WYOMING ASSOCIATION OF municipalities Public Records

PUBLIC RECORDS WYOMING PUBLIC RECORDS ACT Wyo. Stats. §§16-4-201 through 16-4-205 The Wyoming Legislature is considering substantial revision and amendment of the Act. House has passed the bill on third reading – Substantive changes from the Senate version intact. House has proposed a minor change – to create a new definition “state entity” – which is defined to mean the State, and agency, political subdivision or state institution. -

PUBLIC RECORDS What is a “public record?” Public records include Any information in a physical form Created, Accepted, or Obtained by the . . . political subdivision In furtherance of its official function and transaction of public business which is not Privileged or Confidential by law.

PUBLIC RECORDS “Public Records” includes any: Written communication or other information Received by the . . . political subdivision whether Received in a meeting or outside a meeting and whether In paper, electronic, or other physical form. Definitions: Wyo. Stat. § 16-4-201(a)(v).

PUBLIC RECORDS Public Records are classified into two categories. “Official public records” “Office files and memoranda” Definitions: Wyo. Stat. § 16-4-201(a)(vi)(A) and (B).

PUBLIC RECORDS Official Public Records includes Original vouchers, receipts and docs necessary to isolate and prove the validity of Every transaction to the receipt Use and disposition of public property Use and disposition of public income All agreements and contracts to which the entity is a party All fidelity, surety and performance bonds All claims filed against the entity All records or docs required by law to be filed with or kept by any agency of the State All other docs or records determined by records committee to be official documents. Definitions: Wyo. Stat. § 16-4-201(a)(vi)(A).

PUBLIC RECORDS Office Files and Memoranda includes all Records Correspondence Exhibits Books Booklets Drawings Blank forms or Documents not defined as Official Public Records All duplicate copies of official records All docs and reports made for internal administration of the office to which they pertain but not required to be filed All other docs or records determined by records committee to be office files and memoranda. Definitions: Wyo. Stat. § 16-4-201(a)(vi)(B).

PUBLIC RECORDS Public Records includes: Wyo. Stat. §16-4-201. Letters, emails, etc. received in furtherance of public business Vouchers, receipts Contracts, agreements, performance and payment bonds Claims filed against the entity Office files and memoranda Wyo. Stat. §16-4-201.

PUBLIC RECORDS State Records Committee consists of the director of State Archives, the Attorney General, and the Director of the Department of Audit (or their designees) and are to meet quarterly. In addition to the statutory authority to designate records as either official records or office files and memoranda, the committee is authorized to issue guidelines and best practices on records management and document destruction for state departments, agencies and political subdivisions. W.S. § 9-2-411

PUBLIC RECORDS ADDITIONAL DEFINITIONS Information – opinions, facts, or data of any kind and in whatever physical form kept or maintained including, but not limited to, written, aural, visual, electronic or other physical form Political subdivision – every county, city, and county, city, incorporated and unicorporated town, school district and special district Custodian Official Custodian Person in Interest Application Peace officer recording

PUBLIC RECORDS ADDITIONAL DEFINITIONS Custodian – official custodian or authorized person having personal custody and control of the public records Official Custodian – any officer or employee who is responsible for the maintenance, care and keeping of public records (regardless of whether in actual physical control and custody).

PUBLIC RECORDS ADDITIONAL DEFINITIONS Person in Interest – the person who is the subject of a record or any representative designated by the person, except if the person is under legal disability or is the dependent high school student of his parents, “person in interest” means the parent or duly appointed legal representative. Application – a written request for public records. However, a custodian may in is discretion deem a verbal request to be an application.

PUBLIC RECORDS ADDITIONAL DEFINITIONS Peace officer recording – any audio or video data recorded by a peace officer . . . on a camera or other device which is (A) provided to or used by the peace officer in the course of performing official business; and (B) designed to be worn on the peace officer’s body or attached to a vehicle . . . used by the officer. Wyo. Stat. §16-4-201

PUBLIC RECORDS NEW DEFINITIONS - "Application" means a written request for a public record. However,  a designated public records person may in his discretion deem a verbal request to be an application; "Designated public records person" means the person designated as required by W.S. 16‑4‑202(e) or that person's designee. Wyo. Stat. §16-4-202(e)

PUBLIC RECORDS (e)  Each state agency, institution and political subdivision shall designate a person to receive all applications for public records. The agency, institution or political subdivision shall submit the name, business email address and business mailing address of the designated public records person to the department of administration and information for publication on the department of administration and information official website.  The designated public records person shall serve as a point of contact between the agency, institution or political subdivision and applicants seeking public records. Wyo. Stat. §16-4-202(e)

PUBLIC RECORDS All Public Records “shall be open for inspection.” Entity may still make rules and regulations as is necessary for protecting records and to prevent unnecessary disruption of business. (NEW) All applications for public records shall be made to the designated public records person. Wyo. Stat. §16-4-202(a)

PUBLIC RECORDS (b)  If the public records requested are not in the custody or control of the state agency, institution or political subdivision to whom application is made, the designated public records person shall notify the applicant within seven (7) business days from the date of acknowledged receipt of the request of the unavailability of the records sought and provide the name and contact information of the appropriate designated public records person if known. Wyo. Stat. §16-4-202(b) (As currently contemplated)

PUBLIC RECORDS (c)  If the public records requested are in the custody and control of the state agency, institution or political subdivision to whom application is made, the following shall apply: (i)  If the records are in active use or in storage, and therefore not available at the time an applicant asks to examine them, the designated public records person shall immediately forward the request to the custodian or authorized person having personal custody and control of the public records and shall notify the applicant of this situation within seven (7) business days from the date of acknowledged receipt of the request. Wyo. Stat. §16-4-202(c) (As currently contemplated).

PUBLIC RECORDS (ii)  If a public record is readily available, it shall be released immediately to the applicant so long as the release does not impair or impede the agency's, institution's or political subdivision's ability to discharge its other duties; Wyo. Stat. §16-4-202(c) (As currently contemplated). 

PUBLIC RECORDS (iii)  All public records shall be released not later than thirty (30) calendar days from the date of acknowledged receipt of the request unless good cause exists preventing release as authorized by paragraph (iv) of this subsection; Wyo. Stat. §16-4-202(c) (As currently contemplated).

PUBLIC RECORDS (iv)  If good cause exists preventing release within the time period specified in paragraph (iii) of this subsection, the public records shall be released on a specified date mutually agreed to by the applicant and the state agency, institution or political subdivision.  If a release date cannot be agreed upon, the applicant may file a complaint with the ombudsman as provided by paragraph (v) of this subsection; Wyo. Stat. §16-4-202(c) (As currently contemplated).

PUBLIC RECORDS (v)  The applicant may at any time file a complaint with an ombudsman designated by the governor or may petition the district court for a determination as to whether the custodian has demonstrated good cause.  In determining whether good cause existed, the ombudsman or district court may consider whether the records are privileged or confidential by law or whether release of the records impairs or impedes the agency's, institution's or political subdivision's ability to discharge its other duties.  The ombudsman or the district court shall review the records in camera and determine whether redaction of privileged or confidential information would permit release of the records. Wyo. Stat. §16-4-202(c) (As currently contemplated).

PUBLIC RECORDS If record exists primarily or solely in electronic format Inform requester May recover reasonable costs of producing copy (including cost of printing, copying, programming and computer searches) Not required to compile data, extract data or create new document/record. Wyo. Stat. §16-4-202(d)

PUBLIC RECORD ACT EXCEPTIONS EXCEPTIONS TO DISCLOSURE (i) Inspection is contrary to state law Examples: W.S. § 14-3-214 W.S. § 6-3-219 (ii) Inspection contrary to any federal statute or regulation HIPAA FERPA (iii) Inspection prohibited by rules promulgated by supreme court of order of other court. Example: Court imposes a gag order on a case. Wyo. Stat. §16-4-203(a)

PUBLIC RECORD ACT EXCEPTIONS EXCEPTIONS TO DISCLOSURE Public inspection may be denied to the to the following (if disclosure would be contrary to the public interest): Records of investigations conducted by sheriff, county attorney, city attorney, and police department compiled for law enforcement or prosecution purposes. Licensing and employment exam test questions, keys. Written promotional exams and scores are available to the person in interest.

PUBLIC RECORD ACT EXCEPTIONS EXCEPTIONS TO DISCLOSURE Real estate appraisals relative to property acquisition until title has passed to entity. Interagency or intra-agency memoranda which would not be available by law to a private party in litigation with the agency. Documents which pose a security risk to public buildings, structures.

PUBLIC RECORD ACT EXCEPTIONS EXCEPTIONS TO DISCLOSURE Public inspection shall be denied to the following: Medical, psychological and sociological information on individual persons. Hospital records relating to medical administration, staff, personnel medical care, and other medical information. Welfare records. Within any record – income tax return or individual income tax info.

PUBLIC RECORD ACT EXCEPTIONS EXCEPTIONS TO DISCLOSURE Public inspection shall be denied to the following: Personnel files . Personnel files are available to elected and appointed officials who supervise the person in interest. Records or information compiled solely for purpose of investigating violations of personnel rules/policies. Employment contracts/agreements setting out terms of employment are not part of personnel file. Wyo. Stat. §16-4-203.

PUBLIC RECORD ACT COPIES AND FEES If requester has the right to inspect/copy May request copies Entity may charge reasonable fee (if no specific fee is provided under other authority) for copies and custodian time. Fees must be established by ordinance, rule, resolution properly adopted If custodian lacks facilities to make copies, applicant may inspect and copy under supervision of custodian. If must be sent out for copying, requester responsible for charges. Wyo. Stat. § 16-4-204

PUBLIC RECORD ACT DISPUTES   (f)  Any person aggrieved by the failure of a state agency, institution or political subdivision to release records on the specified date mutually agreed upon pursuant to W.S. 16-4-202(c)(iv) or by the failure of a state agency, institution or political subdivision to comply with an order of the ombudsman pursuant to W.S. 16-4-202(c)(v) may: (i)  Apply to the district court of the district wherein the record is found for an order to direct the custodian of the record to show cause why he should not permit the inspection of the record and to compel production of the record if applicable.  An order issued by the district court under this paragraph may waive any fees charged by the state agency, institution or political subdivision; (ii)  File a complaint with the ombudsman who may: (A)  Mediate disputes between the state agency, institution or political subdivision and the person; (B)  Prescribe timelines for release of the records; (C)  Waive any fees charged by the state agency, institution or political subdivision. Wyo. Stat. §16-4-203(additional proposed amendments)

PUBLIC RECORD ACT Note: There is no duty to create a record in response to request

PUBLIC RECORD ACT CONSEQUENCES OF VIOLATIONS Up to $750 civil penalty for knowing or intentional violations. Damages resulting from the disclosure.

Public Records Takeaways Designated Public Records Person Each entity (City, County, Joint Powers Boards) must designate a person. Seven (7) days to inform requesting party if entity has the records. If not – provide contact info for appropriate entity If have the records – 30 days to produce/allow inspection

Public Records Takeaways Record Review before production. Check to see if records fall into may be denied/shall be denied categories. If disclosure denied – must articulate basis.

Public Records Takeaways Disputes – Time / Disclosure /Fees Ombudsman Court

Public Records Takeaways Use official email for official business only. Use personal email for personal business only. Keep confidential information confidential (personnel issues, litigation)