One of the most common yet overlooked types of law that impacts fire departments on a daily basis is public records laws. First enacted in the 1970s as the country was reeling from the Watergate scandal, public records laws were part of a broader effort to make government more accountable and subject the decision-making of public officials to greater scrutiny.
Today, public records laws play an important role in helping to ensure the kind of transparency we all have come to expect from government. That noble objective is worth keeping in mind as we discuss the burdens that public records laws place on fire departments and individual firefighters.
There are four major questions for firefighters to consider when it comes to public records laws: 1) To whom do these laws apply? 2) What records are public? 3) What does the law require? and 4) What are the consequences of a public records violation?
1. To whom do these laws apply?
Public records laws have been enacted in all 50 states and by the federal government. The federal public records law, known as the Freedom of Information Act, applies to federal agencies, while state public records laws govern state and local agencies.
Generally, all federal, state and local governmental agencies are subject to some version of a public records law. This includes political subdivisions of a state, such as counties, cities, towns, townships and even fire districts. The laws also extend to the employees of these agencies. As a result, all federal, state and municipal fire departments throughout the country, as well as their employees, are subject to public records laws.
Public records laws may also apply to private entities that serve a public function. For example, volunteer fire companies that are established as independent nonprofit corporations are typically subject to the state public records law despite the fact they are a non-governmental entity because they are performing a public function. Some states limit public records requirements for volunteer fire companies to matters pertaining to their public function or to the extent public funds are used.
2. What records are public?
Public records laws typically define the records to which the law applies in very broad terms. Public records commonly include documents, correspondence, forms, applications, permits, papers, letters, maps, books, tapes, photographs, films, recordings, electronic data processing records, computer-stored data, electronic mail messages or other materials that are created or received by a governmental agency pursuant to a law or ordinance or in connection with the transaction of governmental business.
Think about those key terms—any record that a government agency creates or receives in connection with the transaction of governmental business. How would that definition apply to the following?
- A fire chief emails a deputy chief a question about a fire to which he recently responded
- At the scene of a fire, a battalion chief texts another battalion chief asking about the availability of a reserve engine company to replace a front-line unit that has become disabled
- A firefighter operating at an incident scene uses a helmet cam to capture video
In each of these cases, a government employee is engaged in the transaction of governmental business that results in the creation of an electronic record. Each of these electronic records is therefore a public record.
Most states start with the premise that any record that a governmental employee creates or receives in the course of work is presumed to be a public record, unless exempted by law. Public records laws exempt certain types of records either from the definition of a public record or from the obligation to release the record to the public. Each state will differ as to the exceptions provided, but they commonly include:
- Personal information that is confidential in nature (social security number, student information)
- Medical information
- Information in personnel files maintained to hire, evaluate, promote or discipline employees
- Attorney-client or doctor-patient communications
- Trade secrets
- Commercial or financial information received or gathered about an individual or business
- Adoption and child custody
- Criminal investigations while ongoing
- Non-criminal investigatory records of public bodies while ongoing
- Scientific and technology secrets of military, public safety and security importance
- Strategic information related to labor negotiations, collective bargaining, investments, borrowing, or the purchase of real estate or other property
- Preliminary drafts, work product
- Test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or promotion, or academic examinations
Because each state is different, it is important to verify which exceptions apply in a given jurisdiction.
3. What does the law require?
Each agency subject to the public records law as well as each public employee who is in possession of a public record is required to do two things.
First, a copy of each public record must be preserved for the duration of what is referred to as the record-retention period. The agency and its employees are prohibited from destroying that archived copy until the record retention period has expired. Record-retention requirements are established by statute or by a procedure established by law often under the direction of the secretary of state’s office. Because record retention requirements can be complex and may be dictated by different sources, fire departments should have a formalized and well-researched record retention policy that specifies how long each category of record must be kept.
Second, each agency must establish a procedure to allow public access to public records. The public has a right to examine, and in most cases, copy or receive a copy of any public record, unless it is subject to some exception. Limitations are commonly placed on how much time the agency has to produce the records once requested and how much an agency can charge for copies.
The digital age created a number of public records challenges for public agencies. Keeping a copy of a fire report or memo was a relatively simple task in the 1970s, requiring a file cabinet and a system to track which files are in which drawers. Public agencies now must apply those principles to emails, text messages and other forms of electronically stored information (ESI). The challenge for many fire departments is how to archive these types of ESI.
As if tracking work-related emails, text messages and digital imagery was not difficult enough, fire departments today are confronted with even more ESI challenges. A fire department’s social media activities (website or social media accounts) create public record ESI that must be captured and archived. Newer fire apparatus have vehicle data recorders with ESI that qualifies as a public record. Some high-tech accountability systems and air monitoring devices similarly create ESI.
The public records implications of ESI are mind-boggling, and the laws have not kept pace with the technology.
4. What are the consequences of a violation?
Violations of public records laws may be enforced in one of two ways. First, the attorney general may be authorized to investigate alleged public records violations and take action against a non-compliant agency or employee. A non-compliant agency or employee could be assessed a civil fine. In some jurisdictions, the refusal of an employee to produce a public record when requested by his or her agency is a criminal offense. Many jurisdictions also make the willful destruction of a public record a criminal offense. Thus, an employee who withholds or intentionally destroys a public record could face criminal charges.
Second, an aggrieved third party may file suit against the public agency and/or employee who refuses to comply with a request for a public record in order to force the production of the required records. In addition to issuing a court order compelling production of the requested documents, the court may also award attorneys’ fees to the party who is seeking to enforce the public records law.
How does this all work?
To wrap this up this discussion of public records laws, let’s consider some examples of how the law is intended to play out.
Example 1: Metro City Fire Department responds to a house fire. Following the fire, an incident report is completed. Several days later, the homeowner comes to fire department headquarters and requests a copy of the report. The department provides the homeowner with a complete copy of the report.
Example 2: Metro City Fire Department responds to a motor vehicle collision resulting from a high-speed police chase. The driver of the fleeing vehicle is uninjured but another driver, Mr. Smith, is severely injured. The incident garners extensive media coverage. A local reporter comes to fire department headquarters the next day and requests a copy of both the incident report and the patient care report for Mr. Smith. The department provides a copy of the incident report, but refuses to provide the patient care report citing the medical confidentiality exception to the public records law.
The reporter files a civil suit alleging Metro City is violating the public records law by not providing the patient care report. Following a hearing, the judge orders the fire department to produce the patient care report but allows it to redact the patient’s name, address, all personally identifying information and all medically related information. The judge also orders the fire department to pay the reporter’s attorney’s fees.
The department provides a copy of the patient care report with the applicable information blacked out. The result is the reporter receives a patient care report that contains virtually the same information provided in the incident report. Despite the fact that the reporter got no additional information by filing suit, the fire department still must pay the reporter’s attorney’s fees.
Example 3: A firefighter responds to a fire and utilizes a personally owned helmet cam. A local TV reporter at the scene notices the helmet cam, observes the red blinking light indicating it is recording, and the following day submits a public records request for a copy of the video.
The department has no policy on helmet cams and does not have a system for archiving digital imagery created by firefighters. The department instructs the firefighter to produce the video. The firefighter refuses and believing he has the right to do so, intentionally deletes the only copy of the video.
In this instance, the firefighter and the department are likely to be in violation of their obligations under the public records law. In some jurisdictions, the firefighter may have committed a crime by refusing a request to produce a public record and/or by willfully destroying a public record. In other jurisdictions, the firefighter and the department may be fined for violating the public records law.
In conclusion
Public records laws serve an important function in our society. Complying with public records laws can be a burden, but one that is manageable provided we take the time to identify our obligations and develop systems to meet them.
Public records laws are not just a problem for the fire chief. Every firefighter, as a public employee, has a legal obligation to comply with the law. While non-compliance is most likely to result in a monetary fine, it is worth noting that refusing to produce a public record when requested, or willfully destroying a public record, can result in criminal charges.
Fire departments and firefighters need to work cooperatively to ensure their mutual obligations under public records laws are addressed and their mutual interests are protected.
