Note: This sample legislation is based almost entirely on the Florida Freedom of Information Act, one of the strongest and most comprehensive in the country. To see that actual bill, click here.
The State Freedom of Information Act
AN ACT TO PROVIDE THAT RECORDS FROM A PUBLIC AGENCY BE AVAILABLE FOR INSPECTION
Summary - This bill provides that records from a public agency be available for inspection; mandates that a custodian of public records must honor a request for records; allows the legislature to specifically exempt certain items from inspection, and allows the agency to charge reasonable fees for documents. It does not require the requestor to disclose the reason for the request.
The People of the State of <insert your state here>, represented in the State Legislature, do enact as follows:
Section 1. Short title.
This Act shall be known and may be cited as the State Freedom of Information Act.
Section 2. General state policy on public records.
(A) It is the policy of this state that all state, county, and municipal records shall be open for personal inspection by any person.
(B) The Legislature finds that, given advancements in technology, providing access to public records by remote electronic means is an additional method of access that agencies should strive to provide to the extent feasible. If an agency provides access to public records by remote electronic means, then such access should be provided in the most cost-effective and efficient manner available to the agency providing the information.
(C) The Legislature finds that providing access to public records is a duty of each agency and that automation of public records must not erode the right of access to those records. As each agency increases its use of and dependence on electronic recordkeeping, each agency must ensure reasonable access to records electronically maintained.
(D) Each agency shall establish a program for the disposal of records that do not have sufficient legal, fiscal, administrative, or archival value in accordance with retention schedules established by the records and information management program of <insert appropriate state agency here>.
Section 3. Definitions.
For the purpose of this chapter:
(A) “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.
(B) “Agency” means any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the <insert applicable commissions, offices, etc. for your state; e.g., Commission on Ethics, the Public Service Commission, and the Office of Public Counsel>, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.
(C)
(1) “Criminal intelligence information” means information with respect to an identifiable person or group of persons collected by a criminal justice agency in an effort to anticipate, prevent, or monitor possible criminal activity.
(2) “Criminal investigative information” means information with respect to an identifiable person or group of persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission, including, but not limited to, information derived from laboratory tests, reports of investigators or informants, or any type of surveillance.
(3) “Criminal intelligence information” and “criminal investigative information” shall not include:
(a) The time, date, location, and nature of a reported crime.
(b) The name, sex, age, and address of a person arrested or of the victim of a crime.
(c) The time, date, and location of the incident and of the arrest.
(d) The crime charged.
(e) Documents given or required by law or agency rule to be given to the person arrested, except that the court in a criminal case may order that certain information required by law or agency rule to be given to the person arrested be maintained in a confidential manner until released at trial if it is found that the release of such information would:
(i) Be defamatory to the good name of a victim or witness or would jeopardize the safety of such victim or witness; and
(ii) Impair the ability of a state attorney to locate or prosecute a codefendant.
(f) Information and indictments.
(4) The word “active” shall have the following meaning:
(a) Criminal intelligence information shall be considered “active” as long as it is related to intelligence-gathering conducted with a reasonable, good faith belief that it will lead to detection of ongoing or reasonably anticipated criminal activities.
(b) Criminal investigative information shall be considered “active” as long as it is related to an ongoing investigation which is continuing with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future.
In addition, criminal intelligence and criminal investigative information shall be considered “active” while such information is directly related to pending prosecutions or appeals. The word “active” shall not apply to information in cases which are barred from prosecution under the statute of limitation.
(D) “Criminal justice agency” means any law enforcement agency, court, or prosecutor. The term also includes any other agency charged by law with criminal law enforcement duties, or any agency having custody of criminal intelligence information or criminal investigative information for the purpose of assisting such law enforcement agencies in the conduct of active criminal investigation or prosecution or for the purpose of litigating civil actions under the Racketeer Influenced and Corrupt Organization Act, during the time that such agencies are in possession of criminal intelligence information or criminal investigative information pursuant to their criminal law enforcement duties. The term also includes the <insert your state’s equivalent for the Department of Corrections>.
Section 4. Videotapes and video signals; exemption from chapter.
Any videotape or video signal which, under an agreement with an agency, is produced, made, or received by, or is in the custody of, a federally licensed radio or television station or its agent is exempt from this chapter.
Section 5. Records made public by public fund use.
If public funds are expended by an agency defined in Section 3(B) in payment of dues or membership contributions to any person, corporation, foundation, trust, association, group, or other organization, then all the financial, business, and membership records pertaining to the public agency from which or on whose behalf the payments are made, of the person, corporation, foundation, trust, association, group, or organization to whom such payments are made shall be public records and subject to the provisions of Section 12.
Section 6. Penalty.
A public officer who knowingly violates the provisions of Section 12(A) is subject to suspension and removal or impeachment and, in addition, is guilty of a misdemeanor of the first degree.
Section 7. Custodian designated.
The elected or appointed state, county, or municipal officer charged with the responsibility of maintaining the office having public records, or his or her designee, shall be the custodian thereof.
Section 8. Keeping records in safe places; copying or repairing certified copies.
Insofar as practicable, custodians of vital, permanent, or archival records shall keep them in fireproof and waterproof safes, vaults, or rooms fitted with noncombustible materials and in such arrangement as to be easily accessible for convenient use. All public records should be kept in the buildings in which they are ordinarily used. Record books should be copied or repaired, renovated, or rebound if worn, mutilated, damaged, or difficult to read. Whenever any state, county, or municipal records are in need of repair, restoration, or rebinding, the head of such state agency, department, board, or commission, the board of county commissioners of such county, or the governing body of such municipality may authorize that such records be removed from the building or office in which such records are ordinarily kept for the length of time required to repair, restore, or rebind them. Any public official who causes a record book to be copied shall attest it and certify on oath that it is an accurate copy of the original book. The copy shall then have the force and effect of the original.
Section 9. Destruction of records regulated.
(A) Every public official shall systematically dispose of records no longer needed, subject to the consent of the records and information management program of the <insert appropriate state department>.
(B) Agency orders that comprise final agency action and that must be indexed or listed have continuing legal significance; therefore, notwithstanding any other provision of this chapter, each agency shall permanently maintain records of such orders pursuant to the applicable rules and guidelines of the <insert appropriate state department>.
Section 10. Disposition of records at end of official’s term.
Whoever has the custody of any public records shall, at the expiration of his or her term of office, deliver to his or her successor or, if there be none, to the records and information management program of the <insert appropriate state department> all records, books, writings, letters, and documents kept or received by him or her in the transaction of official business.
Section 11. Demanding custody.
Whoever is entitled to the custody of public records shall demand them from any person having illegal possession of them, who shall forthwith deliver the same to him or her. Any person unlawfully possessing public records shall upon demand of any person and within <10 days> deliver such records to their lawful custodian unless just cause exists for failing to deliver such records.
Section 12. Inspection, examination, and duplication of records; exemptions.
(A)
(1) Every person who has custody of a public record shall permit the record to be inspected and examined by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public record or the custodian’s designee. The custodian shall furnish a copy or a certified copy of the record upon payment of the fee prescribed by law or, if a fee is not prescribed by law, for duplicated copies of not more than 14 inches by 8 1/2 inches, upon payment of not more than <15 cents> per one-sided copy, and for all other copies, upon payment of the actual cost of duplication of the record. An agency may charge no more than an additional <5 cents> for each two-sided duplicated copy. For purposes of this section, duplicated copies shall mean new copies produced by duplicating. The phrase “actual cost of duplication” means the cost of the material and supplies used to duplicate the record, but it does not include the labor cost or overhead cost associated with such duplication. However, the charge for copies of county maps or aerial photographs supplied by county constitutional officers may also include a reasonable charge for the labor and overhead associated with their duplication. Unless otherwise provided by law, the fees to be charged for duplication of public records shall be collected, deposited, and accounted for in the manner prescribed for other operating funds of the agency. An agency may charge up to <$1 per copy> for a certified copy of a public record.
(2) If the nature or volume of public records requested to be inspected, examined, or copied pursuant to this subsection is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or both, the agency may charge, in addition to the actual cost of duplication, a special service charge, which shall be reasonable and shall be based on the cost incurred for such extensive use of information technology resources or the labor cost of the personnel providing the service that is actually incurred by the agency or attributable to the agency for the clerical and supervisory assistance required, or both.
(3) When ballots are produced under this section for inspection or examination, no persons other than the <insert your state’s equivalent for the supervisor of elections> or the supervisor’s employees shall touch the ballots. The <insert your state’s equivalent for the supervisor of elections> shall make a reasonable effort to notify all candidates by telephone or otherwise of the time and place of the inspection or examination. All such candidates, or their representatives, shall be allowed to be present during the inspection or examination.
(B)
(1) A person who has custody of a public record and who asserts that an exemption provided in subsection (C) or in a general or special law applies to a particular public record or part of such record shall delete or excise from the record only that portion of the record with respect to which an exemption has been asserted and validly applies, and such person shall produce the remainder of such record for inspection and examination. If the person who has custody of a public record contends that the record or part of it is exempt from inspection and examination, he or she shall state the basis of the exemption which he or she contends is applicable to the record, including the statutory citation to an exemption created or afforded by statute, and, if requested by the person seeking the right under this subsection to inspect, examine, or copy the record, he or she shall state in writing and with particularity the reasons for the conclusion that the record is exempt.
(2) In any civil action in which an exemption to subsection (A) is asserted, if the exemption is alleged to exist under or by virtue of paragraph (3), paragraph (4), paragraph (5), paragraph (11), paragraph (12), or paragraph (15) of subsection (C), the public record or part thereof in question shall be submitted to the court for an inspection in camera. If an exemption is alleged to exist under or by virtue of paragraph (2) of subsection (C), an inspection in camera will be discretionary with the court. If the court finds that the asserted exemption is not applicable, it shall order the public record or part thereof in question to be immediately produced for inspection, examination, or copying as requested by the person seeking such access.
(3) Even if an assertion is made by the custodian of a public record that a requested record is not a public record subject to public inspection and examination under subsection (A), the requested record shall, nevertheless, not be disposed of for a period of <30 days> after the date on which a written request requesting the right to inspect, examine, or copy the record was served on or otherwise made to the custodian of the record by the person seeking access to the record. If a civil action is instituted within the <30-day> period to enforce the provisions of this section with respect to the requested record, the custodian shall not dispose of the record except by order of a court of competent jurisdiction after notice to all affected parties.
(4) The absence of a civil action instituted for the purpose stated in paragraph (3) will not relieve the custodian of the duty to maintain the record as a public record if the record is in fact a public record subject to public inspection and examination under subsection (A) and will not otherwise excuse or exonerate the custodian from any unauthorized or unlawful disposition of such record.
(C)
(1) Examination questions and answer sheets of examinations administered by a governmental agency for the purpose of licensure, certification, or employment are exempt. A person who has taken such an examination shall have the right to review his or her own completed examination.
(2) Active criminal intelligence information and active criminal investigative information are exempt.
(3) Any information revealing the identity of a confidential informant or a confidential source is exempt.
(4) Any information revealing surveillance techniques or procedures or personnel is exempt. Any comprehensive inventory of state and local law enforcement resources and any comprehensive policies or plans compiled by a criminal justice agency pertaining to the mobilization, deployment, or tactical operations involved in responding to emergencies, as defined, are exempt and unavailable for inspection, except by personnel authorized by a state or local law enforcement agency, <insert appropriate state offices and/or departments; e.g., the office of the Governor, the Department of Legal Affairs, the Department of Law Enforcement, or the Department of Community Affairs> as having an official need for access to the inventory or comprehensive policies or plans.
(5) Any information revealing undercover personnel of any criminal justice agency is exempt.
(6) Any criminal intelligence information or criminal investigative information including the photograph, name, address, or other fact or information which reveals the identity of the victim of the crime of sexual battery as defined; the identity of the victim of a lewd or lascivious offense committed upon or in the presence of a person less than 16 years of age, as defined; or the identity of the victim of the crime of child abuse as defined, and any criminal intelligence information or criminal investigative information or other criminal record, including those portions of court records and court proceedings, which may reveal the identity of a person who is a victim of any sexual offense is exempt.
(7) Any criminal intelligence information or criminal investigative information which reveals the personal assets of the victim of a crime, other than property stolen or destroyed during the commission of the crime, is exempt.
(8) All criminal intelligence and criminal investigative information received by a criminal justice agency prior to <January 1, 1980>, is exempt.
(9)
(a) The home addresses, telephone numbers, social security numbers, and photographs of active or former law enforcement personnel, including correctional and correctional probation officers, personnel of the <insert your state’s equivalent for the Department of Children and Family Services> whose duties include the investigation of abuse, neglect, exploitation, fraud, theft, or other criminal activities, personnel of the <insert your state’s equivalent for the Department of Health> whose duties are to support the investigation of child abuse or neglect, and personnel of the <insert your state’s equivalent for the Department of Revenue> or local governments whose responsibilities include revenue collection and enforcement or child support enforcement; the home addresses, telephone numbers, social security numbers, photographs, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel are exempt from the provisions of subsection (A). The home addresses, telephone numbers, and photographs of firefighters; the home addresses, telephone numbers, photographs, and places of employment of the spouses and children of such firefighters; and the names and locations of schools and day care facilities attended by the children of such firefighters are exempt from subsection (A). The home addresses and telephone numbers of justices of the Supreme Court, district court of appeal judges, circuit court judges, and county court judges; the home addresses, telephone numbers, and places of employment of the spouses and children of justices and judges; and the names and locations of schools and day care facilities attended by the children of justices and judges are exempt from the provisions of subsection (A). The home addresses, telephone numbers, social security numbers, and photographs of current or former state attorneys, assistant state attorneys, statewide prosecutors, or assistant statewide prosecutors; the home addresses, telephone numbers, social security numbers, photographs, and places of employment of the spouses and children of current or former state attorneys, assistant state attorneys, statewide prosecutors, or assistant statewide prosecutors; and the names and locations of schools and day care facilities attended by the children of current or former state attorneys, assistant state attorneys, statewide prosecutors, or assistant statewide prosecutors are exempt. The home addresses and home telephone numbers of county and municipal code inspectors and code enforcement officers are confidential and exempt.
(b) An agency that is the custodian of the personal information specified in subparagraph (a) and that is not the employer of the officer, employee, justice, judge, or other person specified in subparagraph (a) shall maintain the confidentiality of the personal information only if the officer, employee, justice, judge, other person, or employing agency of the designated employee submits a written request for confidentiality to the custodial agency.
(10) Any information provided to an agency of state government or to an agency of a political subdivision of the state for the purpose of forming ridesharing arrangements, which information reveals the identity of an individual who has provided his or her name for ridesharing is exempt.
(11) Any information revealing the substance of a confession of a person arrested is exempt until such time as the criminal case is finally determined by adjudication, dismissal, or other final disposition.
(12)
(a) A public record which was prepared by an agency attorney (including an attorney employed or retained by the agency or employed or retained by another public officer or agency to protect or represent the interests of the agency having custody of the record) or prepared at the attorney’s express direction, which reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and which was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or which was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings, is exempt until the conclusion of the litigation or adversarial administrative proceedings. For purposes of capital collateral litigation, the Attorney General’s office is entitled to claim this exemption for those public records prepared for direct appeal as well as for all capital collateral litigation after direct appeal until execution of sentence or imposition of a life sentence.
(b) This exemption is not waived by the release of such public record to another public employee or officer of the same agency or any person consulted by the agency attorney. When asserting the right to withhold a public record pursuant to this paragraph, the agency shall identify the potential parties to any such criminal or civil litigation or adversarial administrative proceedings. If a court finds that the document or other record has been improperly withheld under this paragraph, the party seeking access to such document or record shall be awarded reasonable attorney’s fees and costs in addition to any other remedy ordered by the court.
(13) Sealed bids or proposals received by an agency pursuant to invitations to bid or requests for proposals are exempt until such time as the agency provides notice of a decision or intended decision or within <10 days> after bid or proposal opening, whichever is earlier.
(14) When an agency of the executive branch of state government seeks to acquire real property by purchase or through the exercise of the power of eminent domain all appraisals, other reports relating to value, offers, and counteroffers must be in writing and are exempt until execution of a valid option contract or a written offer to sell that has been conditionally accepted by the agency, at which time the exemption shall expire. The agency shall not finally accept the offer for a period of <30 days> in order to allow public review of the transaction. The agency may give conditional acceptance to any option or offer subject only to final acceptance by the agency after the <30-day> review period. If a valid option contract is not executed, or if a written offer to sell is not conditionally accepted by the agency, then the exemption from the provisions of this chapter shall expire at the conclusion of the condemnation litigation of the subject property. An agency of the executive branch may exempt title information, including names and addresses of property owners whose property is subject to acquisition by purchase or through the exercise of the power of eminent domain, to the same extent as appraisals, other reports relating to value, offers, and counteroffers. For the purpose of this paragraph, “option contract” means an agreement of an agency of the executive branch of state government to purchase real property subject to final agency approval. This paragraph shall have no application to other exemptions from the provisions of subsection (A) which are contained in other provisions of law and shall not be construed to be an express or implied repeal thereof.
(15) Data processing software obtained by an agency under a licensing agreement which prohibits its disclosure and which software is a trade secret, and agency-produced data processing software-produced software as sensitive shall not prohibit an agency head from sharing or exchanging such software with another public agency. As used in this paragraph:
(a) “Data processing software” means <insert definition here>.
(b) “Sensitive” means only those portions of data processing software, including the specifications and documentation, used to:
(i) Collect, process, store, and retrieve information which is exempt from the provisions of subsection (A);
(ii) Collect, process, store, and retrieve financial management information of the agency, such as payroll and accounting records; or
(iii) Control and direct access authorizations and security measures for automated systems.
(16) All complaints and other records in the custody of any unit of local government which relate to a complaint of discrimination relating to race, color, religion, sex, national origin, age, handicap, marital status, sale or rental of housing, the provision of brokerage services, or the financing of housing are exempt until a finding is made relating to probable cause, the investigation of the complaint becomes inactive, or the complaint or other record is made part of the official record of any hearing or court proceeding. Any state or federal agency which is authorized to have access to such complaints or records by any provision of law shall be granted such access in the furtherance of such agency’s statutory duties, notwithstanding the provisions of this section. This paragraph shall not be construed to modify or repeal any special or local act.
(17) All complaints and other records in the custody of any agency in the executive branch of state government which relate to a complaint of discrimination relating to race, color, religion, sex, national origin, age, handicap, or marital status in connection with hiring practices, position classifications, salary, benefits, discipline, discharge, employee performance, evaluation, or other related activities are exempt until a finding is made relating to probable cause, the investigation of the complaint becomes inactive, or the complaint or other record is made part of the official record of any hearing or court proceeding. Any state or federal agency which is authorized to have access to such complaints or records by any provision of law shall be granted such access in the furtherance of such agency’s statutory duties, notwithstanding the provisions of this section.
(18) All records supplied by a telecommunications company to a state or local governmental agency which contain the name, address, and telephone number of subscribers are confidential and exempt.
(19)
(a) Any document that reveals the identity, home or employment telephone number, home or employment address, or personal assets of the victim of a crime and identifies that person as the victim of a crime, which document is received by any agency that regularly receives information from or concerning the victims of crime, is exempt. Any information not otherwise held confidential or exempt which reveals the home or employment telephone number, home or employment address, or personal assets of a person who has been the victim of sexual battery, aggravated child abuse, aggravated stalking, harassment, aggravated battery, or domestic violence is exempt upon written request by the victim, which must include official verification that an applicable crime has occurred. Such information shall cease to be exempt <5 years> after the receipt of the written request. Any state or federal agency that is authorized to have access to such documents by any provision of law shall be granted such access in the furtherance of such agency’s statutory duties, notwithstanding the provisions of this section.
(b) Any information in a videotaped statement of a minor who is alleged to be or who is a victim of sexual battery, lewd acts, or other sexual misconduct which reveals that minor’s identity, including, but not limited to, the minor’s face; the minor’s home, school, church, or employment telephone number; the minor’s home, school, church, or employment address; the name of the minor’s school, church, or place of employment; or the personal assets of the minor; and which identifies that minor as the victim of a crime described in this subparagraph, is confidential and exempt. Any governmental agency that is authorized to have access to such statements by any provision of law shall be granted such access in the furtherance of the agency’s statutory duties, notwithstanding the provisions of this section.
(c) A public employee or officer who has access to the videotaped statement of a minor who is alleged to be or who is a victim of sexual battery, lewd acts, or other sexual misconduct may not willfully and knowingly disclose videotaped information that reveals that minor’s identity to a person who is not assisting in the investigation or prosecution of the alleged offense or to any person other than the defendant, the defendant’s attorney, or a person specified in an order entered by the court having jurisdiction of the alleged offense.
(d) A person who violates subparagraph (c) commits a misdemeanor of the first degree.
(20) Any financial statement which an agency requires a prospective bidder to submit in order to prequalify for bidding or for responding to a proposal for a road or any other public works project is exempt.
(21) Where the alleged victim chooses not to file a complaint and requests that records of the complaint remain confidential, all records relating to an allegation of employment discrimination are confidential and exempt.
(22) Medical information pertaining to a prospective, current, or former officer or employee of an agency which, if disclosed, would identify that officer or employee is exempt. However, such information may be disclosed if the person to whom the information pertains or the person’s legal representative provides written permission or pursuant to court order.
(23)
(a) If certified pursuant to subparagraph (b), an investigatory record of the employee designated by an agency head as the agency inspector is exempt until the investigation ceases to be active, or a report detailing the investigation is provided to the Governor or the agency head, or <60 days> from the inception of the investigation for which the record was made or received, whichever first occurs. Investigatory records are those records which are related to the investigation of an alleged, specific act or omission or other wrongdoing, with respect to an identifiable person or group of persons, based on information compiled by the <insert your state’s equivalent for the Chief Inspector General> or by an agency inspector general, in the course of an investigation. An investigation is active if it is continuing with a reasonable, good faith anticipation of resolution and with reasonable dispatch.
(b) The Governor, in the case of the <insert your state’s equivalent for the Chief Inspector General>, or agency head, in the case of an employee designated as the agency inspector general, may certify such investigatory records require an exemption to protect the integrity of the investigation or avoid unwarranted damage to an individual’s good name or reputation. The certification shall specify the nature and purpose of the investigation and shall be kept with the exempt records and made public when the records are made public.
(c) The provisions of this paragraph do not apply to whistle-blower investigations.
(24) The social security numbers of all current and former agency employees which numbers are contained in agency employment records are exempt.
(25) The audit report of an internal auditor prepared for or on behalf of a unit of local government becomes a public record when the audit becomes final. As used in this paragraph, “unit of local government” means a county, municipality, special district, local agency, authority, consolidated city-county government, or any other local governmental body or public body corporate or politic authorized or created by general or special law. An audit becomes final when the audit report is presented to the unit of local government. Audit work papers and notes related to such audit report are confidential and exempt until the audit is completed and the audit report becomes final.
(26) Bank account numbers or debit, charge, or credit card numbers given to an agency for the purpose of payment of any fee or debt owing are confidential and exempt. However, such numbers may be used by an agency, as needed, in any administrative or judicial proceeding, provided such numbers are kept confidential and exempt, unless otherwise ordered by the court.
(27) Any data, record, or document used directly or solely by a municipally-owned utility to prepare and submit a bid relative to the sale, distribution, or use of any service, commodity, or tangible personal property to any customer or prospective customer shall be exempt. This exemption commences when a municipal utility identifies in writing a specific bid to which it intends to respond. This exemption no longer applies when the contract for sale, distribution, or use of the service, commodity, or tangible personal property is executed, a decision is made not to execute such contract, or the project is no longer under active consideration. The exemption in this paragraph includes the bid documents actually furnished in response to the request for bids. However, the exemption for the bid documents submitted no longer applies after the bids are opened by the customer or prospective customer.
(28) Upon a request made in a form designated by the <insert your state’s equivalent for Department of Highway Safety and Motor Vehicles>, personal information contained in a motor vehicle record that identifies the requester is exempt except as provided in this paragraph. Personal information includes, but is not limited to, the requester’s social security number, driver identification number, name, address, telephone number, and medical or disability information. For purposes of this paragraph, personal information does not include information relating to vehicular crashes, driving violations, and driver’s status. Such request may be made only by the person who is the subject of the motor vehicle record. For purposes of this paragraph, “motor vehicle record” means any record that pertains to a motor vehicle operator’s permit, motor vehicle title, motor vehicle registration, or identification card issued by the <insert your state’s equivalent for Department of Highway Safety and Motor Vehicles>. Personal information contained in motor vehicle records exempted by an individual’s request pursuant to this paragraph shall be released by the department for any of the following uses:
(a) For use in connection with matters of motor vehicle or driver safety and theft; motor vehicle emissions; motor vehicle product alterations, recalls, or advisories; performance monitoring of motor vehicles and dealers by motor vehicle manufacturers; and removal of non-owner records from the original owner records of motor vehicle manufacturers, to carry out the purposes of the Automobile Information Disclosure Act, the Motor Vehicle Information and Cost Saving Act, the National Traffic and Motor Vehicle Safety Act of 1966, the Anti-Car Theft Act of 1992, and the Clean Air Act.
(b) For use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of a federal, state, or local agency in carrying out its functions.
(c) For use in connection with matters of motor vehicle or driver safety and theft; motor vehicle emissions; motor vehicle product alterations, recalls, or advisories; performance monitoring of motor vehicles, motor vehicle parts, and dealers; motor vehicle market research activities, including survey research; and removal of non-owner records from the original owner records of motor vehicle manufacturers.
(d) For use in the normal course of business by a legitimate business or its agents, employees, or contractors, but only:
(i) To verify the accuracy of personal information submitted by the individual to the business or its agents, employees, or contractors; and
(ii) If such information as so submitted is not correct or is no longer correct, to obtain the correct information, but only for the purposes of preventing fraud by, pursuing legal remedies against, or recovering on a debt or security interest against, the individual.
(e) For use in connection with any civil, criminal, administrative, or arbitral proceeding in any court or agency or before any self-regulatory body for:
(i) Service of process by any certified process server, special process server, or other person authorized to serve process in this state.
(ii) Investigation in anticipation of litigation by an attorney licensed to practice law in this state or the agent of the attorney.
(iii) Investigation by any person in connection with any filed proceeding.
(iv) Execution or enforcement of judgments and orders.
(v) Compliance with an order of any court.
(f) For use in research activities and for use in producing statistical reports, so long as the personal information is not published, redisclosed, or used to contact individuals.
(g) For use by any insurer or insurance support organization, or by a self-insured entity, or its agents, employees, or contractors, in connection with claims investigation activities, anti-fraud activities, rating or underwriting.
(h) For use in providing notice to the owners of towed or impounded vehicles.
(i) For use by any licensed private investigative agency or licensed security service for any purpose permitted under this paragraph. Personal information obtained based on an exempt driver’s record may not be provided to a client who cannot demonstrate a need based on a police report, court order, or a business or personal relationship with the subject of the investigation.
(j) For use by an employer or its agent or insurer to obtain or verify information relating to a holder of a commercial driver’s license that is required under the Commercial Motor Vehicle Safety Act of 1986, 49 U.S.C. App. 2710 et seq.
(k) For use in connection with the operation of private toll transportation facilities.
(l) For bulk distribution for surveys, marketing, or solicitations when the department has implemented methods and procedures to ensure that:
(i) Individuals are provided an opportunity, in a clear and conspicuous manner, to prohibit such uses; and
(ii) The information will be used, rented, or sold solely for bulk distribution for survey, marketing, and solicitations, and that surveys, marketing, and solicitations will not be directed at those individuals who have timely requested that they not be directed at them.
(m) For any use if the requesting person demonstrates that he or she has obtained the written consent of the person who is the subject of the motor vehicle record.
(n) For any other use specifically authorized by state law, if such use is related to the operation of a motor vehicle or public safety.
Personal information exempted from public disclosure according to this paragraph may be disclosed by the <insert your state’s equivalent for Department of Highway Safety and Motor Vehicles> to an individual, firm, corporation, or similar business entity whose primary business interest is to resell or redisclose the personal information to persons who are authorized to receive such information. Prior to the department’s disclosure of personal information, such individual, firm, corporation, or similar business entity must first enter into a contract with the department regarding the care, custody, and control of the personal information to ensure compliance with the federal Driver’s Privacy Protection Act of 1994 and applicable state laws. An authorized recipient of personal information contained in a motor vehicle record, except a recipient under subparagraph (l), may contract with the <insert your state’s equivalent for Department of Highway Safety and Motor Vehicles> to resell or redisclose the information for any use permitted under this paragraph. However, only authorized recipients of personal information under subparagraph (l) may resell or redisclose personal information pursuant to subparagraph (l). Any authorized recipient who resells or rediscloses personal information shall maintain, for a period of <5 years>, records identifying each person or entity that receives the personal information and the permitted purpose for which it will be used. Such records shall be made available for inspection upon request by the department. The department shall adopt rules to carry out the purposes of this paragraph and the federal Driver’s Privacy Protection Act of 1994, Title XXX, Pub. L. No. 103-322. Rules adopted by the department shall provide for the payment of applicable fees and, prior to the disclosure of personal information pursuant to this paragraph, shall require the meeting of conditions by the requesting person for the purposes of obtaining reasonable assurance concerning the identity of such requesting person, and, to the extent required, assurance that the use will be only as authorized or that the consent of the person who is the subject of the personal information has been obtained. Such conditions may include, but need not be limited to, the making and filing of a written application in such form and containing such information and certification requirements as the department requires.
(29)
(a) Medical history records, bank account numbers, credit card numbers, telephone numbers, and information related to health or property insurance furnished by an individual to any agency pursuant to federal, state, or local housing assistance programs are confidential and exempt. Any other information produced or received by any private or public entity in direct connection with federal, state, or local housing assistance programs, unless the subject of another federal or state exemption, is subject to subsection (A).
(b) Governmental agencies or their agents are entitled to access to the records specified in this paragraph for the purposes of auditing federal, state, or local housing programs or housing assistance programs. Such records may be used by an agency, as needed, in any administrative or judicial proceeding, provided such records are kept confidential and exempt, unless otherwise ordered by a court.
(c) This paragraph is repealed effective <insert date here>, and must be reviewed by the Legislature before that date in accordance with Section 23, <insert applicable state statute(s) that govern passing exemptions to this Act; e.g., Florida’s “Open Government Sunset Review Act”>.
(D) Nothing in this section shall be construed to exempt from subsection (A) a public record which was made a part of a court file and which is not specifically closed by order of court, except as provided in paragraphs (3), (4), (5), (11), (12), and (15) of subsection (C) and except information or records which may reveal the identity of a person who is a victim of a sexual offense as provided in paragraph (6) of subsection (C).
(E) An exemption from this section does not imply an exemption from or exception to <insert appropriate open meetings statute here>. The exemption from or exception to <insert appropriate open meetings statute here> must be expressly provided.
(F) Nothing in any other general or special law shall limit the access of the <insert your state’s equivalent for the Auditor General> or any state, county, municipal, university, board of community college, school district, or special district internal auditor to public records when such auditor states in writing that such records are needed for a properly authorized audit or investigation. Such auditor shall maintain the confidentiality of any public records that are confidential or exempt from the provisions of subsection (A) and shall be subject to the same penalties as the custodians of those public records for violating confidentiality.
(G)
(1) Any person or organization, including the <insert your state’s equivalent for Department of Children and Family Services>, may petition the court for an order making public the records of the <insert your state’s equivalent for Department of Children and Family Services> that pertain to investigations of alleged abuse, neglect, abandonment, or exploitation of a child or a vulnerable adult. The court shall determine if good cause exists for public access to the records sought or a portion thereof. In making this determination, the court shall balance the best interest of the vulnerable adult or child who is the focus of the investigation, and in the case of the child, the interest of that child’s siblings, together with the privacy right of other persons identified in the reports against the public interest. The public interest in access to such records is reflected in Section 2(A), and includes the need for citizens to know of and adequately evaluate the actions of the <insert your state’s equivalent for Department of Children and Family Services> and the court system in providing vulnerable adults and children of this state with the appropriate protections enumerated in <insert relevant statute(s) here>. However, this subsection does not contravene protecting the name of any person reporting the abuse, neglect, or exploitation of a child or a vulnerable adult.
(2) In cases involving serious bodily injury to a child or a vulnerable adult, the <insert your state’s equivalent for Department of Children and Family Services> may petition the court for an order for the immediate public release of records of the department which pertain to the protective investigation. The petition must be personally served upon the child or vulnerable adult, the child’s parents or guardian, the legal guardian of that person, if any, and any person named as an alleged perpetrator in the report of abuse, neglect, abandonment, or exploitation. The court must determine if good cause exists for the public release of the records sought no later than <24 hours>, excluding Saturdays, Sundays, and legal holidays, after the date the department filed the petition with the court. If the court has neither granted nor denied the petition within the <24-hour> time period, the department may release to the public summary information including:
(a) A confirmation that an investigation has been conducted concerning the alleged victim.
(b) The dates and brief description of procedural activities undertaken during the department’s investigation.
(c) The date of each judicial proceeding, a summary of each participant’s recommendations made at the judicial proceedings, and the rulings of the court.
The summary information may not include the name of, or other identifying information with respect to, any person identified in any investigation. In making a determination to release confidential information, the court shall balance the best interests of the vulnerable adult or child who is the focus of the investigation and, in the case of the child, the interests of that child’s siblings, together with the privacy rights of other persons identified in the reports against the public interest for access to public records. However, this paragraph does not contravene protecting the name of any person reporting abuse, neglect, or exploitation of a child or a vulnerable adult.
(3) When the court determines that good cause for public access exists, the court shall direct that the department redact the name of and other identifying information with respect to any person identified in any protective investigation report until such time as the court finds that there is probable cause to believe that the person identified committed an act of alleged abuse, neglect, or abandonment.
(H) The provisions of this section are not intended to expand or limit the provisions of any laws regarding the right and extent of discovery by the state or by a defendant in a criminal prosecution or in collateral postconviction proceedings. This section may not be used by any inmate as the basis for failing to timely litigate any postconviction action.
Section 13. Criminal intelligence or investigative information obtained from out-of-state agencies.
Whenever criminal intelligence information or criminal investigative information held by a non-<insert your state here> criminal justice agency is available to a <insert your state here> criminal justice agency only on a confidential or similarly restricted basis, the <insert your state here> criminal justice agency may obtain and use such information in accordance with the conditions imposed by the providing agency.
Section 14. Photographing public records.
(A)
(1) In all cases where the public or any person interested has a right to inspect or take extracts or make copies from any public record, instruments or documents, any person shall hereafter have the right of access to said records, documents or instruments for the purpose of making photographs of the same while in the possession, custody and control of the lawful custodian thereof, or his or her authorized deputy.
(2) This section applies to the making of photographs in the conventional sense by utilization of a camera device to capture images of documents, paper, books, receipts, paper photographs, and other similar media and excludes the duplication of microfilm in the possession of the clerk of the circuit court where a copy of the microfilm may be made available by the clerk.
(B) Such work shall be done under the supervision of the lawful custodian of the said records, who shall have the right to adopt and enforce reasonable rules governing the said work. Said work shall, where possible, be done in the room where the said records, documents or instruments are by law kept, but if the same in the judgment of the lawful custodian of the said records, documents or instruments be impossible or impracticable, then the said work shall be done in such other room or place as nearly adjacent to the room where the said records, documents and instruments are kept as determined by the lawful custodian thereof.
(C) Where the providing of another room or place is necessary, the expense of providing the same shall be paid by the person desiring to photograph the said records, instruments or documents. While the said work hereinbefore mentioned is in progress, the lawful custodian of said records may charge the person desiring to make the said photographs for the services of a deputy of the lawful custodian of said records, documents or instruments to supervise the same, or for the services of the said lawful custodian of the same in so doing at a rate of compensation to be agreed upon by the person desiring to make the said photographs and the custodian of the said records, documents or instruments, or in case the same fail to agree as to the said charge, then by the lawful custodian thereof.
Section 15. Definitions; copyright of data processing software created by governmental agencies; fees; prohibited contracts.
(A) As used in this section:
(1) “Agency” has the same meaning as in Section 3(B), except that the term does not include any private agency, person, partnership, corporation, or business entity.
(2) “Data processing software” has the same meaning as in Section 12(C)(15)(a), except that <insert exceptions to cited definition>.
(3) “Proprietary software” means data processing software that is protected by copyright or trade secret laws.
(B) Any agency is authorized to hold copyrights for data processing software created by the agency and to enforce its rights pertaining to such copyrights, provided that the agency complies with the requirements of this section.
(1) Any agency that has obtained a copyright for data processing software created by the agency may sell or license the copyrighted data processing software to any other public or private entity and may establish a license fee for the use of such data processing software. Proceeds from the sale or licensing of copyrighted data processing software may be deposited by a state agency into an agency trust fund. Counties, municipalities, and other political subdivisions of the state may designate how such sale and licensing proceeds are to be used. Prices or fees for the sale or licensing of copyrighted data processing software may be based on market considerations. However, the prices or fees for the sale or licensing of copyrighted data processing software to an individual or entity solely for application to data or information maintained or generated by the agency that created the copyrighted data processing software shall be determined pursuant to Section 12(A).
(2) The provisions of this subsection are supplemental to, and shall not supplant or repeal, any other provision of law that authorizes an agency to hold or obtain copyrights.
(C) Subject to the restrictions of copyright and trade secret laws and public records exemptions, agency use of proprietary software must not diminish the right of the public to inspect and copy a public record.
(D) An agency must consider when designing or acquiring an electronic record keeping system that such system is capable of providing data in some common format such as, but not limited to, the American Standard Code for Information Interchange.
(E) Each agency that maintains a public record in an electronic recordkeeping system shall provide to any person, pursuant to this chapter, a copy of any public record in that system which is not exempted by law from public disclosure. An agency must provide a copy of the record in the medium requested if the agency maintains the record in that medium, and the agency may charge a fee which shall be in accordance with this chapter. For the purpose of satisfying a public records request, the fee to be charged by an agency if it elects to provide a copy of a public record in a medium not routinely used by the agency or if it elects to compile information not routinely developed or maintained by the agency or that requires a substantial amount of manipulation or programming must be in accordance with Section 12(A)(2).
(F) An agency may not enter into a contract for the creation or maintenance of a public records database if that contract impairs the ability of the public to inspect or copy the public records of that agency, including public records that are on-line or stored in an electronic recordkeeping system used by the agency.
Section 16. Remote electronic access to public records.
As an additional means of inspecting, examining, and copying public records of the executive branch, judicial branch, or any political subdivision of the state, public records custodians may provide access to the records by remote electronic means. Unless otherwise required by law, the custodian may charge a fee for remote electronic access, granted under a contractual arrangement with a user, which fee may include the direct and indirect costs of providing such access. Fees for remote electronic access provided to the general public shall be in accordance with the provisions of Section 12(A). The custodian shall provide safeguards to protect the contents of public records from unauthorized remote electronic access or alteration and to prevent the disclosure or modification of those portions of public records which by general or special law are exempt from Section 12(A).
Section 17. Assistance of the <insert your state’s equivalent for the Division of Library and Information Services>, records and information management program, of the <insert your state’s equivalent for the Department of State>.
The <insert your state’s equivalent for the Division of Library and Information Services>, records and information management program, of the <insert your state’s equivalent for the Department of State> shall have the right to examine into the condition of public records and shall give advice and assistance to public officials in the solution of their problems of preserving, creating, filing, and making available the public records in their custody. Public officials shall assist the division by preparing an inclusive inventory of categories of public records in their custody. The division shall establish a time period for the retention or disposal of each series of records. Upon the completion of the inventory and schedule, the division shall (subject to the availability of necessary space, staff, and other facilities for such purposes) make space available in its records center for the filing of semicurrent records so scheduled and in its archives for noncurrent records of permanent value and shall render such other assistance as needed, including the microfilming of records so scheduled.
Section 18. Registration by federal employer’s registration number.
Each state agency which registers or licenses corporations, partnerships, or other business entities shall include, within its numbering system, the federal employer’s identification number of each corporation, partnership, or other business entity registered or licensed by it. Any state agency may maintain a dual numbering system in which the federal employer’s identification number or the state agency’s own number is the primary identification number; however, the records of such state agency shall be designed in such a way that the record of any business entity is subject to direct location by the federal employer’s identification number. The <insert your state’s equivalent for the Department of State> shall keep a registry of federal employer’s identification numbers of all business entities, registered with the <insert your state’s equivalent for the Division of Corporations>, which registry of numbers may be used by all state agencies.
Section 19. Violation of chapter; penalties.
(A) Any public officer who violates any provision of this chapter is guilty of a noncriminal infraction, punishable by fine not exceeding $500.
(B) Any person willfully and knowingly violating any of the provisions of this chapter is guilty of a misdemeanor of the first degree.
Section 20. Protection of victims of crimes or accidents.
Police reports are public records except as otherwise made exempt or confidential by general or special law. Every person is allowed to examine nonexempt or nonconfidential police reports. No person who inspects or copies police reports for the purpose of obtaining the names and addresses of the victims of crimes or accidents shall use any information contained therein for any commercial solicitation of the victims or relatives of the victims of the reported crimes or accidents. Nothing herein shall prohibit the publication of such information by any news media or the use of such information for any other data collection or analysis purposes.
Section 21. Accelerated hearing; immediate compliance.
(A) Whenever an action is filed to enforce the provisions of this chapter, the court shall set an immediate hearing, giving the case priority over other pending cases.
(B) Whenever a court orders an agency to open its records for inspection in accordance with this chapter, the agency shall comply with such order within <48 hours>, unless otherwise provided by the court issuing such order, or unless the appellate court issues a stay order within such <48-hour> period.
(C) A stay order shall not be issued unless the court determines that there is a substantial probability that opening the records for inspection will result in significant damage.
(D) Upon service of a complaint, counterclaim, or cross-claim in a civil action brought to enforce the provisions of this chapter, the custodian of the public record that is the subject matter of such civil action shall not transfer custody, alter, destroy, or otherwise dispose of the public record sought to be inspected and examined, notwithstanding the applicability of an exemption or the assertion that the requested record is not a public record subject to inspection and examination under Section 12(A), until the court directs otherwise. The person who has custody of such public record may, however, at any time permit inspection of the requested record as provided in Section 12(A) and other provisions of law.
Section 22. Attorney’s fees.
(A) If a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected, examined, or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorney’s fees.
(B) Whenever an agency appeals a court order requiring it to permit inspection of records pursuant to this chapter and such order is affirmed, the court shall assess a reasonable attorney’s fee for the appeal against such agency.
Section 23. Legislative review of exemptions from public meeting and public records requirements.
(A) This section may be cited as the <insert applicable state statute(s) that govern passing exemptions to this Act; e.g., Florida’s “Open Government Sunset Review Act”>.
(B) This section provides for the automatic application of the policy of open government as provided in Section 2 and <insert appropriate open meetings statutes> to certain exemptions from Section 12(A) and <insert appropriate open meetings statute>. It is the intent of the Legislature that exemptions to Section 12(A) and <insert appropriate open meetings statute> shall be created or maintained only if:
(1) The exempted record or meeting is of a sensitive, personal nature concerning individuals;
(2) The exemption is necessary for the effective and efficient administration of a governmental program; or
(3) The exemption affects confidential information concerning an entity.
Thus, the maintenance or creation of an exemption must be compelled as measured by these criteria. Further, the Legislature finds that the public has a right to have access to executive branch governmental meetings and records unless the criteria in this section for restricting such access to a public meeting or public record are met and the criteria are considered during legislative review in connection with the particular exemption to be significant enough to override the strong public policy of open government. To strengthen the policy of open government, the Legislature shall consider the criteria in this section before enacting future exemptions.
(C)
(1) In the <5th year> after enactment of a new exemption or substantial amendment of an existing exemption, the exemption shall repeal on <insert date here> of the <5th year>, unless the Legislature acts to reenact the exemption. A law that enacts a new exemption or substantially amends an existing exemption must state that the exemption is repealed at the end of <5 years> and that the exemption must be reviewed by the Legislature before the scheduled repeal date.
(2) For purposes of this section, an exemption is substantially amended if the amendment expands the scope of the exemption to include more records or information or to include meetings as well as records. An exemption is not substantially amended if the amendment narrows the scope of the exemption.
(3) This section is not intended to repeal an exemption that has been amended following legislative review before the scheduled repeal of the exemption if the exemption is not substantially amended as a result of the review.
(4) In the year before the repeal of an exemption under this section, the <insert your state’s equivalent for the Division of Statutory Revision of the Office of Legislative Services> shall certify to the President of the Senate and the Speaker of the House of Representatives, by <insert date here>, the language and statutory citation of each exemption scheduled for repeal the following year which meets the criteria of an exemption as defined in this section. Any exemption that is not identified and certified to the President of the Senate and the Speaker of the House of Representatives is not subject to legislative review and repeal under this section. If the division fails to certify an exemption that it subsequently determines should have been certified, it shall include the exemption in the following year’s certification after that determination.
(5) The term “exemption” means a provision of the <insert your state here> Statutes which creates an exception to Section 12(A) and which applies to the executive branch of state government or to local government, but it does not include any provision of a special law or local law.
(6) An exemption that is required by federal law is not subject to repeal under this section.
(7) An exemption that applies solely to the Legislature or the State Court System is not subject to repeal under this section.
(D)
(1) The Legislature shall review the exemption before its scheduled repeal and consider as part of the review process the following:
(a) What specific records or meetings are affected by the exemption?
(b) Whom does the exemption uniquely affect, as opposed to the general public?
(c) What is the identifiable public purpose or goal of the exemption?
(d) Can the information contained in the records or discussed in the meeting be readily obtained by alternative means? If so, how?
(2) An exemption may be created or maintained only if it serves an identifiable public purpose and may be no broader than is necessary to meet the public purpose it serves. An identifiable public purpose is served if the exemption meets one of the following purposes and the Legislature finds that the purpose is sufficiently compelling to override the strong public policy of open government and cannot be accomplished without the exemption:
(a) Allows the state or its political subdivisions to effectively and efficiently administer a governmental program, which administration would be significantly impaired without the exemption;
(b) Protects information of a sensitive personal nature concerning individuals, the release of which information would be defamatory to such individuals or cause unwarranted damage to the good name or reputation of such individuals or would jeopardize the safety of such individuals. However, in exemptions under this subparagraph, only information that would identify the individuals may be exempted; or
(c) Protects information of a confidential nature concerning entities, including, but not limited to, a formula, pattern, device, combination of devices, or compilation of information which is used to protect or further a business advantage over those who do not know or use it, the disclosure of which information would injure the affected entity in the marketplace.
(3) Records made before the date of a repeal of an exemption under this section may not be made public unless otherwise provided by law. In deciding whether the records shall be made public, the Legislature shall consider whether the damage or loss to persons or entities uniquely affected by the exemption of the type specified in subparagraph (2)(b) or subparagraph (2)(c) would occur if the records were made public.
(4) An exemption that is created or revived and reenacted must contain uniform language that clearly states the section from which it is exempt, Section 12(A). The uniform language must also provide for the maximum public access to the meetings and records as is consistent with the purpose of the exemption. An exemption that is created or substantially amended must state that the exemption is repealed at the end of <5 years> and that the exemption must be reviewed by the Legislature before the scheduled date of repeal.
(5) Notwithstanding any other law, neither the state or its political subdivisions nor any other public body shall be made party to any suit in any court or incur any liability for the repeal or revival and reenactment of an exemption under this section. The failure of the Legislature to comply strictly with this section does not invalidate an otherwise valid reenactment.
Section 24. Capital postconviction public records production.
(A) As used in this section, the term “trial court” means:
(1) The judge who entered the judgment and imposed the sentence of death; or
(2) If a motion for postconviction relief in a capital case has been filed and a different judge has already been assigned to that motion, the judge who is assigned to rule on that motion.
(B) The <insert your state’s equivalent for the Secretary of State> shall establish and maintain a records repository for the purpose of archiving capital postconviction public records as provided for in this section.
(C)
(1) Upon imposition of a death sentence or upon the effective date of this Act with respect to any case in which a death sentence has been imposed but the mandate has not yet been issued in an appeal affirming the sentence, the prosecuting attorney shall promptly provide written notification to each law enforcement agency involved in the case and to the <insert your state’s equivalent for the Department of Corrections>. If available, the written notification must include the defendant’s date of birth, sex, race, and police-case numbers included in the prosecuting attorney’s case file.
(2) Within <60 days> after receipt of notification, each law enforcement agency involved in the case and the prosecuting attorney who prosecuted the case shall copy, seal, and deliver to the repository all public records, except for those filed in the trial court, which were produced in the investigation or prosecution of the case or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried. Each agency shall bear the costs of its own compliance.
(3) Within <60 days> after notification, the <insert your state’s equivalent for the Department of Corrections> shall copy, seal, and deliver to the repository or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried all public records determined by the department to be relevant to the subject matter of a capital postconviction claim of the person sentenced to death and where such production would not be unduly burdensome for the department. The department shall bear the costs.
(D)
(1) The chief law enforcement officer of each law enforcement agency that was involved in the case, whether through an investigation, arrest, prosecution, or incarceration, shall notify the Attorney General upon compliance with subsection (C) and shall certify that to the best of his or her knowledge and belief all public records in possession of the agency or in possession of any employee of the agency have been copied, indexed, and delivered to the records repository or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried as required by this section.
(2) The prosecuting attorney who prosecuted the case shall provide written notification to the Attorney General upon compliance with subsection (C) and shall certify that to the best of his or her knowledge and belief all public records in his or her possession have been copied, indexed, and delivered to the records repository or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried as required by this section.
(3) The <insert your state’s equivalent for the Secretary of Corrections> shall provide written notification to the Attorney General upon compliance with paragraph (C)(3) and shall certify that to the best of his or her knowledge and belief all public records in the department’s possession have been copied, indexed, and delivered to the records repository or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried as required by this section.
(E)
(1) Within <60 days> after the imposition of a death sentence or upon the effective date of this Act with respect to any case in which a death sentence has been imposed but the mandate has not yet been issued in an appeal affirming the sentence, both the public defender or private counsel for the defendant and the prosecuting attorney involved in the case shall provide written notification to the Attorney General of the name and address of any person or agency in addition to those persons and agencies listed in subsection (C) which may have information pertinent to the case unless previously provided to the capital collateral regional counsel or postconviction private counsel. The Attorney General shall promptly provide written notification to each identified person or agency after receiving the information from the public defender, private counsel for the defendant, or prosecuting attorney and shall request that all public records in the possession of the person or agency which pertain to the case be copied, sealed, and delivered to the records repository.
(2) Within <60 days> after receiving a request for public records under paragraph (1), the person or agency shall provide written notification to the Attorney General of compliance with this subsection and shall certify that to the best of his or her knowledge and belief all public records requested have been copied, indexed, and delivered to the records repository or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried.
(F)
(1) Any public record under this section which is confidential or exempt from the requirements of Section 12(A) must be separately boxed, without being redacted, and sealed. The box must be delivered to the clerk of court in the county in which the capital case was tried. The outside of the box must clearly identify the public records as exempt, and the seal may not be broken without an order of the trial court. The outside of the box must identify the nature of the public records and the legal basis under which the public records are exempt.
(2) Such a box may be opened only for an inspection by the trial court in camera and only after notice giving the agency the option to have a representative present at the unsealing by the court.
(G)
(1) Within <180 days> after a capital collateral regional counsel or private counsel is appointed to represent a defendant sentenced to death, or within <30 days> after issuance of the <insert your state here> Supreme Court’s mandate affirming a death sentence, whichever is later, the regional counsel, private counsel, or other counsel who is a member of <insert your state’s bar association> and is authorized by such counsel representing a defendant may send a written demand for additional public records to each person or agency submitting public records under subsection (C) and to each person or agency identified as having information pertinent to the case under subsection (E). Should the written demand include requests for records associated with particular named individuals, the written demand shall also include a brief statement describing each named person’s role in the case and relationship to the defendant. Race, sex, and date of birth shall also be included in the demand if the public defender, private counsel, or capital collateral regional counsel has such information. Each person or agency notified under this subsection shall, within <60 days> after receipt of the written demand, deliver to the records repository or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried any additional public records in the possession of the person or agency which pertain to the case and shall certify that to the best of his or her knowledge and belief all additional public records have been delivered or, if no additional public records are found, shall recertify that the public records previously delivered are complete.
(2) Within <25 days> after receiving the written demand, the agency or person may file an objection in the trial court alleging that the request is overly broad or unduly burdensome. Within <30 days> after the filing of an objection, the trial court shall hold a hearing and order an agency or person to produce additional public records if it finds each of the following:
(a) The regional counsel or private counsel has made a timely and diligent search as provided in this section.
(b) The regional or private counsel’s written demand identifies, with specificity, those additional public records that are not at the repository.
(c) The additional public records sought are relevant to the subject matter of a capital postconviction relief or appear reasonably calculated to lead to the discovery of admissible evidence in prosecuting such claim.
(d) The additional public records request is not overbroad or unduly burdensome.
(3) This statute shall not be a basis for renewing requests that have been initiated previously or for relitigating issues pertaining to production of public records upon which a court has ruled.
(H)
(1) After production of additional public records or recertification as provided in subsection (G), the regional counsel or the private counsel is prohibited from making any further public records requests under this chapter. An agency is not required to produce additional public records except by court order as provided in this subsection.
(2) In order to obtain additional public records beyond those provided under subsection (G), the regional counsel, private counsel, or other counsel who is a member of <insert your state’s bar association> and is authorized by the regional counsel or private counsel shall file an affidavit in the trial court which attests that he or she has made a timely and diligent search of the records repository and specifically identifies those additional public records that are not at the repository and are relevant to the subject matter of a capital postconviction claim or are reasonably calculated to lead to the discovery of admissible evidence in the prosecution of such claim. The affiant shall provide a copy of the affidavit to all affected agencies upon the filing of such affidavit in the trial court.
(3) Within <15 days> after the filing of an affidavit, the trial court shall order an agency to produce additional public records only if it finds each of the following:
(a) The regional counsel or private counsel has made a timely and diligent search as provided in this section.
(b) The regional or private counsel’s affidavit identifies, with specificity, those additional public records that are not at the repository.
(c) The additional public records sought are relevant to the subject matter of a claim for capital postconviction relief or appear reasonably calculated to lead to the discovery of admissible evidence in prosecuting such claim.
(d) The additional public records request is not overbroad or unduly burdensome.
(I) The <insert your state’s equivalent for the Secretary of State> shall provide the personnel, supplies, and any necessary equipment used by the capital collateral regional counsel or private counsel to copy records held at the records repository.
(J) The trial court shall resolve any dispute that arises under this section, unless the appellate court has exclusive jurisdiction.
(K) The capital collateral regional counsel or private counsel shall not solicit another person to make a request for public records on behalf of the regional counsel or private counsel. The trial court shall impose appropriate sanctions against any regional counsel or private counsel found in violation of this subsection.
(L) <Sixty days> after a capital sentence is carried out, <60 days> after a defendant is released from incarceration following the granting of a pardon or reversal of the sentence, or <60 days> after the defendant has been resentenced to a term of years, the Attorney General shall provide written notification to the <insert your state’s equivalent for the Secretary of State>, who may then destroy the records held by the records repository which pertain to that case.
(M) This section pertains only to the production of records for capital postconviction defendants and does not change or alter any time limitations provided by law governing capital postconviction claims and actions. Furthermore, this section does not affect, expand, or limit the production of public records for any purposes other than use in a capital postconviction proceeding. Nothing in this section constitutes grounds to expand the time limitations or allow any pleading in violation of <insert appropriate statute here> or to stay an execution or death warrant.
SERC would like to thanks the Bauman Foundation and
OMB Watch for promoting
the Right-to-Know Network
(RTKN) and advocating for the freedom of government information.
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