F. Segregability requirements

The Alabama Public Records Law does not expressly provide for access to segregable portions of records that contain exempt material, but numerous statutes provide for partial exclusion, see, e.g., Ala. Code § 9-16-83(b)(16) (2001) (applications for surface coal mining and reclamation permits open except for information pertaining to the coal seam itself); Ala. R. Civ. P. 5.1 (redaction of personal identifiers in court filings).Executive Order 734 contemplates redaction of “legally protected information” from Executive Branch responses to Pulic Records requests. Id. at (2) & (4)(a). Redaction has also been permitted, sanctioned, or ordered in the following cases and attorney general opinions:

1. Arrest reports:Complainant names and witness names may be blocked out or otherwise precluded from access. Birmingham News Co. v. Deutcsh, CV 85-504-132 JDC (Cir. Ct. Jefferson Cnty., Ala., Equity Div., Aug. 19, 1986).
2. Complaint reports:Specific information, or entire reports, may be withheld if "the divulging of such information or complaint reports would actually interfere with the conduct of the efforts of respondents in enforcing the criminal law or would actually hamper law enforcement." Birmingham News Co. v. Watkins, CV No. 38389 at 4 (Cir. Ct. Jefferson Cnty., Ala., Oct. 30, 1974) (applying First Amendment newsgathering right, not Public Records Law); see also Washington Cnty. Publ'ns v. Wheat, No. CV-99-94 (Cir. Ct. Washington Cnty., Ala., May 1, 2000) (incident/offense reports are available for public inspection subject to the right of the sheriff to withhold or redact certain information on a case-by-case basis depending on the nature of the case, the status of the investigation, whether the victim would be subject to threats or intimidation, or when public disclosure would hinder the investigation of a case).
3. National Fire Incident Reporting System forms: Home addresses, telephone numbers and the material status of persons involved in an incident may be withheld from public inspection. Op. Att'y Gen. Ala. No. 2006-134, 2006 Ala. AG LEXIS 97 (Aug. 17, 2006).
4. Personnel records:Psychological profiles in inmate personnel file, 200 Op. Att'y Gen. Ala. 25 (Aug. 20, 1985); employees' home addresses, 212 Op. Att'y Gen. Ala. 26 (Aug. 1, 1988); confidential material in a resume the release of which would cause undue harm or embarrassment, 222 Op. Att'y Gen. Ala. 48 (Mar. 20, 1991); addresses or telephone numbers received under a promise of confidentiality, 227 Op. Att'y Gen. Ala. 42 (June 3, 1992); marital status, medical history, confidential recommendations of employment, and drug or alcohol testing, Op. Att'y Gen. Ala. No. 96-00003, 1995 Ala. AG LEXIS 59 (Oct. 4, 1995).
5. Prison Incident Reports: The Department of Corrections was permitted to redact information that would subject a person to a specific threat or harm or if the release of the information would jeopardize a pending criminal investigation or violate any state or federal law.  Allen v. Barksdale, 32 So. 3d 1264 (Ala. 2009).
6. State license tag records:Information regarding state license tags for undercover vehicles to be blocked out. Birmingham News Co. v. Hobbie, 12 Media L. Rep. (BNA) 1687, 1688 (Cir. Ct. Montgomery Cnty., Ala., Dec. 20, 1985).
7. Transcript of pretrial proceedings:Materials involving ongoing grand jury proceedings are to be kept under seal, by redaction of references to these materials from the transcript of pretrial proceedings. Ex parte Birmingham News Co., 624 So. 2d 1117, 1127-29 (Ala. Crim. App. 1993) (applying common law and First Amendment right of access to criminal court records).

Alabama courts have also refused to order redacted disclosure in at least two cases.  Birmingham News Co. v. Muse [Muse II, 2d appeal], 669 So. 2d 138, 139 (Ala. 1995) (redaction and disclosure of Auburn University's response to NCAA letter of inquiry denied because "[i]f the promises [of confidentiality] are to be honored, it would be difficult, if not impossible, to edit out th[e] material [received under promise of confidentiality] and release a response that made sense") (quoting and adopting trial court's findings).

Ark. Code Ann. § 25-19-105(f) contains a segregability provision that states, “any reasonably segregable portion of a record shall be provided after deletion of the exempt information.”

The CPRA provides that “[a]ny reasonable segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempt by law.”  Cal. Gov’t Code § 7922.525(b).

There is no statutory segregability requirement; however, the Attorney General has instructed agencies to segregate exempt materials and disclose requested non-exempt materials in opinions. See Del. Op. Att’y Gen., No. 05-IB02 (Jan. 12, 2005); Del. Op. Att’y Gen., No. 77-029 (Sept. 27, 1977).

If parts of a requested public record may be withheld from disclosure pursuant to D.C. Code Ann. § 2-534(a), any portion of that record which is reasonably segregable from the withheld material must still be provided to the requester. D.C. Code Ann. § 2-534(b).

It is possible that certain records cannot be sufficiently redacted to obscure the identity of the subjects of the records—these will be deemed not “reasonably segregable” and the entire record will be withheld from disclosure. See, e.g., Riley v. Fenty, 7 A.3d 1014, 1020 (D.C. 2010); Hines v. D.C. Bd. of Parole, 567 A.2d 909, 911 (D.C. 1989).

Florida’s open records law contains a segregability provision that states: “A person who has custody of a public record who asserts that an exemption applies to a part of such record shall redact that portion of the record to which an exemption has been asserted and validly applies, and such person shall produce the remainder of such record for inspection and copying.” Fla. Stat. § 119.07(1)(d) (2020).

The Act’s exemptions must be interpreted narrowly so as to exclude from disclosure only that portion of a public record to which an exclusion is directly applicable. O.C.G.A. § 50-18-72(b). See, e.g., Blau v. Georgia Department of Corrections, 364 Ga. App. 1, 873 S.E.2d 464 (2022) (construing Georgia’s so-called Secrecy Act “as creating a blanket exemption from disclosure [of records containing certain protected information about the execution of death sentences] rather than allowing for redaction is inconsistent with the rule that statutory exceptions to the Open Records Act are to be construed narrowly”). The Act expressly provides that “[i]t shall be the duty of the agency having custody of a record to provide all other portions of a record for public inspection or copying.” Id. An agency may, in its discretion, provide copies of a record in lieu of providing access to the record when portions of the record contain confidential information that must be redacted. O.C.G.A. § 50-18-71(b)(1)(B).

No reported cases.

“If a public record contains material which is not subject to disclosure pursuant to this act, the public agency shall separate or delete such material and make available to the requester that material in the public record which is subject to disclosure pursuant to this act. If a public record is not subject to disclosure because it pertains to an identifiable individual, the public agency shall delete the identifying portions of the record and make available to the requester any remaining portions which are subject to disclosure pursuant to this act, unless the request is for a record pertaining to a specific individual or to such a limited group of individuals that the individuals' identities are reasonably ascertainable, the public agency shall not be required to disclose those portions of the record which pertain to such individual or individuals.”

K.S.A. 45-221(d).

Under Maine law, government agencies must disclose segregable portions of otherwise confidential records. See, e.g., Guy Gannett Pub. Co. v. Univ. of Me.,
555 A.2d 470, 470 (Me. 1989) (ordering disclosure of settlement agreement except for “one sentence” pertaining to the public employee’s medical information, which is designated confidential by statute).   Any confidential portions of an otherwise record may be redacted. According to the Maine AG’s FOAA website (https://www.maine.gov/foaa/faq/index.shtml): “If the record you requested contains any confidential or excepted information, the custodian will decide if the confidential or excepted information can be adequately redacted or blacked out so that public access can be provided or if public access to the document should be denied.”

When exempt information is entwined with nonexempt information, the nonexempt portions must be disclosed after the exempt portions are deleted. The exemptions are read strictly and narrowly. Att’y Gen. v. Assistant Comm’r of the Real Prop. Dep’t of Boston, 380 Mass. 623, 625 (1980).

The FOIA expressly provides for the availability of segregable portions of records containing exempt material: "If a public record contains material which is not exempt under section 13, [Mich. Comp. Laws Ann. § 15.243], as well as material which is exempt from disclosure under section 13, the public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying." Mich. Comp. Laws Ann. § 15.244(l). The Michigan Supreme Court has strictly enforced this provision, forbidding public bodies from withholding documents without separating exempt from nonexempt material. Evening News Ass'n v. City of Troy, 417 Mich. 481, 339 N.W.2d 421, 436 (1983). Moreover, the FOIA orders public bodies to facilitate the separation of exempt from nonexempt information "to the extent practicable" when designing public records; if the separation will be "readily apparent to a person requesting to inspect or receive copies of a form, public bodies are required to "generally describe the material exempted unless that description would reveal the contents of the exempt information and thus, defeat the purpose of the exemption." Mich. Comp. Laws Ann. § 15.244(2). The public body may not charge a fee for the cost of separating exempt from non-exempt information, unless failure to do so would result in unreasonably high costs. 2001 Att'y Gen. Op. No. 7083 (2001); see also Ritzer v. St. Lockport-Fabius-Park Twp. Fire Dep’t, No. 253262, 2005 fWL 292236 (Feb 8. 2005) (public body may have to create a new disc in order to separate nonexempt material from exempt material).

N.J.S.A. 47:1A-5(g) provides, in part:

If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor. The custodian shall sign and date the form and provide the requestor with a copy thereof. If the custodian of a government record asserts that part of a particular record is exempt from public access pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, the custodian shall delete or excise from a copy of the record that portion which the custodian asserts is exempt from access and shall promptly permit access to the remainder of the record. If the government record requested is temporarily unavailable because it is in use or in storage, the custodian shall so advise the requestor and shall make arrangements to promptly make available a copy of the record. If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.

There are no segregability requirements.

Under the Oklahoma Open Records Act, “[a]ny reasonably segregable portion of a record containing exempt material shall be provided after deletion of the exempt portions . . . .” 51 O.S. § 24A.5(3).

Oregon’s public records law contains a segregability provision that states: “If any public record contains material which is not exempt . . . as well as material which is exempt from disclosure, the public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination.” Or. Rev. Stat. § 192.338.

Where a document contains information that is subject to access as well as information that is not subject to access, but able to be redacted, the agency must provide access to the document while redacting or omitting the information not subject to access.  65 Pa. Stat. Ann. § 67.706; see also Times Publ’g Co., Inc. v. Michel, 633 A.2d 1233, 1239 (Pa. Commw. Ct. 1993), pet. denied, 645 A.2d 1321 (Pa. 1994) (explaining under the old Act that information in a document that is not protected from disclosure is still accessible even if the same document also contains protected information).

A governmental body cannot completely withhold public records that contain some exempt information. In Industrial Foundation, for example, the Texas Supreme Court held that only the specific information found to be private and confidential could be withheld. Indus. Found.., 540 S.W.2d  at 686 (Tex. 1976) (“If the nature of a particular claim is held to be confidential, only that information need be withheld from disclosure. As we have already stated, there is nothing intimate or embarrassing about the fact, in and of itself, that an individual has filed a claim for benefits. The claimant's name may therefore normally be disclosed, as may other information in the claimant's file which does not itself reveal private facts, even though information concerning the nature of his injury is withheld.”).​

The Public Records Act provides that “[a] public agency shall not withhold any record in its entirety on the basis that it contains some exempt content if the record is otherwise subject to disclosure; instead, the public agency shall redact the information it considers to be exempt and produce the record accompanied by an explanation of the basis for denial of the redacted information.”  1 V.S.A. § 318(e).  Accordingly, an agency may be required to redact non-public information from documents in order to prepare them for production even “complying with the request is difficult or time consuming.”  Herald Ass’n v. Dean, 174 Vt. 350, 359, 816 A.2d 469, 477 (Vt. 2002).

Portions of records that are segregable from exempt material are available. The Act states that no record may be withheld in its entirety on the ground that some portion of the record is excluded from disclosure under the Act or exempted under any other provision of law. All portions of a record not subject to withholding under the law must be produced. Va. Code Ann. § 2.2-3704.01. This provision was enacted in 2016 to correct the Supreme Court of Virginia’s decision in Department of Corrections v. Surovell, 290 Va. 255, 776 S.E.2d 579 (2015), which, contrary to the Act’s plain language, indicated that certain records could be withheld entirely because redaction was not required.

Custodians are required to segregate producible portions of records from portions that are exempt from disclosure. Wis. Stat. § 19.36(6). This statute mandates redaction whenever possible and “does not give a custodian . . . the option of separating the information or simply denying the open records request.” Osborn v. Bd. of Regents, 2002 WI 83, ¶ 45, 254 Wis. 2d 266, 302, 647 N.W.2d 158, 175 (university is not relieved of its duty to redact under section 19.36(6) simply because it is burdensome to do so).