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The word 'open' is in the 'Open Records Act' for a reason

Posted: March 1, 2012 - 1:08am

A reporter for the Empire recently made a public records request to the City and Borough of Juneau seeking two different records. The city denied her request for one of the records on three separate grounds. The first two issues are points on which the city and the paper can reasonably differ, though it seems an accommodation could be reached to obtain the records in a way that addresses the city’s concerns.

But those two grounds aren’t why this column was written. Instead, the focus will be on the third reason for denial, one that gives the city, or any government entity in the state a legal basis to deny all kinds of public records requests.

By state law, a records request can be turned down if the requested documents “could reasonably be expected to constitute an unwarranted invasion of the personal privacy of a suspect, defendant, victim, or witness.”

This vaguely worded statute gives government agencies a very broad brush to decline to provide the people of Alaska with their documents, if they somehow can’t find refuge from having to divulge in one of Alaska’s 20 other exceptions that prevent the people from obtaining their documents (the federal Freedom of Information Act, by contrast, has just nine exemptions). Any record sought involving a court case will necessarily mention, and likely discuss, a “suspect, defendant, victim, or witness” to the proceedings. That leaves it to a lone city or state official to decide whether that mention is “an unwarranted invasion of … personal privacy.” Simply making known the name of a defendant in a criminal or civil matter could arguably “constitute an unwarranted invasion” of his or her “personal privacy.” Sure, the law allows for administrative and judicial appeals, but only the most dedicated record seeker with not only time, but also money to contest the decisions of a lone bureaucrat can take advantage of those avenues. Even media organizations, probably the most frequent seekers of the people’s documents, often can’t file every appeal they would like to, for those very same reasons.

Fortunately for Alaskans, courts have taken a dim view of the exceptions in state law, construing them narrowly and breaking close calls in favor of disclosure.

But it shouldn’t have to come to that. Records are presumed to be open and exemptions should be invoked rarely. And, when records are withheld, the government agency should work with the requestor to find ways to provide the bulk of the record without violating legitimate concerns about privacy, through redactions or other methods.

To be sure, the City and Borough of Juneau’s basis for denying the records our reporter sought are based on a disagreement in how the Empire and how the city sees both the letter and spirit of Alaska’s Open Records Act. This isn’t the farce the state concocted when it unreasonably withheld emails from Sarah Palin’s term as governor for nearly two years. There, Alaska denied both its citizens and journalists documents they were clearly entitled to because they were interested in learning about and reporting on the executive background of a vice-presidential candidate. Instead of saying “Sure, we’ll get them for you, just give us a bit,” requestors were faced with a ridiculous request for $15 million to pay for the records, bizarre delays and, finally, the release of the records in two stages in the most inconvenient way possible — making them available only in paper form and only in Juneau. This created a national event here in the capital city for a few days, one Palin backers latched onto as the lamestream media run amok on a fishing expedition, but also one that could have easily been avoided by providing the emails in a timely, convenient fashion that would have saved stress and money for everyone involved, including the state. That the emails revealed little of note only underscores the strangeness of it all, and the lengths a state actor can go to to hide even the most noncontroversial topics of public record simply because he or she believes an item might cause slight embarrassment.

Alaska’s public records belong to its citizens, not the government. While they do sometimes contain sensitive information, and even information that must remain private, they also contain a wealth of data that Alaskans are entitled to know how their government operates. When presented a records request, state and municipal workers should always look to find ways to provide the information, not seek ways to keep it secret.

• Ward is deputy managing editor of the Juneau Empire. The views expressed here are his, and do not necessarily reflect the views of the Empire’s editorial board.

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