Barbara A. Petersen
Because new technologies such as geographic information systems (GIS) are putting considerable pressure on legislation designed to regulate government information policy when public records were primarily paper, there may be a need to amend traditional public records laws in order to ensure that the benefits of broad disclosure of public information are not lost in the electronic age.1 In response to the difficult questions raised by the accelerating computerization of public records, the Joint Committee on Information Technology Resources (JCITR) of the Florida Legislature held a series of three public hearings in September 1993, gathering testimony on a variety of topics and concerns regarding access to electronic records. The Joint Committee then published a report of its findings and drafted legislation in accordance with the conclusions reached in the report. 2
The issues discussed during these public hearings are not unique to Florida, and thus merit universal discussion. The intention of this paper is to examine the points and themes raised and the conclusions made by the Joint Committee in its final report.
1. ISSUES IDENTIFIED BY THE JCITR
1.1 Definition of Key Words
Because of the increasing conversion of public records from paper to electronic formats, the nuance of key words commonly used in many public records laws has been challenged, their definition and interpretation opened to revision.
1.1.1 Record
Although there is little question that an electronic record is as much a public record as its paper counterpart, there is some uncertainty as to what, exactly, constitutes a "record" when public records are in an electronic format. For example, most government agencies maintain large databases comprised of millions of pieces of information; a specific "record" may not be created until a query is formed and the software associated with the database manipulates the information, which in turn compiles the record formulated by the query. This problem becomes more acute as the complexity of modern information systems increases.
All 50 states have some sort of public records law or freedom of information act, and the majority use an "inclusive definition" of public record similar to that in the Federal Records Act which specifically includes computerized records . 3 In Kentucky, for example, the definition of public record is similar to that found in the Federal Records Act, but the Kentucky law goes a step further by stipulating that public records maintained "by computer or other rapid access data collection system . . . shall be kept in a manner which will allow the public unlimited and speedy access to them."4
In examining Florida's definition of "public record" which contains the inclusive phrase, "regardless of physical form or characteristics," the Joint Committee concluded that the current definition is generally sufficient, a conclusion consistent with testimony received during its public hearings. However, the Committee recommended that the statutory definition be amended to specifically include electronic mail and agency-created data processing software for the purpose of clarification.5
1.1.2. Custodian
When records were primarily paper, there were a limited number of duplicate copies available at any given time, and the public official who had actual physical custody of the record was considered its custodian. But now, as public records are increasingly converted to electronic formats, a greater number of government agencies may have simultaneous possession--and control--of any given record.
The issue of custodianship arises when a requester seeks access from one of the custodial agencies rather than the agency which actually created the requested record. The Florida Local Government Information Systems Association (FLGISA) would make a distinction between "custodian" and "steward" for purposes of maintenance and dissemination: the custodian of a public record would retain control of and responsibility for access to the record; the steward would refer requesters to the appropriate custodian. 6
At the federal level, the issue of custodianship is centered on who has control of a public record; the U.S. Supreme Court has held that "control" means "that the materials have come into the agency's possession in the legitimate conduct of its official duties," and the focus of any inquiry is "whether an agency has possession and sufficient control over records to make them the records of [the] agency."7
A number of states have defined the word "custodian" in their respective public records laws. Massachusetts, for example, defines custodian as "the governmental officer or employee who in the normal course of his or her duties has access to or control of public records."8 Amendments were made to Oregon's Public Records Law during the 1993 Session to make a legal distinction between "custodian" and "agent." As defined in the Oregon statutes, "custodian" means "[a] public body mandated . . . to create, maintain, care for or control a public record;" an agent is distinguishable from the custodian of a record in that "[a]n agent has temporary custody of a record because it is performing some duty or service for the custodian."9 The distinction was made in response to the problems that can surface when agencies share electronic databases and one agency is asked to provide access to the records created or maintained by another agency.10
There was a moderate amount of testimony on this matter, both verbal and written, provided at the Joint Committee's public hearings. There was little consensus, however, in the testimony offered. Those government representatives in support of a statutory distinction between "custodian" and "steward", testified that due to the complexity of modern information systems, "custodian" as used in Florida's Public Records Law needs clarification. They expressed a concern that information services staff who are responsible for processing public records may not be fully aware of the applicable statutory exemptions and of the nuances or inter-relationships which must be considered before releasing public information. However, the Joint Committee concluded that making a distinction between the custodian of a public record and the agent or steward of that record for purposes of maintenance and dissemination may create inadvertent barriers to public access, and recommended that the statutory distinction not be made.11
2. COST OF ACCESS AND FEES TO BE CHARGED
One of the primary issues fueling the current debate on access to electronic records centers around cost recovery and exactly what fees may--or should--be recovered by government agencies. Because of the sophistication of the information available on a digitized GIS map, its commercial value grows, it would seem, almost exponentially. In fact, the commercial value of many electronic records, particularly GIS records, far exceed their regulatory value. The problem confronting government agencies is that the data necessary for new information technologies--like GIS--can be expensive to collect and maintain, and most traditional public records laws do not distinguish between different types of information technology. Nor, generally, do they allow for recovery of development and maintenance costs.
In examining the issue, the Joint Committee identified three possible alternatives to traditional fee schemes: fees based on the commercial value of the record requested; exemptions for specific types of information technology; or establishing a flat statutory fee for certain records.
2.1 Commercial Value
Those in favor of charging commercial value for public records offer two possible approaches: fees based either on the commercial value of the record requested, or on the motivation of the individual requesters. In general terms, the belief is that a fee higher than cost is something akin to a user fee, that those requesters who stand to benefit or gain financially from their use of public records should pay to help recover the price of developing and maintaining public records and the corresponding information systems.
Many supporters of this approach want government to act in a more business-like manner, a philosophy espoused in the book, Reinventing Government: How the Entrepreneurial Spirit is Transforming the Public Sector. However, while recognizing that user fees are "[p]erhaps the safest way to raise nontax revenue . . . ," the authors of Reinventing Government caution that user fees, which lower demand for public goods and services, are not appropriate for "collective goods" which benefit the public as a whole, 12 and the Joint Committee found that publicly-funded government records are public assets, which can serve to "'strengthen the economy, develop knowledgeable citizens, and promote better decisions on public and private matters.'"13
Over the past few years, a number of states have amended or considered amending their statutes to allow for fees based on the commercial value or use of public records. Minnesota's Government Data Practices Act, for example, was amended in the late 1980s to focus on the commercial value of the record requested, allowing custodians to charge a reasonable fee for government data which is commercially valuable. 14 New York has been considering legislation which would establish fees for public records based not only on the nature of the record requested, but on the motive of the requester as well. The legislation, which is "based upon a recognition that government information is increasingly obtained and used as [a] commodity," would authorize local governments to establish fees based upon the commercial utility, or nature, of certain specified records.15 In contrast, the Virginia Senate passed a bill during its 1992 Session which would amend the state's Freedom of Information Act to require that computerized public records be made accessible to the public on the same basis as official records maintained in other formats, stipulating that the requester of computerized records "shall not be required to pay any costs not directly related to the request, including unrelated overhead, capital or development costs, or royalty or license fees."16
Citing the practical difficulties involved in questioning and verifying the identity of requesters, as well as serious public policy concerns and constitutional issues which would be inherent in a policy that distinguished between users of public records, the Joint Committee rejected the commercial value approach.17 The Committee found that if a government agency based its acquisition of new information technology systems upon a positive and supportive cost/benefit analysis, increasing fees for public access simply because of the commercial value of certain electronic records could not be justified. 18
2.2 Statutory Exemption
This approach involves creating a statutory exemption for specific types of technology--all records maintained on a GIS, for example--or an exemption for the commercial use of certain specified records.
Some states have enacted legislation to exempt GIS from their public records laws. Kentucky recently enacted a statute which exempts agency GIS databases from public disclosure if the requester is seeking the information for commercial purposes.19 The North Carolina Legislature passed a bill during the 1991 session stipulating that GIS "databases and data files developed and operated by counties and cities are public records within the meaning of" the State's public records law, and requiring that copies of the GIS records be provided at a reasonable cost in electronic form. However, a person seeking a GIS record in an electronic form may be required to agree in writing that the record will not be used for a commercial purpose.20 In contrast, the Georgia Legislature recently repealed a law prohibiting the commercial use of public records just one year after its enactment. 21
Ostensibly, there are two rationales for the statutory exemption approach. First, by exempting the commercial use of GIS records, Kentucky has effectively pulled those records from the strictures of its public records law, thus allowing agencies to charge commercial users more for GIS records than for other records. The other possible rationale is to protect the subjects of certain public records from commercial exploitation. However, a Texas statute which prohibited the commercial use of crime victim and motor vehicle accident information was recently struck down by a federal court on constitutional grounds. 22
The Joint Committee received scant testimony on the issue of providing an exemption for a particular type of technology during its public hearings, and eventually rejected the alternative as too impracticable.23 In rejecting the statutory exemption alternative, the Joint Committee determined that if such an exemption was created, it would be too easy to circumvent the access requirement of any public records law simply by utilizing the exempt technology. The more serious problem, the Committee found, is in trying to predict the path of rapid advances in information technology. As regards GIS, experts in the field generally agree that within 10 years most information technology systems will be based on GIS technology. An exemption for GIS technology created today, then, could exempt virtually all public records in the future. 24
2.3 Statutory Fee
The third alternative is to establish a flat statutory fee for certain records in an attempt to recoup some of the overhead costs associated with providing access. In rejecting this approach, the Joint Committee found that it would be too difficult to determine the fee--what factors are to be considered, how much is too much, etc.
Additionally, the Committee concluded that allowing a flat fee per record may become unreasonable if a requester is seeking an entire database in an electronic format.25 For example, there are 12 million registered drivers in Florida. If a requester were required to pay the $3.00 per record the Department of Highway Safety and Motor Vehicles (DHSMV) is currently authorized to charge under Florida law, it would cost $36 million for a copy of the entire DHSMV driver history database--a patently absurd fee, yet one that is seemingly authorized by law. 26
3. BARRIERS TO ELECTRONIC ACCESS
The rapid emergence of computer and communications technologies over the past twenty years has effectively increased government's ability to create, manipulate, and disseminate information. "Ironically, these same technologies also threaten to diminish" access to public records controlled by these new technologies through the inadvertent creation of barriers to electronic access. 27 The Joint Committee identified the following three barriers to electronic access:
3.1 Format of the Record Requested
At the most basic level, the format of the record requested may be a barrier to meaningful access. For example, a paper copy of a public record may be the only meaningful format for a requester without access to a computer. In comparison, a requester with the technological capability to manipulate and massage an entire database in some electronic format would find a paper copy of that data not only inhibitive, but most likely useless as well.
Many of the recent amendments to the public records laws of other states have dealt with the form or format in which a record must be provided. Under a 1990 amendment to Alaska's Public Records Law, public agencies are "encouraged to make information available in usable electronic formats to the greatest extent possible."28 Connecticut, on the other hand, requires public agencies maintaining records "in a computer storage system" to provide copies of "any nonexempt data contained in such records" in the form requested "if the agency can reasonably make such copy or have such copy made."29 At the federal level, recent revisions to Circular A-130, used by federal agencies as a guide in fulfilling their public records dissemination obligations, ensure the public's ability to access federal records "regardless of form or medium".30
Based on testimony received at its public hearings, the Joint Committee concluded that government agencies should be required to provide a copy of a public record in the format requested if the agency maintains the record in that format. If the record is not maintained in the format requested, an agency should have the option of either converting the record to the format requested, or providing the record in some alternative meaningful format. 31
3.2 System Design and Development
Barriers to electronic access are frequently created when government agencies design new information technology systems and begin the process of converting paper records to an electronic format without considering public access. The U.S. Congress, Office of Technology Assessment, has stated that all federal agencies should include public access "and related dissemination requirements in each agency's 'life cycle' approach to information resources management and agency information."32 Connecticut's Freedom of Information Act takes this a step further, requiring public agencies to consider, prior to acquisition of "any computer system, equipment or software" used to store or retrieve nonexempt public records, whether the proposed system "adequately provides for the rights of the public" to access nonexempt public records "at the least cost possible to the agency" and the requester. 33
The deletion--or redaction--of exempt information may also create a barrier to electronic access if not considered prior to system design and development. Most state public records laws, as well as the federal Freedom of Information Act, require the segregation of exempt and nonexempt information; few, however, seem to address who is to pay for redacting the exempt information. One major exception is Minnesota, which stipulates that agencies may not charge a requester for redacting exempt information from a public record.34 Michigan requires its agencies to consider redaction of exempt information in the design of a public record when feasible. 35
There was a significant amount of testimony on the related issues of system design and redaction of exempt information at the Joint Committee's public hearings. Although there was general agreement among those testifying about the need to make public access, including redaction capability, a consideration in the design and development of information technology systems, a number of speakers worried about the high cost of retrofitting existing systems. Based on this testimony and its findings, the Joint Committee concluded that the purpose of Florida's Public Records Law should not be thwarted by technology or frustrated by an agency's adaptation to the computer age, and recommended that the law be amended to require agencies to consider public access and redaction in the design and development of all new information technology systems, or when making a major modification to an existing system. 36
3.3 Copyright
Another possible barrier to access concerns copyright, an extremely complex issue. Briefly, the Federal Copyright Act of 1976 allows copyright protection for all original works of authorship, including computer software and electronic databases, while prohibiting such protection for any work in the public domain. Although section 105 of the Federal copyright law precludes copyright protection for works of the federal government, each state is allowed to decide which of its own products may be copyrighted. Other than this basic right, however, the federal Act preempts any state-created rights within the general scope of copyright. 37
According to a subcommittee of the American Bar Association, by 1989 at least 28 states were claiming copyright protection on a variety of very basic, state-produced materials.38 In 1992, the Colorado Legislature has enacted a law authorizing state agencies to obtain and enforce copyright protection for any public record. The law specifically states, however, that such authorization "shall not restrict public access to . . . [the] copyrighted materials and shall not apply to writings which are merely lists or other compilations."39 Utah also recently passed legislation allowing its state agencies to hold copyright, and to control the access, duplication, and distribution of the protected material "based on terms the government entity considers to be in the public interest."40
At least seven states, including Kansas, Oklahoma, Oregon, Utah, Virginia, and Wisconsin, have exempted computer programs from their respective public records laws, and others have specifically provided for copyright or copyright-like control over agency-created software. In Alaska, for example, state law authorizes agencies and municipalities to copyright software and to protect their copyright through enforcement procedures. 41 California amended its statutes in 1988 to exempt agency developed software from its public records law, authorizing state agencies to "sell, lease, or license the software for commercial or noncommercial use."42
There was considerable testimony on the issue of copyrighting both software and databases at the Joint Committee's public hearings. Because there was general agreement that copyright of electronic databases should not be permitted, the Joint Committee focused most of its attention on the issue of copyrighting software, and found that the copyright of computer software, whether agency-created software or proprietary software (developed and copyrighted by a third party), raises serious concerns about meaningful access to the data manipulated by that software. The Committee also found that an increasing number of public records and public record databases throughout Florida government are controlled by proprietary software, and recommended that the Florida statutes be amended to require government agencies using proprietary software to either obtain a license which would permit the agency to provide a requester with a copy of the software, or to ensure that such software is capable of creating an electronic copy of the public records manipulated by the software in some common format, such as ASCII.43
4. Privacy and Data Protection
New computer-based information technologies permit rapid accumulation and exchange of personal information concerning large numbers of individuals, and computers are increasingly used to certify the accuracy and completeness of personal information before an individual receives government benefits or services. In many states, the vast majority of this personal information becomes public record.
Although the right to privacy is generally considered a fundamental right, the parameters of an individual's right to privacy are only vaguely defined, and any discussion of the topic is complicated by the fact that there are three distinct aspects of the right. First, there is a right under state tort law to bring an action for damages for invasion of privacy by private citizens or businesses. 44 The second aspect of the right to privacy is rooted in the U.S. Constitution and involves an individual's right to be free from governmental intrusion into his or her private life45;a number of states, including Florida, have built upon this constitutional guarantee by including a more specific right to privacy in their respective state constitutions.
Third, statutory rights to privacy have been created over the past twenty years by the federal government and some states. The majority of these statutes are, in reality, data protection laws which include standard fair information practices.46 Generally, fair information practices acts govern the collection, use, disclosure, retention, and disposal of personal information by government. At a minimum, such acts require all government agencies to: (1) justify the need for the personal information collected; (2) provide notification of any secondary use of such information; (3) maintain an index of all data bases containing personal information; and (4) provide individuals with the opportunity to verify the accuracy of the information.
The distinction between privacy protection and data protection is not, generally, well-understood. The focus of data protection is on the individual's right to know what personal information is collected and maintained by government, and to allow the individual the opportunity to verify the accuracy of that information. 47 The federal government and at least 14 states currently have some type of fair information practices or data protection legislation.
In examining the issue of privacy and data protection, the Joint Committee found that, because Florida has some of the strongest policies favoring disclosure of public records in the country, the conflict between an individual's right to privacy and public access to government records is particularly inescapable.48 The Committee also found that an individual's right to privacy may be protected to some degree by legislative exemptions to the inspection and copying requirements of Florida's Public Records Law--under the current statutory scheme, there are over 500 specific exemptions for certain confidential or sensitive information which would otherwise be a matter of public record. Currently, however, there is no protection for personal information which remains publicly accessible, and the Joint Committee recommended enactment of a Fair Information Practices Act. 49
Although most of those who testified at the Joint Committee's public hearings recognized the need for some sort of data protection law, they expressed the concern that whole classes of public records would be closed because of the possibility that public access may somehow be abused or misused. The Joint Committee found some merit to such concerns. The Committee concluded, however, that the misuse of public access is not a question of privacy, but rather of unlawful conduct, and closing public records in the name of privacy because of the criminal behavior of specific individuals may be an inappropriate response.
1. See B. Chamberlin, The Public Records Act: Should Trade Secrets Remain in the Sunshine?, 18 Florida State Univ. Law Review 559, 560 (1991); and J. Berman, The Right to Know: Public Access to Electronic Public Information, 3 Software Law Journal 491, 524 (1989).
2. See Joint Committee on Information Technology Resources, Florida Legislature, Electronic Records Access: Problems and Issues (1994) (hereinafter, JCITR Electronic Records Report).
3. See S. Scott, Suggestions for a Model Statute for Access to Computerized Government Records, 2 William ~ Mary Bill of Rights Journal 29, 47-48 (No. 1 1993). See also 44 U.S.C. § 3301.
4. See KY. REV. STAT. ANN. §§ 61.870(2); 65.030. Public agencies in Kentucky are also required to provide "suitable facilities" for the inspection of public records. Id. § 61.872(1).
5. See JCITR Electronic Records Report, note 2, supra, at 56; 145. Florida's definition of "public record" contains the inclusive phrase, "regardless of physical form or characteristics" [FLA. STAT. § 119.011(1)], and has been interpreted to mean "any material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalized knowledge of some type" [Shevin v. Byron. Harless, Shaffer. Reid and Assoc., 379 So.2d 633, 640 (Fla. 1980)], including "all of the information stored on a computer" [Seigle v. Barry, 422 So.2d 63, 65 (Fla. 4th DCA 1982), pet. for review denied, 431 So.2d 988 (Fla. 1983)].
6. See Florida Local Government Information Systems Assoc., Position Paper - "Who Is the Record Custodian?" (Dec. 29, 1992)(on file with the Jt. Legis. Info. Tech'y Resource Comm., Tallahassee, FL).
7. Department of Justice v. Tax Analysts, 109 S.Ct. 2841, 2847 2848 (1989). See also P. Goldman, The Freedom of Information Act Needs No Amendment to Ensure Access to Electronic Records, 7 Government Information Quarterly 389, 392 (1990).
8. MASS. REGS. CODE tit. 950, § 32.03
9. See Or. SB 500 (1993) (codified at OR. REV. STAT. § 192.410(2)(b)) (emphasis added); and Office of the Secretary of State, State of Oregon, Comprehensive Public Records Legislation Proposed to Promote Government Accountability and Protect Personal Privacy (News Release, Feb. 23, 1993).
10. B. Bridges, Supplemental Report on Issues Related to SB 500 and SB 499 1 (Feb. 1993) (on file with Jt. Legis. Info. Tech'y Resource Comm., Tallahassee, FL).
11. See JCITR Electronic Records Report, note 2, supra, at 67; 147 (citations omitted). This conclusion is supported by at least two Florida Supreme Court decisions. See Wait v. Florida Power & Light Company, 372 S.2d 420, 425 (Fla. 1979); and The Tribune Company v. Cannella, 458 So.2d 1075, 1079 (Fla. 1984), appeal dismissed sub. nom., DePerte v. Tribune Company, 471 U.S. 1096 (1985).
12. D. Osborne and T. Gaebler, Reinventing Government: How the Entrepreneurial Spirit is Transforming the Public Sector 203-204; 199 (1993).
13. See JCITR Electronic Records Report, note 2, supra, at 87 (citing National Geo Data Policy Forum, Summary Report: Present and Emerging U.S. Policies Governing the Development, Evolution and Use of the National Spatial Data Infrastructure 6 (1993)).
14. MINN. STAT. § 13.03, Subd. 3.
15. See Department of State Committee on Open Government, State of New York, 1992 Report to the Governor and the Legislature 33; 36, § 19 (amending N.Y. PUB. OFF. Law § 87). Commercial fees would not be charged for requests from other government entities, the news media (if for news gathering), researchers, the subject of the record, or for "any other purpose unrelated to profit-making, commercial or similar activity." Id. at 35.
16. See Va. SB 332, § 1 (Engrossed) (1992) (amending VA. CODE ANN. § 2.1-342). Although the bill passed the Virginia Senate in 1992 by a 38-0 vote, it failed in the House Committee on General Laws. However, according to an aide of the bill's sponsor, Senator Ed Houck, the legislation has been carried over to the 1994 session.
17. See JCITR Electronic Records Report, note 2, supra, at 147.
18. See JCITR Electronic Records Report, note 2, supra, at 88 89. According to a study prepared by the South Florida Water Management District, a new GIS paid for itself through increased efficiency within 2 years, rather than the 4 years as projected. Id.
19. KY. REV. STAT. ANN. § 61. 970.
20. 1991 N.C. Sess. Laws ch. 285, § 1 (enacting H.B. 358 (emphasis added). Inexplicably, the act applies to only two counties and four cities. Id. at § 2.
21. H. Jones and M. Horiuchi, State Freedom of Information Litigation and Legislation Update 44 (citing GA. CODE ANN. § 50.18-70 (1993)) (paper presented to the 15th Annual Conference on Governmental Ethics Laws) (Sep. 20, 1993).
22. See Innovative Database Systems v. Morales, No. 91-C-1663-T (N.D. Tex. Jun. 24, 1992), aff'd, 990 F.2d 217 (5th Cir. 1993). In striking the statute, the District Court held that a wholesale ban on the commercial use of lawfully obtained public records was an unconstitutional restriction of commercial speech under the First Amendment. See 990 F.2d at 218.
23. See JCITR Electronic Records Report, note 2, supra, at 147.
24. See Florida's Growth Management Data Network Coordinating Council, Public Records Law Subcommittee, Final Report 41 (1992).
25. See JCITR Electronic Records Report, note 2, supra, at 147; 97-98.
26. See FLA. STAT. § 322.20(10)(a). Under Florida's Public Records Law, the custodian of a public record cannot charge more than the actual cost of duplicating the record, plus any applicable extensive use charges, without specific statutory authorization. See FLA. STAT. § 119.07(1). A few agencies, including DHSMV, have such authorization for their records custodians.
27. See K. Allen, Access to Government Information, 9 Government Information Quarterly 67 (No. 1 1992).
28. 1990 Alaska Sess. Laws 637, 638 (amending ALASKA STAT. § 09.25115(b)).
29. CONN. GEN. STAT ch. 3 § 1.--19a(a).
30. Federal Information Resources Management (Circular A-130), Revision; Notice, S8 Fed. Reg. 36088; 36072. Circular A-130 is produced by the U.S. Office of Management and Budget as required by the Paperwork Reduction Act of 1980. See 44 U.S.C. ch. 3
31. JCITR Electronic Records Report, note 2, supra, at 149.
32. See P. Hernon, Government Information Policy Principles, 8 Government Information Quarterly 393, 395 (No. 4 1991).
33. See CONN. GEN. STAT. § 1--19a(a).
34. See MINN. STAT. § 13.03 subd. 3.
35. MICH. COMP. LAWS. ANN. § 15.244(I)(2).
36. See JCITR Electronic Records Report, note 2, supra, at 113 114; 150.
37. See 17 U.S.C. §§ 102; 105; 301.
38. See American Bar Association, 1989 Annual Committee Reports Section of Patent, Trademark and Copyright 224 (1989).
39. Colo. HB 92-1195 (1992) (enacting COLO. Rev. STAT. § 24-72 203(4)).
40. UTAH CODE ANN. § 63-2-201.
41. See ALASKA STAT. §§ 29.71.060; 44.99.400.
42. CAL. GOV'T CODE § 6254.9(a).
43. See JCITR Electronic Records Report, note 2, supra, at 150 151.
44. The "right to be left alone" was first articulated by Thomas M. Cooley in his Treatise on the Law of Torts, published in 1880. Samuel Warren and Louis Brandeis, however, are credited with having created the right to privacy in their seminal law review article, The Riqht to Privacy. See 4 Harvard Law Review 193 (1890).
45. See A. Westin, Privacy and Freedom 7 (1967).
46. See, e.g., R. Smith, The Law of Privacy in a Nutshell 6 (1993).
47. See, e.g., D. Flaherty, On the Utility of Constitutional Rights to Privacy and Data Protection, 41 Case Western Reserve Law Review 831, 834 (1991); and E. Levine, Access and Protection, Chief Officer of State Library Agencies, Gateways to Comprehensive State Information Policy: A Conference for State Government Stakeholders (Raleigh, NC Oct. 15-17, 1988).
48. See JCITR Electronic Records Report, note 2, supra, at 140. Article 1, section 24 of the Florida Constitution guarantees public access to the records of all three branches of State government. In apparent contrast, article 1, section 23 guarantees a person's "right to be left alone and free from governmental intrusion into his private life." However, the right to privacy is specifically secondary to the public's right of access. See FLA. CONST. art. 1, § 23.
49. See JCITR Electronic Records Report, note 2, supra, at 140; 152.