*1 KENAI, Brown, A. CITY OF Charles Act Peters,
ing City Manager, City C. Sue
Clerk, all current members of Kenai,
council of the Vincent Ambarian,
O’Reilly, Edward Ronald A.
Malston, Glick, Aber, Betty Phillip Seaman, Ap Michael
Charles Bailie and
pellants, NEWSPAPERS,
KENAI PENINSULA
INC., Appellee. ANCHORAGE,
The MUNICIPALITY OF Sullivan, Smith,
George Mayor, Ruby M. Clerk,
Municipal Angvik, Jane Paul
Baer, Chiei, Marsh, Fred Ben Carol Mas
er, Mystrom, Gerry O’Connor, Rick Dave
Rose, Lydia Smith, Selkregg, Don Walsh,
Dave all current members of the
Anchorage Municipal Assembly, Appel
lants, NEWS,
ANCHORAGE DAILY
INC., Appellee.
Nos. 5433.
Supreme Court of Alaska.
March *2 Garnett, III, Garnett, compromise lie exposure, Richard W. Klink- and the council’s Bendell, Anchorage, appellant, obligation respect ner & for privacy to the in- moral City of applicants. Kenai. terests of individual Morrissett, Garfield, Steven A. H. Julie Kenai Newspapers Peninsula filed suit to Berns, Municipal Attys., Asst. Theodore D. require the allow City inspection of the Municipal Atty., Anchorage, appellants, for applications enjoin City and to the Council Municipality Anchorage. from further upon review and action the applications except at a meeting. Baldwin, Kenai, C. appellee, R. for Kenai superior The temporary court issued a re- Peninsula Newspapers. straining enjoining order “further delibera- Hahn, Jr., A. McCoy, Robert Kevin F. tions appointment toward the of a City Hahn, Stanfill, Jewell & Anchorage, for Manager City for the of Kenai from which appellee, Anchorage Daily News. ” the .. briefing excluded.. After hearing, and a second superior the court RABINOWITZ, J., Before C. CONNOR a entered which decision concluded the MATTHEWS, JJ., and VAN and HOOMIS- applications TAYLOR, Superior SEN and Court city deliberations of council concern- Judges.* ing appointment city a manager must be public meetings. held in thereup- court OPINION permit city inspection ordered the MATTHEWS, Justice. applications copying of the and to re- These consolidated cases as their frain from closed deliberations concern- question common issue the our whether ing city manager. the selection of new statute, public records disclosure 09.25.- superior stayed, pending ap- court 110-.120, applies municipalities. In both peal, portion its requiring order cases the superior court ruled that the stat- of the applications immediate release for and, ute does apply for the reasons employment. parties stipulated then below, pressed agree. we Each case also that the order should considered final present other, raises issues not judgment city and that the would “deliver these will separately discussed. copies over to Plaintiff of all resumes applications applicants city all for OF CITY KENAI manager who do not choose withdraw During City June of of Kenai application upon being their notified began soliciting applications city for mana- agreement [city’s] to release the same.” met, ger. Subsequently, City Council upon The agreed release was made without without notice and without prejudice city’s right appeal minutes, keeping applications to review thirty-two Ten requiring order it. applicants. interview Swearingen, Max applicants position withdrew their publisher Clarion, daily of the Peninsula applications upon learning possibility publication Kenai Newspapers, Peninsula Newspapers of disclosure. Kenai Peninsula Inc., City asked the release a list subsequently for moved summary names and a of credentials of the concerning names information applicants. request This was considered applicants. withdrawn This motion was de- on August Council nied. rejected. In a letter written to Swearin- gen, the mayor voiced a concern that such OF MUNICIPALITY ANCHORAGE disclosures jeopardize applicants’ would personal privacy, applications Municipality deter future February qualified people pub- Anchorage began soliciting concerned about applications * IV, Taylor, Superior Van Hoomissen and Court article section 16 the Constitution of Judges, sitting assignment pursuant Alaska.
police chief. The Daily nationwide search was The News complaint amended its through conducted written advertisements allege process that the selection inwas vio- promised applications would be law, lation of Alaska’s meeting held in confidence. Following 44.62.310-.312. a hearing, court preliminary entered an order for in- 1, 1980, 8, 1980, From June through July junction, supported by findings of fact and Hunter, reporter Don G. for the Anchor- *3 law, requiring Municipal- conclusions of the age News, Daily sought access to the names ity provide Daily to the News with qualifications and the applicants. of the The Municipality applicants’ refused names and to honor these re- resumes. quests on grounds the that disclosure was Subsequently, preliminary injunction the prohibited ordinance, by municipal and be- by was modified stipulation parties of the confidentiality cause promised had been provide that the Municipality would con- applicants. all Anchorage The Daily News applicants tact all to determine whether 9, July filed suit on alleging 1980 the they applications wished to withdraw their applications and resumes public were docu- rather than have them public. The subject ments to disclosure requesting and names concerning and information those injunctive relief temporary and a restrain- applicants choosing appli- to withdraw their ing restraining order the Municipality from cations would remain confidential. The appointing police a hearing chief until a on parties stipulated preliminary also that the the Mayor merits. appointed Sullivan injunction would be considered as a final police new chief the day next before the judgment appeal so that an could be taken hearing temporary on the restraining order. to this court. original applicants, Of the 89
After the hearing, the court ordered the 8 withdrew their names. An additional 19 Municipality to any refrain from action con- could not be within reached the time frame firming appointment hearing until a on prescribed by stipulation and their the merits. appointee The subsequently de- names were also considered to have been appointment clined the after disclosures re- withdrawn. flecting adversely qualifications on his made. APPLICATION THE OF PUBLIC REC- The Daily News then Mayor learned that ORDS DISCLOSURE STATUTE TO Sullivan appointed had a review committee MUNICIPALITIES
to assist in evaluating eighty-nine appli- by cations received the Municipality. question The first is whether 1 review comprised committee was provisions of local of AS 09.25.110 and AS 09.25.- 2 citizens and several municipal employees. applicable 120 are municipalities. provides: 1. AS (3) records; 09.25.110 public medical and related health Inspection copies public and records of confidential records. regulation specifically provided a federal law or Unless law. otherwise Every public books, records, having custody papers, files, accounts, officer of writ- exceptions ings, records not included in the shall and transactions of all and permit inspection, give departments and on public demand records and are payment legal and on of the fees inspection by therefor a public under reasonable record, copy writing certified during regular and public rules office hours. The copy shall in all cases be of evidence having custody officer of records original. permit memoranda, Recorders shall give request payment shall on of costs a transcripts, copies public writings copy certified record. and records in their offices to be made provides: 2. AS 09.25.120 photography purpose or otherwise for the Inspection copying records. examining titles to real estate described in Every person right inspect has a records, public writings making ab- writing state, including pub- or record in the guaranteeing insuring stracts of title or writings lic and records in recorders’ offices estate, building titles the real and main- except (1) records of vital statistics taining plants; title and abstract and shall adoption proceedings which shall be treated proper furnish and reasonable facilities to required by in the manner persons having AS 18.50.010-18.- lawful occasion for access to 50.380; pertaining juveniles; public writings pur- and records for those
1319 arguments Every person A. parties’ inspect focus on has regard its terms the statute without public writing district, or record in said historical That historical context. context every public officer having the custo- is illuminating. dy permit thereof is bound to inspec- such tion, law, and to give pay-
At
demand and on
every
person
common
interested
inspection
therefor,
was entitled to the
legal
rec
ment
fees
a certi-
ords, including
those of
corpora
copy
record,
writing
fied
such
Department
v.
Mushet
Public Ser
tions.
copy
all
such
shall in
cases be evidence of
vice of
Los
Angeles,
35
Cal.App.
original.3
Graham,
(1917);
Clement
11. Ch. § SLA 1957. investigation proceeding; provided, or court pro- nothing herein shall be construed to 2935, initially 12. Codified as § CLA 1933. publication of hibit the statistics so classified prevent particular identification 1947, language concerning In in information thereof, reports publica- and items or of the possession of the tax commissioner was delinquent showing tion of lists the names of adopted. Also added at that time was the taxpayers pay specified who have failed to their taxes “except or de- phrase otherwise where provided 1, at the time and in the manner law, clared.” SLA § Ch. 1947. As a result together with relevant information the statute read: may assist in the collection of such WHAT ARE PUBLIC RECORDS: delinquent taxes. INSPECTION. Except clared, specified where otherwise de- IV, provides: 14.Alaska Const. Art. 15§ books, records, files, papers, accounts, writings every Rule-Making supreme and transactions of Power. The court officer, Territory governing board or institution in this promulgate shall make and rules subject records and such rea- of all shall the administration courts. It charge may sonable rules as the officer in governing prac- promulgate make and rules prescribe, open inspection by and shall procedure in civil and criminal cases tice and public during respective all the time the changed in all courts. These rules Any offices shall be for business. infor- legislature by two-thirds vote possession mation in the of the Tax Commis- members elected to each house. particulars sioner which discloses the process to in Silver- revision is alluded taxpayer, business or affairs of a or other Marler, (Alaska 1964) ton v. and record, person, except is not matter of fully is described the Forward to the Alaska purposes of law enforcement and the in- Court, 1, pp. Rules of Volume i-vi. vestigation by any person compliance, of law report Judiciary phrase of the Alaska House only agencies this refers and Committee15 makes it clear that no sub- departments government. changes in pre-existing stantive law were There language is no .110 .120 §§ so. intended, except certain enumerated ar- limiting “agencies and departments.” We including inspection copying eas not will not read such limitation into this records.16 fact House Judi- language without evidence that it was in- ciary Committee corrected an error in the tended. concerning right inspect Senate Bill argue Appellants also that municipality records. law Existing read: as such not an agency department person Every right inspect any has a therefore not covered .110. This § public writing Territory, or record in said too, argument, has little commend it. including public writings Conceding, purposes argument, recorders’ offices.... legislature would describe a (Supp.1958). 58-1-2 § ACLA The initial municipality agency department, as an Senate Bill revised this to read: is equally true that would person Every has the right inspect any government not describe the state taken as public writing or record the office of by using Municipal whole those terms. any recorder.... governments, government as well as the 3.25, SB p. Leg., 2d 1st § Sess. state, agencies depart- encompass (1961). The Committee changed House ments. The “agencies departments” present to its form: language used in .110 must be read as person Every inspect any has a referring departments state, public writing or record in- of the governments to which the statute cluding public writings records in applies, but itself does not recorders’ offices.... applicable define what level govern- 3.22 p. Leg., HCS 2d 1st SB Sess. ment is. preexisting which differs from law only adjective in that the term “the state” is substi- used in .110 and .120 §§ tuted for “said Territory.” The House which of government does define levels *6 Committee concerning change: noted to which apply these sections is the word inspection “Material re copying pub- and of “public.” Thus, pub- .110 commands “the § lic records is incorrectly restored because lic cop- officer” to certified make available revised.”17 request. ies on Similarly, .120 directs §
It is legislature “every public unexcepted therefore evident that the to officer” make had no intention of changing scope of inspection copy- records available for public law in the 1962 recodifi- ing. public We construe the word as used cation. The common law view that munici- refer these sections to both to state and palities are required to make their records local officials. This construction is in ac- public adopted by available was stat- ordinary meaning cordance with the ute in 1900 changed. and has not been term “public” which is that the word refers to all of government: levels
B. Even provided without the evidence by legislative history, the municipalities’ ar- civil, official, character, Having a au- guments on the of the statutes like; status, or thority, authoritative- prevail. could not ly as, serving representing public; official, public prosecutor, legislative
In arguing that .110 and .120 are not §§ office; also, body; applicable, public hold appellants phrase focus on the etc., agencies departments” agencies, “all of departments, first titles of contend, first, as, sentence of They government; public .110. § the civic or state (1962). (1962). 15. 62 House Journal 390-397 17. 62 House Journal Ibid, at 393-397. health, relief, employees possession ment often come into welfare safety.18 [Em- phasis original] state records which are of inspection wish to allow the of these records corruption generally It would be a discipline by their protection and need meaning “public” accepted term We find this to be a employers doing. in so argue, example, mayor for that reading unnatural municipality Anchorage very is not a strained and Again, dictionary agrees, logical officer. statute. It is far more conclude defining “public the term office” as legislature the 1977 assumed municipalities as position
An office or
in the service of a
.110 and .120
§§
nation, state,
etc.19
city,
and concluded that
well as to
state
municipal
employees
as well as state
provides
.120
The first
sentence
deserving
protection.
that:
Every person
inspect
has
ap-
strongest argument
public writing or record in the state..
..
pellants
municipali-
is that
the inclusion of
[Emphasis added].
there
ties would lead to absurd results since
state,”
legislature
say
“in the
chose
required to be
exception
is no
for records
not “of the state.” The boundaries of a
municipal
confidential under a
ordi-
commonly sought
statute are
and found
exception
while
an
does exist for
nance
such
within
think
legisla-
its terms. We
that the
exception,
by the
law.21
added
This
ture was conscious
it was
fact
legislature
territorial
must be
scope
defining
here. Had the
in context. The
records dis-
viewed
application
intended to limit the
.120
any closure statute had existed without
departments,
to state
it could
pressed exceptions
years.
for
than 50
more
easily
clearly
have done so.
There was no basis under that statute for
legislature’s reading
A more recent
application between terri-
distinguishing its
apparent
.110 and .120 is
in the enact-
§§
As
municipal governments.
torial and
dis-
39.51.020,
ment
in 1977
pro-
AS
supra, prior
cussed
to the enactment of the
vides
no
employee may
be disci-
dis-
statute the common law also
plined “for communicating
pub-
matters of
closure of
records at both the state
lic record or information under
09.25.110
However,
municipal
levels.
under the
employee”
AS 09.25.120.” “Public
was
amendment, as
prior
statute
to the 1957
defined in Section
of that enactment
law, exceptions
under the common
would
any employee
include
state or local
permitted
where there was a
been
government.20
possible
it is
good reason for them.22 While
legislature may
that the 1957
have commit-
municipalities argue
that this section
oversight
including
express
ted an
in not
was enacted not
any legislative
because of
ordinances,
exception
the fail-
applied
belief that
09.25.110 and .120
*7
governments
govern-
exception
hardly
local
but
such an
because local
ure
include
can
Dictionary (2d
University Alaska)
any po-
eluding
18. Webster’s New International
the
1960).
ed.
litical subdivision of the state.
(c) A violation of this section is a misde-
Id
meanor.
provides:
20. AS 39.51.020
09.25.120(4) excepts
21. AS
from the disclosure
public
Obstruction of
informa-
access to
requirement
“records
confi-
(a)
public employee may
tion.
No
be dis-
regulation
dential
a federal law or
missed,
suspended,
demoted or
laid off or
state law.”
subject
any disciplinary
otherwise made
communicating
public
action for
matters
Williams, 110
22. See State ex rel. Well ford v.
record or information under AS 09.25.110
549,
(1903);
rel.
Tenn.
ARE EMPLOYMENT APPLICATIONS result to the if such records OPEN TO INSPECTION? inspection. are not for made available We turn next to the question wheth [Citation omitted]. justified er the appellants refusing were Holm, MacEwan Or. employment applications disclose the in (In Banc). 421-22 volved in these general, questions cases. In proper In striking a balance the custodian require
such as these balance to be struck instance, of the records in the first and the between interest in next, court bear in mind that should privacy one hand and the reputa expressed has in favor bias tion interests of affected individuals disclosure. Doubtful cases should government’s and the interest confiden public inspection. permitting resolved tiality, process on the other. The of balanc Appellants argue they have an inter- ing has been described as follows: “attracting largest qual- est in and most determining whether the records applicant pool ...” ified and that can inspection should made available for be accomplished by disclosing best instance, particular the court must Further, applicants. names and resumes balance interest of the citizen in argue they applicants have a constitu- knowing what of govern- the servants tionally protected privacy interest23 doing ment are and the proprie- citizen’s keeping they the fact that confidential tary interest in property, against applied, applica- and the contents of their the interest of in having argue espe- They tions. that this interest government business of carried on effi- cially strong under the circumstances of ciently and without undue interference. applications these where the cases The initial inspec- decision as to whether expectation they with would must, course, tion permitted will be remain confidential. rest with the custodian of the records. justification And since the for a refusal strong public disclo- There is a interest in permit inspection depend will upon government generally, sure of the affairs of case, circumstances the particular we process high in an open selection *8 specific can offer no ad- guide for that public particular. in 44.62- officials ministrative decision. 312(a) powerfully expresses philosophy
underlying this:
Const,
I,
recognized
infringed.”
23.
22§
Art.
of the Alaska
in
shall
states
not be
part:
right
people
privacy
“The
by a
applying
ments will be deterred from
the state that
policy
It is the
and we have been
public
process,
selection
mentioned
(1)
governmental
units
prove that
tending
referred
studies
to no
44.62.310(a)
aid in the
exist
point.
business;
people’s
conduct of the
(2)
privacy inter-
applicants’
the intent of the law that
individual
applications
having
their names and
openly
those units be taken
ests
actions of
are also not of an order suffi-
not revealed
that
their deliberations be conducted
public’s
interest. The
cient to overcome
openly;
high government po-
applicants
seeking
(3)
yield
not
people
of this state do
recognize
must
sitions.
“Public officials
sovereignty
to the
which
their
expose their
capacities
their official
often
them;
serve
public scrutiny.”24 Fur-
private lives to
delegating authority,
people,
ther,
sought is that which
the information
servants the
give
do not
their
appli-
voluntarily provided by the
has been
good
people
to decide what is
unlikely to
municipalities.
It is
cants to
good
know and what is not
for them to
embarrassing
publicly
if
re-
particularly
know;
vealed.25
in-
people’s right
to remain
may
It
be that in some cases an individu-
protected
they
formed shall
so that
employer
will
wish
current
al
not
his
may
over
retain control
the instruments
job.
applied
that he has
for another
know
they have created.
accom-
That desire is one
cannot be
addition,
In
.110 and .120 articulate a
§§
job sought
high
is a
modated where the
policy
broad
records.
Even if the law did not com-
public office.
City Managers,
Public officials such as
pel
application,
disclosure of each
at some
and Chiefs of Police have substantial discre-
selection,
point
both
before the final
tionary authority.
qualifications
appellants acknowledge, prudence would re-
occupants
legitimate
of such offices are of
quire
municipality
to contact
em-
Disclosing
concern.
the names and
ployers
applicants
applica-
of those
whose
applications
applicants
allows interested
being seriously
tions are
considered.
public,
newspa-
members of the
such as the
Nonetheless, Anchorage,
applicants
here,
pers
verify
accuracy of
promised confidentiality,
and in Kenai
representations
applicants,
applicants
several
at
least assumed that
to seek additional
information which
applications
their names and
would not be
process.
be relevant to the selection
permit a
divulged. Since the law does not
applicants’
claim
revealing
we
application,
confidential
believe
applications
names and
of office seekers
properly
allowing
those
both courts acted
will
applicants
narrow the field of
and ulti-
confidentiality to
applicants who desired
mately prejudice
good
the interests of
applications
without
withdraw their
government
sufficiently compelling
is not
disclosure. There is little or no
inter-
public’s
to overcome the
interest
in disclo-
est in the names of withdrawn candidates.
sure.
majority
each of these cases a
hand,
the other
those candidates obvi-
On
applicants
did not seek to withdraw ously
disclosure would
believed
applications
their
rather
than make them
positions.
prejudice them in their current
public.
intuitively
It
is not
obvious that
respect
applicants
With
who with-
names,
qualified potential applicants
properly
most well
drew their
the balance was
positions
authority
municipal govern-
struck in favor of non-disclosure.
Advisory Opinion
Constitutionality
private
24.
doctor
named
individual had visited a
information,
(Mich.1976);
protected private
pro-
1975 PA
242 N.W.2d
but
was
quoted in Falcon v. Alaska Public Offices
tection did attach if there was a basis for
Com’n,
(Alaska 1977).
person
potentially
474 n.15
had a
em-
inference
barrassing mental or medical condition.
479-80,
APOC,
Falcon v.
570 P.2d at
Cf.
where we noted that
the mere fact
that a
*9
THE ANCHORAGE ORDINANCE
results
the balance
struck
being
in favor
public
of
disclosure. To the extent
that
Anchorage
The
a
Municipality of
has
Anchorage
prohibits
ordinance
such disclo-
public records
ordinance codified
3.90
§
directly
sure it is
inconsistent with state
of
or
Anchorage Municipal
The
Code.
law and cannot be accorded substantive ef-
general
a
policy
dinance announces
of “the
It
fect.
is therefore invalid.26
rapid
fullest and most
to municipal
access
records and
requiring
information”
“full
This does not mean that the
of
remainder
of
except
disclosure
all
...
AMC 3.90 must fall. That
§
result would
unwarranted,
for
specifically exempted
provisions
those
under
3.90.-
of
§
plainly
ordinance are
to be
040....”
meant
severa-
(B)
AMC 3.90.010. Part
of
§
ble.27 Nor does this conclusion call into
exempts
requirement
3.90.040
from the
of
question
power
Anchorage
of
to enact
“personnel
disclosure
.
...
files
..
the re
dealing
an ordinance
with the
of
disclosure
lease of which would
an
constitute
unwar
records which
consistent with state
ranted invasion
privacy.”
of
Another sec
Existing
law.
law
is neither so de-
tion of the Code includes
employee’s
an
tailed nor comprehensive
permit
as to
an
application
employment
part
aas
of his
inference
intended to
personnel file. AMC 3.30.016A.1.
occupy this field to the
of
exclusion munici-
trial
held
court
the extent
Bechtel,
palities.
Inc.,
See Webster v.
Anchorage public
records ordi-
(Alaska 1980).
P.2d
Alaska Board
prohibits
nance
applica-
disclosure of the
Thomas,
of Fish &
tive expressed branch has its intent ... Or, 44.62,pertaining AS 40.21.150. AS language unambiguous so leave as to no adjudication procedures: meaning scope doubt as or “(1) boards, ‘agency’ the state includes dictated, result the function of the courts is commissions and officers listed in AS 44.- simply apply language.” State chapter 62.330 and those to which Anchorage, applicable by made or law executive or- (Alaska 1973). Every word of statute involving der reorganization under the Sands, meaning, should 2A C. be accorded constitution; added). (emphasis ...” 63; 46.06, supra, at but constructions 37.05, 44.62.640(b). Again, per- AS AS leading to absurd results are to be avoided. taining procedures: to fiscal Co., Sherman v. Holiday Construction “(2) agency,’ ‘agency,’ ‘depart- ‘state (Alaska 1967). P.2d ment,’ depart- or similar term means a My conclusion that AS 09.25.110does not ment, officer, institution, board, commis- apply municipalities on four based sion, bureau, division, or other adminis- (a) “agency” considerations: the terms and govern- trative forming unit state “department” acquired particular have ment, and includes the Alaska Pioneers’ meaning by legislative Alaska; definition which is University Home and the ...” conclusion; with majority’s inconsistent added). (emphasis legislature always has used clear AS 37.05.320. language whenever has intended a stat- hand, appli- On the other whenever local governments; (c) ute apply local intended, cation been clear has majority’s can construction lead to absurd Legislative has been enactments utilized. areas; (d) results in other protec- and or distinguish departments between state tive provisions 39.51.020 AS can be con- political and subdivisions consistently my position. strued with both, pressly providing application or legislature always has “agen- defined by articulating parallel either or contrast- cy” “department” as encompassing only ing powers separate or duties in sections.2 state agencies departments. example Adopting majority’s An construction makes “agencies,” specifying 1. This rule is in AS state and local each codified 01.10.040: when to both. a statute is intended to phrases “Words and shall be construed ac- 09.25.170(a)(4), concerning example, For AS cording grammar to the rules of and accord- privileges, of certain refers to “an assertion ing approved usage. to their common and representative agency agency of the of an phrases Technical words and those state, borough, corpora- city municipal or other acquired peculiar appropri- ” tion ... . meaning, by legislative ate whether definition Further, directly argues, as Kenai matters otherwise, according shall be construed operations pertaining tend peculiar meaning.” appropriate they though often collected in Title even example, 09.50.250(1) (Title appear 2. For 29 is AS and AS 09.65.- in other well. titles as Government”; 070(d)(2) (separate provisions “Municipal for state and mu- entitled Title nicipal immunity suit); 09.55.240(a)(2) re- AS source of the asserted (eminent powers granted sepa- quirement, Proce- domain is entitled “Code of Civil subdivisions). specifies rately political dure.”) example, to state and 29.23.580 Oth- For provisions requirement distinguish open meetings er AS 44.- AS 09.25 between 1959,6 modifying language stantially present such in its form in redundant thus fails to accord all terms a definite open meeting requirement explicitly was meaning. applicable to the: “governing bodies all State and local A review of other statutes illustrates this government agencies, including munici- point. example, addressing For when rec- palities, boroughs, school boards and all units, management ords governmental boards, assemblies, agencies, other coun- delineated local and non- cils, divisions, bureaus, departments, com- local application. pur- Enacted in one pose organizations (advisory missions or provide of AS 40.21 was “to otherwise) orderly management govern- of current local State or ” local except juries records.... 40.21.010. ment .. . such other *12 distinguishes The statute exempt between “local expressly shall be ” record,” “record,” record,”3 and “state Legislature.... explicitly management addresses of local (Ch. VI, 1) Ch. 143 art. 1959. The SLA separate Further, records in a section.4 legislature certainly knew in 1959 how to “agency” statute limits the term to state applicable govern- make a to local statute agencies.5 ment; yet when it enacted 09.25.- AS 44.62.310, later, greater significance years language Of 110-.120 three evi- AS remains, pertaining was, to the analogous dencing issue of access such an intent governmental meetings. to Enacted sub conspicuously absent.7 applies general program 62.310 municipalities, to home rule and law follow the established for the man- though even agement department AS 44.62.310 of state records. The makes this clear its own terms. Another shall, upon request body governing example 14.12.020(a), is AS which is substan- subdivision, political provide advice and tially reiterated in AS 29.33.050. assistance in the establishment of a local management program.” records states, part: 3. AS 40.21.150 chapter, “Definitions. In this unless the con- 40.21.150(1) 5. AS states: requires, text otherwise “ ‘agency’ agency’ depart- or ‘state means a ment, office, board, agency, state commis- ‘local record’ means a record of sion, public corporation organiza- city class, or other borough any villages, dis- trict, authority political tional unit of or created under the executive or other subdivision designated government; unless the record is branch of the state the term treated as law; Alaska; University a state record under state does not include the document, any ‘record’ means [etc.] developed ... or received under law or in connection Although with the transaction of official 6. the section has been amended nu- preserved appropriate business and times, applicable merous it has remained to preservation by agency political subdi- governments. local vision, organization, as evidence of the func- tion, decisions, policies, procedures, opera- Although dispositive, interesting it is politi- tions or other activities of the state or repeated legislative note the efforts to enact a cal subdivision or because the information- comprehensive public access-to-records act. them; al value in ... always Those bills address whether the act apply municipalities. should (Judiciary), See CSHB 131 (7) ‘state record’ means a record of a de- Legislature, 10th First Session office, partment, commission, board, public (1977) (making applicable “gov- corporation, agency or other of the state units,” subsequently ernmental defined to in- government, including legisla- a record of the HB75, political subdivisions). Compare clude any desig- ture or a court and other record Legislature, (1979) (“govern- 11th First Session nated or treated as a record under subdivisions) political unit” mental includes state law.” Legislature, with SCS CSHB 11th First Ses- 4. AS 40.21.070 states: (1979) (“governmental sion units” restricted to management “Records for local records. The agencies). executive branch If the current stat- governing body political of each subdivision applies governments, ute to local such subse- promote principles of the state shall quent legislation unnecessary. would be Infer- management efficient records for local entially, has never believed that records in accordance with state law. applies municipalities. AS 09.25.110-.120 governing body shall, practical, as far as interpretation of information majority’s “agen- ordinance. AMC 3.90.010 See departments” potential cies and also has the seq. Anchorage et asserts that leading example, For to absurd results. employees possess pertaining state records exempt 09.25.120authorizes the agreements, personnel to labor classifica- disclosure, certain records from which the scales, pay tion and demographic and work done,8 grant state has but does not munici- statistics, and force financial audits of state Thus, palities the while state power.9 same programs. protection funded Without personnel might public, records not be mu- 39.51.020, it argues, municipal of AS em- nicipal personnel be. ployee may be reluctant such release strongest argument 09.25.- information, though public even under AS 110 was municipalities intended Thus, 09.25.110-120. intent AS 39.- based of AS 39.51.020. can preclud- 51.020 be construed as that of Enacted in states: statute ing pub- transmutation a document’s “(a) No public employee may be dis- solely change gov- lic character due ato missed, suspended, demoted or laid off legisla- ernmental Absent a clearer hands. subject discipli- otherwise expression tive ap- AS 09.25.110-.120 nary communicating action for matters of plies to I government, local believe this public record or information under AS argument adequately explains the intent of *13 09.25.110 and AS 09.25.120. AS 39.51.020. section, ‘public As used in this em- light requirement of the constitutional ployee’ any employee receiving means given liberal shall construction compensation “[a] provided for services 10 powers local I Alaska) government,” do University state (including any political subdivision not believe that AS 09.25.110 should govern state. access to records unless (c) governmental A local violation of this section a mis- added). (emphasis legislative demeanor.” so is intent to do clear. As argues, of Kenai “state foreclosure clearly protects statute govern- local policymaking of local [regarding records] employees ment who release information should not occur unless there is an over- under Although AS 09.25.110-120. riding policy, need for a uniform newspapers argue legis- that this evinces a might reason to believe that decisions intent local lative applies AS 09.25.120 governments, local I particular group be unfair to a which is believe the stat- purpose protect ute’s is to municipal em- protect through unable to itself the local ployees who possession come into of state political process.” There no evidence agency subsequently records and release that such here. Thus I considerations them. ambiguous provisions believe that the of AS in applica- 09.25.110-.120 should limited
Municipal employees may come pos- into departments, tion to state session of state records are public would, law, therefore, under state superior but which are reverse confidential under, for example, Anchorage’s contrary freedom court’s conclusion. 39.25.080; grounds Voluntary, See State v. Personnel Rule State A.L.I.V.E. 606 one, (Alaska 1980).) § 14.07.0. P.2d 769 No ar- Kenai gues, would contend that rea- provide example.
9. The cities If another sonably provision encompass intended this “agencies departments” in AS 09.25.110 governmental regulations agencies. of local them, encompasses similarly it should so do Const, respect 44.62.320(a): X, with Bookey to AS art. 1. See 10. Alaska sec. v. Borough, legislature, by Kenai Peninsula (Alaska 618 P.2d 569 “The a concurrent resolution houses, 1980); Bay adopted by Borough, Liberati Bristol of both v. vote annul 1978); regulation (Alaska agency department." a (emphasis added). P.2d of an 1123 Jefferson State, (Alaska 1974). See also (Originally SLA; 29.48.310; Anchorage Municipality enacted 1959 as ch. Frohne, (Alaska 1977). held unconstitutional unrelated P.2d