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Record for a UF thesis. Title & abstract won't display until thesis is accessible after 2010-05-31.

Permanent Link: http://ufdc.ufl.edu/UFE0022174/00001

Material Information

Title: Record for a UF thesis. Title & abstract won't display until thesis is accessible after 2010-05-31.
Physical Description: Book
Language: english
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2008

Subjects

Subjects / Keywords: Journalism and Communications -- Dissertations, Academic -- UF
Genre: Mass Communication thesis, M.A.M.C.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Thesis: Thesis (M.A.M.C.)--University of Florida, 2008.
Local: Adviser: Chamberlin, William F.
Electronic Access: INACCESSIBLE UNTIL 2010-05-31

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2008
System ID: UFE0022174:00001

Permanent Link: http://ufdc.ufl.edu/UFE0022174/00001

Material Information

Title: Record for a UF thesis. Title & abstract won't display until thesis is accessible after 2010-05-31.
Physical Description: Book
Language: english
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2008

Subjects

Subjects / Keywords: Journalism and Communications -- Dissertations, Academic -- UF
Genre: Mass Communication thesis, M.A.M.C.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Thesis: Thesis (M.A.M.C.)--University of Florida, 2008.
Local: Adviser: Chamberlin, William F.
Electronic Access: INACCESSIBLE UNTIL 2010-05-31

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2008
System ID: UFE0022174:00001


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ARE STATES GETTING ENOUGH SUNSHI NE? AN EXAMINATIO N OF ELECTRONIC PUBLIC RECORDS ACCESS LAWS By CHRISTA GRAMMAS CARTER A THESIS PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLOR IDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS IN MASS COMMUNICATION UNIVERSITY OF FLORIDA 2008 1

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2008 Christa Grammas Carter 2

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To life, to lifeLe Chaim. 3

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ACKNOWLEDGMENTS I thank the chair, Dr. Bill Chamberlin, and the members of my committee, Prof. Johanna Cleary and Prof. Lyrissa Lidsky, for taking time out of their demanding schedules to work with me. Their guidance and assistance are both truly appreciated. I thank Diviney for being somewhat nice, my parents for their unending patience, and my children for trying mine. 4

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5 TABLE OF CONTENTS page ACKNOWLEDGMENTS...............................................................................................................4 LIST OF TABLES................................................................................................................. ..........7 LIST OF FIGURES.........................................................................................................................8 ABSTRACT.....................................................................................................................................9 CHAPTER: 1 INTRODUCTION................................................................................................................. .10 Introduction................................................................................................................... ..........10 Purpose of the Study........................................................................................................... ....11 2 THEORETICAL FRAMEWORK..........................................................................................13 3 LITERATURE REVIEW.......................................................................................................22 4 CRITERIA FOR EVALUTION.............................................................................................28 Organization and Research Questions....................................................................................28 Controlling Law and Compliance...........................................................................................30 Method....................................................................................................................................30 5 ELECTRONIC RECORDS AS PUBLIC RECORDS...........................................................32 6 ELECTRONIC MAIL (E-MAIL) RECORDS AS PUBLIC RECORDS..............................43 7 ALTERNATE DELIVERY FORMAT REQUIREMENTS FOR ELECTRONIC RECORDS..............................................................................................................................56 8 REDACTION REQUIREMENTS FOR ELECTRONIC RECORDS...................................65 9 INDEXING REQUIREMENTS FOR ELECTRONIC RECORDS.......................................77 10 CONCLUSION.................................................................................................................. .....83 Summary.................................................................................................................................83 Comparison of Findings: 2000 to 2008..................................................................................85 Inclusion of Electronic Records in the Defi nition of Public Records, a Comparison.....86 Alternate Delivery Format Requirements in Electronic Public Records, a Comparison..................................................................................................................87 Redaction Requirements in Electronic Public Records, a Comparison..........................88 Indexing Requirements in Electronic Public Records, a Comparison............................89

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Analysis of Comparative Findings.........................................................................................90 Suggestions for Research....................................................................................................... .93 Recommendations For Access Improvement.........................................................................97 APPENDIX STATUTORY CITATIONS.................................................................................107 LIST OF REFERENCES.............................................................................................................109 Articles..................................................................................................................................109 Books....................................................................................................................................110 Court Cases...........................................................................................................................110 Government Codes, Regulations, Reports Statutes, Constitutional Sources.......................114 State Materials......................................................................................................................115 BIOGRAPHICAL SKETCH.......................................................................................................119 6

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LIST OF TABLES Table page 5-1 Electronic records as public records, table of findings...........................................................40 6-1 Electronic mail (E-mail) as public records, table of findings.................................................53 7-1 Alternate delivery format requirements for electronic records, table of findings..................62 8-1 Redaction requirements for elec tronic records, table of findings...........................................74 9-1 Indexing requirements for electr onic records, table of findings.............................................80 7

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LIST OF FIGURES Figure page 5-1 Electronic Documents as Public Records, Graphic................................................................42 6-1 Electronic Mail (E-Mail) Docume nts as Public Records, Graphic........................................55 7-1 Alternate Delivery Format Requirements for Electronic Records, Graphic..........................64 8-1 Redaction Requirements for Electronic Records, Graphic.....................................................76 9-1 Indexing Requirements for Electronic Records, Graphic.......................................................82 10-1 Comparative Findings.........................................................................................................105 8

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Abstract of Thesis Presen ted to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Master of Arts in Mass Communications ARE STATES GETTING ENOUGH SUNSHI NE? AN EXAMINATIO N OF ELECTRONIC PUBLIC RECORDS ACCESS LAWS By Christa Grammas Carter May 2008 Chair: Bill Chamberlin Major: Mass Communications Governments at the local, stat e and federal levels are using electronic-stora ge technology for their document and record management. Benef its of this technology include the ability to 1) expeditiously search and retrieve documents and 2) remotely access, deliver, and transfer documents. While these benefits help government act more efficiently, they have not yet been used to make public records more accessible to th e public. Ironically, some states public records laws are so difficult to interpret and apply that they complicate the very process that seeks to open up the public records system with electronic access. My study examined the state laws that regula te access to electroni c public records. The results were compared with those of a sim ilar study published in 2000. The contrast and comparison between the current state of the law and that of eight years ago provides a nationwide evaluation of changes in the level of acce ss that the public has to electronic records. 9

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10 CHAPTER 1 INTRODUCTION Introduction The Supreme Court has said th at knowledge of government ac tions, reports, public records and information kept by those who govern is crucia l in order for citizens to form knowledgeable opinions and make rational decisions.1 The popular press has encouraged this concept, reiterating that an individual s understanding of important issues may not be complete without public records access.2 The press has a discernabl e stake in this debate. While access to government records is important to the press, it is also important to the public. Each day people base decisions on what they can learn about their elected officials, government spending, property values, the environment, or even the sexual offender database online.3 Citizens who understand the importance of access to information in a democracy seek, and expect access to the government and the information generated, stored, and used by it. The framers of the Constitution, however, did not ex plicitly recognize a Firs t Amendment right of access to government in the Constitution and al so did not indicate a compelling need for the public to know the inner workings of government bodies.4 1 See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492 (1975). 2 Access Enables Informed Decisions; With no public records, public consciousness on important issues would have huge gaps THE FLORIDA TIMES UNION, March 13, 2005, at F-1. 3 Id 4 DANIEL N. HOFFMAN, GOVERNMENTAL SECRECY AND THE FOUNDING FATHERS 14-27 (Greenwood Press 1981) (This is not to say our founding fathers did not consider knowledge necessary to a strong democracy. James Madison said once of public school education: A popular Government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both. Knowledge will forever govern ignorance. And a people who mean to be their own Governors, must arm them selves with the power which knowledge gives.) Paul H. Gates, Jr. and Bill F. Chamberlin, Madison Misinterpreted: Historical Presentism Skews Scholarship AM. JOURNALISM 13 (1):38-47 (Winter 1996) (According to Paul Gates and Bill Chamberlin, to precisely what

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Absent a constitutional requirement specifying access, Congress, the 50 states and the District of Columbia each have laws offering varying degrees of access to government records. As electronic recordkeeping has become mo re commonplace nationwide and governments use computers to store and organize records, some state access laws have been amended to include provisions for the governmental use of digital and electr onic record keeping, but others have not. This researcher proposes that electronic publ ic records can, and should, be more accessible than paper records. Yet today, an indivi dual residing in Maine may more easily access Californias public records than public record s in the neighboring st ate of New Hampshire5 as a result of differences in controlling p ublic records access laws among the states. Purpose of the Study This research will provide an overview of state legislation and case law relating to access to electronic public records. The findings will up date some of the efforts of researchers whose works have preceded this. This research will an swer the question: What is the controlling state law for electronic public records access and has that law changed significantly in the last eight to ten years? This time frame was selected because it measures back to the last analogous research done in this area by Dr. Bill Chamberlin and Michele Bush in 2000.6 This paper will address the unique characteristics of electronic public records, and consider how application of paper records laws to electronic public records doesnt solve all the potential information Madison referred has been subject to varying in terpretations, including misrepresentative assertions that Madison was referring to government held or produced information). 5 C. THOMAS DIENES, ET AL., NEWSGATHERING AND THE LAW, 2.04 (Lexis Nexis, 2005) Although many jurisdictions allow a request to come from anyone, some states require that the requester be a citizen of that state. As a result in the above example unless the requester was a citizen of New Hampshire there would be additional barriers to accessing records in New Hampshire. 6 Michele Bush & Bill Chamberlin, Access to Electronic Records in the Stat es: How Many Are Computer Friendly?, in ACCESS DENIED: FREEDOM OF INFORMATION IN THE INFORMATION AGE 37 (Charles N. Davis and Sigman Splichal eds., 2000). 11

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problems of antiquated legislation. This pape r will also address the distinction between information and public records in light of computerized records, and the potential concerns that must be appreciated when dealing with actual us ers of electronic records. This necessitates recognition that considerations of indexing and format for delivery can seriously compromise the practical uses of records and economic costs of re cord requests for commercial users, statistical data gatherers, researchers, and even data miners This paper will discuss what the findings mean to individuals seeking access as we ll as to the government in provi ding access. It will illustrate progress made in the states since the last comprehensive study done in 20007. The paper will also address and explain the difference between compliance and controlling law and outline what was accomplished in the examination of the research questions, and what was not. While this paper will offer a brief glimpses of how particular aspect s of legislation and case laws supports or thwarts electronic public r ecords access, it should be noted that a state should not be misconstrued to be a open stat e or a closed state based on any one criterion considered within this paper. The entire fram ework of a states access legislation and case law history would need to be comprehensively assessed in order to make an asse rtion of that nature. Trends and tendencies may emerge in examinati on of state statutes and case law because of changes revealed in the findings. It is these ch anges that demand revisitation of this subject. 7 Id. 12

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13 CHAPTER 2 THEORETICAL FRAMEWORK The Supreme Court of the United States has not established unfettered access to governmental records through its interpretations of the First Amen dment. Therefore, much of available access to government records and documents is granted by statute. And, while public knowledge of government records may be the subject of widespread intere st, government records have not been historically open either. Thomas M. Cooley was one of the first to ta lk about the possibility that access might be implied by the First Amendment in his 1927 work, Constitutional Limitations Cooley said that the language of the First Amendment is encompa ssing enough to include, if not require, a right of access to government information.1 He asserted that without th is right, the freedom to print would be futile.2 Cooley said the history of the struggl e for those freedoms provided in the First Amendment barred the suggestion that the framers intended to provide the freedom to disseminate information without the freedom to acquire it.3 However, even years later, Cooleys interpretations of the First Amendment have not been adopted by the U.S. Supreme Courts decisions.4 1 THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 885-886 (Gr yphon 1987). 2 Id. 3 Id. 4 See Houchins, Sheriff of the County of Alameda, California v. KQED, 438 U.S. 1, 11 (1977) (Referring to Branzburg v. Hayes 408 U.S. 665, 681 (1972) and reiterating that There is an undoubted right to gather news "from any source by m eans within the law," id ., at 681-682, but that affords no basis for the claim that the First Amendment compels othersprivate persons or governmentsto supply information.)

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Indeed, as far back as 1936, the U.S. Supreme Court had only begun to articulate a limited right to receive information ba sed on the First Amendment in Grosjean v. American Press Co .5 In that case, a tax on publications was held unconstitutional because it was a tax on knowledge.6 In the opinion of the Cour t, Justice George Sutherland referred to Judge Thomas Cooleys proposition that what should be prevente d is not merely the censorship of the press, but any government action that might prevent fr ee and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens."7 Sutherland went on to say that an infor med public opinion is the most potent of all restraints upon misgovernment.8 However, the opinion did not explicitly endorse free access. Little more than a decade later a phil osopher named Alexander Meiklejohn wrote Free Speech and Its Relation to Self-Government in which he said that th e very nature of our selfgoverned system made freedom of speech a necessity.9 He contended our governmental system demands that the First Amendment be used, not as a free for all, but as an essential tool of selfgovernment.10 Meiklejohn explained that the welfa re of a self-governed community required that those who decide issues shall understand them and therefore all facts and interests relevant shall be fully and fairly presented.11 He also said that any ci tizen who is to decide an issue, by voting for instance, should not be denied acquaintance with information, opinion, 5 Grosjean v. American Press Co., 297 U.S. 233 (1936). 6 Id. 7 Id. at 250. (Citing 2 COOLEY'S CONSTITUTIONAL LIMITATIONS 886). 8 Id. at 249. Specifically the opinion spoke of preventing previous restraints on publication generally and the court was careful not to limit the protection of the right to any particular way of abridging it. 9 ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF GOVERNMENT 26 (Harper Bros. Publ. 1948). 10 Id. at 23. 11 Id. at 25. 14

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doubt, disbelief or criticism that is re levant to the thinking process involved.12 This was a theory by which the public could make informed decisions.13 Five years later, in a 1953 re port to the American Society of Newspaper Editors, Harold Cross14 said that the courts had approached an out right recognition for freedom of information within the purview of the First Amendment.15 However, Cross acknowledged that courts had not universally accepted access as a right and said that in the absence of a general or specific act of Congress creating a clear right to inspect government records then there is no enforceable legal right to inspect any federal non-judicial record."16 Additionally, Cross said, that since state governmental records are controlled by state law, there remained much more disparity in how and to what extent the states have chosen to address access to state governmental records.17 In 1974 the U.S. Supreme Court heard two cases, Pell v. Procunier a civil suit brought by the press and inmates in a state correctional institution,18 and Saxbe v. Washington Post Co,19 which involved a similar situation but in the federal prison system.20 In these cases, the Court established that there is no constitutional right to require openness in government or to have 12 Id. at 26. 13 Id. at 1. 14 Harold Cross is widely credited with being the auth or of the language of the FOIA. His 1953 book, THE PEOPLES RIGHT TO KNOW: LEGAL ACCESS TO PUBLIC RECORDS AND PROCEEDINGS, written as legal counsel to the American Society of Newspaper Editors, laid the groundwork for the legislation. http://www.firstamendmentcenter.org/biography.aspx?name=cross. 15 HAROLD CROSS, THE PEOPLES RIGHT TO KNOW 127 (Columbia University Press 1953). 16 Id. at 197. 17Id. 18 Pell v. Procunier, 417 U.S. 817 (1974). 19 Saxbe v. Washington Post Co., 417 U.S. 843 (1974). 20 In both cases the press sought access to prisoners that was less restrictive than the warden imposed limitations currently in place. 15

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access to particular government information.21 The press has no constitutional right of access to prisons or their inmates beyond that afforded th e general public and ther e is not generally any access right given to the press beyond what the public has access to, the Court said.22 Both cases were decided by a one-vote majority, with the same five justicesStewart, Burger, White, Blackmun and Rehnquistvoting together.23 Despite the lack of law, nearly 25 years afte r Cross report, scholars continued to offer support to increased access to government, incl uding records, this time as a check on government. For example, Vincent Blasi said the value of a check on government is the reason the First Amendment should protect the press in its coverage of government.24 The value of a check on government, provided by the press, Blasi said, was achieved through access for information-gathering purposes.25 Specifically, Blasi pointed out in footnote 416 that he understood Justice Blacks articul ation of First Amendment philo sophy in his concurring opinion in New York Times Co. v. United States to be applicable not only to the freedom of the press but also to the freedoms of speech and assemb ly. Blasi acknowledged some support by the checking value to the notion that the professional press is allowed protections not available to others, but said that the issue is more comple x than severing the press clause and considering 21 Pell 417 U.S. 817. 22 Id. 23 Justice Powell joined in Part I of the Courts opinion in the Pell case as well. 24 Vincent Blasi, The Checking Value in First Amendment Theory AM. B. FOUND. RES. J., 523 (1977). Citing Justice Blacks opinion in New York Times Co. v. United States, 403 U.S. 713, 717 (1971) governments power to censor the press was abolished so that the press would remain forever free to censure the government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestra ined press can effectively expose deception in government. And paramount among the responsibilitie s of a free press is th e duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. 25 Id. at 649. 16

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First Amendment protections for press independ ently of the speech and assembly clauses. Blasi said that, in fact, t he checking value has many implications for First Amendment interpretation which have nothing to do with the professional press or with the interrelationship among the three clauses that gua rantee freedom of expression.26 In other words, Blasi understood the importance of a checking value as extending beyond the press, to the people and their role in self-government by such activities as voting and petitioning the government with their grievances.27 The link that scholars Blas i, Meiklejohn, and Cooley found between access to government information and the First Amendment protections of speech a nd press still hasnt been made by the U.S. Supreme Court with one relatively narrow exception. In 1980, three years after Blasis publication, Richmond Newspapers Inc. v. Virginia ,28 was decided by the U.S. Supreme Court. In that case seven jus tices expressed support for a First Amendment righ of access to a criminal trial, bu t only to criminal trials. The plurality opinion of the Court, written by Chief Justice Warren Burger, said tria ls ought to be open for both a defendants sake as well as in the best interest of the public. For the defendant, it offers him, or her, the protection of the public opinion to ensure that he or she is having a fair trial, and for the public, it off perception of fairness in the judi cial process. The fairness and the perception of fairness, Burger said, play a significant role in preser ving the publics strong confidence in judicial remedies. t ers a 29 This significant role translated into on e of the two prongs that the Court enunciated 26 Id. 27Id. 28 Richmond Newspapers, Inc. et al ., v. Virginia et al ., 448 U.S. 555 (1980). In this case a criminal courtroom was kept clear of press and public, which a newspaper appealed. 29 Id. at 572. 17

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in Richmond to determine whether public information or events ought to be open to the public: 1) whether public access plays a significantly positi ve role in the functi on of the particular process and 2) whether trials or other public proceedings have historically been open to the public.30 Justices Byron White and John Paul Steven s concurred with Justice Burgers opinion. Justices William J. Brennan, Jr. and Thurgood Marsha ll essentially agreed to the two-part test, giving that princi ple five votes. The Richmond case established a presumption of cons titutionality in access to the courts, with the test of the plurality resting on whether there was an overriding interest31 to any right to closure of a criminal trial. The test was elevated to a strict scrutiny test in the 1982 decision in Globe Newspaper Co. v. Superior Court .32 In the Press-Enterprise cases33 in 1984 and 1986, the Court relied on the two prongs of the Richmond test, historic openness and the positive role that public participation plays in the function to determine that a qualified First Amendment right of access attaches to court hearings and records.34 Press Enterprise I specifically involved a newspaper seeking transcripts of preliminary hearings of a court record of a court proceeding but a record nevert heless. Still, the Court used strict scrutiny after deciding the hearing met the require ments of the two-prong test mentioned in Richmond in determining the transcripts shoul a d be released.35 30 Id. at 580. 31 Id. at 581. 32 Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982). 33 See Press-Enterprise Co. v. Superior Court of Cal. (Press-Enterprise II), 478 U.S. 1 (1986); Globe Newspaper v. Superior Court 457 U.S. 596; Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984). The two Press Enterprise cases protecting access to courts are typically referred to as Press-Enterprise I or II 34 Press Enterprise II 478 U.S. at 8; Richmond Newspapers, Inc. et al ., v. Virginia et al ., 448 U.S. 555 (1980). 35 Id. 18

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In Press-Enterprise II, the newspaper had been denied access to both the proceedings and transcript of a trials voir dire. The Supreme Co urt held that a trial court cannot constitutionally close voir dire proceedings in a criminal case to the press and the public unless specific findings are made that demonstrate closure is esse ntial and is narrowly tailored to serve that interest."36 The court said the transcripts had community therapeutic value just as the proceedings were considered so.37 The Press-Enterprise and Globe Newspaper cases still did not create unlimited access to governme nt records, in part because government records other than court recordsunlike court proceed ingshave not been historically open and so the second prong of the Richmond test fails.38 In 1986, the same year as Press-Enterprise II ,39 the U.S. Supreme Cour t reiterated that no absolute First Amendment right of access to in formation outside the courts has been made available.40 In Seattle Times Co. v. Rhinehart ,41 a case involving the publication of facts released in pretrial discovery, th e Court cited a 1965 decision42 holding that "the right to speak and 36 Id. The Court specified in that while open criminal procee dings assure fairness to the public and accused there are some limited circumstances which the right to a fair trial might be undermined by publicity. In those cases, the proceedings cannot be closed unless speci fic, on the record findings are made de monstrating that closure is essential to preserve higher values and is narrowly tailored to serv e that interest. The court gave two findings that must be demonstrated, first, a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights. 37 Id. at 13. 38 See Globe Newspaper v. Superior Court 457 U.S. 596; Press-Enterprise I 464 U.S. 501; Press Enterprise II 478 U.S. 1 (1986); Richmond Newspapers 448 U.S. 555. There has not been a history of absolute openness in government records. Historic American events such as wars, radical protests, national security and leaks have prompted increased censorship and sedition acts, but th ere are also acts granting access such as the Freedom of Information Act of 1974. 39 Press Enterprise II 478 U.S. 1. 40 Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 (U.S. 1984). 41 Id. 42 Zemel v. Rusk, 381 U.S. 1, 16-17 (1965) (holding that the right to speak and publish does not carry with it the unrestrained right to gather information). 19

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publish does not carry with it the unrestrained right to gather information."43 The Court explained that the control exercised over the gathering and subsequent pub lication of pretrial discovery material information does not raise the same c oncerns of government censorship that such control might suggest in other situations.44 The Court said that restraints on pretrial discovery information are not a restriction on a tr aditionally public source of information.45 Likewise, government records generally have also not been considered a traditionally public source of information either. However, if opening government records would se rve an important purpo se or role in the function of government, the first prong of the Richmond test might be satisfied.46 Would that be sufficient reason for the courts to find at le ast a limited constitutional right of access to government records? The Court has not held so although it has had the opportunity to make greater access available, 47 and has recognized a general right in Nixon v. Warner Communications.48 In that case the Court said it was clear that the courts of this country recognize a general right to insp ect and copy public records and documents, including judicial records and documents.49 The Court specified that there wa s not necessarily a requirement of a 43 Seattle Times 467 U.S. at 32. 44 Id. 45 Id. 46 Richmond Newspapers, Inc. et al ., v. Virginia et al ., 448 U.S. 555, 581 (1980). 47 Houchins, Sheriff of the County of Alameda, California v. KQED, 438 U.S. 1, 11 (1977). The news organization argued in this case, based on holdings in Pell and Branzburg, from the right to gather news and the right to receive information comes an implied special right to access to government controlled sources of information which compels access as a constitutional matter. The Houchins Court held that neither the First Amendment nor Fourteenth Amendment mandates a right of access to governme nt information or sources of information within the governments control. Id. 48 Nixon v. Warner Communications, 435 U.S. 589 (U.S. 1978). 49 Id. at 597. 20

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proprietary interest in a record to gain acce ss to a record, and that enough interest has been found in the citizen's desire to keep a watchful eye on the workings of public agencies a newspaper publisher's intention to publis h information concerning the operation of government. ,50 and in to inf t is parison may allow readers to better understand progress and implications of any changes that have occurred in some of the issues involved in state access to electronic public records. 51 However, because the courts have not yet found a constitutional right of access ormation held by the government, access to records is controlled for the most part by statutes. In part because of the lack of federal constitutional protection for access to government records, state government records are controlled by state law, and to better understand wha happening at the state level, in electronic records particularly, an examination of state statutes and case law is in order. To understand progre ss made to that end, it would be helpful to compare current findings with the summary of those reported in the Bush-Chamberlin study from 2000. This report of findings and summary com 50 See, e. g. State ex rel. Colscott v. King, 57 N. E. 535, 536-538 (1900); State ex rel. Ferry v. Williams, 41 N. J. L. 332, 336-339 (1879). 51 See, e. g., State ex rel Youmans v. Owens, 137 N.W. 2d 470, 472 (1965). 21

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22 CHAPTER 3 LITERATURE REVIEW Not all states have defined public records to sp ecifically include elec tronic records. As a result, citizens in some states have a harder tim e gaining access to electro nic records than gaining access to paper records. Advances in technology have left some access legislation impracticable. For example, some records custodians will deny re lease of records because there is no policy for releasing computer data or electronic records.1 Updating state laws c ould ease electronic public records access. For example, enabling citizens to customize electronic record searches, or allowing requesters to choose the delivery format for the records they are seeking, are just two of the changes that may need to be made. Scholars have suggested in the past fifteen years that state statutory reform is necessary to ensure access to public records in the electronic age, but few have focused on progress made by states toward that endeavor.2 This paper will fill that gap in the field of literature. More than a decade ago, developments in technology were attracting notice from scholars who realized that governments can a nd will deny access because of technology.3 Legislators frequently did not contemplate re cords being stored in electronic form when they defined public 1 Michele Bush & Bill Chamberlin, Access to Electronic Records in the Stat es: How Many Are Computer Friendly?, in ACCESS DENIED: FREEDOM OF INFORMATION IN THE INFORMATION AGE 37, 38 (Charles N. Davis and Sigman Splichal eds., 2000). 2 See Matthew Bunker et al., Access to Government-Held Information in the Computer Age: Applying Legal Doctrine to Emerging Technology 20 FLA. ST. U.L. REV. 543 (1993); Barbara A. Petersen and Charlie Roberts, Access to Electronic Public Records 22 FLA. ST. U.L. REV. 443 (1994); Joint Legis. Info. Tech. Resource Comm., Electronic Records Access; Problems and Issues 34 (1994); Sandra Sanders, Note: Arizonas Public Records Laws and the Technology Age; Applying Paper Laws to Computer Records 37 ARIZ. L. REV. 931 (1995); Sandra Davidson Scott, Suggestions for a Model Statute for Access to Computerized Government Records 2 WM. & MARY BILL RTS J. 29 (1993); Brian G Brooks, Adventures in Cyber-Space: Computer Technology and the Arkansas Freedom of Information Act U. ARK. LITTLE ROCK L. REV. (Spring 1995); Sigman Splichal & Bill Chamberlin, The Fight For Access to Government Records Round Two: Enter the Computer JOURNALISM Q. (1994). 3 See supra note 2.

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records.4 Many authors of scholarly works encour aged statutory change, new administrative policy, or different direction in the courts.5 Access to Electronic Records in the States: How Many Are Computer Friendly?6 by Michele Bush and Bill Chamberlin, is an article based on research that maintains a method and content most similar and pertinent to the approa ch taken with this paper. The authors undertook a 50-state review of el ectronic records access statutes, and ex amined state access case law. The measures used by Bush and Chamberlin are, in part the basis of the criteria used by this research study to examine electronic-access statutes. Bush and Chamberlin examined state statutes, case law and attorney general opinions, and measured state laws against 10 criteria. The authors said they selected measures important in ensuring existing levels of access are not eroded in the electronic age.7 The article and research were completed in 20008 and many changes in states use of technology and state laws have since taken place. This research serves to update the Bush and Chamberlin study, using similar cr iteria and also including case law. In a 1993 article, Suggestions for a Model Statute for A ccess to Computerized Government Records, Sandra Davidson-Scott developed a detailed mode l for state statutes that would include electronic public records. 9 Davidson-Scott said that any stat e determined to build an effective statute that addresses the acce ss interests of both the governme nt and the public can do so.10 4 Bush & Chamberlin, supra note 1, at 38. 5 See supra note 2. 6 Bush & Chamberlin, supra note 1. 7 Bush & Chamberlin, supra note 1, at 39. 8 Bush & Chamberlin, supra note 1. 9 Davidson-Scott, supra note 2. 10 Id. 23

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Davidson-Scott included an examination of state st atutes, state case law and literature in her research.11 Her article differs from this research in that it offered a model statute and then examined the proposed provisions of that statute with examples of case law to illustrate the provisions or need for provisions It was not a comprehensive examination of fifty states controlling law. In a 1993 article, Access to Government-Held Informati on in the Computer Age: Applying Legal Doctrine to Emerging Technology,12 Matthew Bunker and other scholars13 examined foundations for access to government information a nd explored obstacles to access. The authors offered guidelines to maintain and improve acces s, including recommendations that governments make content-based exemptions for withholding co mputer records the same as those for paper files. The article also recommended that governments should not withhold information in computers not specifically exempted by statute on the grounds that it is mixed with exempt information and that governments should prom ote public access when installing computer systems, among other suggestions. The authors focus, however, was on Florida statutes and federal access law.14 Sigman Splichal and Bill Chamberlin underlin e[d] the need to rewrite access laws to acknowledge the pervasive role of computers in governme nt on a federal level in The Fight For Access to Government Records Round Two: Enter the Computer .15 Splichal and Chamberlin 11 Id. 12 Bunker et al ., supra note 2. 13 Sigman L. Splichal, Bill F. Chamberlin, and Linda M. Perry. 14 Bunker et al., supra note 2. 15 Splichal & Chamberlin, supra note 2. 24

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discussed many of the issues relate d to this research as they were at first considered by the courts. Splichal and Chamberlin pointed out th at the federal Freedom of Information Act did not, at the time they were writing, addre ss the technology of elect ronic file storage.16 The Splichal and Chamberlin article, and the Bunker article, were published prior to passage of the Electronic Freedom of Information Act (E-FOIA),17 which became law on October 2, 1996. EFOIA addressed for federal agencies some of th e concerns illuminated in these articles. For example, E-FOIA defines records,18 permits choices in delivery format,19 and permits computer redaction of records.20 Other authors have addressed the outcome of E-FOIA and the subsequent court decisions that have arisen since its inception.21 Familiarity with federal access policy can help clarify common state access issues, and how access issues are addressed by federal lawmakers. This 16In 1991 Sen. Patrick Leahy introduced the Electronic Freedom of Information Improvement Act of 1991. On September 20, 1996, Congress presented the Electronic Freedom of Information Act Amendments to President Clinton for his signature. He signed the bill into law on October 2, 1996. 175 U.S.C. 552 (1996). 18 5 U.S.C. 552 (2) (1996). [R]ecord and any other term used in this section in reference to information includes any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, incl uding an electronic format Id. 19 5 U.S.C. 552 (B) (1996). In making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is read ily reproducible by the agency in that form or format. Each agency sh all make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section. Id. 20 5 U.S.C. 552 (1996). The amount of information deleted shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption under which the deletion is made. If technically feasible the amount of the information deleted shall be indicated at the place in the record where such deletion is made.' Id. 21 Charles J. Wichmann III, Ridding FOIA of Those Unanticipated Conse quences: Repaving a Necessary Road to Freedom, 47 Duke L.J. 1213 (1998); Richard J. Peltz et al, The Arkansas Proposal on Access to Court Records: Upgrading the Common Law with Electronic Freedom of Information Norms, 59 ARK. L. REV. 555, 557 (2006). 25

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understanding of federal E-FOIA can also help dire ct state legislators to create new provisions to increase access with the model of E-FOIA. However, in her 1995 article, Arizona's Public Records Laws and the Technology Age: Applying "Paper" Laws to Computer Records,22 author Sandra Sanders concentrated on the development of a single states access law in the elec tronic era. The author proposed that addressing electronic access in st atutory language as opposed to ignoring it all together could ensure greater accessibility. Sanders proposed explicit change s in Arizona's public records statutes and specifically included electronic data in the state's definition of public records.23 She also proposed that Arizona provide on-site acces s, free of charge, with reasonable assistance from agency staff.24 She said that Arizona's courts shoul d interpret her proposals as a means to ensure citizens access to all public records.25 Sanders said that if the state were to adopt her proposals, Arizona's citizens and government work ers would have justifia ble expectations of what information is to be disclosed.26 In 1999, Suzanne Sturdivant examined an approved amendment to Georgias access legislation27 which required custodians to provide access to computer records by electronic 22 Sanders, supra note 2. 23 Id. at 950. 24 Id. 25 Id. at 932. 26 Id. at 931. 27 Suzanne F. Sturdivant State Government: State Printing and Document s: Provide for Conditions of Disclosure of Public Records Received or Maintained by Private Persons or Privat e Entities Performing Service for Public Entities; Change Provisions Relating to Time and Manner in Which Custodians Must Respond to Requests for Inspection; Require Custodians to Provide Access to Computer Records by Electronic Means; Require a Custodian Who Refuses to Provide a Document for Inspection to Make a Binding Explanation of the Reasons the Custodian Denied Access; Impose Criminal Pe nalties for Failure to Pr ovide Access to Records and Define Punishment 16 GA. ST. U.L. REV. 262 (Fall 1999). 26

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means. In her article in the Georgia State Univ. College of Law Review Sturdivant addressed the origins, key factors, exemptions and deta ils of the amendments for electronic access in statutes. Sturdivant addressed onl y the new provisions of the law.28 She did not undertake a diverse multi-state investigation of access law and did not discuss case law. Numerous websites and organizations provide information about laws controlling access to government information. The University of Floridas Marion Brechner Citizen Access Project,29 the Reporters Committee for Freedom of the Press30 and Open the Government.org31 each provide information on the state of the law for both traditional and electronic public records access. These organizations maintain reports about, or links to federal and state access information. The three sites provi de regularly updated informati on about state statutes and case law and updated news about access cases, and one pr ovides reliable cross-state comparisons of states access laws.32 With some regularity popular press articles feature reports of administrative policy and statutory change and the associated local reaction to these changes. These events illustrate a legal area undergoing change, an area which may n eed updates in legal literature. This research will inform the public about the changes in the law that have occurred since this topic was last thoroughly examined in legal literature by the Bush and Chamberlin article published in 2000. 28 GA. CODE ANN. 0-18-70 -72 -74 (2005). 29 Marion Brechner Citizen Access Project [hereinafter MBCAP] (March 1, 2008), http://www.citizenaccess.org/ 30 The Reporters Committee For Freedom of the Press [hereinafter RC FP] (March 3, 2008), http://www.rcfp.org/ 31 OpenTheGovernment.org [hereinafter OTG.org] (March 3, 2008), http://www.openthegovernment.org/ 32 MBCAP, supra note 29. 27

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28 CHAPTER 4 CRITERIA FOR EVALUTION Organization and Research Questions This chapter will outline the organization of th e remainder of the paper and set forth the research questions that are the foundation for this thesis. For this thesis, the fifty states are divided into preliminary categories based on the states appreciation of electronic records in its definition of public records, creating a three-part foundation for the asse ssment of the other research questions. The states are categorized as either 1) in cluding electronic records in the definition of public records in specific terms, or 2) including electronic re cords in the definition of public records by using terminology such as regardless of physical form or characteristics, or 3) as having no direct or i ndirect reference to electronic records as public records in the definition of a public record in the state's statut e. Assessing the recogniti on of electronic records in each state by its handling of this question is the starting point. This thesis then examines state public records access statutes and case law in all 50 states and utilizes cate gories similar to those used by researchers reported in the literature review.1 1 See generally Jerry Berman, The Right To Know: Public Access to Electronic Public Information 3 SOFTWARE L.J. 491, 523-24 (1989); Matthew Bunker et al., Access to Government-Held Inform ation in the Computer Age: Applying Legal Doctrine to Emerging Technology 20 FLA. ST. U.L. REV. 543 (1993); Daniel F. Hunter, Electronic Mail and Michigans Public Disclosure Laws: The Argume nt for Public Access to Governmental Electronic Mail 28 U.MICH. J.L. REFORM 977 (1995); Elliot Jaspin and Mark Sabelman, News Media Access to Computer Records; Updating Information Laws in the Electronic Age 36 ST. LOUIS U.L. J. 349 (1991); HENRY H. PERRITT JR., LAW AND THE INFORMATION SUPERHIGHWAY 498-99 (Aspen 1996); Barbara A. Petersen and Charlie Roberts, Access to Electronic Public Records 22 FLA. ST. U.L. REV. 443 (1994); Joint Legis. Info. Tech. Resource Comm., Electronic Records Access; Problems and Issues 34 (1994); Sandra Sanders, Note: Arizonas Public Records Laws and the Technology Age; Applying Paper Laws to Computer Records 37 ARIZ. L. REV. 931 (1995); Sandra Davidson Scott, Suggestions for a Model Statute for Access to Computerized Government Records 2 WM. & MARY BILL RTS J. 29 (1993); Brian G Brooks, Adventures in Cyber-Space: Computer Technology and the Arkansas Freedom of Information Act U. ARK. LITTLE ROCK L. REV. (Spring 1995); Sigman Splichal & Bill Chamberlin, The Fight For Access to Government Records Round Two: Enter the Computer JOURNALISM Q. (1994); Michele Bush & Bill Chamberlin, Access to Electronic Records in the States : How Many Are Computer Friendly?, in ACCESS DENIED: FREEDOM OF INFORMATION IN THE INFORMATION AGE 37, 38 (Charles N. Davis and Sigman Splichal eds., 2000); The Reporters Committee For Free dom of the Press [hereinaft er RCFP] (March 3, 2008), http://www.rcfp.org/ ; Marion Brechner Citizen Access Project [h ereinafter MBCAP] (March 1, 2008), http://www.citizenaccess.org/ .. When undertaking an examination of this scope, it is apparent that setting limits on what is undertaken with the research questions should enhance the qua lity of research and maintain a manageable task. To that end, this thesis

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The research questions are as follows. Research question 1: What is the State of the Law Re garding the Inclusion of Electronic Records or Electronic Documents in th e Definition of Public Records? Research question 2: What is the State of the Law Rega rding the Inclusion of E-mail in the Definition of Public Records? Research question 3: What is the State of the Law Re garding the Requirements to Make Available Alternate Delivery Formats fo r Dissemination of Electronic Records? Research question 4: What is the State of the Law Regarding the Requirements for Redaction of Confidential Information from an Otherwise Public Elect ronic Record in Order to Facilitate Access? Research question 5: What is the State of the Law Rega rding the Requirements of Indexing of Electronic Public Records? Issues not considered in this research include 1) GIS data2 and 2) exemptions from disclosure in public records, including personal information in otherwise public records, including governmental employee data, drivers data and criminal data. Possible future research will be suggested in these areas. These areas ar e not included because they are, in the case of GIS data, records that are too specific for this broad thesis; and in the case of exemptions, too numerous for realistic thorough c onsideration. Moreover, these ar e content-related categories, and this research focuses on the format of the record itself. These categories were chosen for this thesis b ecause they are those that are most pertinent to todays technology, and most essential to providing signif icant access specifically to electronic records. The inclusion of electronic records a nd E-mail in a states definition of public records are the fundamental questions for electronic records acce ss today. Additionally, will present research with a list of categories used to assess state laws in a systematic way. Leading researchers and educators developed these categories thro ugh the last two decades of investiga tion. The choice to include particular criteria was based on two factors, those most pertinent to todays technology, and those most essential to providing significant access specifically to electr onic records. The choice was also narrowed by includi ng only categories that accomplished these tasks while also being included in cat egories defined by the Citizen Access Project website. 2 THE U.S. ARMY CORPS OF ENGINEERS, GEOGRAPHIC INFORMATION SYSTEMS (GIS) DEFINITION (2006), http://www.nww .usace.army.mil/gis/d efinition.htm. Defines GIS as a geograph ic information system, which is an organized collection of computer hardware, software, geographic data, and personnel designed to efficiently capture, store, update, manipulate, analyze, and display all forms of geographically referenced information. 29

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redaction, indexing and alternate delivery methods all apply whether a requester seeks the record remotely or in person. Beyond that, the other cat egories were chosen because they assessed the impact of access at a practical le vel and were not post-release issu es such as fees would have been. Some of the other categories were not incl uded because the nature of the record was so specialized, as in GIS data. Customization wa s not included because it is a privilege beyond basic access. Controlling Law and Compliance The research methods used in this thesis would not be conducive to a focus on actual government practices but are appropriate to finding the state of the controlling law. Compliance, significant deficiencies in compliance or trends toward non-disclosure are an essential part of understanding the realities of act ual practices in public access of government records, but these issues are not the focus of this research. Th ese considerations would require use of another research methodology, such as qualitative research me thods, and this thesis has been restricted to questions that can be answered using legal research methods. Method Secondary literature used as background research in this thesis has been searched using journal and periodical searches on LexisNexis as well as books and periodicals. Electronic data base keyword searches for secondary sources using public records and comput! or electron!, were conducted. More than 500 articles from the last 15 years were included. Those mentioned in the thesis itself were used to better understand what research was necessary or overdue and to develop the backgr ound and foundation of this thesis. Data for this research has been collected by examining each states public records laws. The statutes were searched using LexisNexis drill -down searching for each state. This process is achieved by searching within a single states st atutes first via a topical heading index, then 30

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down to subheading, and subsequently down to sub-subheadingif necessarywhere the public records access laws were found. These searches were supplemented with keyword searches throughout each states statutes. Cases were found using citations from statutes, and keyword searches using LexisNexis.3 The keywords were used with terms and connectors in various combinations to search for controlling case law. This research attempted to consider every case that is relative to the controlling law. 3 Keywords used included the term s access, catalog, classif!, creat!, comput!, compil!, custom!, data, delet!, delivery, disc, disclos!, electr on!, electronic mail, e-ma il, format, hardware, index!, information, inspect!, I nternet, list!, magnetic, ma il, media, medium, program, public, purchas!, record, redact!, register, release, remov! request, software, and tape. 31

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32 CHAPTER 5 ELECTRONIC RECORDS AS PUBLIC RECORDS On examination of the definitions of public r ecords found in states statutory and case law, states can typically be classified in one of three categories. (See Table 5.1). These preliminary categories indicate whether electroni c records are included in the defi nition of public records, as mentioned in the first research question. The states could be categorized as either 1) directly including computerized records in the definition of public records in specific terms, 2) including computerized records in the defi nition of public records using term inology such as regardless of physical form or characteristics, and defining public records less by format and more by function,1 or 3) as having no direct or indirect reference to computer records in the definition of a public record in the state's statutes or case law. This division creates a thr ee-part foundation for the assessm ent of the other research questions, and this cursory look at how a state defines public records helps interpret other provisions of the law which relate to general public records access. For instance, if a state makes no reference to electronic records in its definition of public records, then it is unlikely that provisions for record formats, redaction or indexi ng will be easily applied to electronic records by agencies or a reviewing court. In early 2008, 33 states included electronic reco rds in the definition of public records in specific terms such as electronic records, computer files, digital data or computer databases.2 1 States that use phrasing such as r egardless of physical format or characteristics in the statutory definition of public records often define public records with a description that includes the use of the record, the creator of the record, or whether the record documen ts public business or transactions. 2 Arkansas, California, Colorado, Connecticut, District of Columbia, Florida, Georgia, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Oh io, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Virginia, and Wisconsin. For citations, see appendix.

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Some of these states have case law that supports the relatively precise inclusion of electronic records as public records, without interp reting it to mean more than is stated in the statute.3 For example, Michigans public records statute define s a public record to mean a writing prepared, owned, used, in the possess ion of, or retained by a public body in the performance of an official func tion, from the tim e it is created.4 The statute defines a writing to mean handwriting, typewriting, printing, photostating, photograp hing, photocopying, and every other means of recording, a nd includes letters, words, pict ures, sounds, or symbols, or combinations thereof, and papers, maps, magnetic or paper tapes, photographic films or prints, microfilm, microfiche, magnetic or punched cards, di scs, drums, or other means of recording or retaining meaningful content.5 As early as 1995, a Michigan appeals court said that computer tapes ar e public records that are subject to disclosure within the Freedom of Information Act a nd further held that providing a computer printout of the information contained on a computer tape does not satisfy the statutory obligations to provide a public record upon request.6 The court said that the computer tape itself was a public record and therefore must be directly copied as a record rather than be provided in print form.7 3 See, e.g., Farrell v City of Detroit, 209 Mich. App. 7 (Mich. Ct. App. 1995); MacKenzie v. Wales Twp., 247 Mich. App. 124 (Mich. Ct. App. 2001); City of Warren v City of Detroit, 261 Mich. App. 165 (Mich. Ct. App. 2004); Deaton v. Kidd, 932 S.W.2d 804 (Mo. Ct. App. 1996); Jones v. Jackson County Circuit Court, 162 S.W.3d 53 (Mo. Ct. App. 2005);The Tennessean v. Electric Power Bd., 979 S.W.2d 297 (Tenn. 1998). 4 MICH. COMP. LAWS 15.232 (e) (2008). 5 MICH. COMP. LAWS 15.232 (h) (2008). 6 Farrell 209 Mich. App. 7. 7 Id. 33

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States approach the inclusion of electronic records using different terms, some more specific than others, and some states have more than one phrase in statutory language that could include electronic records in their scope. Fo r example, Tennessees statute has two provisions that could apply for electronic records8 The language of the statut e includes electronic data processing files and output and also other material, regardless of physical form or characteristics.9 In 1998, the Supreme Court of Tenness ee found it clear that the legislature intended that the Public Records Act apply to computer records by defining a "record" to include "electronic data processing file s and output." The court also referred to the other inclusive definition in the same section of the public records act, where the statute includes "other material, regardless of physical form or characteristics" in its definition of public records. The court determined that the legisl ature broadly defined record and that the term does not consist of a particular physical format or form.10 In one state, Massachusetts, a ppellate case law clearly interprets the state definition of public record to include computerized records.11 The Massachusetts public records law defines public records as all books. recorded tapes, financial statements, stat istical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or 8 TENN. CODE ANN. 10-7-301 (2008) defining "Public record or records" or "state record or records" to mean all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings, or other material, regardless of physical form or characteristics made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency. 9 Id. 10 The Tennessean v. Electric Power Bd., 979 S.W.2d 297, 302 (Tenn. 1998). 11 Globe Newspaper Co. v. DA for the Middle Dist., 439 Mass. 374, 385 (Mass. 2003). 34

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received by any officer or employee of any agency.12 In Globe Newspaper Co. v. DA for the Middle Dist. a newspaper requested computerized data from an agency and the court determined that the computerized data records were public records subject to disclosure.13 In Globe the newspaper had requested records that incl uded docket numbers, defendant's names, municipalities, and charges for each case involvi ng municipal corruption that was prosecuted in a five-year history.14 The 32 states, other than Massac husetts, that include electronic records in the definition of public records in specific terms, delineate extens ive and inclusive lists of defined public record formats in their statutory language For exampl e, Rhode Islands stat ute explicitly includes magnetic or other tapes, electr onic data processing records, computer stored data and also includes non-exempt electronic mail messages.15 Some states, such as Colorado, include digital ly stored data, includ ing without limitation electronic mail messages, while specif ically excluding computer software.16 Floridas statute, on the other hand, defines a "public record" specifically to include data processing software and also apers, letters, maps, books, tapes, photographs, films, sound recordings r other material, regardless of the physic al form, characteristics, or means of transmission,17 all documents, p o 12 MASS. ANN. LAWS ch. 4 7, cl.26 (2007). 13 Globe Newspaper Co. v DA for the Middle Dist ., 439 Mass. at 385. 14 Id. at 375. 15 R.I. GEN. LAWS 38-2-2(4) (i) (2007). 16C.R.S. 24-72-202 (7) (2006). 17 FLA. STAT. 119.011 (11) (2007). 35

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In other words, if the record is capable of being described by its storage methods, retrieval methods or delivery methods, it is likely incl uded in the definition of a public record. Another 17 states, besides the 33 that specif ically include electronic records in the definition of public records, de scribe public records using only terminology such as regardless of physical form or characteristics creating an inclusion in the definition of public records that may be flexible enough to withstand the near futu re of electronic tec hnological advances in record storage.18 However, this may be the product of a legislature attempting to ensure that format was not going to be an issue with regard to public records, rather than legislators planning for future technology. One of these states, Arizona, defines public records to mean all papers, maps, photographs or other documentary ma terials, regardless of physical form or characteristics. made or received by any governmental agency in pursuance of law or in connection with the transaction of public business. .19 These states with regardless of physical format definitions of public records in statutes often fo cus on what agency is using the records, and how that agency is using the records, rather than focusing on format. Kansas statute, for example, includes descript ions of who maintains th e record as much as how it is kept, defining a public record as any recorded information, regardless of form or characteristic as long as it is made, maintained, kept by or is in the possession of any public agency.20 The focus in the Kansas statute appears to be more on the existence of a record than its format. This differs from Florida, for instan ce, because Floridas statute creates an inclusive 18 Alaska, Arizona, Delaware, Idaho, Indiana, Kansas, Kentucky, Minnesota, New Mexico, Oregon, South Carolina, South Dakota, Vermont, Washington, West Virginia, and Wyoming. For citations, see appendix. 19 ARIZ. REV. STAT. 41-1350 (2007). 20 K.S.A. 45-217 (f) (1) (2006). 36

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list of possible formats for records in addition to delineating where the records originated, where they were kept or who possesses the record.21 These regardless of physical format defini tions may more effectively survive time than more specific descriptions. After all, just twenty years ago computers used drums, punch cards and magnetic tapes to store data, and high capacity digital discs were a storage device of the distant future. Idahos code, for exampl e, defines public r ecords to include any writing containing informa tion relating to the conduct or administration of the public's business prepared, owned, used or retained by any state agency, i ndependent public body corporate and politic or local agency regardless of physical form or characteristics. "Writing" includes, but is not limited to, handwriting, typewriting, printing, photostating, photographing and every means of recording, including letters, words, pictures, sounds or symbols or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums or other documents.22 This statute is almost too specific and may eventually require adjustment because of technological changes. Early computers used ma gnetic drums as storage, but those were mostly replaced by 1954 with magnetic core memory and on invention of the transistor, a miniaturization revolution took pl ace with electronic memory via solid state silicon chip technology. Currently there are methods used to stor e data which are not incl uded in this list in the Idaho statute including off line storage, where data is stored in an off site location, enabling remote data recovery even after a local disaster such as a fire. New storage technology also includes memory sticks, flash cards, mini chips, semiconductors, optical storage media, 21 FLA. STAT. 119.011 (11) (2007). Defines Public records means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. 22 IDAHO CODE 9-337 (13) (15) (2007). 37

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holographic storage, and phase change planar memory.23 Most of these technologies would not fall under the definitions outlined in the Idaho statute with the current statutory language. Lastly, Alabama is the only state that has no direct or indirect re ference to computer records or electronically stored da ta as public records in its definition of a public record in the state's statutes or case law. There is no language within the statutes that might be generic enough to include electronic data and there are no appe llate cases that support including electronic data in the definition of public records. Alabamas public records law defines public records as all written, typed or printed books, papers, letters, documents and maps made or received in pursuance of law by the public officers of the state. in the tr ansactions of public business .24 Alabama boasts that it has one of the oldest open r ecords acts in the country, originally passed in 1915.25 It remains to be seen whether Alabamas government will modify the definition of a public record, particularly since the governor created the Alabama Cent er for Open Government in 1999 and the state legislature commissioned the Alabama Open Records Study Task Force in 2005. However, the Alabama Open Meetings Act web pa ge indicates that the last meeting of task force was in 2006 and no statutory change has emer ged in the following two years. Currently the Alabama Center for Open Government indicates that the law, as it reads, is brief and to the point.26 23Optical storage, http://searchstorage.techtarget.com/magazine Feature/0,296894,sid5_gci1258220,00.html ; Phase Change memory, http://www.memorystrategies.com/ ; Holographic storage, http://wwwdownload.netapp.com/ed m/search/images/TEI.pdf 24 CODE OF ALA. 41-13-1 (2007). 25 Alabama Center for Open Go vernment (March 1, 2008), http://www.alacog.com/apal5.html 26 Id. 38

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As a whole, therefore, virtually all states fall in one of two categories, those that focus on specifically listing formats of record s that are to be included in the definition of public records, and those that use terminology such as regardless of physical form or characteristics and define public records less by format and more by function. The next chapter of this thesis will show how many states have in cluded electronic mail (E-mail) in the definition of public records, and how courts have applied those respective statutes to E-mail. 39

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Table 5-1. Electronic records as pu blic records, table of findings. State Name Specific Terms Regardless of Phys ical Form Silent to Computer Records Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware D. of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska 40

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Table 5-1 Continued State Name Specific Terms Regardless of P hysical Form Silent to Computer Records Nevada New Hampshire New Jersey New Mexico New York N. Carolina N. Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island S. Carolina S. Dakota Tennessee Texas Utah Vermont Virginia Washington W. Virginia Wisconsin Wyoming 41

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42 No reference to electronic records in definition of public records. Includes electronic records in definition of public records with terms such as regardless of physical form or characteristics. Includes electronic records in definition of public records with specific terms Figure 5-1. Electronic Documents as Public Records, Graphic

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43 CHAPTER 6 ELECTRONIC MAIL (E-MAIL) RECORDS AS PUBLIC RECORDS This chapter deals with the minority of states that have addressed the electronic mail (Email) phenomenon and their attempts to apply laws that deal with this contemporary trend. While some courts appear guided by specific stat utory inclusions in th e definitions of public records, other courts are faced with application of more definite statutes. While many courts have had to interpret statutes described in this chapter in light of the tremendous technological explosion of E-mail, in some cases the impact of granting access to E-mail may have given the public more than the legislature anticipated in access to records that may be more personal than official or business related. Only 16 states have addressed E-mail in the de finitions of public reco rds. (See Table 6-1). Thirty-five other states have not addressed E-mail at all in their definitions of public records. Of those that do, states public reco rds laws often focus on who has wr itten or received an E-mail, what agency has maintained the record and how an agency is using the record to define whether E-mail is a public record. This content-based ap proach is similar to the approach some states have taken when including electronic public records in their definition of public records focusing only on the use of the record, and not the format of the record. The inclusion of E-mail records in the definition of public reco rds in states statutory and case law was examined and it was found that states can be classified into one of three initial categories, similar to the categories of the last chap ter. The states can be categorized as either 1) expressly providing for E-mail records in the defi nition of a public record, 2) providing that Email records may be included in the definition of public records in specific circumstances such as when the records are of a public busin ess nature but not when E-mail is of a private

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nature, or 3) as having no direct or indirect reference to E-mail records included in the definition of a public record in the st ate's statutes or case law. This categorical look at how a state includes E-mail in its defi nition of public records helps agencies, courts and requesters interpret other provisions of the law for public records access. For instance, if a state makes no reference to E-mail records in its definition of public records, then it is unlikely that provisions for redaction of public records will be easily applied to E-mail records by agencies or a reviewing court. In early 2008, 10 states included in their defi nition of public records that E-mail records shall be public records subject to the same provisions as other public records.1 Four of these states provide for E-mail in the stat utory language of public records law.2 For example, the Montana public records law expr essly provides for E-mail in the definition of a public record,3 so long as the record is not c onstitutionally protected from disc losure or otherwise contain confidential information. s 4 One state, Rhode Island, statut orily defines a "p ublic record" to include all computer stored data including including electronic mail messages, while specifically excluding any E-mail messages of, or to, elected officials with, or relating to, those they represent, and correspondence of, or to, elected officials in their official capacities.5 Californias statute, on the other hand, de fines a "public record" as a ny writing containing information 1 Alaska, California, Iowa, Kentucky, Maine, Maryland, Massachusetts, Montana, Rhode Island, and Virginia. For citations, see appendix. 2 California, Iowa, Montana and Rhode Island. For citations, see appendix. 3 MONT. CODE ANN., 2-6-101 (a) (b)(2005) (Public writings are: pub lic records, kept in this state, of private writings, including electronic mail, except as provided in 22-1-1103 and 22-3-807 and except for records that are constitutionally protected from disclosure). 4 (Library Records Confidentiality Act) MONT. CODE ANN., 22-1-1103 (2005). 5 R.I. GEN. LAWS 38-2-2(4) (i) (2007). 44

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relating to the conduct of the public's business prep ared, owned, used, or retained by any state or local agency regardless of physi cal form or characteristics.6 Californias statute further defines a writing as "any handwriting, typewriting, prin ting including those transmitted by electronic mail.7 Six of these first ten states define E-mail r ecords as public records in case law when the public records statutes have been silent regarding E-mail.8 For instance, the Virginia Supreme Court said that the Virginia Freedom of Info rmation Act (FOIA), which does not specifically define public records to include E-mail, held that there is no question that E-mails fall within the definition of public records under that statute.9 Virginias statute defines its public records to include all recordings that consist of letters words, or numbers, or th eir equivalent, or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body.10 The Virginia court explained that an E-mail was essentially a form of written communication, hence a public record, and no meeting and did not fall under the public meetin gs definitions in the Virginia FOIA law. t a 11 6 CAL. GOV'T CODE 6252(e) (2003). 7 CAL. GOV'T CODE 6252(f) (2003). 8 See Gwich'in Steering Committee v. State of Alaska, Office of the Governor, 10 P.3d 572 (Ak. 2000); Hahn v. Univ. of Louisville, 80 S.W.3d 771 (Ky. Ct. App. 2001); Springfield Terminal Ry. Co. v. DOT, 2000 ME 126 (Me. 2000); Office of the Governor v. Washington Post Co., 360 Md. 520 (Md. 2000); Lafferty v. Martha's Vineyard Comm'n, 17 Mass. L. Rep. 501 (Mass. Super. Ct. 2004); Beck v. Shelton, 267 Va. 482 (Va. 2004). 9 Beck supra note 8, citing VA. CODE ANN. 2.2-3701(2007). 10 VA. CODE ANN. .2-3701 (2007). 11 Beck supra note 8. 45

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In 2000, the Supreme Court of Maine held that E-mail documents that would be included as "public records" defined by statute,12 but which are within the sc ope of a privilege as work product, and also privileged from discovery, w ould otherwise be disclo sed as a public record under the Freedom of Access Act. The court determined in Springfield Terminal Ry. Co. v. DOT that one exception to the inspection of E-mail is the work product doctrine.13 The ten states examined so far in this chapte r have included in their definition of public records that E-mail records shall be public r ecords subject to the same provisions as other public records, but of the six that are controlle d by appellate case law, only four are state supreme court decisions. In early 2008, six othe r states included in their definition of public records that E-mail records may be public r ecords under certain circumstances, creating an opportunity for interpretation by requ esters, agencies, and the courts.14 Four of these six states have appellate case law decisions and three of those were state supreme court decisions. Two of these states, Colorado and Tennessee, say E-mail may be included in the definition of public record s in statutory language.15 For example, the Colorado public records statute explicitly provides that any state agency that operates or maintains an E-mail system must 12 1 MASS. REV. STAT. 402(3) (2007) defines the term "public record to mean any written, printed or graphic matter or any mechanical or electronic data compilation from which information can be obtained, directly or after translation into a form susceptible of visual or aural compre hension, that is in the possession or custody of an agency or public official of this State or any of its political subdivisi ons, or is in the possession or custody of an association, the membership of which is composed ex clusively of one or more of any of these entities, and has been received or prepared for use in connection with the transaction of public or governmental business or contains information relating to the transaction of public or gov ernmental business unless otherwise exempted. 13 Springfield Terminal 2000 ME 126. Citing Maine Rules of Evidence Work Product Doctrine A document is protected as work product only if it was created because of the party's subjective anticipation of future litigation. See Me. Rules Evid. 26 (b) (3). 14 Arizona, Colorado, Florida, Ohio, Tennessee, and Washington For citations, see appendix. 15 Colorado and Tennessee. For citations, see appendix. 46

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adopt a policy on monitoring of E-mail.16 The policy must include a statement that E-mail correspondence may be a public record and subject to public inspection.17 Tennessee has a similar policy adoption mandate and states further that the policy shall include a statement that employee E-mail correspondence may be a public re cord under the law and may be subject to public inspection."18 Four other states in this co llection of six specify only in controlling case law that E-mail records may be included in the definition of public records.19 For instance, the Ohio Supreme Court found that a public office's E-mail could qualify as a public record under the state's public records law.20 According to the court, "sometimes, public office E-mail can document the organization, functions, policies, decisions, procedures, operations, or other activities of the public office."21 In that case, an E-mail would be a pub lic record, and, alternatively, E-mail of a purely private nature, even if he ld in a public offices computer would not be included in the definition of a public record.22 The E-mail sought in Wilson-Simmons v. Lake County Sheriffs Dept was held to not be a public record, alt hough it was created by public employees via a public offices E-mail system; because it was ne ver used to conduct the business of the public 16 COLO. REV. STAT. 24-72-204.5 (2002). 17 COLO. REV. STAT. 24-72-204.5 (2002). 18 TENN.CODE ANN. 10-7-512 (2007). 19 See Star Publishing Co. v. Pima County Attorney's Office, 891 P. 2d 899 (Ariz. Ct. App. 1994); Griffis v. Pinal County, 156 P.3d 418 (Ariz. 2007); State v. City of Clearwater, 31 Media L. Rep. 2240 (Fla. 2003); State ex rel. Besser v. Ohio State Univ., 89 Ohio St. 3d 396, 403 (Ohio 2000); See Tiberino v. Spokane County, Office of the Prosecuting Attorney, 103 Wn. App. 680 (Wash. App. 2000). 20State ex rel Wilson-Simmons v. Lake County Sheriff's Dep't, 693 N.E.2d 789 (Ohio 1998). 21 Id. at 794. 22 Id. at 793. 47

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office and did not constitute records for purposes of the public records law.23 The court cited a 1992 Ohio Supreme Court decision which held that it is unnecessary for an expression to be in a particular medium for it to be a public record.24 The court also emphasized that to what extent that employee used the document to conduct agency business is highly relevant for determining whether the document is an agency record.25 In 2007, Arizonas Supreme Court held that Emails do not necessarily qualify as public records, finding that when a government agency withholds documents ge nerated, or maintained, on a government-owned computer system on the grounds that the documents are personal, the requester may ask a court to determine whethe r the documents fall within the public records law.26 The agency bears the burden of estab lishing that the records are not public.27 When the question is whether E-mails to, or from, public o fficials are public record s, the Arizona Supreme Court held that a party can ra ise a substantial question by show ing that a government agency withheld documents generated, or maintained, on a government-owned computer on the grounds that those documents are personal or private.28 Once a requester makes this basic showing, the party can ask the court to determine whether th e records possess the r equisite nexus with official duties that is re quired of all public records.29 If the state agency cannot establish that 23 Id. 24 Id. (Citing State ex rel Margolius v. Cleveland, 62 Ohio St. 3d 456 (Ohio 1992)). 25 Id. 26Griffis v. Pinal County, 156 P.3d 418 (Ariz. 2007). 27 Id. 28 Id. 29 Id. See ARIZ. REV. STAT. 41-1350 (2007) defining public records to mean 48

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the documents are not public records, the trial judge can still consider whether privac confidentiality, or the best interests of the state y, disclo luded in the definition of public record ds is a t E30 outweigh the policy which favors sure.31 Many of the states mentioned up until now in this chapter have defined E-mails inclusion in the definition of a public record as contingent on the purpose of the E-mail, where the E-mail is generated or maintained,32 or whether E-mail records are in c s by the records use or relation to official business.33 However, the technological differences between E-mail and traditional public recor factor in any examination of E-mails inclusion as a public record. An argument for the protection of individual privacy often emerges in litigation afte r requestors have asked tha mail records to be released as public records. Notwithstanding stat utory requirements of government agencies using E-mail systems to im plement written policie s that E-mail records may be public records under public record law and may be subject to inspection,34 at least one court opinion says that E-mail records may rema in beyond inclusion in th e definition of public ctivities of the government, or because of the informational and historical value of data contained therein. ental to the interests of the state to permit its contents to be known either to newspaper editors or other citizens. 31 Griffis 156 P.3d 418. 32 Id. 33 Id. 34 TENN. CODE ANN. 10-7-512 (2007). all books, papers, maps, photographs or other documentary materials, regardless of physical form or characteristics, including prints or copies of such items produced or reproduced on film or electronic media made or received by any governmental agency in pursuance of law or in connection with the transaction of public business and preserved or ap propriate for preservation by the ag ency or its legitimate successor as evidence of the organization, functions, policies, decisi ons, procedures, operations or other a30 The Griffis court relied on best interests of the state as re ferred to in the Arizona Supreme Court opinion in Mathews v. Pyle 75 Ariz. 76, 81 (Ariz. 1952), holding that it would be detrim 49

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records by virtue of their purely private content.35 In Brennan v. Giles County Bd. of Education a requester sought to view and insp ect "digital records of Internet activity, including E-mails sent and received, websites visited and transmissions se nt and received and the identity of any and all Internet Service Providers on a public school computer system. t the ed ment workers via a government post office box and stored in a government-owned desk. it 36 The court denied the reques after an in camera review findi ng that private or personal E-mail simply falls outside current definition of public reco rds, since it is not made or received pursuant to law or ordinance and not created or received in connection w ith the official business.37 The court noted that private or personal E-mail is nearly indistinguishable from personal letters deliver to govern 38 When public records were maintained on paper, a request for a personal letter sent or received by a public official, for example, may not have reached litigation because the original could easily have been shredded. The real difference between E-mail and conventional mail39 is that there is a record of the Email sent and received from an ag ency computer that remains long after the E-mail has been deleted. This make s E-mail more challenging than snail mail when comes to disclosure requirements. Conventi onal mail can be shredded, and forever destroyed but E-mail leaves an electronic record even after the sender or receiver deletes the electronic Giles County Bd. of Educ 2005 Tenn. App. LEXIS 503, 14-15 (Tenn. Ct. App. 2005). t 2. 38 Id. 35 Brennan v36 Id. a37 Id. at 12. 39 Conventional mail, or snail mail, is commonly understood and defined by Merriam Webster to mean mail delivered by a postal system, available at http://www.merriam-webster.com/dictionary/snail%20mail 50

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record and any paper co pies of the record.40 That electronically del eted copy may be retrieved from a cache or the recycle bin of a computer or network, of either the sender or the receiver, by simple key stroke se quences or complex add-on programs designed to seek out deleted items and re ns ithin a definition of public records that includes computerized records, that hasnt happe ry, they are silent on the matter of whether E-mail is includ cover them.41 Lastly, 35 states have no direct or indirect reference to E-ma il records in their definitio of public record in the state's pub lic records statutes or case law. In these states, there is no language within the statutes th at includes E-mail records and th ere are no appellate cases that support including E-mail records. Wh ile it is possible that courts in these states could interpret E-mail to fall w ned yet. All of the 50 states fall into one of the three categories, 1) those that specifically state Email shall be considered in the definition of a public record, 2) those that state E-mail may be considered in the definition of a public record, and 3) those that are si lent on the issue. The majority of the states fall into the last catego ed in the definition of public records. The next chapter of this thesis will show how many states have in cluded provisions for requiring options of different deliv ery media for requests for electroni c public records. Much of the significance of having different delivery met hods available in public records law is realized 40 Deleted copies of E-mail can remain in the Trash folder, the recycle bin, or even in a cache file locally or o network where they may have been saved by a secured system backup on a day prior to the users deletion of the file. These are subject to retrieval, undeleting or reco very by use of simple applications or complex recovery n a processes. 41 Digital IronMountain, http://www.ironmountain.com/digital/ (last visited 2/25/08) (one of dozens of companies that sells recovery systems, and software as well as o ffsite management of e-mail for organizations that do not wish to burden their serv ers with E-mail caching and retention; CyberScrub, http://www.cyberscrub.com/products/cybercide/ (last visited 2/25/08) (one of dozens of companies that sells scrubbing or wiping software that is marketed to ensure that all data is removed from a system prior to disposal, sale or return of lease.) 51

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in the introduction of electronic public records. Before electr onic records, there werent many possibilities for receiving copies of public reco rds in different formatsa requester simp expected a photocopy or Xerox copy of the paper record on f ile. Again, while some state appear limited by specific definitions of requireme nts for different delivery formats, others are faced with application of more indefinite state laws. Many cou ly s rts have had to face the pplication of paper-based statutes to electronic records. The ne xt chapter will deal with the states and how they have confronted delivery me dia questions by attempting to apply laws that may or may not specifically ad dress electronic recordkeeping. a 52

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Table 6-1. Electronic mail (E-mail) as public records, table of findings. State Name May Shall Silent Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware D. of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska 53

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Table 6-1 Continued State Name May Shall Silent Nevada New Hampshire New Jersey New Mexico New York N. Carolina N. Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island S. Carolina S. Dakota Tennessee Texas Utah Vermont Virginia Washington W. Virginia Wisconsin Wyoming 54

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55 Silent to E-Mail records E-mail may be included in the definition of a public record E-mail shall be included in the definition of a public record Figure 6-1. Electronic Mail (E-Mail) Documents as Public Records, Graphic

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56 CHAPTER 7 ALTERNATE DELIVERY FORM AT REQUIREMENTS FOR ELECTRONIC RECORDS This chapter of this thesis will examine how states have included provisions requiring alternate delivery formats for electronic public records.1 The format in which a requester is able to receive public records is some times critical to the users pur pose in requesting the records. For example, an individual may request a series of electronic database records from an agency for the purpose of developing sta tistical analysis of so me of the data categories. If the only delivery format available is a printout of the electronic record, then data from any records received will have to be reentere d into the requesters computer be fore the data can be evaluated. Additionally, the requester will likel y be charged per page for the copi es of the records. If a state made available alternate delivery formats, such as copying the data onto compact discs, then there would be no need for expensive printouts and time consuming data reentry. Consequently, whether a state offers alternate delivery form ats for the dissemination of electronic public records can be of utmost importance to a requester. Provisions for alternate delivery formats for public records are often associated with computerized records, more so than redaction or indexing provisions, because computerized records originate in a format other than paper. In early 2008, 41 states addr essed alternate delivery form at requirements generally,2 but only 36 of those states have actually addressed alternate de livery format requirements for 1 For purposes of this paper, alternate delivery formats can include any format other than a paper copy. For example, receiving a public record or set of pub lic records on computer disk, via e-mail, via online access, in the form of a database copied onto a jump drive or portable hard drive. 2 Arkansas, California, Colorado, Connecticut, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texa s, Utah, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming. For citations, see appendix.

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electronic records.3 (See Table 7-1). Of the 36 states with provisions specific to electronic public records, 21 have statutes that define alternate delivery fo rmat requirements for electronic records.4 Each of those 21 states statutes gene rally provides that non-exempted electronic records shall be made available in any existi ng format which is reasonably accessible to the agency that holds the records. For example, the District of Columbias statute directs officials to provide public records in any form or format requested by the person seeking the record.5 This includes making reasonable efforts to search for the records in elec tronic form or format, prescribing also that the requester is responsible for payi ng the costs of reproducing a record in that form or format.6 Also following a reasonable approach is Minn esota. Minnesotas statute provides that any state agency which maintains public record s in a computerized format must provide a requestor with that information in "electroni c form" if the requestor desires to have the information in that format.7 The statute further stat es that the agency is on ly required to provide the public record in electronic form if it can "reasonably make the copy or have a copy made."8 Minnesotas statute does limit the extent of reasonably by stating that an agency is not required 3Arkansas, California, Colorado, Connecticut, District of Columbia, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mi ssouri, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming. For citations, see appendix. 4 California, Colorado, District of Columbia, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Minnesota, North Carolina, North Dakota, Oregon, Pennsy lvania, Rhode Island, Tennessee, Texa s, Vermont, Virginia, West Virginia, and Wyoming. For citations, see appendix. 5 D.C. CODE 2-532 (a) (2007). 6 D.C. CODE 2-532 (a) (2007). 7 MINN. STAT. 13.03, Subd. 3 (e) (2006). 8 Id. 57

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to provide the data in an elec tronic format or program that is different from the format or program in which the data are maintained by the entity.9 Iowas statute, on the other hand, obligates the state when purchasing new equipment, saying that an agency "shall no t acquire any electronic data processing system" that would "impair the government body's ability to permit th e examination of a public record and the copying of a public record in either written or electronic form."10 This section goes on to say that the "electronic public record shall be made av ailable in a format useable with commonly available data processing or database management software."11 Of the 36 states with control ling law specific to electronic public records, eight have appellate case law alone that delineates altern ate delivery format requirements for electronic records.12 In some of these states th e appellate case law is from lower courts with restrictive jurisdiction. In one of the ear lier decisions involving alternate delivery formats for electronic records, a 1973 decision by the New Hampshire Supreme Court held that a request for public record information in electronic form, even when not specifically sanctioned by statute, is in accordance with the spirit of the Ne w Hampshire Public Records laws.13 The court indicated it was clear that providing the information in electronic form was much more efficient for the 9 Id. 10 IOWA CODE 22.3A (2) (2006). 11 Id. 12 See Title Research Corp. v. Rausch, 450 So. 2d 933 (La. 1984); Menge v. City of Manchester, 311 A.2d 116 (N.H. 1973); Hawkins v. N.H. Dept of Health & Human Serv., 147 N.H. 376, 379 (N.H. 2001); Bd. of Educ. of Newark v. New Jersey Dep't of the Treasury, 678 A.2d 660 (N.J. 1996); Brownstone Publishers, Inc. v. New York City Dept. of Buildings, 560 N.Y.S.2d 642 (N.Y. App. Div. 1990); State ex rel Athens County Property Owners Association v. City of Athens, 619 N.E.2d 437 (Ohio Ap p. 1992); Merrill v. Oklahoma Tax Comm'n, 831 P.2d 634 (Okla. 1992); Martin v. Ellisor, 223 S.E.2d 415 (S.C. 1976); and State ex rel Milwaukee Police Ass'n v. Jones, 2000 WI App 146 (Wis. Ct. App. 2000). 13 Menge supra note 12. 58

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requester than the alternative mean s, especially when the time a nd cost of alternative means of production become excessive.14 However, a 2001 decision of the New Hampshire Supreme Court clarified that the law does not require an agency to compile data into a format specifically requested if it is not already available.15 In 1992, the Oklahoma Supreme Court held that an individual may re quest a public record in alternate delivery formats including co mputer-readable formats and microfilm.16 Likewise, a New York appeals court held that the under stat e law, public record information maintained in computer format should be released in computer tape format when requested in that format.17 Of the 36 states with provisions specific to electronic public records, seven have statutes defining alternate delivery format requirements and case law that interp rets those statutes by enhancing alternate delivery formats for electronic records.18 For instance, while New Mexicos statute prescribes that an agency shall permit inspection of computerized records in printed or typed format, while only saying that an agency may allow an individual to make an electronic copy of records in a computer database.19 The 1970 statute was interpreted in 1971, by the New Mexico Supreme Court, to mean that a requester is allowed to make an electronic copy of a public record held on a computer.20 The court refused to recognize that different public records access applies to records simply because 14 Id. 15 Hawkins supra note 12 at 379. 16 Merrill, supra note 12. 17 Brownstone Publishers supra note 12. 18 Arkansas, Connecticut, Florida, Illinois, Michigan, Mi ssouri, and New Mexico. For citations, see appendix. 19 N. M. STAT. 14-3-15.1 (2007). 20 Ortiz v. Jaramillo, 483 P.2d 500 (N.M. 1971). 59

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they are in electronic form.21 The court held that computer tapes were not exempt from copying because they were in that format. In Illinois, the public records statute says that each public body shall furnish upon request a description of the fo rmat in which electronically stored public records may be obtained.22 However, this does not prescribe that multiple formats must be made available. In 1986 the Illinois Supreme Court held that, in cases where the reque sted information exists only in electronic form, an agency is required to wr ite a special computer pr ogram to reproduce it in hard copy.23 Further, in 1990, the Illinois Supreme Court held that a public agency must provide the requested information in the computer tape format requested, if the re quest was properly made and no exemptions apply.24 The remaining five states of the 41 that a ddress alternate delivery format requirements,25 while not specifically addressing computerized records, may be interpreted, by agencies and courts, to apply to electronic publ ic records. For example, Utah s public records statute never mentions electronic records in its provision that concerns alternate deliv ery format saying that a governmental entity is not requ ired to provide a record in a particular format not currently maintained by the governmental entity.26 However the statute does say that upon request, a 21 Id. 22 5 ILL. COMP. STAT. ANN. 140/5 (Sec. 5) (2007). 23 Family Life League v. Dept. of Pubi c Aid, 493 N.E.2d 1054 (Ill. 1986). 24 AFSCME v. Cty of Cook, 555 N.E.2d 361 (Ill. 1990). 25 Hawaii, Mississippi, Nebraska, Nevada, and Utah. For citations, see appendix. 26 UTAH CODE 63-2-201(8) (a) (2007). 60

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governmental entity may provide a record in a particular form if the agency is able to do so without unreasonably interfering with the ag encies duties and res ponsibilities; and the requester agrees to pay the agency for providing the record in the requested form.27 While this section of the statute doesnt specify applicati on to electronic records, the Utah public records definition includes electronic data as a public record.28 So, while a court could find that the format provisions apply to electroni c records, courts in these five states have not said that yet. Only ten states remain silent on requirements for alternate delivery formats of public records in both statutory and appellate case law.29 These states have no direct or indirect reference to redaction requi rements for public records. In summary, therefore, the majority of states have addressed alternate delivery formats for public records, and all but five of those 41 stat es address electronic records, 21 in statutory language, and the other 15 in appellate court decisions. The next chapter of this thesis will show how many states have included provisions requiring redaction of electronic pub lic records. Redaction is si gnificant to the publics use of public records generally because it enables a requ ester to receive records that may have been withheld otherwise because they contained so me exempted information and some non-exempt information. Redaction, however, while a c onvenience for requester s of both paper and electronic records, can be more fr equently litigated when it involve s electronic records. The next chapter will deal with the states and how they have addressed redaction of electronic records. 27UTAH CODE 63-2-201(8) (b) (2007). 28 UTAH CODE 63-2-103 (2007). 29 Alabama, Alaska, Arizona, Delaware, Maine, Ma ryland, Massachusetts, Montana, South Dakota, and Washington. For citations, see appendix. 61

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Table 7-1. Alternate delivery format requirements for electronic records, table of findings. Existing Format/Reasonably Accessible State Name Electronic Records Non-specific Silent Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware D. of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana 62

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Table 7-1 Continued Electronic Records Non-Specific to Electronic Records State Name Existing Format/Reasonably Accessible Existing Format/Reasonably Accessible Silent Nebraska Nevada New Hampshire New Jersey New Mexico New York N. Carolina N. Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island S. Carolina S. Dakota Tennessee Texas Utah Vermont Virginia Washington W. Virginia Wisconsin Wyoming 63

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64 Silent to alternate delivery formats Existing formats/reasonably accessible not specific to electronic records Existing formats/reasonably accessible specific to electronic records Figure 7-1. Alternate Delivery Format Requi rements for Electronic Records, Graphic

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65 CHAPTER 8 REDACTION REQUIREMENTS FOR ELECTRONIC RECORDS This chapter discusses those states that have addressed redaction requirements for electronic records. While redac tion has been a part of public records law generally, with as many as 48 states addressing reda ction in some way in early 2008, not all states have recognized a need to address redaction requirements for el ectronic records specifically. This may be the result of legislators belief that specificity to electronic r ecords is unnecessary if a states definition of public records includ es electronic records, and that all provisions of the public records laws would also apply to electronic records, including re daction requirements. However, this omission may leave agencies and courts face d with application of redaction provisions that werent meant for electronic records. While many courts may interpret statutes written for paper records to apply in circumstances involving electronic records, in ot her courts the absence of redaction provisions specific to electronic records could result in denial of the records redaction and release. This is significant because not all states address electroni c records specifically in their definitions of public records and sometimes the inclusion of electronic records is only accomplished through the general references such as r egardless of physical format. Denials of records requests for electronic records can be based on the premise th at redacting electronic records meant creating new electronic records or custom records,1 because electronic reco rds redaction is done by the technology of cut and paste methods, or el imination of columns or labeled items in a database rather than redacting a paper record with a black Sharpie marker. On the most basic level, the Sharpie method is less like creating a custom or new record than that which occurs 1 See Sargent Sch. Dist. v. Western Servs., 751 P.2d 56 (Colo. 1988).

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when an electronic record is redacted by the highlight-and-cut method. Th e difference is in the method of redaction; a paper file is blacked out and then rel eased, while an electronic file redacted and then saved electronically as a new document, thus creating a new file. Although the information being released is substantially the same, the method by which the record becomes releasable is different and affects whet her the record indeed can be released. In early 2008, 48 states have addressed redaction generally in their statutes,2 but only 26 of those states have actually mentioned redaction requirements sp ecifically involving electronic records.3 (See Table 8-1). Of the 26 states with provisions specific to el ectronic public records, 12 have statutory law that defines redaction requiremen ts for electronic records.4 Each of those 12 states statutes expressly provid es that public records must be redacted of exempted material to permit release of non-exempted information. For example, Floridas public records statute says that a custodian of a public record who asserts that an ex emption applies to a part of a requested record shall redact th at portion of the record to wh ich an exemption applies, and such person shall produce the remainder of such record for inspection and copying.5 In contrast, Montana, for example, states that pe rsons entitled to a copy of records of a public agency in an electronic format or other non-prin t media are subject to the same restrictions applicable to the information in printed form.6 The Montana law states that a public officer may 2 All except Alabama, Nevada and South Dakota. For citations, see appendix. 3 Alaska, Colorado, Connecticut, Florida, Illinois, Indi ana, Iowa, Louisiana, Main e, Massachusetts, Minnesota, Mississippi, Montana, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Rhode Island, Tennessee, Texas, Utah, Virginia, and West Virginia. For citations, see appendix. 4 Alaska, Connecticut, Florida, Indiana, Iowa, Minnesota, Mississippi, Montana, New Mexico, North Dakota, Utah, and Virginia. For citations, see appendix. 5 FLA. STAT. 119.07 (1) (d) (2007). 6 MONT. CODE ANNO., 2-6-110 (1) (a) (2007). 66

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not withhold from public scrutiny any more informati on than is required to protect an individual privacy interest or safety or security interest.7 Montana does prescribe that a public officer may not withhold from public scrutiny any more information than is exempted.8 Indianas public records statute, alternatively, says that if a public record is stored on a computer tape or disks, the public agency ma y not make the record available for inspection without first separating the ex empt and non-exempt materials.9 For the other 14 of the 26 states that have redaction requirements sp ecifically involving electronic records, case law controls reda ction requirements for electronic records.10 In each of these 14 states there is a statutory provision for redaction of public reco rds generally and then appellate decisions specifically s upport inclusion of electronic reco rds. Of those states, 10 have at least one appellate case that expressly provides that otherwis e public electronic records shall 7 MONT. CODE ANN. 2-6-102 (4) (2007). 8 Id. 9 IND. CODE ANN. 5-14-3-6 (b) (2007). 10 See Sargent Sch. Dist. v. Western Servs., 751 P.2d 56 (Colo. 1988); Administrator v. Background Information Services, 994 P.2d 420 (Colo. 1999); Bowie v. Evanston Community Consol. Sch. Dist., 168 Ill. App. 3d 101 (1 Dist. 1988); Hamer v. Lentz, 132 Ill. 2d 49 (Ill 1989); Ill. Educ. Ass'n v. Ill. State Bd. of Educ., 204 Ill. 2d 456 (Ill. 2003); Times Picayune Publ'g Corp. v. Bd. of Supervisors, 845 So. 2d 599 (La.App. 1 Cir. 2003); Sewell v. Benoit, 841 So.2d 24 (La.App. 4 Cir. 2003); Williams Law Firm v. Bd. of Supervisors, 878 So.2d 557 (La. Ct. App. 2004); Blethen Me. Newspapers, Inc. v. State, 2005 ME 56 (Me. 2005); Cyr v. Madawaska Sch. Dep't, 2007 ME 28 (Me. 2007); Antell v. AG, 752 N.E.2d 823 (Mass. Ct. App. 2001); Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (Mass. App. Ct. 2003); Globe Newspaper Co. v. Conte, 13 Mass. L. Rep. 355 (Mass. Super. Ct. 2001); Hawkins v. N.H. Dep't of Health & Human Serv., 147 N.H. 376 (N.H. 2001); Atl. City Convention Ctr. Auth. v. S. Jersey Publ. Co., 135 N.J. 53 (N.J. 1994); Matter of New York State Rifle & Pistol Assn. Inc. v. Kelly, 2006 NY Slip Op 51983U 1 (N.Y. Misc. 2006) State ex rel Beacon Journal Publ. Co. v. Bodiker, 134 Ohio App. 3d 415(Ohio Ct. App. 1999); State ex rel Barth v. Kapla, 1993 Ohio App. LEXIS 2094 (Ohio Ct. App. 1993); State ex rel Robertson v. Haines, 1992 Ohio App. LEXIS 5584 (Ohio Ct. App. 1992); Patrolman X v. Toledo, 132 Ohio App. 3d 381 (Ohio Misc. 1996); In Def. of Animals v. Or. Health Scis. Univ., 199 Ore. App. 160 (Or. Ct. App. 2005); Providence Journal Co. v. Convention Ctr. Auth., 774 A.2d 40 (R.I. 2001); Schneider v. City of Jackson, 226 S.W.3d 332 (Tenn. 2007); Tennessean v. City of Leb., 2004 Tenn. App. LEXIS 99 (Tenn. Ct. App. 2004); Henderson v. City of Chattanooga, 133 S.W.3d 192 (Tenn. Ct. App. 2003); Abbott v. Tex. Dep't of Mental Health & Mental Retardation, 212 S.W.3d 648 (Tex. App. 2006); Farley v. Worley, 215 W.Va. 412 (W. Va. 2004). 67

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be redacted of exempted material to permit re lease of non-exempted public record information.11 The other four states have appellate case law that allow, but do not require redact ion of exempt public record information.12 Within the first group of 14 states, a Texas appeals court held that if an exception to nondisclosure applies to certain heal th related public records then an agency must release the public records under the Texas Open Records Act. Likewi se, even if no exception applies, the agency can release the electronic record s if potentially exempted identif ying information is redacted.13 These exceptions to non-disclosure can arise when public reco rds are requested that may be health related information14 or other records asserted as privileged information, such as attorney-client correspondence.15 In Illinois, for example, a requester sought a letter that had been written by an agency employee to obtain legal advice from the states attorney general.16 The Illinois Supreme Court 11See Bowie 168 Ill. App. 3d 101; Hamer 132 Ill. 2d 49; Ill. Educ. Ass'n 204 Ill. 2d 456; Williams Law Firm 878 So.2d 557; Globe Newspaper Co. v. Conte 13 Mass. L. Rep. 355; Worcester Telegram 58 Mass. App. Ct. 1; Matter of New York State Rifle & Pistol, 2006 NY Slip Op 51983U, 1; Matter of Data Tree, LLC v. Romaine, 2007 NY Slip Op 526 (N.Y. App. Div. 2007); N.Y. Pub. Interest Research Group v. Cohen, 188 Misc. 2d 658 (N.Y. Misc. 2001); State ex rel. Beacon Journal, 134 Ohio App. 3d 415; State ex rel Barth v. Kapla, 1993 Ohio App. LEXIS 2094 (Ohio Ct. App. 1993); State ex rel. Robertson,1992 Ohio App. LEXIS 5584; Patrolman X 132 Ohio App. 3d 381; Providence Journal v. Convention Ctr. Auth ., 774 A.2d 40, 49 (R.I. 2001); Providence Journal Co. v.Pine, 1998 R.I. Super. LEXIS 86 (R.I. Super. Ct. 1998); Schneider 226 S.W.3d 332; Abbott 212 S.W.3d 648; Farley 215 W. Va. 412. 12 See Office of the State Court Admr v. Background Info. Servs., 994 P.2d 420 (Colo. 1999); Cyr 2007 ME 28; Hawkins 147 N.H. at 378; Atl. City Convention Ctr. Auth., 135 N.J. at 70. 13 Abbott, 212 S.W.3d 648. 14 For instance documents that may fall under exemptions of HIPAA. 15Ill. Educ. Ass'n 204 Ill. 2d at 467. The court defined attorney-client privilege in the opinion In defining the attorney-client privilege, it has been stated that: (1) where legal advice of any kind is sought, (2) from a professional legal advisor in his cap acity as such, (3) the comm unications relating to that purpose, (4) made in confidence, (5) by the client, (6) are permanently protected (7) from disclosure by himself or the legal advisor, (8) except the protection be waived. 16 Id. at 468. 68

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held that those facts alone did not establish th at the attorney-client privilege had been met, because the privilege is based on the c onfidential nature of the communication.17 The court held that that a fundamental element to the establishm ent of the privilege is that the communication must be initiated in confidence and with the understanding that it will not be disclosed.18 The court held that records asserted to be attorney -client privileged would need to be examined by the court in camera to determine whether the records originated under those circumstances.19 In another of these states, New York, an a ppeals court found that, despite an agencys position that there was no way to redact all exem pted information from el ectronic public records without writing a new computer program, an ag ency was required to write a new computer program so that the data could be accessed from the computer discs or other electronic means.20 An Oregon appeals court addressed redaction as part of fee estimates given by a state agency, where an individual sought inspection of electronic records held by an agency.21 The court held that because the requested records were in el ectronic form, exempted materials could be electronically deleted or obscured.22 The agency had estimated a $12,000 fee initia lly, basing the estimate on labor, page and postal costs.23 The other four states, of the 14 with general statutory provisions for redaction of public records and case law that specifically includes el ectronic records, have appellate case law that 17 Id. 18 Id. 19 Id. 20 Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454 (N.Y. App. Div. 2007). 21 In Def. of Animals v. Or. Health Scis. Univ., 199 Ore. App. 160 (Or. Ct. App. 2005). 22 Id. 23 Id. 69

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allows, but does not require, reda ction of exempted material fr om electronic public records in order to permit the release of non-exempt public record information.24 An example of the language used in these cases is found in a 2007 decision of the Maine Supreme Court that said those portions of a public record that are deemed confidential may be redacted while also holding that exceptions are to be narrowly construed.25 In 1994, the New Jersey Supreme Court acknow ledged that statutory language of the states Right to Know laws could have had mo re clear guidance for electronic records when the majority opinion said courts would be free to redact portions of electronic records that constituted exempted records.26 In dicta of that case, the court noted that conceptual models of the Right to Know law did not se em readily adaptable to data collecting in this information age and that lawmakers have been consideri ng amendments that would clarify related provisions.27 The court explained that Ne w Jersey courts had recogni zed a narrow but important distinction between the Right-to-K now records and common-law records.28 The records covered under Right-to-Know include records that are r equired by law to be made, maintained or kept.29 The records sought in Atl. City Convention Ctr. Auth. v. S. Jersey Publ. Co. involved electronic recordings of meetings that would be kept only long enough for the agency to generate 24 See Office of the State Court Admr v. Background Info. Servs., 994 P.2d 420 (Colo. 1999); Cyr v. Madawaska Sch. Dep't, 2007 ME 28 (Me. 2007); Hawkins v. N.H. De p't of Health & Human Serv., 147 N.H. 376 (N.H. 2001); Atl. City Convention Ctr. Auth. v. S. Je rsey Publ. Co., 135 N.J. 53 (N.J. 1994). 25 Cyr 2007 ME 28. 26 Atl. City Convention Ctr. Auth., 135 N.J. at 70. 27 Id. 28 Id. at 63. 29 Id. 70

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typed minutes of those meetings.30 The recordings were kept as a convenience, and were not required by law, so the request for the electronic copy of the recordings was subject to the common law right of inspection, including the provision to redact ex empted information prior to release.31 The courts below had not considered an electronic recording as subject to the common law right of inspection, and the New Jersey Supr eme Court said that common law principles for public records generally apply to the analysis of access to these electronic recordings.32 Additionally, the court said that the electronic tapes constitute indisputable evidence of the record of the public event and tend to have a unique value.33 However, the court also specifically said that the nature of electronic information was such that difficult problems can surface in assembling the material for review by a court.34 Unlike the case of paper records, the court said, an index of ma terial on an electronic recording could not easily be produced into a Vaughn Index"35 which could enable a court to easily analyze the essence of the documents and to determine whether they shall be disclosed.36 30 Id. 31 Id. at 64. 32 Id. at 66. 33 Id. at 68. 34 Id. 35 BLACK'S LAW DICTIONARY (8th ed. 2004) defines a Vaughn index as a comprehensive list of all documents that the government wants to shield from disclosure in Free dom of Information Act (FOIA) litigation, each document being accompanied by a statement of justification for nondisclosure. Supported by one or more affidavits, a Vaughn index has three purposes: (1) forcing the government to scrutinize all material withheld; (2) enabling the trial court to fulfill its duty of ruling on the factual basi s of each claimed FOIA exemption; and (3) enabling the adversary system to operate by giving the re quester as much information as possible. 36 Atl. City Convention Ctr. Auth., 135 N.J. at 68 (N.J. 1994). 71

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The court said that clear guida nce of the legislature would ha ve been helpful to courts, which have threaded the needle between requirements that the government generates information for those requesting it or that the gov ernment merely provides access to information that has already been assembled in the form of hard copy.37 The remaining 21 states of the 48 that addres s redaction, while not sp ecifically addressing redaction of computerized records, may yet in terpret, through agencies and courts, general redaction statutes to apply to their electronic public records. This can occur because the states definitions of public records include reference to electronic records, either expressly or by reference such as regardl ess of physical format. For instance, if a state has cl early included electron ic records in the definition of public records, as outlined in Chapter 5, then the provisi on for redaction of records, even if not specific to electronic records, can appl y to electronic records as it would any other public record. However, for example, if a stat e does not include any reference to E-mail records in its definition of public records, then it is unlik ely that provisions for redaction of public records will be easily applied to E-mail records by an agency or a revi ewing court. The most apparent problem is, again, the lack of clear guidance and discretionary application of the existing statutes. The practical application of the law can differ depe nding on the custodians or a courts discretion. Only three states remain silent on redacti on of public records in both statutory and appellate case law. Alabama, Nevada, and South Dakota have no direct or indirect reference to redaction requirements for public records. As a whole, therefore the major ity of states address redaction, and a little over half of the states have addressed electronic record redaction specifically. Of those that address electronic 37 Atl. City Convention Ctr. Auth., 135 N.J. at 68 (N.J. 1994). 72

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record redaction, there are two sub-categories. The first subcategory includes the controlling law that expressly provides that r ecords must be redacted of exempted material to permit release of non-exempt public record information. The second sub-category incl udes the states which have controlling law which permitsbut does not requirethat records must be redacted of exempted material to permit release of non-exempted public record information. The next chapter of this thesis will show how many states have included provisions requiring indexing of available elec tronic public records. Indexing is significant to the publics use of electronic public records because knowing what records ar e available electronically can make seeking records more convenient. Indexing, however, while a tremendous convenience for records requesters, is not as fr equently legislated or litigated as many of the other provisions covered in this thesis. The next chapter will deal with the states and how they have confronted indexing of electronic records. 73

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Table 8-1. Redaction requirements for el ectronic records, table of findings. Electronic Non-Specific State Name Shall May Shall May Silent Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana 74

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Table 8-1 Continued Electronic Non-Specific State Name Shall May Shall May Silent Nebraska Nevada New Hampshire New Jersey New Mexico New York N. Carolina N. Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island S. Carolina S. Dakota Tennessee Texas Utah Vermont Virginia Washington W. Virginia Wisconsin Wyoming 75

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76 Redactionnot specific to electronic records Silent to redaction Redactionmay specific to electronic records Redactionshall specific to electronic records Figure 8-1. Redaction Requirements for Electronic Records, Graphic

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77 CHAPTER 9 INDEXING REQUIREMENTS FOR ELECTRONIC RECORDS This chapter of the thesis will outline which states require indexing of available electronic public records. The ability to electronically search for records is a convenience for most requesters, but this category ha s been less legislated and litig ated than most of the other categories examined in this thesis, and, as a result, less controlling law exists. As of early 2008, only 15 states have addre ssed indexing of public records generally,1 but only seven of those states have addressed indexing requirements sp ecifically involving electronic records.2 (See Table 9-1). All seven states with provisions specific to el ectronic public records have statutes that include indexi ng provisions for electronic records.3 Six of those seven states statutes expressly provide th at indexes must be kept of computerized public records.4 The remaining state, Tennessee, provide s that indexes may be kept el ectronically for computerized public records.5 Arkansas public records law, for example, pres cribes that each state agency, shall make available to the public a list and general desc ription of its records, including computer databases.6 Further, the statute says th at a state agency shall also make available to the public 1 Arkansas, Arizona, California, Colorado, District of Columbia, Florida, Hawaii, Illinois, Kansas, Maryland, New Y appendix. nd Virginia. For citations, see appendix. 7). ork, North Carolina, Tennessee, Virginia, and Washington. For citations, see appendix. 2 Arkansas, Florida, Illinois, Kansas, North Carolina, Tennessee, and Virginia. For citations, see appendix. 3 Arkansas, Florida, Illinois, Kansas, North Carolina, Tennessee, and Virginia. For citations, see4 Arkansas, Florida, Illinois, Kansas, North Carolina, a5TENN. CODE ANN. 10-7-202 (a) (1) (2) (b) (2006 ARK. STAT. ANN. 25-19-108 (a) (1) (2007).

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a list n t of rd in each format.9 Virginias public records law is very similar to the North Carol an index ral scribed in earlier chapters because th e states definitions of public records include reference to electronic records, either expressly or by reference such as regardless of physical format. of the establishe d locations and methods by which th e public may obtain access to the public records.7 North Carolinas public records law provides th at each public agency shall create a index of computer databases created or compiled by the agency. The index must include a lis available data fields, a description of the reco rd, and an indication of how often the data is updated.8 The index must also include a list of any data fields restricted from public access, available formats in which the database can be copied or reproduced, and a fee schedule for copying the reco ina statute, with the same requirements to cr eate the indexes and the elements that must contain.10 The remaining eight states of the 15 that address indexing, while not specifically addressing indexing of electronic records,11 may interpret, through agencies and courts, gene indexing statutes to apply to their electronic public records.12 This can happen for the same reason de 7 ARK. STAT. ANN. 25-19-108 (a) (2) (2007). 8 N. C. STAT. 132-6.1(b) (2007). 9 N. C. STAT. 132-6.1(b) (2007). 10 VA. STAT. 2.2-3704 (J) (2007). 11 For example, ARIZ. REV. STAT. 41-1348 (A) (2007) states that each agency may classify catalog, and index records for convenience when implementing a program for the production or reproduction of records in its custody. Note this definition does not specify electronic records. 12 Arizona, California, Colorado, District of Columb ia, Hawaii, Maryland, New York, and Washington. For citations, see appendix. 78

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The remaining 36 states remain silent on indexi ng of public records in both statutory and appellate case law.13 None of these states have any dire ct or indirect re ference to indexing requirements for public records. In summary, the majority of states have not addressed indexing requirements for electronic public records, with only seven states directly addressing this categor y. Of those seven, six expressly provide that indexes be made available for public records, and the other provides that indexes are required to be maintained, alt hough they are not requir ed to be available electronically.14 As indicated by the last four fi ndings chapters, the states have used a variety of approaches to address each of these categories. While there may be similarities ac ross states in any one category, or among states in multiple categories, these categories must be considered both individually and as a part of the overall scheme of public r ecords access in any one state. The final chapter of this thesis will offer an an alysis of the changes that states have made in four of these categories since the last study done by Bush and Chamberlin in 2000.15 The conclusion will also offer possible implications of the changes in the law, suggested reasons to explain any changes or lack of changes, as well as recommendations for further research. 13 Alabama, Alaska, Connecticut, Delaware, Georgia, Id aho, Indiana, Iowa, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah, Vermont, West Virginia, Wisconsin, and Wyoming. For citations, see appendix. 14 TENN. CODE ANN. 10-7-202 (a) (1) (2) (b) (2007). 15 Michele Bush & Bill Chamberlin, Access to Electronic Records in th e States: How Many Are Computer Friendly?, in ACCESS DENIED: FREEDOM OF INFORMATION IN THE INFORMATION AGE 37 (Charles N. Davis and Sigman Splichal eds., 2000). 79

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Table 9-1. Indexing requirements for el ectronic records, table of findings. Electronic Non-Specific State Name Shall May Shall May Silent Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana 80

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Table 9-1 Continued Electronic Non-Specific State Name Shall May Shall May Silent Nebraska Nevada New Hampshire New Jersey New Mexico New York N. Carolina N. Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island S. Carolina S. Dakota Tennessee Texas Utah Vermont Virginia Washington W. Virginia Wisconsin Wyoming 81

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82 Silent to indexing Indexingnot specific to electronic records Indexingspecific to electronic records Figure 9-1. Indexing Requirements for Electronic Records, Graphic

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83 CHAPTER 10 CONCLUSION Summary The five categories examined in this thesis denote only a handful of the multiple provisions that represent the ability of a requester to access electronic public records. In order to acquire a better knowledge of the controlling law for access in the realm of electronic public records, these categories should be considered in dividually but also as a part of the overall scheme of public records access in any one state. A summary of these research fi ndings cannot be ascertained in simple terms. However, it is apparent in a comparison of these findings to previous research that states have been addressing these categories both with legislation a nd litigation, and that this has resulted in law that would suggest there could be more available electronic reco rds access. The states have addressed the research categories1 examined in this thesis in many different ways. This thesis has examined the states, specifically examini ng the extent of each states recognition of computerized records as public records and its legal requirements to provide public access to those records. To compare any state, in the sense of grading or judging it2 for its access, is beyond this research. However, a simple accounting of the findings wi ll not offer a clear picture; a summary of these findings is something complex and somewh at difficult to get ones mind wrapped around. The results of these research findings can be repr esented as points on a spectrum. If open access 1 What is the state of the law regarding 1) the inclus ion of electronic records or electronic documents in the definition of public records; 2) the inclusion of E-mail in the definition of public records; 3) the requirements to make available alternate delivery medium for dissemination of electronic records; 4) the requirements for redaction of confidential information from an otherwise public electronic record in order to facilitate access and 5) the requirements of indexing of electronic public records? 2 This study makes no attempt to ascertain whether some st ates are better than others or compare them in that sense.

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to electronic public records is one end of the spectrum and complete closure of electronic public records is the other end of the spectrum, then approximately 60-80 percent of states would fall in the middle when the question is whet her or not any one has a ddressed this issue in statutory or appellate case law. One state, Alabama has yet to address any of these research categories.3 South Dakota has only addressed one, the inclusion of computerized records as public records. Two states, Nevada and Delaware, have addressed only two categories. The majority of the states, 41 in all, have addressed three categories. Six st ates have addressed every one of the categories in either state statutory or case law. Those states are Arizona, California, Colorado, Florida, Tennessee and Virginia. However, merely addressing a particular category does not necessarily resu lt in a state offering greater access to electroni c public records. The followi ng hypothetical illustrates this suggestion. For example, state X includes both computer records and E-mail in its definition of public records, and the controlling law also re quires indexing of comput erized public records. This state does not have any requirements for redacting records or making available alternate delivery formats in public records. If an individual in state X seeks from a state agency an Email of a public official, but is unsure of whet her E-mails fall under the public records law, he may request an index of available electronic records from a records custodian. Upon examination of the available index, this requester discovers that E-mails are included in the definition of records open to the public. Th e individual requests the E-mail and upon retrieval 3 What is the state of the law regarding 1) the inclus ion of electronic records or electronic documents in the definition of public records; 2) the inclusion of E-mail in the definition of public records; 3) the requirements to make available alternate delivery medium for dissemination of electronic records; 4) the requirements for redaction of confidential information from an otherwise public electronic record in order to facilitate access and 5) the requirements of indexing of electronic public records? 84

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the custodian discovers that the requested E-mail record contains both ex empt and non-exempted information. Since this state does not have a re daction requirement for el ectronic public records, the requester is told by the agency he is unable to inspect the record. In an adjoining state Y, th e public records law is substant ially similar requirements as state X, but additionally has a redaction requirement. A requeste r, if seeking a similar E-mail record in state Y would have received his re quest after redaction of exempted material was accomplished. In another neighboring state, Z, where E-mail was not included in the definition of public records, a requester seeking a similar E-mail record in state Z, would have been unable to inspect the reco rd, but for a different reason, the fact that E-mail was not categorized as a public record. Consequently, because states may have different requirements, they are not easily compared overall based on what is available by c ontrolling law. Records requests would have to be considered on a case-by-case basis to determine if a state was better or worse for that particular request. A revealing analysis of the current findings may be accomplished best by comparing these 2008 findings to previous findings in the same categories. Comparison of Findings: 2000 to 2008 The article published in 2000 by Michele Bush and Bill Chamberlin identified the state of the law at that time for the 50 stat es and the District of Columbia.4 The data in that publication was organized into ten categories, fo ur of which are re-examined here.5 Additionally, this thesis 4 Michele Bush & Bill Chamberlin, Access to Electronic Records in the Stat es: How Many Are Computer Friendly?, in ACCESS DENIED: FREEDOM OF INFORMATION IN THE INFORMATION AGE 37 (Charles N. Davis and Sigman Splichal eds., 2000). 5 Id. 85

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has included a category for E-mail, something not specifically addressed in the Bush-Chamberlin article. The four categories that this thesis has in common with the Bush and Chamberlin article are as follows:6 1. the inclusion of electronic records or elec tronic documents in the definition of public records; 2. the requirements to make available alternate delivery formats for dissemination of electronic records; 3. the requirements for redaction of confiden tial information from an otherwise public electronic record in order to facilitate access; and 4. the requirement for indexing of electronic public records? These categories were chosen for this thesis b ecause they are those that are most pertinent to todays technology,7 and most essential to providing significant access specifically to electronic records. The choice was also limited by including only categor ies that accomplished these tasks while also being included in the Marion Brechner Citizen Access Project (MBCAP) web site,8 and selection of a manageable few In the following sections, the findings from the 2000 and 2008 for each of these four common ques tions will be compared and contrasted. Inclusion of Electronic Records in the Defi nition of Public Records, a Comparison Findings for the first category, th e inclusion of electronic record s in the definition of public records, have changed measurably since the Bush-Chamberlin publication. In 2000, only 14 states defined public records to specifically include electronically stored data.9 In 2008, this 6 Id. at 39. 7 The inclusion of electronic records and E-mail in a st ates definition of public records are the fundamental questions for electronic records access. Additionally, redaction, indexing and alternate delivery methods all apply whether a requester seeks the record remotely or in person. Beyond that, the other categories were chosen because they assessed the impact of access at a practical level and we re not post-release issues such as fees would have been. Some of the other categories were not included because the nature of the record was so specialized, as in GIS data. Customization was not included because it is a privilege beyond basic access. 8 Marion Brechner Citizen Access Project [hereinafter MBCAP] (March 1, 2008), http://www.citizenaccess.org/ 9 Bush & Chamberlin, supra note 4, at 40. 86

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number had increased to 33 states nationwide, with all but four including this in statutory language. In 2000, 25 states had language that included electronic records in the definition of public records using terminology such as regar dless of physical form or characteristics.10 In 2008, this number had decreased to 17, with the othe r eight states now prescribing definitions to include electronic records more specifically. Al l of these states are controlled by statutory language. In 2000, 12 states had no di rect or indirect re ference that included electronic records in the definition of a public record in the state's stat utes or case law.11 In 2008, only Alabama remained silent, without any dire ct or indirect reference to in cluding electronic records in its definition of public records. As many as 19 states have made the inclusi on of electronic records in the definition of public records more specific and thus more avai lable. This category is one where the most significant change has occurred, and while this doesnt necessarily make electronic public records access more available than previously found, this move to inclusion can be interpreted as a positive direction. Anyone reading the updated laws will have little doubt that computer records are considered to fall under the public records law and it will be easier for persons requesting records to make that argument. Alternate Delivery Format Requirements in Electronic Public Records, a Comparison The second category common to bot h studies is the alternate delivery format category. For purposes of this paper, alternate delivery format s include any format other than a paper copy. For example, receiving a public record or set of publ ic records on computer disk, via E-mail, via online access, in the form of a database copied on to a jump drive or portable hard drive. In 2000, 10 Id. 11 Id. 87

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29 states provided some choice of format for reco rds requesters. Twenty of those states required agencies to offer alternate delivery formats, wh ile nine states made a lternate delivery formats available while not mandating that the formats be provided on request.12 In 2008, 36 states provided choice of format for reco rds requesters, and all of these states generally provide that non-exempted electronic records shall be made available in any existing format which is reasonably accessible to the agency that holds the records. All but eight of these were statutory requirements. The other eight we re provisions of appella te case decisions, three of which were lower appellate court decisions with restrictive jurisdiction. The other five decisions were issued by state supreme courts. In 2000, 17 states were silent as to alte rnate delivery formats,13 and this number has decreased in 2008 to only ten. While the comparison between findings in 2000 and 2008 in this category is not as dramatic a change as the first category comparison results, it does show th at seven states have moved from not addressing alternate delivery fo rmats to permitting accessibility in any existing reasonably accessible format. Add itionally, nine states that form erly provided for, but did not mandate, alternate delivery methods now do. This indicates that 16 states have, to some degree or another, made alternate delivery format s more available for electronic records. Redaction Requirements in Electronic Public Records, a Comparison The third category common to both studies is redaction requirements for electronic public records. In 2000, while many states had redactio n provisions for public records generally, only four states required redacti on of electronic public records.14 In 2008, 26 states address redaction 12 Id. at 48-49. 13 Id. 14 Id. at 45. 88

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of electronic records, 12 of them do so in st atutory language. Significan tly, this category is covered much more by appellate case law than st atutes, which is different than the others.15 Twenty-two of the 26 states mandate that exem pted information be redacted from otherwise public records to permit the non-exempt portion of the record to be released. In 2008, the other four states of those 26 that address redaction of electronic records indicate that a state agency may choose to redact, but they do not require that an agency do so. In 2000, six states did not address redaction generally16 and in 2008 that number has dropped to three. This category is another example of a significa nt shift in states la ws which regulate access to electronic records. A total of 22 stat es have increased access by permitting or requiring redaction of exempted information from electro nic records to permit disclosure of non-exempt information. Formerly, a requester in any one of these states would have been less likely to receive any part of an electronic record which contained exempted information, as there was no controlling law which mentioned el ectronic record redaction. Th is doesnt mean a requester would get the record. This doesnt mean that more might not be redacted than necessary. But it means that there is a specific requirement requesters can point to as a state mandate, perhaps backed with potential punishment s for violations of the law. Indexing Requirements in Electronic Public Records, a Comparison The fourth, and final, category common to both the Bush and Chamberlin study and this thesis is the requirement of inde xing of electronic records. This category has experienced nearly 15 Twenty-six states address redaction of electronic records, 13 of them do so in statutory language. Of those that address redaction in appellate case law, nine statesColor ado, Illinois, Maine, New Hampshire, New Jersey, Rhode Island, Tennessee, and West Virginiaare controlled by stat e supreme court decisions. The others are restrictively controlled in lower appellate court jurisdictions. Those states include Louisiana, Ma ssachusetts, New York, Ohio, Oregon, and Texas. 16 Bush & Chamberlin, supra note 4, at 46. 89

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no change from the 2000 findings.17 In 2000 there were three stat es that addressed indexing of electronic records, and only one state, North Carolina, required indexi ng of all computerized public records.18 At that time Californi a required indexing of the records of only one public office and Texas permitted, but did not mandate indexing of its computerized public records.19 In 2008, there is little difference to report, a lthough all states that address indexing for computerized records do so in statutory langua ge. Only seven states address indexing of electronic records, six of those mandate indexing of public records and one state, Tennessee, makes electronic records indexing available on computers, but mainta ining an index on a computer is not mandatory.20 While that is nearly a 100 percent increase, in 2008, 36 states still do not mention indexing at all and only eight ot her states provide for public records indexing generally without language specific to electronic public records. Indexing of public records is helpful to users of public records, but is a ti me consuming process for agencies and requires regular updating. This could expl ain why some states are relu ctant to require indexing of government agencies and why agencies might not implement indexing into actual practice without a statutory requirement. Analysis of Comparative Findings Many explanations could account for the di fference in findings from 2000 to 2008. Legislation and litigation have resulted in change in access provisions. Some states have 17 Id. at 49-50. 18 Id. at 49. 19 Id. at 50. 20 TENN. CODE ANN. 10-7-201 (2008) makes indexing required for public records, in a book. TENN. CODE ANN. 10-7-202 (2) (b) (2008) requires that computer records be indexed in paper or book form if not maintained on computer. 90

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developed task forces and open government organizations21 that advocate on behalf of requesters and oversee disputes between agen cies and requesters, although a ll of these organizations have not necessarily facilitated legi slative progress toward more openness. Advocacy groups and non-profits with interests in open access have advocated openness to the public and government agencies, and increased awareness for their causes.22 State audits designed to test compliance of custodians in handling records requests have increased awareness of compliance with existing provisions on a state level.23 A few states have state-funded or privately organized FOI hotlines 21 See e.g Alabamas Center for Open Government, California First Amendment Coalition; Connecticut Foundation for Open Government, Connecticuts Freedom of Information Commission, Floridas Office of Open Government, Hawaiis Office of Information Practices, Iowas Office of Citizens' Aide Ombudsman, New Yorks Committee on Open Government, North Carolinas Sunshine Office, Virginia FOI Advisory Council, and Wisconsin Freedom of Information Council. 22See e.g Alaska FOI Coalition, Arizona First Amendment Co alition, Californians Aware, Connecticut Council on Freedom of Information, Floridas Brechner Center for Freedom of Information, Georgia First Amendment Foundation, Open Government Coalition of Hawaii, Idahoans for Openness in Government, Illinois Citizen Advocacy Center, Indiana Coalition for Open Government Idahoans for Openness in Government, Iowa Freedom of Information Council, Kansas Sunshine Coalition for Open Government, Kentucky Citizens for Open Government Kentucky Open Government Project, Louisiana Coalition for Open Government, Maine FOI Coalition, Maryland Foundation for Open Government, Michigan FOI Committee, The Mississippi Center for Freedom of Information, The Missouri Freedom of Information Center, Access Montana, New Jersey Foundation for Open Government, New Mexico Foundation for Open Government, North Carolina Open Government Coalition, Ohio Coalition for Open Government, Ohio Center for Privacy and The First Amendment, FOI Oklahoma, Inc., Open Oregon: FOI Coalition, Pennsylvanias Freedom of Inform ation Council, Pennsylvanias Center for the First Amendment, Rhode Islands Operation Clean Government, Access Rhode Island, South Carolina Press AssociationFOI Committee, South Dakotans for Open Government Vanderbilt Universitys First Amendment Center, Tennessee Coalition for Open Government, Inc., The Fr eedom of Information Foundation of Texas, Utah Foundation for Open Government, Vermont Coalition for Open Government, The Virginia Coalition for Open Government, Washington Coalition fo r Open Government, Washingtons Access Northwest, and Wisconsin Freedom of Information Council. 23 See e.g FOI Arkansas Project, Californias Your Right to Know, Connecticuts 2005 State Audit, Floridas Open Records Audit conducted by the First Amendment Foundation, Georgia's Right to Know: Statewide Audit Report conducted by the Georgia First Amendm ent Foundation, Illinois Statewide Audit, 2004 Indianas Statewide Audit, 2005 Iowa Statewide Audit, 2005 Kentucky Statewide Audit, 2002 Maines First Freedom of Information Audit, Access Maryland, 2004 Ohio statewide audit conducted by the Ohio Coalition for Open Government, Oklahoma Open Records Audit 2000 & 2001, Oregon 2005 Statewide Audit, 2005 Pennsylvania Audit sponsored by the AP, 2003 Rhode Island Survey conducted by Common Cause, 1999 South Carolina Statewide Audit, Virginias The Right and Fight To Know/Freedom Of Information (1998), and a 1999 Wisconsin State Audit. 91

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which permit requesters to seek help and advice re garding public records requests, and some of these organizations are associated with the state attorneys general.24 Most of the movement in the states has occurred through statutory language, based on these research findings. Only the redaction category has appeared to have as more appellate case law than statutory changes.25 Only 33 state provisions, out of all those noted here, were results of state supreme court and lower appellate case holdings The findings, as reported on the char and maps, do not reveal any regional trends The findings, as reported on the maps, also do not indicate that there is any pattern easily discerned for any state to be more accessible. While there is a trend noted in the summary section of this conclusion ts 26 it is a trend only that the states address the categories in some way. The maps reveal to wh at extent a state, or even a region of a state, may require or mandate a cat egory. In that representa tion, there is virtually no pattern to be found even when examin ing a single state against the others. Although the high cost of litigation may prevent some individuals from pursuing a right to access electronic records, there are other individual s and organizations willing to pay the cost of litigation for access. This means that simply l ooking at the number of cases being litigated does not indicate how many requesters have actually b een denied their requests, only how many were willing to litigate for access. It is apparent in the comparison of these two groups of findings, from 2000 and 2008, that changes in data from the last ei ght years have resulted in more states addressing the issues of 24 Arkansas, Kansas Sunshine Hotline, Marylands Open Meetings Compliance Board, 25 Twenty-six states address redactio n of electronic records, 14 of them do so in statutory language. 26 One state, Alabama has yet to address any of these research categories. South Dakota has only addressed one. Two states, Nevada and Delaware, have addressed only two categories. The majority of states, 41 in all, have addressed three categories, and six states have addressed every one of the categories to some extent Arizona, California, Colorado, Florida, Tennessee and Virginia. 92

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access in electronic records. In many cases there are only appellate court rulings that specifically impact only one jurisdiction. The fact that states, or even lower court jurisdictions within states, are recognizing these access concerns as identified by these categories alone,27 and that appellate decisions28 are being made, should be considered an improvement for those who advocate more open public access to public records, even if there is no evidence of change on the ground. Suggestions for Research The findings reported in this thesis can help re searchers better unders tand the changes in electronic public records access laws, in knowing what the curre nt state of the law is, and comparing that with the state of the law from 2000. Suggested future studies include additional studies on the remaining criteria outlined in the Bush and Chamberlin study that were not reexamined here. The completion of this research could create a more comprehensive comparison for this entire group of findings. The information provided in this thesis is of importance to everyday users of electronic re cordsjournalists, commercial us ers and individualsbecause it allows readers to see what the cu rrent state of the law is and how it compares to other states and for some criteria how it compares to the state of the law eight years ago. However, regardless of the current state of the law, the actual practices of the records custodians are just as important to those requesters as well. Le gal research cannot establish the actual practices of records custodi ans; however, qualitative research can and has. A research project done by Michele Bush Kimball in 2003 ex amined the decision-making behaviors of law 27 What is the state of the law regarding 1) the inclus ion of electronic records or electronic documents in the definition of public records; 2) the inclusion of E-mail in the definition of public records; 3) the requirements to make available alternate delivery medium for dissemination of electronic records; 4) the requirements for redaction of confidential information from an otherwise public electronic record in order to facilitate access and 5) the requirements of indexing of electronic public records? 28 As limited as lower appeals court decisions, or as high as state supreme court decisions. 93

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enforcement records custodians, revealing pr actices that differed starkly from the law.29 Factors such as training, subjective interpretation of the law, exemption difficulties, standardization and legal support were all con cerns addressed by Kimball.30 This relates to this data because, for example, although the law in a state or jurisdicti on mandates that a requester have access to an Email record, the interpretation of the law by the custodian receiving the request may prevent the release of the record if he or she interprets a pr ivacy exemption to apply. A similar qualitative companion study of public records custodians practices in electronic records would be a reasonable place to begin answering questions about actual practices. Of specific interest would be resear ch that included custodians inte rpretation of balancing privacy concerns with release of E-mail records, reda ction of electronic public records containing both exempt and non-exempted information, and examina tion of standardization procedures within an office regarding electronic public records ac cesswhether a requesters success depends on which custodian within a particular office handles the request. This could be accomplished either with a research method including in -person visits to public records offices, as Kimball did, or by using solely electronic means, as many agencies now have websites available for public records access. Certainly, with the website-only resear ch the standardization among custodians in a single office would not be as pr oblematic, if the agencys soft ware is programmed to autorespond to requests. Kimballs research, men tioned just above, was accomplished in 2003 by data collected in observations a nd long interviews in 12 county seats in different regions of Floridas law enforcement offices.31 A 50-state study of the practices of state agencies would be 29 Michele Bush Kimball, Law Enforcement Records Custodians Deci sion-Making Behaviors in Response to Floridas Public Records Law, 8 COMM. L. & POLY 313 (2003). 30 Id. at 328-347. 31 Id. at 322, 327. 94

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an immense project. A single state study, or a survey as opposed to a complex examination involving in-depth research of all 50 states, may be more prac tical for an individual to accomplish. Additionally, sunshine projects, or audits, using the resource of the undergraduate journalism students at universities can accomplish snapshots of actual practices. Each student could be assigned to seek a record at a particular public office. The students would each have a list, for example, of what reco rd to request, and in what format, and then report back the results of their requests, includ ing availability of record, success of getting the requested record in the format sought, availability of indexes, availabi lity of redaction, and remo te accessibility. State access organizations, universities, news or ganizations and non-governmental access organizations have completed many of these audits.32 However, only a few of these audits addressed electronic records. The Arkansas audit included only one electronic records component, which involved sending requests to univ ersities for information via E-mail. The rationale for this method was that electroni c mail has become a popular communication tool and there was a concurrent study within the stat e addressing whether the FOI Act needs to be updated to include electronic media, the project team thought this would be a good first test.33 The 2006 Florida audit included requests for E-mail records in an electronic format.34 Many 32 See e.g. FOI Arkansas Project, Californias Your Right to Know, Connecticuts 2005 State Audit, Floridas Open Records Audit conducted by the First Amendment Foundation, Georgia's Right to Know: Statewide Audit Report conducted by the Georgia First Amendm ent Foundation, Illinois Statewide Audit, 2004 Indianas Statewide Audit, 2005 Iowa Statewide Audit, 2005 Kentucky Statewide Audit, 2002 Maines First Freedom of Information Audit, Access Maryland, 2004 Ohio statewide audit conducted by the Ohio Coalition for Open Government, Oklahoma Open Records Audit 2000 & 2001, Oregon 2005 Statewide Audit, 2005 Pennsylvania Audit sponsored by the AP, 2003 Rhode Island Survey conducted by Common Cause, 1999 South Carolina Statewide Audit, Virginias The Right and Fight To Know/Freedom Of Information (1998), and a 1999 Wisconsin State Audit. 33 Project Survey Results, http://www.foiarkansas.com/1010/1010survey.html (last visited Feb. 23, 2008). 34 Access Denied, http://www.fsne. org/sunshine20 06/news/audit/ (last visited Feb. 23, 2008). 95

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agencies audited responded by saying they didn t use E-mail or didnt know how to provide a copy of an E-mail electronically.35 This is in direct cont rast to the Florida statute36 which does not make delivery of electronic public records su bject to the custodians personal knowledge of the E-mail delivery system. Volunteers asked for el ectronic records at 160 agencies. Nearly a third were unable or unwilling to provide them in that format.37 One Indiana survey measured satisfaction of random requesters,38 but did not include any specific electronic indicators, although E-mail records were among those records available through the office.39 A 2001 FOI Oklahoma Inc. survey aske d 57 agencies about the content of database-kept information and what arrangements they have to make in order for the data available to the public, but the surv ey was a direct inquiry in survey form and not an audit typical of most represented he re, though still useful.40 An audit focused specifically on aspects of electronic public records access would be a good start to understanding th e actual practices of custodians of electronic records. An audit, such as this can, as a by-produc t, include responses which direc tly relate to general records requests, including notation of any questions asked by the agency, such as requests by custodians 35 Id. 36Fla. Stat. 119.01(2) (f) (2007) (stating th at each agency that maintains a non-e xempt public record in an electronic recordkeeping system shall provide to any person a copy in the medium requested if the agency maintains the record in that medium). 37 Access Denied, http://www.fsne. org/sunshine20 06/news/audit/ (last visited Feb. 23, 2008). 38 The audit measured satisfaction with the experience of random individuals who had independently requested public record. 39 Yunjuan Luo & Anthony Fargo, Measuring Attitudes About the Indiana Public Access Counselors Office: An Empirical Study NATIONAL FREEDOM OF INFORMATION COALITION, 2008 available at http://nfoic.org/foicenter/audits/ICOG-IU -2008-Survey.pdf. 40 John Perry, Access to Records Easier on Internet NEWSOK.COM, Oct. 11, 2001, http://www.newsok.com/article/766152/?template=news/main. 96

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for identification, and in quiries by custodians as to the purpose of their request. However, specifically undertaking an audit which highlights the significant aspects of electronic records such as delivery format, E-mail and indexing of computerized databases would be a project that has not been widely reported as yet. Lastly, for suggestions for future research, while this thesis did not include research of exemptions from disclosure in public recordsin cluding personal information in otherwise public records, governmental employee data, drivers data and criminal datathese are areas in which research is recommended. Any of these areas ca n be a research project standing alone, for example there are over 700 exemptions in the Florid a public records law. Also, any research into Geographic Information System (GIS) data and it s inclusion in the definition of public records by the states would be a recommended research area. The potential for use of GIS data by private and public entities will only in crease with technological advances.41 Recommendations For Access Improvement Legislators can and should update state laws which would faci litate ease in electronic public records access, because it is in the best inte rests of the state and its self-governing citizens to do so. However, this is not the only r eason, and using this as a sole purpose would significantly limit who might be able to access records.42 Good reasons to improve access to government held electronic public records include accountability to taxpayers, information gathering for news-media and individuals, a nd general public knowledge of the affairs of government. 41 THE U.S. DEPARTMENT OF TRANSPORTATION, FEDERAL HIGHWAY ADMINISTRATION, (March 2, 2008), http://www.environment.fhwa.dot.gov/strmlng/newsletters/nov03nl.asp. 42 If only citizens of a state were th ought to require access, then perhaps a statute might limit those who get access to those who are citizens of that state. 97

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For example, legislators should write public records st atutes that would enable citizens to customize electronic record searches, or allow requesters to choose the delivery format for the records they are seeking. Statutes also should mandate that state agencies maintain indices of the records they have stored elec tronically, so that requesters ma y know what electronic public records are available for access. These are just three of the changes that are recommended here and all have been recommended before by other au thors. Model statutes have been suggested, including provisions which would have improved access for the last decade.43 State statutory reform is necessary to ensure access to public records in the electronic age.44 Scholars who have offered model statutes include Matthew Bunker and others,45 as well as Sandra Davidson-Scott. Their recommendations of statutes which w ould better protect access were made as many as 15 years ago.46 Bunkers article offered 13 recommendations that included promoting public access by recommending that computerized information created or used by government as part of official duties must be available to public access.47 The article recommends that software systems made and used by government are a matter of public record,48 and when new computer systems are installed that systems and software be utilized that enable 43 Matthew Bunker et al., Access to Government-Held Information in the Computer Age: Applying Legal Doctrine to Emerging Technology 20 FLA. ST. U.L. REV. 543 (1993); Sandra Davidson Scott, Suggestions for a Model Statute for Access to Computerized Government Records 2 WM. & MARY BILL RTS J. 29 (1993). 44 See e.g. Matthew Bunker et al., supra note 43; Barbara A. Petersen and Charlie Roberts, Access to Electronic Public Records 22 FLA. ST. U.L. REV. 443 (1994); Joint Legis. Info. Tech. Resource Comm., Electronic Records Access; Problems and Issues 34 (1994); Sandra Sanders, Note: Arizonas Public Records Laws and the Technology Age; Applying Paper La ws to Computer Records 37 ARIZ. L. REV. 931 (1995); Sandra Davidson Scott, supra note 43; Brian G Brooks, Adventures in Cyber-Space: Computer Technology and the Arkansas Freedom of Information Act U. ARK. LITTLE ROCK L. REV. (Spring 1995); Sigman Splichal & Bill Chamberlin, The Fight For Access to Government Records Round Two: Enter the Computer JOURNALISM Q. (1994). 45 Matthew D. Bunker, Sigman L. Splichal, Bill F. Ch amberlin, and Linda M. Perry co-authored the article. 46 Bunker, supra note 43; Davidson Scott, supra note 43. 47 Bunker, supra note 43, at 596. 48 Id. 98

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accessibility,49 as well as recommending that all information in government computers is a public record absent a specific exemption.50 Bunker and the other co-authors51 also recommended giving as much access to electronic records as that found with paper records, a additional availability of computeriz ed records through computer terminals. nd t ized ic records access.54 52 Their recommendations included that governments should ensure records are maintained in a form tha can be accessed through available technology and that indexing a nd redaction of computer records be available53 along with release of computerized information in the form requested when capable of doing so. Bunkers article also recommended governments consider cost benefits of electron Davidson-Scott addressed cost benefits also, which could include lo wer storage costs for electronic records, lower costs for record retrieval and delivery for both agency and requester. Cost benefits can be realized over the long term if public access can be initially built into the software that is used for record storage that would reduce or eliminate employee search time for electronic records. Davidson-Scott also said it wa s important that laws not lag too far behind and must be designed in light of technology, and broad enough to include computerized records and ensure future sharing of records.55 49 Id. at 594. 50 Id. 51 Matthew D. Bunker, Sigman L. Splichal, Bill F. Ch amberlin, and Linda M. Perry co-authored the article. 52 Bunker, supra note 43, at 594. 53 Id. at 595-596. 54 Id. at 595-596 (recommending that the public may only be charged the actual cost of reproducing governmentheld computerized information unless extensive employ ee and computer time is requ ired. Costs of government documents should not be a barrier to access, even when government records are provided by private information providers). 55 Davidson Scott, supra note 43, at 44-45. 99

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Davidson-Scott included 12 recommended provis ions in her model statute which would enable access to computerized information.56 Davidson-Scotts provision s were similar to what Bunker and colleagues recommended, with some re lating to guidance and penalty for custodians includingcreating a definition of public record s broad enough to encompass computer records,57 a presumption that information is open,58 access to information regardless of the purpose sought,59 time limits,60 and guidance or technical help requirements61 for custodians of records. Other elements relating to custodians were to includeinstructions to custodians on proper maintenance and storage of records,62 instructions to custodian s on destruction of records63 and 56 Id. 57 Id. at 45. Specifically first of the 12 elements is A definition of public records which is broad enough to encompass computerized records Conte nt, not form (paper, disc, computer ta pe, etc.) must control whether agency records are open. Id. 58 Id. Specifically second of the 12 elemen ts is A presumption that informati on is open Under this presumption, exceptions (exemptions) which are necessary for privacy should be explicitly stated an narrowly construed. These exemptions should be periodically reviewed, and after a pass age of a specified number of years, private information should become public information. Also, special use of restricted inform ation should be allowed for research purposes (exceptions to exemptions). Id. 59 Id. Specifically fourth of the 12 elem ents is Access to information to all citizens regardless of the purpose for which the information is sought. M eaningful access requires bot h public access to term inals and appropriate instruction on how to use those terminal s. Interactive access, with technological protection of the database is ideal. Id. 60 Id. Specifically eighth of the 12 elements is Time limits for production of records by custodians after a request Specific time limits are needed to guard against sluggish custodians. Id. 61 Id. Specifically ninth of the 12 elements is Guidance and t echnical help for custodians of records A state board or agency to help both state and local officials is necessary to provide cust odians access to expertise in maintenance and access of computer records. The board or agency should also have the duty of keep ing abreast of developments in computer storage and retrieval. Id. 62 Id. Specifically tenth of the 12 elements is Instructions to custodians on proper maintenance and storage of records. It is not enough that guidance and technical help for custodians be available. The state board or agency should promulgate and enforce appropriate regulations, for example, on correct facilities and temperatures in order to protect our legacy of information. Id. 63 Id. Specifically eleventh of the 12 elemen ts is Instructions to custodians on destruction of records. Most paper records cannot be kept forever, in part because paper simply takes too much room to store. On the other hand, premature destruction of paper records without appropriate microfiche, optical, magnetic, or computer backup could result in irretrievably lost information. Id. 100

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sanctions on custodians for failure to fo llow the statutes on access to information.64 Other recommended elements concerned cost,65 redaction,66 choice of format67 for delivery, and access to all information on computer tape.68 Based on these thesis findi ngs 15 years after Bunker and Davidson-Scotts articles, the recommendations of both of these articles ar e still relevant today. Additionally, as indicated in the 2003 Bush Kimball qualitative study, the guidance or technical help requirements, if utilized by custodians, can be a significant benefit to handling requests. According to the Marion Brechner Citizen Access Project (MBCAP) website, the recommendations that go beyond the five categories studied in this thesis are currently part of states law. For instance, th e site rates provisions for Com puter Purchasing Requirements which includes ratings for states requirements that agencies buy computer hardware and/or software that will protect access to public records.69 The project uses 64 Id. at 46. Specifically twelfth of the 12 elements is Sanctions on Custodians for failure to follow the statutes on access to information. Sanctions can be either criminal or civil in nature. They create the necessary teeth in the law. Any requester who has to resort to a suit should be reimbursed for all legal costs and reasonable attorney fees. Id. 65 Id. at 44.. Specifically, fifth of the 12 elements is Cost Containment which requires three provisions: a) Computer records shall cost no more than staff time and co st of duplication, B) Reduction or total waiver of any costs when information is being used to inform the pub lic, and C) In cases where raw public information is released to a private group for compilation of statistics or any other manipulation and the results are then sold to the public for a profit, the raw information should still be available to the public from the government for the costs listed in (a) and (b). Id. 66 Id. Specifically third of the 12 elemen ts is Redaction. Redaction is allowing restricted information to be excised from a record and the remaini ng information to be released instea d of restricting the whole record. Statistical information is a special form of redacted information which should be specifically allowed. Id. 67 Id. at 45. Specifically sixth of the 12 elements is Requesters choice of fo rm of information (tailoring) If a requester wants information in a specific form, and if a co mputer system can produce in formation in that specific form, then the requester should recei ve the information in that form. Id. 68 Id. Specifically seventh of the 12 elements is Access to and retrieval of all information on computer tapes Custodians should have an affirmative duty to ensure that all information is functionally available, including accurate record layout of tapes that lis t the density, blocking and whether the ch aracter format is in, say, ASCII or EBCDIC. Id. 69 MBCAP, supra note 8, at http://citizenaccess.org/ (follow Exp lore Our Categories hyperlink; then follow Computer Purchasing Requirements hyperlink). 101

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legal research to examine individual statutor y provisions regardless of where the provisions are found in a state's statutory compilations. In addition, the project evaluates relevant state appellate court decisions and constitutional prov isions. In some categories, we rate the statutes and constitutions before we have had a chance to rate related cases. We do not calculate a most recent statement of law score until we have revi ewed all aspects of the state laws. We will not use a court decision for a "most recent statement of law" unless the court's jurisdiction covers the entire state.70 The website indicates that eight states have a rating of 5 or 6, which means the states have rated at least somewhat open or mostly open when it comes to current controlling case law regarding Computer Purchasing Requirements.71 Likewise the MBCAP site also rates pr ovisions for Computerized Records Access Protection, a category of states requirements that agencies facil itate access when records are in a computer format.72 The website indicates that seven st ates have a rating of 5 or 6, which means the states have rated at least somewhat open or mostly open when it comes to c controlling case law regarding Computerized Records Access Requirements. urrent 73 The findings of this thesis also indicate that more states74 have taken steps to include computerized records in their definition of public records. Still, more needs to be done to secure access to electronic records and development of a model which coul d regulate access across the states would be a starting point. Part of the problem with access to state electronic public records is the differences in the laws from state to state. While most individuals may live in one state, they may seek 70 Id., at http://citizenaccess.org/ (follow Project hyperlink; then Research Methodology). 71 Id. at http://citizenaccess.org/ (follow Explore Our Categories hyperlink; then follow Computerized Records Access Protection hyperlink). 72 Id. at http://citizenaccess.org/ (follow E xplore Our Categories hyperlink; then follow Computerized Records Access Protection hyperlink). 73 Id. at http://citizenaccess.org/ (follow Explore Our Categories hyperlink; then follow Computerized Records Access Protection hyperlink). 74 Beyond the 10-10-2006 update of the MBCAP website for Computer Documents as Public Records category. 102

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records in other states.75 Individuals who work for the press, or who have moved from another state may seek records from another state. Some uniformity in provisions across the states would likely be helpful to requesters and ag encies alike. This is the eff ect of our federalist system and it is not likely that all states will adopt a si ngle policy, and a single policy will not necessarily create a solution, but a suggested framework can fit in to a system of federalism. Some states appear across the board to be more amenable to access. This is apparent when looking at the ratings offered on the MBCAP website. The project also evaluates, in some categories, state supreme court decisions and constitutional provisions as well.76 This project highlights the importance of access by providing the re search results in a format that is designed to enable someone without a legal background to understand the law, and is also both informational and a source of comparison for lawmakers across the country when considering the future of access within any state. Computer ization of governmental offices is no longer a thing of the future. State legislators have decisions to make about the extent to which they intend to create access to electronic public records thro ugh statutory change. Thos e decisions can either be made at the level of statutory change or the courts can address the issues one by one as cases and issues come up through litig ation. However, cases will only make their way through the courts when citizens bring suit and force the issu e into court. Implementation of more access through statutes is imperative. Nearly every st ate declares how important access is in its public records law, typically in a general declaration of policy or leg islative intent. For example, Arkansas Freedom of Information law begins with a section devoted to le gislative intent which reads 75 Individuals may seek records in other states for many reasons including but not limited to research, personal records from when they previously lived in that st ate, journalists covering stories out of state. 76 MBCAP, supra note 8, at http://citizenaccess.org/ (f ollow About the Project hyperlink). 103

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It is vital in a democratic society that publ ic business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this chapter is adopted, making it possible for them or their representatives to learn and to report fully the activities of their public officials.77 Legislators should take these statements seriously and cons ider providing more access to electronic records throug h new legislation, statutes which can offer requesters, agencies and courts a solid foundation on which to build strong access. 77 A.C.A. 25-19-102 (2008). 104

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2000 Findings of Electronic Records as Public Records 14 12 25 Specific Inclusion of Electronic Records in Definition of Public Records Includes Electronic Records in Definition of Public Records using terms such as "regardless of physical form" Silent A 2008 Findings of Electronic Records as Public Records 17 1 33 Specific Inclusion of Electronic Records in Definition of Public Records Includes Electronic Records in Definition of Public Records using terms such as "regardless of physical form" Silent B 2000 Findings of Requirements for Alternate Delivery Formats of Electronic Records 29 17 5 Alternate Delivery Formats Specific to Electronic Records Alternate Delivery Formats Non-Specific to Electronic Records Silent C 2008 Findings of Requirements for Alternate Delivery Formats of Electronic Records 36 10 Alternate Delivery Formats Specific to Electronic Records Silent D Figure 10-1. Comparative Findings A) 2000 Findings of Electronic Records as Public Records, B) 2008 Findings of Electronic Records as Public Records, C) 2000 Findings of Requirements for Alternate Delivery Fo rmats of Electronic Records and D) 2008 Findings of Requirements for Alternate De livery Formats of Electronic Records 105

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2000 Findings of Requirements for Redaction of Electronic Records 4 6 41 Redaction Provisions Specific to Electronic Records Redaction Provisions Not Specific to Electronic Records Silent E 2008 Findings of Requirementsn for Redaction of Electronic Records 22 3 26 Redaction Provisions Specific to Electronic Records Redaction Provisions Not Specific to Electronic Records Silent F 2000 Findings of Requirements for Indexing of Electronic Records 48 3 Indexing Provisions Specific to Electronic Records Indexing Provisions Not Specific to Electronic Records or Silent G 2008 Findings of Requirements for Indexing of Electronic Records 44 7 Indexing Provisions Specific to Electronic Records Indexing Provisions Not Specific to Electronic Records or Silent H Figure 10-1. Continued. E) 2000 Findings of Requi rements for Redaction of Electronic Records, F) 2008 Findings of Requirements for Red action of Electronic Records, G) 2000 Findings of Requirements for Indexing of Electronic Records and H) 2008 Findings of Requirements for Redaction of Electronic Records 106

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APPENDIX STATUTORY CITATIONS State name Statutory citation Alabama CODE OF ALA. 41-13-1 (2007). Alaska ALASKA STAT. 40.25.220 (2007). Arizona ARIZ. REV. STAT. 41-1350 (2007). Arkansas ARK. CODE ANN. 25-19-103 (2008). California CAL GOVT CODE 6254.9 and 6252 (2007). Colorado C.R.S. 24-72-202 (2006). Connecticut CONN. GEN. STAT. 1-200,1-262 and 1-260 (2) (2007). Delaware 29 DEL. C. 10002 (2007). District of Columbia D.C. CODE 2-502 (2007). Florida FLA. STAT. 119.011 (2007). Georgia CODE OF GA. ANN. 50-18-70 (2007). Hawaii HAW. CODE ANN. 92F-3 (2007). Idaho IDAHO CODE 9-337 (2007). Illinois 5 I.L.C.S. 140/2 (2007). Indiana BURNS IND. CODE ANN. 5-14-3-2 (2007). Iowa IOWA CODE 22.1 AND 22.2 (2006). Kansas K.S.A. 45-217 (2006). Kentucky K.R.S. 61.870 (2007). Louisiana LA. R.S. 44:1 (2006). Maine 1 M.R.S. 402 (2007). Maryland MD. STATE GOVT CODE ANN. 10-611 (2007). Massachusetts MASS. ANN. LAWS CH. 4 7, CL.26 (2007). Michigan M.C.L.S. 15.232 (2008). Minnesota MINN. STAT. 13.02 (2006). Mississippi MISS. CODE ANN. 25-61-3 (2007). Missouri R.S.MO. 610.010 (2007). Montana MONT. CODE ANN., 2-6-101 (2005). Nebraska R.R.S. NEB. 84-712.01 (2007). Nevada NEV. REV. STAT. ANN. 239.005 (2007). New Hampshire. R.S.A. 91-A:4 V (2007). New Jersey N.J. STAT. 47:1A-1.1 (2007). New Mexico N.M. STAT. ANN. 14-2-6 (2007). New York N.Y. PUB. OFF. LAW 86 (2007). N. Carolina N.C. GEN. STAT. 132-1 (2007). N. Dakota N.D. CENT. CODE, 44-04-18 (2007). Ohio OHIO REV. CODE ANN. 149.011 (2007) Oklahoma 51 OKL. STAT. 24A.3 (2007). Oregon O.R.S. 192.410 (2005). Pennsylvania 65 P.S. 66.1 (2007). Rhode Island R.I. GEN. LAWS 38-2-2 (2007). 107

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S. Carolina S.C. CODE ANN. 30-4-20 (2006). S. Dakota S.D. COD. LAWS 1-27-9 (2007). Tennessee TENN. CODE ANN. 10-7-301 (2008). Texas TEX. GOV'T CODE 552.002 (2007). Utah UTAH CODE ANN. 63-2-103 (2007). Vermont 1 V.S.A. 317 (2007). Virginia VA. CODE ANN. 2.2-3701 (2007). Washington REV. CODE WASH. 42.17.020 (2007). W. Virginia W. VA. CODE 29B-1-2 (2007). Wisconsin WIS. STAT. 19.32 (2006). Wyoming WYO. STAT. 16-4-201 (2007). 108

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LIST OF REFERENCES Articles Access Enables Informed Decisi ons; With no public r ecords, public consciousness on important issues would have huge gaps THE FLORIDA TIMES UNION, March 13, 2005, at F-1. Jerry Berman, The Right To Know: Public Access to Electronic Public Information 3 SOFTWARE L.J. 491, 523-24 (1989). Vincent Blasi, The Checking Value in First Amendment Theory AM. B. FOUND. RES. J., 523 (1977). Brian G Brooks, Adventures in Cyber-Space: Computer Technology and the Arkansas Freedom of Information Act U. ARK. LITTLE ROCK L. REV. (Spring 1995). Matthew Bunker et al., Access to Government-Held Informatio n in the Computer Age: Applying Legal Doctrine to Emerging Technology 20 FLA. ST. U.L. REV. 543 (1993). Michele Bush & Bill Chamberlin, Access to Electronic Records in the States: How Many Are Computer Friendly?, in ACCESS DENIED: FREEDOM OF INFORMATION IN THE INFORMATION AGE 37 (Charles N. Davis and Si gman Splichal eds., 2000). Michele Bush Kimball, Law Enforcement Records Custodians Decision-Making Behaviors in Response to Floridas Public Records Law, 8 COMM. L. & POLY 313 (2003). Sandra Davidson Scott, Suggestions for a Model Statute for A ccess to Computerized Government Records, 2 WM. & MARY BILL RTS J. 29 (1993). Paul H. Gates, Jr. & Bill F. Chamberlin, Madison Misinterpreted: Hi storical Presentism Skews Scholarship AM. JOURNALISM 13 (1):38-47 (Winter 1996) Daniel F. Hunter, Electronic Mail and Michigans Public Disclosure Laws: The Argument for Public Access to Governmental Electronic Mail 28 U.MICH. J.L. REFORM 977 (1995). Elliot Jaspin & Mark Sabelman, News Media Access to Computer Records; Updating Information Laws in the Electronic Age, 36 ST. LOUIS U.L. J. 349 (1991). Joint Legis. Info. Tech. Resource Comm., Electronic Records Access; Problems and Issues 34 (1994). Yunjuan Luo & Anthony Fargo, Measuring Attitudes About the Indiana Public Access Counselors Office: An Empirical Study NATIONAL FREEDOM OF INFORMATION COALITION, 2008, http://nfoic.org/foi-center/ audits/ICOG-IU-2008-Survey.pdf. Richard J. Peltz et al, The Arkansas Proposal on Access to Court Records: Upgrading the Common Law with Electronic Freedom of Information Norms, 59 ARK. L. REV. 555 (2006). 109

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John Perry, Access to Records Easier on Internet NEWSOK.COM, Oct. 11, 2001, http://www.newsok.com/article /766152/?template=news/main. Barbara A. Petersen & Charlie Roberts, Access to Electronic Public Records 22 FLA. ST. U.L. REV. 443 (1994). Sandra Sanders, Note: Arizonas Public Records Laws and the Technology Age; Applying Paper Laws to Computer Records 37 ARIZ. L. REV. 931 (1995). Sigman Splichal & Bill Chamberlin, The Fight For Access to Government Records Round Two: Enter the Computer JOURNALISM Q. (1994). Suzanne F. Sturdivant State Government: State Printing and Documents: Provide for Conditions of Disclosure of P ublic Records Received or Main tained by Private Persons or Private Entities Performing Service for Public En tities; Change Provisions Relating to Time and Manner in Which Custodians Must Respond to Re quests for Inspection; Require Custodians to Provide Access to Computer Records by Electr onic Means; Require a Custodian Who Refuses to Provide a Document for Inspection to Make a Bi nding Explanation of th e Reasons the Custodian Denied Access; Impose Criminal Penalties for Failure to Provid e Access to Records and Define Punishment 16 GA. ST. U.L. REV. 262 (Fall 1999). Charles J. Wichmann III, Ridding FOIA of Those Unantici pated Consequences: Repaving a Necessary Road to Freedom 47 DUKE L.J. 1213 (1998). Books BLACK'S LAW DICTIONARY (Bryan Garner ed., Thomson West 2004). THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION (Gryphon 1987) (1927). HAROLD CROSS, THE PEOPLES RIGHT TO KNOW (Columbia University Press 1953). C. THOMAS DIENES, ET AL., NEWSGATHERING AND THE LAW, .04 (Lexis Nexis, 2005). DANIEL N. HOFFMAN, GOVERNMENTAL SECRECY AND THE FOUNDING FATHERS (Greenwood Press 1981). ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF GOVERNMENT (Harper Bros. Publishers 1948). HENRY H. PERRITT JR., LAW AND THE INFORMATION SUPERHIGHWAY (Aspen 1996). Court Cases Abbott v. Tex. Dep't of Mental Health & Ment al Retardation, 212 S.W.3d 648 (Tex. App. 2006). 110

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Administrator v. Background Information Services, 994 P.2d 420 (Colo. 1999). AFSCME v. Cty of Cook, 555 N.E.2d 361 (Ill. 1990). Antell v. AG, 752 NE2d 823 (Mass. Ct. App. 2001). Atl. City Convention Ctr. Auth. v. S. Jersey Publ. Co., 135 N.J. 53 (N.J. 1994). Bd. of Educ. of Newark v. New Jersey De p't of the Treasury, 678 A.2d 660 (N.J. 1996). Beck v. Shelton, 267 Va. 482 (Va. 2004). Blethen Me. Newspapers, Inc. v. State, 2005 ME 56 (Me. 2005). Bowie v. Evanston Community Consol. Sch. Dist., 168 Ill. App. 3d 101 (1 Dist. 1988). Branzburg v. Hayes, 408 U.S. 665 (1972). Brennan v. Giles County Bd. of Educ., 2005 Tenn. App. LEXIS 503 (Tenn. Ct. App. 2005). Brownstone Publishers, Inc. v. New York City Dept. of Buildings, 560 N.Y.S.2d 642 (N.Y. App. Div. 1990). City of Warren v City of Detroit, 261 Mich. App. 165 (Mich. Ct. App. 2004). Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). Cyr v. Madawaska Sch. Dep't, 2007 ME 28 (Me. 2007). Deaton v. Kidd, 932 S.W.2d 804 (Mo. Ct. App. 1996). Family Life League v. Dept. of Pubic Aid, 493 N.E.2d 1054 (Ill. 1986). Farley v. Worley, 215 W.Va. 412 (W. Va. 2004). Farrell v City of Detroit, 209 Mich. App. 7 (Mich. Ct. App. 1995). Globe Newspaper Co. v. Conte, 13 Mass. L. Rep. 355 (Mass. Super. Ct. 2001). Globe Newspaper Co. v. DA for the Mi ddle Dist., 439 Mass. 374 (Mass. 2003). Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). Gwich'in Steering Committee v. State of Alas ka, Office of the Governor, 10 P.3d 572 (Ak. 2000). 111

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Griffis v. Pinal County, 156 P.3d 418 (Ariz. 2007). Grosjean v. American Press Co., 297 U.S. 233 (1936). Hahn v. Univ. of Louisville, 80 S.W.3d 771 (Ky. Ct. App. 2001). Hamer v. Lentz, 132 Ill. 2d 49 (1989). Hawkins v. N.H. Dep't of Health & Human Serv., 147 N.H. 376 (N.H. 2001). Henderson v. City of Chattanooga, 133 S.W.3d 192 (Tenn. Ct. App. 2003). Houchins, Sheriff of the County of Alameda, California v. KQED, 438 U.S. 1 (1977). Ill. Educ. Ass'n v. Ill. State B d. of Educ., 204 Ill. 2d 456 (Ill. 2003). In Def. of Animals v. Or. Health Scis. Univ., 199 Ore. App. 160 (Or. Ct. App. 2005). Jones v. Jackson County Circuit Court, 162 S.W.3d 53 (Mo. Ct. App. 2005). Lafferty v. Martha's Vineyard Comm'n, 17 Mass. L. Rep. 501 (Mass. Super. Ct. 2004). MacKenzie v. Wales Twp., 247 Mich. App. 124 (Mich. Ct. App. 2001). Martin v. Ellisor, 223 S.E.2d 415 (S.C. 1976). Mathews v. Pyle, 75 Ariz. 76 (Ariz. 1952). Matter of Data Tree, LLC v. Roma ine, 9 N.Y.3d 454 (N.Y. App. Div. 2007). Menge v. City of Manchester, 311 A.2d 116 (N.H. 1973). Merrill v. Oklahoma Tax Comm'n, 831 P.2d 634 (Okla. 1992). New York Times Co. v. Unite d States, 403 U.S. 713 (1971). Nixon v. Warner Communicati ons, 435 U.S. 589 (1978). Office of the Governor v. Washi ngton Post Co., 360 Md. 520 (Md. 2000). Office of the State Court Admr v. Bac kground Info. Servs., 994 P.2d 420 (Colo. 1999). Ortiz v. Jaramillo, 483 P.2d 500 (N.M. 1971). Patrolman X v. Toledo, 132 Ohio App. 3d 381 (Ohio Misc. 1996). 112

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Pell v. Procunier, 417 U.S. 817 (1974). Press Enterprise Co. v. Superior Court of Ca l. (Press Enterprise II), 478 U.S. 1 (1986). Press-Enterprise Co. v. Superior Cour t of California, 464 U.S. 501 (1984). Providence Journal Co. v. Conventi on Ctr. Auth., 774 A.2d 40 (R.I. 2001). Richmond Newspapers, Inc. et al., v. Virginia et al., 448 U.S. 555 (1980). Sargent Sch. Dist. v. Western Servs., 751 P.2d 56 (Colo. 1988). Saxbe v. Washington Post Co., 417 U.S. 843 (1974). Schneider v. City of Jackson, 226 S.W.3d 332 (Tenn. 2007). Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). Sewell v. Benoit, 841 So.2d 24 (La.App. 4 Cir. 2003). Springfield Terminal Ry. Co. v. DOT, 2000 ME 126 (Me. 2000). Star Publishing Co. v. Pima County Attorney 's Office, 891 P. 2d 899 (Ariz. Ct. App. 1994). State Ex Rel. Athens County Property Owners Association v. City of Athens, 619 N.E.2d 437 (Ohio App. 1992). State ex rel. Barth v. Kapla, 1993 Ohio App. LEXIS 2094 (Ohio Ct. App. 1993). State ex rel Beacon Journal Publ. Co. v. Bodiker, 134 Ohio App. 3d 415 (Ohio Ct. App. 1999). State ex rel Besser v. Ohio State Univ., 89 Ohio St. 3d 396 (Ohio 2000). State ex rel Margolius v. Cleveland, 62 Ohio St. 3d 456 (Ohio 1992). State ex rel Milwaukee Police Ass'n v. Jones, 2000 WI App 146 (Wis. Ct. App. 2000). State ex rel Robertson v. Haines, 1992 Ohio App. LEXIS 5584 (Ohio Ct. App. 1992). State ex rel Wilson-Simmons v. Lake County Sheriff's Dep't, 693 N.E.2d 789 (Ohio 1998). State v. City of Clearwater, 31 Media L. Rep. 2240 (Fla. 2003). The Tennessean v. City of Leb., 2004 Tenn. App. LEXIS 99 (Tenn. Ct. App. 2004). The Tennessean v. Electric Power Bd., 979 S.W.2d 297 (Tenn. 1998). 113

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Tiberino v. Spokane County, Office of the Pros ecuting Attorney, 103 Wn. App. 680 (Wash. App. 2000). Times Picayune Publ'g Corp. v. Bd. of Supe rvisors, 845 So. 2d 599 (La.App. 1 Cir. 2003). Title Research Corp. v. Rausch, 450 So. 2d 933 (La. 1984). Williams Law Firm v. Bd. of Supervisors, 878 So.2d 557 (La. Ct. App. 2004). Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (Mass. App. Ct. 2003). Zemel v. Rusk, 381 U.S. 1 (1965) Government Codes, Regulations, Reports, Statutes, Constitutional Sources 5 U.S.C. (1996). 5 U.S.C. (2) (1996). 5 U.S.C. (B) (1996). 5 U.S.C. (1996). Access Denied (March 1, 2008), http://www.fsne.org/s unshine2006/news/audit CyberScrub (March 1, 2008), http://www.cyberscrub.com/products/cybercide/ Digital IronMountain (March 1, 2008), http://www.ironmountain.com/digital/ First Amendment Center (March 1, 2008), http://www.firstamendmentcenter. org/biography.aspx?name=cross Marion Brechner Citizen Access Project (March 1, 2008), http://www.citizenaccess.org/ Memory Strategies International (March 1, 2008), http://www.memorystrategies.com. Merriam Webster (March 1, 2008) available at http://www.merriamwebster.com/dictionary/snail%20mail OpenTheGovernment.org (March 1, 2008), http://www.openthegovernment.org/ SearchStorage.com (March 1, 2008), http://searchstorage.t echtarget.com/magazineFeature/0,296894,sid5_gci1258220,00.html. The Reporters Committee for Freedom of the Press (March 1, 2008), http://www.rcfp.org/ 114

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THE U.S. ARMY CORPS OF ENGINEERS, GEOGRAPHIC INFORMATION SYSTEMS (GIS) DEFINITION (2006) (March 1, 2008), http://www.nww.usace.army.mil/gis/definition.htm THE U.S. DEPARTMENT OF TRANSPORTATION, FEDERAL HIGHWAY ADMINISTRATION, (March 2, 2008), http://www.environment.fhwa.dot.gov/strmlng/newsletters/nov03nl.asp State Materials 1 MASS. REV. STAT. 402(3) (2007). 1 M.R.S. 402 (2007). 1 V.S.A. 317 (2007). 5 I.C.L.S. 140/2 (2007). 5 I.C.L.S. 140/5 (Sec. 5) (2007). 29 DEL. C. 10002 (2007). 51 OKL. ST. 24A.3 (2007). 65 P.S. 66.1 (2007). A.C.A. 25-19-102 (2008). A.C.A. 25-19-103 (2007). A.C.A.. 25-19-108 (a) (1) (2007). A.C.A. 25-19-108 (a) (2) (2007). Alabama Center for Open Government (March 1, 2008), http://www.alacog.com/apal5.html ALASKA STAT. 40.25.220 (2007). ARIZ. REV. STAT. 41-1348 (A) (2007). ARIZ. REV. STAT. 41-1350 (2007). ARK. CODE ANN. 25-19-103 (2007). BURNS IND. CODE ANN. 5-14-3-6 (b) (2007). Project Survey Results (March 1, 2008) available at, http://www.foiarkansas.com/1010/1010survey.html 115

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CAL. GOVT CODE 6252(e) (2003). CAL. GOVT CODE 6252(f) (2003). CAL GOVT CODE 6254.9 (2003). CODE OF ALA. 41-13-1 (2007). CODE OF GA. ANN. -18-70 -72 -74 (2007). CODE OF GA. ANN. 50-18-70 (2007). CONN. GEN. STAT. 1-200 (2007). CONN. GEN. STAT. 1-262 (2007). CONN. GEN. STAT. 1-260 (2) (2007). C.R.S. 24-72-202 (2006). C.R.S. 24-72-202 (7) (2006). C.R.S. 24-72-204.5 (2002). D.C. CODE 2-502 (2007). D.C. CODE 2-532 (a) (2007). FLA. STAT. 119.07 (1) (d) (2007). FLA. STAT. 119.011 (2007). FLA. STAT. 119.011 (11) (2007). HAW. CODE ANN. 92F-3 (2007). IDAHO CODE 9-337 (2007). IDAHO CODE 9-337 (13) (15) (2007). IOWA CODE 22.3A (2) (2006). K.R.S. 61.870 (2007). K.S.A. 45-217 (f) (1) (2006). 116

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LA. R.S. 44:1 (2006). MASS. ANN. LAWS Ch.. 4 7, cl.26 (2007). M.C.L.S. 15.232 (e) (2008). M.C.L.S. 15.232 (h) (2008). ME. RULES EVID. 26 (b) (3). MINN. STAT. 13.02 (2006). MINN. STAT. 13.03, Subd. 3 (e) (2006). MISS. CODE ANN. 25-61-3 (2007). MONT. CODE ANN., 2-6-101 (2005). MONT. CODE ANN., 2-6-101 (a) (b) (2005). MONT. CODE ANN., 2-6-102 (4) (2007). MONT. CODE ANN., 2-6-110 (1) (a) (2007). MONT. CODE ANN., 22-1-1103 (2005). N.C. GEN. STAT. 132-1 (2007). N.C. GEN. STAT. 132-6.1 (b) (2007). N.D. CENT. CODE, 44-04-18 (2007). N.J. STAT. 47:1A-1.1 (2007). NEV. REV. STAT. ANN. 239.005 (2007). N.M. STAT. ANN. 14-2-6 (2007). N. M. STAT. ANN. 14-3-15.1 (2007). N.Y. PUB. OFF. LAW 86 (2007). OHIO REV. CODE ANN. 149.011 (2007). OR. REV. STAT. 192.410 (2005). 117

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REV. CODE WASH. 42.17.020 (2007). R.I. GEN. LAWS 38-2-2 (2007). R.I. GEN. LAWS 38-2-2 (4) (i) (2007). R.R.S. NEB. 84-712.01 (2007). R.S.A. 91-A:4 V (2007). R.S. MO. 610.010 (2007). S.C. CODE ANN. 30-4-20 (2006). S.D. CODIFIED LAWS 1-27-9 (2007). TENN. CODE ANN. 10-7-301 (2008). TENN. CODE ANN. 10-7-512 (2007). TENN. CODE ANN. 10-7-202 (a) (1) (2) (b) (2007). TEX. GOV'T CODE 552.002 (2007). UTAH CODE ANN. 63-2-103 (2007). UTAH CODE ANN. 63-2-201(8) (a) (2007). UTAH CODE ANN. 63-2-201(8) (b) (2007). UTAH CODE ANN. -2-103 (2007). VA. CODE ANN. 2.2-3701(2007). VA. CODE ANN. 2.2-3704 (J) (2007). WIS. STAT. 19.32 (2006). W. VA. CODE 29B-1-2 (2007). WYO. STAT. 16-4-201 (2007). 118

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119 BIOGRAPHICAL SKETCH Christa Grammas Carter was a clinical trial coordinator from 1993 to 2005 at Bay Neurological Institute in Panama Ci ty, Florida, before entering the University of Florida. Born in the United Kingdom, she received a Bachelor of Arts degree in communications from the University of West Florida in 2005. Ms. Carter began her master degree studies at the University of Florida College of Journa lism and Communications in August 2005 and entered the Levin College of Law in Fall 2006. She has worked with Dr. Bill Chamberlin with the Marion Brechner Citizen Access Project (MBCAP) while earning her joint degree s, and the research included in this thesis will become part of th e MBCAP website. In May 2008, she will complete her joint Juris Doctor and masters degree in mass communication, focusing on media law. After she completes her joint degree studies, she will begin her career as an attorney.