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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
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,
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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."
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----------------------- 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).
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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...)
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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.
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