Alaska Public Records Act – Do You Mind If I Get A Copy of Your Notes?

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Clinton Campion & John Sedor of Sedor, Wendlandt, Evans & Filippi, LLC

Part 9 of the series Back to Basics

This is our ninth installment of our “Back to the Basics” commentaries. This commentary highlights the Alaska’s Public Records Act (APRA), AS 40.25, with regard to school districts across the state.

Every school district has received a request for release of its records. Most, if not all, school districts have policies that provide guidance on responding to these requests. Access to school district’s records is governed by state law, the APRA.

Every year we receive more than a few calls saying that a District has a question as to whether a document is subject to FOIA. In virtually every case the question is really about the State law – the APRA. It is important to note that the APRA is not the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552. FOIA is the law that governs the release of documents and information controlled by the U.S. Government. FOIA does not generally apply to public records requests received by school districts.

            The APRA was signed into law in 1962. It provides that “every person has a right to inspect a public record in the state.” AS 40.25.120(a). The Alaska Supreme Court has explained that “there is strong commitment in Alaska to ensuring broad public access to government records.” Fuller v. City of Homer (2003). This strong commitment to public access must be balanced with the impact that records requests can have on the purpose and mission of the public entity – including school districts.

Basics of the Alaska Public Records Act

The APRA applies to all “public agencies,” including political subdivisions such as school districts. AS 40.25.220(2).

The APRA applies to “public records.” “Public records” is defined broadly to include: books, papers, files, accounts, writings, including drafts and memorializations of conversations, and other items, regardless of format or physical characteristics, that are developed or received by a public agency, or by a private contractor for a public agency, and that are preserved for their informational value or as evidence of the organization or operation of the public agency.”  AS 40.25.220(3).

Note the phrase in bold text above. The existence of a record does not mean it is a “public record” subject to disclosure. The mere existence of a paper, book, notes, etc. in a district does not, by itself, make it a public record. To be a public record, the record must not only exist but must be preserved by the District for specific reasons: its informational value or evidence of the operation of the District. In other words, the record must be intentionally preserved for a specific organizational purpose.

This nuance was most recently hashed out by our Alaska Supreme Court in a case involving former Governor Sarah Palin. The case involved electronic communications (e.g. texts and emails) from personal devices (e.g. cell phones) regarding State business. Then Governor Palin and approximately 23 other Governor’s Office employees acknowledged that they had used personal devices for some State business. A public records request was made for the electronic communications from these personal electronic devices.

In discussing what a record is, the Court reflected on some legislative history: “In a colloquy with Senator Al Adams concerning the scope of the proposed changes, Representative Kay Brown, the 1990 amendment’s sponsor, indicated that ‘you can’t save every scrap of paper. At some point, [judgment] is exercised as to what is proper and needs to be preserved.’ Allowing agency employees to choose not to preserve a document is not absurd because, as the State notes, ‘each state agency has the best understanding of the preservation value of its own documents.’” In other words, the District itself is the first determiner of whether a document or record is a “public record.”

The Court concluded that “State agency records preserved or appropriate for preservation under the Records Management Act are public records subject to review under the Public Records Act. But not every record a state employee creates, and certainly not every state employee email, is necessarily appropriate for preservation under the Records Management Act.” By way of example, if you create a draft agenda for the next meeting and then later change it after discussions with your superintendent, the draft (even if it included something controversial) is not likely a record. This is so even if it is sitting on your desk for a year.

Another area of potential confusion is when a district is asked to create a record – for instance a spread sheet listing all vendors over the last 5 years. While a district could create such a document, the receipt of a public records request does not require it to be created. In other words, a request for public records only applies to existing records. In other words, a school district is not required to create records, conduct research, or analyze records in response to a public record request. 2 AAC 96.210. For instance, a request for a current year scattergram should be denied if one has not been created.

The APRA also provides guidance on the cost associated with a records request. Responding to a records request can, surprisingly, be very time consuming (meaning expensive) especially if records have to be reviewed to ensure that, e.g., FERPA information or other confidential information is not disclosed. The APRA properly recognizes that the primary purpose of district resources is not to respond to records requests. Thus, “if the production of records for one requester in a calendar month exceeds five person-hours, the public agency shall require the requester to pay the personnel costs required during the month to complete the search and copying tasks.” AS 40.25.110(c). Similarly, if the request if for electronic services or records, the statute provides for a “fee … based on recovery of the actual incremental costs of providing the electronic services and products, and a reasonable portion of the costs associated with building and maintaining the information system of the public agency.” AS 40.25.115(b).

If a school district denies a public records request, a requestor may appeal the denial to the superior court. AS 40.25.124.

Exceptions to Public Records Disclosure

The APRA provides several exceptions to disclosure of public records. Those exceptions include the following which may apply to public records requests submitted to school districts:

  • Records pertaining to juveniles.
  • Medical and public health records.
  • Proprietary software programs.
  • Records required to be kept confidential by federal or state law.

School districts are not required to and are obliged not to disclose certain requested records. For example, school districts maintain student records which are protected by the Family Educational and Privacy Rights Act of 1974 (FERPA). School districts also maintain personnel records for their employees which are confidential under state law and local laws.

APRA-related School District Policies

Most school districts have adopted a board policy and an administrative regulation governing access to district records. The policy notes that access to district records is governed by state law. The administrative regulation notes which district records are not subject to disclosure and the process for requesting records.

Conclusion

As noted above, during a legislative debate, then-Representative Kay Brown said “you can’t save every scrap of paper.” This is undoubtedly true (though nowadays the vast bulk of the “scraps of paper” are electronic and easily savable). The more difficult exercise is determining whether the proverbial “scrap of paper” is a public record subject to disclosure. Your district’s policy should be a guide for making that determination.

Practice Pointers:

We offer the following “practice pointers” to connect our commentaries with practical suggestions for school board members and administrators:

  • When is the last time your district reviewed its access to district records policy and administrative regulation?
  • Is your district’s access to district records policy have board policies and administrative regulations which ensure the confidentiality of student educational records?
  • Does your district have a process in place to ensure requests for public records are responded to in a timely manner balanced with fee structures that underscore the primary mission of the district?

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