As Sunshine Week draws to a close, state legislatures are set to review a number of records bills across the nation

As Sunshine Week draws to a close, state legislatures are set to review a number of records bills across the nation

Exemptions, additions, and even stronger records laws are on the horizon

Written by
Edited by JPat Brown

Although the law of the land for federal agencies, the Freedom of Information Act gives states the discretion to set their own rules for public records law. Last month, we reviewed a number of bills set for hearings in this year’s legislative session. With deliberations well underway, policy makers across the country are looking to revise, modify, strengthen, and even weaken the state of state public records law. As we wrap up Sunshine Week 2019, we’ve compiled the ultimate list of transparency bills making the rounds throughout state houses and senates.

Alabama

State Representative Juandalynn Givan (D-Jefferson County) introduced House Bill 36, which would mandate recordings produced by law enforcement are not public record. The bill would also “establish a procedure to determine whether, to whom, and what portions of a recording may be disclosed or a copy released.” Recordings would only be released to the person in the video or recording or a representative of that person.

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Arkansas

A handful of exemptions written into Arkansas bills are currently pending votes from the state’s house and senate. The state’s FOIA can oftentimes be vague to the point where lawmakers aren’t really sure what’s exempt or not. Many of the exemptions noted below are embedded within larger bills or addresses within specific directives. You can read more about these bills on the Arkansas Press Association’s newsletter.

  • House Bill 1178: Changes state procurement laws, but adds specific exemptions for requests from potential bidders.

  • House Bill 1382: Exempts from disclosure confidential records and information concerning state lottery winners.

  • House Bill 1417: Establishes an exemption for confidential informants

  • House Bill 1440: Establishes the Maternal Mortality Committee and exempts them from state FOIA.

  • House Bill 1441: Establishes the Maternal and Perinatal Outcomes Quality Review Committee and exempts them from state FOIA.

  • House Bill 1500: Exempts cybersecurity threat assessments

  • House Bill 1551: Under FOIA, this bill prohibits schools from releasing records of arrest or detention of students.

  • House Bill 1556: This bill exempts investigations of the Alcoholic Beverage Control Board, Alcoholic Beverage Control Division, or Alcoholic Beverage Control Enforcement Division from disclosure under state FOIA.

  • House Bill 1557: The bill creates an exemption to withhold security plans related to Medical Marijuana Facilities in the state.

  • House Bill 1559: As written, this bill would amend the law to exempt division orders or declarations of interest submitted to county assessor’s regarding mineral rights.

  • House Bill 1630: Legislators are aiming to exempt tax records and personal information of active and retired peace officers.

  • Senate Bill 231: This bill expands definition of “public records” in FOIA to include a private entity that spends 20% of its time, resources, and efforts on government functions.

  • Senate Bill 306 Allows lottery winners to remain confidential.

  • Senate Bill 411: This bill exempts the release of investigation and reports related to municipalities being sanctuary city.

  • Senate Bill 464: The bill exempts all information regarding lethal injection procedures and makes release of this information a “Class D” felony.

California

The Golden state is looking to add new exemptions to its public records act.

Assembly Member Laura Friedman (D-Glendale) introduced Assembly Bill 700, which would exempt personal telephone numbers of public university faculty members and records relating to their address, calendars, and appointment logs.

In addition, a new public records proposal has caused mass controversy across California. Senate Bill 615, introduced by [Senator Ben Hueso](https://sd40.senate.ca.gov/, was pulled from consideration this week after widespread outcry against it. The bill would have required that requesters meet with an agency before a lawsuit to sort issues with records requests. In addition, requesters would have had to prove in court that agencies stalled compliance to a request “knowingly, willfully and without substantial justification.”

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Colorado

Law enforcement agencies are under close watch in the centennial state. House Bill 1119, introduced by State Representative James Coleman and Senator Mike Foote unlocks peace officer internal investigation records. However, the bill would allow some information be redacted before released. In addition, records custodians will provide a summary of the file to the requester, which then allows the requester access to the file after the summary has been reviewed. The bill now lies in the Senate.

Connecticut

Contrary to Colorado, Senate Bill 970 allows law enforcement to retain items seized in criminal investigation records, without subjecting them to disclosure the state’s public records law. The bill was introduced by the state’s Judiciary Committee in order to address issues concerning the disclosure of documents seized in criminal investigations.

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Florida

The Sunshine state is home to one of the oldest, and so-called strongest, public records law in the nation. However, there are no concerte deadlines or appeal process in Florida, leaving the only enforcement up to a court of law. Similarly, the state holds narrowly crafted exemptions, which proves tricky depending on what you’re looking for. Below is a compilation of bills with specific carve-outs to records or information in the state. You can read more about each bill and opinions by the Florida First Amendment Foundation.

  • House Bill 203: Transparency advocates oppose this bill as it creates a broad definition of “home address” for purposes of public records exemptions in identifying civilian personnel employed by law enforcement agency, and their family members.

  • House Bill 265: This bill specifies that certain boards and commissions are subject to public meeting requirements. It also revises public meeting notice requirements.

  • House Bill 281: Creates a public record exemption for all information concerning pre-registered voter registration applicants who are 16 or 17 years old.

  • House Bill 327: This bill provides a public record exemption for information related to the security of a public utility’s information technology systems.

  • House Bill 363: This bill creates a record exemption for all petitions for voluntary and involuntary admission for mental health treatment, court orders, and related documents filed in court. However, it allows the release of these records with permission from a court upon showing of good cause.

  • House Bill 407: This bill would amend the state’s sunshine law by not allowing agency’s to file suit against requester as their response to a records request.

  • House Bill 479: Currently, the law requires that an agency acknowledge a request promptly and in good faith. This bill stipulates that a good faith response includes an estimate of the time necessary to complete the request. If the request is not completed within the estimated time, the agency must notify the request of the reasons for the delay and provide a new estimated completion date.

  • House Bill 553: HB 455 prohibits the sale, transfer, or possession of assault weapon or large-capacity ammunition magazines and requires certificates of possession for such weapons or magazines lawfully possessed before July 1, 2019. This bill creates a public record exemption for personal identifying information of those issued a certificate of possession.

  • House Bill 635 :Creates a public record exemption for the home addresses, dates of birth, and telephone numbers of current or former judicial assistants and their families, as well as the names and locations of schools and day care facilities attended by their children and their spouse’s place of employment.

  • House Bill 699: Creates a public record exemption for all personal identifying information in health records collected by Healthy Florida, including a person’s religious beliefs, practices, or affiliation, national origin, ethnicity, or immigration status. Also exempts portions of meetings of the Healthy Florida board at which matters related to litigation, personnel, contracting, and rates are discussed.

  • House Bill 747: Requires the Criminal Justice Information Program to administratively seal criminal history records relating to an arrest of a minor charged with a felony or misdemeanor.

  • House Bill 749 This bill creates a public record exemption for minor’s administratively sealed criminal history records.

  • House Bill 759: This bill provides that certain information related to agency contracts is not confidential or exempt from public records requirements. It also removes and revises numerous provisions relating to exemptions from public records requirements for trade secrets.

  • House Bill 761: This bill creates a records exemption from public record requirements for “trade secrets” held by an agency.

  • House Bill 845: Creates a public record exemption for all information contained in petitions for injunctions against domestic violence, repeat violence, dating violence, sexual violence, stalking, or cyberstalking, including all affidavits, notices of hearings, and temporary injunctions, until the respondent has been served.

  • House Bill 1047: This bill creates the Florida Accountability Office under the Auditor General for the purpose of ensuring accountability and integrity in state and local government and eliminating government fraud, waste, abuse, mismanagement.

  • House Bill 1055: This bill creates a public record exemptions for active examinations and investigations of authorized private rebuilt inspection providers.

  • House Bill 1071: Creates a public record exemption for personal identifying information contained in Point-in-Time Count and Surveys or data in a Homeless Management Information System collected pursuant to federal law.

  • Senate Bill 186: This bill expands an existing exemption from public records requirements for a photograph, video, or audio recording held by an agency which shows the killing of a law enforcement officer to include a photograph, video, or audio recording held by an agency which depicts or records the killing of a victim of mass violence. This bill was filed as a direct response to the Parkland school shooting.

  • Senate Bill 208: SB 206 requires the Agency for Health Care Administration to establish and maintain a Clearinghouse for Compassionate and Palliative Care Plans, including a database accessible by health care providers. This bill creates a public record exemption for personal identifying information contained in such plans held by the Clearinghouse.

  • Senate Bill 236: This bill prohibits the release of the personal identifying information of an alleged victim of sexual harassment or sexual misconduct, or information that could assist an individual in determining the identity of such alleged victim, in any portion of a proceeding conducted by the Commission on Ethics

  • Senate Bill 318: Current law provides a public record exemption for the names of persons reporting child abuse, abandonment, or neglect. This bill expands the exemption to include school instructional personnel, administrators, and educational support employees who report such abuse, abandonment, or neglect within the protection of the exemption.

  • Senate Bill 454: SB 452 creates elder abuse fatality review teams in each judicial circuit. This bill provides an exemption for identifying information of victims of elder abuse contained in records created by an elder abuse fatality review team and stipulates that information obtained by a team that is otherwise confidential or exempt remains protected. Also creates an exemption for those portions of meetings at which such information is discussed.

  • Senate Bill 560: SB 558 creates the “Florida Pain-Capable Unborn Child Protection Act,” prohibiting abortions in certain circumstances and requiring physicians who perform abortions to report certain specified information to the Department of Health. This bill creates a public record exemption for those reports.

  • Senate Bill 786: Creates public record exemptions for all petitions for involuntary examination or treatment, court orders, and related documents, filed with a court. It also allows disclosure under certain, specified conditions, including by court order upon showing of good cause.

  • Senate Bill 836: This bill creates a public record exemption for the names, addresses, and telephone numbers of persons using public shelters during an emergency. Also exempts the names, addresses, and telephone numbers of homeowners and tenants held by an agency for the purpose of providing or receiving damage assessment data following a disaster for one year after the date of the disaster.

  • Senate Bill 1016: SB 1014 creates the Florida Motion Picture Capital Corporation to encourage movie production in Florida by providing financial support for such productions. SB 1016 provides a public record exemption for personal financial records, trade secrets, and proprietary information of those applying for financing, providing definitions and stipulating contracts to which the corporation is a party and financial information related to such contracts is subject to disclosure.

  • Senate Bill 1146: Reenacts the public record exemption amended and narrowed during the 2016 legislative session for photographs, videos, or audio recordings depicting or recording the “killing of a person,” defined as “all acts or events that cause or otherwise relate to the death of any human being, including any related acts or events immediately preceding or subsequent to the acts or events that were the proximate cause of death.” The exemption specifically does not include the killing of those in the care and custody of a state agency.

  • Senate Bill 1176: Creates a public record exemption for information obtained by a property appraiser during an investigation of an exemption claim.

  • Senate Bill 1198: In part, this bill requires charter schools to comply with laws relating to cost accounting, reporting, and budget transparency that currently apply only to public schools.

  • Senate Bill 1458 :Repeals the public record exemption for drafts and requests for drafts of a reapportionment or redistricting plans.

Hawaii

In the Aloha state, Senator Les Ihara introduced Senate Bill 678 SD1, which would extend the state’s sunshine provisions to its legislature. The bill would also require all floor votes, except first readings, be printed on the order of the da before considerations. The bill currently lies in the Senate.

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Kentucky

After public outcry against a threatening bill to open records, House Bill 387 failed to pass the Senate Judiciary Committee. As written, Representative Jason Petrie’s (R-Elkton) bill would have exempted trade secrets from disclosure and amended the state’s records law to include an in-state requester provision. However, transparency advocates in the state rallied against the proposal and shed light on its effects on records law.

A new bill in the state is making its way up to the Senate to regulate new exemptions in the state. HB 0086, authored by Representative Jason Zachary (R-Knoxville), would require all email communication policies be posted on an agency’s website. In a later amendment to the bill, lawmakers modified the language to also require all legislation in House that creates a new public records exception be reviewed by the House Committee for review and recommendation. The bill is now in the Senate, pending review.

Massachussetts

The recent 2016 public records left many loopholes in the states records law. However, lawmakers in the state are looking to fill-in the gaps and close any discrepencies within records law.

Most recently, Representative Antonio Cabral (D- New Bedford) has proposed a new bill that would take a multifaceted approach at strengthening the state’s appeals process in public records matters. H. 2676 would create a new commission to govern the existing records division under the Secretary of State’s office and create a new Division of Public Record Appeals to enhance the appeals process.

Michigan

Legislators in Michigan are considering nine bills that would expand Michigan’s Freedom of Information Act and include the governor and lieutenant governor in the act. It would also create a separate Legislative Open Records Act, or LORA, for the state’s legislature. House Bills 4007 through 4016 highlight specific directives to strengthen records law, including limiting fee requests/mileg.aspx?page=BillStatus&objectname=2019-HB-4013) when agencies are slow to respond. More specifically, House Bills 4007 and 4008 pertain to the governor’s office and House Bills 4009 through 3016 create a new LORA for lawmakers and their offices. Update 3/22/19: The Michigan House of Representative passes bills to extend the state’s FOIA to the legislature. It now lies with the Senate.

Oregon

The Beaver state has a handful of bills seeking to reform the states records law and aid requesters.

House Bill 2353 introduced by Representative Karin Power (D-Milwaukie), would call for agencies to pay requesters in the event that the state’s Attorney General, District Attorney, or court finds that an agency did not respond to a request in a reasonable time, or failed to respond. The bill currently lies in the house.

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Power also sponsored HB 2430, which would make the Public Records Advisory Council a permanent body. Currently the Council is set to dissolve in 2020.

Similarly, House Bill 2431 would require every state agency to submit an annual report on how many records requests were received and how many have yet to be fulfilled over a year. The reports would be sent to the Attorney General’s office, the state’s Public Records Advocate, and the Legislature for review. The HB 2431 was sponsored by Sen. Power, but introduced on behalf of the Public Records Advisory Council, which was created as a result of the state’s 2017 records reforms.

Additionally, Sen. Power introduced House Bill 2345, which would cut records fees in half for any member of the news media, and waive them in full for a request “describing requested records with specificity and only inlcudes records in which there is a public interest.”

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Texas

Policymakers in the Lone Star State are looking to peel the layers of secrecy on government contracts granted by the court ruling Boeing v Paxton. The Bipartisan effort spearheaded by state Senator Kirk Watson (D-Austin) and Representative Giovanni Capriglione (R-Southlake) takes shape in two bills that would require companies doing business with government reveal the total cost for projects. SB 943 and HB 2189 are currently making the rounds through the House and Senate. Update 3/22/19: The Texas House of Representative gave preliminary approval for this bill. A final approval is pending before it is sent over to Senate.

Utah

Legislators in Utah are redefining law enforcement transparency at private institutions. Senate Bill 197 clarifies that police departments, even at private institutions, are subject to the state’s public records law. Senator Curtis Bramble (R- Wasatch) sponsored the bill, which has passed the Senate and now awaits enrollment into law.

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Are there other public records bills we might have missed? Let us know via the form below!


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