CONTENTS

Introduction
New Definitions
Exempting Agency-Produced Software from Open Records Statutes
Copyright of Agency-Produced Software
Geographical Information Systems
Enhanced Access
Commercial Value
Privacy
Electronic Mail
Conclusion
Appendix A. Survey of State Open Records Laws

Introduction

In recent years states have amended or revised their open records laws to reflect increasing use of computer storage and retrieval technology. All 50 states and the District of Columbia include computerized records in their definition of public records, either specifically in the statutory language or through judicial interpretation.

New Definitions

Illinois' definition of public information now includes "cards, tapes, records, electronic data processing records, recorded information, and all other documentary materials, regardless of physical form or characteristics." (Ill. Ann. Stat. ch. 5, para. 140/2 (c)-(d) (Smith-Hurd 1993)) Texas and Florida have recently amended their definitions of public records. The Texas Open Records Act now defines public records as information recorded on "paper; film; a magnetic, optical, or solid state device that can store an electronic signal; tape; Mylar; linen; silk; or vellum." (Tex. Gov't. Code Ann. §552.002 (Vernon 1995)) Florida has recognized that documents in any form, "regardless of means of transmission," should be accessible. (Fla. Stat. ch. 119.01 (1995)) Today state open record statutes leave little room for doubt that the public may access records in any format, including an electronic format.

States continue to revise their open records acts to keep pace with advancing technology. Although controversy no longer surrounds the debate over inclusion of computerized records, new issues arise as a result of widespread use of technology among government agencies. The following summaries reflect the current trends.

Exempting Agency-Produced Software from Open Records Statutes

Many state legislatures have amended their open records statutes to exempt agency-developed software. Currently 20 states have statutes that exempt software in some way, and the attorneys general of Michigan, Mississippi and Nevada have issued opinions exempting government software. Alaska, Florida and Kentucky specifically include software in the definition of public record.

In some states, the impetus for exempting software is to allow agencies to sell or license software for a fee. These fees help to recover the cost of developing software and may generate revenue, because requesters of government software value the software enough to pay higher fees to obtain it. Some states have policies that prohibit the government from charging the public to acquire software originally developed with public funds. The rationale behind this policy is that taxpayers paid once to develop software and should not pay again to obtain it.

In many states agencies may offer software to the public for a higher fee than that specified in the act's fee schedule. This fee allows the agency to recover expenses such as overhead, staff salaries and the costs of developing and marketing the software. Exempting software from the definition of public records can provide significant revenue for the state.

Copyright of Agency-Produced Software

Several states, including California, Colorado, Florida, Minnesota, Nevada, North Dakota and Utah, allow agencies to copyright software in addition to exempting some types of software from their open records acts. The owner of a copyright, usually the author of the work, has the exclusive rights of reproduction, distribution, derivation, performance and display of the copyrighted work. Copyrighting any work inherently causes a conflict between the public's interest in dissemination of knowledge and the author's economic interest. The differences between state and federal copyright policy further complicate this internal tension. Federal law prohibits the federal government from holding a copyright on government produced works.

Opponents of state copyright provisions support this federal policy and believe that state policies should follow suit. They argue that open access to public information should come before the state's economic interests.

But the proponents of state-held copyrights reason that copyrighting not only allows state governments to protect their own proprietary interests, it also ensures the accuracy and integrity of government-produced software. These advocates note that states have a strong interest in preventing the misuse of government-developed software and information, and copyrighting protects the public's access to truthful and accurate information.

Geographical Information Systems

A few states exempt geographical information system (GIS) data bases from their open records acts, or allow agencies to charge higher fees for GIS information. These data bases, like software, are an important tool for many public and private entities. Direct marketers, political organizations, and others use these systems to manipulate and overlap geographical data in order to pinpoint a specific population or geographical feature. By specifying a number of wanted attributes or factors, requesters may narrowly target these populations or features.

In Iowa, Tennessee, Texas and Kentucky, agencies or public entities may charge higher fees for access to GIS information than to other public information. Iowa's statute, for example, provides that agencies may charge "reasonable fees" for GIS information. (Iowa Code §22.2(3) (1993)) An agency may determine that a reasonable fee is one that allows the agency to recover overhead or to recoup the value of the information sought. The words "reasonable fees" provide a broad framework within which agencies may set fees.

Although Tennessee and Kentucky allow agencies to set reasonable GIS access fees, agencies in these states may charge higher fees only to commercial requesters. Because noncommercial (e.g., nonprofit, research or journalistic) requests may serve a public purpose, policymakers have determined that increased fees for these types of requests would be unreasonable.

Enhanced Access

A few states now charge higher fees for records provided with enhanced access. Generally thought of as remote or on-line access to electronic records, enhanced access gives added value to the requested record. Enhanced access provisions in an open records statute allow an agency to charge a higher fee for the convenience of transmitting information from the agency's modem to the requester's modem. The higher fee may result in an agency recovering costs for such things as developing and updating the computer system, as well as the cost of providing the record.

Some states, including Florida, Indiana and Nebraska, specifically allow agencies to charge higher fees for enhanced access. Counties with a population of 100,000 or more in Nebraska may charge a reasonable fee for "transmitting a record from a modem to a modem." (Neb. Rev. Stat. §84-712.01(2) (1994)) Indiana's law provides that an agency may charge "any reasonable fee" for providing enhanced access to a public record. (Ind. Code §5-14-3-8 (1995)) Advocates of statutory provisions such as these see the higher fee as a way to provide added convenience to the requester.

Alaska requires any agency that provides on-line access to records to also provide free-of-charge at least one public terminal. (Alaska Stat. §09.25.115 (1993)) This allows individuals without computers to benefit from enhanced access.

Commercial Value

Many states now make statutory distinctions between requests from private citizens and requests made for a commercial purpose. The rationale behind making a distinction between commercial and non-commercial requests is that commercial requesters derive significant monetary benefit from enhanced access, therefore they should reimburse the public for the money spent on enhancements. On the other side of the argument, opponents of the distinction believe that an agency's decision to charge for or comply with a record request should not depend on the requester's motive, or the value to the requester of the information sought. They contend that making records more accessible to one type of requester subjugates the original purpose of the open records act. They also argue that difficulties may arise when making the distinction. For example, the distinction requires an agency to question and verify the identification and motive of every requester.

Currently at least eleven states—Arizona, Idaho, Indiana, Kentucky, Minnesota, Oklahoma, Tennessee, New York, Rhode Island, South Dakota and Washington—allow agencies to distinguish between commercial and non-commercial requests. The first seven states in this group make the distinction for fee purposes. Some states permit agencies to take into consideration the commercial value of the information in setting fees. Arizona's statute, for example, states that fees for commercial requests shall include "the value of the reproduction on the commercial market." (Ariz. Rev. Stat. Ann. §39-121.03 (1985))

Four states—Louisiana, North Carolina, Ohio and Virginia—prohibit agencies from making a distinction between commercial and noncommercial requests. The North Carolina public records law states that "no person requesting to inspect or obtain copies of public records shall be required to disclose his or her purpose or motive." (N.C. Gen. Stat. §132-6 (1995)) Ohio has amended its open records statute to prohibit agencies from asking about the identity of the requester, or the intended use of the information. (Ohio Rev. Code Ann. §149.43(H) (Baldwin 1995)) The Supreme Court of Virginia has ruled that agencies may not deny access to a record "simply because the requester plans to use it for a commercial purpose." (Associated Tax Service vs. Fitzpatrick, 372 S.E.2d 625 (Va. 1988)) The attorney general of Louisiana has issued an opinion recommending that fees should not reflect the value of the information. (90 La. Op. Att'y Gen. 330 (1990))

Privacy

Some states make commercial and noncommercial distinctions in order to protect their citizens' privacy. Agencies in these states will often refuse requests of lists of names, addresses, driver's licenses or other personal information if sought for a commercial purpose. A handful of states, including Indiana, New York, Rhode Island, South Dakota and Washington, make explicit provisions for this kind of distinction in their statutes. The federal Violent Crime Control and Law Enforcement Act of 1994 requires states to restrict access to personal information in motor vehicle records. States have until 1997 to comply with the act. (18 U.S.C. §2721 et seq (1994))

Electronic Mail

The status of electronic mail as a public record promises to be an issue for the states in the coming years as the move toward the paperless office advances. Proponents of the inclusion of e-mail in the definition of public record argue that lawmakers should equate e-mail with paper correspondence, which open records acts explicitly cover. Under this argument, certain statutory exemptions meant to protect privacy would apply to e-mail as well as paper records. For example, e-mail that contains preliminary deliberations of an issue might be exempt in a state that requires disclosure of final agency decisions only. Alternatively, some argue that agencies should consider e-mail a meeting between two computer users. Under this theory, undisclosed e-mail violates any existing open meetings law.

Those who contend that e-mail is not a public record compare e-mail to a telephone call. Telephone conversations are confidential and are not public records.

Florida recently amended its statutory definition of public record with the intent to include e-mail and other related modes of electronic communication (including faxes and electronic bulletin boards). (Fla. Jt. Comm. on Info. Tech'y Resources, Electronic Records Access: Problems and Issues 145 (1994)) The new definition includes records "regardless of physical form, characteristics, or means of transmission." (Fla. Stat. ch. 119.01 (1995)) In 1996 Colorado became the first state to explicitly include e-mail and other electronic communications in the open records act. (Colo. S.B. 212, 64th Gen. Ass., 2nd Sess. (1996) (amending Colo. Rev. Stat. §24-72-202 to 24-72-204.5)) Texas exempts confidential communications, including electronic communications, of members of the legislature and the lieutenant governor from the open records law. (Tex. Gov't Code Ann. §323.017 (Vernon 1995))

Conclusion

Electronic records are now subject to open records statutes in all 50 states. Although legislatures have resolved the conflict over computerized records on the side of inclusion, technological developments have reopened the debate. State legislators must decide open records policy for new technology such as GIS data bases and e-mail by balancing privacy, accessibility and revenue interests. Legislatures may not rest once these issues are settled, however. Science promises to generate more policy discussions with every technological advancement.

Appendix A
Survey of State Open Records Laws

Shortcut to state by first letter:

Alabama

Physical forms of records covered: Open Records Statute. (Ala. Code §36-12-40 (1991)) Public records are "any public writing." A court has held computer tapes to be public writings. (Birmingham News Co. vs. Peevy, 21 Media L. Rep. 2125 (Ala. Cir. Ct. 1993)) The attorney general has held computer printouts to be within the statute. (197 Ala. Op. Att'y Gen. 21 (1984))
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: No provision regarding software.
Fees: The statute allows a records custodian to charge "legal fees" for certified copies. (§36-12-41)
Miscellaneous: The state may charge "actual, reasonable fees" required to create a new computer program needed to comply with a request. (Birmingham News Co. vs. Peevy, 21 Media L. Rep. 2125 (Ala. Cir. Ct. 1993))

Alaska

Physical forms of records covered: Public Records Act. (Alaska Stat. §09.25.100 (1993)) Public records are "books, papers, files, accounts, or writings ... regardless of format or characteristics." The law encourages the availability of information in "usable electronic formats." (§09.25.115(a))
Bodies exempt from disclosure: Exempt from fee schedule: Bureau of Vital Statistics; library archives in the Dept. of Educ.; Division of Banking, Securities, and Corporations in the Dept. of Commerce and Economic Devel.; University of Alaska; and the Alaska Railroad Corporation. (§09.25.110)
Policies concerning software: Software developed by an agency or a contractor is subject to the statutory fee schedule. (§09.25.220)
Fees: Fees for electronic services and products "must be based on the actual incremental costs" of providing them, and a "reasonable portion of the costs associated with building and maintaining the information system" of the agency, but the fee may not exceed the actual costs to the agency. When an agency offers on-line access to electronic records, there must be provided free-of-charge at least one public terminal. (§09.25.115)
Miscellaneous: State administrative regulations allow agencies to charge the media for excess searching and copying only if the requests are unreasonable, in bad faith, or require an extraordinary expenditure of state resources. (Alaska Admin. Code tit. 6, §95.130(c) (1993))

Arizona

Physical forms of records covered: Public Records Law. (Ariz. Rev. Stat. Ann. §39-121 (1985)) Public records include "copies, printouts, or photographs."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: No provision regarding software.
Fees: For noncommercial requests agencies may charge a fee for copies. (§39-121.01(D)(1))
Miscellaneous: Fees for commercial requests shall include: cost of copying; costs of time, equipment, and personnel; and the value of the reproduction on the commercial market. (§39-121.03)

Arkansas

Physical forms of records covered: Freedom of Information Act. (Ark. Code Ann. §25-19-101 (Michie 1993)) Public records include "tapes, or data compilations in any form."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: No provision regarding software.
Fees: The act does not address fees. However, the attorney general has stated that agencies may not charge for searching, but may charge reasonable fees for copying. (87 Ark. Op. Att'y Gen. 481 (1987))
Policies concerning or possibly including e-mail: Excludes unpublished memoranda, working papers, and correspondence of the governor, members of the General Assembly, Supreme Court Justices, and the attorney general from the provisions of the act. (§25-19-105)
Miscellaneous: Agencies are not obligated to compile or collect information in the format sought by the requester. (87 Ark. Op. Att'y Gen. 211 (1987))

California

Physical forms of records covered: Public Records Act. (Cal. Gov't Code §6250 (West 1994)) A public record is any writing "regardless of physical form or characteristic." Writing includes "magnetic or paper tapes, magnetic or punched cards, discs, drums, and other documents."
Bodies exempt from disclosure: State judicial and legislative records are exempt. (§6253(a)) The act does not specifically cover regional bodies or nongovernmental bodies receiving public funds. (§6252(a) & (b))
Policies concerning software: Software developed by a state or local agency is not a public record. The agency may sell, lease, or license the software for commercial or noncommercial use. (§6254.9)
Fees: The act allows agencies to charge only direct costs of copying, unless another statute specifically allows for higher fees. (§6257)
Miscellaneous: Computer data shall be provided in a form determined by the agency. (§6256) Counties may not charge for electronic access to public information. (§1232 (effective 1/1/97))

Colorado

Physical forms of records covered: Open Records Act. (Colo. Rev. Stat. §24-72-201 (1993)) Public writings include "all cards, tapes, recordings, or other documentary materials, regardless of physical form or characteristics."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: Software is specifically not included in the definition of public writing. (§24-72-202(7)) Agencies may obtain and enforce trademark or copyright protection for any public record, except that public access shall not be restricted. (§24-72-203)
Fees: Agencies may charge reasonable fees for copies or printouts, not to exceed $1.25/page unless actual costs exceed that amount or a higher fee is set by statute. (§24-72-205(1)) Fees may be reduced for journalistic and other purposes. (§24-72-295(4))
Policies concerning or possibly including e-mail: A new law explicitly makes government e-mail a public record. (§24-72-202 (1996))
Miscellaneous: Requesters may seek either copies or printouts. (§ 24-72-205(1)) If the agency needs to manipulate data to generate a record in a form not used by the agency, a reasonable fee not exceeding actual costs may be charged. (§24-72-295(3))

Connecticut

Physical forms of records covered: Freedom of Information Act. (Conn. Gen. Stat. §1-15 (1993)) Public records are "any recorded data or other information ... tape-recorded, ... or recorded by any other method."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: No provision regarding software.
Fees: Fees for copies shall not exceed the cost to the agency. The cost to the agency for copies other than printouts may include the hourly salary of employees who format or program computers to comply with the request, the hiring of an outside electronic copying service and the storage of devices or media. The costs may not include search costs. (§1-15(b))
Policies concerning or possibly including e-mail: Disclosure is required of inter or intra agency memos or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated. (§1-19(c))
Miscellaneous: Agencies must provide the information in the format requested, including computer tapes or diskettes. (§1-19(a))

Delaware

Physical forms of records covered: Freedom of Information Act. (Del. Code. Ann. tit. 29, §10001 (1991)) Public records are "information of any kind, regardless of the physical form or characteristic by which such information is stored, recorded or reproduced."
Bodies exempt from disclosure: Applies to any agency or political subdivision created by the legislature that disburses or receives state funds, or that makes recommendations to the legislature. (§ 10002)
Policies concerning software: No provision regarding software.
Fees: Agencies may charge a reasonable fee for providing copies of records. (§10003(a)) Each public body is required to establish rules regarding access to public records and fees for copying records. (§10003(b))
Miscellaneous: The Department of State is not required to fulfill a request if the desired format is diskette or magnetic tape. (tit. 8, §391(c))

District of Columbia

Physical forms of records covered: Freedom of Information Act. (D.C. Code Ann. §1-1502 (1992)) Public records are "all cards, tapes, recordings, or other documentary materials regardless of physical form."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: No provision regarding software.
Fees: Search and copying fees cannot exceed the actual costs of searching or copying. Search fees are not to exceed $10 per request. (§1-1522(b))
Miscellaneous: Fees may be reduced or waived if in the public interest. (§1-1522(b))

Florida

Physical forms of records covered: Sunshine Law. (Fla. Stat. ch. 119.011 (1995)) Public records are "all documents, ... tapes, ... or other material, regardless of physical form, characteristics, or means of transmission."
Bodies exempt from disclosure: A 1992 Florida Constitutional amendment applies open records requirements to all three branches of government. (Fla. Const. of 1885, art. I, §24 (amended 1992))
Policies concerning software: Data processing software is included in the definition of public record. ( §119.011) Any agency may copyright its data processing software. The agency may make revenue from the software unless it is used solely for understanding the agency's data. (ch. 119.083) Software obtained under a licensing agreement and which is a trade secret, and "sensitive software" developed by an agency are also exempt. (ch. 119.07(l)(q))
Fees: Fees are limited to the actual cost of copying, including materials and supplies, but excluding labor or overhead cost, unless authorized by other statutes. (ch. 119.07(l)(a)) The agency may charge an additional reasonable special service charge based on the cost incurred for requests that involve extensive use of information technology. (ch. 119.07(b))
Policies concerning or possibly including e-mail: Any discussions between members of a Board of County Commissioners via computer on issues pending before the board are subject to the law. (89 Fla. Op. Att'y Gen. 39 (1989)) The 1995 amendment to the definition of public record was intended to include e-mail by adding the words "or means of transmission." (Jt. Legis. Info. Tech'y Resource Comm., Electronic Records Access: Problems and Issues 145 (1994)) Hillsborough County successfully manages its e-mail system as a public record. (22 Fla. St. L. Rev. 443 (1994)) The judicial branch has adopted a rule which is meant to include e-mail of judicial branch employees as a public record unless otherwise exempt. (In re Amendments to Rule of Judicial Administration 2.051 — Public Access to Judicial Records, 651 So. 2d 1185 (Fla. 1995))
Miscellaneous: Agencies are not obligated to provide copies in the format requested if the agency's software will not provide such a format. (Seigle vs. Barry, 422 So. 2d 63 (Fla. Dist. Ct. App. 1982), now codified as ch. 119.083(5)) Public records may be provided by means of remote electronic access. Special fees under a contractual agreement with a user are allowed. Otherwise, free or minimal fees are to be charged to the general public. (§119.085)

Georgia

Physical forms of records covered: Open Records Act. (Ga. Code Ann. §50-18-70 (1993)) Public records are "all documents, ... tapes, photographs, computer based or generated information, or similar material."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: The statute exempts computer programs or software used or maintained in the course of operation of a public office or agency. (§50-18-72(f)(2))
Fees: Agencies may charge the actual cost of a computer disk or tape. Agencies are required to utilize the most economical means available for providing copies of records. The records custodian may charge for time supervising the search, however, 15 minutes of search time is free. (§50-18-71)
Miscellaneous: Creation of new material in order to comply with a request is not required by the statute. (89 Ga. Op. Att'y Gen. 32 (1989))

Hawaii

Physical forms of records covered: Uniform Information Practices Act. (Haw. Rev. Stat. §92F (1992)) Government records are "information maintained by an agency in written, auditory, visual, electronic, or other physical form."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: The Legislature owns all rights, titles, and interests in all legislatively generated data bases, including software. (§21D-4)
Fees: Fees must be reasonable, but not less than $.25 per page. The fee may include labor costs for locating and copying the record. (§92-21) Fees for electronic records may reflect commercial value, billing services, network usage, and computer consultation time. (§26-9)
Policies concerning or possibly including e-mail: See Policies concerning software.
Miscellaneous: The statute provides that unless the information is readily retrievable in the form requested, an agency shall not be required to prepare a compilation or summary of its records. (§92F-11(c)) Agencies must treat commercial and noncommercial requests the same. (Office of Information Practices Op. Ltr. 90-35 (Dec. 17, 1990))

Idaho

Physical forms of records covered: Open Records Act. (Idaho Code §9-301 (1990)) Public writings include "every means of recording, including all magnetic or paper tapes, magnetic or punched cards, discs, drums, or other documents."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: Computer programs developed or purchased by an agency are generally exempt. (§9-340(16)) Computer programs that are trade secrets are exempt entirely. (§9-340(2))
Fees: Agencies may charge fees limited to the actual costs to the agency excluding administrative or labor costs resulting from locating and providing a copy. A higher fee is permitted for copies of computer tapes, discs, microfilm, or similar systems. That fee may equal the costs of copying plus the market cost of the information in the form of a publication. (§9-338(8))
Miscellaneous: Agencies must write a program to retrieve data for a request if none exists prior to the request. The agency may demand that the requester pay programming costs. (Letter from John McMahon, Chief Deputy, Office of the Attorney General, to J.D. Williams, State Auditor, Office of the State Auditor (June 25, 1993))

Illinois

Physical forms of records covered: Freedom of Information Act. (Ill. Ann. Stat. ch. 5, para. 140 (Smith-Hurd 1993)) Public records are "all records ... cards, tapes, recordings, electronic data processing records, recorded information, and all other documentary materials, regardless of physical form or characteristics."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: "Administrative or technical information associated with automated data processing operations" may be withheld, including software. (para. 140/7(p))
Fees: Only the actual cost of copying or using equipment of the public body in order to copy records may be charged. The fee may not include costs for searching or reviewing the records unless otherwise provided for by state statute. (para. 140/6)
Policies concerning or possibly including e-mail: Preliminary drafts, notes, recommendations, memos and other records in which opinions are expressed, or policies or actions are formulated, are exempt. This includes officers and agencies of the General Assembly. (para. 140/7(f))
Miscellaneous: The agency must provide the information in the format requested, unless it can cite a specific statutory exception. (AFSCME vs. County of Cook, 555 N.E.2d 361 (Ill. 1990))

Indiana

Physical forms of records covered: Access to Public Records Act. (Ind. Code §5-14-3 (1993)) Public records are information "generated on ... magnetic or machine readable media, electronically stored data, or any other material, regardless of physical form or characteristics."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: An agency may withhold computer programs, code and other software that are owned by the agency or entrusted to it. (§5-14-3-4(b)(11))
Fees: The Department of Administration is charged with establishing a uniform copying fee. State agencies may not collect more than the uniform copying fee for providing a copy of a public record. However, fees for copies of computer discs, tape, microfilm or similar systems may not exceed the agency's direct cost of supplying the information plus the market cost of the information in the form of a publication. (§5-14-3-8)
Policies concerning or possibly including e-mail: Records that are intra or inter agency advisory or deliberative material, that are expressions of opinion or are deliberative in nature, and that are communicated for the purpose of decision making are exempt at the discretion of the agency. (§5-14-3-4(b)(6))
Miscellaneous: An agency may charge any reasonable fee for providing enhanced access to a public record. (§5-14-3-8) Lists of public employees, students, and some others may not be used at all for commercial purposes. (§5-14-3-4-(c)(3))

Iowa

Physical forms of records covered: Open Records Act. (Iowa Code §22.1 (1993)) Public records are "all records, documents, tape, or other information, stored or preserved in any medium."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: A bill passed in 1996 allows agencies to copyright their software. (H.B. 2407, 68th Legis. Sess. (1996), to be codified as §22.3A)
Fees: The fee for copies is not to exceed the cost of providing the service. This includes a reasonable fee for supervising the examination and copying of records. (§22.3)
Miscellaneous: Agencies may charge reasonable fees for providing access to Geographical Information System (GIS) data bases. (§22.2(3))

Kansas

Physical forms of records covered: Open Records Act. (Kan. Stat. Ann. §45-215 (1993)) Public records are "any recorded information, regardless of form or characteristics."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: Software programs for electronic data processing are exempt. (§45-221)
Fees: Fees for providing access to or furnishing copies of records may not exceed the actual cost of furnishing copies or of any computer services, including the costs of staff time required to make the information available. (§45-219(c))
Policies concerning or possibly including e-mail: Memoranda, recommendations or other records in which opinions are expressed or policies or actions are proposed are exempt. (§45-221(a)(20)) The attorney general has advised that school board members may be in violation of the open meetings act if a quorum is simultaneously engaged in interactive discussions of board business through use of computer terminals. However, simply sending a message to other board members would not violate the act. (95 Kan. Op. Att'y Gen. 13 (1995))
Miscellaneous: Agencies must compile the specific information requested, but may require the requester to pay the costs of programming the computer to retrieve that information. (Kansas ex rel. Stephan vs. Harder, 641 P.2d 366 (Kan. 1982))

Kentucky

Physical forms of records covered: Open Records Act. (Ky. Rev. Stat. Ann. §61.870 (Baldwin 1994)) Public records are "cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: Software is included in the definition of public record, however software is defined to exclude "specific addresses of files, passwords, access codes, user identifications, or any other mechanism for controlling the security or restricting access to public records." (§61.870(3)(a))
Fees: An agency may charge a reasonable fee for copies of public records. The fee shall not exceed the actual cost not including the cost of staff. (§61.874(2))
Policies concerning or possibly including e-mail: Preliminary recommendations and memos in which opinions are expressed or policies formulated or recommended are exempt. (§61-878(1)(j)) An opinion by the attorney general states that it is not the legislative intent of the act to inhibit free communication between a public employee and his supervisor by mandating that every preliminary memo will eventually become public. (82 Ky. Op. Att'y Gen. 339 (1982)) The Kentucky Information Resources Management Commission has released a paper advising agencies that e-mail can be subject to open records requirements. (Ky. Info. Resources Manag. Comm'n., The Status of Electronic Mail as a Public Record (1996))
Miscellaneous: Agencies may charge a reasonable fee for records requested for commercial purposes. (§61.870) Agencies may charge a "specified fee" for commercial users of GIS information. The fee shall be based on considerations such as the cost of developing the data base and the value of the information. (§61.970) On-line access may be provided at the discretion of the agency. The agency may require the requester to enter into a contract, license or other agreement. Fees shall not exceed the costs of the physical connection to the system and computer time access charges. Commercial requests may also be charged a reasonable fee. (§61.874(6))

Louisiana

Physical forms of records covered: Public Records Act. (La. Rev. Stat. Ann. §44:1 (West 1982)) Public records include "cards tapes, recordings, ... regardless of physical form or characteristics, including information contained in electronic data processing equipment."
Policies concerning software: Software is exempt when it is part of "any automated broker interface system or any automated manifest systems." (§44:4(13))
Fees: The agency may charge a reasonable fee for copies. The fee may be set by regulation or law. (§44:32(C)) The fee should reflect only the expense of generating the information, not its value. (90 La. Op. Att'y Gen. 330 (1990))
Miscellaneous: Fees may be waived for indigents or for requesters whose use of the information is limited to a public purpose. (§44:4(C)(2))

Maine

Physical forms of records covered: Freedom of Access Law. (Me. Rev. Stat. Ann. tit. 1, §401 (West 1993)) Public records are "any mechanical or electronic data compilations from which information can be obtained, directly or after translation into a form susceptible of visual or aural comprehension."
Bodies exempt from disclosure: Legislative papers and reports are exempt until signed and publicly distributed in accordance with legislative rules. (§402(3)(C))
Policies concerning software: No provision regarding software.
Fees: The fee to be charged is the "cost of copying any public record." The agency may also charge for any programming needed in order to fulfill the request. (§408)
Policies concerning or possibly including e-mail: Records, working papers or inter or intra office memos used or maintained by any legislator, legislative agency, or legislative employee to prepare proposed Senate or House papers or reports for consideration by the Legislature or any of its committees are exempt. (§402(3)(C)) See Bodies exempt from disclosure.

Maryland

Physical forms of records covered: Public Information Act. (Md. Code Ann., State Gov't §10-611 (1993)) A public record includes a "computerized record," a "recording," or a "tape."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: No provision regarding software.
Fees: The agency may charge a reasonable fee for searching, preparing and copying records, unless another statute provides differently. The first two hours of search time must be provided at no cost. (§10-621)
Policies concerning or possibly including e-mail: An attorney general opinion makes e-mail sent or received by employees of the Property Appraiser's Office public records. (Md. Op. Att'y Gen. May, 1996)
Miscellaneous: The fee may be waived if providing the record is in the public's interest. (§10-621) Agencies may sell GIS services to the public for a fee that reflects the cost of providing the service. The fee may be waived or reduced if in the public's interest. (§10-904)

Massachusetts

Physical forms of records covered: Public Records Law. (Mass. Gen. Laws Ann. ch. 4, §7 (West 1994)) Public records are "recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics."
Bodies exempt from disclosure: Records of the legislature are exempt. (ch. 66, §18) The general definition of public records does not include court records or nongovernmental bodies either receiving public funds or whose members include government officials. (ch. 4, §7, cl. 26)
Policies concerning software: No provision regarding software.
Fees: An agency may charge a reasonable fee for copying a record. This fee may include the actual expense of the search. (ch. 66, §10(a)) State regulations set the maximum charge for a computer printout at $.50 per page. (Mass. Regs. Code tit. 950, §32.06 (1983))
Miscellaneous: The agency is "encouraged to waive fees where disclosure would be in the public interest." (Mass. Regs. Code tit. 950, §32.06 (1983))

Michigan

Physical forms of records covered: Freedom of Information Act. (Mich. Comp. Laws Ann. §15231 (West 1994)) Public records include "every ... means of recording, including ... magnetic or paper tapes, ... magnetic or punched cards, discs, drums or other means of recording or retaining meaningful content."
Bodies exempt from disclosure: "The governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof" are exempt. (§15.232(b)(i)) While legislative bodies are included under the act, state legislators themselves are exempt. (86 Mich. Op. Att'y Gen. 6390 (1986)) In addition, the courts, including the office of the county clerk and employees thereof, are exempt. (§15.232(b)(v))
Policies concerning software: Computer software is not a public record and may be withheld. (79 Mich. Op. Att'y Gen. 5500 (1979))
Fees: Unless otherwise provided for, fees are limited to "actual mailing costs, and to the actual incremental cost of duplication or publication including labor." This fee does not include the costs of search, examination, review or the deletion and separation of exempt from nonexempt information. (§15.234)
Policies concerning or possibly including e-mail: Washtenaw County has adopted a resolution which makes the county government's e-mail an open record. (Washtenaw County, Mich., Resolution 94-0030 (Feb. 2, 1994))
Miscellaneous: An agency may waive or reduce the fee if it is in the public interest. An indigent requester is entitled to waiver of $20 in fees. (§15.234) A bill passed in 1996 allows agencies to contract with third party vendors to provide enhanced access to records. The agencies may charge a reasonable fee for this service. (Mich. H.B. 5832, 88th Legis. 1996 Reg. Sess. (1996))

Minnesota

Physical forms of records covered: Government Data Practices Act. (Minn. Stat. §13.01 (1993)) Government data include "all data ... regardless of its physical form, storage media, or conditions of use."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: An agency may copyright computer software, therefore making it exempt as a trade secret. (§13.03) The Minnesota Government Information Access Council has issued recommendations that would restrict the use of copyright by state and local government units, but would allow some government works, including software, to be copyrighted. (Minn. Gov't Info. Access Council, Report on Minnesota Government Use of Copyright and Intellectual Property (1996))
Fees: Fees may include the actual costs of searching and retrieving, including the cost of employee time "for making, certifying, compiling, and electronically transmitting the copies of the data." Data that have commercial value may be provided for a fee which reflects the value of the information as well as the actual costs. (§13.03)
Miscellaneous: The Government Information Access Council decides which information is to be made available free or for a fee. The council also decides how the information will be electronically accessible. (§15.95 to 15.96) An agency rule requires agencies to provide access to any person "without regard to that person's interest in the data." (Minn. R. 1205.0300(2) (1994))

Mississippi

Physical forms of records covered: Public Records Act. (Miss. Code Ann. §25-61-1 (1991)) Public records are "cards, tapes, recordings ... and any other documentary materials, regardless of physical form or characteristics."
Bodies exempt from disclosure: The Legislature has "the right to ... regulate access to its records." (§25-61-17) Nongovernmental bodies either receiving public funds or whose members include government officials are exempt. (§25-61-3 (a) & (b))
Policies concerning software: Computer software programs developed by the state are not subject to the act. (Miss. Op. Att'y Gen. (April 3, 1992)) Data processing software that is either a trade secret or is "sensitive" is not subject to inspection, copying or reproduction. (§25-61-9 (6))
Fees: Fees are to be reasonably calculated to reimburse, but not to exceed, the actual cost of searching, reviewing and duplicating. (§25-61-7)
Miscellaneous: A law passed in 1996 allows for public access to electronically stored records. (§25-1-3, 25-61-9 (1996))

Missouri

Physical forms of records covered: Sunshine Law. (Mo. Rev. Stat. §610.010 (1993)) Public records are "any record, whether written or electronically stored ... including any report, survey, memorandum, or other document or study."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: Records are exempt if they relate to "software codes for electronic data processing and documentation thereof." (§610.021(10))
Fees: Fees are limited to the costs of copies and staff time required for making copies. (§610.026(1)(2))
Miscellaneous: Waiver of fees is allowed if it is in the public interest because "it is likely to contribute significantly to public understanding of the operations or activities of the public governmental body and is not primarily in the commercial interest of the requester." (§610.026(1)(1))

Montana

Physical forms of records covered: Public Records Act. (Mont. Code Ann. §2-6-101 (1993)) Public records include "any ... magnetic tape, computer storage media, ... or other document ... regardless of physical form or characteristics."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: No provision regarding software.
Fees: One section requires an agency to provide a certified copy of a record "on payment of the legal fees therefore." (§2-6-102(2)) A more recent section allows an agency to charge a fee not to exceed the actual cost of programming the computer in order to retrieve the data, and the staff time for copying the data. (§2-6-110)

Nebraska

Physical forms of records covered: Open Records Law. (Neb. Rev. Stat. §84-712.01 (1994)) Public records are "all records and documents regardless of physical form."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: No provision regarding software.
Fees: The statute does not address fees for copying or searching, but does provide that a "custodian of a public record of a county" with a population of 100,000 or more may charge a reasonable fee for transmitting "a copy of the public record" from a modem to a modem. (§84-712.01(2)) An agency may not enter into a contract with a private entity to sell public records or provide electronic access to public records for a fee greater than allowed by law. (L.B. 1375, 94th Legis., 2d Sess. §3 (1996), to be codified as §84-713.02)
Policies concerning or possibly including e-mail: The attorney general has stated that for the purposes of deciding whether a document is public or personal, the content of the document is the deciding factor and not the format. The opinion includes an example of intra office e-mail printouts. (92 Neb. Op. Att'y Gen. 77 (1992))
Miscellaneous: Agencies are not required to obtain new equipment or programming to produce records in a new or different form in compliance with a request. (§84-712.01(2))

Nevada

Physical forms of records covered: Open Records Law. (Nev. Rev. Stat. §239.006 (1993)) The act does not define the physical form of public records.
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: State owned or licensed software is not a public record. (89 Nev. Op. Att'y Gen. 1 (1989))
Fees: Agencies may charge "fees as may be prescribed for the service of copying and certifying." (§239.030) Computerized records are to be treated as public records only when they are not available in paper form. (1995 Nev. Stat. 131)

New Hampshire

Physical forms of records covered: Right to Know Law. (N.H. Rev. Stat. Ann. §91-A (1990)) The act does not define the physical form of public records, but provides that any agency that maintains its records in a computer storage system may provide printouts or copies of records to requesters.
Bodies exempt from disclosure: The Department of Employment Security is exempt. (§91-A:6)
Policies concerning software: No provision regarding software.
Fees: Agencies may charge fees reflecting the actual cost of providing the copy, unless other statutes set out other fees. (§91-A:4)
Miscellaneous: Agencies are not required to provide copies if they do not have the necessary equipment. (§91-A:4)

New Jersey

Physical forms of records covered: Right to Know Law. (N.J. Stat. Ann. §47:1A-1. (West 1994)) "All records" are subject to the law.
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: No provision regarding software.
Fees: If no fee is provided for by another statute, an agency may charge no more than $.75 per page for the first 10 pages, $.50 per page for the next 10 pages, and $.25 per page thereafter. (§47:1A-2)
Miscellaneous: If a computer record qualifies as a public record under the law, access may not be denied to any commercial or noncommercial requester. (Techniscan vs. Passaic Valley Water Commission, 549 A.2d 1249 (N.J. 1988))

New Mexico

Physical forms of records covered: Public Records Act. (N.M. Stat. Ann. §14-2-1 (Michie 1994)) Public records are "all documents tapes ... and other materials, regardless of physical form or characteristics."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: No provision regarding software.
Fees: Reasonable fees not to exceed $1 per page may be charged for copies, unless a different fee is otherwise prescribed by statute. Fees may not be charged to recover costs of determining whether information is subject to disclosure. (§14-2-9)
Policies concerning or possibly including e-mail: Letters or memos that are matters of opinion in personnel files are exempt. (§14-2-1(c))

New York

Physical forms of records covered: Freedom of Information Law. (N.Y. Pub. Off. Law §84 (McKinney 1988)) A public record is "any information ... in any physical form whatsoever including, but not limited to, ... computer tapes or discs."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: "Computer access codes" are exempt from disclosure. (§87(2)(i))
Fees: Photocopies may not exceed $.25 per copy. (§87(1)(b)(iii)) Other copies are limited to the actual cost of reproducing the record, except when otherwise prescribed by statute. (§88(1)(c))
Policies concerning or possibly including e-mail: The highest court in New York has held that the mayor's correspondence, both of a personal and of a business nature, constituted information in physical form that was kept or held by the city and was therefore a record subject to the Law. (Capitol Newspapers vs. Whalen, 505 N.E.2d 932 (N.Y. 1987))
Miscellaneous: List of names and addresses may not be released if requested for commercial or fund-raising purposes. (§89(2)(b)(iii)) An agency must provide the records in the format requested, if possible. (Brownstone Publishers vs. New York City Dept. of Bldg. , 560 N.Y.S.2d 642 (N.Y. App. Divs. 1990))

North Carolina

Physical forms of records covered: Public Records Law. (N.C. Gen. Stat. §132 (1993)) Public records include "magnetic or other tapes, electronic data-processing records, or other documentary material, regardless of physical form or characteristics."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: "Nothing in this section requires a public agency to disclose its software security, including passwords." (§132-6.1(c))
Fees: The statute requires an agency to provide "certified copies on payment of fees as prescribed by law." (§132-6) For uncertified copies fees are limited to actual cost. Actual cost includes "chargeable costs related to the reproduction of the record as determined by generally accepted accounting principles, and does not include costs that would have been incurred by the agency if the request had not been made." (§132-6.2(b)) Agencies may not charge more than the actual cost of providing the information. Actual cost includes the cost of supplies but not labor or overhead. (Exec. Order 37 (Jan. 28, 1994))
Policies concerning or possibly including e-mail: "Nothing in this article shall be construed to require or authorize a public agency to disclose information which is the property of a private person." (§132-1.2(2))
Miscellaneous: No person requesting to inspect or obtain copies of public records shall be required to disclose his or her purpose or motive. (§132-6(b)) GIS data bases are public records and access shall be provided by public access terminals or other output devices. Copies shall be furnished at reasonable cost. Requesters must agree in writing that the copy will not be resold or otherwise used for trade or commercial purposes. (§132-10)

North Dakota

Physical forms of records covered: Open Records Statute. (N.D. Cent. Code §44-04-18 (1978)) The statute does not define records.
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: The statute excludes trade secrets including "computer software program[s] and components of computer software program[s]." (§44-04-18.4) In addition, any computer program or software for which an agency obtains a copyright is confidential. (§44-04-18.5)
Fees: The statute does not address fees. However, an agency may not assess a fee, other than copying costs, for access to public records unless the fee is statutorily permitted. (89 N.D. Op. Att'y Gen. 7 (1989))
Policies concerning or possibly including e-mail: Records relating to the Legislative Council, the Legislative Assembly, the House or the Senate, which are records of purely personal or private nature or which reveal the content of private communications between a member of the Assembly and any person are not subject to the act, regardless of physical form or characteristic. (§44-04-18.6)

Ohio

Physical forms of records covered: Open Records Statute. (Ohio Rev. Code Ann. §149.43 (Baldwin 1993)) A public record is "any document, device or item, regardless of physical form or characteristic."
Bodies exempt from disclosure: No bodies specifically exempt.
Fees: The statute requires that copies be made available "at cost." (§149.43(B))
Miscellaneous: Any agency that uses electronic records must "keep and make readily available to the public the machines and equipment necessary to reproduce the records and information in a readable form." (§9.01) Agencies are prohibited from asking about the identity of the requester, or the intended use of the information. (§149.43 (H))

Oklahoma

Physical forms of records covered: Open Records Act. (Okla. Stat. tit. 51, §24A (1991)) Public records are "all documents, including computer tape, disk, or other material regardless of physical form or characteristic."
Bodies exempt from disclosure: Records of the Legislature and individual legislators are exempt except for records kept and maintained on receipt and expenditure of public funds. (secs. 24A.3(2), 24A.4)
Policies concerning software: Computer software is exempt from the act if disclosure would give an unfair advantage to competitive bidders. (§24A.10)
Fees: Fees are limited to "the reasonable, direct costs of document copying, or mechanical reproduction." Copying fees are limited to $.25 per page. (§24A.5)
Policies concerning or possibly including e-mail: "Record" does not mean nongovernmental personal effects. (§24A.3(1))
Miscellaneous: An agency may charge a reasonable fee to recover the direct cost of the document search if the request is solely for a commercial purpose. (§24A.5)

Oregon

Physical forms of records covered: Public Records Law. (Or. Rev. Stat. §192.410 (1993)) Public information, "regardless of physical form or characteristics," encompasses "every means of recording, including ... all maps, files, facsimiles or electronic recordings."
Bodies exempt from disclosure: Electronic data processing programs and software of the office of the Secretary of State are exempt. (§56.100)
Policies concerning software: "Computer programs developed for or purchased by any public body for its own use" are exempt. (§192.501(16)) See Bodies exempt from disclosure.
Fees: The statute allows "fees reasonably calculated to reimburse the agency for its actual cost in making ... records available including costs for summarizing, compiling or tailoring such record to meet the person's request." (§192.440(3))
Policies concerning or possibly including e-mail: Communications within a public body or between public bodies of an advisory nature, to the extent that they cover other than purely factual materials and are preliminary to any final agency action, are exempt unless outweighed by the public interest. (§192.502(1))
Miscellaneous: Agencies must provide information in the form requested if available. (§192.440) Legislative information and administrative rules shall be available in electronic form via computer network. (§171.795, 173.763, 173.766 (1995))

Pennsylvania

Physical forms of records covered: Open Records Law. (65 Pa. Cons. Stat. Ann. §66.1 (Purdon 1992)) Public records are "accounts vouchers, or contracts," or "minutes, orders, or decisions."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: No provision regarding software.
Fees: Fees are not addressed other than providing that the records custodian has "the right to adopt and enforce reasonable rules governing the making of ... extracts, copies, photographs or photostats." (§66.3)

Rhode Island

Physical forms of records covered: Access to Public Records Act. (R.I. Gen. Laws §38-2-1 (1990)) Public records are "tapes, ... or other material regardless of physical form or characteristics."
Bodies exempt from disclosure: Courts are included only in respect to their administrative function. (§38-2-2(d)(20)) Records received by the Insurance Division of the Department of Business Regulation from other states are to be exempt if they are exempt in the originating state. (§38-2-2(d)(23))
Policies concerning software: No provision regarding software.
Fees: Charges for copies may not exceed $.15 per copy and $15.00 per hour of searching. The first 30 minutes of search time must be provided for free. (§38-2-4)
Policies concerning or possibly including e-mail: The following types of records are not public under the act: preliminary drafts, notes, impressions, memos, working papers and work products (§38-2-2(d)(11)); correspondence of or to elected officials with or relating to those they represent, and correspondence of or to elected officials in their official capacities (§38-2-2(d)(13)); printouts from telecommunication devices for the deaf or hearing and speech impaired (§38-2-2(d)(22)).
Miscellaneous: Using information "to solicit for commercial purposes" or "to obtain a commercial advantage over the party furnishing that information to the public body" is prohibited. (§38-2-6)

South Carolina

Physical forms of records covered: Freedom of Information Act. (S.C. Code Ann. §30-4-10 (Law. Co-op. 1991)) Public records are "cards, tapes, recordings, or other documentary materials regardless of physical form or characteristics."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: No provision regarding software.
Fees: Fees may not exceed the "actual cost of searching for or making copies of records." (§30-4-30(b))
Miscellaneous: Records must be furnished for the lowest possible cost and the fees may be waived or reduced if in the public interest. (§30-4-30(b))

South Dakota

Physical forms of records covered: Open Records Statute. (S.D. Codified Laws Ann. §1-27-1 (1994)) Public records include "material, regardless of physical form or characteristics."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: No provision regarding software.
Fees: The statute does not specify fees. However, the attorney general has advised that agencies may charge reasonable fees to cover time and expense for making copies. (79 S.D. Op. Att'y Gen. 6 (1979))
Miscellaneous: The Department of Public Safety may not give out lists of driver names and data if the information will be used for commercial purposes. (80 S.D. Op. Att'y Gen. 27 (1980))

Tennessee

Physical forms of records covered: Public Records Act. (Tenn. Code Ann. §10-7-503 (1993)) The act does not define the physical form of records, but another statute defines public records to include "electronic data processing files and output, or other material, regardless of physical form or characteristics." (§10-7-301(6))
Bodies exempt from disclosure: For the legislative computer system a legislative committee has exclusive authority to approve access to the records therein. (§3-10-108)
Policies concerning software: No provision regarding software.
Fees: The act does not directly address fees, but provides that records custodians may "adopt and enforce reasonable rules governing the making of such copies." (§10-7-506)
Policies concerning or possibly including e-mail: The open meetings act shall not be construed as to require a chance meeting between two or more members of a public body to be an open meeting. No such chance meetings, informal assemblages or electronic communications shall be used to decide or deliberate public business. (§8-44-102(c)) See Bodies exempt from disclosure.
Miscellaneous: Additional fees may be charged for GIS information if requested for a commercial purpose. The fee may include charges for "labor costs, design and development costs, and costs to ensure the data is current and accurate." (§10-7-506)

Texas

Physical forms of records covered: Open Records Act. (Tex. Gov't Code Ann. §552.002 (West 1995)) Public information includes "paper; film; a magnetic, optical, or solid state device that can store an electronic signal; tape; Mylar; linen; silk; and vellum."
Bodies exempt from disclosure: The judiciary is explicitly excluded from the definition of governmental body. (§552.003)
Policies concerning software: A court held that the judiciary and its computers are not covered by the open records law. (Mustard vs. State, 711 S.W.2d 71 (Tex. Ct. App. 1986)) A statute exempts from public records requirements "the database," defined as, "the machine readable form of the material prepared for and used in the publication of the administrative code." (§2002.056) The attorney general determined that the source code and documentation for software is not covered by the act. (90 Texas Op. Att'y Gen. ORD-581 (1990))
Fees: Reasonable fees for copies may include "all costs related to reproducing the information, including costs of materials, labor and overhead." (§552.261) Computerized records directly accessed may be electronically copied free-of-charge. (§552.272 (b))
Policies concerning or possibly including e-mail: Written or otherwise recorded communications between a citizen and a legislator or the lieutenant governor are confidential. (§306.004) Communication includes conversation, correspondence and electronic communication. (§306.001) Private communications of elected officers are exempt. (§552.109)
Miscellaneous: Fees may be reduced or waived if in the public interest. (§552.267) Municipalities may include data collection costs, system operations costs and an estimate of the value of the information on the commercial market in the fee for copies of GIS data bases. (§552.273 (b) (effective until 8/31/97))

Utah

Physical forms of records covered: Government Records Access and Management Act. (Utah Code Ann. §63-2-103 (1993)) Public records are all "cards, tapes, recordings, electronic data, or other documentary materials regardless of physical form or characteristics where all of the information in the original is reproducible by photocopy or other mechanical or electronic means."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: Computer programs and software are exempt from the act if developed by the agency for its own use. (§63-2-103(18)(b)(viii)) Agencies may own an intellectual property right on any material. (§63-2-201(10)(a))
Fees: An agency may charge a reasonable fee for the actual cost of copying or compiling the record. Actual costs include staff time for searching, retrieving, summarizing, compiling or tailoring the data to meet the request. (§63-2-203(1-2))
Policies concerning or possibly including e-mail: Correspondence by and with a government agency and drafts that have never been finalized but were relied upon by the government entity in carrying out policy are normally public. (§63-2-301(2)(h) and (k)) However, the personal files of a legislator including personal correspondence to or from a member of the Legislature, excluding correspondence that gives notice of legislative action or policy, are exempt from the act. (§63-2-304(18))
Miscellaneous: An agency is not required to create records in response to a request. (§63-2-201(8)(a))

Vermont

Physical forms of records covered: Access to Public Records Law. (Vt. Stat. Ann. tit. 1, §315 (1985)) Public records include "all written or recorded matters."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: No provision regarding software.
Fees: An agency may not charge more than "the actual cost of providing the copy." Search fees are not provided for. (§316)
Policies concerning or possibly including e-mail: Inter or intra departmental communications, to the extent they are preliminary to any determination of policy, are not public records. (§317(b)(17))

Virginia

Physical forms of records covered: Freedom of Information Act. (Va. Code Ann. §2.1-340 (Michie 1994)) Public records are "maps and tapes or other material, regardless of physical form or characteristics."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: Software developed by or for a state agency or political subdivision may be exempted at the record custodian's discretion. (§2.1-342(B)(24))
Fees: A public body may "make reasonable charges for the copying, search time, and computer time expended in the supplying of records; however, such charges shall not exceed the actual cost to the public." (§2.1-342(A)(4))
Policies concerning or possibly including e-mail: Memos, working papers and correspondence held by or requested from the General Assembly, the governor's office, or the attorney general are exempt at the discretion of the records custodian. (§2.1-342(B)(4))
Miscellaneous: An agency may not deny access to a record simply because the requester plans to use it for a commercial purpose. (Associated Tax Service vs. Fitzpatrick, 372 S.E.2d 625 (Va. 1988)) Agencies may charge reasonable fees for GIS records. (1995 Va. Acts 299)

Washington

Physical forms of records covered: Public Records Act. (Wash. Rev. Code §42.17.020 (1992)) The act defines public writings to include "every ... means of recording any form of communication or representation," including "magnetic or paper tapes, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other document including existing data compilations from which information may be obtained or translated."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: No provision regarding software.
Fees: "Agencies may impose a reasonable charge for providing copies of public records, ... which charges shall not exceed the amount necessary to reimburse the agency for its actual costs incident to such copying." (§42.17.300)
Policies concerning or possibly including e-mail: Preliminary drafts, notes or memos in which opinions are expressed or policies are formulated or recommended are exempt. (§42.17.310(1)(i))
Miscellaneous: Agencies may not provide lists of individuals to requesters if requested for a commercial purpose. (§42.17.260)

West Virginia

Physical forms of records covered: Freedom of Information Act. (W. Va. Code §29B-1-1 (1993)) Public writings are "cards, tapes, recordings, or other documentary materials regardless of physical form or characteristics."
Bodies exempt from disclosure: Information included in the Legislature's data bases is excluded. (§4-3-5)
Policies concerning software: No provision regarding software.
Fees: An agency may establish fees reasonably calculated to reimburse it for the actual cost of making copies. (§29B-1-3(5))
Policies concerning or possibly including e-mail: Internal memos or letters received or prepared by any public body are exempt. (§29B-1-4(8)) See Bodies exempt from disclosure.

Wisconsin

Physical forms of records covered: Open Records Statute. (Wis. Stat. §19.31 (1992)) Public records include "electromagnetic information recorded or preserved, regardless of physical form or characteristics ... such as recordings, tapes (including computer tapes), computer printouts, and optical discs."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: Computer programs are exempt, but not "material produced as a product of the program." (§19.36(4))
Fees: Fees may not exceed "the actual, necessary and direct cost of reproduction and transcription of the record” unless another fee is set by law. (§19.35(3)(a))
Miscellaneous: Fees may be waived in the public interest. (§19.35(e)) A state or local authority may not sell or rent a record contianing an individual's name or address unless specifically authorized by state law. Collecting statutory fees is not considered selling or renting information. (§19.71)

Wyoming

Physical forms of records covered: Public Records Act. (Wyo. Stat. §16-4-201 (1982)) Public records include "the original and copies of any paper, ... or other document, regardless of physical form or characteristics."
Bodies exempt from disclosure: No bodies specifically exempted.
Policies concerning software: No provision regarding software.
Fees: Custodians may set reasonable fees for "copies, printouts or photographs," unless the fees "are specifically prescribed by law." (§16-4-204)