Alaska Public Records Act (APRA)

This page provides general information—not legal advice or an exhaustive overview—about the APRA as it applies to most State of Alaska executive branch public agencies. It does not cover the APRA as it applies to public agencies in the State of Alaska’s judicial or legislative branches or to public agencies of municipalities.

• Process
• Provisions
• Public Records
• Fees
• Additional Information
• Department of Law and the APRA

Process

1. Identify the public agency whose records you seek. Contacting the correct public agency is important: agencies can only respond as to the records in their own possession or control. Agencies are not required to retrieve records from or refer requests to other agencies. The APRA broadly defines “public agency”: for example, a public agency can be an entire department or a division or an office within a department. A list, which is subject to change, of public agencies is here.
2. If possible, submit a written request to the agency whose records you seek. Requests can be submitted to any agency employee, but submitting your request to someone with APRA authority or to the head of the agency should speed the process. Written requests can be submitted in hard copy or electronically. Some agencies—for example, the Department of Public Safety—have electronic forms that improve tracking and that can help the agency respond more quickly. If you submit your request in an email, include your request in the body of the email instead of an attachment. Be as specific as possible about the records you seek: for example, identify the specific subject matter, date range, records custodians, and participants.
3. Agencies have 10 working days to provide an initial response. If your request is received after the agency’s close of business, it will be logged received on the next working day. The day a request is received is calculated as day 0; the first working day after a request is received is calculated as day 1. Agencies don’t always send an acknowledgment that they received a request before sending the initial response. The initial response will do one or more of the following:
   1. provide the requested records;
   2. deny the request by providing redacted records, a protected records log, and/or notice the records do not exist;
   3. request more information;
   4. provide an estimate of the cost to search for and (possibly) copy records;
   5. provide notice that the agency is taking an extension under 2 AAC 96.325(d); or
   6. provide notice that responding to the request will involve—and therefore that you seek—electronic services and products under AS 40.25.115. To the extent AS 40.25.115 applies, this is the only date-certain deadline: the agency will generate or will collect, review for responsiveness and protected information, and produce requested records as promptly as possible upon receiving any required payment. Response times will vary significantly; and depending on the amount of work required to generate the records or to collect, review, and produce them and on agency workloads, completing the response may take many months.
4. Response deadlines reset when an agency receives a sufficiently clear request in response to a request for more information or payment.
5. If the request falls under AS 40.25.110 and the agency cannot complete its response within the initial 10-working-day period and a 10-working-day extension under 2 AAC 96.325(d), the agency may ask you to agree under 2 AAC 96.325(g) to another extension. If you do not agree, the agency may ask the Attorney General to approve another extension under 2 AAC 96.325(e).
6. If you want to administratively appeal a denial, you have 60 working days from the date the denial was issued to submit your appeal to the agency head. To administratively appeal a denial, do the following:
   1. mail or hand-deliver your appeal to the agency head;
   2. include the date of the denial and the name and address of the person who issued the denial;
   3. identify the records that are the subject of the appeal; and
   4. if the appeal is because the agency did not respond timely under 2 AAC 96.325, state that, and identify the records sought, the agency to which the request was directed, and the date of the request.

Provisions

The APRA is in statute at AS 40.25.100 – AS 40.25.295 (http://www.akleg.gov/basis/statutes.asp#40.25.100).

Requests are processed and responded to under AS 40.25.110 or AS 40.25.115.

• AS 40.25.110, requests for public records – Generally, AS 40.25.110 covers a request that involves manual searching for and copying physical or electronic records.
• AS 40.25.115, requests for electronic services and products – Generally, AS 40.25.115 covers a request that involves providing computer-related services, including undertaking an alphanumeric query (that is, using a search engine), generating a report from a database, or duplicating a record (such as a text message) in a format that the agency does not usually use in connection with the record. Agencies “may” provide electronic services and products; agencies “may not” provide electronic services and products if providing them would “take priority over the[ir] primary responsibilities.” AS 40.25.115(a). Accordingly, for the agency to design a search that results in the records sought without unreasonably burdening the agency, the requester needs to be as specific as possible about the records sought, including, for example, by identifying the specific subject matter of the records. Usually, a request for emails falls under this provision.

The APRA regulations, which cover request and response requirements, including deadlines, are 2 AAC 96.100 – 2 AAC 96.900 (http://www.akleg.gov/basis/aac.asp#2.96)

Public Records

Public records are records, “regardless of format or physical characteristics, that are developed or received by a public agency, or by a private contractor for a public agency, and that are preserved [or appropriate to preserve] for their informational value or as evidence of the organization or operation of the public agency.” AS 40.25.220(3).

Not all state records are public records subject to the APRA, and not all records on state systems are public records subject to the APRA. “State agency records preserved or appropriate for preservation under the Records Management Act are public records subject to review under the Public Records Act. But not every record a state employee creates, and certainly not every state employee email, is necessarily appropriate for preservation under the Records Management Act.” McLeod v. Parnell, 286 P.3d 509, 515 (Alaska 2012).

Communications and other personal records of state employees that do not relate to state business are not public records. For example, a request for a state employee’s purely personal emails that may exist in the State of Alaska’s email system will be denied as the request falls outside the scope of the APRA because the request does not seek public records.

Records that are not preserved or appropriate to preserve are not public records. These can include auto-saved and superseded records (such as drafts), deleted records that have not yet been purged, and records beyond their retention age as specified in a state records retention schedule.

Some statutes exempt state records from the ambit of the APRA. For example, AS 39.25.080(a) exempts from the APRA’s ambit the state personnel records of most state employees, except for a few specifically identified pieces of information such as name, title, employment dates, and compensation. Agencies will not identify records that are statutorily exempt from the APRA.

Fees

If searching for and copying records under AS 40.25.110 will exceed five person-hours in a calendar month, agencies charge the hourly rate (based on the salary and benefit costs) of the most cost-effective individual who can do the work. If searching for and copying the records exceeds 5 person-hours, the requester must pay for the total time to undertake these tasks: the first 5 hours are not excluded from the calculation of the recoverable costs.

Agencies charge for all the person-hours required to provide electronic services and products under AS 40.25.115: agencies charge the hourly rate (based on the salary and benefit costs) of the most cost-effective individual who can do the work.

Agencies may charge for, among other things, photocopies, storage media and postage used to provide records, and retrieving records from and returning them to off-site storage locations. Agencies may pass on any costs a contractor charges.

An agency may require a requester pay any estimated recoverable cost before conducting any work. (An exception exists under 2 AAC 96.360(c) for news organizations seeking records under AS 40.25.110.) The requester must pay all recoverable costs before the agency provides any records.

Agencies do not charge the cost to review records for protected information.

Fee Relief

A requester is eligible for fee relief if the requester establishes that “the records are likely to contribute significantly to the public’s understanding of the operations or activities of the state government.” 2 AAC 96.370; 2 AAC 96.470. To meet this requirement, requesters must, among other things, describe the following:

1. the specific agency operations or activities the records would evidence;
2. specifically how the requested records would be informative about the identified agency operations or activities; and
3. specifically what the requester will do to broadly disseminate the records, including the requester’s ability to accomplish its plans.

Merely conclusory statements that the request is in the public interest and that the records concern agency operations or activities are not enough. The following statements are, for example, insufficient to establish a basis for fee relief:

• The disclosure of the records would be in the public interest because it would greatly benefit the public’s understanding of the workings of government.
• The requesting entity is a 501(c)(3) tax-exempt organization that provides information to the public; the disclosure of the requested information is in the public interest and will contribute significantly to the public’s understanding of the provision of healthcare in the United States; and the information is not being sought for commercial purposes.

Requesters must also certify the following:

1. they don’t seek the records primarily for a commercial or financial purpose;
2. they are not and they don’t seek the records for someone who is involved in litigation (a) with an executive branch agency and (b) in which the records are relevant; and
3. the total amount of all fee relief granted from all executive branch agencies under both 2 AAC 96.370 and 2 AAC 96.470 to the requester--and to anyone acting with the requester in seeking the same or related records--has not and, if the request is granted, will not exceed $500 during the preceding 12-month period.

Additional Information

The APRA applies to all state and local government agencies in the State of Alaska. The federal Freedom of Information Act (FOIA) does not apply.

The executive branch, except for the Alaska Railroad Corporation, is subject to regulations implemented by the Department of Administration at 2 AAC 96.100 – 2 AAC 96.470. The Alaska Industrial Development and Export Authority has additional APRA regulations, and the University of Alaska has its own regulations. The legislative and judicial branches and some local governments also have their own APRA rules.

The APRA does not require agencies to conduct research or analyze records. Nor does the APRA require agencies to answer questions or create records that are responsive to the request.

Agencies produce a record “in the form in which it is maintained or disseminated by the public agency.” 2 AAC 96.355(a). Agencies disseminate electronic copies of records in PDF format.

Before submitting a request, requesters should consider what the subject is that they are interested in and be as specific as possible in the request. Given that agencies have limited staff available to process and respond to public records requests on top of their other responsibilities, a clear and targeted request is more likely to result in getting requested records faster. Requesters can submit follow-up requests based on the records they receive. If a requester submits an unclear or broad request, the agency is likely to respond with a request for more information to better identify the specific records sought, speed the response, and reduce the burden of responding. Also, responding will take longer if the agency needs to work with the requester to determine what specific records are sought and, if a requester wants electronic services and products, whether to grant the request. For example, a request for “the current contract with company XYZ and any amendments” is straightforward. Whereas, a request generally for “all contract documents regarding company XYZ” will prompt a request for additional information, such as the following:

• What is the relevant period?
• Does the request seek only the contract and/or any amendments?
• Does the request seek the contract bid, certain deliverables, invoices, or something else?

If a request contains multiple subparts, the agency may ask the requester to prioritize the subparts so that the agency can focus on the priority subpart first, and, after receiving the agency’s response, the requester can determine if they want to request the agency respond to the next highest priority subpart.

Whether the request falls under AS 40.25.110 or AS 40.25.115, the agency will design the search it determines is most likely to identify the requested records.

As agencies do not charge for review costs—even though the time to review records for protected information is, by far, the greatest time burden on agencies in responding to public records requests—requesting specific records instead of making broad requests will result in substantial cost savings to the State of Alaska, as well as in getting the requested records faster. This is because before disclosing any “public record,” an agency must review the record to redact or withhold information covered by one of the APRA’s specific exceptions to disclosure in AS 40.25.120(a), most notably AS 40.25.120(a)(4), which protects

1. information that the agency cannot disclose under a state or federal law—such as information that constitutes confidential business information or that, if disclosed, would violate a person’s right to privacy; and/or
2. information that the agency needs to and is legally authorized to protect to ensure government operates effectively and efficiently, such as information protected under the attorney-client privilege and/or the deliberative process privilege.

Reviewing records to determine whether and, if so, to what extent they contain protected information often involves a time-consuming process that might involve consulting with subject matter experts and interested parties.

Department of Law and the APRA

The Department of Law is one public agency under the APRA. All requests for Department of Law records—records of the Office of the Attorney General or the Administrative Services, Civil, or Criminal Divisions—should be sent to law.recordsrequest@alaska.gov or 1031 West 4th Avenue, Suite 200, Anchorage, AK 99501.

The Department of Law does not enforce the APRA. If a requester believes an agency, such as a municipality, violated the APRA, they might want to contact a private attorney.

The Department of Law represents and advises the executive branch, not the public. Accordingly, most Department of Law records are protected from disclosure under, for example, the attorney-client privilege, the attorney work-product doctrine, and/or the deliberative process privilege. If a requester seeks records from the Department of Law that constitute legal advice to an executive branch agency, they will receive redacted records and/or a log of withheld records.

Many Criminal Division records are exempt from the APRA’s ambit under AS 12.62.160 because they constitute “criminal justice information.” AS 12.62.900. The Department cannot confirm or deny the existence of such records.

Consumer complaints and related consumer protection records, including records of investigations, are also exempt from the APRA’s ambit under AS 45.50.521(b). The Department will not confirm or deny the existence of such records.

Similarly, except as provided in AS 39.52.335, before the initiation of formal proceedings—if any—under AS 39.52.350, Executive Branch Ethics Act complaints and related records are exempt from the APRA’s ambit under AS 39.52.340.