”

(5) “A record of an individual's medical, psychiatric or psychological history or disability status, including an evaluation, consultation, prescription, diagnosis or treatment; results of tests, including drug tests; enrollment in a health care program or other program designed for participation by persons with disabilities, including vocation rehabilitation, workers' compensation and unemployment compensation; or related information that would disclose individually identifiable health information.”

In Department of Corrections v. St. Hilaire, a news reporter requested from the DOC, among other items, all records “that document inmate injuries.”  128 A.3d 859, 860 (Pa. Commw. 2015).  The DOC objected to the request on the basis of this exception.  The OOR, however, granted the reporter’s appeal “noting that the medical incident / injury reports maintained by the DOC could be de-identified and, hence, were not subject to the protections of Section 708(b)(5)  . . . or HIPAA.”  Id. at 862.  On petition to the Commonwealth Court, the DOC argued that the OOR erred by failing to conclude that this exception did not cover the requested inmate records.  The Commonwealth Court disagreed, holding that the exception does not apply to medical incident or injury reports.  Id. at 866.  The court rejected the notion that medical incident / injury reports may be transformed into an exempt medical record simply because those records might possibly contain medical information.  What is more, in this particular case, the evidence demonstrated that the DOC maintained incident / injury reports separate from an inmate’s medical file.  Furthermore, the requestor did not request reports that contained identifiable information.  Even so, the court noted that such information could be redacted from disclosed records.  Cf.Uniontown Newspapers, Inc. v. Dep’t of Corr., 151 A.3d 1196, 1206 (Pa. Commw. Ct. 2016) (recognizing that although the “DOC may be required to redact information from reports . . . [a]n inmate’s medical file is exempt, and not subject to redaction”) (citation omitted).

(6) “(i) The following personal identification information: (A) A record containing all or part of a person's Social Security number; driver's license number; personal financial information; home, cellular or personal telephone numbers; personal e-mail addresses; employee number or other confidential personal identification number. (B) A spouse's name; marital status, beneficiary or dependent information. (C) The home address of a law enforcement officer or judge. (ii) Nothing in this paragraph shall preclude the release of the name, position, salary, actual compensation or other payments or expenses, employment contract, employment-related contract or agreement and length of service of a public official or an agency employee. (iii) An agency may redact the name or other identifying information relating to an individual performing an undercover or covert law enforcement activity from a record.”

Although the Law provides examples of what type of information may qualify as “personal identification information,” the Law does not define the phrase.  Nevertheless, the Commonwealth Court has defined it as information “unique to a particular individual or which may be used to identify or isolate an individual from the general population.” Office of Lieutenant Governor v. Mohn, 67 A.3d 123, 133 (Pa. Commw. Ct. 2013) (holding that the government-issued “personal” e-mail address for the Lieutenant Governor fell within the personal identification information exemption); see also Office of the Governor v. Raffle, 65 A.3d 1105 (Pa. Commw. Ct. 2013) (en banc) (holding that government-issued cellular telephone numbers of agency employees are “personal identification information”).

With respect to “personal identification information,” 65 Pa. Stat. Ann. § 67.708(b)(6)(iii) gives law enforcement agencies the discretion to redact that information, including the name of undercover officers from records. See, e.g., Scolforo, 18 A.3d at 442.

Additionally, the Law defines “personal financial information” as: “An individual’s personal credit, charge or debit card information; bank account information; bank, credit or financial statements; account or PIN numbers and other information relating to an individual’s personal finances.”  65 Pa. Stat. Ann. § 67.102.  Under the Law’s definition, the number of hours an employee works at a third-party entity is not “personal financial information.” Scolforo, 18 A.3d at 442.

(7) “The following records relating to an agency employee: (i) A letter of reference or recommendation pertaining to the character or qualifications of an identifiable individual, unless it was prepared in relation to the appointment of an individual to fill a vacancy in an elected office or an appointed office requiring Senate confirmation. (ii) A performance rating or review. (iii) The result of a civil service or similar test administered by a Commonwealth agency, legislative agency or judicial agency. The result of a civil service or similar test administered by a local agency shall not be disclosed if restricted by a collective bargaining agreement. Only test scores of individuals who obtained a passing score on a test administered by a local agency may be disclosed. (iv) The employment application of an individual who is not hired by the agency. (v) Workplace support services program information. (vi) Written criticisms of an employee. (vii) Grievance material, including documents related to discrimination or sexual harassment. (viii) Information regarding discipline, demotion or discharge contained in a personnel file. This subparagraph shall not apply to the final action of an agency that results in demotion or discharge. (ix) An academic transcript.”

(8) “(i) A record pertaining to strategy or negotiations relating to labor relations or collective bargaining and related arbitration proceedings. This subparagraph shall not apply to a final or executed contract or agreement between the parties in a collective bargaining procedure. (ii) In the case of the arbitration of a dispute or grievance under a collective bargaining agreement, an exhibit entered into evidence at an arbitration proceeding, a transcript of the arbitration or the opinion. This subparagraph shall not apply to the award or order of the arbitrator in a dispute or grievance procedure.”

(9) “The draft of a bill, resolution, regulation, statement of policy, management directive, ordinance or amendment thereto prepared by or for an agency.”

In Philadelphia Public School Notebook v. School District of Philadelphia, the School District appealed the Court of Common Pleas’ holding that the requested full texts of resolutions presented during a public meeting of the School Reform Commission were not “drafts.”  49 A.3d 445 (Pa. Commw. Ct. 2012).  In the School District’s view, the summaries provided to the public of the resolutions were sufficient and the full texts were “drafts” that were not required to be disclosed.  To the latter point, the School District contended that “the nature of the [r]esolutions as ‘drafts’ was underscored . . . by the fact that the [School District’s] staff not only could, but actually did, withdraw the [r]esolutions before the [Commission’s] voting meeting.”  Id. at 451.  The Commonwealth Court rejected the School District’s contentions and affirmed the Court of Common Pleas’ holding that the texts of the resolutions were no longer “drafts” “once the School District presented them publicly for discussion among commissioners in a public venue where they were subject to questions from the public at the [Commission’s] public ‘planning’ meeting.”  Id. at 452.  The Commonwealth Court also observed that the failure to provide the full texts of resolutions to the public, for anticipated public comment and questioning, “potentially obfuscated public awareness and understanding of what the [Commission] was actually discussing and considering.”  Id. at 451-52.  In other words, without the full texts of the resolutions, the very reason for holding the public meeting in the first place was potentially undermined.  Id. at 452.

(10) “(i) A record that reflects: (A) The internal, pre-decisional deliberations of an agency, its members, employees or officials or pre-decisional deliberations between agency members, employees or officials and members, employees or officials of another agency, including pre-decisional deliberations relating to a budget recommendation, legislative proposal, legislative amendment, contemplated or proposed policy or course of action or any research, memos or other documents used in the pre-decisional deliberations. (B) The strategy to be used to develop or achieve the successful adoption of a budget, legislative proposal or regulation. (ii) Subparagraph (i)(A) shall apply to agencies subject to 65 Pa.C.S. Ch. 7 (relating to open meetings) in a manner consistent with 65 Pa.C.S. Ch. 7. A record which is not otherwise exempt from access under this act and which is presented to a quorum for deliberation in accordance with 65 Pa.C.S. Ch. 7 shall be a public record. (iii) This paragraph shall not apply to a written or Internet application or other document that has been submitted to request Commonwealth funds. (iv) This paragraph shall not apply to the results of public opinion surveys, polls, focus groups, marketing research or similar effort designed to measure public opinion.”

This exemption, which codifies the deliberative-process privilege, flows from cases interpreting the old Act’s definition of public record. See Office of Governor v. Scolforo, 65 A.3d 1095, 1102 (Pa. Commw. Ct. 2012); see also LaValle v. Office of Gen. Counsel, 769 A.2d 449, 458 (Pa. 2001) (holding that “public record” under the old Act did not encompass records reflecting internal deliberative aspects of agency decision making).

Generally, agencies must demonstrate the records are (1) internal to the agency; (2) pre-decisional; and (3) deliberative.  Indeed that is the test commonly used by the OOR.  See, e.g., Kaplin v. Lower Merion Twp., 19 A.3d 1209, 1212 (Pa. Commw. Ct. 2011).

In Philadelphia Public School Notebook, the Commonwealth Court affirmed the Court of Common Pleas’ holding that the text of resolutions presented to the School Reform Commission at a public meeting were not exempt from disclosure under this exception.  The Commonwealth Court explained that the text of the resolutions “were no longer ‘internal’ deliberations once the [resolutions] were presented . . . for public consideration and comment.”  49 A.3d at 453.

With respect to agencies subject to the Sunshine Act, the pre-decisional deliberation exception applies only if: (1) the requested information constitutes records that reflect pre-decisional deliberations; and (2) the requested records were not presented to a quorum for deliberation, in accordance with the Sunshine Act.  Phila. Public Sch. Notebook, 49 A.3d at 453.       

(11) “A record that constitutes or reveals a trade secret or confidential proprietary information.”

The Law defines “trade secret” as:

“Information, including a formula, drawing, pattern, compilation, including a customer list, program, device, method, technique or process that: (1) derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. The term includes data processing software obtained by an agency under a licensing agreement prohibiting disclosure.”

65 Pa. Stat. Ann. § 67.102; see, e.g., Dep’t of Pub. Welfare v. Eiseman, 125 A.3d 19, 32 (Pa. 2015) (observing that, under this definition, contractual payment rates “are not a close fit with the concept of a ‘trade secret’”).

Courts recognize that this definition of “trade secret” is identical to the one contained in the Uniform Trade Secrets Act. Courts, therefore, have adopted the Uniform Trade Secret Act’s six-factor test to determine whether information should be considered a “trade secret.”  See, e.g., Smith ex rel. Butz, LLC v. Pa. Dep’t of Envtl. Prot., 161 A.3d 1049, 1064 (Pa. Commw. Ct. 2017) (citing 12 Pa. C.S.A. §§ 5302, 5308).  Notably, however, in light of the language of 65 Pa. Stat. Ann. § 67.708(c), the Uniform Trade Secrets Act does not exempt from disclosure financial records that may qualify thereunder as a “trade secret.”  Eiseman, 125 A.3d at 32.

The Law also defines “confidential proprietary information” as “[c]ommercial or financial information received by an agency: (1) which is privileged or confidential; and (2) the disclosure of which would cause substantial harm to the competitive position of the person that submitted the information.” 65 Pa. Stat. Ann. § 67.102.

“In determining whether certain information is ‘confidential,’ . . . ‘the efforts the parties undertook to maintain their [sic] secrecy’” must be considered.  Butz, 161 A.3d at 1064 (citation omitted).  And to determine “whether disclosure of confidential information will cause ‘substantial harm to the competitive position’ of the person from whom the information was obtained, an [agency or] entity needs to show: (1) actual competition in the relevant market; and, (2) a likelihood of substantial injury if the information were released.” Id. (citation omitted).  This “[c]ompetitive harm analysis is limited to harm flowing from the affirmative use of proprietary information by competitors.” Id. (internal quotation marks and citations omitted); see also Crouthamel v. Dep’t of Transp., 207 A.3d 432, 441 (Pa. Commw. Ct. 2019) (affirming the OOR’s final determination that information relating to a specific construction project, i.e., mix formulas for asphalt and production quantities, was exempt from disclosure as “confidential proprietary information”).

In addition to the above, 65 Pa. Stat. Ann. § 67.707(b) provides that an “agency shall notify a third party of a request for a record if the third party provided the record and included a written statement signed by a representative of the third party that the record contains a trade secret or confidential proprietary information.”  Under the same Section, the agency shall provide the notification to the third party “within five business days of receipt of the request for the record.”  Id.  Thereafter, the “third party shall have five business days from receipt of notification from the agency to provide input on the release of the record.”  Id.  In total, the agency has 10 days from the “provision of notice to the third party” to release the records or deny the request and also provide notification to the third party of the agency’s decision.  Id.

(12) “Notes and working papers prepared by or for a public official or agency employee used solely for that official's or employee's own personal use, including telephone message slips, routing slips and other materials that do not have an official purpose.”

In City of Philadelphia v. Philadelphia Inquirer, the Commonwealth Court held that the mayor’s and city council members’ calendars were exempt from disclosure because the requested documents were created solely for the convenience of the mayor and city council members’ personal use in scheduling daily activities and were not circulated outside of the officials’ offices.  52 A.3d 456, 461-62 (Pa. Commw. Ct. 2012).  The court explained that the term “personal” in this exemption “covers those documents necessary for that official that are ‘personal’ to that official in carrying out his public responsibilities.”  Id. at 461.  In other words, the documents do not need to involve a public official’s personal affairs.  Id.; see also Butz, 161 A.3d at 1067 (holding that the agency met its burden of demonstrating that handwritten personal notes prepared by department staff and used solely for the note taker’s own personal use were exempt from disclosure under this exemption).

(13) “Records that would disclose the identity of an individual who lawfully makes a donation to an agency unless the donation is intended for or restricted to providing remuneration or personal tangible benefit to a named public official or employee of the agency, including lists of potential donors compiled by an agency to pursue donations, donor profile information or personal identifying information relating to a donor.”

This exemption “protects the identity of individuals acting as private citizens to make contributions to their government.”  Municipality of Mt. Lebanon v. Gillen, 151 A.3d 722, 730 (Pa. Commw. Ct. 2016).

For purposes of this exemption, “individual” means a natural person, as set forth in the Statutory Construction Act, 1 Pa. C.S.A. § 1991.  Cal. Univ. of Pa. v. Bradshaw, 210 A.3d 1134 (Pa. Commw. Ct. 2019).  Moreover, the term “donation” is not limited to monetary contributions.  Rather, the term here also applies to the volunteering of property and services.  Gillen, 151 A.3d at 729.

(14) “Unpublished lecture notes, unpublished manuscripts, unpublished articles, creative works in progress, research-related material and scholarly correspondence of a community college or an institution of the State System of Higher Education or a faculty member, staff employee, guest speaker or student thereof.”

(15) “(i) Academic Transcripts. (ii) Examinations, examination questions, scoring keys or answers to examinations. This subparagraph shall include licensing and other examinations relating to the qualifications of an individual and to examinations given in primary and secondary schools and institutions of higher education.”

(16) “A record of an agency relating to or resulting in a criminal investigation, including: (i) Complaints of potential criminal conduct other than a private criminal complaint. (ii) Investigative materials, notes, correspondence, videos and reports. (iii) A record that includes the identity of a confidential source or the identity of a suspect who has not been charged with an offense to whom confidentiality has been promised. (iv) A record that includes information made confidential by law or court order. (v) Victim information, including any information that would jeopardize the safety of the victim. (vi) A record that, if disclosed, would do any of the following: (A) Reveal the institution, progress or result of a criminal investigation, except the filing of criminal charges. (B) Deprive a person of the right to a fair trial or an impartial adjudication. (C) Impair the ability to locate a defendant or codefendant. (D) Hinder an agency's ability to secure an arrest, prosecution or conviction. (E) Endanger the life or physical safety of an individual. This paragraph shall not apply to information contained in a police blotter as defined in 18 Pa.C.S. § 9102 (relating to definitions) and utilized or maintained by the Pennsylvania State Police, local, campus, transit or port authority police department or other law enforcement agency or in a traffic report except as provided under 75 Pa.C.S. § 3754(b) (relating to accident prevention investigations).”

This exemption is consistent with yet broader than the old Act’s “investigation” exemption which precluded from disclosure “information related to police investigations.” Tapco, Inc. v. Twp. of Neville, 695 A.2d 460, 464 (Pa. Commw. Ct. 1997) (citing Sullivan v. City of Pittsburgh, 561 A.2d 863, 865 (Pa. Commw. Ct. 1989), pet. denied, 575 A.2d 120 (Pa. 1990)); see also Commonwealth v. Mines, 680 A.2d 1227, 1229 (Pa. Commw. Ct. 1996) (“[I]nformation relating to police investigations . . . is excluded from the definition of public records, and therefore, its disclosure is not mandatory under the Act.”).

In determining whether a record is exempt under the current exemption, as relating to a criminal investigation, each record must be reviewed on a case-by-case basis.  Pa. State Police v. Grove, 161 A.3d 877, 894 (Pa. 2017) (“Grove II”).  The “mere fact that that a record has some connection to an investigation does not automatically exempt it.” Cent. Dauphin Sch. Dist. v. Hawkins, 199 A.3d 1005, 1020 (Pa. Commw. Ct. 2018) (citing Grove II, 161 A.3d at 894).  The record must “relate to” an agency’s criminal investigation, i.e., its “systematic inquiry of examination into a potential crime.”  Grove II, 161 A.3d at 893.

A record may relate to an investigation even if it was created before an investigation begins.  Rothey, 185 A.3d 456; see also Port Auth. of Allegheny Cty. v. Towne, 174 A.3d 1167, 1171 (Pa. Commw. Ct. 2017) (“[R]ecords created before investigations and accessed only when necessary can constitute investigative records, especially when the agency asserts that their only purpose is for use in investigations.”).  When records involve “nothing more than what a bystander would observe,” the records are not exempt.  Grove II, 161 A.3d at 894.

This exemption has been applied to exempt from disclosure a video that recorded an assault by a police officer on a detainee, a video that recorded witness interviews, a record containing facts of the execution of a search warrant by Pennsylvania State Police troopers, and notes of police interviews.  See Rothey, 185 A.3d at 466 (record of officer assault), Pa. State Police v. Grove, 119 A.3d 1102 (Pa. Commw. Ct. 2015) (“Grove I”) (record of witness interviews), Mitchell v. Office of Open Records, 997 A.2d 1262, 1263 (Pa. Commw. Ct. 2010) (record of search warrant execution); Pa. State Police v. Office of Open Records, 5 A.3d 473, 479 (Pa. Commw. Ct. 2010) (record of interview notes).

(17) “A record of an agency relating to a non-criminal investigation, including: (i) Complaints submitted to an agency. (ii) Investigative materials, notes, correspondence and reports. (iii) A record that includes the identity of a confidential source, including individuals subject to the act of December 12, 1986 (P.L. 1559, No. 169), known as the Whistleblower Law. (iv) A record that includes information made confidential by law. (v) Work papers underlying an audit. (vi) A record that, if disclosed, would do any of the following: (A) Reveal the institution, progress or result of an agency investigation, except the imposition of a fine or civil penalty, the suspension, modification or revocation of a license, permit, registration, certification or similar authorization issued by an agency or an executed settlement agreement unless the agreement is determined to be confidential by a court. (B) Deprive a person of the right to an impartial adjudication. (C) Constitute an unwarranted invasion of privacy. (D) Hinder an agency's ability to secure an administrative or civil sanction. (E) Endanger the life or physical safety of an individual.”

To a degree, this exemption overlaps with the exemption under 65 Pa. Stat. Ann. § 67.708(16). See Cent. Dauphin Sch. Dist., 199 A.3d at 1017 (observing that Grove II was relevant to the court’s review of the trial court’s holding that a school bus video did not “relate to” a school district’s non-criminal investigation); see also Borough of Pottstown v. Suber-Aponte, 202 A.3d 173, 185 (Pa. Commw. Ct. 2019) (referring to Grove II in reversing trial court’s holding that footage of public area of police department was related to a non-criminal investigation); Towne, 174 A.3d at 1171 (“[R]ecords created before investigations and accessed only when necessary can constitute investigative records, especially when the agency asserts that their only purpose is for use in investigations.”). Of course, unlike the 65 Pa. Stat. Ann. § 67.708(16) exemption, this exemption concerns records that “relate to” a “noncriminal investigation.”

A “noncriminal investigation” is “one not undertaken for a criminal prosecution and denotes ‘a systematic or searching inquiry, a detailed examination, or an official probe.’” Hawkins, 199 A.3d at 1017 (quoting Dep’t of Health v. Office of Open Records, 4 A.3d 803, 811 (Pa. Commw. Ct. 2010)). The “inquiry, examination, or probe must be conducted as ‘part of the agency’s official duties.’” Id. (quoting Dep’t of Health, 4 A.3d at 814).
In Department of Health, the requestor sought documents relating to inspections and surveys conducted by the Department at a nursing home. Dep’t of Health, 4 A.3d at 804. The inspections and surveys were authorized and mandated by statute. See id. at 804, 805-06. In relevant part, the Department rejected the request on grounds that the documents were exempt because they related to a noncriminal investigation. The OOR disagreed, concluding that the documents, at most, related to an inspection, but not an investigation. Accordingly, the OOR ruled in the requestor’s favor. On appeal, the Commonwealth Court reversed the OOR’s conclusion that the requested documents were not exempt under 65 Pa. Stat. Ann. § 67.708(b)(17). Id. at 815-16. The Commonwealth Court rejected the idea that for an agency’s activities to qualify as an “investigation” a triggering event such as the filing of a complaint was necessary. See id. at 812-14. Rather, the focus is to be on the agency’s official duties. Id. at 814. Because the inspections and surveys performed by the Department were within the Department’s official duties, the documents related to those activities were exempt from disclosure under 65 Pa. Stat. Ann. § 67.708(b)(17).

(18) “(i) Records or parts of records, except time response logs, pertaining to audio recordings, telephone or radio transmissions received by emergency dispatch personnel, including 911 recordings. (ii) This paragraph shall not apply to a 911 recording, or a transcript of a 911 recording, if the agency or a court determines that the public interest in disclosure outweighs the interest in nondisclosure.”

Under Section 708(b)(18), it is clear that “time response logs” are not exempt from disclosure.  Furthermore, to permit the citizenry to scrutinize the actions of public officials by evaluating the efficiency of emergency responses and to permit agencies to monitor their own performances, “time response logs” must contain the time of a request for service, the address or cross-street information, and the time when the responder arrived at the scene.  Cty. of York v. Office of Open Records, 13 A.3d 594, 602 (Pa. Commw. Ct. 2011).

(19) “DNA and RNA records.”

(20) “An autopsy record of a coroner or medical examiner and any audiotape of a postmortem examination or autopsy, or a copy, reproduction or facsimile of an autopsy report, a photograph, negative or print, including a photograph or videotape of the body or any portion of the body of a deceased person at the scene of death or in the course of a postmortem examination or autopsy taken or made by or caused to be taken or made by the coroner or medical examiner. This exception shall not limit the reporting of the name of the deceased individual and the cause and manner of death.”

(21) “(i) Draft minutes of any meeting of an agency until the next regularly scheduled meeting of the agency. (ii) Minutes of an executive session and any record of discussions held in executive session.”

(22) “(i) The contents of real estate appraisals, engineering or feasibility estimates, environmental reviews, audits or evaluations made for or by an agency relative to the following: (A) The leasing, acquiring or disposing of real property or an interest in real property. (B) The purchase of public supplies or equipment included in the real estate transaction. (C) Construction projects. (ii) This paragraph shall not apply once the decision is made to proceed with the lease, acquisition or disposal of real property or an interest in real property or the purchase of public supply or construction project.”

(23) “Library and archive circulation and order records of an identifiable individual or groups of individuals.”

(24) “Library archived and museum materials, or valuable or rare book collections or documents contributed by gift, grant, bequest or devise, to the extent of any limitations imposed by the donor as a condition of the contribution.”

(25) “A record identifying the location of an archeological site or an endangered or threatened plant or animal species if not already known to the general public.”

(26) “A proposal pertaining to agency procurement or disposal of supplies, services or construction prior to the award of the contract or prior to the opening and rejection of all bids; financial information of a bidder or offeror requested in an invitation for bid or request for proposals to demonstrate the bidder's or offeror's economic capability; or the identity of members, notes and other records of agency proposal evaluation committees established under 62 Pa.C.S. § 513 (relating to competitive sealed proposals).”

As used here, an “award of the contract” means the point of time at the execution of the contract, not the selection of successful offerors. United Healthcare of Pa., Inc. v. Pa. Dep’t of Human Servs., 187 A.3d 1046, 1058 (Pa. Commw. Ct. 2018).

(27) “A record or information relating to a communication between an agency and its insurance carrier, administrative service organization or risk management office. This paragraph shall not apply to a contract with an insurance carrier, administrative service organization or risk management office or to financial records relating to the provision of insurance.”
(28) “A record or information: (i) identifying an individual who applies for or receives social services; or (ii) relating to the following: (A) the type of social services received by an individual; (B) an individual's application to receive social services, including a record or information related to an agency decision to grant, deny, reduce or restrict benefits, including a quasi-judicial decision of the agency and the identity of a caregiver or others who provide services to the individual; or (C) eligibility to receive social services, including the individual's income, assets, physical or mental health, age, disability, family circumstances or record of abuse.”

The Law defines “social services” as:

“Cash assistance and other welfare benefits, medical, mental and other health care services, drug and alcohol treatment, adoption services, vocational services and training, occupational training, education services, counseling services, workers' compensation services and unemployment compensation services, foster care services, services for the elderly, services for individuals with disabilities, and services for victims of crimes and domestic violence.”

65 Pa. Stat. Ann. § 67.102.

(29) “Correspondence between a person and a member of the General Assembly and records accompanying the correspondence which would identify a person that requests assistance or constituent services. This paragraph shall not apply to correspondence between a member of the General Assembly and a principal or lobbyist under 65 Pa.C.S. Ch. 13A (relating to lobbyist disclosure).”

(30) “A record identifying the name, home address or date of birth of a child 17 years of age or younger.”

Exemption (A)(I)(a):  All records relating to a client/attorney relationship and to a doctor/patient relationship, including all medical information relating to an individual in any files.  R.I. Gen. Laws § 38-2-2(4)(A)(I)(a) (2012).

Exemption (A)(I)(b):  Personnel and other personal individually-identifiable records otherwise deemed confidential by federal or state law or regulation, or the disclosure of which would constitute a clearly unwarranted invasion of personal privacy pursuant to 5 U.S.C. § 552 et. seq.; provided, however, with respect to employees, and employees of contractors and subcontractors working on public works projects which are required to be listed as certified payrolls, the name, gross salary, salary range, total cost of paid fringe benefits, gross amount received in overtime, and any other remuneration in addition to salary, job title, job description, dates of employment and positions held with the state, municipality, employment contract, or public works contractor or subcontractor on public works projects work location, and/or project, business telephone number, the city or town of residence, and date of termination shall be public. For the purposes of this section “remuneration” shall include any payments received by an employee as a result of termination, or otherwise leaving employment, including, but not limited to, payments for accrued sick and/or vacation time, severance pay, or compensation paid pursuant to a contract buy-out provision.  R.I. Gen. Laws § 38-2-2(4)(A)(II)(b).

In Rake v. Gorodetsky, 452 A.2d 1144 (R.I. 1982), the court noted that the records would not be held to fall within the exemption merely because they were stored in personnel files, regarded as personnel records by the police department, or arranged by the personnel bureau of the department.

In Providence Journal Co. v. Kane, 577 A.2d 661 (R.I. 1990), decided prior to the 1991 amendment to this section of the APRA, the Rhode Island Supreme Court held that all personnel records identifiable to an individual employee are exempt from disclosure. The Court refused to employ a balancing test in determining whether such records should be held to be confidential under the APRA.

In Providence Journal Co. v. Sundlun, 616 A.2d 1131 (R.I. 1992), the court held that records revealing the names and positions of state employees who were scheduled to be laid off, but were never actually laid off, were exempt from public disclosure. The court further held that Exemption (1) limits public access not only to personal information contained within an employee's personnel file, but also to any records that identify a particular employee.

In addition, Edward A. Sherman Publishing Co. v. Carpender, 659 A.2d 1117 (R.I. 1995), the court held that the name of a teacher who receives notice of layoff is exempt from disclosure under the Act until the teacher's employment is actually terminated.

Furthermore, the Rhode Island Attorney General determined that Exemption (1) does not permit a city to withhold information as to whether the city provided medical benefits to members of its boards or commissions, or information concerning the total cost of such benefits to city taxpayers. See Op. Att’y Gen., April 14, 1989. Additionally, the Rhode Island Supreme Court held that all police civilian complaint reports are public documents under the APRA and must be disclosed upon request in redacted form whenever final action (a final determination made by the police chief) occurs. Direct Action for Rights and Equality v. Gannon, 713 A.2d 218, 224 (1998).

Exemption (A)(II):  Notwithstanding the provisions of this section, or any other provision of the general laws to the contrary, the pension records of all persons who are either current or retired members of any public retirement systems as well as all persons who become members of those retirement systems after June 17, 1991 shall be open for public inspection. “Pension records” as used in this section shall include all records containing information concerning pension and retirement benefits of current and retired members of the retirement systems and future members of said systems, including all records concerning retirement credits purchased and the ability of any member of the retirement system to purchase retirement credits, but excluding all information regarding the medical condition of any person and all information identifying the member's designated beneficiary or beneficiaries unless and until the member's designated beneficiary or beneficiaries have received or are receiving pension and/or retirement benefits through the retirement system.

Exemption (B): Trade secrets and commercial or financial information obtained from a person, firm or corporation, which is of a privileged or confidential nature. This Exemption is patterned after the federal FOIA but broader in scope, exempting information of a privileged or confidential nature. See 5 U.S.C. §  552(b)(4). R.I. Gen. Laws § 38-2-2(4)(B) (1999).

In Town of New Shoreham v. Rhode Island Public Utilities Commission, 464 A.2d 730 (R.I. 1983), the Court interpreted this Exemption as affording no right to have made public income tax returns and financial statements which were produced but sealed pursuant to a protective order by the Public Utility Commission.

In Providence Journal Co. v. Convention Center Authority, 774 A.2d 40,47 (R.I. 2001), the Court interpreted the “confidential nature” of this Exemption to include: Any financial or commercial information whose disclosure would be likely either (1) to impair the Government's ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained. Providence Journal Co. v. Convention Center Authority, 774 A.2d 40,47 (R.I. 2001). In addition, the Court held that commercial or financial information provided on a voluntary basis is confidential for the purposes of exemption “if it is of a kind that would customarily not be released to the public by the person from whom it was obtained. Id.; see also In re New England Gas Company, 842 A.2d 545 (R.I. 2004); Interstate Navigation Co. v. Division of Public Utilities, (R.I.Super., Jan. 9, 2002), 2002 WL 169186.

In Providence Journal Co. v. Convention Center Authority, 774 A.2d 40, 48-49 (R.I. 2001) the Court held that the APRA does not mandate the publication of documents reflecting the negotiation process because that information was exempt from disclosure under APRA § 38-2-2(4)(B).  If the final contracts contained confidential or privileged financial information that was segregable, that limited information is subject to redaction. Id. at 50.

Procedurally, the applicability of APRA to records held by a public body is not determined by a balancing test. Providence Journal Co. v. Convention Center Authority, 774 A.2d 40 (R.I. 2001). The Supreme Court has held that to deploy a balancing test constitutes reversible error. Id. In Robinson v. Malinoff, 770 A.2d 873 (2001), the Court interpreted the APRA finding that the legislative intent is clear and is “to protect records concerning a particular individual, and in particular, when the disclosure would constitute an unwarranted invasion of that person's privacy.  Id.  Although the purpose of the APRA is suggestive of a balancing approach, the Rhode Island Supreme Court has always strictly applied both the substantive and procedural section of the APRA. Robinson, 770 A.2d at 873; Bernard v. Vose, 730 A.2d 30 (R.I. 1999) (explaining records pertaining to the individual and contained in any files of a public body are not considered public because disclosure would constitute an unwarranted invasion of that personal privacy).

The Attorney General interpreted this exemption so as not to encompass a computer tape, which listed the names and codes of all persons filing financial statements with the Rhode Island Conflict of Interest Commission. The Attorney General reasoned that they had no reasonable expectation of privacy. See Op. Att’y Gen., September 16, 1986.

Exemption (C): Child custody and adoption records, records of illegitimate births, and records of juvenile proceedings before the family court. R.I. Gen. Laws § 38-2-2(4)(C) (2012).

Exemption (D): All records maintained by law enforcement agencies for criminal law enforcement and all records relating to the detection and investigation of crime, including those maintained on any individual or compiled in the course of a criminal investigation by any law enforcement agency. Provided, however, such records shall not be deemed public only to the extent that the disclosure of the records or information (a) could reasonably be expected to interfere with investigations of criminal activity or with enforcement proceedings, (b) would deprive a person of a right to a fair trial or an impartial adjudication, (c) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (d) could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority, or any private institution which furnished information on a confidential basis, or the information furnished by a confidential source, (e) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions or (f) could reasonably be expected to endanger the life or physical safety of any individual. Records relating to management and direction of a law enforcement agency and records or reports reflecting the initial arrest of an adult and the charge or charges brought against an adult shall be public.  R.I. Gen. Laws § 38-2-2(4)(D) (2012).

In Providence Journal Co. v. Rhode Island Dept. of Public Safety ex rel. Kilmartin, 136 A.3d 1168 (R.I. 2016), the Supreme Court held that in balancing the privacy interests against the public interest in disclosure, “the usual rule that the citizen need not offer a reason for requesting the information must be inapplicable” (quoting Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 172 (2004)). Following this decision, the Attorney General opined that when a requester does not cite a “public interest” in the records, even a minimal privacy interest will exempt the records from disclosure. See Op. Att’y Gen., PR 17-49, Oct. 13, 2017; Op. Att’y Gen., PR 17-50, Oct. 16, 2017.

The Attorney General has also based a number of opinions favoring denials of access for privacy reasons on the U.S. Supreme Court’s decision in Dep’t of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), finding that criminal and penal records about particular individuals are examples of information “that happens to be in the warehouse of Government” and not related to the operations of that government. See, e.g., Op. Att’y Gen., PR 16-45, Nov. 1, 2016.

Prior to the 1991 amendment of this section, the Attorney General determined that pre-arrest police reports containing basic information regarding suspects cannot be withheld under the exemptions to the Act unless they are of an investigatory nature. See Opinion of Attorney General, October 7, 1987. In 1995, the Attorney General interpreted the APRA to deny public access to motor vehicle accident police records when the accident is under investigation by the police department. See Op. Att’y Gen., March 9, 1995. Additionally, the Rhode Island Supreme Court has held that all police civilian complaint reports are public documents under the APRA and must be disclosed upon request in redacted form whenever final action (a final determination made by the police chief) occurs. Direct Action for Rights and Equality v. Gannon, 713 A.2d 218, 224 (1998).

Exemption (E): Any records which would not be available by law or rule of court to an opposing party in litigation. R.I. Gen. Laws § 38-2-2(4)(E) (2012).

In Hydron Labs, Inc, v. Department of the Attorney General, 492 A.2d 135 (R.I. 1985), a corporation charged by the state with dumping noxious materials requested information concerning the waste-disposal site. The information was unavailable in an environmental action against the corporation under the qualified work product privilege of R.I. Rules of Civ. Proc. 34. The court held that the limitations placed on the scope of Rule 34 apply to discovery under the APRA, reasoning that the APRA was not designed to provide an alternative method of discovery for litigants.

Exemption (F): Scientific and technological secrets and the security plans of military and law enforcement agencies, the disclosure of which would endanger the public welfare and security. R.I. Gen. Laws § 38-2-2(4)(F) (2012).

Exemption (G): Any records which disclose the identity of the contributor of a bona fide and lawful charitable contribution to the public body whenever public anonymity has been requested of the public body with respect to the contribution by the contributor. R.I. Gen. Laws § 38-2-2(4)(G) (2012).

Exemption (H): Reports and statements of strategy or negotiation involving labor negotiations or collective bargaining. R.I. Gen. Laws § 38-2-2(4)(H) (2012). A draft of a collective bargaining agreement is part of the negotiation process and does not become available for public inspection until it is ratified by both parties. See Op. Att’y Gen., December 27, 1990.

Exemption (I): Reports and statements of strategy or negotiation with respect to the investment or borrowing of public funds, until such time as those transactions are entered into. R.I. Gen. Laws §  38-2-2(4)(I) (2012).

Exemption (J): Any minutes of a meeting of a public body which are not required to be disclosed pursuant to chapter 46 of title 42. (Chapter 46 of title 42 is the Rhode Island Open Meetings Law, discussed infra. R.I. Gen. Laws §  42-46-7 requires that minutes be available to the public except where disclosure “would be inconsistent” with provisions of the law permitting meetings to be closed.) R.I. Gen. Laws §  38-2-2(4)(J) (2012).

The Attorney General has found minutes of an open zoning board meeting, whether approved or not, to be accessible. See Op. Att’y Gen., February 19, 1987.

Exemption (K): Preliminary drafts, notes, impressions, memoranda, working papers and work products, including public university work product; provided, however, any documents submitted at a public meeting of a public body shall be deemed public. R.I. Gen. Laws § 38-2-2(4)(K) (2012).

This appears to be one of the most sweeping of the exemptions. Arguably inter-agency and intra-agency memoranda fall within the scope of exemption (K). The law was amended in 2017 to include papers “involving research at state institutions of higher education on commercial, scientific, artistic, technical, or scholarly issues, whether in electronic or other format.” R.I. Gen. Laws § 38-2-2(4)(K), as amended by P.L. 2017, ch. 48, § 1.

Exemption (L): Test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or promotion or academic examinations; provided, however, that a person shall have the right to review the results of his or her examination. R.I. Gen. Laws §  38-2-2(4)(L) (2012).

Exemption (M): Correspondence of or to elected officials with or relating to those they represent, and correspondence of or to elected officials in their official capacities. R.I. Gen. Laws § 38-2-2(4)(M) (2012).

Exemption (N): The contents of real estate appraisals, engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned; provided the law of eminent domain shall not be affected by this provision. R.I. Gen. Laws § 38-2-2(4)(N) (2012).

Exemption (O): All tax returns. R.I. Gen. Laws § 38-2-2(4)(O) (2012).

Exemption (P): All investigatory records of public bodies, with the exception of law enforcement agencies, pertaining to possible violations of statute, rule, or regulation other than records of final actions taken provided that all records prior to formal notification of violations or noncompliance shall not be deemed to be public. R.I. Gen. Laws § 38-2-2(4)(P) (2012).

Exemption (Q): Records of individual test scores on professional certification and licensing examinations; provided, however, that a person shall have the right to review the results of his or her examination. R.I. Gen. Laws § 38-2-2(4)(Q) (2012).

Exemption (R): Requests for advisory opinions until such time as the public body issues its opinion. R.I. Gen. Laws § 38-2-2(4)(R) (2012).

Exemption (S): Records, reports, opinions, information, and statements required to be kept confidential by federal or state law, rule of court, or by regulation. R.I. Gen. Laws § 38-2-2(4)(S) (2012).

Note that exemption (S) does not include the federal FOIA's qualification, that the statute protecting disclosure must either leave no discretion on the issue of withholding or establish criteria for withholding. See 5 U.S.C. § 552(b)(3).

Exemption (T): Judicial bodies are included in the definition of “public body” only in respect to their administrative function, provided that records kept pursuant to the provisions of chapter 16 of title 8 are exempt from the operation of this chapter. (Chapter 16, title 8, created the Commission On Judicial Tenure and Discipline, to investigate wrongdoing and unfitness of justices of various courts in Rhode Island). R.I. Gen. Laws § 38-2-2(4)(T) (2012).

Exemption (U): Library records which, by themselves or when examined with other public records, would reveal the identity of the library user requesting, checking out, or using any library materials. R.I. Gen. Laws § 38-2-2(4)(U) (2012).

Exemption (V): Printouts from telecommunication (TELE-TEXT) devices for the deaf or hearing and speech impaired. R.I. Gen. Laws § 38-2-2(4)(V) (2012).

Exemption (W): All records received by the Insurance Division of the Department of Business Regulation from other states, either directly or through the National Association of Insurance Commissioners, if such records are accorded confidential treatment in that state. Nothing contained in this title or any other provision of law shall prevent or be construed as prohibiting the Commissioner of Insurance from disclosing otherwise confidential information to the Insurance Department of this or any other state or country, at any time, so long as such agency or office receiving the records agrees in writing to hold it confidential in a manner consistent with the laws of this state. R.I. Gen. Laws §  38-2-2(4)(W) (2012).

Exemption (X): Credit card account numbers in the possession of state or local government are confidential and shall not be deemed public records. R.I. Gen. Laws § 38-2-2(4)(X) (2012).

Exemption (Y): Any documentary material, answers to written interrogatories, or oral testimony provided under any subpoena issued under Rhode Island general law section 9-1.1-6. R.I. Gen. Laws §  38-2-2(4)(Y) (2012).

Exemption (Z):  Any individually identifiable evaluations of public school teachers made pursuant to state or federal law or regulation.  R.I. Gen. Laws §  38-2-2(4)(Z) (2012).

Exemption (AA):  All documents prepared by school districts intended to be used by school districts in protecting the safety of their students from potential and actual threats.  R.I. Gen. Laws §  38-2-2(4)(AA) (2012).

However, any reasonably segregable portion of a public record excluded by subdivision 38-2-2(4) shall be available for public inspection after the deletion of the information which is the basis of the exclusion. If an entire document or record is deemed non-public, the public body shall state in writing that no portion of the document or record contains reasonable segregable information that is releasable.  R.I. Gen. Laws § 38-2-3(b) (2012).

a. Trade secrets defined as unpatented, secret, commercially valuable plans, appliances or processes including plans of public bodies who market services or products. S.C. Code Ann. § 30-4-40(a)(1). The South Carolina Court of Appeals rejected an effort by a public body to apply a broader definition of trade secret than the statute allowed to shelter records relating to financial transactions. Campbell v. Marion County. Hosp. Dist., 580 S.E.2d 163 (S.C. App. 2003)

b. Information of a personal nature where the public disclosure of the information would constitute an unreasonable invasion of personal privacy. Specifically exempts financial information in business license tax applications and information relating to handicap or disability where the information would be used for person-to-person commercial solicitation. S.C. Code Ann. § 30-4-40(a)(2). The South Carolina Supreme Court and the Court of Appeals have ruled that this exemption does not relate to the performance of a public duty, and records relating to public activity must be disclosed. Society of Professional Journalists v. Sexton, 324 S.E.2d 313 (S.C.1984); Burton v. York County Sheriff, 594 S.E.2d 888 (S.C. App. 2004)

c. Records compiled for law enforcement purposes where the disclosure would interfere with a prospective law enforcement proceeding; would deprive a person of a right to a fair trial or an impartial adjudication; would constitute an unreasonable invasion of personal privacy; would disclose the identity of a confidential source; would disclose current techniques and procedures for law enforcement investigations or prosecutions; would endanger the life or physical safety of any individual; or would disclose any contents of intercepted wire, oral, or electronic communications not otherwise disclosed during a trial. S.C. Code Ann. § 30-4-40(3); Newberry Pub. Co. v. Newberry County Comm'n. on Alcohol and Drug Abuse, 417 S.E.2d 870 (S.C. 1992); 20 Media L. Rep. 1420.  The Supreme Court of South Carolina has held that the law enforcement agency must prove specific harm to the agency to invoke this exemption.  Evening Post Pub. Co. v. City of N. Charleston, 611 S.E.2d 496 (S.C. 2005).

d. Documents of and documents incidental to proposed contractual arrangements and documents of and documents incidental to proposed sales or purchases of property. These documents become subject to mandatory disclosure once a contract is entered into or the property is sold or purchased. A contract for the sale or purchase of real estate shall remains exempt from disclosure until the deed is executed or 12 months have passed from the date of sale or purchase. S.C. Code Ann. § 30-4-40(5).

e. The amount of compensation paid by public bodies except for those persons receiving compensation of fifty thousand dollars or more annually, all part-time employees, persons paid honoraria and agency or department heads whose exact compensation shall be public. The compensation of all others is subject to disclosure within specified ranges. S.C. Code Ann. § 30-4-40(6).

f. Correspondence or work product of legal counsel for a public body or other material subject to the attorney-client privilege. S.C. Code Ann. § 30-4-40(7).

g. Memoranda, correspondence and working papers of members of the legislature and their staff members. S.C. Code Ann. § 30-4-40(8).

h. Memoranda, correspondence, documents, and working papers relative to efforts of a public body to attract business or industry to invest within the state. S.C. Code Ann. § 30-4-49(9), but the exemption expires if an offer is accepted or a project announced.

i. Standards used or to be used by the S.C. Department of Revenue for the selection of returns for examination, or data used or to be used for determining such standards if the commission determines that the disclosure would impair enforcement of the tax laws. S.C. Code Ann. § 30-4-40(10).

j. Information relative to the identity of a donor of a gift to a public body if the donor requests anonymity. If the maker of the gift or any member of his immediate family has any business transaction with the recipient of the gift within three years prior to or following the gift, the identity of the donor is not exempt from disclosure. S.C. Code Ann. § 30-4-40(11).

k. Records relating to plans for investing state pension funds. S.C. Code Ann. § 30-4-40(12).

l. Material gathered in a search to fill an employment position except that the material gathered relative to "not fewer than the final three applicants under consideration" is to be made public. S.C. Code Ann. § 30-4-40(13).  The Supreme Court of South Carolina rejected a school district’s claim that it was required to release the collected information only as to its two “finalists.”  New York Times Co. v. Spartanburg County School Dist. No. 7, 649 S.E.2d 28 (S.C. 2007).

m. Records and data relating to commercially valuable research produced or collected by faculty or staff of state institutions of higher learning where the information has not been publicly released, published, copyrighted or patented. S.C. Code Ann. § 30-4-40(14).

n. The identity or information tending to reveal the identity of a complainant or informant to a state regulatory agency. S.C. Code Ann. § 30-4-40(15).

o. Records relating to investment strategy for endowments of state institutions of higher learning. S.C. Code Ann. § 30-4-40(16).

p. Structural plans for bridges. S.C. Code Ann. § 30-4-40(17) (Terrorist inspired).

q. Autopsy photographs or videos. S.C. Code Ann. § 30-4-40(18) (Dale Earnhardt inspired).

r. In response to terrorism-related concerns, a new section exempted from public disclosure information concerning safeguards and off-site consequence analyses for facilities containing materials or operations that posed threats to persons or the environment. S.C. Code Ann. § 30-4-45.

The only pertinent case law addresses SDCL §§1-27-1.5(7) and (20).  In Milstead v. Johnson, 883 N.W.2d 725 (S.D. 2016) and Milstead v. Smith, 883 N.W.2d (S.D. 2016), the South Dakota Supreme Court held the statutory protection of law enforcement personnel records is not absolute and are “not shielded from discovery when a constitutional right of an accused is implicated.”  Disclosure is dependent on a showing by defendant that personnel file is relevant, admissible and requested with “reasonable specificity.”  Further, disclosure must be “carefully tailored to the legitimate need [of the defendant].”  In Argus Leader Media v. Hogstad, 902 N.W.2d 778 (S.D. 2017) the Supreme Court rejected the City of Sioux Falls argument and lower held that despite its dubious punctuation, SDCL §1-27-1.5(20) did not allow parties, by contract, to agree to confidential settlements outside the context of actual litigation.

a. The medical records of patients in state institutions, including those containing the source of organ donations for transplantation and information concerning organ donors, T.C.A. § 10-7-504(a)(1);

b. All investigative records of the Tennessee Bureau of Investigation and all criminal investigative files of the motor vehicle division of the department of safety, T.C.A. § 10-7-504(a)(2). See Abernathy v. Whitley, 838 S.W.2d 211 (Tenn. Ct. App. 1992) (court of appeals upheld denial that particular parts of records constitute investigation records of the Tennessee Bureau of Investigation);

c. Records of the military department involving national or state security, including national guard personnel records and staff studies and investigations, T.C.A. § 10-7-504(a)(3);

d. The academic, financial, and medical or psychological records of students in public educational institutions, T.C.A. § 10-7-504(a)(4);

e. Books, records, and other materials in the possession of the attorney general's office relating to any pending or contemplated legal or administrative proceeding in which the office may be involved, including (1) records designated confidential or privileged by state law, (2) records related to federal investigations and designated confidential or privileged under federal law, (3) the work product of the attorney general or his subordinates, (4) communications to or by the attorney general covered by the attorney-client privilege, and (5) records available for public inspection in other departments and agencies, T.C.A. § 10-7-504(a)(5);

f. Agency records containing opinions of the value of real and personal property intended to be acquired for public purposes, until acquisition is complete, T.C.A. § 10-7-504(a)(6);

g. Sealed bids for the purchase of goods and services and leases of real property, until completion of evaluation, T.C.A. § 10-7-504(a)(7);

h. All investigative records and reports of the internal affairs division of the department of corrections or department of youth development, T.C.A. § 10-7-504(a)(8);

i. Official health certificates obtained and maintained by the state veterinarian, T.C.A. § 10-7-504(a)(9);

j. The capital plans, marketing, and proprietary information and trade secrets submitted to the Tennessee venture capital network at Middle Tennessee State University, T.C.A. § 10-7-504(a)(10);

k. Records of historical research value given or sold to public archival institutions or libraries when the owner or donor of such records wishes to place restrictions on access to the records, T.C.A. § 10-7-504(a)(11);

l. Personal information contained in motor vehicle records which shall be open only pursuant to Title 55, chapter 25 (the Uniform Motor Vehicle Records Disclosure Act, which implemented the Federal Driver Privacy Protection Act) of the Tennessee Code Annotated; T.C.A. § 10-7-504(a)(12);

m. Memoranda, work notes, case files and communications related to mental health intervention techniques conducted by mental health professionals in a group setting to provide counseling and therapy to law enforcement officers, firefighters, paramedics and other emergency medical technicians, T.C.A. § 10-7-504(a)(13);

n. Riot, escape, and emergency transport plans of county jails and workhouses or prisons, T.C.A. § 10-7-504(a)(14);

o. A utility department's records of address, telephone number and Social Security number that might be used to locate someone who has a protection order from a court to protect such person from violence, T.C.A. § 10-7-504(a)(15);

p. A governmental entity's records of address, telephone number and Social Security number that might be used to locate someone who has a protection order from a court to protect such person from violence, T.C.A. § 10-7-504(a)(16);

q. The telephone number, address and any other information which might be used to locate the whereabouts of a domestic violence shelter or rape crisis center, T.C.A. § 10-7-504(a)(17);

r. Computer programs sold, licensed or donated to the state, T.C.A. § 10-7-504(a)(18);

s. Credit card numbers of persons doing business with the state or any subdivision, T.C.A. § 10-7-504(a)(19);

t. The private records of any utility, T.C.A. § 10-7-504(a)(20);

u. Records identifying structural or operational vulnerability of a utility, T.C.A. § 10-7-504-(a)(21);

v. the audit working papers of the comptroller of the treasury and state, county, and local government internal audit staffs. T.C.A § 10-7-504(a)(22).

w. Records containing the results of individual teacher evaluations administered by the State Board of Education, T.C.A. § 10-7-504(a)(23).

x. Commercial and financial information provided to the Alcoholic Beverage Commission that would give competitors an advantage over those who do not know or use such information, T.C.A. § 10-7-504(a)(24).

y. Records related to a student’s academic performance, financial status, medical or psychological treatment, and family information maintained by a voluntary association for interscholastic sports competition of private and public secondary schools, T.C.A. § 10-7-504(a)(25).

z. Job performance evaluations of employees in the Department of the Treasury, Secretary of State, public institutions of higher education, and the Comptroller’s Office, T.C.A. § 10-7-504(a)(26).

aa. Email addresses collected by the Department of State’s Division of Business Services, T.C.A. § 10-7-504 (a)(27).

bb. Proposals and statements of qualifications received by local government entities in response to a personal service, professional service, or consultant service request for proposals, T.C.A. § 10-7-504(a)(28).

cc. Certain personally identifiable information, including social security numbers, driver’s license numbers, alien registration numbers or passport numbers, employer or taxpayer identification numbers, biometric data such as fingerprints, voice prints, retina or iris images, and unique electronic identification numbers, routing numbers, “or other personal identifying data which enables an individual to obtain a merchandise or service or otherwise financially encumber the legitimate possessor of the identifying data,” T.C.A. § 10-7-504(a)(29).

dd. Records of employees' identity, treatment, or referral for treatment maintained by state or local government employee assistance program, T.C.A. § 10-7-504(d);

ee. Unpublished telephone numbers in the possession of emergency communications districts, T.C.A. § 10-7-504(e);

ff. Telephone numbers, residential addresses, Social Security numbers, bank account numbers, and driver's license information of public employees or his immediate family member, T.C.A. § 10-7-504(f);

gg. Personnel information of undercover police officers may be restricted, T.C.A. § 10-7-504(g), however, such information is generally available. TCA § 10-7-503

hh. Identifying information about someone who "has been or may in the future be directly involved in the process of executing a sentence of death," T.C.A. § 10-7-504(h);

ii. Information that would allow a person to obtain unauthorized access to confidential information or government property, including electronic information processing systems T.C.A. § 10-7-504(i).

jj. Identifying information of anyone who has requested the department of correction or the department of probation and parole to provide information regarding the status of a criminal proceeding or a convicted felon, T.C.A. § 10-7-504(j).

kk. Addresses, phone numbers, Social Security Numbers, and the criminal offense at issue for those persons seeking compensation as crime victims, T.C.A. § 10-7-504(k)

ll. Identifying information of those persons receiving services from the department of children’s services, T.C.A. § 10-7-504(l).

mm. Information directly related to the security of any government building, T.C.A. § 10-7-504(m).

nn. Documents concerning pricing and other financial arrangements submitted to the state for health related procurements or requests for proposal, T.C.A. § 10-7-504(n).

oo. Information related to application for handgun carry permits. T.C.A. § 10-7-504(o)

pp. Records related to school security. T.C.A. § 10-7-504(p)

qq. Certain information related to victims of sexual assault after the defendant has been convicted and sentenced. T.C.A. § 10-7-504(q) However, in The Tennessean v. Metropolitan Gov’t of Nashville, 485 SW 3d 857 (Tenn 2016), the court indicated this protection would also apply during the pendency of the criminal proceedings.

rr. Bank account information held by state government including debit card numbers, personal identification numbers, authorization codes, bank account numbers, and transit routing numbers. T.C.A. § 10-7-504(r)

ss. Records of motor vehicle insurance verification held by the Department of Revenue, Department of Safety, Department of Commerce and Insurance, Law Enforcement and the Judiciary. T.C.A. § 10-7-504(s)

tt. Certain personally identifiable information of victims of criminal offenses who are minors. T.C.A. § 10-7-504 (t)

uu. Law enforcement body camera video, however, this provision sunsets on July 1, 2022. T.C.A. §10-7-504(u)

vv. Test questions, answers, scoring keys, and other examination data for the purposes of licensing health care professionals. T.C.A. § 10-7-504(v)

A governmental body raising any of the exceptions has the burden of establishing that the records at issue fall within the exception. York v. Tex. Guaranteed Student Loan Corp., 408 S.W.3d 677, 688 (Tex. App.—Austin 2003). The Act supports a liberal construction of its provisions in favor of disclosure and narrow interpretation of its exceptions to disclosure. Simmons v. Kuzmich, 166 S.W.3d 342, 346 (Tex. 2005). Determining whether an exception applies under the Act to support withholding public information is a question of law. Abbott v. Texas Bd. of Nursing, No. 03-09-00154-CV, 2010 WL 392335, at *1 (Tex. App.—Austin 2010, no pet.) (mem. op.). Briefly, these exempt categories, paraphrased and listed by section number, are:

552. (§ 552.101): Information deemed confidential by constitutional law, statute, or judicial decision. This includes common-law privacy opinions, such as the frequently cited case Indus. Found. of the South  v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 683 (Tex. 1976), which provides that information is confidential only if “the information contain[s] highly intimate or embarrassing facts about a person's private affairs, such that its publication would be highly objectionable to a person of ordinary sensibilities.” See also Tex. Att'y Gen. ORD-405 (1983) (stating that “information may be withheld only if it is highly intimate or embarrassing, its release would be highly offensive to a reasonable person, and the public interest in its disclosure is minimal."); Tex. Att'y Gen. ORD-600 (1992). At least one Attorney General opinion suggests that records are more likely to be exempt from public disclosure on constitutional privacy rather than on common-law privacy theories. Tex. Att'y Gen. ORD-455 (1987). However, the Attorney General has used a common-law privacy test to exempt from public disclosure information concerning whether a specific public employee is participating in a deferred compensation plan, as well as communications made by participants in victim-offender mediation conducted by the Texas Department of Criminal Justice. Tex. Att'y Gen. ORD-545 (1990); Tex. Att'y Gen. ORD-659 (1999). The Austin Court of Appeals has held that business facsimile numbers of nurses collected and maintained by the Texas Board of Nursing are not confidential and are subject to disclosure.  Abbott v. Tex. Bd. of Nursing, No. 03-09-00154-CV, 2010 WL 392335, at *6 (Tex. App.—Austin 2010, no pet.) (mem. op.). The United States District Court for the Southern District of Texas has held that information contained in applications for a permit to work in sexually oriented businesses is confidential and is not subject to disclosure under the Act. N.W. Enter. v. City of Houston, 27 F.Supp.2d 754, 842-43 (S.D. Tex. 1998), aff'd in part and rev'd in part, 352 F.3d 162, 195 (5th Cir. 2004) (holding that permit applicants must disclose their phone numbers and home addresses on permit applications because there is no threat that “stalkers, overly-aggressive suitors, or people zealously opposed to [sexually oriented business]” will take action because the information on permit applications is confidential under the [Texas Public Information Act].”). Final mediated settlement agreements to which a governmental body is a party are not confidential unless expressly made confidential by other law. See Ford v. City of Huntsville, 242 F.3d 235, 241 (5th Cir. 2001); Tex. Att'y Gen. ORD-658 (1998); Abbott v. GameTech Intern., Inc., No. 03-06-00257-CV, 2009 WL 1708815, at *6-7 (Tex. App.—Austin 2009, pet. denied) (mem. op.) (“settlement letters” between the gaming commission and bingo equipment manufacturer were not exempt from disclosure because although the entities were engaged in settlement discussions, they were not engaged in statutorily defined alternative dispute resolution procedures subject to confidentiality but rather exchanged offers and counter-offers of settlement).
553. (§ 552.102) information in (1) the personnel file of a state employee the disclosure of which would constitute a clearly unwarranted invasion of personal privacy or (2) the college or graduate school transcript of a professional public school employee. The college transcript exception does not exempt information as to what degree the public school employee received or in which curriculum. Personnel files may become public record upon the death of the individual since the right of privacy dies with the individual. Op. Tex. Att'y Gen. No. H-917 (1976). [This exception, for the most part, has been narrowly construed. See Industrial Foundation v. Texas Indus. Acc. Bd., 540 S.W.2d 668, 680-85 (Tex. 1976) (applying the principle of a right of privacy as found in the United States Constitution to this exception to the Open Records Act regarding the disclosure of worker’s compensation information such as the name of the claimant, the nature of his injuries, his employer and his attorney.); Tex. Att'y Gen. ORD-405 (1983) (auditor's report on alleged conflict of interest concerning university employee not excepted and must be disclosed because it relates to the manner in which an employee performs his job and is not highly intimate or embarrassing—its release would not be highly offensive to a reasonable person and the public interest in its disclosure is not minimal). The Texas Supreme Court recently denied the requestor’s request for the disclosure of the birth dates of employees of the State Comptroller of Public Accounts holding that state employees have a privacy interest in their birth dates despite the newspaper’s claims that birth dates could be used to determine whether governmental entities like school districts and hospitals have hired convicted felons or sex offenders. Tex. Comptroller of Pub. Accounts v. Attorney General of Texas, No. 08-0172, 2010 WL 4910163, at *6, 9 (Tex. 2010). In civil cases against a police or fire department, material placed in the department's discretionary personnel file is generally privileged from disclosure. In re Jobe, 42 S.W.3d 174, 180 (Tex. App.—Amarillo 2001, no pet.); Tex. Loc. Gov't Code § 143.089(a)-(g). Material deemed to be "reasonably related to a police officer's or fire fighter's employment relationship" is also privileged. City of San Antonio v. San Antonio Express News, 47 S.W.3d 556, 563 (Tex. App.—San Antonio 2000, pet. denied). However, documents leading to disciplinary action against a fire fighter or police officer must be included in a discoverable file if the document is from the employing department. In re Jobe, 42 S.W.3d at 180; Tex. Loc. Gov't Code § 143.089(a)(2).];
554. (§ 552.103) certain information concerning criminal or civil litigation (including settlement negotiations) in which the governmental body is or may be a party, or to which an officer or employee of the state or a political subdivision, as a consequence of such employment, is or may be a party. [This exception applies when the information relates to litigation that is pending or is reasonably anticipated. Univ. of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481-82 (Tex. App.—Austin 1997, no writ) (applying exception where requestor-attorney, who had already participated in previous lawsuits against the law school, plainly stated his intent to use the requested information to solicit plaintiffs to organize a class-action lawsuit). To claim that information falls within this exception, the governmental body must also show that the requested information related to the litigation is such that release of the information would injure the governmental body's legal strategy and interests. Tex. Att'y Gen. ORD-478 (1987). It is sometimes difficult to demonstrate that litigation is "reasonably anticipated." A mere threat of a lawsuit is not enough. Tex. Att'y Gen. ORD-331 (1982). Once litigation has concluded, however, this section does not provide an exception and information must be provided unless it constitutes attorney work product which consists of information created for trial or in anticipation of civil litigation or that would tend to reveal an attorney's mental processes, conclusions and legal theories.  Tex. Att'y Gen. ORD-647 (1996).];
555. (§ 552.104) information that would give advantage to competitors or bidders. [The Texas Supreme Court greatly expanded application of this exception in Boeing Co v. Paxton, 466 S.W.3d 831 (Tex. 2015), holding that the “test under Section 552.104 is whether knowing another bidder’s [information] would be an advantage, not whether it would be a decisive advantage.” Id. at 841. The court also held that Section 552.104 is not limited to governmental bodies, and that private third parties may therefore invoke the exception.  Id. at 842.  The legislature nominally abrogated Boeing in the 2019 session through Senate Bill 943.  The substantive provisions of S.B. 943 are scattered across several sections of the Government Code, and the effect of the Boeing “fix” remains to be seen.  See Tex. Gov’t Code §§ 552.003, .0222, .104 .110, .1101, .371 (2019).
556. (§ 552.105) information concerning the location of real or personal property for public purposes before public announcement of the project as well as information concerning appraisals or purchase prices of real or personal property before formal award of a contract for the property. Tex. Att'y Gen. ORD-222 (1979); Tex. Att'y Gen. ORD-234 (1980) (stating that “[s]o long as negotiations regarding the purchase of a site. . . have not been completed . . . the city may withhold all proposed plans, locations and cost estimates” but when “the transaction has been completed, all factual information relating to the project will become available to the public.”); Tex. Att'y Gen. ORD-348 (1982). [Exception can apply to the names and addresses of landowners as release of such information could affect the purchase negotiations. See Heidenheimer v. Tex. Dept. of Transp., No. 03-02-00187-CV, 2003 WL 124248, at *2 (Tex. App.—Austin 2003, pet. denied) (mem. op.).];
557. (§ 552.106) drafts or working papers involved in the preparation of proposed legislation as are internal bill analyses and working papers evaluating proposed legislation prepared by the governor's office. [A city manager's proposed budget prior to its presentation to the city council may be excepted. Tex. Att’y Gen. ORD-460 (1987). However, a state agency's factual findings on the value of school districts' taxable property is not excepted because it is a factual inquiry rather than one that reflects “policy judgments, recommendations, or proposals” concerning the drafting of legislation. Tex. Att'y Gen. ORD-344 (1982).];
558. (§ 552.107) information protected from disclosure by court order or which the Attorney General or an attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Evidence, the Texas Disciplinary Rules of Professional Conduct, or by a court order. [This exception basically addresses information protected by attorney-client privilege. Tex. Att'y Gen. ORD-323 (1982); Tex. Att'y Gen. ORD-462 (1987); see Harlandale Indep. Sch. Dist. v. Cornyn, 25 S.W.3d 328, 333 (Tex. App.—Austin 2000, no pet.) (holding that the attorney-client privilege prohibited disclosure of an attorney's entire report-including the purely factual portion-made to her client, a school district). The exception also applies when there is a court order prohibiting disclosure. Tex. Att'y Gen. ORD-309 (1982); Tex. Att'y Gen. ORD-415 (1984).];
559. (§ 552.108) records of law enforcement agencies and prosecutors dealing with detection, investigation, or prosecution of crime. Information is excepted from disclosure if (1) its release would interfere with the detection, investigation, or prosecution of a crime; (2) it deals with the detection, investigation, or prosecution of a crime only in relation to an investigation that did not result in conviction or deferred adjudication; (3) it relates to a threat against a peace officer or corrections officer; or (4) it was prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation or reflects the mental impressions or legal reasoning of an attorney representing the state. [The press and public, however, have a right to see the following kinds of police records: (1) police blotter; (2) showup sheet; (3) arrest sheets. Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177, 186-87 (Tex. Civ. App.—Houston [14th Dist.] 1975, writ ref'd n.r.e.); see also City of Houston v. Houston Chronicle Publ'g Co., 673 S.W.2d 316, 321-22 (Tex. App.—Houston [1st Dist.] 1984, no writ) (holding that police department's policy of restricting access to blotter cards to a 24-hour period from booking was against state law). While some portions of offense reports—like a personal history and arrest record—are excepted, the public is entitled to information concerning: (1) offense committed; (2) location of crime; (3) identification and description of person filing complaint; (4) premises involved; (5) time of crime; (6) property involved; (7) vehicles involved; (8) description of weather; (9) detailed description of offense in question; and (10) names of investigating officers. Houston Chronicle Publ’g Co., 531 S.W.2d at 186-87; see also Tex. Att'y Gen. ORD-127 (1976).]

Article 57.02 of the Texas Code of Criminal Procedure allows victims of sex crimes to use pseudonyms in all public records concerning the offense, including in policy reports, press releases, and during testimony in court. Under this law, law enforcement officials cannot disclose the victim's name, address or telephone number unless ordered to do so by a court.

The law enforcement exception excludes from public disclosure the personal histories and "rap sheets" of individuals accused of crimes, the synopsis of any confession, opinions of officers as to the credibility of witnesses, and the results of lab and ballistics tests. Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177, 187-88 (Tex. Civ. App.—Houston [14th Dist.] 1975, writ ref'd n.r.e.). In order to secure the protection of this exception, the governmental body must demonstrate that release of the requested information will unduly interfere with law enforcement and crime prevention. City of San Antonio v. San Antonio Express News, 47 S.W.3d 556, 563 (Tex. App.—San Antonio 2000, pet. denied)].;

552. (§ 552.109) private correspondence or communications of an elected office holder relating to matters the disclosure of which would constitute an invasion of privacy. [Letters from students' parents concerning a teacher's performance sent to school board trustees were not shielded from disclosure since nothing in the contents violated the privacy rights of the trustees as long as information which identifies students or parents is redacted. Tex. Att'y Gen. ORD-332 (1983).];
553. (§ 552.110) trade secret or commercial or financial information obtained from a person and privileged or confidential by statute or judicial decision. Also excepted is commercial or financial information for which it is demonstrated through specific factual evidence that disclosure would cause substantial competitive harm to the person from whom the information was obtained. [Tex. Att'y Gen. ORD-592 (1991) discusses in detail the meaning of "trade secrets." But see Tex. Att'y Gen. ORD-639 (1996) (overruling Open Records Decision 592 (1991) to the extent it limited "judicial decision" to the statutory or common law of Texas and not other jurisdictions for the purposes of defining "commercial or financial information.").];
554. (§ 552.111) interagency or intraagency memoranda or letters that would not be available by law to a party in litigation with the agency. [This exception exempts from public disclosure information that is not discoverable in a lawsuit. See Op. Tex. Att'y Gen. No. H-436 (1974); Tex. Att'y Gen. ORD-251 (1980). It is patterned after Section 552(b)(5) of the federal Freedom of Information Act, 5 U.S.C. § 552(b)(5), and exempts advice, opinion, and recommendation used in the deliberative and decision-making processes within an agency or between agencies, to encourage open and frank discussion. Id.; but see Lett v. Klein Indep. Sch. Dist., 917 S.W.2d 455, 457 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (holding that documents relating to a student's conduct grade were not exempt from disclosure as they concerned implementation of current policy and not the deliberative process of policy formation). This is the proper exception under which to claim the attorney work product privilege once litigation for which the information was created has concluded. Tex. Att'y Gen. ORD-647 (1996). The Texas Supreme Court has limited this exception to protect only those agency communications or parts of agency communications that relate to the agency's policymaking. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 364 (Tex. 2000) (holding that a city manager's memorandum on reasons why to fire a city finance director was not exempt from disclosure since it did not relate to policymaking); Arlington Indep. Sch. Dist. v. Tex. Attorney Gen., 37 S.W.3d 152, 160-61 (Tex. App.—Austin 2001, no pet.) (holding that factual compilations from survey responses are not protected under this exception as they are not pre-decision memoranda related to policymaking). The exception may apply to information created for a governmental body by an outside consultant when the consultant is acting at the request of the governmental body and performing a task within the authority of that body. Tex. Att'y Gen. ORD-631 (1995).];
555. (§ 552.112) information in or related to examining, operating, or condition reports by or for agencies responsible for the regulation or supervision of financial institutions or securities, or both. [Records describing the general condition of a particular type of financial institutions are not excepted. Tex. Att'y Gen. ORD-483 (1987).];
556. (§ 552.113) certain geological or geophysical information or data, including maps concerning wells (except information filed in connection with an application or proceeding before an agency), confidential "electric logs" (as defined in the Natural Resources Code), and "confidential material" filed in the General Land Office. Information filed in connection with an application or proceeding before an agency is not excepted. [The purpose of this exception is to only protect commercially valuable geological and geophysical information about the exploration and development of natural resources. Tex. Att'y Gen. ORD-627 (1994).];
557. (§ 552.114) student records at educational institutions funded wholly or in part by state revenue. Records that contain information related to an identifiable student are excepted from disclosure except when requested by the student, spouse, parents, legal guardian, certain school personnel, or a person conducting a child abuse investigation as defined in the Family Code. [This exception is intended to conform with the federal Family Educational Rights and Privacy Act of 1974. This federal act permits schools to release certain types of "directory information" concerning a student (such as his name, address, telephone number, date and place of birth, and major field of study) if the school has notified the student what the school has designated as "directory" and given the student reasonable time to request that such information not be released without his consent. Tex. Att'y Gen. ORD-634 (1996).];
558. (§ 552.115) birth and death records maintained by the bureau of vital statistics of the Texas Department of Health. However, birth records become public 75 years after they are filed and death records become public 25 years after they are filed. General birth and death indices established and maintained by the Bureau of Vital Statistics are not excepted from disclosure to the extent they do not reveal adoption or paternity determinations;
559. (§ 552.116) audit working papers of the state auditor, the auditor of a state agency, an institution of higher education as defined in the Education Code, a county, a municipality, or a joint board operating under the Transportation Code;
560. (§ 552.117) information relating to the home addresses, home telephone numbers, or Social Security numbers of current or former governmental officials and employees, current or former employees of the Texas Department of Criminal Justice, as well as certain peace officers and security officers, or information that reveals whether such persons have family members, except as otherwise provided in § 552.024. [Government employees and officials can choose, in writing, whether to allow public access to such information. See Tex. Gov't Code § 552.024; § 552.1175. The 1995 amendments added exemptions for Social Security numbers and information that reveals whether a person has family members.];
561. (§ 552.1175) information relating to the home address, home telephone number, Social Security number, or information revealing whether the individual has family members may not be revealed and applies to peace officers, county jailers, current of former employees of the Texas Department of Criminal Justice, security officers as defined in the Occupations Code, employees of a district or county attorney, any county or municipal attorney whose jurisdiction includes criminal law or child protective services, officers and employees of a community supervision and corrections department established under the Code, criminal investigators of the United States, and police officers and inspectors of the United States Federal Protective Service.
562. (§ 552.1176) information relating to the home address, home telephone number, electronic mail address, social security number, or date of birth of a person licensed to practice law in Texas may not be disclosed if the person to whom the information relates chooses to restrict public access to the information and notifies the State Bar of Texas of the person's choice, in writing or electronically, on a form provided by the state bar.
563. (§ 552.118) information on or derived from a triplicate prescription form filed with the Department of Public Safety;
564. (§ 552.119) photographs that depict certain peace officers or security officers where release would endanger their lives or physical safety unless the officer is under indictment or charged with an offense by information, is a party in a civil service hearing or a case in arbitration, or the photograph is introduced as evidence in a judicial proceeding. Such photographs may be made public only if written consent is provided by the peace officer. [The 1993 amendments broadened this exemption to include the phrase "physical safety." The exemption ceases to apply after the death of the officer. Tex. Att'y Gen. ORD-536 (1989).];
565. (§ 552.120) rare books or original manuscripts not created or maintained in the conduct of official business and held for historical research;
566. (§ 552.121) oral histories, personal papers, unpublished letters, or organizational records of certain nongovernmental entities that was not created or maintained in the conduct of official business of a governmental body and that are held for historical purposes to the extent that the archival and repository and the donor agree to limit disclosure;
567. (§ 552.122) test items of educational institutions funded wholly or in part by state revenues and test items developed by licensing agencies or governmental bodies. [The term "test item" includes any standard means through which an individual or group's knowledge or ability is evaluated but does not encompass an employee's job performance or suitability. Tex. Att'y Gen. ORD-626 (1994). Determinations are made on a case by case basis. See id. The 1995 amendments deleted curriculum objectives from exempt status.];
568. (§ 552.123) the names of applicants for chief executive officer of institutions of higher education, except that the governing bodies of these institutions must give the public notice of the names of finalists at least 21 days before the meeting at which final action or vote is to be taken on the employment of the person;
569. (§ 552.1235) the name or other information disclosing the identity of a person who makes a donation or gift to an institution of higher learning. This section does not exempt other information relating to the amount or value of a gift or donation;
570. (§ 552.124) records of libraries or library systems, supported in whole or in part by public funds, that identify a person who requested, obtained, or used a library material or service, unless the record is disclosed: (1) because the library or library system determines that disclosure is reasonably necessary for library operation and the record is not confidential under other state or federal law, or (2) pursuant to a special right of access of confidential information under § 552.023, or (3) to a law enforcement agency or prosecutor pursuant to a court order or subpoena after a showing to a district court that disclosure of the record is necessary to protect the public safety or the record is evidence of an offense or constitutes evidence that a particular person committed an offense.
571. (§ 552.125) any documents or information privileged under the Texas Environmental, Health and Safety Audit Privilege Act;
572. (§ 552.126) the names of applicants for superintendent of a public school district, except that the board of trustees must give the public notice of the names of finalists at least 21 days before meeting at which final action or vote is to be taken on the employment of the person;
573. (§ 552.127) information identifying a person as a participant in a neighborhood crime watch organization;
574. (§ 552.128) information submitted by a potential vendor or contractor to a governmental body in connection with an application for certification as a historically under-utilized or disadvantaged business;
575. (§ 552.129) records created during a motor vehicle emissions inspection that relate to an individual vehicle or owner of an individual vehicle;
576. (§ 552.130) a motor vehicle operator's or driver's license or permit issued by a Texas agency, a motor vehicle title or registration issued by a Texas agency, or a personal identification document issued by a Texas agency or local agency authorized to issue an identification document. Information may only be released as authorized by Chapter 730 of the Transportation Code;
577. (§ 552.131) information relating to economic development negotiations involving a governmental body and a business prospect that the government seeks to have locate, stay, or expand in or near the territory of the governmental body and the information pertains to a trade secret of the business prospect, or commercial or financial information the disclosure of which would cause substantial harm to the individual from whom the information was obtained.  However, after an agreement is made with the business prospect, information about a financial or other incentive being offered to the business prospect by the governmental body or by another person, if the financial or other incentive may directly or indirectly result in the expenditure of public funds by a governmental body or a reduction in revenue received by a governmental body from any source, is subject to the Act.
578. (§ 552.132) a crime victim as defined by the Code of Criminal Procedure who has filed for compensation may elect to allow access to information revealing the name, Social Security number, or telephone number of the victim (however, if the crime victim is awarded compensation, as of the date of the award of compensation, the name of the crime victim and the amount of compensation awarded are public information);
579. (§ 552.1325) information relating to a crime victim's name, Social Security number, address, home telephone number, or any other information which may identify the victim contained in the victim's impact statement as defined by the Code of Criminal Procedure;
580. (§ 552.133) information relating to the public power utility's competitive activity that if disclosed would give advantage to competitors or prospective competitors. Certain information such as that relating to the provision of distribution access service or transmission service, the distribution system pertaining to reliability and continuity of service, or service offerings, service regulations, customer protections, or customer service;
581. (§ 552.134) information maintained by the Texas Department of Criminal Justice pertaining to an inmate. Exception does not apply to an inmate sentenced to death or statistical or other aggregated information relating to inmates confined in a facility operated or under contract with the department;
582. (§ 552.135) information that might reveal the identity of an informant who revealed information of another person's possible violation of criminal, civil, or regulatory law to the school district unless the informant gives consent or the informer planned, initiated, or participated in the possible violation;
583. (§ 552.136) information relating to a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential. "Access device" is defined as any instrument or means of account access that can be used to obtain money, goods, or services, or initiate a transfer of funds;
584. (§ 552.137) e-mail addresses of members of the public provided for the purpose of communicating electronically with a governmental body is excepted from disclosure, unless the member of the public consents to its release. E-mail addresses not excepted include those from a person who has a contractual relationship with a governmental body, a vendor who seeks to contract with the agency, a response to a request for bids or proposals, or on letterhead or other document made available to the public;
585. (§ 552.138) information revealing the identity of clients, private donors, trustees, and board members, or the location or physical layout of family violence shelter centers and sexual assault programs are all excepted from disclosure;
586. (§ 552.139) information relating to computer network security or to the design, operation, or defense of a computer network;
587. (§ 552.140) military discharge records are confidential for the first 75 years following the date a record is recorded with or first comes into the possession of a governmental body. During that time, the veteran who is the subject of the record, the spouse, child, legal guardian, or parent of the veteran, the personal representative of the estate of the veteran, a person named by the veteran, or another governmental body may view the record by presenting proper identification;
588. (§ 552.141) information relating to the Social Security number of an applicant for a marriage license maintained by a county clerk and on an application for a marriage license;
589. (§ 552.142) information subject to an order of nondisclosure with respect to information issued under a deferred adjudication;
590. (§ 552.1425) information relating to criminal histories compiled by private entities for compensation subject to an order of non-disclosure;
591. (§ 552.143) information prepared or provided by a private investment fund, held by a government body, and not listed in Section 552.0225(b);
592. (§ 552.144) the working papers and electronic communications of an administrative law judge;
593. ((§ 552.145) a Texas no-call list as established in the Business and Commerce Code and any information received from the national no-call registry as established under federal law;
594. (§ 552.146) written or otherwise recorded communications between a member of the legislature or the lieutenant governor and an assistant or an employee of the Legislative Budget Board. Record or memoranda of a communication occurring in public during an open meeting or public hearing conducted by the Legislative Budget Board is not exempt;
595. (§ 552.147) the Social Security number of a living person may be redacted from any information disclosed by a government body;

aaa. (§ 552.148) the name, address, telephone number, and social security number of a minor participating in a recreational program or activity, as well as photographs and the name of the minor’s parent or legal guardian;

bbb. (§ 552.149) certain records of a Comptroller or Appraisal District identified under Chapter 6 of the Tax Code;

ccc. (§552.150) information that could compromise the safety of officers or employees of a hospital district;

ddd. (§ 552.151) certain information pertaining to biological agents or toxins identified or listed as a select agent under federal law;

eee. (§ 552.153) proprietary records and trade secrets involved in certain partnerships;

fff. (§ 552.154) the names of applicants for the Executive Director, Chief Investment Officer, and Chief Audit Executive positions with the Teacher Retirement System of Texas;

ggg. (§552.155) certain property tax appraisal photographs;

hhh. (§ 552.156) Continuity Operations plans developed under Texas Labor Code § 412.054, and related records;

iii. (§552.157) Blank;

jjj. (§552.158) personal information obtained by the governor or senate in connection with an application for appointment by the governor, including: the applicant’s home address, telephone number, and social security number;

kkk. (§552.159) work schedule or a time sheet of a firefighter or volunteer firefighter or emergency medical services personnel; information obtained by a governmental body that was provided by an out-of-state health care provider in connection with a quality management, peer review, or best practices program that the out-of-state health care provider pays for; information obtained by a flood control district located in a county with a population of 3.3 million or more in connection with operations related to a declared disaster or flooding;

lll. (§552.160) personal information of applicant for disaster recovery funds.

Private records. The following records are private and therefore exempt from public disclosure under GRAMA:

a. “records concerning an individual’s eligibility for unemployment insurance benefits, social services, welfare benefits, or the determination of benefit levels”;

b. records containing an individual’s medical history;

c. records of publicly funded libraries used to identify a patron;

d. records received or generated by or for: (i) the Independent Ethics Commission, except for the summary data report and other documents classified as public under legislative rule; and (ii) a Senate or House Ethics Committee in relation to the review of ethics complaints, unless record is classified as public under legislative rule;

e. records received by, or generated by or for, the Independent Executive Branch Ethics Commission, except as expressly provided in Title 63A, Chapter 14;

f. records of a Senate confirmation committee “concerning character, professional competence, or physical or mental health of an individual: (i) if, prior to the meeting, the chair of the committee determines release of the records” will interfere with the committee’s investigation or could deprive the individual of a fair hearing and (ii) “after the meeting, if the meeting was closed to the public”;

g. records concerning a current or former employee of, or applicant for employment with, a government entity “that would disclose that individual’s home address, home telephone number, social security number, insurance coverage, marital status, or payroll deductions”;

h. records or parts of records that a current or former employee identifies as private according to the requirements of Section 63G-2-303;

i. that part of a record indicating a person’s Social Security number or federal employer identification number if provided under Section 31A-23a-104, 31A-25-202, 31A-26-202, 58-1-301, 58-55-302, 61-1-4, or 61-2f-203;

j. that part of a voter registration record identifying a voter’s driver license or identification card number, Social Security number, or last four digits of the Social Security number, email address, or date of birth;

k. a voter registration record that is classified as a private record by the lieutenant governor or a county clerk under Subsection 20A-2-104(4)(f) or 20A-1-101.1(5)(a);

l. a record that contains information about an individual; is voluntarily provided by the individual; and goes into an electronic database that: is designated by and administered under the authority of the Chief Information Officer; and acts as a repository of information about the individual that can be electronically retrieved and used to facilitate the individual’s online interaction with a state agency;

m. information provided to the Commissioner of Insurance under: Subsection 31A-23a-115(3)(a); Subsection 31A-23a-302(4); or Subsection 31A-26-210(4);

n. information obtained through a criminal background check under Title 11, Chapter 40;

o. information provided by an offender that is: required by the registration requirements of Title 77, Chapter 41, Sex and Kidnap Offender Registry; and not required to be made available to the public under Subsection 77-41-110(4);

p. a statement and any supporting documentation filed with the attorney general in accordance with Section 34-45-107, if the federal law or action supporting the filing involves homeland security;

q. electronic toll collection customer account information received or collected under Section 72-6-118 and customer information described in Section 17B-2a-815 received or collected by a public transit district, including contact and payment information and customer travel data;

r. an email address provided by a military or overseas voter;

s. a completed military-overseas ballot that is electronically transmitted;

t. records received by or generated by or for the Political Subdivisions Ethics Review Commission established in Section 11-49-201, except for; the commission’s summary data report that is required in Section 11-49-202; and any other document that is classified as public in accordance with Title 11, Chapter 49, Political Subdivisions Ethics Review Commission;

u. a record described in Subsection 53A-11a-203(3) that verifies that a parent was notified of an incident or threat; and

v. a criminal background check or credit history report conducted in accordance with Section 63A-3-201.

Utah Code § 63G-2-302(1).

The following records are private if properly classified as such by a government entity:

a. “records concerning a current or former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information”;

b. “records describing an individual’s finances, except those that are expressly classified as public”;

c. “records of independent state agencies if the disclosure of those records would conflict with fiduciary obligations of the agency”;

d. other records containing information on an individual, the disclosure of which constitutes a clearly unwarranted invasion of personal privacy;

e. records provided by the United States government or a government entity outside the state, that are provided with the requirement that the records be classified as private; and

f. any portion of a record in the custody of the Division of Aging and Adult Services that may disclose, or lead to the discovery of, the identity of a person who made a report of alleged abuse, neglect, or exploitation of a vulnerable adult; and

g. audio and video recordings created by a body-worn camera “except for recordings that: (i) depict the commission of an alleged crime; (ii) record any encounter between a law enforcement officer and a person that results in death or bodily injury, or includes an instance when an officer fires a weapon; (iii) record any encounter that is the subject of a complaint or a legal proceeding against a law enforcement officer or law enforcement agency; (iv) contain an officer involved critical incident as defined in Section 76-2-408(1)(d); or (v) have been requested for reclassification as a public record by a subject or authorized agent of a subject featured in the recording”; and

h. medical records unless the records are in the possession of the University of Utah Hospital and are sought (i) “in connection with any legal or administrative proceeding in which the patient’s physical, mental, or emotional condition is an element of any claim or defense,” or (ii) “after a patient's death, in any legal or administrative proceeding in which any party relies upon the condition as an element of the claim or defense.”

Id. § 63G-2-302(2)-(3).

A government entity shall disclose a private record to the following individuals: “(a) the subject of the record; (b) the parent or legal guardian of an unemancipated minor who is the subject of the record; (c) the legal guardian of a legally incapacitated individual who is the subject of the record”; (d) an individual who “has a power of attorney from the subject of the record”; (e) an individual who submits a notarized release from the subject of the record; (f) a health care provider if the record is a medical record and releasing the record is consistent with normal professional practice and medical ethics; and (g) “any individual to whom the record must be provided pursuant to court order or legislative subpoena.” Id. § 63G-2-202(1).

A government entity may, in its discretion, disclose records that are classified properly as private to persons other than those specified above if the head of the government entity, or a designee, determines that the interests favoring access to the record outweigh the interests favoring restriction of access. See id. § 63G-2-201(5)(b).

If more than one subject is included in the private record, the record shall be segregated. See id. § 63G-2-202(3).

Private Information on Certain Government Employees. At-risk government employees—meaning former or current (i) peace officers, (ii) federal, state, and military judges, (iii) United States Attorneys and Assistant United States Attorneys, (iv) armed forces and military prosecutors, and (v) law enforcement personnel—may request that a government entity “holding a record or part of a record that would disclose the employee’s or the employee’s family member’s home address, home telephone number, Social Security number, insurance coverage, marital status, or payroll deductions” identify and classify such records as private. See Utah Code § 63G-2-303(1)-(2).

Controlled records. The following records are controlled and therefore exempt from public disclosure under GRAMA if:

a. “the record contains medical, psychiatric, or psychological data about an individual” (unless the record is in the possession of the University of Utah Hospital and is sought “(i) in connection with any legal or administrative proceeding in which the patient’s physical, mental, or emotional condition is an element of any claim or defense; or (ii) after a patient’s death, in any legal or administrative proceeding in which any party relies upon the condition as an element of the claim or defense”);

b. the government entity reasonably believes that releasing the information would (i) be “detrimental to the subject’s mental health or to the safety of any individual; or (ii) releasing the information would constitute a violation of normal professional practice and medical ethics;” and

c. “the government entity has properly classified the record.”

Utah Code §§ 63G-2-302(3), -304.

A government entity shall disclose a controlled record to the following individuals: (a) a physician, psychologist, certified social worker, insurance provider or agent, or a government public health agency that submits a notarized release and a signed acknowledgment from the subject of the record; and (b) any person to whom the record must be disclosed pursuant to a court order. See id. § 63G-2-202(2).

If more than one subject is included in the controlled record, the record shall be segregated. See id. § 63-2-202(3).

Protected records. The following records are protected if classified properly by the government entity:

a. trade secrets;

b. commercial information or nonindividual financial information if: (i) disclosure of the information could result in an unfair competitive injury to the person submitting the information or would impair the government from obtaining necessary future information; (ii) the person submitting the information has a greater interest in prohibiting access than the public does in obtaining access; and (iii) the person submitting the information has been properly approved for a business confidentiality claim;

c. commercial or financial information to the extent that disclosure would lead to financial speculations in currencies, securities, or commodities that will interfere with a planned government transaction or cause financial injury to the state economy;

d. “records the disclosure of which could cause commercial injury to, or confer a competitive advantage upon a potential or actual competitor of, a commercial project entity”;

e. “test questions and answers to be used in future license, certification, registration, employment, or academic examinations”;

f. records the disclosure of which would give an unfair advantage to a person proposing to enter into a contract with the government, although a person can see the contract bids after the bidding has been closed;

g. information submitted to or by a governmental entity in response to a request for information, except after a contract directly relating to the subject of the request for information has been awarded and signed by all parties, or a final determination is made not to enter into a contract that relates to the subject of the request for information and at least two years have passed after the day on which the request for information is issued;

h. records that would identify real property or the appraised value of personal or real property under consideration for public acquisition, unless: (i) the public’s interest in the information outweighs the government’s interest in acquiring the property on the best possible terms; (ii) the information has already been disclosed to those not required to keep the information confidential; (iii) potential sellers of the property already have learned of the government’s plans to acquire the property; (iv) the potential seller of the property already has learned of the government’s estimated value of the property; or (v) if the property in consideration is a single family residence, the government entity seeking to acquire the property has initiated negotiations to acquire the property as required by law;

i. records prepared in contemplation of sale, exchange, lease, rental, or other compensated real or personal property transaction that, if disclosed, would reveal the estimated or appraised value of the property, unless: (i) the public’s interest in the information outweighs the government’s interest in acquiring the property on the best possible terms; or (ii) the information already has been disclosed to those not required to keep the information confidential;

j. “records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes,” if release of the records: (i) reasonably could be expected to interfere with the investigations; (ii) reasonably could be expected to interfere with the audit, disciplinary, or enforcement proceedings; (iii) would create a danger of depriving a person of a right to a fair trial or an impartial hearing; (iv) reasonably could be expected to disclose a confidential source’s identity; or (v) reasonably could be expected to disclose audit or investigative techniques, procedures, policies, or orders not generally known outside the government entity if disclosure would interfere with enforcement or audit efforts;

k. “records the disclosure of which would jeopardize the life or safety of an individual”;

l. records the disclosure of which would jeopardize the security of government property, programs, or recordkeeping systems;

m. records the disclosure of which would jeopardize the security or safety of a correctional facility or that would interfere with the control and supervision of the offender;

n. records the disclosure of which would reveal recommendations made to the Board of Pardons and Parole by its employees or related entities;

o. records of the State Tax Commission the disclosure of which would interfere with the audits and collections performed by the State Tax Commission;

p. “records of a governmental audit agency relating to an ongoing or planned audit” before release of the final audit;

q. “records of a governmental audit agency relating to an ongoing or planned audit until the final audit is released”;

r. “records that are subject to the attorney client privilege”;

s. records prepared for or by an attorney, consultant, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding;

t. a legislator’s personal files, unless they include notice of legislative action or policy;

u. records in the custody or control of the Office of Legislative Research and General Counsel that, if disclosed, would reveal a legislator’s contemplated course of action before the legislator’s final decision;

v. research requests from a legislator to the Office of Legislative Research and General Counsel or to the Office of the Legislative Fiscal Analyst and the responses to such requests;

w. “drafts, unless otherwise classified as public”;

x. “records concerning a governmental entity’s strategy about collective bargaining or imminent or pending litigation”;

y. “records of investigations of loss occurrences and analyses of loss occurrences that may be covered by the Risk Management Fund, the Employers’ Reinsurance Fund, the Uninsured Employers’ Fund, or similar divisions in other governmental entities”;

z. records, other than personnel evaluations, that contain a personal recommendation if disclosure would constitute a clearly unwarranted invasion of personal privacy or is not in the public interest;

aa. records that reveal the location of historic, prehistoric, paleontological, or biological resources that, if known, would jeopardize the security of those resources;

bb. records of independent state agencies if their disclosure would violate a fiduciary duty;

cc. records of a public institution of higher education regarding tenure evaluations, appointments, applications for admissions, retention decisions, and promotions that could be discussed properly in a legally closed meeting; however, final decision on these matters may not be classified as protected;

dd. records of the governor’s office that would reveal the governor’s contemplated policies or actions before the governor has implemented or rejected those policies or courses of action or made them public;

ee. “records of the Office of the Legislative Fiscal Analyst relating to budget analysis, revenue estimates, and fiscal notes of proposed legislation before issuance of the final recommendations in these areas”;

ff. records provided by the United States government or by another state that are given to the government entity with the requirement that they be maintained as protected;

gg. “transcripts, minutes or reports of the closed portion of a meeting,” except as otherwise provided by law;

hh. records that reveal the contents of settlement negotiations, except for final settlements or empirical data to the extent that such settlements or data are not otherwise exempt from disclosure;

ii. staff memoranda used in the decision-making function of any quasi-judicial body;

jj. “records that would reveal negotiations regarding assistance or incentives offered by or requested from a governmental entity for the purpose of encouraging a person to expand or locate a business in Utah, but only if disclosure would result in actual economic harm to the person or place the governmental entity at a competitive disadvantage, but this section may not be used to restrict access to a record evidencing a final contract”;

kk. materials to which access must be limited for purposes of securing or maintaining the government entity’s proprietary protection of intellectual property rights;

ll. the name or other information that may reveal the identity of a donor or potential donor to a government entity, provided that: (i) the donor requests anonymity in writing; (ii) terms or conditions relating to the donation may not be classified as protected; and (iii) except for public institutions of higher education, the government unit to which the donation is made is engaged primarily in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority over the donor, a member of his immediate family, or any entity owned or controlled by the donor or his immediate family;

mm. accident reports, except as provided by law;

nn. notification of workers’ compensation insurance coverage as described by law;

oo. the following records of a public institution of education that have been developed, discovered, or received by or on behalf of faculty, staff, employees, or students of the institution: unpublished lecture notes, unpublished research notes and data, unpublished manuscripts, creative works in process, scholarly correspondence, and confidential information contained in research proposals;

pp. “records in the custody or control of the Office of Legislative Auditor General that would reveal the name of a particular legislator who requests a legislative audit prior to the date that audit is completed and made public” (although a submitted request for a legislative audit “is a public document” unless the legislator asks that the records revealing the name “be maintained as public records until the audit is completed and made public”);

qq. records, including maps, that detail the location of an explosive or production facility;

rr. information contained in the Division of Aging and Adult Services database or information received or maintained relating to the Identity Theft Reporting Information System;

ss. “information contained in the Management Information System and Licensing Information System”;

tt. information pertaining to the National Guard’s operations or activities;

uu. records that a pawn or secondhand business provides to law enforcement or to the central database;

vv. “information regarding food security, risk, and vulnerability assessments performed by the Department of Agriculture and Food” and Department of Agriculture and Food records relating to the National Animal Identification System or relating to livestock diseases;

ww. records related to emergency plans prepared or maintained by the Division of Emergency Management if disclosure of the records would endanger public safety or the security of government property, government programs, or a private person’s property if that person provides information to the Division;

xx. unsubstantiated or anonymous complaints held by the Department of Health regarding child care programs;

yy. unless otherwise classified as public under the law, an individual’s personal contact information if the individual is required to produce such information by law or by government order and the individual has a reasonable expectation that such information will be kept confidential;

zz. the personal and business contact information of an individual who performs or is involved in medical or scientific research involving animals if that research is conducted within the state system of higher education;

aaa. unless otherwise made public, initial proposals under the Government Procurement Private Proposal Program;

bbb. unless otherwise made public under the law, information collected and prepared by the Judicial Performance Evaluation Commission concerning a judge;

ccc. “records contained in the Management Information System created in Section 62A-4a-1003”;

ddd. records of the Public Land Policy Coordinating Office in furtherance of certain agreements;

eee. “information requested by and provided to the 911 Division under Section 63H-7a-302”;

fff. a management plan for water conveyance facility in the possession of the Division of Water Resources or the Board of Water Resources; or an outline of an emergency response plan possessed by state or local government;

ggg. The following records in the custody or control of the Office of Inspector General of Medicaid services: (i) records disclosing allegations of personal misconduct which cannot be corroborated through other evidence, and the records are not relied upon in preparing a final investigation or audit report; (ii) records disclosing the identity of a person who communicated the existence of any Medicaid fraud, waste, or abuse, or a violation or suspected violation of a law, rule, or regulation, if the information was disclosed on the condition the person’s identity be protected; (iii) before the time that an investigation or audit is completed and the final investigation or final audit report is released, records or drafts circulated to a person who is not an employee or head of a governmental entity for the person’s response or information; (iv) records that would disclose an outline or part of any investigation, audit survey plan, or audit program; or (v) requests for an investigation or audit, if disclosure would risk circumvention of an investigation or audit;

hhh. records that reveal methods used by the Office of Inspector General of Medicaid Services, the fraud unit, or the Department of Health, to discover Medicaid fraud, waste, or abuse;

iii. information provided to the Department of Health or the Division of Occupational and Professional Licensing by law;

jjj. a record described in Section 63G-12-210;

kkk. captured plate data that is obtained through an automatic license plate reader system used by a governmental entity as authorized by law;

lll. Any record in the custody of the Utah Office for Victims of Crime relating to a victim, including: (i) a victim’s application or request for benefits; (ii) a victim’s receipt or denial of benefits; and (iii) any administrative note or records created to evaluate or communicate a victim’s eligibility for or denial of benefits form the Crime Victim Reparations Fund.

mmm. an audio or video recording created by a body-worn camera that records sound or images inside a hospital or health care facility, inside a clinic of a health care provider, or inside a human service program, except for recordings that: (i) depict the commission of an alleged crime; (ii) record any encounter between law enforcement and a person that results in death or bodily injury or includes an instance when an officer fires a weapon; (iii) record any encounter that is the subject of a legal proceeding against a law enforcement officer or agency; (iv) contains an officer involved critical incident; (v) have been requested for reclassification as a public record by a subject featured in recording, or the subject’s authorized agent; and

nnn. records pertaining to the search process for a president of an institution of higher education, except for application materials for publicly announced finalists.

Utah Code § 63G-2-305.

A government entity shall disclose a protected record to the following: (a) the person who submitted the record; (b) any individual who has a power of attorney or submits a notarized release from all persons, government entities, and political subdivisions whose interests were sought to be protected by the protected classification; or (c) any person to whom the record must be disclosed pursuant to a court order or legislative subpoena. Id. § 63G-2-202(4).

A government entity may, in its discretion, disclose records that are protected to persons other than those specified above if the head of the government entity, or a designee, determines that the interests favoring access to the record outweigh the interests favoring restriction of access. Id. § 63G-2-201(5)(b). A governmental entity may also disclose protected records if: (i) the disclosure is determined to be mutually beneficial to the subject of the record, the governmental entity, and the public; (ii) the disclosure serves a public safety or consumer protection purpose; and (iii) the record will not be used for advertising or solicitation purposes. Id. § 63G-2-201(5)(c).

Section 317(c) of the Public Records Act exempts the following categories of public records from public inspection and copying:

 

(1)  Records which by law are designated confidential or by a similar term.

(2)  Records which by law may only be disclosed to specifically designated persons.

(3)  Records which, if made public pursuant to this subchapter, would cause the custodian to violate duly adopted standards of ethics or conduct for any profession regulated by the State.

(4)  Records which, if made public pursuant to this subchapter, would cause the custodian to violate any statutory or common law privilege other than the common law deliberative process privilege as it applies to the General Assembly and the Executive Branch agencies of the State of Vermont.

(5)  (A) Records dealing with the detection and investigation of crime, but only to the extent that the production of such records:

(i)  could reasonably be expected to interfere with enforcement proceedings;

(ii)  would deprive a person of a right to a fair trial or an impartial adjudication;

(iii)  could reasonably be expected to constitute an unwarranted invasion of personal privacy;

(iv)  could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;

(v)  would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecution if such disclosure could reasonably be expected to risk circumvention of the law;

(vi)  could reasonably be expected to endanger the life or physical safety of any individual.

(B)  Notwithstanding subdivision (A) of this subdivision (5), records relating to management and direction of a law enforcement agency; records reflecting the initial arrest of a person, including any ticket, citation, or complaint issued for a traffic violation, as that term is defined in 23 V.S.A. § 2302; and records reflecting the charge of a person shall be public.

(C)  It is the intent of the General Assembly that in construing subdivision (A) of this subdivision (5), the courts of this State will be guided by the construction of similar terms contained in 5 U.S.C. § 552(b)(7) (Freedom of Information Act) by the courts of the United States.

(D)  It is the intent of the General Assembly that, consistent with the manner in which courts have interpreted subdivision (A) of this subdivision (5), a public agency shall not reveal information that could be used to facilitate the commission of a crime or the identity of a private individual who is a witness to or victim of a crime, unless withholding the identity or information would conceal government wrongdoing. A record shall not be withheld in its entirety because it contains identities or information that have been redacted pursuant to this subdivision.

(6)  A tax return and related documents, correspondence, and certain types of substantiating forms which include the same type of information as in the tax return itself filed with or maintained by the Vermont Department of Taxes or submitted by a person to any public agency in connection with agency business.

(7)  Personal documents relating to an individual, including information in any files maintained to hire, evaluate, promote, or discipline any employee of a public agency, information in any files relating to personal finances, medical or psychological facts concerning any individual or corporation; provided, however, that all information in personnel files of an individual employee of any public agency shall be made available to that individual employee or his or her designated representative.

(8)  Test questions, scoring keys, and other examination instruments or data used to administer a license, employment, or academic examination.

(9)  Trade secrets, meaning confidential business records or information, including any formulae, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented, which a commercial concern makes efforts that are reasonable under the circumstances to keep secret, and which gives its user or owner an opportunity to obtain business advantage over competitors who do not know it or use it, except that the disclosures required by 18 V.S.A. § 4632 are not exempt under this subdivision.

(10)  Lists of names compiled or obtained by a public agency when disclosure would violate a person’s right to privacy or produce public or private gain; provided, however, that this section does not apply to lists which are by law made available to the public, or to lists of professional or occupational licensees.

(11)  Student records, including records of a home study student; provided, however, that such records shall be made available upon request under the provisions of the Federal Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, as may be amended.

(12)  Records concerning formulation of policy where such would constitute a clearly unwarranted invasion of personal privacy, if disclosed.

(13)  Information pertaining to the location of real or personal property for public agency purposes prior to public announcement of the project and information pertaining to appraisals or purchase price of real or personal property for public purposes prior to the formal award of contracts thereof.

(14)  Records which are relevant to litigation to which the public agency is a party of record, provided all such matters shall be available to the public after ruled discoverable by the court before which the litigation is pending, but in any event upon final termination of the litigation.

(15)  Records relating specifically to negotiation of contracts, including collective bargaining agreements with public employees.

(16)  Any voluntary information provided by an individual, corporation, organization, partnership, association, trustee, estate, or any other entity in the State of Vermont, which has been gathered prior to the enactment of this subchapter, shall not be considered a public document.

(17)  Records of interdepartmental and intradepartmental communications in any county, city, town, village, town school district, incorporated school district, union school district, consolidated water district, fire district, or any other political subdivision of the State to the extent that they cover other than primarily factual materials and are preliminary to any determination of policy or action or precede the presentation of the budget at a meeting held in accordance with section 312 of this title.

(18)  Records of the Office of Internal Investigation of the Department of Public Safety, except as provided in 20 V.S.A. § 1923.

(19)  Records relating to the identity of library patrons or the identity of library patrons in regard to library patron registration records and patron transaction records in accordance with 22 V.S.A. chapter 4.

(20)  Information that would reveal the location of archaeological sites and underwater historic properties, except as provided in 22 V.S.A. § 761.

(21)  Lists of names compiled or obtained by Vermont Life magazine for the purpose of developing and maintaining a subscription list, which list may be sold or rented in the sole discretion of Vermont Life magazine, provided that such discretion is exercised in furtherance of that magazine’s continued financial viability, and is exercised pursuant to specific guidelines adopted by the editor of the magazine.

(22)  [Repealed.]

(23)  Any data, records, or information produced or acquired by or on behalf of faculty, staff, employees, or students of the University of Vermont or the Vermont State Colleges in the conduct of study, research, or creative efforts on medical, scientific, technical, scholarly, or artistic matters, whether such activities are sponsored alone by the institution or in conjunction with a governmental body or private entity, until such data, records, or information are published, disclosed in an issued patent, or publicly released by the institution or its authorized agents. This subdivision applies to, but is not limited to, research notes and laboratory notebooks, lecture notes, manuscripts, creative works, correspondence, research proposals and agreements, methodologies, protocols, and the identities of or any personally identifiable information about participants in research. This subdivision shall not exempt records, other than research protocols, produced or acquired by an institutional animal care and use committee regarding the committee’s compliance with State law or federal law regarding or regulating animal care.

(24)  Records of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity.

(25)  Passwords, access codes, user identifications, security procedures, and similar information the disclosure of which would threaten the safety of persons or the security of public property.

(26)  Information and records provided to the Department of Financial Regulation by a person for the purposes of having the Department assist that person in resolving a dispute with any person regulated by the Department, and any information or records provided by a person in connection with the dispute.

(27)  Information and records provided to the Department of Public Service by an individual for the purposes of having the Department assist that individual in resolving a dispute with a utility regulated by the Department, or by the utility or any other person in connection with the individual’s dispute.

(28)  Records of, and internal materials prepared for, independent external reviews of health care service decisions pursuant to 8 V.S.A. § 4089f and of mental health care service decisions pursuant to 8 V.S.A. § 4089a.

(29)  The records in the custody of the Secretary of State of a participant in the Address Confidentiality Program described in 15 V.S.A. chapter 21, subchapter 3, except as provided in that subchapter.

(30)  All State-controlled database structures and application code, including the vermontvacation.com website and Travel Planner application, which are known only to certain State departments engaging in marketing activities and which give the State an opportunity to obtain a marketing advantage over any other state, regional, or local governmental or nonprofit quasi-governmental entity, or private sector entity, unless any such State department engaging in marketing activities determines that the license or other voluntary disclosure of such materials is in the State’s best interests.

(31)  Records of a registered voter’s month and day of birth, driver’s license or nondriver identification number, telephone number, e-mail address, and the last four digits of his or her Social Security number contained in a voter registration application or the statewide voter checklist established under 17 V.S.A. § 2154 or the failure to register to vote under 17 V.S.A. § 2145a.

(32)  With respect to publicly owned, managed, or leased structures, and only to the extent that release of information contained in the record would present a substantial likelihood of jeopardizing the safety of persons or the security of public property, final building plans, and as-built plans, including drafts of security systems within a facility, that depict the internal layout and structural elements of buildings, facilities, infrastructures, systems, or other structures owned, operated, or leased by an agency before, on, or after the effective date of this provision; emergency evacuation, escape, or other emergency response plans that have not been published for public use; and vulnerability assessments, operation and security manuals, plans, and security codes. For purposes of this subdivision, “system” shall include electrical, heating, ventilation, air conditioning, telecommunication, elevator, and security systems. Information made exempt by this subdivision may be disclosed to another governmental entity if disclosure is necessary for the receiving entity to perform its duties and responsibilities; to a licensed architect, engineer, or contractor who is bidding on or performing work on or related to buildings, facilities, infrastructures, systems, or other structures owned, operated, or leased by the State. The entities or persons receiving such information shall maintain the exempt status of the information. Such information may also be disclosed by order of a court of competent jurisdiction, which may impose protective conditions on the release of such information as it deems appropriate. Nothing in this subdivision shall preclude or limit the right of the General Assembly or its committees to examine such information in carrying out its responsibilities or to subpoena such information. In exercising the exemption set forth in this subdivision and denying access to information requested, the custodian of the information shall articulate the grounds for the denial.

(33)  The account numbers for bank, debit, charge, and credit cards held by an agency or its employees on behalf of the agency.

(34)  Affidavits of income and assets as provided in 15 V.S.A. § 662 and Rule 4 of the Vermont Rules for Family Proceedings.

(35)  [Repealed.]

(36)  Anti-fraud plans and summaries submitted for the purposes of complying with 8 V.S.A. § 4750.

(37)  Records provided to the Department of Health pursuant to the Patient Safety Surveillance and Improvement System established by 18 V.S.A. chapter 43a.

(38)  Records that include prescription information containing data that could be used to identify a prescriber, except that the records shall be made available upon request for medical research, consistent with and for purposes expressed in 18 V.S.A. § 4622 or 9410, 18 V.S.A. chapter 84 or 84A, and for other law enforcement activities.

(39)  Records held by the Agency of Human Services or the Department of Financial Regulation, which include prescription information containing patient-identifiable data, that could be used to identify a patient.

(40)  Records of genealogy provided in an application or in support of an application for tribal recognition pursuant to chapter 23 of this title.

(41)  Documents reviewed by the Victims Compensation Board for purposes of approving an application for compensation pursuant to 13 V.S.A. chapter 167, except as provided by 13 V.S.A. §§ 5358a(b) and 7043(c).

(42)  Except as otherwise provided by law, information that could be used to identify a complainant who alleges that a public agency, a public employee or official, or a person providing goods or services to a public agency under contract has engaged in a violation of law, or in waste, fraud, or abuse of authority, or in an act creating a threat to health or safety, unless the complainant consents to disclosure of his or her identity.

See 1 V.S.A. § 317(c).

Effective July 1, 2021, (excluding provisions relating to criminal law enforcement found in Va. Code Ann. § 2.2-3706 and 3706.1) there are 136 exclusions for public records located in seven different statutes organized loosely by subject matter. Some exclusions straddle subject matter categories and their assignment to a particular Code section is arbitrary.
This subsection II.A.2 strictly follows the organization of the Act. Section 2.2-3705.1 addresses exclusions of general application (subparts a. through m. below); § 2.2-3705.2 addresses exclusions relating to public safety (subparts n. through bb. below); § 2.2-3705.3 addresses exclusions relating to administrative investigations (subparts cc. through oo. below);§ 2.2-3705.4 addresses exclusions relating to education and educational institutions (subparts pp. through xx. below);§ 2.2-3705.5 addresses exclusions relating to health and social services (subparts yy. through nnn. below); § 2.2-3705.6 addresses exclusions relating to proprietary records and trade secrets (subparts ooo. through wwww. below); and § 2.2-3705.7 addresses miscellaneous exclusions not otherwise categorized (subparts xxxx. through iiiiii. below).
The descriptions of each subsection below paraphrase and summarize statutory language; the reader must refer to the Code of Virginia for exact and unedited statutory language. This outline should not be relied on for accurate citation to statutory language.

a. Personnel information: Personnel information concerning identifiable individuals, except that access may not be denied to the person who is the subject of the information. Person above age 18 may waive this protection in writing. § 2.2-3705.1.1.

b. Advice of counsel: Written advice of legal counsel to state, regional or local public bodies or the officers or employees of those bodies and any other information protected by the attorney-client privilege. Va. Code Ann. § 2.2-3705.1.2.

c. Litigation work product: Legal memoranda and other work product compiled specifically for litigation or as a part of an active administrative investigation concerning a matter that is properly the subject of a closed meeting under § 2.2-3711. Va. Code Ann. § 2.2-3705.1.3. See Bergano v. City of Virginia Beach, 296 Va. 403, 821 S.E.2d 319 (2018) (requiring in camera review and redaction of City’s legal bills to exclude privileged or work product protected entries).

d. Employment and Student Examination Records: Any test or examination used, administered or prepared by any public body for purposes of evaluation of (i) any student or any student's performance (ii) any employee or employment seeker's qualifications or aptitude for employment, retention, or promotion, or (iii) qualifications for any license or certificate issued by any public body. The subject of such employment tests, however, shall be entitled to review and inspect all records relative to his performance on such employment tests. The test shall be made available when, in the reasonable opinion of such public body, it no longer has any potential for future use and will not jeopardize future tests or exams. Va. Code Ann. § 2.2-3705.1.4.

e. Records of Closed Meetings: Records recorded in or compiled exclusively for closed meetings lawfully held pursuant to§ 2.2-3711. Va. Code Ann.§ 2.2-3705.1.5.

f. Vendor Computer Programs: Vendor proprietary information software, acquired to process data for agencies or political subdivisions. Va. Code Ann. § 2.2-3705.1.6.

g. Computer Software Developed by Public Bodies: Computer software developed by or for a state agency, public institution of higher education or political subdivision of the Commonwealth. Va. Code Ann. § 2.2-3705.1.7.

h. Appraisals and Cost Estimates of Real Property: Appraisals and cost estimates of real property subject to a proposed purchase, sale, or lease, prior to the completion of such purchase, sale, or lease. Va. Code Ann. § 2.2-3705.1.8.

i. Claims and claim reserves: Records concerning reserves established in specific claims administered by the Department of the Treasury through its Division of Risk Management as provided in Article 5 (§ 2.2-1832 et seq.) of Chapter 18 of this title, or by any county, city, or town; and investigative notes, correspondence and information furnished in confidence with respect to an investigation of a claim or a potential claim against a public body's insurance policy or self-insurance plan. However, nothing in this subdivision prohibits the disclosure of information taken from inactive reports upon expiration of the period of limitations for the filing of a civil suit. Va. Code Ann. § 2.3705.1.9.

j. Personal contact information and email addresses: Personal contact information (address, email address, telephone number) furnished to a public body for the purpose of receiving electronic mail from the public body, unless the electronic mail recipient has indicated his approval for the public body to disclose such information. However, access shall not be denied to the subject of the record. Va. Code Ann. § 2.2-3705.1.10.

k. Virginia Administrative Dispute Resolution Act: Communications and materials required to be kept confidential pursuant to § 2.2-4119 of the Virginia Administrative Dispute Resolution Act (§ 2.2-4115 et seq.). Va. Code Ann. § 2.2-3705.1.11.

l. Negotiation and award of a specific contract: Information relating to the negotiation and award of a specific contract where competition or bargaining is involved and where the release of such records would adversely affect the bargaining position or negotiating strategy of the public body. Such records shall not be withheld after the public body has made a decision to award or not to award the contract. In the case of procurement transactions conducted pursuant to the Virginia Public Procurement Act (§ 2.2-4300 et seq.), the provisions of this subdivision shall not apply, and any release of records relating to such transactions shall be governed by the Virginia Public Procurement Act. Va. Code Ann. § 2.2-3705.1.12.

m. Financial account information: Account numbers or routing information for any credit or debit card, or account with a financial institution, subject to access by the person who is the subject of the information. § 2.2-3705.1.13.

n. Rape or Battered Spouses Records: Confidential information, including victim identity, provided to or obtained by staff in a rape crisis center or a program for battered spouses. Va. Code Ann. § 2.2-3705.2.1.

o. Data Processing Security: Information that describes design, function, operation or access control features of any security system used to control access to or use of any automated data processing or telecommunications system. Va. Code Ann. § 2.2-3705.2.2.

p. Railway Safety: Information disclosing security aspects of plan adopted pursuant to federal regulation by the Commonwealth’s designated Rail Fixed Guideway Systems Safety Oversight Agency, the release of which would jeopardize an ongoing investigation of a rail accident or other incident threatening railway safety. Va. Code Ann. § 2.2-3705.2.3.

q. School safety audits: Information concerning security plans and specific assessment components of school safety audits, as provided in § 22.1-279.8. Disclosure of information may be made after (i) any school building or property has been subjected to fire, explosion, natural disaster, or other catastrophic event or (ii) any person on school property has suffered or been threatened with any personal injury. Va. Code Ann. §2.2-3705.2.4.

r. Sexual Predator Mental Assessments: Information concerning the mental health assessment of an individual subject to commitment as a sexually violent predator under Chapter 9 (§ 37.2-900 et seq.) of Title 37.2 held by the Commitment Review Committee. Information identifying the victims of a sexually violent predator may not be disclosed. Va. Code Ann. §2.2-3705.2.5.

s. E-911 Subscriber Data from Provider: Subscriber data provided directly or indirectly by a communications services provider to a public body that operates a 911 or E-911 emergency dispatch system or an emergency notification or reverse 911 system if the data is in a form not made available by the communications services provider to the public generally. This does not bar the disclosure of subscriber data generated in connection with specific calls to a 911 emergency system, where the requester seeks public records about the use of the system in response to a specific crime, emergency or other event as to which a citizen has initiated a 911 call. Va. Code Ann. §2.2-3705.2.6.

t. E-911 Subscriber Data Held by Public Body: Subscriber data collected by a local governing body in accordance with the Enhanced Public Safety Telephone Services Act (§ 56-484.12 et seq.) and other identifying information of a personal, medical, or financial nature provided to a local governing body in connection with a 911 or E-911 emergency dispatch system or an emergency notification or reverse 911 system if such records are not otherwise publicly available. This does not prevent the disclosure of subscriber data generated in connection with specific calls to a 911 emergency system, where the requester is seeking to obtain public records about the use of the system in response to a specific crime, emergency or other event as to which a citizen has initiated a 911 call. Va. Code Ann. §2.2-3705.2.7.

u. Military Base Closure Information: Information held by the Virginia Military Advisory Council or any commission created by executive order for the purpose of studying and making recommendations regarding preventing closure or realignment of federal military and national security installations and facilities located in Virginia and relocation of such facilities to Virginia, or a local or regional military affairs organization appointed by a local governing body, that would (i) reveal strategies under consideration or development by the Council or such commission or organizations to prevent the closure or realignment of federal military installations located in Virginia or the relocation of national security facilities located in Virginia, to limit the adverse economic effect of such realignment, closure, or relocation, or to seek additional tenant activity growth from the Department of Defense or federal government or (ii) disclose trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), provided to the Council or such commission or organizations in connection with their work. Submitting entity must follow procedure to invoke trade secret status at time of submission to public body. The subsection does not bar disclosure of all or part of any record, other than a trade secret that has been specifically identified, after the Department of Defense or federal agency has issued a final, unappealable decision, or a court of competent jurisdiction has entered a final, unappealable order concerning the closure, realignment, or expansion of the military installation or tenant activities, or the relocation of the national security facility, for which records are sought. Va. Code Ann. §2.2-3705.2.8.

v. Financial System Internal Controls: Information, as determined by the State Comptroller, that describes the design, function, operation, or implementation of internal controls over the Commonwealth's financial processes and systems, and the assessment of risks and vulnerabilities of those controls, including the annual assessment of internal controls mandated by the State Comptroller, if disclosure of such information would jeopardize the security of the Commonwealth's financial assets. Does not bar the release of records relating to the investigation of and findings concerning the soundness of any fiscal process, nor does it prohibit the Auditor of Public Accounts or the Joint Legislative Audit and Review Commission from reporting internal control deficiencies discovered during the course of an audit. Va. Code Ann. §2.2-3705.2.9.

w. Public Safety Communications System: Information relating to the Statewide Agencies Radio System (STARS) or any other similar local or regional public safety communications system that (i) describes the design, function, programming, operation, or access control features of the overall system, components, structures, individual networks, and subsystems of the STARS or any other similar local or regional communications system or (ii) relates to radio frequencies assigned to or utilized by STARS or any other similar local or regional communications system, code plugs, circuit routing, addressing schemes, talk groups, fleet maps, encryption, or programming maintained by or utilized by STARS or any other similar local or regional public safety communications system. Va. Code Ann. §2.2-3705.2.10.

x. Fire/EMS Pager and Telephone Numbers: Information concerning a salaried or volunteer Fire/EMS company or Fire/EMS department if disclosure of such information would reveal the telephone numbers for cellular telephones, pagers, or comparable portable communication devices provided to its personnel for use in the performance of their official duties. Va. Code Ann. §2.2-3705.2.11.

y. Hospital and Nursing Home Disaster Plans: Information concerning the disaster recovery plans or the evacuation plans in the event of fire, explosion, natural disaster, or other catastrophic event for hospitals and nursing homes regulated by the Board of Health pursuant to Chapter 5 (§ 32.1-123 et seq.) of Title 32.1 provided to the Department of Health. This does not prevent the disclosure of information relating to the effectiveness of executed evacuation plans after the occurrence of fire, explosion, natural disaster, or other catastrophic event. Va. Code Ann. §2.2-3705.2.12.

z. Higher Education Security and Threat Assessment: Records received by the Department of Criminal Justice Services pursuant to §§ 9.1-184, 22.1-79.4, and 22.1-279.8 or for purposes of evaluating threat assessment teams established by a public institution of higher education pursuant to § 23.1-805 or by a private nonprofit institution of higher education, to the extent such records reveal security plans, walk-through checklists, or vulnerability and threat assessment components. Va. Code Ann. § 2.2-3705.2.13.
aa. Critical Infrastructure, Cybersecurity and Threat Assessment: Information contained in (i) engineering, architectural, or construction drawings; (ii) operational, procedural, tactical planning, or training manuals; (iii) staff meeting minutes; or (iv) other records that reveal any of the following, the disclosure of which would jeopardize the safety or security of any person; governmental facility, building, or structure or persons using such facility, building, or structure; or public or private commercial office, multifamily residential, or retail building or its occupants:

• Critical infrastructure information or the location or operation of security equipment and systems of any public building, structure, or information storage facility, including ventilation systems, fire protection equipment, mandatory building emergency equipment or systems, elevators, electrical systems, telecommunications equipment and systems, or utility equipment and systems;
• Vulnerability assessments, information not lawfully available to the public regarding specific cybersecurity threats or vulnerabilities, or security plans and measures of an entity, facility, building structure, information technology system, or software program;
• Surveillance techniques, personnel deployments, alarm or security systems or technologies, or operational or transportation plans or protocols; or
• Interconnectivity, network monitoring, network operation centers, master sites, or systems related to the Statewide Agencies Radio System (STARS) or any other similar local or regional public safety communications system.
A private entity submitting this category of information to a public body may seek protection at the time of submission by following the protocol laid out in the statute. Its submission statement shall be a public record and shall be disclosed upon request.
Any public body receiving a request for records excluded under clauses (a) and (b) above must notify the Secretary of Public Safety and Homeland Security or his designee of such request and the response made by the public body in accordance with § 2.2-3704.
This subdivision does not prevent the disclosure of records relating to (1) the structural or environmental soundness of any such facility, building, or structure or (2) an inquiry into the performance of such facility, building, or structure after it has been subjected to fire, explosion, natural disaster, or other catastrophic event. Va. Code Ann. §2.2-3705.2.14.
bb. Commercial Space Flight Authority National Security: Information held by the Virginia Commercial Space Flight Authority that is categorized as classified or sensitive but unclassified, including national security, defense, and foreign policy information, provided that such information is exempt under the federal Freedom of Information Act, 5 U.S.C. § 552. Va. Code Ann. §2.2-3705.2.15.

cc. Certain Licensee and Permit Application Information: Information relating to investigations of applicants for licenses and permits, and of all licensees and permittees, made by or submitted to the Virginia Alcoholic Beverage Control Authority, the Virginia Lottery, the Virginia Racing Commission, the Department of Agriculture and Consumer Services relating to investigations and applications pursuant to Article 1.1:1 (§ 18.2-340.15 et seq.) of Chapter 8 of Title 18.2, or the Private Security Services Unit of the Department of Criminal Justice Services. Va. Code Ann. § 2.2-3705.3.1.

dd. Health Regulatory Investigations: Records of active investigations being conducted by the Department of Health Professions or by any health regulatory board in the Commonwealth pursuant to § 54.1-108. Va. Code Ann. § 2.2-3705.3.2.

ee. Employment Discrimination Complaints: Investigator notes, and other correspondence and information, furnished in confidence with respect to an active investigation of individual employment discrimination complaints made to the Department of Human Resource Management, to such personnel of any local public body, including local school boards, as are responsible for conducting such investigations in confidence, or to any public institution of higher education. This does not prevent the disclosure of information taken from inactive reports in a form that does not reveal the identity of charging parties, persons supplying the information, or other individuals involved in the investigation. Va. Code Ann. § 2.2-3705.3.3.

ff. DMAS Medicaid Investigations: Records of active investigations being conducted by the Department of Medical Assistance Services pursuant to Chapter 10 (§ 32.1-323 et seq.) of Title 32.1. Va. Code Ann. § 2.2-3705.3.4.

gg. Human Rights Act Investigations: Investigative notes and other correspondence and information furnished in confidence with respect to an investigation or conciliation process involving an alleged unlawful discriminatory practice under the Virginia Human Rights Act (§ 2.2-3900 et seq.) or under any local ordinance adopted in accordance with the authority specified in § 2.2-524, or adopted pursuant to § 15.2-965, or adopted prior to July 1, 1987, in accordance with applicable law, relating to local human rights or human relations commissions. This does not prevent the distribution of information taken from inactive reports in a form that does not reveal the identity of the parties involved or other persons supplying information. Va. Code Ann. § 2.2-3705.3.5.

hh. Virginia Lottery Investigations: Information relating to studies and investigations by the Virginia Lottery of (i) lottery agents, (ii) lottery vendors, (iii) lottery crimes under §§ 58.1-4014 through 58.1-4018, (iv) defects in the law or regulations that cause abuses in the administration and operation of the lottery and any evasions of such provisions, or (v) the use of the lottery as a subterfuge for organized crime and illegal gambling where such information has not been publicly released, published or copyrighted. All studies and investigations referred to under clauses (iii), (iv), and (v) are open to inspection and copying upon completion of the study or investigation. Va. Code Ann. § 2.2-3705.3.6.

ii. Auditors and Whistle-blowers: Investigative notes, correspondence and information furnished in confidence, and records otherwise exempted by the Act or any Virginia statute, provided to or produced by or for (i) the Auditor of Public Accounts; (ii) the Joint Legislative Audit and Review Commission; (iii) an appropriate authority as defined in § 2.2-3010 with respect to an allegation of wrongdoing or abuse under the Fraud and Abuse Whistle Blower Protection Act (§ 2.2-3009 et seq.); (iv) the Office of the State Inspector General with respect to an investigation initiated through the Fraud, Waste and Abuse Hotline or an investigation initiated pursuant to Chapter 3.2 (§ 2.2-307 et seq.); (v) internal auditors appointed by the head of a state agency or by any public institution of higher education; (vi) the committee or the auditor with respect to an investigation or audit conducted pursuant to § 15.2-825; or (vii) the auditors, appointed by the local governing body of any county, city, or town or a school board, who by charter, ordinance, or statute have responsibility for conducting an investigation of any officer, department, or program of such body. Information contained in completed investigations shall be disclosed in a form that does not reveal the identity of the complainants or persons supplying information to investigators. Unless disclosure is excluded by this subdivision, the information disclosed shall include the agency involved, the identity of the person who is the subject of the complaint, the nature of the complaint, and the actions taken to resolve the complaint. If an investigation does not lead to corrective action, the identity of the person who is the subject of the complaint may be released only with the consent of the subject person. Local governing bodies shall adopt guidelines to govern the disclosure required by this subdivision. Va. Code Ann. § 2.2-3705.3.7.

jj. Zoning and Code Violation Complainants: The names, addresses, and telephone numbers of complainants furnished in confidence with respect to an investigation of individual zoning enforcement complaints or complaints relating to the Uniform Statewide Building Code (§ 36-97 et seq.) or the Statewide Fire Prevention Code (§ 27-94 et seq.) made to a local governing body. Code Ann. § 2.2-3705.3.8.

kk. DCJS Investigations of Security Services and Bail Bondsmen: Records of active investigations being conducted by the Department of Criminal Justice Services pursuant to Article 4 (§ 9.1-138 et seq.), Article 4.1 (§ 9.1-150.1 et seq.), Article 11 (§ 9.1-185 et seq.), and Article 12 (§ 9.1-186 et seq.) of Chapter 1 of Title 9.1. Va. Code Ann. § 2.2-3705.3.9.

ll. School Board Security Investigations: Information furnished to or prepared by the Board of Education pursuant to subsection D of § 22.1-253.13:3 in connection with the review or investigation of any alleged breach in security, unauthorized alteration, or improper administration of tests by local school board employees responsible for the distribution or administration of the tests. However, this section shall not prohibit the disclosure of such information to (i) a local school board or division superintendent for the purpose of permitting such board or superintendent to consider or to take personnel action with regard to an employee or (ii) any requester, after the conclusion of a review or investigation, in a form that (a) does not reveal the identity of any person making a complaint or supplying information to the Board on a confidential basis and (b) does not compromise the security of any test mandated by the Board. Va. Code Ann. § 2.2-3705.3.10.

mm. School Personnel Applications and Investigations: Information contained in (i) an application for licensure or renewal of a license for teachers and other school personnel, including transcripts or other documents submitted in support of an application, and (ii) an active investigation conducted by or for the Board of Education related to the denial, suspension, cancellation, revocation, or reinstatement of teacher and other school personnel licenses including investigator notes and other correspondence and information, furnished in confidence with respect to such investigation. This does not prohibit the disclosure of such (a) application information to the applicant at his own expense or (b) investigation information to a local school board or division superintendent for the purpose of permitting such board or superintendent to consider or to take personnel action with regard to an employee. Information contained in completed investigations shall be disclosed in a form that does not reveal the identity of any complainant or person supplying information to investigators. The completed investigation information disclosed shall include information regarding the school or facility involved, the identity of the person who was the subject of the complaint, the nature of the complaint, and the actions taken to resolve the complaint. If an investigation fails to support a complaint or does not lead to corrective action, the identity of the person who was the subject of the complaint may be released only with the consent of the subject person. No personally identifiable information regarding a current or former student shall be released except as permitted by state or federal law. Va. Code Ann. § 2.2-3705.3.11.

nn. Attorney General Investigations of Tobacco Marketing and RICO: Information provided in confidence and related to an investigation by the Attorney General under Article 1 (§ 3.2-4200 et seq.) or Article 3 (§ 3.2-4204 et seq.) of Chapter 42 of Title 3.2, Article 10 (§ 18.2-246.6 et seq.) of Chapter 6 or Chapter 13 (§ 18.2-512 et seq.) of Title 18.2, or Article 1 (§ 58.1-1000) of Chapter 10 of Title 58.1. Information related to an investigation that has been inactive for more than six months shall, upon request, be disclosed provided such disclosure is not otherwise prohibited by law and does not reveal the identity of charging parties, complainants, persons supplying information, witnesses, or other individuals involved in the investigation. Va. Code Ann. § 2.2-3705.3.12.

oo. Investigations Concerning Person Receiving Behavioral Health Services: Records of active investigations conducted by the Department of Behavioral Health and Developmental Services concerning patient rights. Va. Code Ann. § 2.2-3705.3.13.

pp. Scholastic records: Scholastic records containing information concerning identifiable individuals, except that such access shall not be denied to the person who is the subject thereof, or the parent or legal guardian of the student. However, no student shall have access to (i) financial records of a parent or guardian or (ii) records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto, that are in the sole possession of the maker thereof and that are not accessible or revealed to any other person except a substitute. The custodian of a scholastic record shall not release the address, phone number, or email address of a student in response to a request made under the Act without written consent. For any student who is (i) 18 years of age or older, (ii) under the age of 18 and emancipated, or (iii) attending an institution of higher education, written consent of the student shall be required. For any other student, written consent of the parent or legal guardian of the student shall be required.
The parent or legal guardian of a student may prohibit, by written request, the release of any individual information regarding that student until the student reaches the age of 18 years. For scholastic records of students under the age of 18 years, the right of access may be asserted only by his legal guardian or parent, including a noncustodial parent, unless such parent's parental rights have been terminated or a court of competent jurisdiction has restricted or denied such access. For scholastic records of students who are emancipated or attending a public institution of higher education in the Commonwealth, the right of access may be asserted by the student.
Any person who is the subject of any scholastic record and who is 18 years of age or older may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, such records shall be disclosed. Va. Code Ann. § 2.2-3705.4.A.1.
qq. Recommendation Letters: Confidential letters and statements of recommendation placed in the records of educational agencies or institutions respecting (i) admission to any educational agency or institution, (ii) an application for employment or promotion, or (iii) receipt of an honor or honorary recognition. Va. Code Ann. § 2.2-3705.4.A.2.

rr. Brown v. Board Scholarship Committee: Information held by the Brown v. Board of Education Scholarship Committee that would reveal personally identifiable information, including scholarship applications, personal financial information, and confidential correspondence and letters of recommendation. Va. Code Ann. § 2.2-3705.4.A.3.

ss. Higher Education Research: Information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education, other than the institutions' financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or a private concern, where such information has not been publicly released, published, copyrighted or patented. Applied in Am. Tradition Inst. v. Rector & Visitors of the Univ. of Va., 287 Va. 330, 756 S.E.2d 435 (2014) (construing the word “proprietary”). Va. Code Ann. § 2.2-3705.4.A.4.

tt. Competitively Sensitive Health Care Delivery Information: Information held by the University of Virginia or the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be, that contain proprietary, business-related information pertaining to the operations of the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be, including business development or marketing strategies and activities with existing or future joint venturers, partners, or other parties with whom the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be, has formed, or forms, any arrangement for the delivery of health care, if disclosure of such information would be harmful to the competitive position of the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be. Va. Code Ann. § 2.2-3705.4.A.5.

uu. Personal Information in College Savings Plan or Trust Account: Personal information, as defined in § 2.2-3801, provided to the Board of the Virginia College Savings Plan or its employees by or on behalf of individuals who have requested information about, applied for, or entered into prepaid tuition contracts or savings trust account agreements pursuant to Chapter 7 (§ 23.1-700 et seq.) of Title 23.1, including personal information related to (i) qualified beneficiaries as that term is defined in § 23.1-700, (ii) designated survivors, or (iii) authorized individuals. This does not prevent disclosure or publication of information in a statistical or other form that does not identify individuals or provide personal information. Individuals have access to their own personal information. Va. Code Ann. § 2.2-3705.4.A.6.

vv. Higher Education Fundraising: Information maintained in connection with fundraising activities by or for a public institution of higher education that would reveal (i) personal fundraising strategies relating to identifiable donors or prospective donors or (ii) wealth assessments; estate, financial, or tax planning information; health-related information; employment, familial, or marital status information; electronic mail addresses, facsimile or telephone numbers; birth dates or social security numbers of identifiable donors or prospective donors. This does not prevent the disclosure of information relating to the amount, date, purpose, and terms of the pledge or donation, or the identity of the donor unless the donor has requested anonymity in connection with or as a condition of making a pledge or donation. It does not prevent from disclosure (i) the identities of sponsors providing grants to or contracting with the institution for the performance of research services or other work or (ii) the terms and conditions of such grants or contracts. Va. Code Ann. § 2.2-3705.4.A.7.

ww. Assessment of Individual Threats: Information held by a threat assessment team established by a local school board pursuant to § 22.1-79.4 or by a public institution of higher education pursuant to § 23.1-805 relating to the assessment or intervention with a specific individual. In the event an individual who has been under assessment commits an act, or is prosecuted for the commission of an act that has caused the death of, or caused serious bodily injury, including any felony sexual assault, to another person, such information of the threat assessment team concerning the individual under assessment shall be made available as provided in the Act, with the exception of any criminal history records obtained pursuant to § 19.2-389 or 19.2-389.1, health records obtained pursuant to § 32.1-127.1:03, or scholastic records as defined in § 22.1-289. The public body providing such information shall remove personally identifying information of any person who provided information to the threat assessment team under a promise of confidentiality. Va. Code Ann. § 2.2-3705.4.A.8.
xx. Tech Talent Investment Program: Records submitted to the Governor by a qualified institution seeking a grant under the Tech Talent Investment Program established in Va. Code Ann. § 23.1-1239 et seq., prior to completion of a memorandum of understanding. Va. Code Ann. § 2.2-3705.4.A.9.

yy. Health records: Health records, except that such records may be personally reviewed by the individual who is the subject of such records, as provided in subsection F of § 32.1-127.1:03. Where the person who is the subject of health records is confined in a state or local correctional facility, the administrator or chief medical officer of such facility may assert such confined person's right of access to the health records, and may review but not copy such records, if the administrator or chief medical officer has reasonable cause to believe that such confined person has an infectious disease or other medical condition from which other persons so confined need to be protected. Where the person who is the subject of health records is under the age of 18, his right of access may be asserted only by his guardian or his parent, including a noncustodial parent, unless such parent's parental rights have been terminated, a court of competent jurisdiction has restricted or denied such access, or a parent has been denied access to the health record in accordance with § 20-124.6. In instances where the person who is the subject thereof is an emancipated minor, a student in a public institution of higher education, or is a minor who has consented to his own treatment as authorized by § 16.1-338 or 54.1-2969, the right of access may be asserted by the subject person. Statistical summaries of incidents and statistical data, without disclosing information about specific individuals, concerning abuse of individuals receiving services compiled by the Commissioner of Behavioral Health and Developmental Services shall be disclosed. Va. Code Ann. § 2.2-3705.5.1.

zz. Licensure and scoring information: Applications for admission to examinations or for licensure and scoring records maintained by the Department of Health Professions or any board in that department on individual licensees or applicants; information required to be provided to the Department of Health Professions by certain licensees pursuant to § 54.1-2506.1; information held by the Health Practitioners' Monitoring Program Committee within the Department of Health Professions that identifies any practitioner who may be, or who is actually, impaired to the extent that disclosure is prohibited by § 54.1-2517; and information relating to the prescribing and dispensing of covered substances to recipients and any abstracts from such information that are in the possession of the Prescription Monitoring Program (Program) pursuant to Chapter 25.2 (§ 54.1-2519 et seq.) of Title 54.1 and any material relating to the operation or security of the Program. Va. Code Ann. § 2.2-3705.5.2.

aaa. Department for Aging and Rehabilitative Services; Department of Social Services: Reports, documentary evidence, and other information as specified in §§ 51.5-122 and 51.5-141 and Chapter 1 (§ 63.2-100 et seq.) of Title 63.2 and information and statistical registries required to be kept confidential pursuant to Chapter 1 (§ 63.2-100 et seq.) of Title 63.2. Va. Code Ann. § 2.2-3705.5.3.

bbb. Social Services and Medicaid Licensure, Inspection, Investigations: Investigative notes; proprietary information not published, copyrighted or patented; information obtained from employee personnel records; personally identifiable information regarding residents, clients or other recipients of services; other correspondence and information furnished in confidence to the Department of Social Services in connection with an active investigation of an applicant or licensee pursuant to Chapter 14.1 (§ 22.1-289.02 et seq.) of Title 22.1; other correspondence and information furnished in confidence to the Department of Social Services in connection with an active investigation of an applicant or licensee pursuant to Chapters 17 (§ 63.2-1700 et seq.) and 18 (§ 63.2-1800 et seq.) of Title 63.2; and information furnished to the Office of the Attorney General in connection with an investigation or litigation pursuant to Article 19.1 (§ 8.01-216.1 et seq.) of Chapter 3 of Title 8.01 and Chapter 9 (§ 32.1-310 et seq.) of Title 32.1. This does not prevent the disclosure of information from the records of completed investigations in a form that does not reveal the identity of complainants, persons supplying information, or other individuals involved in the investigation. Va. Code Ann. § 2.2-3705.5.4.

ccc. Emergency Medical Services: Information collected for the designation and verification of trauma centers and other specialty care centers within the Statewide Emergency Medical Services System and Services pursuant to Article 2.1 (§ 32.1-111.1 et seq.) of Chapter 4 of Title 32.1. Va. Code Ann. § 2.2-3705.5.5.

ddd. Mental health Commitment Hearings: Reports and court documents relating to involuntary admission required to be kept confidential pursuant to § 37.2-818. Va. Code Ann. § 2.2-3705.5.6.

eee. Family Fatality Review: Information acquired (i) during a review of any child death conducted by the State Child Fatality Review team established pursuant to § 32.1-283.1 or by a local or regional child fatality review team to the extent that such information is made confidential by § 32.1-283.2; (ii) during a review of any death conducted by a family violence fatality review team to the extent that such information is made confidential by § 32.1-283.3; (iii) during a review of any adult death conducted by the Adult Fatality Review Team to the extent made confidential by § 32.1-283.5 or by a local or regional adult fatality review team to the extent that such information is made confidential by § 32.1-283.6., (iv) by regional or local drug overdose fatality review teams; (v) during a review of any death conducted by the Maternal Mortality Review Team to the extent that such information is made confidential by 32.1-283.8; or (vi) during a review of any death conducted by the Developmental Disabilities Mortality Review Committee to the extent that such information is made confidential by § 37.2-314.1. Va. Code Ann. § 2.2-3705.5.7.

fff. Health Care Data: Patient level data collected by the Board of Health and not yet processed, verified, and released, pursuant to § 32.1-276.9, to the Board by the nonprofit organization with which the Commissioner of Health has contracted pursuant to § 32.1-276.4. Va. Code Ann. § 2.2-3705.5.8.

ggg. Neurotrauma Advisory Board Grant Applications: Information relating to a grant application, or accompanying a grant application, submitted to the Commonwealth Neurotrauma Initiative Advisory Board pursuant to Article 12 (§ 51.5-178 et seq.) of Chapter 14 of Title 51.5 that would (i) reveal (a) medical or mental health records or other data identifying individual patients or (b) proprietary business or research-related information produced or collected by the applicant in the conduct of or as a result of study or research on medical, rehabilitative, scientific, technical, or scholarly issues, when such information has not been publicly released, published, copyrighted, or patented, and (ii) be harmful to the competitive position of the applicant. Va. Code Ann. § 2.2-3705.5.9.

hhh. Managed Care Plan Review and Investigation: Any information copied, recorded, or received by the Commissioner of Health in the course of an examination, investigation, or review of a managed care health insurance plan licensee pursuant to §§ 32.1-137.4 and 32.1-137.5, including books, records, files, accounts, papers, documents, and any or all computer or other recordings. Va. Code Ann. § 2.2-3705.5.10.

iii. Birth-Related Neurological Injuries; Claim and Claimant Information: Records of the Virginia Birth-Related Neurological Injury Compensation Program required to be kept confidential pursuant to § 38.2-5002.2. Va. Code Ann. § 2.2-3705.5.11.

jjj. Communicable disease; Quarantined or Isolated Persons: Information held by the State Health Commissioner relating to the health of any person subject to an order of quarantine or an order of isolation pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of Chapter 2 of Title 32.1. This does not prevent the disclosure of statistical summaries, abstracts, or other information in aggregate form. Va. Code Ann. § 2.2-3705.5.12.

kkk. Individuals Receiving Transport Services Under ADA or TANF: The names and addresses or other contact information of persons receiving transportation services from a state or local public body or its designee under Title II of the Americans with Disabilities Act, (42 U.S.C. § 12131 et seq.) or funded by Temporary Assistance for Needy Families (TANF) created under § 63.2-600. Va. Code Ann. § 2.2-3705.5.13.

lll. Medical Peer and Utilization Review Committees: Information held by certain health care committees and entities that may be withheld from discovery as privileged communications pursuant to § 8.01-581.17. Va. Code Ann. § 2.2-3705.5.14.

mmm. Emergency Psychiatric Admission Proceedings: Data and information specified in § 37.2-308.01 relating to proceedings provided for in Article 16 (§ 16.1-335 et seq.) of Chapter 11 of Title 16.1 and Chapter 8 (§ 37.2-800 et seq.) of Title 37.2. Va. Code Ann. § 2.2-3705.5.15.

nnn. Hospital Emergency Department Coordination: Records of and information held by the Emergency Department Care Coordination Program required to be kept confidential pursuant to § 32.1-372. Va. Code Ann. § 2.2-3705.5.16.

ooo. Virginia Port Authority: Proprietary information gathered by or for the Virginia Port Authority as provided in § 62.1-132.4 or 62.1-134.1. Va. Code Ann. § 2.2-3705.6.1.

ppp. Industrial Development Financing: Financial statements not publicly available filed with applications for industrial development financings in accordance with Chapter 49 (§ 15.2-4900 et seq.) of Title 15.2. Va. Code Ann. § 2.2-3705.6.2.

qqq. Business Recruitment and Expansion: Proprietary information, voluntarily provided by private business pursuant to a promise of confidentiality from a public body, used by the public body for business, trade, and tourism development or retention; and memoranda, working papers, or other information related to businesses that are considering locating or expanding in Virginia, prepared by a public body, where competition or bargaining is involved and where disclosure of such information would adversely affect the financial interest of the public body. Va. Code Ann. § 2.2-3705.6.3.

rrr. Toxic substance Information: Information that was filed as confidential under the Toxic Substances Information Act (§ 32.1-239 et seq.), as such Act existed prior to July 1, 1992. Va. Code Ann. § 2.2-3705.6.4.

sss. Fishing Vessel Identification: Fisheries data that would permit identification of any person or vessel, except when required by court order as specified in § 28.2-204. Va. Code Ann. § 2.2-3705.6.5.

ttt. Railroad Information Protected by Federal Law: Confidential financial statements, balance sheets, trade secrets, and revenue and cost projections provided to the Department of Rail and Public Transportation, provided such information is exempt under the federal Freedom of Information Act or the federal Interstate Commerce Act or other laws administered by the Surface Transportation Board or the Federal Railroad Administration with respect to data provided in confidence to the Surface Transportation Board and the Federal Railroad Administration. Va. Code Ann. § 2.2-3705.6.6.

uuu. Information Provided to Department of Mines, Minerals and Energy: Proprietary information related to inventory and sales, voluntarily provided by private energy suppliers to the Department of Mines, Minerals and Energy, used by that Department for energy contingency planning purposes or for developing consolidated statistical information on energy supplies. Va. Code Ann. § 2.2-3705.6.7.

vvv. Medicaid Prescription Drug Prior Authorization: Confidential proprietary information furnished to the Board of Medical Assistance Services or the Medicaid Prior Authorization Advisory Committee pursuant to Article 4 (§ 32.1-331.12 et seq.) of Chapter 10 of Title 32.1. Va. Code Ann. § 2.2-3705.6.8.

www. Confidential Information of Private Transportation Business Protected by Federal Law: Proprietary, commercial or financial information, balance sheets, trade secrets, and revenue and cost projections provided by a private transportation business to the Virginia Department of Transportation and the Department of Rail and Public Transportation for the purpose of conducting transportation studies needed to obtain grants or other financial assistance under the Transportation Equity Act for the 21st Century (P.L. 105-178) for transportation projects if disclosure of such information is exempt under the federal Freedom of Information Act or the federal Interstate Commerce Act or other laws administered by the Surface Transportation Board or the Federal Railroad Administration with respect to data provided in confidence to the Surface Transportation Board and the Federal Railroad Administration. This exclusion does not apply to any wholly owned subsidiary of a public body. Va. Code Ann. § 2.2-3705.6.9.

xxx. Confidential Business Information Protected by Procurement Act: Confidential information designated as provided in subsection F of § 2.2-4342 as trade secrets or proprietary information by any person in connection with a procurement transaction or by any person who has submitted to a public body an application for prequalification to bid on public construction projects in accordance with subsection B of § 2.2-4317. Va. Code Ann. § 2.2-3705.6.10.

yyy. Government Evaluation of PPEA and PPTA Proposals: Memoranda, staff evaluations, or other information prepared by the responsible public entity, its staff, outside advisors, or consultants exclusively for the evaluation and negotiation of proposals filed under the Public-Private Transportation Act of 1995 (§ 33.2-1800 et seq.) or the Public-Private Education Facilities and Infrastructure Act of 2002 (§ 56-575.1 et seq.) where (i) if such information was made public prior to or after the execution of an interim or a comprehensive agreement, § 33.2-1820 or 56-575.17 notwithstanding, the financial interest or bargaining position of the public entity would be adversely affected and (ii) the basis for the determination required in clause (i) is documented in writing by the responsible public entity. Va. Code Ann. § 2.2-3705.6.11.a. This subdivision may not be construed to withhold information concerning (a) procurement records as required by § 33.2-1820 or 56-575.17; (b) information concerning the terms and conditions of any interim or comprehensive agreement, service contract, lease, partnership, or any agreement of any kind entered into by the responsible public entity and the private entity; (c) information concerning the terms and conditions of any financing arrangement that involves the use of any public funds; or (d) information concerning the performance of any private entity developing or operating a qualifying transportation facility or a qualifying project. Va. Code Ann. § 2.2-3705.6.11.b.

zzz. Confidential Business Information in PPEA and PPTA Proposals: Information provided by a private entity to a responsible public entity, affected jurisdiction, or affected local jurisdiction pursuant to the provisions of the Public-Private Transportation Act of 1995 (§ 33.2-1800 et seq.) or the Public-Private Education Facilities and Infrastructure Act of 2002 (§ 56-575.1 et seq.) if disclosure of such information would reveal (i) trade secrets of the private entity as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.); (ii) financial information of the private entity, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise; or (iii) other information submitted by the private entity where if such information was made public prior to the execution of an interim agreement or a comprehensive agreement, the financial interest or bargaining position of the public or private entity would be adversely affected. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.11.b.

aaaa. Confidential Business Information Submitted to Virginia Resources Authority: Confidential proprietary information or trade secrets, not publicly available, provided by a private person or entity pursuant to a promise of confidentiality to the Virginia Resources Authority or to a fund administered in connection with financial assistance rendered or to be rendered by the Virginia Resources Authority where, if such information were made public, the financial interest of the private person or entity would be adversely affected. Va. Code Ann. § 2.2-3705.6.12.

bbbb. Confidential Business Information of Prospective Municipal Franchisees: Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), or confidential proprietary information that is not generally available to the public through regulatory disclosure or otherwise, provided by a (i) bidder or applicant for a franchise or (ii) franchisee under Chapter 21 (§ 15.2-2100 et seq.) of Title 15.2 to the applicable franchising authority pursuant to a promise of confidentiality from the franchising authority, to the extent the information relates to the bidder's, applicant's, or franchisee's financial capacity or provision of new services, adoption of new technologies or implementation of improvements, where such new services, technologies, or improvements have not been implemented by the franchisee on a nonexperimental scale in the franchise area, and where, if such information were made public, the competitive advantage or financial interests of the franchisee would be adversely affected. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.13.

cccc. Confidential Business Information Submitted by Charitable Gaming Operators: Information of a proprietary or confidential nature furnished by a supplier or manufacturer of charitable gaming supplies to the Department of Agriculture and Consumer Services (i) pursuant to subsection E of § 18.2-340.34 and (ii) pursuant to regulations promulgated by the Charitable Gaming Board related to approval of electronic and mechanical equipment. Va. Code Ann. § 2.2-3705.6.14.

dddd. Apple Producer Data Submitted to Tax Commissioner: Information related to Virginia apple producer sales provided to the Virginia State Apple Board pursuant to § 3.2-1215. Va. Code Ann. § 2.2-3705.6.15.

eeee. Carrier Trade Secrets Submitted in Connection with E-911 Cost Recovery: Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.) of Title 59.1, submitted by CMRS providers as defined in § 56-484.12 to the former Wireless Carrier E-911 Cost Recovery Subcommittee created pursuant to former § 56-484.15, relating to the provision of wireless E-911 service. Va. Code Ann. § 2.2-3705.6.16.

ffff. Confidential Business Information in Grant Applications on Health Research: Information relating to a grant or loan application, or accompanying a grant or loan application, to the Commonwealth Health Research Board pursuant to Chapter 5.3 (§ 32.1-162.23 et seq.) of Title 32.1 if disclosure of such information would (i) reveal proprietary business or research-related information produced or collected by the applicant in the conduct of or as a result of study or research on medical, rehabilitative, scientific, technical, technological, or scholarly issues, when such information has not been publicly released, published, copyrighted, or patented, and (ii) be harmful to the competitive position of the applicant. Va. Code Ann. § 2.2-3705.6.17.

gggg. Local Public Body Telecommunications Trade Secrets: Confidential proprietary information and trade secrets developed and held by a local public body (i) providing telecommunication services pursuant to § 56-265.4:4 and (ii) providing cable television services pursuant to Article 1.1 (§ 15.2-2108.2 et seq.) of Chapter 21 of Title 15.2 if disclosure of such information would be harmful to the competitive position of the locality. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. This subdivision does not apply to any authority created pursuant to the BVU Authority Act (§ 15.2-7200 et seq.). Va. Code Ann. § 2.2-3705.6.18.

hhhh. Local Authority Telecommunications Trade Secrets: Confidential proprietary information and trade secrets developed by or for a local authority created in accordance with the Virginia Wireless Service Authorities Act (§ 15.2-5431.1 et seq.) to provide qualifying communications services as authorized by Article 5.1 (§ 56-484.7:1 et seq.) of Chapter 15 of Title 56, where disclosure of such information would be harmful to the competitive position of the authority, except that information required to be maintained in accordance with § 15.2-2160 shall be released. Va. Code Ann. § 2.2-3705.6.19.

iiii. Confidential Business Information Submitted to Department of Small Business and Supplier Diversity: Trade secrets or financial information of a business, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise, provided to the Department of Small Business and Supplier Diversity as part of an application for certification as a small, women-owned, or minority-owned business in accordance with Title 2.2, Chapter 16.1 (§ 2.2-1603 et seq.). This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.20.

jjjj. Information Submitted to All-Payor Health Care Claims Database: Information of a proprietary or confidential nature disclosed by a carrier to the State Health Commissioner pursuant to §32.1-276.7:1. Va. Code Ann. § 2.2-3705.6.21.

kkkk. Confidential Business Information Provided to State Inspector General: Trade secrets, including, but not limited to, financial information, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise, and revenue and cost projections supplied by a private or nongovernmental entity to the State Inspector General for the purpose of an audit, special investigation, or any study requested by the Office of the State Inspector General in accordance with law. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.22.

llll. Confidential Business Information Submitted to Tobacco Region Revitalization Commission: Information relating to a grant application, or accompanying a grant application, submitted to the Tobacco Region Revitalization Commission that would (i) reveal (a) trade secrets, (b) financial information of a grant applicant that is not a public body, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise, or (c) research-related information produced or collected by the applicant in the conduct of or as a result of study or research on medical, rehabilitative, scientific, technical, technological, or scholarly issues, when such information has not been publicly released, published, copyrighted, or patented, and (ii) be harmful to the competitive position of the applicant; and memoranda, staff evaluations, or other information prepared by the Commission or its staff exclusively for the evaluation of grant applications. This exclusion applies to grants that are consistent with the powers of and in furtherance of the performance of the duties of the Commission pursuant to § 3.2-3103. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.23.

mmmm. Commercial Space Flight Authority Rate Information: Information held by the Commercial Space Flight Authority relating to rate structures or charges for the use of projects of, the sale of products of, or services rendered by the Authority if disclosure of such information would adversely affect the financial interest or bargaining position of the Authority or a private entity providing the information to the Authority. Va. Code Ann. § 2.2-3705.6.24.a.

nnnn. Confidential Business Information Submitted to Commercial Space Flight Authority: Information provided by a private entity to the Commercial Space Flight Authority if disclosure of such information would (i) reveal (a) trade secrets of the private entity; (b) financial information of the private entity, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise; or (c) other information submitted by the private entity and (ii) adversely affect the financial interest or bargaining position of the Authority or private entity. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.24.b.

oooo. Business Information of Agricultural Landowners: Information of a proprietary nature furnished by an agricultural landowner or operator to the Department of Conservation and Recreation, the Department of Environmental Quality, the Department of Agriculture and Consumer Services, or any political subdivision, agency, or board of the Commonwealth pursuant to §§ 10.1-104.7, 10.1-104.8, and 10.1-104.9, other than when required as part of a state or federal regulatory enforcement action. Va. Code Ann. § 2.2-3705.6.25.

pppp. Trade Secrets in Information Submitted to DEQ Under Waste Management Act: Trade secrets provided to the Department of Environmental Quality pursuant to the provisions of § 10.1-1458. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.26.

qqqq. Public-use Airport Information: Information of a proprietary nature furnished by a licensed public-use airport to the Department of Aviation for funding from programs administered by the Department of Aviation or the Virginia Aviation Board, where if such information was made public, the financial interest of the public-use airport would be adversely affected. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.27.

rrrr. Confidential Business Information Submitted to Virginia Innovation Partnership Authority: Information relating to a grant, loan, or investment application, or accompanying a grant, loan, or investment application, submitted to the Commonwealth of Virginia Research Innovation Partnership Authority established pursuant to Article 11 (§ 2.2-2351 et seq.) of Chapter 22, an advisory committee of the Authority, or any other entity designated by the Authority to review such applications, to the extent that such records would (i) reveal (a) trade secrets; (b) financial information of a party to a grant or loan application that is not a public body, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise; or (c) research-related information produced or collected by a party to the application in the conduct of or as a result of study or research on medical, rehabilitative, scientific, technical, technological, or scholarly issues, when such information has not been publicly released, published, copyrighted, or patented, and (ii) be harmful to the competitive position of a party to a grant, loan, or investment application; and memoranda, staff evaluations, or other information prepared by the Authority or its staff, or a reviewing entity designated by the Authority, exclusively for the evaluation of grant, loan, or investment applications, including any scoring or prioritization documents prepared for and forwarded to the Authority. Va. Code Ann. § 2.2-3705.6.28.

ssss. Confidential Business Information Provided in Connection with Solar Services or Carbon Sequestration Agreement: Proprietary information, voluntarily provided by a private business pursuant to a promise of confidentiality from a public body, used by the public body for a solar services or carbon sequestration agreement, where disclosure of such information would (i) reveal (a) trade secrets of the private business; (b) financial information of the private business, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise; or (c) other information submitted by the private business and (ii) adversely affect the financial interest or bargaining position of the public body or private business. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.29.

tttt. Engineering and construction drawings: Information contained in engineering and construction drawings and plans submitted for the sole purpose of complying with the Building Code in obtaining a building permit if disclosure of such information would identify specific trade secrets or other information that would be harmful to the competitive position of the owner or lessee. However, such information shall be exempt only until the building is completed. Information relating to the safety or environmental soundness of any building shall not be exempt from disclosure. Va. Code Ann. § 2.2-3705.6.30.

uuuu. Trade Secrets Submitted to Department of Transportation: Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), including, but not limited to, financial information, including balance sheets and financial statements that are not generally available to the public through regulatory disclosure or otherwise, and revenue and cost projections supplied by a private or nongovernmental entity to the Virginia Department of Transportation for the purpose of an audit, special investigation, or any study requested by the Virginia Department of Transportation in accordance with law. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.31.

vvvv. Grant Application Information Submitted to Department of Housing and Community Development. Information related to a grant application, or accompanying a grant application, submitted to the Department of Housing and Community Development that would (i) reveal (a) trade secrets, (b) financial information of a grant applicant that is not a public body, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise, or (c) research-related information produced or collected by the applicant in the conduct of or as a result of study or research on medical, rehabilitative, scientific, technical, technological, or scholarly issues, when such information has not been publicly released, published, copyrighted, or patented, and (ii) be harmful to the competitive position of the applicant. This exclusion only applies to grants administered by the Department, the Director of the Department, or pursuant to § 36-139, Article 26 (§ 2.2-2484 et seq.) of Chapter 24, or the Virginia Telecommunication Initiative as authorized by the appropriations act. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.32.

wwww. Loan Application Information Submitted to HUD or Virginia Housing and Development Authority. Financial and proprietary records submitted with a loan application to a locality for the preservation or construction of affordable housing that is related to a competitive application to be submitted to either the U.S. Department of Housing and Urban Development (HUD) or the Virginia Housing Development Authority (VHDA), when the release of such records would adversely affect the bargaining or competitive position of the applicant. Such records shall not be withheld after they have been made public by HUD or VHDA. Va. Code Ann. § 2.2-3705.6.33.

xxxx. Records Exempt from Disclosure Under Tax Statute: State income, business, and estate tax returns, personal property tax returns, and confidential records held pursuant to § 58.1-3. Va. Code Ann. § 2.2-3705.7.1

yyyy. Public Official Working Papers and Correspondence: Working papers and correspondence of the Office of the Governor, the Lieutenant Governor, or the Attorney General; the members of the General Assembly, the Division of Legislative Services, or the Clerks of the House of Delegates or the Senate of Virginia; the mayor or chief executive officer of any political subdivision of the Commonwealth; or the president or other chief executive officer of any public institution of higher education in the Commonwealth. No record otherwise open to inspection under the Act is excluded by virtue of the fact that it has been attached to or incorporated within any working paper or correspondence. Further, information publicly available or not otherwise subject to an exclusion under this chapter or other provision of law that has been aggregated, combined, or changed in format without substantive analysis or revision shall not be deemed working papers. This subdivision does not authorize the withholding of any resumes or applications submitted by persons who are appointed by the Governor pursuant to § 2.2-106 or 2.2-107. Va. Code Ann. § 2.2-3705.7.2. This subdivision has definitions that should be consulted, including that of “working papers.” "Working papers" means records prepared by or for a public official identified in this subdivision for his personal or deliberative use.
See Richmond Newspapers Inc. v. Casteen, 42 Va. Cir. 505 (Richmond Cir. Ct. 1997) (determining correspondence between the president of a university and an independent auditing entity is exempt from disclosure under the Act). This executive privilege does not extend to state government officials. Griffin v. Virginia Department of Transportation, 46 Va. Cir. 399 (Richmond Cir. Ct. 1998).
zzzz. Library Patron Identifiers: Information contained in library records that can be used to identify (i) both (a) any library patron who has borrowed or accessed material or resources from a library and (b) the material or resources such patron borrowed or accessed or (ii) any library patron under 18 years of age. For the purposes of clause (ii), access shall not be denied to the parent, including a noncustodial parent, or guardian of such library patron. Va. Code Ann. § 2.2-3705.7.3.

aaaaa. DOT Contract Award and Bid Monitoring Information: Contract cost estimates prepared for the confidential use of the Department of Transportation in awarding contracts for construction or the purchase of goods or services, and records and automated systems prepared for the Department's Bid Analysis and Monitoring Program. Va. Code Ann. § 2.2-3705.7.4.

bbbbb. Political Subdivision Bondholder Lists: Lists of registered owners of bonds issued by a political subdivision of the Commonwealth, whether the lists are maintained by the political subdivision itself or by a single fiduciary designated by the political subdivision. Va. Code Ann. § 2.2-3705.7.5.

ccccc. Legislator Disclosure Statements and Conduct: Information furnished by a member of the General Assembly to a meeting of a standing committee, special committee, or subcommittee of his house established solely for the purpose of reviewing members' annual disclosure statements and supporting materials filed under § 30-110 or of formulating advisory opinions to members on standards of conduct, or both. Va. Code Ann. § 2.2-3705.7.6.

ddddd. Public Utility Customer Identifiers: Customer account information of a public utility affiliated with a political subdivision of the Commonwealth, including the customer's name and service address, but excluding the amount of utility service provided and the amount of money charged or paid for such utility service. Va. Code Ann. § 2.2-3705.7.7.

eeeee. Housing Assistance Recipient Personal Information: Personal information, as defined in § 2.2-3801, (i) filed with the Virginia Housing Development Authority concerning individuals who have applied for or received loans or other housing assistance or who have applied for occupancy of or have occupied housing financed, owned or otherwise assisted by the Virginia Housing Development Authority; (ii) concerning persons participating in or persons on the waiting list for federally funded rent-assistance programs; (iii) filed with any local redevelopment and housing authority created pursuant to § 36-4 concerning persons participating in or persons on the waiting list for housing assistance programs funded by local governments or by any such authority; or (iv) filed with any local redevelopment and housing authority created pursuant to § 36-4 or any other local government agency concerning persons who have applied for occupancy or who have occupied affordable dwelling units established pursuant to § 15.2-2304 or 15.2-2305. Access to one's own information is mandated. Va. Code Ann. § 2.2-3705.7.8.

fffff. Hazardous Waste Facility Siting: Information regarding the siting of hazardous waste facilities, except as provided in § 10.1-1441, if disclosure of such information would have a detrimental effect upon the negotiating position of a governing body or on the establishment of the terms, conditions, and provisions of the siting agreement. Va. Code Ann. § 2.2-3705.7.9.

ggggg. Protected Lands and Endangered Species: Information on the site-specific location of rare, threatened, endangered, or otherwise imperiled plant and animal species, natural communities, caves, and significant historic and archaeological sites if, in the opinion of the public body that has the responsibility for such information, disclosure of the information would jeopardize the continued existence or the integrity of the resource. This subdivision does not apply to requests from the owner of the land upon which the resource is located. Va. Code Ann. § 2.2-3705.7.10.

hhhhh. Lottery Game Information: Memoranda, graphics, video or audio tapes, production models, data, and information of a proprietary nature produced by or for or collected by or for the Virginia Lottery relating to matters of a specific lottery game design, development, production, operation, ticket price, prize structure, manner of selecting the winning ticket, manner of payment of prizes to holders of winning tickets, frequency of drawings or selections of winning tickets, odds of winning, advertising, or marketing, where such information not been publicly released, published, copyrighted, or patented. Whether released, published, or copyrighted, all game-related information shall be subject to public disclosure under the Act upon the first day of sales for the specific lottery game to which it pertains. Va. Code Ann. § 2.2-3705.7.11.

iiiii. Government-Held Investment Information: Information held by the Virginia Retirement System, acting pursuant to § 51.1-124.30, or a local retirement system, acting pursuant to § 51.1-803, or by a local finance board or board of trustees of a trust established by one or more local public bodies to invest funds for post-retirement benefits other than pensions, acting pursuant to Article 8 (§ 15.2-1544 et seq.) of Chapter 15 of Title 15.2, or by the board of visitors of the University of Virginia, acting pursuant to § 23.1-2210, or by the board of visitors of the College of William and Mary, acting pursuant to § 23.1-2803 or by the Virginia College Savings Plan, acting pursuant to § 23.1-704, relating to the acquisition, holding, or disposition of a security or other ownership interest in an entity, where such security or ownership interest is not traded on a governmentally regulated securities exchange, if disclosure of such information would (i) reveal confidential analyses prepared for the board of visitors of the University of Virginia, the board of visitors of the College of William and Mary prepared by the retirement system, a local finance board or board of trustees, or the Virginia College Savings Plan, or provided to the retirement system, a local finance board or board of trustees, or the Virginia College Savings Plan under a promise of confidentiality of the future value of such ownership interest or the future financial performance of the entity and (ii) have an adverse effect on the value of the investment to be acquired, held, or disposed of by the retirement system, a local finance board or board of trustees, the board of visitors of the University of Virginia, the board of visitors of the College of William and Mary, or the Virginia College Savings Plan. This subdivision does not prevent the disclosure of information relating to the identity of any investment held, the amount invested, or the present value of such investment. Va. Code Ann. § 2.2-3705.7.12.

jjjjj. Assistive Technology Loan Fund Applicant and Recipient Information: Financial, medical, rehabilitative, and other personal information concerning applicants for or recipients of loan funds submitted to or maintained by the Assistive Technology Loan Fund Authority under Chapter 11 (§ 51.5-53 et seq.) of Title 51.5. Va. Code Ann. § 2.2-3705.7.13.

kkkkk. VCU Health System Authority Omnibus Exclusion: Information held by the Virginia Commonwealth University Health System Authority pertaining to any of the following: an individual's qualifications for or continued membership on its medical or teaching staffs; proprietary information gathered by or in the possession of the Authority from third parties pursuant to a promise of confidentiality; contract cost estimates prepared for confidential use in awarding contracts for construction or the purchase of goods or services; information of a proprietary nature produced or collected by or for the Authority or members of its medical or teaching staffs; financial statements not publicly available that may be filed with the Authority from third parties; the identity, accounts, or account status of any customer of the Authority; consulting or other reports paid for by the Authority to assist the Authority in connection with its strategic planning and goals; the determination of marketing and operational strategies where disclosure of such strategies would be harmful to the competitive position of the Authority; and information of a proprietary nature produced or collected by or for employees of the Authority, other than the Authority's financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical, or scholarly issues, whether sponsored by the Authority alone or in conjunction with a governmental body or a private concern, when such information has not been publicly released, published, copyrighted, or patented. This exclusion shall also apply when such information is in the possession of Virginia Commonwealth University. Va. Code Ann. § 2.2-3705.7.14.

lllll. Environmental Enforcement Information: Information held by the Department of Environmental Quality, the State Water Control Board, the State Air Pollution Control Board, or the Virginia Waste Management Board relating to (i) active federal environmental enforcement actions that are considered confidential under federal law and (ii) enforcement strategies, including proposed sanctions for enforcement actions. Upon request, such information shall be disclosed after a proposed sanction resulting from the investigation has been proposed to the director of the agency. This subdivision does not prevent the disclosure of information related to inspection reports, notices of violation, and documents detailing the nature of any environmental contamination that may have occurred or similar documents. Va. Code Ann. § 2.2-3705.7.15.

mmmmm. Data Collected by Toll Road Operators: Information related to the operation of toll facilities that identifies an individual, vehicle, or travel itinerary, including vehicle identification data or vehicle enforcement system information; video or photographic images; Social Security or other identification numbers appearing on driver's licenses; credit card or bank account data; home addresses; phone numbers; or records of the date or time of toll facility use. Va. Code Ann. § 2.2-3705.7.16.

nnnnn. Personal Information Held by Virginia Lottery: Information held by the Virginia Lottery pertaining to (i) the social security number, tax identification number, state sales tax number, home address and telephone number, personal and lottery banking account and transit numbers of a retailer, and financial information regarding the nonlottery operations of specific retail locations and (ii) individual lottery winners, except that a winner's name, hometown, and amount won shall be disclosed. Disclosure of this information requires the consent of the winner if the value of the prize exceeds $10 million. Va. Code Ann. § 2.2-3705.7.17.

ooooo. Drug Test Information of Branch Pilots: Information held by the Board for Branch Pilots relating to the chemical or drug testing of a person regulated by the Board, where such person has tested negative or has not been the subject of a disciplinary action by the Board for a positive test result. Va. Code Ann. § 2.2-3705.7.18.

ppppp. Unclaimed Property Holder Audit Information: Information pertaining to the planning, scheduling, and performance of examinations of holder records pursuant to the Virginia Disposition of Unclaimed Property Act (§ 55-2500 et seq.) prepared by or for the State Treasurer or his agents or employees or persons employed to perform an audit or examination of holder records. Va. Code Ann. § 2.2-3705.7.19.

qqqqq. Personal Information of Citizen Emergency Response Teams: Information held by the Virginia Department of Emergency Management or a local governing body relating to citizen emergency response teams established pursuant to an ordinance of a local governing body that reveal the name, address, including e-mail address, telephone or pager numbers, or operating schedule of an individual participant in the program. Va. Code Ann. § 2.2-3705.7.20.

rrrrr. Personal Information of Juveniles Held by Park and Recreation Entities: Information held by state or local park and recreation departments and local and regional park authorities concerning identifiable individuals under the age of 18 years. However, nothing in this subdivision shall operate to prevent the disclosure of information defined as directory information under regulations implementing the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, unless the public body has undertaken the parental notification and opt-out requirements provided by such regulations. Access shall not be denied to the parent, including a noncustodial parent, or guardian of such person, unless the parent's parental rights have been terminated or a court of competent jurisdiction has restricted or denied such access. For such information of persons who are emancipated, the right of access may be asserted by the subject thereof. Any parent or emancipated person who is the subject of the information may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, the public body shall open such information for inspection and copying. Va. Code Ann. § 2.2-3705.7.21.

sssss. Statewide Alert Network Participant Information: Information submitted for inclusion in the Statewide Alert Network administered by the Department of Emergency Management that reveal names, physical addresses, email addresses, computer or internet protocol information, telephone numbers, pager numbers, other wireless or portable communications device information, or operating schedules of individuals or agencies, where the release of such information would compromise the security of the Statewide Alert Network or individuals participating in the Statewide Alert Network. Va. Code Ann. § 2.2-3705.7.22.

ttttt. Judicial Discipline Information: Information held by the Judicial Inquiry and Review Commission made confidential by § 17.1-913. Va. Code Ann. § 2.2-3705.7.23.

uuuuu. Virginia and Local Retirement Systems and Virginia College Savings Plan Investments: Information held by the Virginia Retirement System acting pursuant to § 51.1-124.30, a local retirement system acting pursuant to § 51.1-803 (hereinafter collectively referred to as the retirement system), or the Virginia College Savings Plan, acting pursuant to § 23.1-704 relating to internal deliberations of or decisions by the retirement system or the Virginia College Savings Plan on the pursuit of particular investment strategies, or the selection or termination of investment managers, prior to the execution of such investment strategies or the selection or termination of such managers, if disclosure of such information would have an adverse impact on the financial interest of the retirement system or the Virginia College Savings Plan. Va. Code Ann. § 2.2-3705.7.24.a.

vvvvv. Trade Secrets Submitted to Virginia or Local Retirement System or Virginia College Savings Plan: Trade secrets provided by a private entity to the Virginia Retirement system, a local retirement system, or the Virginia College Savings Plan if disclosure of such records would have an adverse impact on the financial interest of the retirement system or the Virginia College Savings Plan. Va. Code Ann. § 2.2-3705.7.24.b. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. This subdivision does not prevent the disclosure of the identity or amount of any investment held or the present value and performance of all asset classes and subclasses.

wwwww. Identification of Department of Corrections Executioners: Information held by the Department of Corrections made confidential by former § 53.1-233, specifically the identities of persons designated by the Director to conduct an execution, and any information reasonably calculated to lead to the identities of such persons, including, but not limited to, their names, residential or office addresses, residential or office telephone numbers, and social security numbers. Va. Code Ann. § 2.2-3705.7.25.

xxxxx. Local Government Investment Pool: Information maintained by the Department of the Treasury or participants in the Local Government Investment Pool (§ 2.2-4600 et seq.) and required to be provided by such participants to the Department to establish accounts in accordance with § 2.2-4602. Va. Code Ann. § 2.2-3705.7.26.

yyyyy. Veteran Trust Fund Personal Information: Personal information, as defined in § 2.2-3801, contained in the Veterans Care Center Resident Trust Funds concerning residents or patients of the Department of Veterans Services Care Centers, except that access shall not be denied to the person who is the subject of the information. Va. Code Ann. § 2.2-3705.7.27.

zzzzz. Veterans Services Foundation Donor Information: Information maintained in connection with fundraising activities by the Veterans Services Foundation pursuant to § 2.2-2716 that reveal the address, electronic mail address, facsimile or telephone number, social security number or other identification number appearing on a driver's license or other document issued under Chapter 3 (§ 46.2-300 et seq.) of Title 46.2 or the comparable law of another jurisdiction, or credit card or bank account data of identifiable donors, except that access shall not be denied to the person who is the subject of the information. This subdivision does prevent the disclosure of information relating to the amount, date, purpose, and terms of the pledge or donation or the identity of the donor, unless the donor has requested anonymity in connection with or as a condition of making a pledge or donation. This subdivision does not apply to protect from disclosure (i) the identities of sponsors providing grants to or contracting with the foundation for the performance of services or other work or (ii) the terms and conditions of such grants or contracts. Va. Code Ann. § 2.2-3705.7.28.

aaaaaa. Prosecutor Training Materials: Information prepared for and utilized by the Commonwealth's Attorneys' Services Council in the training of state prosecutors or law-enforcement personnel, where such information is not otherwise available to the public and the disclosure of such information would reveal confidential strategies, methods, or procedures to be employed in law-enforcement activities or materials created for the investigation and prosecution of a criminal case. Va. Code Ann. § 2.2-3705.7.29.

bbbbbb. Excludable Information Provided to Department of Aviation by Public Bodies: Information provided to the Department of Aviation by other entities of the Commonwealth in connection with the operation of aircraft where the information would not be subject to disclosure by the entity providing the information. The entity providing the information to the Department of Aviation shall identify the specific information to be protected and the applicable provision of this chapter that excludes the information from mandatory disclosure. Va. Code Ann. § 2.2-3705.7.30.

cccccc. Judicial Performance Evaluation Program Information on Individual Judges: Information created or maintained by or on the behalf of the judicial performance evaluation program related to an evaluation of any individual justice or judge made confidential by § 17.1-100. Va. Code Ann. § 2.2-3705.7.31.

dddddd. Sexual Assault Team Individual Case Information: Information reflecting the substance of meetings in which (i) individual sexual assault cases are discussed by any sexual assault team established pursuant to § 15.2-1627.4 or (ii) individual child abuse or neglect cases or sex offenses involving a child are discussed by multidisciplinary child abuse teams established pursuant to § 15.2-1627.5, or (iii) individual cases of abuse, neglect, or exploitation of adults as defined in § 63.2-1603 are discussed by multidisciplinary teams established pursuant to §§ 15.2-1627.5 and 63.2-1605. The findings of any such team may be disclosed or published in statistical or other aggregated form that does not disclose the identity of specific individuals. Va. Code Ann. § 2.2-3705.7.32.

eeeeee. Economic Development Planning and Strategy: Information contained in the strategic plan, marketing plan, or operational plan prepared by the Virginia Economic Development Partnership Authority pursuant to § 2.2-2237.1 regarding target companies, specific allocation of resources and staff for marketing activities, and specific marketing activities that would reveal to the Commonwealth's competitors for economic development projects the strategies intended to be deployed by the Commonwealth, thereby adversely affecting the financial interest of the Commonwealth. The executive summaries of the strategic plan, marketing plan, and operational plan shall not be redacted or withheld pursuant to this subdivision. Va. Code Ann. § 2.2-3705.7.33.

ffffff. Physical Therapy Compact Commission. Information discussed in a closed session of the Physical Therapy Compact Commission or the Executive Board or other committees of the Commission for purposes set forth in subsection E of § 54.1-3491. Va. Code Ann. § 2.2-3705.7.34.

gggggg. Innovation Partnership Authority. Information held by the Commonwealth of Virginia Innovation Partnership Authority (the Authority), an advisory committee of the Authority, or any other entity designated by the Authority, relating to (i) internal deliberations of or decisions by the Authority on the pursuit of particular investment strategies prior to the execution of such investment strategies and (ii) trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), provided by a private entity to the Authority, if such disclosure of records pursuant to clause (i) or (ii) would have an adverse impact on the financial interest of the Authority or a private entity. Va. Code Ann. § 2.2-3705.7.35.

hhhhhh. Gambler Voluntary Exclusion Program. Personal information provided to or obtained by the Virginia Lottery in connection with the voluntary exclusion program administered pursuant to § 58.1-4015.1. Va. Code Ann. § 2.2-3705.7.36.

iiiiii. Sports Betting Confidential Reports of Misconduct. Personal information provided to or obtained by the Virginia Lottery concerning the identity of any person reporting prohibited conduct pursuant to § 58.1-4043. Va. Code Ann. § 2.2-3705.7.37.

jjjjjj. Criminal Records: Criminal records are addressed comprehensively in Va. Code Ann.§2.2-3706 and 3706.1. Generally, Virginia takes a broad view of what may be withheld and has no limits on when an investigation ends. It does provide for release of basic incident information, arrestee photographs and arrest information, discussed in Part III.P. of this outline.

a. Clients of the State. This exemption permits nondisclosure of personal information “in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, or welfare recipients.” RCW 42.56.230(1). The exemption is limited to information maintained in the collection of individual client files that the agency necessarily maintains for the client. Lindeman v. Kelso Sch. Dist., 162 Wn.2d 196, 172 P.3d 329 (2007).

The names and addresses of property owners who contract with the city for federal HUD loans are not “clients” of the city, nor are their names and addresses “personal information” under the exemption. Walla Walla Union-Bulletin v. Walla Walla City Council, 7 Med. L. Rptr. 1858 (Walla Walla Cty. July 14, 1981).

Personal information of children and family members enrolled in certain childcare and recreational services is exempt from disclosure. RCW 42.56.230(2).

b. Employees. The statute permits nondisclosure of personal information about public officials and employees “to the extent that disclosure would violate their right to privacy.” RCW 42.56.230(3). The “right to privacy” refers to matters that would be highly offensive to a reasonable person if disclosed and are not of public concern. RCW 42.56.050; Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978). Agencies must prove both prongs of the test and cannot balance the public interest against the privacy interest. See Tacoma Pub. Library v. Woessner, 90 Wn. App. 357, 951 P.2d 357 (1998). Disclosure of the mere fact that a public employer is investigating a public employee, or that the employee is on administrative leave, does not violate the employee’s right to privacy. Predisik v. Spokane Sch. Dist. No. 81, 182 Wn.2d 896, 346 P.3d 737 (2015). Release of records related to teacher certification revocations, particularly as they pertain to teachers’ sexual misconduct with students, does not violate the teachers’ right to privacy. Brouillet v. Cowles Publ’g Co., 114 Wn.2d 788, 791 P.2d 526 (1990). However, disclosure of the identity of a teacher accused of sexual misconduct violates the teacher’s right to privacy under the statute if the allegation is not substantiated. Bellevue John Does 1-11 v. Bellevue Sch. Dist. #405, 164 Wn.2d 199, 189 P.3d 139 (2008).

The exemption does not cover police officer complaints about their police chief’s job performance. Columbian Publ’g Co. v. City of Vancouver, 36 Wn. App. 25, 671 P.2d 280 (1983). A discharged school employee can obtain performance evaluations of other employees; however, the names of coworkers will be redacted unless there is a specific showing that the right to privacy should not apply. Ollie v. Highland Sch. Dist., 50 Wn. App. 639, 749 P.2d 757, review denied, 110 Wn.2d 1040 (1988). Disclosure of performance evaluations, which do not discuss any specific instances of misconduct or the performance of public duties, is presumptively highly offensive to a reasonable person and not of legitimate public concern, and thus violative of the employee’s privacy rights and exempt. Dawson v. Daly, 120 Wn.2d 782, 797, 845 P.2d 995 (1993). Beltran v. DSHS, 98 Wn. App. 245, 989 P.2d 604. However, evaluations of high level employees, such as a city manager or high-ranking police official, have more significant public interest and are not exempt under Dawson. See Spokane Research v. City of Spokane, 99 Wn. App. 452, 994 P.2d 267 (2000); City of Fife v. Hicks, 186 Wn. App. 122, 345 P.3d 1 (2015).

The legitimacy of public concern is determined by balancing the public’s interest in disclosure against the public’s interest in the efficient administration of government.  Thus, the public has a legitimate concern in seeing a settlement agreement between a city and one of its top employees because “[t]he fact a public body may not be able to keep the specific terms of a settlement agreement confidential does not have such a chilling effect on future settlements so as to affect the efficient administration of government.” Yakima Newspapers, Inc. v. City of Yakima, 77 Wn. App. 319, 328, 890 P.2d 544 (1995).

The state Attorney General has stated that public employee salary information is generally not personal information which may be withheld, although individual employee deductions may be protected by a right to privacy. 1973 Op. Atty. Gen. No. 4. Employee identification numbers are exempt, but names must be released. See Tacoma Pub. Library v. Woessner, 90 Wn. App. 357, 951 P.2d 357 (1998). Information provided by job applicants for a city plumber’s job, however, including reasons for leaving the previous job, criminal convictions and handicaps, may be withheld. Wash. State Human Rights Comm’n v. City of Seattle, 25 Wn. App. 364, 607 P.2d 332 (1980). In 1987, the legislature exempted all applications for public employment, including resumes and names included in those applications. RCW 42.56.250(2). The courts also have held that applications are exempt under RCW 42.56.210(1)(b). Beltran v. DSHS, 98 Wn. App. 245, 989 P.2d 604 (1999).

In addition, residential addresses, telephone numbers, personal email addresses and other specific personal information of public employees or volunteers may be withheld from public disclosure. RCW 42.56.250(4). This exemption applies only to records held in personnel files and public employment records. Thus, a public official’s personal email address is not exempt if it appears in other types of public records. Mechling v. Monroe, 152 Wn. App. 830, 222 P.3d 808 (2009).

The Washington Supreme Court has held that the state constitutional right of privacy does not apply to prevent disclosure of public records containing public employees’ dates of birth in connection with their full name. Wash. Pub. Emps. Ass’n v. Wash. State Ctr. for Childhood Deafness & Hearing Loss, 194 Wn.2d 484, 450 P.3d 601 (2019).

Public employees who seek advice under an agency process concerning unfair labor practices, or use internal, informal anti-discrimination procedures, have the right to remain anonymous. RCW 42.56.250(5)–(6).

Also exempt are criminal history records checks for certain board staff finalist candidates. RCW 42.56.250(7).

Photographs and birthdates of criminal justice agency employees are exempt from disclosure. This exemption does not apply to the news media. RCW 42.56.250(8).

GPS data that would indicate the location of a public employee’s or volunteer’s residence is exempt from disclosure.  RCW 42.56.250(10).

Also exempt is voluntarily submitted personal demographic information (including race, ethnicity and sexual orientation) collected by a state agency or higher education institution, though aggregated information is subject to disclosure. RCW 42.56.250(11). Even if a court orders release of documents, an employee or other person may sue the agency for common law invasion of privacy. See Corbally v. Kennewick Sch. Dist., 94 Wn. App. 736, 973 P.2d 1074 (1999). But see Corey v. Pierce Cnty., 154 Wn. App. 752, 766, 225 P.3d 367 (2010) (ruling dismissed employee’s claim for “negligent dissemination of harmful information” was barred as a matter of law). The mere fact that records may not be disclosable under a PRA privacy-based exemption does not in itself give rise to an invasion of privacy action against media entities that report the information contained in the record. See Cawley-Herrmann v. Meredith Corp., 654 F.Supp.2d 1264 (W.D. Wash. 2009).

c. Taxpayer, Financial and Personal License Information. Tax returns, and information that would result in unfair competitive disadvantage to the taxpayer or violate the taxpayer’s right to privacy, are generally exempt. RCW 42.56.230(4). The “right to privacy” refers to matters that would be highly offensive to a reasonable person if disclosed and are not of public concern. RCW 42.56.050; Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978). Credit/debit card numbers and other financial account numbers are also exempt. RCW 42.56.230(4)–(5). Personal information contained in documents used to apply for a driver’s license or identicard is exempt under RCW 42.56.230(6).

d. Investigative Records. This exemption applies to specific investigative records, the nondisclosure of which is essential to law enforcement or to protect a person’s right to privacy. RCW 42.56.240(1). Reports generated as part of routine administrative procedure, not as the result of a specific complaint or allegation of misconduct, are not “investigative reports.” Cowles Publ’g Co. v. City of Spokane, 69 Wn. App. 678, 683, 849 P.2d 1271 (noting that police reports regarding contact by any K-9 dog with citizen, generated as matter of course, are not investigative records), review denied, 122 Wn.2d 1013, 863 P.2d 73 (1993); Wade’s Eastside Gun Shop, Inc. v. Dep’t of Labor & Indus., 185 Wn.2d 270, 372 P.3d 97 (2016) (noting that a workplace safety investigation does not implicate this exemption). Reports which could trigger an investigation and imposition of sanctions if warranted, but which are not themselves used for “law enforcement,” are not exempt. Id. at 684.

Investigative records related to pending criminal matters are presumptively subject to disclosure once a suspect has been arrested and referred to the prosecutor for a charging decision.  Seattle Times Co. v. Serko, 170 Wn.2d 581, 243 P.3d 919 (2010); Cowles Publ’g Co. v. Spokane Police Dep’t, 139 Wn.2d 472, 987 P.2d 620 (1999). The state supreme court at one point created a categorical exemption for “open and active” police investigation files in which disclosure would jeopardize the ability to solve the case. Newman v. King Cnty., 133 Wn.2d 565, 947 P.2d 712 (1997). The court later clarified that the categorical exemption only exists for “information contained in an open, active police investigation file.” Limstrom v. Ladenburg, 136 Wn.2d 595, 963 P.2d 869 (1998) (refusing to extend a categorical exemption to work product materials under RCW 42.56.290). In Cowles and again in Serko, the court further clarified that the concept of categorical exemption did not apply once the case was referred to the prosecutor’s office, even if the files remained technically open. See also Sargent v. Seattle Police Dep’t, 179 Wn.2d 376, 314 P.3d 1093 (2013).

The “right to privacy” refers to matters that would be highly offensive to a reasonable person if disclosed and are not of public concern. RCW 42.56.050; Hearst, 90 Wn.2d at 137–38. In a torturous opinion, a Washington court held that whether statements in public records are “true” bears on whether the records are of legitimate concern to the public. City of Tacoma v. Tacoma News, Inc., 65 Wn. App. 140, 827 P.2d 1094, review denied, 119 Wn.2d 1020, 838 P.2d 692 (1992) (ruling police records of investigation based on unsubstantiated allegation of child abuse against political candidate were not of legitimate public concern). But see Hudgens v. City of Renton, 49 Wn. App. 842, 746 P.2d 320 (1987) (ruling that arrest report, citation, and patrol report must be disclosed despite acquittal), review denied, 110 Wn.2d 1014 (1988). In Bellevue John Does 1-11 v. Bellevue School District #405, 164 Wn.2d 199, 189 P.3d 139 (2008), the Washington Supreme Court held that the identities of teachers accused of sexual misconduct are not subject to disclosure in cases where the allegations were not substantiated.

Police body worn camera recordings are subject to disclosure except to the extent necessary to protect a person’s “right to privacy,” under a modified version of the privacy test discussed above. Certain types of recordings are presumed to be “highly offensive,” including depictions showing the inside of medical facilities and residences, intimate images, minors and the body of a deceased person. RCW 42.56.240(14).  Public records requests for bodycam footage must also specify a particular individual involved in an incident, a specific officer, or the incident’s time and location. Id.

Criminal records on charges that have not resulted in conviction or other adverse disposition and for which formal proceedings are over are closed to the public. RCW 10.97.050; id. 10.97.030(2). Internal police investigations are considered exempt, even though no criminal charges are involved and no right to privacy is violated. The Washington Supreme Court has said that public disclosure of such investigations would render law enforcement ineffective. Cowles Publ’g Co. v. State Patrol, 109 Wn.2d 712, 748 P.2d 597. Nevertheless, an investigative report concerning liquor law violations at a police guild party is not exempt on grounds that public disclosure would render law enforcement ineffective or violate the officers’ privacy. Spokane Police Guild v. Liquor Control Bd., 112 Wn.2d 30, 769 P.2d 283. In addition, internal investigation records are not exempt if requested as part of the discovery process, because a trial court can craft a protective order to alleviate law enforcement concerns. State v. Jones, 96 Wn. App. 369, 979 P.2d 898 (1999).

e. Identity of Witnesses, Victims, and Persons Filing Complaints. The identity of witnesses, victims, and persons who file criminal or quasi-criminal complaints with agencies other than the Public Disclosure Commission if the complainant indicates at the time of filing the complaint that the complainant desires for it to be confidential, is exempt if disclosure would endanger a person’s life, property or physical safety. RCW 42.56.240(2).

Information revealing the identity of child victims of sexual assault who are under age 18 is confidential. RCW 42.56.240(5).

f. Other crime/law enforcement records. License applications for concealed pistols are exempt from public disclosure. RCW 42.56.240(4). The felony firearm offense conviction database is exempt under RCW 42.56.240(10).

The statewide gang database is exempt from disclosure. RCW 42.45.240(6).

Data from the state pseudoephedrine sales tracking system is exempt from disclosure.  RCW 42.56.240(7).

Identifying information submitted to the statewide unified sex offender notification and registration program for the purpose of receiving notification regarding a registered sex offender is exempt from disclosure.  RCW 42.56.240(8).

Personally identifying information collected by law enforcement from local security alarm system and crime watch programs is exempt from disclosure. RCW 42.56.240(9).

g. Test Questions. An agency may withhold “[t]est questions, scoring keys, and other examination data used to administer a license, employment, or academic examination.” RCW 42.56.250(1).

h. Real Estate Appraisals. Real estate appraisals made in connection with the purchase or sale of property are exempt from disclosure until the earlier of (1) three years from the date of the appraisal or (2) consummation or abandonment of the transaction. RCW 42.56.260.

i. Commercially Valuable Information. An agency may withhold any valuable formulae, designs, drawings or research data obtained within five years of the request for disclosure if disclosure would produce private gain and public loss. RCW 42.56.270(1). “Research data” is defined as “a body of facts and information collected for a specific purpose and derived from close, careful study, or from scholarly or scientific investigation or inquiry.” Servais v. Port of Bellingham, 127 Wn.2d 820, 832, 904 P.2d 1124 (1995) (holding that cash flow report prepared for Port’s use in negotiations with developers was exempt). Research data includes raw data and the guiding hypotheses that structure the data, Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 255, 884 P.2d 592 (1994), and is not limited to scientific facts. Servais, 127 Wn.2d at 831. The exemption does not cover accounting reports developed to secure a federal loan. See Spokane Research v. City of Spokane, 96 Wn. App. 569, 994 P.2d 267 (1999).

RCW 42.56.270, which is frequently amended and updated, sets out a number of additional specific exemptions related to financial or proprietary information held by specified state boards and agencies, including certain information submitted by bidders in connection with highway or ferry system construction; loan information held by state sponsored development programs; certain private commercial information supplied to state sponsored export services and industrial development corporations, and the state Investment Board; and financial information provided by health care providers for workers compensation programs.

j. Deliberative Process. This exemption allows nondisclosure of intra-agency deliberative materials. RCW 42.56.280. Inter-agency materials are not exempt. Columbian Publ’g Co. v. City of Vancouver, 36 Wn. App. 25, 671 P.2d 280 (1983). The exemption applies to opinions, such as faculty tenure evaluations, Hafermehl v. Univ. of Wash., 29 Wn. App. 366, 628 P.2d 846 (1981), but does not include purely factual matters, Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978), or the raw data on which a decision is based. PAWS, 125 Wn.2d at 256. Deliberative materials are exempt only until the policies or recommendations contained in such records are implemented. Dawson v. Daly, 120 Wn.2d 782, 793, 845 P.2d 995 (1993).

k. Discovery Exemption. If an agency is a party to a lawsuit, it may withhold any records relevant to that suit that would be protected under rules of pretrial discovery. RCW 42.56.290. Civil, rather than criminal, discovery rules apply. Limstrom v. Ladenburg, 136 Wn.2d 595, 963 P.2d 869 (1998). This exemption applies to “reasonably anticipated litigation,” id. at 791, and to records created to evaluate an agency’s potential liability, Overlake Fund v. City of Bellevue, 70 Wn. App. 789, 794, 855 P.2d 706 (1993), review denied, 123 Wn.2d 1009, 869 P.2d 1084 (1994), but it does not apply where the records may only have some possible relevance to a future hypothetical dispute with a third party. Yakima Newspapers, Inc. v. City of Yakima, 77 Wn. App. 319, 325, 890 P.2d 544 (1995). As reflected in the work product rule, the exemption also applies after the termination of litigation. Dawson, 120 Wn.2d at 790. A settlement agreement is not protected under the work product rule and, thus, this exemption, because it is not prepared in anticipation of litigation but in an attempt to conclude litigation. Yakima Newspapers, 77 Wn. App. at 326-27. The courts have refused to create a blanket work product exemption to everything in a prosecutor’s litigation file. Limstrom v. Ladenburg, 136 Wn.2d 595, 963 P.2d 869 (1998). But see Koenig v. Pierce Cnty., 151 Wn. App. 221, 211 P.3d 423 (2009) (exempting transcript of a witness statement under work product exemption because it was sought by the prosecutor in anticipation of litigation).  In Seattle Times Co. v. Serko, 170 Wn.2d 581, 243 P.3d 919 (2010), the Washington Supreme Court held that police investigative records generally are not exempt from PRA disclosure as prosecutorial work product.  The court expressly rejected the argument that “a law enforcement agency is merely an arm of the prosecutor’s office for purposes of a work product analysis.”

In Morgan v. Federal Way, 166 Wn.2d 747, 213 P.3d 596 (2009), the Washington Supreme Court held that a city’s report investigating a hostile work environment complaint against a municipal judge was subject to disclosure, and did not qualify as work product because at the time of the investigation, no litigation had been threatened or anticipated.

l. Archaeological Site Protection. Records identifying the location of archaeological sites may be withheld to avoid looting or degradation of sites. RCW 42.56.300.

m. Library Records. Library records that are used primarily to maintain control of library materials may be withheld to protect the identity of the user. RCW 42.56.310.

n. Schools. Certain financial disclosures that private vocational schools must file by law may be withheld from public disclosure. RCW 42.56.320(1). Any state college, library or archive that receives a gift or grant which by its terms restricts public access to certain records may withhold such records. RCW 42.56.320(4). RCW 42.56.315, enacted in 2020, exempts a range of records shared among school districts regarding notification of past offenses by transferred students. RCW 42.56.375 exempts records identifying witnesses and victims of sexual misconduct in postsecondary educational institutions.

o. Utilities and Transportation Records. Certain records filed with the state Utilities and Transportation Commission that a court has determined are confidential are exempt. RCW 42.56.330(1).

p. Utility and Transit Customers. Residential addresses and telephone numbers of customers of a public utility may be withheld from public disclosure. Personal records related to carpool programs, transit passes, toll transponders and the like are also exempt. RCW 42.56.330(2)-(9).

q. Timeshare Condominiums. Membership lists in timeshare projects that must be filed by law may be withheld from public disclosure. RCW 42.56.340.

r. Health Care Providers. The Social Security numbers, residential addresses, and phone numbers of health care providers may be withheld from disclosure. RCW 42.56.350. Records obtained from or on behalf of HMOs, entities providing disability insurance or health care services, pharmaceutical manufacturers, or other entities which purchase, dispense or distribute drugs may be withheld. RCW 42.56.360(1)(b). Also, records created for and maintained by a heath care provider’s quality improvement committee are exempt. RCW 42.56.360(1)(c).

s. Domestic Violence. Client records maintained by a domestic violence shelter or rape crisis center are exempt. RCW 42.56.370.

t. Agricultural Information. Business information related to organic food product certification is protected from public inspection and copying. RCW 42.56.380(1). Other exemptions for personal and business information submitted in connection with specified agricultural programs are set out in RCW 42.56.380.

u. Medical Records. Health care information of patients is exempt except for certain directory information. RCW 42.56.360(2); RCW 70.02.

v. Check Casher/Seller. Residential addresses, telephone numbers, and financial statements in applications for check casher/seller licensing are exempt. RCW 42.56.450.

w. Impaired Physicians. Certain records involving disciplinary action under the impaired physicians program may be withheld from public disclosure. RCW 42.56.360(1)(e).

x. Life Insurance Policy Holders. Names and identifying information of owners of life insurance policies regulated by the insurance commissioner are exempt. RCW 42.56.400(3). Other exemptions applicable to insurance and financial institutions are set out in RCW 42.56.400.

y. Fireworks Records. Records produced pursuant to the state Fireworks Law are exempt from disclosure. RCW 42.56.460.

z. Security. Portions of records assembled, prepared or maintained to prevent or respond to criminal terrorist acts and specific and unique vulnerability assessments are exempt from disclosure. RCW 42.56.420(1). Also, records obtained as a result of national security briefings with state and local government are not subject to disclosure when they are not subject to disclosure under federal law. Id.; see also Nw. Gas Ass'n v. Wash. Utils. & Transp. Comm’n, 141 Wn. App. 98, 168 P.3d 443 (2007). Other information regarding security jails, schools, communications networks, and transportation system may be exempt. RCW 42.56.420(2)-(6).

aa.  Fish and Wildlife. Specified commercial and recreational fish and wildlife data are exempt under RCW 42.56.430.

The West Virginia Freedom of Information Act specifically exempts from disclosure twenty-one categories of information. Each of these exemptions, and Supreme Court decisions interpreting them, are discussed below.

1. Trade secrets

The first FOIA exemption relates to trade secrets:

Trade secrets, as used in this section, which may include, but are not limited to, any formula, plan pattern [sic], process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented which is known only to certain individuals within a commercial concern who are using it to fabricate, produce or compound an article or trade or a service or to locate minerals or other substances, having commercial value, and which gives its users an opportunity to obtain business advantage over competitors.

W. Va. Code § 29B-1-4(1). The scope of this exemption has never been interpreted by the West Virginia Supreme Court of Appeals, although in Queen v. WVU Hospitals, 179 W. Va. 95, 365 S.E.2d 375, 382 (1987), the court summarily rejected the "conclusory" argument of WVU Hospitals that certain of its contracts should be exempt from disclosure under this provision and that it should be allowed to maintain “business confidentiality.” The Queen Court emphasized that FOIA exemptions are to be strictly construed." Id.

The trade secrets exemption was revisited briefly by the court in AT&T Communications of W. Va. v. Public Service Commission of W. Va., 188 W. Va. 250, 423 S.E.2d 859 (1992). In that case, public utilities sought a protective order from the Public Service Commission covering all information contained in an annual report that utilities were required to file with the PSC. The court ruled the utilities were entitled to confidential treatment of the information only if they first established, by clear and convincing evidence, they were likely to be harmed by disclosure of "a trade secret, expansively defined" under the Freedom of Information Act. The court emphasized, "[a]s an administrative agency, the PSC has a responsibility to disclose as much information to the public as it can." Id. at 862.

Confidentiality provisions for trade secrets, similar but not identical to the FOIA exemption, are contained in several other specific West Virginia statutes. These include W. Va. Code §  5D-1-21 (Public Energy Authority records relating to secret processes or secret methods of manufacture or production); W. Va. Code §  16-20-11a (Air Pollution Control Commission records containing "methods or processes entitled to protection as trade secrets") and W. Va. Code §§  31-19-19, 20-5C-21 (records of the Community Infrastructure Authority or the Water Development Authority under DNR "relating to secret processes or secret methods of manufacture or production").

A new exemption was amended into an economic development section of the West Virginia Code in 1997. A direct response to the decision in Daily Gazette v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996)(“Gazette I”), the following was added to W. Va. Code § 5B-2-1:

Any documentary material, data or other writing made or received by the West Virginia development office or other public body, whose primary responsibility is economic development, for the purpose of furnishing assistance to a new or existing business shall be exempt from the provisions of [the Freedom of Information Act].

A proviso to the new law requires disclosure of "any agreement entered into or signed by the development office or public body which obligates public funds . . . as of the date the agreement is entered into, signed or otherwise made public." W. Va. Code § 5B-2-1.

1. Personal information

The second exemption, which may be the most difficult to apply, exempts:

Information of a personal nature such as that kept in a personal, medical or similar file, if the public disclosure thereof would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance: Provided, That nothing in this article shall be construed as precluding an individual from inspecting or copying his own personal, medical or similar file.

W. Va. Code § 29B-1-4(2).

“The primary purpose of the invasion of privacy exemption . . . is to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information.” Syl. Pt. 6, Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985); Syl. Pt. 6, Highland Mining Co. v. W. Va. Univ. Sch. of Medicine, 235 W. Va. 370, 774 S.E.2d 36, (2015). One commentator has observed, "[t]he language of the exemption suggests that it is available only to individuals and not "artificial persons" such as corporations." Alfred S. Neely, IV, Administrative Law in West Virginia, § 7.09 at 552  (Michie Co. ed., 1982) (hereafter "Neely"). The plain language of the statute supports this narrow interpretation of "information of a personal nature" and is consistent with the Supreme Court's frequent admonition that such exemptions be strictly construed.

The exemption for personal information is the only exemption that requires a balancing of competing interests. Understandably, it has produced the most complex test for determining whether particular information should be disclosed.

The Supreme Court of Appeals has examined this exemption in six  cases, Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799, 809-12 (1985),  Child Protection Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541 (1986), Manns v. City of Charleston Police Dept., 209 W. Va. 620, 550 S.E.2d 598 (2001), Smith v. Bradley,  223 W. Va. 286, 673 S.E.2d 500 (2007)  In re Charleston Gazette FOIA Request, 222 W. Va. 771, 671 S.E.2d 776 (W. Va. 2008), and Charleston Gazette v. Smithers, 232 W. Va. 449, 752 S.E.2d 603 (2013).

In Hechler, the court employed a two-pronged inquiry in deciding whether a public body correctly withheld records under the privacy exemption. First, it determined whether the requested records were “personal,” “medical,” or “similar” files. Second, when the records fell into one of those categories, the court "weighed an individual’s right of privacy against “the public’s right to know.” The court concluded the exemption "does not apply to a list of names and addresses of security guards furnished to the Secretary of State pursuant to his licensing and regulation of the guards' employer, since such information is not personal in nature but public facts, and since the risk of harm from disclosure is speculative." 333 S.E.2d at 802.

In Child Protection Group v. Cline, the court analyzed the competing interests underlying the exemption and devised a five-part test for deciding whether access to personal information should be allowed:

1. Whether disclosure would result in a substantial invasion of privacy; a court must determine the seriousness of the invasion.
2. The extent or value of the public interest and the purpose or object of the requester.
3. Whether the information is available from other sources.
4. Whether the information was given with an expectation of confidentiality.
5. Whether it is possible to mould relief so as to limit the invasion of individual privacy.

Syl. Pt. 2, 177 W. Va. 29, 350 S.E.2d 541 (1986). Cline describes how this test should be applied.

It is worth reprinting here at length:

First, the court must determine whether disclosure would result in an invasion of privacy and, if so, how serious. This is a two-part test. The first part is whether there is a substantial invasion of privacy. Private information is something that affects or belongs to private individuals as distinct from the public generally. The invasion into the private information must be substantial. Information of a non-intimate or public nature may be disclosed.

If there is a substantial invasion of privacy involved, the court must measure the seriousness of the invasion. . . . [W]eighing the extent of the invasion of privacy, courts must look at the extent to which the release of the information would cause an ordinary man in the time and place of the private individual involved, embarrassment or harm . . . .

Second, the court looks for the extent or value of the public interest, purpose or object of the individuals seeking disclosure. Again, two tests are involved. The first is the value of the public interest. The interest may be pecuniary, or the public may have an interest because their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity. [The public interest that has received the greatest protection is the interest in honest and efficient government.]

The second test also concerns the purpose for which the information is sought. If the information is sought to provide for something that would be useful to the public, then the courts will weigh this favorably. To the contrary, where a misuse of information may result, the courts are wary of ordering disclosure.

Third, the court asks whether the information is available from other sources. If the information sought is available in publicly obtainable books and records, then the court should simply allow the plaintiff access to information that he would eventually get anyway. If the information sought is available in a format that would be less intrusive to individual privacy, the courts should protect the privacy interests and force the plaintiff to use the less intrusive format. Finally, if there is absolutely no other place or method to gather the information than from the particular Freedom of Information Act request before the court, this is a factor in favor of disclosure.

Fourth, the court examines whether the information was given with an expectation of confidentiality. . . . An agreement or expectation of confidentiality, while a factor, will not override the Freedom of Information Act.

Finally, a court must ask whether it is possible to mould relief to limit the invasion of individual privacy. To release or not to release is not an "all or nothing" decision under the Freedom of Information Act where personal material is concerned. The courts have consistently taken steps such as the deletion of certain personal data from the documents to be released so as to protect the privacy interests of individuals involved. . . . Trial courts should be encouraged to take innovative measures to limit the invasion of individual privacy whenever disclosure is required.

Child Protection Group v. Cline, 350 S.E.2d at 544-45 (1986). See also, In re Charleston Gazette FOIA Request, 222 W. Va. 771, 671 S.E.2d 776 (2008).

Cline presented the court with a particularly difficult situation. A group of parents had sought to review and copy the medical records of a school bus driver, whose bizarre conduct while driving their children had led to his suspension and compelled psychiatric treatment. Upon the driver's reinstatement, the school board sent a letter to the parents assuring them of the driver's competency but also including "short, ambiguous quotes from his psychiatrists." The parents demanded access to the full psychiatric record. The court's resolution of this difficult conflict, summarized below, represents an innovative — and highly pragmatic — example of attempting to accommodate all competing interests to the maximum extent possible:

There is no question that disclosure would cause an invasion of privacy. An individual's medical records are classically a private interest. Further, it is difficult to imagine an item more potentially embarrassing than individual psychiatric reports. . . . These reports were surrendered to the school board under a justifiable expectation of confidentiality. . . . Certainly, only a most compelling interest could justify the release of the records under the Freedom of Information Act.

Nevertheless, we believe that the parents of the children assigned to Mr. Roberts' bus have such a compelling interest in his mental condition. Mr. Roberts' statements and actions in front of the children raise serious concerns about his ability to safely pilot his school bus. . . . [T]he parents need more. . . . The parents deserve to see all of the evidence on Mr. Roberts' condition. . . . [I]t is the safety of the children which we find to be a factor of overriding importance, tipping the scales clearly and convincingly toward disclosure . . . .

In order to dilute what is a massive invasion of Mr. Roberts' privacy, we take the somewhat unprecedented step of ordering a less than full disclosure of the records, limiting their viewing only to those who have a "need to know." The public at large has no need to know about Mr. Roberts' medical condition. Mr. Roberts does not make decisions in his job which will affect anyone other than those riding his bus. He is not a high elected official, but a humble public servant. No public interest would be served by a general release of Mr. Roberts' records. Therefore, we hold that the public at large does not meet the test set out in § 29B-1-4(2) and the public at large should not be allowed to view Mr. Roberts' medical reports.

In order to best fit the equities of this unusual case, we therefore fashion the following remedy. (1) All relevant information in Mr. Roberts' personnel and medical files shall be open to inspection by any parent whose child is assigned to Mr. Roberts' bus. The records shall be kept in a convenient place and open to inspection during normal business hours. The parents, however, shall not be allowed to photocopy any records. (2) In the event the parents collectively or any one of them wish to investigate the possibility of legal action in this regard, their attorney shall be allowed one complete photocopy of Mr. Roberts' records. . . . (3) No general public dissemination of this information should be allowed without the permission of Mr. Roberts and the Board of Education of Gilmer County.

Child Protection Group v. Cline, 350 S.E.2d at 545-46 (1986).

In Robinson v. Merritt, 180 W. Va. 26, 375 S.E.2d 204 (1988), the court applied the Cline test, ruling that an attorney representing injured workers was not entitled to inspect Workmen's Compensation Fund records containing names, addresses, employer information, and data regarding the type of injuries sustained by Workmen's Compensation recipients.

The Robinson court ruled that records will not be disclosed if the FOIA requester "fails to present, by clear and convincing evidence, a legitimate reason sufficient to overcome the privacy exemption  and an adequate source of information is already available., Id., Syl. Pt. 3.

In Manns v. City of Charleston Police Dept., 209 W. Va. 620, 550 S.E.2d 598 (2001), a person (Manns) arrested by city police officers sued the city and its police chief under the FOIA. He sought disclosure of records of the outcomes of police department internal investigations of every officer against whom civil or criminal complaints had been filed regarding their behavior --- in the course of employment --- or otherwise. Manns asserted that a police officer had used excessive force in carrying out her arrest. The City initiated an internal investigation.  It also asked the Federal Bureau of Investigation to conduct an independent investigation. Both investigations exonerated the officer. In its response to Mann's FOIA request, the City produced about half of the records requested; it objected to supplying the remaining documents and information.

The Manns Court explained that FOIA provisions, addressing the confidentiality of records versus their availability to the general public, are aimed at protecting interests distinct from those at issue when records are requested in conjunction with a civil rights action, Manns v. City of Charleston Police Dept., 209 W. Va. 620, 550 S.E.2d 598 (2001), citing Maclay v. Jones, 208 W. Va. 569, 574, 542 S.E.2d 83, 88 (2000) (civil rights lawsuit plaintiffs could obtain a state trooper's personnel file and portions of records in civil discovery relative to an internal affairs investigation of complaints filed against the trooper).

The Manns Court first determined that the records requested contained “information of a personal nature such as that kept in a personal, medical or similar file” as provided in the FOIA, W. Va. Code § 29B-1-4(2). Then, applying the Cline five factor balancing test, the Manns found that the public interest did not require the disclosure of the requested information.

The Court opined that:

Clearly, disclosure of the information would result in a substantial invasion of privacy. As noted above, the request in this case would require the disclosure of all claims of misconduct no matter how egregious, unfounded, or potentially embarrassing. In addition, the information was obviously given with an expectation of confidentiality as the appellants' policy and procedural manuals require all investigative reports to be “treated with the strictest of confidence.” Furthermore, the expectation of confidentiality is crucial to continued reports of possible misconduct. This Court is certainly mindful that “the lawfulness of police operations is a matter of great concern to the state's citizenry.” However, our concern in Maclay that “compelled disclosure of police investigatory materials might result in ‘fishing expeditions' and thereby encourage frivolous litigation” leads us to conclude that the public interest does not require the disclosure of the requested information.

Manns v. City of Charleston Police Dept., 209 W. Va. 620, 626, 550 S.E.2d 598, 604 (2001), (Citations omitted).  In dicta, the Manns Court observed that it believed some of the requested records also fell within the FOIA's law enforcement exemption, W. Va. Code § 29B-1-4(4) (exempting “records of law-enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law-enforcement agencies which are maintained for internal use in matters relating to law enforcement.” the Court also noted that FOIA’s “internal memoranda” exemption might shield some police records from disclosure. W. Va. Code § 29B-1-4(8). Because the Court resolved the appeal by holding the requested documents exempt under the personal records exemption, it did not decide if the exemptions, mentioned in dicta, would bar disclosure of the documents requested by Manns.

In Smith v. Bradley, 223 W. Va. 286, 673 S.E.2d 500 (2007), the Court held that university student, peer, and chair reviews and job performance evaluations of a non-tenured university faculty member could be withheld under the “records of a personal nature” exemption of FOIA, W. Va. Code § 29B-1-4(2). The trial court had found that the professor’s job performance evaluations constituted personal information kept in a personal or similar file. The court held that disclosure of these evaluations in an un-redacted form would invade the privacy of faculty members, while disclosure in a redacted form would not be an invasion of privacy. Id. at 223 W. Va. at 290-291, 673 S.E.2d at 504-505.

In Smith the Supreme Court upheld the trial court, concluding that the release of the evaluations in un-redacted form would also constitute a substantial invasion of privacy of the individuals who provided the evaluations.  In applying the Cline balancing test, the Court found the public interest weighed heavily in favor of non-disclosure. The evaluators “had a reasonable expectation that their responses were confidential.” 223 W. Va. at 292, 673 S.E.2d at 506. Confidential evaluations “help to foster the higher education system's need for an effective faculty evaluation system” and “public disclosure of evaluations will necessarily lead to a less effective evaluation system.” Id.

“It is possible" said the court, "that a vindictive supervisor could use the public nature of the performance evaluations to personally attack employees whom he or she dislikes.” Moreover, the court observed, “sincere evaluators will necessarily be less likely to be critical of their colleagues if un-redacted evaluations are easily available to be viewed by the public and by co-workers.” Id. The Court also expressed the concern that “some evaluators may not provide in-depth or truthful evaluations of their colleagues fearing that they could personally be the subject of retribution or libel lawsuits for any information found in evaluations, even if truthful, that portray colleagues in a negative manner.”

In re Charleston Gazette FOIA Request, involved a newspaper's FOIA request for the activity logs and payroll time sheets of police officers who were accused of "double dipping." 222 W. Va. 771, 671 S.E.2d 776 (W. Va. 2008). The City denied the request relying on Manns v. City of Charleston Police Dept., 209 W. Va. 620, 550 S.E.2d 598 (W. Va. 2001). The West Virginia Court had not previously addressed whether payroll records of public employees must be disclosed under FOIA, although most other states considering the issue had construed their open records laws to require disclosure. Many jurisdictions had also reached the same conclusion under their laws regarding payroll records, attendance, employment, vacation, or sick leave records, reasoning that such records do not include information of a personal nature to which an expectation of confidentiality attaches.

In re Charleston Gazette FOIA Request concluded that the release of the time records did not constitute a substantial invasion of individual privacy because there was no evidence that any police officers had a reasonable expectation that their time records would remain confidential. Also, there was no evidence the City considered the time records to be an important part of its employment records. The Court found that the newspaper sought the information “for a valuable public interest and that the information would not otherwise be available from other sources.” The time sheets were held to be public records not exempt from disclosure. 222 W. Va. 771, 788,  671 S.E.2d 776, 783 (2008).

In dicta, the Court further “acknowledge[d] that public documents relating to such matters as names of public employees, their designation, an employee number, payroll records, time sheets, salary amounts, attendance records, numerical data dealing with a public employee's vacation or sick leave records, retirement service credit, and statutorily withheld federal, state and city taxes, are clearly public records and subject to disclosure.” Id. The dicta also observed that, “without delineating the precise scope of the right to privacy afforded by West Virginia's FOIA, we can state with confidence that disclosure of such records would not ‘constitute an unreasonable invasion of privacy’ ”.  Id. The Court continued:

They simply are not the kind of private facts that the Legislature intended to exempt from mandatory disclosure. Likewise, these ministerial and plainly public documents could not be considered, “[r]ecords of law-enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law-enforcement agencies which are maintained for internal use in matters relating to law enforcement” as prescribed by W. Va. Code § 29B-1-4(a)(4).

Furthermore, even if some of the aforementioned records were being used as a part of an internal criminal investigation, they would still be subject to disclosure under our FOIA. See Syl. Point 11 of Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985), (holding that investigatory records portion of FOIA does not include “information generated pursuant to routine administration or oversight, but is limited to information compiled as part of an inquiry into specific suspected violations of the law”).

The City points out that six of the twenty-eight-time sheets were under seal in other court proceedings. However, the Court indicated that an agreement as to confidentiality between a public body and the supplier of information may not override the Freedom of Information Act. See Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985)

In re Charleston Gazette FOIA Request, 222 W. Va. at 788-789, 671 S.E.2d at 783-784 (2008). The Court ordered that the newspaper be allowed to inspect and copy the City’s payroll records.

In Charleston Gazette v. Smithers, 232 W. Va. 449, 752 S.E.2d 603 (Syl. Pt. 6 and 7)(2013), the Supreme Court addressed issues relating to a newspaper's FOIA request for information relating to citizen complaints filed against West Virginia State Police officers. The court balanced the officers' individual right of privacy against the public’s right to know, citing the five-part test of Child Protection Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541 at 542 (1986).  The Smithers court held that "[c]onduct by a state police officer while the officer is on the job in his or her official capacity as a law enforcement officer and performing such duties, including but not limited to, patrolling, conducting arrests and searches, and investigating crimes does not fall within the West Virginia Freedom of Information Act invasion of privacy exemption set forth in West Virginia Code § 29B–1–4(a)(2) (2012). Id., Syl. Pt. 8.

The court in Smithers also interpreted West Virginia Code of State Rules, W. Va. Code R. § 81–10–6.2 that provides “[d]ocuments, evidence and other items related to complaints, internal investigations, internal inquiries and/or contained in case files shall not be released, disseminated or disclosed, except by the direction of the Superintendent or by order of a court with competent jurisdiction.”  "Clearly," said the court, "the information sought to be disclosed in the present case was intended by the legislative rule to be confidential."

In syllabus point 9 of Smithers, the court observed that “[o]nce a disputed regulation is legislatively approved, it has the force of a statute itself. Being an act of the West Virginia Legislature, it is entitled to more than mere deference; it is entitled to controlling weight. As authorized by legislation, a legislative rule should be ignored only if the agency has exceeded its constitutional or statutory authority or is arbitrary or capricious’”  (citing Syl. Pt. 2, W. Va. Health Care Cost Review Auth. v. Boone Mem’l Hosp., 196 W. Va. 326, 472 S.E.2d 411 (1996)). "The issue," said the court was "whether the rule and the FOIA can be reconciled; and if not, which governs the issue presented in this appeal." Charleston Gazette v. Smithers, 232 W. Va. 449, 468, 752 S.E.2d 603, 622 (2013).

The W. Va. Health Care Cost Review Court reconciled the seemingly inconsistent confidentiality provisions of the rule and the FOIA. It concluded that when the rule is invoked to block disclosure of information based on confidentiality, a court should perform an analysis under the FOIA and its case law, "giving due regard to the rule as one factor to be considered under syllabus point two of Cline. Smithers, 232 W. Va. at 468, 752 S.E.2d at 622. Importantly, however, the court rejected the police argument that the rule was dispositive of the issue. It emphasized that the FOIA "shall remain the proper analytical framework for issues of disclosure of public information." Id. The names of the complainants and any other identifying information was required to be redacted in accordance with the confidentiality requirements of W. Va. R. §§ 81–10–1 to –11 (2008).  Syl. Pt. 11, Smithers, 232 W. Va. at 456, 752 S.E.2d  at 609.

Ultimately, Smithers held that when (1) a FOIA request is made for information from the State Police regarding an officer who has received two or more either external or internal complaints of misconduct while on the job in his or her official capacity, or (2) where the officer has three or more "use of force incidents" during a three-month period and (3) is thus subject to review by the Internal Review Board in accordance with the provisions of the Early Identification System, (4) such information is subject to public disclosure only after a decision has been rendered by the Internal Review Board as to whether further action is required.  Syl. Pt. 12, Smithers, 232 W. Va. 449, 752 S.E.2d 603 (2013).

1. Examination data

The third FOIA exemption applies to:

Test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examination.

W. Va. Code § 29B-1-4(3). The West Virginia Supreme Court of Appeals has never interpreted this exemption; it appears to be self-explanatory.

1. Law enforcement records

A FOIA provision that has generated litigation, and is likely to continue to do so, is the law enforcement exemption (exemption 4). It provides:

Records of law-enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law-enforcement agencies which are maintained for internal use in matters relating to law enforcement.

W. Va. Code §  29B-1-4(4)(A). In the 2018 legislative session exemption 4 was amended to add the following to a new subsection 29B-1-4(4)(B):

Records identifying motor vehicles used, and the agencies using them, for undercover investigation activities conducted by state law-enforcement agencies or other agencies that are authorized by this code to use undercover or unmarked vehicles;

That amendment to exemption 4 seems superfluous as records that identify motor vehicles used for police undercover investigation activities was most certainly already covered by exemption 4. This amendment is an example of the legislative trend that has been accelerated in the last decade to conceal more and more information in government files from public scrutiny.

In 1993 The West Virginia Supreme Court of Appeals held that --- for the purpose of the state statute prohibiting the concealment or destruction of a public record --- a criminal history summary is a public record. State v. Nelson, 189 W. Va. 778, 787, 434 S.E.2d 697, 706 (1993). In a subsequent decision the court found police incident reports to be public records under FOIA because "the public has an interest in receiving information about criminal activity within the community." Ogden Newspapers v. City of Charleston, 192 W. Va. 648, 453 S.E.2d 631, 634 (1994).

Ogden held that the incident report requested by the newspaper "was prepared following an inquiry into a specific violation of the law, i.e., a fight between two juveniles involving a gun" and therefore was a law enforcement record within the meaning of Exemption 4. The fact that the report was a law enforcement record did not, however, automatically exclude it from disclosure under FOIA "if society's interest in seeing the document outweighs the government's interest in keeping the document confidential." Id. at 635-36. The court held there was a right of public access to the extent the disclosure of the information would not compromise an on-going law enforcement investigation.

The report in Ogden, involved the names of juveniles. the court held that the newspaper was entitled only to a redacted copy that omitted any information that could reasonably lead to the discovery of the juveniles' identities. The redacted information included the exact time and location of the incidents, the names of witnesses, and the identity of the complainant. Id. at 638.

Ogden relied on Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985), the first West Virginia case interpreting the law enforcement exemption. At issue in Hechler was a list of names and addresses of security guards furnished to the Secretary of State pursuant to his authority to license and regulate the guards' employer. The court observed that "[t]he primary purpose of the law enforcement exemption . . . is to prevent premature disclosure of investigatory materials which might be used in a law enforcement action" and concluded the FOIA did not "create a blanket law enforcement exemption." Hechler v. Casey, 333 S.E.2d at 812.

Hechler recognized two important limitations on the scope of the law enforcement exemption. The exemption does not apply to information generated pursuant to routine administration or oversight or to ordinary manuals or procedures unless they included confidential details of law enforcement programs. Id. at 802, Syl. Pts. 11, 12. In addition, Hechler suggested the law enforcement exemption applied to records of "law-enforcement agencies" defined as only those agencies enforcing criminal laws. It did not apply to proceedings of regulatory agencies actions to invoke civil sanctions, such as hearings to suspend or revoke a license, nor did it apply to the list of security guard names and addresses sought in that case. Id. at 813.

In Charleston Gazette v. Smithers, the public body failed to present evidence to the trial court supporting its denial of the newspapers FOIA request based on the law enforcement exemption. The Supreme Court emphasized that, "to the extent that there [are] ongoing criminal investigations regarding state police officers which [fall] within this particular statutory exemption, it [is] incumbent upon the State Police to raise this exemption, with specificity, before the circuit court." 232 W. Va. 449, 473, 752 S.E.2d 603, 627 (2013).

Prior to Hechler, the West Virginia Supreme Court briefly examined the law enforcement exemption in Sattler v. Holliday, 173 W. Va. 471, 318 S.E.2d 50 (1984), in which the owner of a tavern destroyed by arson sought "information in the prosecutor's files, including a police report related to the fire, and confessions by Deputies." The tavern owner sought information that might establish whether a former sheriff had participated in the arson. Id. at 51.  The court declined to decide whether the exemption required an analysis to determine if a balancing test was necessary because the petitioner had bypassed the review procedures provided by the FOIA and therefore had failed to develop a factual record necessary for judicial review.

Also, of note is a 1986 Attorney General's opinion that suggests public records may temporarily lose their open status if they are turned over to a prosecuting attorney for use in a criminal investigation. Although these records become exempt from disclosure during the course of the investigation, "should all the prosecuting authorities involved decide not to prosecute . . . the information would then revert back to its original status . . . and would no longer be exempt under the Act." Report of the Attorney General (W. Va. April 18, 1986, 112, 113-15).

1. Information exempted by other statutes

Exemption five of the West Virginia FOIA applies to "[i]nformation specifically exempted from disclosure by statute," W. Va. Code §  29B-1-4(5). It encompasses a variety of information kept confidential by statute, such as court records pertaining to divorce, W. Va. Code § 48-2-27, adoption, W. Va. Code § 48-4-10,  juvenile proceedings, W. Va. Code § 49-5-17; other juvenile records (W. Va. Code § 49-7-1); tax records (11-10-5d); and economic development assistance (W. Va. Code § 5B-2-1).

Although W. Va. Code § 29B-1-4(5) states that the information must be "specifically exempted from disclosure" by statute, and the state Supreme Court has held "the party claiming exemption . . . has the burden of showing the express applicability of such exemption to the material requested" records have been withheld based on statutory language that the records are "confidential" even where the other statute did not expressly refer to exemption 5 under the state FOIA. Syl. Pt. 2, Daily Gazette v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996) (Gazette I”).

For instance, the state Supreme Court has expansively interpreted the state Tax Code's confidentiality provisions, W. Va. Code § 11-10-5d, refusing to permit disclosure of tax-related information even though the Tax Code did not specifically prohibit such disclosure. The first such case, Daily Gazette v. Caryl, 181 W. Va. 42, 380 S.E.2d 209 (1989), involved a newspaper's request for information concerning the state Tax Department's compromise of its claim against the CSX Corporation shortly after the company's challenge to the validity of the tax had been rejected by a federal appeals court. Two justices issued a strong dissent, arguing that the relevant statutes did not require such settlement information to be confidential --- particularly where the challenged tax had been the subject of litigation. The majority, however, relied on its perception that, in general, the Legislature favored confidential treatment of tax information: "While we cannot state in all honesty that the statute is perfectly clear on the issue of confidentiality, we believe the intent was toward caution in disclosure." 380 S.E.2d at 213 n.11.

In a related case, State ex rel. Caryl v. MacQueen, 182 W. Va. 50, 385 S.E.2d 646 (1989), the court ruled the state Attorney General was prohibited from disclosing tax settlements information where he was required by law to review proposed tax settlements and to provide written recommendations concerning their advisability.

In Town of Burnsville v. Cline, 188 W. Va. 510, 425 S.E.2d 186 (1992), the court inexplicably imposed restrictions on the use of information it found to be subject to disclosure under the Freedom of Information Act. The Burnsville case originated with the town's attempt to collect business and occupation taxes allegedly owed by two local businesses. In response to the town's lawsuit, the businesses contended that the town's business and occupation tax ("B & O tax") was being selectively enforced against them, while other businesses were not prosecuted for similarly failing to pay their taxes.

The trial court ordered the town to give the defendants access to all the B & O tax returns filed with the town, since these records were necessary to prove their claim. The Supreme Court, however, rejected what it termed a compromise, holding that the tax returns themselves were confidential, due to a specific statutory provision, but that "it would not violate the confidentiality requirements of [the tax statute] to permit a review of the roll of B & O taxpayers, since every person or company involved in a business or occupation is assumed to pay B & O taxes, and the list would contain only the names of the taxpayers, not the actual contents of the tax returns." Burnsville, 188 W. Va. at 512, 425 S.E.2d at 188.

The court's finding that disclosure of a list of taxpayers "would not violate the confidentiality requirements" of the statute should have resulted in the unconditional disclosure of the list pursuant to FOIA's mandate. Syl. Pt. 2, Burnsville, 188 W. Va. 510, 514, 425 S.E.2d 186, 190 (1992). However, without further discussion, the court ruled that "[a]s an extra measure of protection, the list should be treated as any confidential material and not leave [the circuit judge's] chambers." This result is probably best explained by the court's particular sensitivity to the privacy issues involved in disclosure of tax information, which is discussed below. Id.

In Paige v. Canady, 197 W. Va. 154, 475 S.E.2d 154 (1996), the plaintiffs sought to use a FOIA request to obtain documents pertaining to the application of state tax laws from 1978. The Tax Commissioner acknowledged that W. Va. Code § 11-10-5s(b)(1) "created a mandatory duty to release [administrative decisions or summaries thereof] after omitting any identifying characteristics or facts about the taxpayer." Paige v. Canady, 197 W. Va. 154, 475 S.E.2d 154 (1996). However, the Tax Commissioner denied the FOIA request and the plaintiffs sought an injunction and a declaratory judgment that the requested information should be released.

In the process of the litigation they deposed a number of Tax Department employees, including the agency General Counsel. The Tax Commissioner refused to be deposed and asked the state Supreme Court to bar his deposition. The state Supreme Court did not allow the deposition of the Tax Commissioner unless, after further proceedings, findings of fact, and conclusions of law, the circuit court determined the deposition was necessary. However, the discovery allowed by the circuit court and the redacted documents which were disclosed, made an inroad into the near blanket exception to the Freedom of Information Act the state Supreme Court has accorded tax information:

After the filing of this petition, the Tax Commissioner began releasing the administrative decisions, which had been redacted or modified to preserve taxpayer confidentiality. Since the submission of this petition, petitioner has notified this Court, through various motions for leave to supplement the record, that respondents have received redacted copies of the administrative decisions that were issued between July 1, 1986 and June 30, 1995. The Commissioner also represented that some of the decisions issued and served after June 30, 1995, have been issued and the remaining decisions would be issued on a going forward basis.

Paige v. Canady, 197 W. Va. 154, 475 S.E.2d 154, 157 (1996).

In a recent decision, the West Virginia Supreme Court of Appeals ruled that “the investigative exemption” in the West Virginia Antitrust Act specifies that the Attorney General “shall not” make public the name or identity of a person whose acts or conduct he investigates or “the facts” disclosed in the investigation. W. Va. Code  § 47-18-7(d). That investigative exemption was held “mandatory” and thus exempting such names, identities, and/or facts from disclosure as “information specifically exempted from disclosure by statute” under FOIA’s exemption 5. W. Va. Code, 29B-1-4(a)(5). St. Mary's Medical Center, Inc. v. Steel of West Virginia, Inc., 240 W. Va. 238, 809 S.E.2d 708 (2018).

1. Historical materials

The sixth exemption, which has never been interpreted by the state Supreme Court, applies to:

Records, archives, documents or manuscripts describing the location of undeveloped historic, prehistoric, archaeological, paleontological and battlefield sites or constituting gifts to any public body upon which the donor has attached restrictions on usage or the handling of which could irreparably damage such record, archive, document or manuscript.

W. Va. Code § 29B-1-4(6).

Former West Virginia University law professor, Alfred Neely’s comment about the last part of exemption 5 has stood the test of time. He observed that barring access to materials that could be irreparably damaged by handling:

"offers some temptation for abuse. Whenever the public exercises its rights to inspect or copy a public record there may be some risk of damage . . . . the records, archives, documents and manuscripts exempted under § 29B-1-4(6) should be limited to only that small subclass of public records which have unique, intrinsic and irreplaceable value."

Alfred S. Neely, IV, Administrative Law in West Virginia, § 7.09, at 552, § 7.13 at 556-58 (Michie Co. ed., 1982).

1. Financial institutions

This exemption provides protection for banks and other financial institution records, barring disclosure of:

Information contained in or related to examination, operating or condition reports prepared by, or on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions, except those reports which are by law required to be published in newspapers.

W. Va. Code § 29B-1-4 (7). This FOIA exemption, which has never been interpreted by the state Supreme Court, essentially duplicates several more specific confidentiality provisions of the state banking code. For example, W. Va. Code §  31A-1-2 extends confidentiality protection to:

"banks, building and loan associations, industrial banks, industrial loan companies, small loan companies, credit unions and all other similar institutions, whether persons, firms or corporations which are by law under the jurisdiction and supervision of the commissioner of banking" in the definition of "financial institutions."

It should be emphasized that exemption 7 is not a "blanket exemption" that bars disclosure of any and all information relating to financial institutions. The narrowness of this exemption is evident if one carefully parses the statutory language. So, understood, the exemption clearly pertains only to information "contained in or related to examination, operating or condition reports prepared by, or on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions." (Emphasis supplied).

1. Internal memoranda

The eighth FOIA exemption applies to "[i]nternal memoranda or letters received or prepared by any public body." W. Va. Code § 29B-1-4(8). It may be the exemption most frequently claimed by public agencies. Courts sometimes refer to the exemption as the "deliberative process exemption."

In Daily Gazette Co. v. W. Va. Dev. Office, 198 W. Va. 563, 482 S.E.2d 180 (1996)(hereinafter “Daily Gazette I”), the seminal and still leading case on the exemption, the court held that § 29B–1–4(a)(8) "specifically exempts from disclosure only those written internal government communications consisting of advice, opinions and recommendations which reflect a public body’s deliberative, decision-making process; written advice, opinions and recommendations from one public body to another; and written advice, opinions and recommendations to a public body from outside consultants or experts obtained during the public body’s deliberative, decision-making process." Id. at Syl. Pt. 4.

Deliberative material “reflects the give-and-take of the consultative process,” by revealing the manner in which the agency evaluates possible alternative policies or outcomes. Id.  Also, the requested information must be pre-decisional; that is, it must have been “prepared in order to assist an agency decisionmaker in arriving at his decision.” Highland Mining Company v. West Virginia University School of Medicine, 235 W. Va. 370, 774 S.E.2d 36, 49 (2015).

In Daily Gazette I, the newspaper sought information from the state agency about a proposed pulp and paper mill. The office released some and withheld other documents on exemption 8 grounds. Daily Gazette Co. v. W. Va. Dev. Office, 198 W. Va. 563, 482 S.E.2d 180 (1996). Upon the Gazette's filing of a complaint, the circuit court appointed a special master to review the withheld documents in camera to determine whether they were exempt. See also, Charleston Gazette v. Smithers, 232 W. Va. at 472, 752 S.E.2d at 626 (2013) (trial court may appoint a master to review voluminous documents and make recommendations regarding disclosure). The trial court ordered the Development Office to prepare a Vaughn index containing a general description and the date of each withheld document including the names of the author and recipient, if any. Daily Gazette I, 198 W. Va. 563, 566, 482 S.E.2d 180, 183 (1996).

Upon review of the index and the affidavit submitted by the Development Office explaining the claimed exemptions, the special master recommended disclosure of some of the withheld documents in their entirety. Daily Gazette I, 198 W. Va. at 566, 482 S.E.2d at 183.  The trial court also ordered redaction of information deemed exempt pursuant to exemption 8 and the disclosure of the redacted documents.  The remaining documents fell under exemption 8 and were not disclosed to the plaintiff newspaper. Daily Gazette I, 198 W. Va. at 567, 482 S.E.2d at 184 (1996).

The newspaper appealed that portion of the circuit court's order exempting certain communications between the public body and officials of the pulp and paper mill. The court acknowledged the importance of encouraging the free exchange of ideas and information within government agencies during the processes of deliberation and policymaking. Daily Gazette I, 198 W. Va. at 572, 482 S.E.2d at 189 (1996). However, the court found two categories of information were not protected by exemption 8.  Materials that explain a decision after it was made --- or were factual in nature --- were held not to be exempt. Daily Gazette I. What was determinative, said the court, was whether the documents related to the agency's pre-decisional deliberative process. Daily Gazette I, 198 W. Va. at 573, 482 S.E.2d at 190.

In 1997, the West Virginia legislature added a paragraph to an otherwise innocuous economic development bill that essentially undercut the broad disclosure policy set forth in the opinion. W. Va. Code § 5B-2I-8 The amendment exempted all "documentary material, data or other writing" made or received by the West Virginia Development Office (or other public body) whose primary responsibility is economic development) for the purpose of "furnishing assistance to a new or existing business." The exemption language is very broad and could be claimed by other public bodies to conceal information simply by asserting that the requested information constitutes "assistance" to a business. On the other hand, such a claim may be inhibited by the liberal disclosure policy outlined by the court in Daily Gazette I regarding exemption 8, coupled with FOIA's presumption of disclosure and its mandate that exemptions be construed narrowly.

Eight years after Daily Gazette I was decided, the court in Farley v. Worley, 215 W. Va. 412, 599 S.E.2d 835 (2004), affirmed Daily Gazette I's requirement that a Vaughn index be produced if an agency is sued for withholding information under exemption 8. Worley also held that an index must also be provided if any of FOIA's other statutory exemptions are the claimed basis for withholding information. Id. The court specifically delineated the process a public body must use in complying with its duty to provide a Vaughn index in FOIA litigation. Subsequently, Charleston Gazette v. Smithers, provided even more specific guidance to public bodies drafting a Vaughn index for submission to trial courts:

The Vaughn index must provide a relatively detailed justification as to why each document is exempt, specifically identifying the reason(s) why an exemption under W. Va. Code 29B–1–4 is relevant and correlating the claimed exemption with the particular part of the withheld document to which the claimed exemption applies. The Vaughn index need not be so detailed that it compromises the privilege claimed. the public body must also submit an affidavit, indicating why disclosure of the documents would be harmful and why such documents should be exempt.

Charleston Gazette v. Smithers, 232 W. Va. 449, 471, 752 S.E.2d 603, 625 (2013). The importance of specificity in drafting the index was emphasized in Smithers. There, a public body submitted a Vaughn index that "failed to provide any detail, let alone 'a relatively detailed justification as to why each document is exempt' from disclosure under the FOIA exemptions relied upon by the State Police." Id.  The court rejected the agency's claim of exemption. Id. The court has also held that a public body must redact, or otherwise segregate, exempt information from documents.  Nonexempt material must be disclosed.  Id., Syl. Pt. 2.

In contrast, the Highland Mining court held not exempt from disclosure "written communications between a public body and private persons or entities where such communications do not consist of advice, opinions or recommendations to the public body from outside consultants or experts obtained during the public body’s deliberative, decision-making process.” Highland Mining Company v. West Virginia University School of Medicine, 235 W. Va. 383, 774 S.E.2d 36, 49. Moreover, along with other evidentiary privileges such as the attorney-client and attorney work product privileges, the court indicated that the public is not entitled to disclosure of documents that a private party could not discover in litigation with the agency. Id. at Syl. Pt. 3.

A public body claiming the exemption must present evidence that the information requested would be subject to this exemption. The Supreme Court has held that the bald assertion that “some of the requested records may be exempt from disclosure” under West Virginia Code § 29B–1–4(a)(8) "is woefully inadequate." Charleston Gazette v. Smithers, 232 W. Va. 449, 752 S.E.2d 603 (2013).

In Highland Mining Company v. West Virginia University School of Medicine, a FOIA requester sought an extremely broad variety of documents and other information related to a university faculty member's research he used as a basis for articles he published in scholarly journals. 235 W. Va. 370, 774 S.E.2d 36, 47 (2015).  The requester, Highland Mining Company, argued that publication of the articles did not involve policy-making or a deliberative process within the meaning of W. Va. Code § 29B-1-4(8).

The court held that to invoke the § 29B–1–4(a)(8) exemption, a public body must show "in the context in which the materials are prepared or considered, the documents are both pre-decisional and deliberative to its decision-making process," Highland Mining, Syl. Pt. 5, 744 S.E. 2d at 49. The court summarized its previous holdings relating to successful invocation of the internal memoranda exemption. The public body, the court instructed, "must show that in the context in which the materials are prepared or considered, the documents are both pre-decisional and deliberative to its decision-making process." Moreover, it described pre-decisional documents as those "prepared in order to assist a public body decisionmaker in arriving at his or her decision." "Deliberative material" was described as that which "reflects the give-and-take of the consultative process, by revealing the manner in which the public body evaluates possible alternatives relevant to the decisional process." Highland Mining, at Syl. Pt. 5.

The court described the "precise question presented" as an issue of first impression: "whether a state university may invoke the “internal memoranda” exemption with respect to documents related to its professor’s scientific/academic research." Id. at 48.

The Supreme Court agreed with Highland that while WVU is a public body, it is not a public body engaged in policy making. The Court also agreed that the professor’s research and publication of his scholarship did not involve formulation of policy. However, the Court "emphatically" rejected the argument that the university "may not invoke the 'internal memoranda' exemption because that exemption covers only documents reflecting agency policy making communications." Id. at 50.

Emphasizing that the definition of “public body” under the FOIA is "extensive," the court noted that "public body entities and their employees . . . engage in an immensely diverse range of endeavors related to government service." The court observed that "their internal deliberations will necessarily address a variety of matters related to their state and/or local governmental responsibilities." Id. at 50-51. The Court found the "key question in every case" to be  "whether the disclosure of documents would expose a public body’s decision-making process so as to discourage candid discussion and thereby undermine the public body’s ability to perform its functions." Id. at 51.

The relevant public body decision for purposes of applying the “deliberative process” exemption to these public records was not whether WVU adopted a position or policy regarding mountaintop coal removal’s health effects on state residents. Rather, when a FOIA requester seeks records surrounding or leading up to an agency publication, the relevant agency decision for purposes of applying the “deliberative process” exemption is the development and ultimate publication of the article. Id. at 52-53. “The exemption protects ‘recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer . . . ." Id. at 52.  Draft documents, said the court, "by their very nature, are typically pre-decisional and deliberative.” Id.

When a FOIA request seeks disclosure by a university of records surrounding or leading up to publication of scholarly material, "the relevant agency decision for purposes of applying the 'deliberative process' exemption is the development and ultimate publication of the article." To determine if a document generated in the course of a state university professor's research and preparation to publish a scholarly article is exempt, a court must determine whether it (1) was generated before the publication of the research article, and if so, (2) whether it reflects the scholar's "deliberative, decision-making or thought process employed to arrive at the article’s conclusions and ultimate publication." Id. at 51.

Among information that the deliberative process exemption protects are "recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.” The court commented that draft documents are typically pre-decisional and deliberative.” Id. at 51.

Any document that reveals a scholar’s analysis underlying a published article, is pre-decisional. All pre-publication documents relating to a published scientific research article are, by their very nature, pre-decisional. The Highland Mining court held that documents are deliberative if they  expose "the give-and-take of a professor's scientific research consultative process" that reveal how the researcher evaluated possible alternative outcomes. Id. at 52. Thus, exempted from disclosure were "drafts, data compilations and analyses, proposed edits, e-mails and other communications, and peer review comments and responses relate[d] to the planning, preparation and editing necessary to produce a final published article." Id. at 52-53.

The court emphasized that the exemption must be construed narrowly. "The key question" said the court "is whether the disclosure of documents would expose a public body’s decision-making process so as to discourage candid discussion and thereby undermine the public body’s ability to perform its functions." Id. at 51.

Ultimately, the Highland Mining court found that the "involuntary public disclosure of [a professor’s] research documents would expose the decision-making process in such a way as to hinder candid discussion of [university faculty] and undermine [the institution's] ability to perform its operations.” 235 W. Va. 370, 388, 774 S.E.2d 36, 54 (2015). The court held that the university had satisfied its burden of proving that certain documents generated during higher education academic research were exempt under the FOIA “internal memoranda” exemption. Id., But, as to other records, the court found the university had improperly claimed the “deliberative process” exemption for post-decisional and/or non-deliberative documents. Id. at 53.

1. Terrorism prevention records

The ninth FOIA exemption provides:

Records assembled, prepared or maintained to prevent, mitigate or respond to terrorist acts or the threat of terrorist acts, the public disclosure of which threaten the public safety or the public health.

W. Va. Code § 29B-1-4(9). This exemption has not been interpreted by a court.

1. Vulnerability assessments, plans, data, databases and inventories to respond to terrorist attacks and law enforcement communications codes and deployment plans.

The tenth FOIA exemption protects from disclosure:

Those portions of records containing specific or unique vulnerability assessments or specific or unique response plans, data, databases, and inventories of goods or materials collected or assembled to respond to terrorist acts; and communication codes or deployment plans of law enforcement or emergency response personnel.

1. Va. Code § 29B-1-4 (10). No court has construed this exemption.
2. Interagency intelligence information and investigation records relating to terrorist acts or threats.

The focus of the eleventh FOIA exemption is:

Specific intelligence information and specific investigative records dealing with terrorist acts or the threat of a terrorist act shared by and between federal and international law-enforcement agencies, state and local law enforcement and other agencies within the department of military affairs and public safety.

W. Va. Code § 29B-1-4(11). There is no case law examining this exemption.

1. Classified federal security records not subject to disclosure under federal law and national security briefings whose purpose is to state and local government with terrorism preparedness.

The twelfth FOIA exemption applies to:

National security records classified under federal executive order and not subject to public disclosure under federal law that are shared by federal agencies, and other records related to national security briefings to assist state and local government with domestic preparedness for acts of terrorism.

W. Va. Code § 29B-1-4(12). Exemption twelve has not been the subject of judicial interpretation.

1. Computing, telecommunications and network security records, passwords, security codes or programs relating to anti-terrorism planning.

The thirteenth exemption relates to:

Computing, telecommunications and network security records, passwords, security codes or programs used to respond to or plan against acts of terrorism which may be the subject of a terrorist act.

W. Va. Code § 29B-1-4 (13). There are no judicial opinions examining this exemption.

1. Security or disaster recovery plans, risk assessments, and tests.

Security or disaster recovery plans, risk assessments, tests, or the results of those tests fall within the fourteenth exemption. W. Va. Code § 29B-1-4(14). The court has not interpreted exemption fourteen.

1. Architectural or infrastructure designs, maps or other records that show the location or layout of the facilities where communications infrastructure is used in anti-terrorism plans and responses.

Architectural or infrastructure designs, maps or other records that show the location or layout of the facilities where computing, telecommunications or network infrastructure used to plan against or respond to terrorism are located or planned to be located are exempt from disclosure by the fifteenth FOIA exemption. W. Va. Code § 29B-1-4 (15).

1. Facility security system codes.

The sixteenth exemption applies to:

Codes for facility security systems; or codes for secure applications for such facilities referred to in subdivision (15), subsection (a) of this section.

W. Va. Code § 29B-1-4(16). The Court has not had occasion to interpret this exemption.

It should be noted that FOIA exemptions 9 through 16 (sub-sections (i) through (p), above, "should be construed to make subject to the provisions of this chapter any evidence of an immediate threat to public health or safety unrelated to a terrorist act or the threat thereof which comes to the attention of a public entity in the course of conducting a vulnerability assessment response or similar activity."

1. Engineering plans and descriptions of existing public utility plants and equipment

The seventeenth exemption protects from disclosure:

Specific engineering plans and descriptions of existing public utility plants and equipment.

W. Va. Code § 29B-1-4(17). No court has examined this exemption.

1. Customer proprietary network information of other telecommunications carriers, equipment manufacturers and individual customers

The eighteenth exemption covers:

Customer proprietary network information of other telecommunications carriers, equipment manufacturers and individual customers, consistent with 47 U. S. C. § 222.

W. Va. Code § 29B-1-4(18). Exemption eighteen has not been subject to judicial interpretation.

1. Records of the Division of Corrections and the Regional Jail Authority relating to design of corrections and jail facilities

The focus of the nineteenth exemption relates to:

the policy directives and operational procedures of personnel relating to the safe and secure management of inmates, that if released, could be utilized by an inmate to escape a corrections or jails facility, or to cause injury to another inmate or to facility personnel.

Exemption 19 has been interpreted in one case to prohibit the disclosure of a video recording of a jail extraction of an inmate by jail staff. West Virginia Regional Jail and Correctional Facility Authority v. Marcum, 239 W. Va. 109, 799 S.E.2d 540 (2017). The court held that the video was properly withheld from disclosure “because it display[ed] part of the design of a correctional facility and the operational procedures of personnel relating to the management of inmates, such that, if disclosed, could be used by an inmate to escape from a facility or to cause injury to another inmate, resident or to facility personnel.” W. Va. Code § 29B–1–4(a)(19) (2016) (Supp. 2016). The court emphasized, however, that “even though the videotape is exempt from disclosure under FOIA, this does not preclude its disclosure under the discovery rules in a civil lawsuit.” Syl. Pt. 2, Maclay v. Jones, 208 W. Va. 569, 542 S.E.2d 83 (2000).

A “vehement” dissent in Marcum persuasively argued trial courts should be free to balance the interests of disclosure with possible injury to the interests of jail safety in determining whether exemption 19 should apply:

Each videotape of a jail cell extraction of an inmate should be analyzed to determine whether the circumstances in a given situation support a legal conclusion that it falls within a FOIA exemption. The majority should not have adopted a blanket rule with respect to the applicability of this exemption to all such videotapes. Rather, the majority should have preserved the right of the lower courts to make these specific determinations on a case-by-case basis because other jail cell extraction videos may not contain such information.

Marcum, 799 S.E.2d at 549.  The dissenting Justice emphasized that the exemptions from the mandatory disclosure requirements of the FOIA are required to be “both narrowly drafted and narrowly construed”. “This” observed the dissent, “counterbalances the self-protective instincts of bureaucracy which, as in any organization, would prefer to operate under the relatively forgiving eye of only its own members rather than the more revealing “sunlight” of public scrutiny.” Id.

In future cases, the holding in Marcum might reasonably be distinguished because the FOIA requester could obtain the video recording through civil discovery in the case he was litigating against the public body. A reporter, for example, might assert that he/she has no option to obtain the video record through civil discovery, and therefore, the public’s right to know demands that the court apply a balancing test as well as consider limited disclosure under a protective order.

1. Information that would identify an applicant for or holder of a concealed weapon permit

The Legislature added a new exemption in 2016 relating to records of gun ownership.

W. Va. Code § 29B-1-4(a)(20) exempts Information related to applications for firearm permits, including applications themselves, supporting documents, permits, renewals, or any other information that would identify an applicant for or holder of a concealed weapon permit.

The twentieth exemption provides:

"Information related to applications . . . supporting documents, permits, renewals, or any other information that would identify an applicant for or holder of a concealed weapon permit."

W. Va. Code § 29B-1-4(a)(20). A proviso to the twentieth exemption indicates that "information in the aggregate that does not identify any permit holder other than by county or municipality is not exempted.” Moreover, information falling within this exemption must be disclosed to law enforcement officers or agencies seeking to determine the validity of a permit, to assist in a criminal investigation or prosecution, or for other lawful law-enforcement purposes.

 

1. Personal information of law-enforcement officers maintained by the public body.

The twenty-first exemption shields from disclosure:

“Personal information of law-enforcement officers maintained by the public body in the ordinary course of the employer-employee relationship.”

W. Va. Code § 29B-1-4(a)(21). “Personal information” is defined as “a law-enforcement officer's social security number, health information, home address, personal address, personal telephone numbers and personal email addresses and those of his or her spouse, parents and children as well as the names of the law-enforcement officer's spouse, parents and children.”

None of the eight exemptions added to the FOIA in 2003 in response to the September 11, 2001, terrorist attack on the United States have been the subject of judicial interpretation. One should be aware that the purpose of these exemptions (W. Va. Code § 29B-1-4 (9-16) ) is to protect the public from realistic terrorist threats and interpretations. Subsection (b) of W. Va. Code § 29B-1-4 provides that “[a]s used in subdivisions (9) through (16) the term “terrorist act” means “an act that is likely to result in serious bodily injury or damage to property or the environment” and is intended to:

(1) Intimidate or coerce the civilian population;

(2) Influence the policy of a branch or level of government by intimidation or coercion;

(3) Affect the conduct of a branch or level of government by intimidation or coercion; or

(4) Retaliate against a branch or level of government for a policy or conduct of the    government.

Subsection (c), of W. Va. Code § 29B-1-4 further provides that:

[n]othing in the provisions of subdivisions (9) through (16) . . . should be construed to make subject to the provisions of this chapter any evidence of an immediate threat to public health or safety unrelated to a terrorist act or the threat thereof which comes to the attention of a public entity in the course of conducting a vulnerability assessment response or similar activity.

The possibility exists that some state agencies may utilize one or more of these newly added exemptions in an effort to improperly conceal information that should be disclosed.

In keeping with the Wisconsin statute’s deference to common law principles, only a few exemptions are listed in the Open Records law itself.

19. Law enforcement records required to be closed by federal law. Wis. Stat. § 19.36(2).
20. Computer programs, but not the material used as input for the computer program or the material produced as its product, are exempt from inspection and copying. Wis. Stat. § 19.36(4); State ex rel. Milwaukee Police Ass’n v. Jones, 237 Wis. 2d 840, 852, 615 N.W.2d 190, 196 (Wis. Ct. App. 2000) (holding that police department must make digital audio tape of 911 call available for inspection and copying, and that provision of analog tape alone is not sufficient compliance with request).
21. Trade secrets, as defined under the Uniform Trade Secrets Act, are exempt from inspection. Wis. Stat. § 19.36(5).
22. Identity of applicants for public positions who request confidentiality, but not including those applicants who become “final candidates.” Wis. Stat. § 19.36(7).
23. Identity of law enforcement informants; Wis. Stat. § 19.36(8); Hempel v. City of Baraboo, 2005 WI 120, ¶¶ 69–78, 284 Wis. 2d 162, 699 N.W.2d 551, 568–70 (regardless of whether an informant requests confidentiality and regardless of whether a pledge of confidentiality is made, custodian must withhold information identifying a police informant unless the custodian determines that the public interest in disclosing the information outweighs the harm to the public interest in disclosing it).
24. Plans or specification of state buildings. Wis. Stat. § 19.36(9).
25. Certain employee personnel records, including personal information like home address, home telephone number or social security number, Wis. Stat. § 19.36(10)(a); information related to ongoing disciplinary investigations, Wis. Stat. § 19.36(10)(b); information related to civil service examinations, Wis. Stat. § 19.36(10)(c); and information used for staff management planning, including performance evaluations. Wis. Stat. § 19.36(10)(d). The “staff management planning” exemption does not apply to records of completed disciplinary investigations. Kroeplin v. Wisc. Dep’t of Nat. Res., 2006 WI App 227, ¶ 32, 297 Wis. 2d 254, 725 N.W.2d 297.
26. Financial identifying information, such as personally identifiable information like credit or debit card numbers, checking or draft account numbers, unless specifically required by law. Wis. Stat. § 19.36(13).

1. Discretionary Exemptions.

            Records that may be withheld if the harm from disclosure would outweigh the public’s right to know are:

(i)  Records of investigations conducted by, or of intelligence information or security procedures of, any sheriff, county attorney, city attorney, the attorney general, the state auditor, police department or any investigatory files compiled for any other law enforcement or prosecution purposes;

(ii)  Test questions, scoring keys and other examination data pertaining to administration of a licensing examination and examination for employment or academic examination. Written promotional examinations and the scores or results thereof shall be available for inspection, but not copying or reproduction, by the person in interest after the examination has been conducted and graded;

(iii)  The specific details of bona fide research projects being conducted by a state institution;

(iv)  Except as otherwise provided by Wyoming statutes or for the owner of the property, the contents of real estate appraisals made for the state or a political subdivision thereof, relative to the acquisition of property or any interest in property for public use, until such time as title of the property or property interest has passed to the state or political subdivision. The contents of the appraisal shall be available to the owner of the property or property interest at any time;

(v)  Interagency or intra-agency memoranda or letters which would not be available by law to a private party in litigation with the agency;

(vi)  To the extent that the inspection would jeopardize the security of any structure owned, leased or operated by the state or any of its political subdivisions, facilitate the planning of a terrorist attack or endanger the life or physical safety of an individual, including:

(A)  Vulnerability assessments, specific tactics, emergency procedures or security procedures contained in plans or procedures designed to prevent or respond to terrorist attacks or other security threats;

(B)  Building plans, blueprints, schematic drawings, diagrams, operational manuals or other records that reveal the building's or structure's internal layout, specific location, life and safety and support systems, structural elements, surveillance techniques, alarms, security systems or technologies, operational and transportation plans or protocols, personnel deployments for airports and other mass transit facilities, bridges, tunnels, emergency response facilities or structures, buildings where hazardous materials are stored, arenas, stadiums and waste and water systems;

(C)  Records of any other building or structure owned, leased or operated by the state or any of its political subdivisions that reveal the building's or structure's life and safety systems, surveillance techniques, alarm or security systems or technologies, operational and evacuation plans or protocols or personnel deployments; and

(D)  Records prepared to prevent or respond to terrorist attacks or other security threats identifying or describing the name, location, pharmaceutical cache, contents, capacity, equipment, physical features, or capabilities of individual medical facilities, storage facilities or laboratories established, maintained, or regulated by the state or any of its political subdivisions.

(vii)  An application for the position of president of an institution of higher education, letters of recommendation or references concerning the applicant and records or information relating to the process of searching for and selecting the president of an institution of higher education, if the records or information could be used to identify a candidate for the position.  As used in this paragraph "institution of higher education" means the University of Wyoming and any community college in this state.

1. Case law applicable to ‘discretionary’ exceptions to access.

The first exception has to do with the investigation records and files of law enforcement agencies, including prosecutors, as well as intelligence information and information relating to security procedures. Wyo. Stat. § 16-4-203(b)(i) (1977 & Cum. Supp. 1996). It was this exception that was at issue in Sheridan Newspapers Inc. v. City of Sheridan, 660 P.2d 785 (Wyo. 1983). The Sheridan Police Chief denied public access to "rolling logs," a chronological index of complaints and reports to the police dispatcher, "case reports" (reports of the activities of officers), "jail logs" or rosters, and traffic reports and citations. The police chief, contrary to the Public Records Act, gave no reason for closing these records, despite a request for an explanation from the newspaper. Id.

Citing its earlier decision in Laramie River Conservation Council, the Wyoming Supreme Court first declared that the objects of the Public Records Act are disclosure, an open and accountable government, and the prevention of secrecy. Id. The Public Records Act would therefore be construed in light of this policy, with an emphasis on accountability, "unless the custodian of such records can show a legal prohibition to disclosure." Id.

The Court held that the Sheridan Press had a constitutional right to the disputed materials, subject to the exceptions and limitations set forth in the Public Records Act. Id. It noted that the police chief's closure of entire categories of records was inappropriate, as the closure of records must be on a selective basis. Id. The requested materials should therefore have been examined and segregated by the police chief on a document-by-document basis. Id.

Based on these principles and the Public Records Act, the Court held that the Sheridan Press was entitled to all the requested records and noted that any particular records falling within an exception to the general rule of disclosure could be taken up on a case-by-case basis. Id.

Pursuant to the exception for inter- and intra-agency memoranda and letters that would not be available to a party in litigation with the agency. Wyo. Stat. § 16-4-203(b)(v), the Wyoming Supreme Court adopted the so-called “deliberative process privilege.” Aland v. Mead, 2104 WY 83.  The privilege allows non-disclosure of records providing the close, personal advice of an advisor to an executive decision-maker prior to the decision being made.  If the decision-maker accepts the advice, then the record must be released.   Earlier the Court had ruled that proposed budget cuts provided by state departments to the governor were not covered by the privilege, and, therefore declined to decide then whether the privilege existed in Wyoming. In 2010, the Wyoming Supreme Court ordered the release of budget reduction recommendations made to the governor by state department heads.  Freudenthal v. Cheyenne Newspapers 2010 WY 80.

In 2000, the Court in Allsop v. Cheyenne Newspapers, 2002 Wyo. 22, 39 P.3d 1092 (2002), found that a report compiled by a nationally known expert analyzing the jail after a rash of suicides and suicide attempts was not exempt from public disclosure, pursuant to the investigative records exception.  The Court rejected claims by the Sheriff that the report would provide a road map to suicide and escape at the jail. The District Court had ordered the report released except for one redaction which might compromise the safety of the jail. The Supreme Court reaffirmed that exempt material should be redacted from public records and non-exempt material released to the public. The Court further found that conclusory affidavits from custodians and their agents regarding potential harm to the public interest from disclosure were insufficient to support withdrawal of the records from public scrutiny. Custodians must present a factual basis to support their opinions that a harm to the public interest will occur.

In a 2011 case, the Court analyzed the so-called personnel records exemption. A school district declined to release the salaries earned by teachers.  The Supreme Court ruled that salaries must be released pursuant to a provision in personnel exemption that expressly states that documents containing the "terms and conditions" of employment, including employment contracts, are open to public inspection. Laramie County School Dist. No. 1 v. Cheyenne Newspapers, 2011 WY 55. The Court rejected the argument by the school district that a state statute requiring the publication of the legal notice of the salaries paid by district only required the publication of salary by category and not by individual expressed an intent by the Legislature that the salaries of individuals were confidential.

In Laramie River Conservation Council v. Dinger, 567 P.2d 731 (Wyo. 1977) the Laramie River Conservation Council (LRCC) sought access to a transcript of proceedings before the Industrial Siting Council, a state agency. The District Court denied LRCC's request, holding that the transcript was an intra-agency or interagency memorandum, and therefore specifically exempted from disclosure by the Public Records Act. Id. The Supreme Court reversed, reasoning that the hearing was public, and a transcript of a public hearing is a public record not exempted by the Public Records Act. Id. In short, the Wyoming Supreme Court refused to allow the Siting Council to engage in the subterfuge of calling the transcript a "memorandum," which would have allowed the Council to hide behind an inapplicable Public Records Act exception.

1. “Mandatory” exemptions.

The second category of records states that the custodian shall withhold the records from public inspection.  The records included are:

(i)  Medical, psychological and sociological data on individual persons, exclusive of coroners' verdicts and written dockets as provided in W.S. 7-4-105(a);

(ii)  Adoption records or welfare records on individual persons;

(iii)  Personnel files except those files shall be available to the duly elected and appointed officials who supervise the work of the person in interest. Applications, performance ratings and scholastic achievement data shall be available only to the person in interest and to the duly elected and appointed officials who supervise his work. Employment contracts, working agreements or other documents setting forth the terms and conditions of employment of public officials and employees are not considered part of a personnel file and shall be available for public inspection;

(iv)  Letters of reference;

(v)  Trade secrets, privileged information and confidential commercial, financial, geological or geophysical data furnished by or obtained from any person;

(vi)  Library, archives and museum material contributed by private persons, to the extent of any limitations placed thereon as conditions of the contributions;

(vii)  Hospital records relating to medical administration, medical staff, personnel, medical care and other medical information, whether on individual persons or groups, or whether of a general or specific classification;

(viii)  School district records containing information relating to the biography, family, physiology, religion, academic achievement and physical or mental ability of any student except to the person in interest or to the officials duly elected and appointed to supervise him;

(ix)  Library patron transaction and registration records except as required for administration of the library or except as requested by a custodial parent or guardian to inspect the records of his minor child;

(x)  Information obtained through a 911 emergency telephone system or through a verification system for motor vehicle insurance or bond as provided under W.S. 31-4-103(e) except to law enforcement personnel or public agencies for the purpose of conducting official business, to the person in interest, or pursuant to a court order;

(xi)  Records or information compiled solely for purposes of investigating violations of, and enforcing, internal personnel rules or personnel policies the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(xii)  Information regarding the design, elements and components, and location of state information technology security systems and physical security systems;

(xiii)  Records or information relating to individual diagnoses of contagious, infectious, communicable, toxic and genetic diseases maintained or collected by the Wyoming state veterinary laboratory as provided in W.S. 21-17-308(e);

(xiv)  Information concerning an agricultural operation, farming or conservation practice, or the land itself, if the information was provided by an agricultural producer or owner of agricultural land in order to participate in a program of the state or any agency, institution or political subdivision of the state.  The custodian shall also deny the right of inspection to geospatial information maintained about the agricultural land or operations. Provided, however, that if otherwise permitted by law, the inspection of the information described in this paragraph shall be allowed in accordance with the following:

(A)  The custodian may allow the right of inspection when responding to a disease or pest threat to agricultural operations, if the custodian determines that a threat to agricultural operations exists and the disclosure of information is necessary to assist in responding to the disease or pest threat as authorized by law;

(B)  The custodian shall allow the right of inspection of payment information under a program of the state or of any agency, institution or political subdivision of the state, including the names and addresses of recipients of payments;

(C)  The custodian shall allow the right of inspection if the information has been transformed into a statistical or aggregate form without naming:

(I)  Any individual owner, operator or producer; or

(II)  A specific data gathering site.

(D)  The custodian shall allow the right of inspection if the disclosure of information is pursuant to the consent of the agricultural producer or owner of the agricultural land;

(E)  As used in this paragraph:

(I)  "Agricultural operation" means the production and marketing of agricultural products or livestock;

(II)  "Agricultural producer" means any producer of livestock, crops or dairy products from an agricultural operation.

(xv)  Within any record held by an agency, any income tax return or any individual information derived by the agency from an income tax return, however information derived from these documents may be released if sufficiently aggregated or redacted so that the persons or entities involved cannot be identified individually;

(xvi)  Except as required in a contested case hearing, any individual records involved in any workers’ compensation claim, however information derived from these documents may be released if sufficiently aggregated or redacted so that the persons or entities involved cannot be identified individually;

(xvii)  Any records of the consensus revenue estimating group as defined in W.S. 9-2-1002, that discloses information considered by, or deliberations or tentative decisions of, the group;

(xviii)  Information obtained through a peace officer recording provided that:

(A)  The custodian shall allow the right of inspection to law enforcement personnel or public agencies for the purpose of conducting official business or pursuant to a court order;

(B)  The custodian may allow the right of inspection:

(I)  To the person in interest;

(II)  If the information involves an incident of deadly force or serious bodily injury as defined in W.S. 6-1-104(a)(x);

(III)  In response to a complaint against a law enforcement personnel and the custodian of the information determines inspection is not contrary to the public interest;

(IV)  In the interest of public safety.

(xix)  Any records of the investment funds committee, created by W.S. 9-4-720, that disclose information considered by the committee, committee deliberations or tentative decisions of the committee. [NOTE: This paragraph will be effective 7/1/2018.]

1. Case law applicable to ‘mandatory’ exemptions.

In Houghton v. Franscell, 870 P.2d 1050 (Wyo. 1994), the Supreme Court ruled that for records to fit within the categories, release must constitute an unwarranted invasion of the privacy. The Court defined an unwarranted invasion of privacy as: "Unwarranted publicity, unwarranted appropriation or exploitation of one's personality, or the publicizing of one's private affairs with which the public had no legitimate concern." Id. at 1055. In Houghton, the Gillette (Wyo.) News-Record requested access from the Campbell County Hospital District to any and all records concerning guarantees of income made to physicians locating in Gillette. Id. The hospital cited the hospital records exemption outlined at Wyoming Statute 16-4-203(d)(vii), which includes an exemption for hospital records regarding medical personnel and staff. The newspaper argued that the records were the property of the hospital district as opposed to the hospital itself, and that the exemption did not apply to the district. Id. The newspaper also alleged that the exemption only applied to medical information concerning specific patients. Id.

The Court relied on the holding of Sheridan Newspapers Inc., 660 P.2d 785, that the object of the Public Records Act is disclosure, not secrecy, and that the Act should be interpreted liberally in favor of disclosure. The Court held this is especially true regarding records relating to expenditures of public funds. Id at 1052. The Court noted that there is a constitutional right of access to public records. The Court held that the State may not exclude an entire class of records for public inspection absent a compelling state interest. Id at 1053. The Court stated that the language of the exception was plain and unambiguous and that the language exempting hospital records relating to medical staff and personnel did not include the contract requested by the newspaper. Id. In interpreting the statute, the Court indicated that any review of what an exemption means under the Wyoming Public Records Act must include a balancing of privacy interests against the public's right to know. Id.

After the Houghton case, the Court decided Wyoming Department of Transportation v. International Union of Operating Engineers Local Union 800, 908 P.2d 970 (Wyo. 1995). In that case, the Operating Engineers requested payroll information forms submitted to the Wyoming Department of Transportation by its contractors. Id. The forms were required to be submitted to the Wyoming Department of Transportation under the federal Davis-Bacon Act, which is the federal prevailing wage act. Id. On any state highway project using federal funds, the federal prevailing wage had to be used, and any contractors on the job had to present payroll information to the Department of Transportation. Id. The Department of Transportation agreed to submit the materials to the Operating Engineers but wanted to remove the names and addresses. Id. The Department of Transportation argued that including the names and addresses on the records would serve no purpose and would be an unwarranted invasion of privacy. Id. The Operating Engineers, on the other hand, alleged that the payroll records could determine whether or not the Department of Transportation and the contractors were complying with the prevailing wage. Id. The Operating Engineers also asserted that confirming information with individual workers was essential to that process. Id.

The Wyoming Supreme Court ruled in favor of the Operating Engineers, stating that the concerns regarding Operating Engineers reviewing the names and addresses of workers did not rise to the level of the public's right to have the information released. Id. The Court noted that the workers had already released their names and addresses to the contractor, who had released them to the state, who had in turn released them to the federal government. Id. The Court ruled that even if the Engineers contacted the workers at their homes, such contact would not be significantly disruptive of their privacy. Id. It is of interest that the Court was willing to consider the balance of interests even though it had already rejected any specific exemptions cited by the Wyoming Department of Transportation. One could argue that the Court is willing to use the balancing test for any issue that comes under the Wyoming Public Records Act. The Court may, however, have simply been indicating that the Court's analysis of the exceptions on their face was supported by the balancing test as used in Houghton.

Interestingly, the Court gave no deference to the Department of Transportation regulations on the subject, stating that the agency did not have "distinctive expertise to construe this special statute . . . thus, we will not accord any deference to its construction of the statute or its parallel regulations." Id at 973. Presumably, the Court will make such a statement when considering any agency regulations that infringe on the Public Records Act.

In a 2006, the issue was whether a recording made outside the scope of a university employee’s duties constituted a public record.  A state district court agreed with the University of Wyoming that surreptitious tape recording of a university committee meeting was not a public record under Wyoming Public Records Act, as the university had not created the document.  The Wyoming Supreme Court reversed, ruling that the tape was received by the university in the course of its public business, as it was used in an investigation of whether a former employee had engaged in misconduct. Sheaffer v. State ex. rel. University of Wyoming, 2006 WY 99, 139 P.3d 468. The Court further ruled that that provision in the Public Records Act that exempts from disclosure records and information that were compiled solely for purposes of investigating violations or enforcing internal personnel rules or policies, the disclosure of which would clearly constitute unwarranted invasion of privacy, did not apply to surreptitious tape recording, as it was not compiled “solely” or “exclusively” for purposes of university's internal investigation of manager since tape pre-existed investigation. W.S. 16-4-203(d)(xi).