THE MEANING OF CREATION: ELECTRONIC DATABASES AND CREATING A RECORD TO FULFILL A PUBLIC RECORDS REQUEST.

• Author: Kreienkamp, John

Introduction 198 I. Public Records Laws and the Issue of Creation 200 A. Public Records Laws Generally 200 B. Public Bodies Are Not Obligated to Create a New Record in Response to a Request 207 II. Creation and Electronic Databases 215 A. A Duty to Search, Not Create 215 B. Listings and Indexes 223 III. Database Listings and Gaps in the National Security Counselors Analysis 229 IV. Requests for Pre-existing or Automatic Database Listings Do Not Require the Creation of New Records 234 Conclusion 238 INTRODUCTION

The Information Age has dramatically altered the landscape of public records law. Because ever-increasing technological developments have enabled public bodies around the country to create and retain more records and information, the scope of public records laws has also grown commensurately. Lapel cameras for law enforcement officers, for example, provide for increased transparency and accountability for the nation's police forces, but their use also requires public bodies to deal with thorny redaction problems where privacy concerns or medical information is involved. (2) Similarly, the ability of public bodies to collect and retain more information about individual members of the public allows for greater efficiency in the provision of government services but also leads to inevitable concerns about individual privacy. (3) Beyond these issues surrounding exceptions to disclosure and protections for individual privacy, fundamental questions have also arisen about public records laws, such as the definition of the term "public record." All told, for the past twenty years, courts throughout the nation have repeatedly confronted novel questions of law due to advances in modern technology.

One of the most basic and longstanding principles of public records laws throughout the United States is that public bodies are not required to create a new record to satisfy a public records request. If a record responsive to the request does not exist at the time of the request, the public body does not need to create one in order to fulfill its obligations to the requestor. Although historically this rule has been relatively straightforward, it has become a far more complex one in the era of electronic records. For instance, if the State Bar of

California maintains a database of information about bar applicants, is it obligated to recode and manipulate its data so as to satisfy a public records request? (4) If a requestor asks for a list of all emails sent to or received by a public employee in a particular date range, does this require the creation of a new record?

With respect to the latter question, judicial guidance has been somewhat mixed. Courts appear to be divided as to whether a request for a database listing, meaning a list or index of the contents of a database, requires the public body to create a new record. Most have indicated that a request for a listing of a database's contents does require the creation of a record because the requestor is seeking not the actual records contained within the database but rather information about those records. At least one federal court, however, has suggested that this majority view misunderstands the nature of electronic databases and that those listings which are readily apparent after the public body conducts a search are potentially subject to disclosure. (5) Given the types of database listings an individual requestor might seek, such as a list of emails in a particular Gmail account, a list of phone calls made by an employee, or a list of complaints filed against a police officer, resolving this dispute has real practical implications for public records requests around the country.

This article argues that a request for a listing of a database's contents does not require the creation of a record where the listing is either automatically-created by the database or otherwise preexisting. Because such a database listing already exists prior to the request for inspection or copying, no substantive creation is required on the part of the public body. Even if the public body may have to take a "screen shot" of the listing or save it in a different file format in order to permit inspection, this represents only copying, not creation of a new record. As a result, where a requestor seeks to inspect a list of a database's contents, the analysis should begin with

whether such a listing already exists given the structure of the database.

Part I of this Article outlines the basic structure of public records laws throughout the nation. It also discusses how states around the country, as well as the federal government and the District of Columbia, have addressed the question of whether public bodies are required to create new records to satisfy a request. Part II focuses on issues surrounding the meaning of creation in the context of electronic records, with a particular emphasis on databases and listings of database contents. Part III considers the two divergent approaches taken to database listings in particular and the strengths and weaknesses of each. Part IV argues that a request for a listing of a database's contents does not require the creation of a record where the listing is automatically-created or pre-existing.

1. PUBLIC RECORDS LAWS AND THE ISSUE OF CREATION

   1. PUBLIC RECORDS LAWS GENERALLY

      Public records laws, that is, those statutes which operate to guarantee the public the right to inspect the records of governmental agencies, are a ubiquitous feature of modern American life. It was more than a century ago that Supreme Court Justice Louis Brandeis observed that "[s]unlight is said to be the best of disinfectants," (6) and since then the nation has seemingly taken his words to heart. Today, all fifty states (7) and the District of Columbia (8) have adopted a public records statute. The federal government too has a public records law in the Freedom of Information Act. (9) At least to this extent, that the public should have access to the records of its government is an uncontroversial proposition.

      Although the country's public records laws vary widely depending on the state or jurisdiction and the language in the specific statute, all are premised on the idea that the public is entitled to "the greatest possible information regarding the affairs of government." (10) The primary purpose behind public records statutes is that 140/1(a) (West 2010) ("[I]t is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees").

      representative democracy depends on the public maintaining control over its government, and that this is only possible where the public remains informed." "Without tools such as ... [public records laws], government of the people, by the people, for the people, risks becoming government of the people, by the bureaucrats, for the special interests." (12) This policy plays a vital role in the interpretation of public records laws: (13) in analyzing such statutes, courts will generally interpret provisions operating to ensure and facilitate access to information broadly, while narrowly construing exceptions to disclosure. (14)

      So as to guarantee the public's access to information, public records laws usually allow the public to both inspect and copy governmental records. (15) A requestor seeking a particular record

      effectively has at least two options: either physically inspect and examine the record (perhaps at the agency's office) or, alternatively, obtain a copy of the record. Where the requestor opts for the former and seeks only to inspect or examine the record without obtaining a copy, the public body generally must permit this inspection to occur at its office within normal business hours. (16) By contrast, in responding to a request for a copy of a public record, the public body is normally required to send the record to the requestor electronically or through postal mail. (17) Public bodies are usually allowed to charge a fee only for a copy of a public record - not for a requestor's right to inspect the record - and even then the fee is usually expressly limited. (18)

      In facilitating access to public records, a public body in receipt of a particular request is often required by statute to respond within a

      particular timeframe. Some public records statutes provide an initial response window, sometimes as short as three business days, within which the public body must acknowledge receipt of the request and either provide the requested records, deny the request, or state that additional time is needed. (19) Most statutes provide a deadline for the public body's substantive response to the request (that is, the response in which the public body either permits or denies inspection of the records), often as short as ten (20) or fifteen (21) days from the receipt of the request. However, where the request is time-consuming, burdensome, or otherwise presents unusual circumstances, public bodies are generally granted additional flexibility and leeway on applicable deadlines. (22)

      Of course, that the public has the right to the greatest possible information about governmental affairs does not mean that it is entitled to unfettered access to all public records. There are always

      exceptions to disclosure, although the specific exceptions and their contours vary from jurisdiction to jurisdiction. Some of the more common exceptions include law enforcement records, (23) personnel records, (24) and medical records, (25) all of which are often either partially or entirely exempt from disclosure. Many public records laws also contain protections for discrete information such as social security numbers and dates of birth, (26) as well as a "catch-all" exception which operates to incorporate all other exceptions to disclosure provided by state or federal...