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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kaleb Lee Basey v. State of Alaska, Department of Public Safety, Division of State Troopers, Bureau of Investigations (4/24/2020) sp-7446

Kaleb Lee Basey v. State of Alaska, Department of Public Safety, Division of State Troopers, Bureau of Investigations (4/24/2020) sp-7446

          Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

          corrections@akcourts.us.  



                     THE SUPREME COURT OF THE STATE OF ALASKA                                  



KALEB  LEE  BASEY,                                               )  

                                                                 )                                  

                                                                     Supreme Court No. S-17099  

                              Appellant,                         )  

                                                                 )                                                         

                                                                     Superior Court No. 4FA-16-02509 CI  

          v.                                                     )  

                                                                 )                      

                                                                     O P I N I O N  

STATE OF ALASKA, DEPARTMENT  

                                                                 )  

OF PUBLIC SAFETY, DIVISION OF                                                                         

                                                                 )  No. 7446 - April 24, 2020  

ALASKA STATE TROOPERS,  

                                                                 )  

BUREAU OF INVESTIGATIONS,  

                                                                 )  

                                                                 )  

                              Appellee.                          )  

                                                                 )  



                                                                                                   

                                          

                    Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                                                                                           

                    Fourth  Judicial  District,  Fairbanks,  Douglas  Blankenship,  

                    Judge.  



                                                                                             

                    Appearances:              Kaleb   Lee   Basey,   pro   se,   Lexington,  

                                                                                                          

                    Kentucky,  Appellant.                John  J.  Novak  and  Kimberly  D.  

                                                                                                        

                    Rodgers,  Assistant  Attorneys  General,  Anchorage,  and  

                                                                                                                

                    Kevin G. Clarkson, Attorney General, Juneau, for Appellee.  

                                                                                              

                    D. John McKay, Law Office of D. John McKay, Anchorage,  

                                                                                                          

                    for Amici Curiae Gray Television, Inc., d/b/a KTUU-TV and  

                                                                                              

                    KTVF-TV;             Anchorage           Daily       News;        and      Reporters  

                                                                                               

                    Committee  for  Freedom  of  the  Press.                        Susan  Orlansky,  

                                                                                                     

                    ACLU         Cooperating           Attorney,        Reeves        Amodio          LLC,  

                                                                                                  

                    Anchorage,  and  Stephen  Koteff  and  Joshua  A.  Decker,  

                                                                                                     

                    ACLU of Alaska Foundation, Anchorage, for Amicus Curiae  

                                                                                                     

                    ACLU of Alaska Foundation.   Khalial Withen and Kevin  

                                                                                              

                    Dougherty, Alaska District Council of Laborers, Anchorage,  

                                                                                                       

                    for     Amici       Curiae       Public       Employees           Local       71     and  

                                         

                    APEA/AFT.  


----------------------- Page 2-----------------------

                      Before:   Bolger, Chief Justice, Winfree, Stowers, Maassen,                       

                      and Carney, Justices.     



                      WINFREE, Justice.   



I.	        INTRODUCTION  



                      The question in this appeal is whether state employee disciplinary records  

                                                                                                                                 



are confidential "personnel records" under the State Personnel Act and therefore not  

                                                                                                                                       



subject to disclosure under the Alaska Public Records Act.  We conclude that, with one  

                                                                                                                                       



express statutory exception not relevant to this case, the answer is "yes."  

                                                                                                            



II.	       FACTS AND PROCEEDINGS  

                                    



           A.	        Basey's Initial Public Records Requests, Their Denial, And Basey's  

                                                                                                                               

                      Initial Superior Court Proceeding  

                                                              

                      Kaleb Lee Basey, who was convicted offederal crimes,1  

                                                                                                              filed a federal civil  

                                                                                                                                      



rights lawsuit in January 2016 against several state troopers based on their actions during  

                                                                                                                                  

his investigation and arrest.2  

                                               In September Basey submitted two public records requests  

                                                                                                                                

to the Alaska State Troopers.3                        Basey's records requests sought various documents  

                                                                                                                          



related to the investigation of his case, including two troopers' disciplinary records.  

                                                                                                                                           



                      Basey's requests were promptly denied on the ground that the information  

                                                                                                                          

pertained to pending litigation.4  Basey appealed to the agency head.5  The requests again  

                                                                                                                                    



           1          See   United  States  v.  Basey,  784  F.  App'x  497,  498  (9th  Cir.  2019),  cert.  



denied,   140  S.  Ct.  616  (2019).  



           2         Basey  v.  Hansen,  No.  4:16-CV-00004  (D.  Alaska  Complaint  filed  Jan.  15,  



2016).  



           3          See AS 40.25.120(a) (providing general right to inspect public records, with  

                                                                                                                                      

certain statutory exceptions).  

                            



           4          See AS 40.25.122 (providing exception for disclosure of public records  

                                                                                                                                

                                                                                                                      (continued...)  



                                                                    -2-	                                                            7446
  


----------------------- Page 3-----------------------

were promptly denied.                            The denial letter stated that because the records pertained to                                                               



Basey's   pending   litigation,   under   AS   40.25.122   they   could   be   disclosed   only   in  



accordance with court rules.                                



                           Basey filed a complaint for injunctive relief in October, seeking an order  

                                                                                        6   The State responded by seeking dismissal  

directing the requested records' disclosure.                                                                                                                    



of the lawsuit, arguing that AS 40.25.120(a)(6)(A) authorizes its refusal to disclose  

                                                                                                                                                                 

records pertaining to a pending criminal prosecution7  and that AS 40.25.122 authorizes  

                                                                                                                                                              

its refusal to disclose records requested by a party to a related pending civil lawsuit.8  

                                                                                                                                                                                    



Adopting the State's reasoning  and  declining  to  hold a hearing,  the superior  court  

                                                                                                                                                                       



granted the State's dismissal motion.  

                                                             



              4             (...continued)  



                                                                                  

relating to litigation involving a public agency).  



              5            See  2 Alaska Administrative Code (AAC) 96.340(a) (2013) ("A requester                                                               



whose written request for a public record has been denied, in whole or in part, may ask  

                                                                                                                                                                            

for reconsideration of the denial by submitting a written appeal to the agency head.").                                                                          



              6            See AS 40.25.125 ("A person having custody or control of a public record  

                                                                                                                                                                      

who denies, obstructs, or attempts to obstruct . . . the inspection of a public record subject  

                                                                                                                                                                    

to  inspection  under  AS  40.25.110  or  40.25.120  may  be  enjoined  by  the  superior  

                                                                                                                                                                

court . . . .").  

                            



              7            AlaskaStatute 40.25.120(a)(6)(A) exceptsfrompublicinspection "records  

                                                                                                                                                                  

or  information  compiled  for  law  enforcement  purposes,  .  .  .  to  the  extent  that  the  

                                                                                                                                                                           

production of the law enforcement records or information . . . could reasonably be  

                                                                                                                                                                             

expected to interfere with enforcement proceedings."  

                                                                                                               



              8            Alaska Statute 40.25.122 provides "that with respect to a person involved  

                                                                                                                                                                 

in  litigation,  the  records  sought  shall  be  disclosed  in  accordance  with  the  rules  of  

                                                                                                                                                                             

procedure applicable in a court or an administrative adjudication."  

                                                                                                                                           



                                                                                      -3-                                                                               7446
  


----------------------- Page 4-----------------------

           B.         Previous Appeal   



                                                                                      9  

                      Basey -self-represented -appealed.                                                                                     

                                                                                        In December 2017 wereversed the  



                                                                                                                                           

superior court's dismissal order, holding that neither disclosure exception the State had  



                                                        10  

                                                              We concluded that "[t]he litigation exception in                                

cited applied to Basey's request. 



                                                                                                                                                

AS 40.25.122 . . . applies only when the requestor is involved in litigation 'involving a  



                                                                                                               

public agency' " and that no Alaska public agency was a party to Basey's pending  



                                                        11  

federal   criminal   or   civil   cases.                                                                                                 

                                                              We  also  concluded  that  it  was  error  to  hold  



                                                                                                                                            

AS 40.25.120(a)(6)(A)'s law-enforcement-interference exception applied because the  



                                                                                                                                   

State had offered no evidence that Basey's request would interfere with his pending  

                                    12   We remanded the case for further proceedings.13  

                                                                                                   

federal criminal case. 



                                           

           C.         Motion To Compel  



                                                                                                                                    

                      Basey moved to compel production of the requested records in January  



                                                                                                                                  

2018. The State responded by agreeing to produce certain records, denying the existence  



                                                                                                                                 

of others, and asserting that the requested disciplinary records were private personnel  



                                                                                         14  

                                                                                                                                            

records exempt from disclosure under AS 39.25.080                                            and article I, section 22 of the  



           9          See  Basey  v.  State,  Dep't of  Pub.  Safety,  Div.  of  Alaska  State   Troopers,  



Bureau  of  Investigations,  408  P.3d   1173  (Alaska  2017).    



           10         Id.  at   1174.  



           11         Id.  at   1179  (quoting  AS  40.25.122).   



           12         Id.  at   1180.  



           13         Id.  at   1181.  



           14         See   AS   39.25.080(a)   ("State   personnel   records,   including   employment  



applications and examination and other  assessment  materials, are confidential and  are not  

open  to  public  inspection  except  as  provided  in  this  section.").   



                                                                      -4-                                                               7446
  


----------------------- Page 5-----------------------

                                             15  

Alaska   Constitution.                              Basey  countered   that   the   State   had   waived   this   exemption  



 argument by failing to raise it in the earlier superior court or appellate proceedings, and                                                                                     



that in any event the argument was without merit.                                                            



                             The superior court held a hearing on Basey's motion in May 2018.                                                                                  The  



 court stated its view that only information listed in AS 39.25.080(b) could be disclosed                                                                            

                                                                                              16   Because general disciplinary records are  

 from a public employee's personnel records.                                                                                                                                      



not listed in AS 39.25.080(b), the court concluded that the troopers' disciplinary records  

                                                                                                                                                                         



 could not be disclosed.   Following additional proceedings the court entered a final  

                                                                                                                                                                              



judgment denying  Basey's request  to  order  disclosure of the troopers'  disciplinary  

                                                                                                                                                               



records.  

                    



               D.            New Appeal; Invitation To Amici Curiae  

                                                                                                          



                             Basey - self-represented - again appeals.  After the initial briefing, we  

                                                                                                                                                                                  



 invited various organizations to participate as amici curiae and submit briefs discussing  

                                                                                                                                                                  



the following two questions:  

                                        



                                           1.  As a matter of statutory interpretation, are state  

                                                                                                                                                  

                             employee                 disciplinary                 records             confidential                  "personnel  

                                                                                                                                  

                             records" under AS 39.25.080(a) of the State Personnel Act,  

                                                                                                                                                   



               15            See   Alaska   Const. art.                         I,   §   22   ("The right of the people to                                        privacy   is  



recognized and shall not be infringed.                                             The legislature shall implement this section.").                                                     



               16            See AS 39.25.080(b) ("The following information is available for public  

                                                                                                                                                                           

 inspection, subject to reasonable regulations on the time and manner of inspection:  

                                                                                                                                                                                          

 (1) the names and position titles of all state employees; (2) the position held by a state  

                                                                                                                                                                                     

 employee; (3) prior positions held by a state employee; (4) whether a state employee is  

 in the classified, partially exempt, or exempt service; (5) the dates of appointment and  

                                                                                                                                                                                 

 separation ofastate employee; (6) the compensation authorized for a stateemployee; and  

                                                                                                                                                                                   

 (7)  whether  a  state  employee  has  been  dismissed  or  disciplined  for  a  violation  of  

                                                                                                                                                                                 

AS 39.25.160(l) (interference or failure to cooperate with the Legislative Budget and  

               

Audit Committee).").  



                                                                                         -5-                                                                                 7446
  


----------------------- Page 6-----------------------

                          not subject to disclosure under the Alaska Public Records                                            

                          Act?  



                                       2.     If   the   records   are   not   confidential  "personnel  

                          records" under AS 39.25.080(a) of the State Personnel Act,  

                                                                                                                                  

                          do state employees have a state constitutional privacy interest  

                                                                                                                             

                          playing a role in whether those records might be produced  

                                                                                                                                           

                          under the Alaska Public Records Act?  If so, what should be  

                                                                                    [17]  

                                                                                           

                          the balancing considerations? 



A brief filed jointly by Gray Television, Inc., Anchorage Daily News, and Reporters  

                                                                                                                                                       



Committee for Freedom of the Press (collectively Press Amici) and a brief filed by the  

                                                                                                                                                                    



American Civil Liberties UnionofAlaskaFoundation(ACLU)support Basey's position.  

                                                                                                                                                                           



 Two local public employees' unions - Public Employees Local 71 and Alaska Public  

                                                                                                                                                             



Employees' Association/Alaska Federation of Teachers - filed a joint brief supporting  

                                                                                                                                                     

                                       18    Basey and the State filed supplemental briefs responding to the  

the State's position.                                                                                                                                               

                       



amici curiae's arguments.  

                                                    



III.         DISCUSSION  



             A.           Waiver Rule For Public Records Act; Law Of The Case  

                                                                                                                                                



                          1.           Per se waiver  

                                                      



                          Basey first contends that the superior court erred by failing to hold that the  

                                                                                                                                                                    



State had waived its right to assert an additional disclosure exemption following the  

                                                                                                                                                                    



case's remand to the superior court. He argues that we should adopt a waiver rule similar  

                                                                                                                                                             



to the rule for federal Freedom of Information Act (FOIA) cases. He acknowledges that  

                                                                                                                                                                   



no timeliness rule for asserting exemptions under Alaska's Public Records Act has been  

                                                                                                                                                                 



             17           Basey v. State, Dep't of Pub. Safety, Div. of Alaska State Troopers, Bureau                                                       



of Investigations                , No. S-17099 (Alaska Supreme Court Order, Jan. 28, 2019).                                                               



             18           We thank the amici greatly for their helpful participation in this appeal.  

                                                                                                                                                                        



                                                                                  -6-                                                                           7446
  


----------------------- Page 7-----------------------

adopted by either us or the legislature, but he contends that we should follow the lead of                                                                                                                                                 



 several federal courts and "judicially establish[] such a rule."                                                                                                          



                                     The D.C. Circuit Court of Appeals has held that, in FOIA cases, "as a                                                                                                                                  



general rule, [the government] must assert all exemptions at the same time, in the original                                                                                                                                

                                                                              19        This  general waiver rule is based in part on FOIA's  

district court proceedings."                                                                                                                                                                                              

 statutory goals:  promoting the "efficient, prompt , and full disclosure of information."20  

                                                                                                                                                                                                                                                   



Despite similar policy goals in the Public Records Act, we decline to adopt a similar  

                                                                                                                                                                                                                          



waiver rule in this context.  

                                                    



                                     There is a material difference between FOIA and the statute the State relies  

                                                                                                                                                                                                                                  

on.  Most FOIA exemptions are discretionary,21  but Alaska's State Personnel Act bars  

                                                                                                                                                                                                                                   

the State from disclosing confidential personnel records.22                                                                                                         Holding that an agency has  

                                                                                                                                                                                                                                       



waived the right to assert a discretionary disclosure exemption is a very different matter  

                                                                                                                                                                                                                               



from holding that an agency cannot assert its duty to comply with a state law. We cannot  

                                                                                                                                                                                                                              



adopt a rule requiring  the State to  violate a  law  - and possibly  prejudicing  State  

                                                                                                                                                                                                                                 



                   19                Maydak v. U.S. Dep't of Justice                                                          , 218 F.3d 760, 764 (D.C. Cir. 2000);                                                                   see  



also Citizens for Responsibility &Ethics in Washington v. U.S. Dep't of Justice                                                                                                                                      , 854 F.3d     

675, 679-81 (D.C. Cir. 2017) (holding government could not invoke FOIA exemption                                                                                                                                   

after failing to raise exemption in initial summary judgment motion).                                                                                                   



                   20                Maydak, 218 F.3d at 764 (emphasis in original) (quoting Senate of Puerto  

                                                                                                                                                                                                                             

Rico ex rel. Judiciary Comm. v. U.S. Dep't of Justice, 823 F.2d 574, 580 (D.C. Cir.  

                                                                                                                                                                                                                                     

 1987)).  



                   21                See Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1185 (8th  

                                                                                                                                                                                                                                     

Cir. 2000) ("Normally . . . an agency has discretion to disclose information within a  

                                                                                                                                                                                                                                            

FOIA exemption, unless something independent of FOIA prohibits disclosure.").  

                                                                                                                                                                                             



                   22                See AS 39.25.080(a) (providing generally that state personnel records "are  

                                                                                                                                                                                                                                     

confidential and are not open to public inspection").  

                                                                                                             



                                                                                                                    -7-                                                                                                           7446
  


----------------------- Page 8-----------------------

employees not involved in the litigation - by disclosing employees' personnel records                                                                                            



because the State failed to timely invoke the relevant statute.                                                         



                              But we also recognize                           that serial, delayed objections are not consistent with                                                   



the Public Records Act's objectives. Wehaveacknowledged                                                                               that thePublicRecords                              Act  



"articulate[s] a broad policy of open records" and that the right of citizens to access                                                                                            

                                                                           23     The Department of Administration's regulations  

public records is "fundamental."                                                                                                                                        

governing PublicRecordsActrequests also reflect an intentto promptly fulfill requests.24  

                                                                                                                                                                                                   



The regulations provide that "[i]t is the policy of the executive branch of government to  

                                                                                                                                                                                             



disclose  public  records  and  to  provide  copies  of  those  records  in  an  expeditious  

                                                                                                                                                                      

manner."25                Allowing the State to serially assert disclosure exemptions during different  

                                                                                                                                                                              



stages of proceedings and obtain separate rulings on each one would create a risk of  

                                                                                                                                                                                            



indefinite  litigation,  waste  judicial  resources,  and  be  unfair  to  Public  Records  Act  

                                                                                                                                                                                        



requesters, most of whom likely have far less capacity to engage in lengthy, drawn-out  

                                                                                                                                                                          



litigation than the State.  

                                                       



                              Though we do not adopt a per se waiver rule, procedural rules may prevent  

                                                                                                                                                                                 



serial objections in some public records cases.  For example, the State may be required  

                                                                                                                                                                              

in its answer to raise all reasons a records request may not be honored.26                                                                                         And superior  

                                                                                                                                                                               



               23             Gwich'inSteeringComm.v. State,OfficeoftheGovernor                                                                           , 10 P.3d 572,578   



(Alaska 2000) (quoting                                 City of Kenai v. Kenai Peninsula Newspapers, Inc.                                                                  , 642 P.2d     

 1316, 1323-24 (Alaska 1982)).                        



               24             The regulations were promulgated "to ensure that requests for disclosure  



of public records . . . are handled in a timely, reasonable, and responsive manner, without  

                                                                                                                                                                                

infringing on the established legal rights of a person."  2 AAC 96.110 (2012).  

                                                                                                                                                              



               25             2 AAC 96.200(a) (2012).  

                                                                                        



               26             See Alaska R. Civ. P. 8(b) ("A party shall state in short and plain terms the  

                                                                                                                                                                                           

party's defenses to each claim asserted and shall admit or deny the averments upon  

                                                                                                                                                                                      

                                                                                                                                                                   (continued...)  



                                                                                             -8-                                                                                      7446
  


----------------------- Page 9-----------------------

                                                                                                                    27  

courts   have   broad   discretion   to   both   implement   special   procedures                                       and   impose  

sanctions in response to needless delay from serial objections.                                     28  



                                                             

                      2.        Law of the case doctrine  



                                                                                                                                     

                      Basey also contends that the "law of the case doctrine" prevents the State  



                                                                                                                                        

from invoking a new disclosure exception.  The law of the case doctrine is based on the  



                                        29  

                                                                                                                                

principle of stare decisis,                meaning "to stand by things decided"; this principle requires  



                                                                                                                                    

that courts follow previous judicial decisions, known as "precedent," when the same  



                            30  

                                                                                                                               

issues again arise.             A similar principle, res judicata, bars the same people from bringing  



                                                                                                                                31  

                                                                                                                                     

a second lawsuit on a claim that was or could have been raised in a prior lawsuit.                                                  And,  



                                                                                                                    

like these two doctrines, the law of the case doctrine generally precludes reconsideration  



           26         (...continued)  



which  the  adverse  party  relies.");  Alaska  R.  Civ.  P.   8(c)  ("In  pleading to a  preceding  

pleading,  a  party  shall  set  forth  affirmatively  .  .  .  any  .  .  .  matter  constituting  an  avoidance  

or  affirmative  defense.").  



           27         See Alaska R. Civ. P. 92 (allowing court to "proceed in any lawful manner  

                                                                                                                                 

not inconsistent with these rules, the constitution, and the common law" if civil rules  

                                                                                                                                    

prescribe no specific procedure); Alaska R. Civ. P. 94 (allowing court to dispense with  

                                                                                                                                     

rules of civil procedure "in any case where it shall be manifest . . . that a strict adherence  

                                                                                                                            

to them will work injustice").  

                                                  



           28         See Alaska R. Civ. P. 90 (allowing court to charge party with contempt);  

                                                                                                                   

Alaska R. Civ. P. 11(b)(1) (allowing sanctions if court determines representation to court  

                                                                                                                                    

is presented for "improper purpose," such as to "cause unnecessary delay").  

                                                                                                                             



           29        Beal v. Beal, 209 P.3d 1012, 1016 (Alaska 2009).  

                                                                                            



           30         Stare decisis, BLACK 'S  LAW  DICTIONARY  (11th  ed.  2019).  

                                             



           31        Res  judicata ,  BLACK 'S  LAW  DICTIONARY  (11th  ed.  2019).  



                                                                    -9-                                                             7446
  


----------------------- Page 10-----------------------

                                                                                                                  32  

of issues that already were adjudicated in a prior appeal.                                                             The doctrine applies to issues                   



directly addressed in a prior appeal, to issues "necessarily inhering" in a prior appellate                                                                       



                                                                                                                                             33  

decision, and to issues that could have been raised in a prior appeal.                                                                            



                                                                                                                                                                         

                            The law of the case doctrine is inapplicable here. The particular issue being  



                                                                                                                                                              

appealed - whether state employee disciplinary records are confidential "personnel  



                                                                                                                                                                       

records" exempt from disclosure - had not been ruled on by the superior court before  



                                                                                                                                                                     

the first appeal, and we did not decide it in the first appeal.  Because the State did not  



                                                                                                                                                                             

assert the additional exception until after the case was remanded, the issue did not  



                                                                                                                                                                          

"necessarily inhere" in our first decision, nor could it have been raised in the prior  



                                                                                                                                    

appeal.  We therefore reject Basey's law of the case argument.  



                                                                                  34  

                                                   

              B.            Statutory Interpretation 



                                                                                                                                                                                

                            The Alaska Public Records Act establishes a right of every  person  to  



                                                                                                                                                            

inspect public agency records in the state; this right is subject to certain enumerated  



                                                                                                                                                                  

exceptions, including when the record is "required to be kept confidential by a federal  



                                                                          35  

                                                                                                                                                            

law or regulation or by state law."                                             The State argues that the troopers' disciplinary  



                                                                                                                                                                                

records Basey requested are required to be kept confidential under AS 39.25.080 as  



                                                                                                                                                                               

"personnel records" and that the superior court thus properly denied Basey's request for  



              32            Beal, 209 P.3d at 1016.               



              33            Id.  at 1017 (quoting                    StateCommercialFisheriesEntryComm'n                                                     v.Carlson            ,  



65 P.3d 851, 859 n.52 (Alaska 2003)).                             



              34            Weapply our independentjudgmenttoquestionsofstatutory interpretation,  

                                                                                                                                                        

considering a statute's "text, legislative history, and purpose."  Basey v. State, Dep't of  

                                                                                                                                                                                 

Pub. Safety, Div. of Alaska State Troopers, Bureau of Investigations, 408 P.3d 1173,  

                                                                                                                                                                        

 1176 (Alaska 2017) (quoting Lingley v. Alaska Airlines, Inc., 373 P.3d 506, 512 (Alaska  

                                                                                                                                                                     

2016)).  



              35            AS 40.25.120(a)(4).  

                                     



                                                                                      -10-                                                                                7446
  


----------------------- Page 11-----------------------

injunctivereliefseeking                                     theirdisclosure. AlaskaStatute39.25.080(a)                                                                    provides generally  



that "[s]tate personnel records, including employment applications and examination and                                                                                                                          



other assessment materials, are confidential and are not open to public inspection."                                                                                                                                       



 Subsection (b) specifies a number of exceptions to the non-disclosure rule: Information                                                                                                   



regarding employee names, titles, classifications, employment dates, compensation, and                                                                                                                          



"whether   a   state   employee   has   been   dismissed  or   disciplined   for   a   violation   of  



AS 39.25.160(                         l) (interference or failure to cooperate with the Legislative Budget and                                                                                                 

Audit Committee)" are open to public inspection.                                                                            36  



                                  The issue before us is whether general disciplinary records are "personnel  

                                                                                                                                                                                             



records"  under  AS  39.25.080(a).                                                               "We  interpret  statutes  'according  to  reason,  

                                                                                                                                                                                                    



practicality, and common sense, taking into account the plain meaning and purpose of  

                                                                                                                                                            

                                                                                                                 37                                                                                      38     We  

                                                                                                                        We begin by examining the text.                                                        

the law as well as the intent of the drafters.' "                                                                                                                                             

                                                                                                               



apply a sliding scale approach to statutory interpretation, and "[t]he plainer the statutory  

                                                                                                                                                                                                   



language is, the more convincing the evidence of contrary legislative purpose or intent  

                                                                                                                                                                                                          

                                                                                                              39       We also "narrowly construe[]" Public  

must be" to overcome that plain meaning.                                                                                                                                                                

                                                                                       

Records Act exemptions "to further the legislative policy of broad access."40  

                                                                                                                                                                        



                 36               AS  39.25.080(b).  



                 37              Michael  W.   v.   Brown,   433   P.3d   1105,   1109   (Alaska   2018)   (quoting  



Marathon  Oil  Co.  v.  State,  Dep't  of  Nat.  Res.,  254  P.3d   1078,   1082  (Alaska  2011)).  



                 38              Mat-Su   Valley  Med.   Ctr.,  LLC   v.  Bolinder,   427   P.3d   754,   763   (Alaska  



2018).  



                 39              Id.  (alteration in original) (quoting State, Dep't  of  Commerce, Cmty. &  

                                                                                                                                                                                                                    

Econ. Dev., Div. of Ins. v. Alyeska Pipeline Serv. Co., 262 P.3d 593, 597 (Alaska 2011)).  

                                                                                                                                                                                                       



                 40              Basey v. State, Dep't of Pub. Safety, Div. of Alaska State Troopers, Bureau  

                                                                                                                                                                                                      

ofInvestigations, 408 P.3d 1173, 1176(Alaska 2017) (quoting Gwich'inSteering Comm.  

                                                                                                                                                                                                       

                                                                                                                                                                                       (continued...)  



                                                                                                       -11-                                                                                                 7446
  


----------------------- Page 12-----------------------

                               1.              Plain language   



                               Alaska   Statute   39.25.080's   plain  language   indicates   that   "personnel  



records" is meant to be interpreted broadly to include disciplinary records.                                                                                                       The term   



"personnel records" is not defined in the Act, but absent "a definition, we construe                                                                                                 



                                                                                                                          41  

statutory terms according to their common meaning."                                                                                                                                           

                                                                                                                                The word "personnel" can mean  



                                                                                                    

"[t]he people employed by or active in an organization, business, or service" or "[t]he  



                                                                                                                                  42  

                                                                                                                                                                                     

department  of  human  resources  in  an  organization."                                                                                   Either  definition  supports  



                                                                                                                                                                                                   

including  disciplinary  records.                                              If  the  term  encompasses  any  record  related  to  an  



                                                                                                                                                                                      

employee  or  maintained  by  a  human  resources  department,  then  surely  it  includes  



                              

disciplinary records.  



                                                                                                                                                                                 

                                It may appear at first glance that the statute provides only two illustrative  



                                                                                                                                                                                                  

examples:  it specifies that "personnel records, including employment applications and  



                                                                                                                                                                              

examination and other assessment materials, are confidential" subject to enumerated  

                          43     But we construe the use of " 'including' . . . as though followed by the  

exceptions.                                                                                                                                                                                        

phrase  'but  not  limited  to.'  "44                                           The  plain  meaning  of  this  provision  thus  requires  

                                                                                                                                                                                      



                40             (...continued)  



                                                                                                                                          

v. State, Office of the Governor, 10 P.3d 572, 578 (Alaska 2000)).  



                41             Alaska Ass'n of Naturopathic Physicians v. State, Dep't of Commerce                                                                                             , 414   



P.3d 630, 635 (Alaska 2018).                          



                42             Personnel,  THE    AMERICAN    HERITAGE    DICTIONARY    OF    THE    ENGLISH  

                                                          

LANGUAGE   (5th ed. 2016);  see also Personnel                                                                  , B   LACK'S  LAW  DICTIONARY   (10th ed.   

2014) ("1. Collectively, the people who work in a company, organization, or military                                                                                                   

force.   2. A corporate department in charge of hiring and firing staff and dealing with                                                                                                       

employee problems.").   



                43             AS 39.25.080(a).  

                                         



                44             AS 01.10.040(b).  

                                                                          



                                                                                                -12-                                                                                          7446
  


----------------------- Page 13-----------------------

"personnel records" to be read broadly, rather than limited to records pertaining to                                                                                                                                                       



employment applications and assessment materials.                                                                                                  Indeed, the "including" language                                     



appears   to   be   intended   only  to   ensure   that   pre-employment   records   are   within   the  



definition of "personnel records."                                   



                                     And -assuming                                    ambiguity -thestatutory                                                 text as awholesupports giving                                     



"personnel records" a broad interpretation.                                                                                 As noted, AS 39.25.080(a) provides that                                                                                



personnel records "are confidential and are not open to public inspection except as                                                                                                                                                        



provided in this section." Subsection (b) then excepts certain employee information that                                                                                                                                                



"is available for public inspection":                                                                



                                                        (1)  the names and position titles of all state employees;                                                           



                                                        (2)  the position held by a state employee;                                            



                                                        (3)  prior positions held by a state employee;                                                



                                                        (4)  whether   a   state   employee   is   in   the   classified,  

                                     partially exempt, or exempt service;                                           



                                                        (5) the dates of appointment and separation of a state      

                                     employee;  



                                                                                                                                                                                

                                                        (6) the compensation authorized for a state employee;  

                                     and  



                                                                                                                                                                                                      

                                                        (7) whether a state employee has been dismissed or  

                                                                                                                                                                                                       

                                     disciplined for a violation of AS 39.25.160(l) (interference or  

                                                                                                                                                                                            

                                     failure to cooperate with the Legislative Budget and Audit  

                                     Committee).[45]  



If the items listed in subsection (b) were not personnel records, subsection (a) would not  

                                                                                                                                                                                                                                         



prohibit disclosure and there would be no reason for subsection (b)'s exceptions.  

                                                                                                                                                                                                                                    



                                     The statute's plain language indicates that only the types of personnel  

                                                                                                                                                                                                                      



records listed in subsection (b) may be disclosed.   The  expressio unius est exclusio  

                                                                                                                                                                                                                          



                   45                AS 39.25.080(b).  

                                                



                                                                                                                   -13-                                                                                                             7446  


----------------------- Page 14-----------------------

alterius   canon of statutory construction "establishes the inference that, where certain                                                                      



things are designated in a statute, 'all omissions should be understood as exclusions.'                                                                                       

                                                                                                                                                  46   Given that  

The maxim . . . is essentially an application of common sense and logic."                                                                                            

                                                                                                                47  the logical inference is that  

a specific type of disciplinary record may be disclosed,                                                                                                                      

                                                                                             



under  the  statute  all  disciplinary  records  are  personnel  records.                                                               Absence  of  other  

                                                                                                                                                                  



disciplinary records from the list of disclosable personnel records implies that all other  

                                                                                                                                                                  



disciplinary records must be confidential.  

                                                          



                           We  are  unpersuaded  by  the  ACLU's  argument,  citing  Alaska  State  

                                                                                                                                                                 



Commission for Human Rights v. Anderson, that the expressio unius  canon is "less  

                                                                                                                                                                   

persuasive when applied to two acts passed far apart in time."48                                                                 In contrast to the case  

                                                                                                                                       

the ACLU primarily relies on,49 in this case we are required to interpret subsections of  

                                                                                                                              



the   same   statute   rather   than   two   entirely   different   statutes.                                                                 And   although  

                                                                                                                                                         



subsection (b)(7) - relating to disclosable disciplinary records - was adopted after the  

                                                                                                                                                                       



rest of the statute, that fact weighs in favor of applying the canon here.  The logical  

                                                                                                                                                               



reason the legislature singled out one type of disciplinary record as an exception to the  

                                                                                                                                                                       



general  non-disclosure  rule  is  that  it  believed  the  records  otherwise  would  be  

                                                                                                                                                                      



confidential.  We also are unconvinced by the ACLU's argument that the inclusion of  

                                                                                                                                                                        



disciplinary records within the scope of AS 39.25.080(a) is less persuasive due to the  

                                                                                                                                                                       



             46           Alaska State Comm'n for Human Rights v. Anderson                                                           , 426 P.3d 956, 964             



n.34  (Alaska 2018) (quoting                              Croft v. Pan Alaska Trucking, Inc.                                    , 820 P.2d 1064, 1066              

(Alaska 1991)).   



             47            See AS 39.25.080(b)(7).  

                                           



             48            426 P.3d at 964 (quoting Arabian Motors Grp. v. Ford Motor Co. , 228 F.  

                                                                                                                                                                         

Supp. 3d 797, 806 (E.D. Mich. 2017)).  

                                                                



             49            See id. at 964-65 (declining to apply expressio unius to interpret several  

                                                                                                                                            

unrelated statutes passed at different times).  

                                                                                         



                                                                                  -14-                                                                            7446
  


----------------------- Page 15-----------------------

absence of "lengthy, thoughtful discussion by the legislature" indicating that it meant to                                                                                                                                                                                



excludeonething                                        by including another;theinterpretivecanon                                                                                               focuses solely on statutory                           



text, not legislative statements.                                                                  



                                          2.                   Legislative history and purpose                                                



                                          The State convincingly argues that the legislative history and purpose of                                                                                                                                                       



AS 39.25.080 support a broad interpretation of personnel records and the conclusion that                                                                                                                                                                             



only the listed personnel records may be disclosed. The statute's relevant language was                                                                                                                                                                             



amended in 1982 following the recommendations of a commission convened by the                                                                                                                                                                                         



                                                                                                                                                                                                                                                           50  

legislature to undertake a comprehensive review of Alaska's personnel system.                                                                                                                                                                                                

                                                                                                                                                                                                                                                                    In a  



                                                                                                                                                                                                                                                   

report discussing the recommended changes, the commission explained the proposed  



                                             

change to AS 39.25.080:  



                                                                                                                                                                                                                           

                                          Current  law  provides  that  the state  personnel  records  are  

                                                                                                                                                                                                                        

                                          public except for those which the rules require to be kept  

                                                                                                                                                                                                                      

                                          confidential. . . . The commission decided that it was more  

                                                                                                                                                                                                                             

                                          appropriate to indicate what materials actually are open to the  

                                                                                                                                                                                                                          

                                          public, and to make the remaining records confidential.  The  

                                                                                                                                                                                    [51]  

                                                                                                                                                                        

                                          public materials are listed in subsection (b).                                                                                                     



Memoranda written by the commission's administrative and research assistant indicate  

                                                                                                                                                                                                                                                       



that the amendments weremeant tobeconsistent with thethen-in-effectPersonnel Rules,  

                                                                                                                                                                                                                                                             

making all except a few specific personnel records confidential.52                                                                                                                                                        These statements  

                                                                                                                                                                                                                                              



                     50                   Ch. 112, § 5, SLA 1982; Blue Ribbon Comm'n on the State Pers. Act, Rep.                                                                                                                                                 



of the Blue Ribbon Comm'n on the State Pers. Act to the Twelfth Alaska State Legis.                                                                                                                                                                         

First Sess., 12th Leg., 1st Sess. at 1, Alaska Leg. Microfiche Collection No. 1363 (1981)                                                                                                                                                                  

(hereinafter Blue Ribbon Report).                                                



                     51                   Blue Ribbon Report, supra note 50, at 9.  

                                                                                                                                                                            



                     52                   Blue Ribbon Comm'n on the State Pers. Act, Memorandum on S.B. 193  

                                                                                                                                                                                                                                                                    

(Mar. 31, 1981) (in H. Jud. Comm. file for S.B. 193).  

                                                                                                                                                        



                                                                                                                                  -15-                                                                                                                           7446
  


----------------------- Page 16-----------------------

support the State's argument that AS 39.25.080 creates a broad non-disclosure rule with                                                                                                                          



a few specifically enumerated exceptions.                                                                    



                                  The legislative history also shows that existing practice had been to keep                                                                                                    



disciplinary records confidential and that the legislature sought to maintain that practice                                                                                                             



when amending AS 39.25.080. The Personnel Rules in effect in June 1980 provided that                                                                                                                               



"employee records shall be public records" with a few exceptions, including one for                                                                                                                                 



"confidential    materials    so    designated   by    the    Director    [of    the    Department    of  

                                             53     One of the materials designated as confidential by the Director was  

Administration]."                                                                                                                                                                                                 

"[d]isciplinary   letters/memos   for   State   connected   employment."54                                                                                                                     Given   the  

                                                                                                                                                                                                                 



commission's  intent  to  codify  existing practices  under  the  Personnel  Rules,  this  is  

                                                                                                                                                                                                                      



additional evidence that disciplinary records were a type of personnel record meant to  

                                                                                                                                                                                                     



be confidential under the statute.  

                                                                 



                                  The State asserts that the Personnel Act's purpose also supports the State's  

                                                                                                                                                                                                           



position.  The Act's purpose is "to establish a system of personnel administration based  

                                                                                                                                                                                                             



upon the merit principle and adapted to the requirements of the state to the end that  

                                                                                                                                                                                                                 



persons best qualified to perform the functions of the state will be employed, and that an  

                                                                                                                                                                                                                      

effective career service will be encouraged, developed, and maintained."55                                                                                                                         The State  

                                                                                                                                                                                                               

contends that "[c]onfidentiality 'likely produces candor' "56  and that employees more  

                                                                                                                                                                                                              



                 53               See  Pers. Rule 14.07.0 (June 1980) (in S. State Affairs Comm. File for S.B.                                                                                                   



 193 (1982)).   



                 54               STATE OF                 ALASKA, D                   EP 'T OF            LAW, O             P. A      TT'Y  GEN., 1980 WL 27608 at *1                                               



(Feb. 20, 1980).         



                 55               AS 39.25.010(a).  

                                            



                 56               See Wakefield Teachers Ass'n v. Sch. Comm. of Wakefield, 731 N.E.2d 63,  

                                                                                                                                                                                                                    

70 (Mass.2000) ("Theexemptionfromdisclosureofpersonnelfiles andinformation has,  

                                                                                                                                                                                                                  

                                                                                                                                                                                          (continued...)  



                                                                                                         -16-                                                                                                  7446
  


----------------------- Page 17-----------------------

likely will admit mistakes or explain their actions if they do not risk public disclosure                                                                                                                               



and potential embarrassment. The State thus presents a legitimate policy of maintaining                                                                                                                             



 employee disciplinary records' confidentiality as a critical component of the "evaluation                                                                                                                           



and correction process."                   



                                      Although the ACLU is correct that "[t]he Public Records Act reflects the                                                                                                                              



legislature's commitment to ensure that government affairs are transparent and readily                                                                                                                                           



open to scrutiny by the public," this legislative commitment cannot override the plain                                                                                                                                                 



meaning of another statute expressly limiting transparency and public scrutiny.                                                                                                                                                        The  



Public    Records    Act    explicitly    contemplates    that   some    records   should   be    kept  

confidential, despite the general open disclosure policy.                                                                                                     57  



                                      3.                 Case law  

                                                                         



                                      Basey, the ACLU, and the Press Amici argue that our case law supports  

                                                                                                                                                                                                                             



Basey's position that disciplinary records are not "personnel records." They cite Alaska  

                                                                                                                                                                                                                                  

 Wildlife  Alliance  v.  Rue;58                                                     International  Ass'n  of  Fire  Fighters,  Local  1264  v.  

                                                                                                                                                                                                                                              

Municipality of Anchorage ;59                                                                                                            60                                                                                                     61  

                                                                                                                                                                                                                                

                                                                                     Jones v. Jennings ;                                       and Doe v. Alaska Superior Court 



 for the proposition that we have narrowly defined "personnel records" to include only  

                                                                                                                                                                                



                   56                 (...continued)  



 among  other  benefits,  the  protection  of  the  government's  ability  to  function  effectively  

as  an  employer.").  



                   57                 See  AS  40.25.120(a)(1)-(18)  (providing  various  exceptions  to  general  rule  



that  "[e]very  person  has  a  right  to  inspect  a  public  record  in  the  state").  



                   58                 948 P.2d 976 (Alaska 1997).  

                                                                                                     



                   59                 973 P.2d 1132 (Alaska 1999).  

                                                                                                         



                   60                 788 P.2d 732 (Alaska 1990).  

                                                                                                     



                   61                 721 P.2d 617 (Alaska 1986).  

                                                                                                                          



                                                                                                                     -17-                                                                                                              7446
  


----------------------- Page 18-----------------------

those records revealing information about an employee's personal life.                                                                         We reject this        



argument and interpret the statute according to its plain language.                                             



                           In  Alaska Wildlife Alliance                           we addressed whether employee time sheets                                     

                                                                                                       62     We reasoned that the statute's  

were "personnel records" under AS 39.25.080(a).                                                                                                             



personnel records examples -"employment applications" and "examination materials"  

                                                                                                                                                         



- both contained details about an employee's or applicant's personal life, whereas the  

                                                                                                                                                                       



information permitted to be disclosed under AS 39.25.080(b), such as "position titles,"  

                                                                                                                                                                



"dates  of  appointment  and  separation,"  and  "compensation  authorized,"  "simply  

                                                                                                                                                           

describe[d] employment  status."63                                       We concluded  that,  because time sheets merely  

                                                                                                                                                              



indicated the hours an employee worked, they were "properly included in the definition  

                                                                                                                                                          

of public records" and not subject to AS 39.25.080(a)'s confidentiality provision.64  

                                                                                                                                                                       



                           In sum, Alaska Wildlife Alliance  looked less at statutory interpretation,  

                                                                                                                                                



where the answer lies, and instead to an unrelated and irrelevant contrast of what could  

                                                                                                                                                                  



be considered personal and non-personal information.  In light of our statutory analysis  

                                                                                                                                                             



of AS 39.25.080, Alaska Wildlife Alliance 's continuing validity is questionable.  

                                                                                                                                                                 



                           The other cases Basey and the amici cite similarly fail to support Basey's  

                                                                                                                                                             



argument. Doe concluded that AS 39.25.080 was inapposite because the statute did "not  

                                                                                                                                                                     

apply to State Medical Board members."65                                                   The proper interpretation of "personnel  

                                                                                                                                                      

records" under AS 39.25.080 was not at issue in Jones66 or Local 1264 ;67 both Jones68  

                                                                                                                                                              



             62            948 P.2d at 980.
       



             63           Id.
  



             64           Id.
  



             65            721 P.2d at 622.  

                                                             



             66            See Jones v. Jennings, 788 P.2d 732, 737 n.8 (Alaska 1990) ("We need not  

                                                                                                                                                                       

                                                                                                                                                  (continued...)  



                                                                                  -18-                                                                            7446
  


----------------------- Page 19-----------------------

                             69  

and  Local 1264                  addressed only whether requested records were disclosable under the                                                        



Anchorage Municipal Code and whether disclosing those records would violate the                                                                             



Alaska   Constitution.     And   Local 1264                                 's "personnel records" definition,                                relying   on  

Alaska Wildlife Alliance                     , was dictumand inconsistent with the term's general meaning.                                                    70  



                         4.           Conclusion  



                         Based on the statute's plain language, legislative history, and statutory  

                                                                                                                                                 



purpose,  we  conclude  that  state  employee  disciplinary  records  are  confidential  

                                                                                                                                          



"personnel records" under the State Personnel Act.  Because disciplinary records are  

                                                                                                                                                            



"personnel records"andbecauseby statuteonly disciplinary records reflecting discipline  

                                                                                                                                                



for  a  violation  of  AS  39.25.160(l)  are  disclosable,  we  affirm  the  superior  court's  

                                                                                                                                  



decision.  We therefore need not address whether disclosing disciplinary records would  

                                                                                                                                                      



violate the troopers' constitutional privacy rights.  

                                                                                               



IV.          CONCLUSION  



                         We AFFIRM the superior court's decision.  

                                                                                          



             66          (...continued)  



decide  today  whether  AS  39.25.080  includes  municipal  employees  .  .  .  .").  



             67          See  Int'l  Ass'n  of  Fire  Fighters,  Local  1264  v.  Municipality  of  Anchorage ,  



973  P.2d  1132,  1133-37  (Alaska  1999)  (concluding  disclosure  of  municipal  employees'  

names  and  salaries  did  not  violate  Alaska  Constitution  or  municipal  code).   



             68          See Jones, 788 P.2d at 733.  

                                                                     



             69          See Local 1264, 973 P.2d at 1133.  

                                                                                           



             70          See id. at 1134-35.  

                                            



                                                                             -19-                                                                       7446
  

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