Judiciary Committee hears testimony on public records

SHERIDAN — Several witnesses asked the Wyoming Legislature Joint Judiciary Committee during its virtual meeting Wednesday to prepare better guidance regarding interpretation of public records exemptions going forward.

Co-Chair Sen. Tara Nethercott, R-Cheyenne, said the bulk of discussion and committee action on the topic will take place during the next committee meeting in August, when survey responses from various Wyoming entities will be returned with information about what type of requests they most often receive from the public, their own requests for exemption clarification and challenges each entity experiences as a result of limited guidance.

Nethercott said she hopes to alleviate some discomfort among Wyoming entities by developing guidance for balancing personal privacy and government transparency.

“I do think that’s one of the challenges that many of our governmental entities face, is not knowing when they should turn records over or not,” she said. “And that gets maybe turned around that they’re not being transparent or responding to public records requests as a result of maybe some perceived ambiguity or actual ambiguity in the law.”

Public Records Ombudsman Ruth Van Mark said public records requests have increased in her office, including requests for clarification from government agencies on what constitutes a personnel file.

From October 2019 to present, the ombudsman’s office received 23 complaints, divided nearly equally between state agencies and local government entities — 21 resolved and two pending.

Van Mark said she has noted state agencies are more responsive to public records requests than local governmental entities. She speculated the pattern is a result of a lack of understanding on the local level as to the nuances of the Public Records Act and exceptions.

Overall, Van Mark said she believes the system is working well, especially as it pertains to her role as an educator on public records laws.

Sheridan City Clerk Cecilia Good said the city has encountered only minor hiccups regarding public records exemption definitions.

“We have had discussions with the public records ombudsman regarding personnel files, but that is an ongoing conversation,” she said.

Since her appointment as public records ombudsman in September 2019, conversations with Van Mark have been positive, Good said.

If city staff are unsure about whether a document can be released, they typically consult with the city attorney and rarely reject requests, Good said — erring on the side of transparency.

In 2018, the city adopted a policy that “bridges the gap” in interpretation of public records statutes. Good said she generally receives 50 requests annually, not including police and fire departments who have their own public records processes for managing sensitive material. No one type of request is more common than another.

“The city has not been negatively impacted by changes to public records legislation,” Good said. “This is largely due to the fact that we got out ahead of the changes with our policy.”

During committee, Vice President and General Counsel for the University of Wyoming Tara Evans highlighted problems with ambiguity in exemption definitions such as “personnel file” and “sociological data.”

Evans informed the committee as to challenges interpreting concepts like “clearly unwarranted invasion of personal privacy” and lack of guidance on redaction versus withholding a piece of information altogether.

Per public records laws, personnel file exemption is mandatory unless under the inspection of a person’s direct appointed supervisor.

However, employment contracts may be considered public records and not personnel, Legislative Service Office Staff Attorney Brian Fuller said. Still, the hardline rule is unclear.

At UW, employment contracts and offer letters are considered public record, while application materials are not, Evans said. She emphasized UW does not advocate for more or less transparency but for clearer language in public records exemptions.

Executive Director of the Wyoming School Boards Association Brian Farmer said the pool of applicants for educators is shrinking, especially for superintendents. Many potential candidates will not apply for the job if their application is public, as it could jeopardize their current job, he said.

Requests for student records or emails are often time consuming, as staff must read every word and page to ensure no information needs to be redacted, or sift through 50,000 emails and eliminate the false positives associated with a search, Evans said.

Unlike federal guidelines and other state statutes, sociological data is not defined in Wyoming, despite its status as a “shall not disclose” exemption in public records requests.

Substantial personnel information is often included in emails — and under UW’s interpretation of the sociological data exemption, should be redacted — but staff are unsure if that interpretation is correct, Evans said.

“I think it might be helpful to have some sort of definition in the Wyoming law so, again, we’re not interpreting what we’re supposed to be handing over — we’re just not handing it over, or handing it over,” she said.

Investigatory files are discretionary to the record holder but balancing witness rights and personal privacy often leads to confusion. Investigations in educational settings range from research misconduct and ethical violations to rape and sexual assault, Evans said. Case law is limited, therefore situations are handled case by case.

One interpretation of the law might encourage entities to withhold information altogether if it contains redaction-worthy information, Evans said. But such a decision could seriously call transparency into question on behalf of the agency.

Evans added UW’s concerns are applicable to a broad range of agencies beyond higher education. Van Mark agreed that personnel file exemptions are an ongoing concern for the public and government agencies, and clarification would help across the board.

Farmer asked the committee to consider school safety and security in the context of public records — how to enhance safety at schools by developing protocols and plans, while keeping information out of the hands of those who would do harm at a school.

Rep. Art Washut, R-Casper, raised the consideration of balancing parental confidence in school safety plans with protecting students from “bad actors.”

Parents need to be able to communicate with a school — and see appropriate documentation — if they think an active shooter drill is traumatic or their child’s school does not have sufficient plans for an active shooter situation, for example, Farmer said, to fulfill a child’s needs for a “safe and nurturing environment with one that’s free from violence.”

Rep. Sara Burlingame, D-Cheyenne, raised an example from the past year when interpretation of school safety and security may have been stretched too far.

While considering whether a particular book could be allowed in an elementary school classroom, a school committee claimed they could enter executive session to discuss the issue as a matter of school safety.

Burlingame said she is concerned about school safety becoming a catch-all for keeping discussion confidential, rather than in a public forum.

Without speaking to the incident specifically, Farmer said school board training on executive session includes education regarding their role as public representatives and responsibility to conduct most business in public view. Exceptions are rare, he said. Executive session is often invoked when boards are receiving legal advice in situations that could lead to litigation, he added.

Joint Judiciary Committee members will revisit issues of public records and public meetings at their next meeting August 20-21, which is currently scheduled as an in-person meeting in Rawlins.