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-16609
Appellant, )
) Superior Court No. 4FA-16-02509 CI
v. )
) OPINION
STATE OF ALASKA, DEPARTMENT )
OF PUBLIC SAFETY, DIVISION OF ) No. 7214 – December 29, 2017
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, Fairbanks,
Appellant. John J. Novak, Assistant Attorney General,
Anchorage, and Jahna Lindemuth, Attorney General, Juneau,
for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger
and Carney, Justices.
BOLGER, Justice.
I. INTRODUCTION
In this appeal, Kaleb Basey argues the Alaska State Troopers (AST) must
comply with his requests for certain public records. The State contends the requested
records are statutorily exempt from disclosure because the records pertain to currently
pending federal cases: a criminal case against Basey and a related civil suit he brought
against various state employees. We conclude the State has not established that
disclosure of these records “could reasonably be expected to interfere with enforcement
proceedings”1 or that either of these pending actions “involv[es] a public agency”2 as
required by the statutory exceptions the State cites.
II. FACTS AND PROCEEDINGS
Basey was the subject of a joint criminal investigation conducted by AST
and the Fort Wainwright Criminal Investigation Division. He is now a party to two
federal cases stemming from that investigation. First, Basey was indicted by a federal
grand jury in December 2014 and is the defendant in a federal criminal case.3 Second,
Basey brought a federal civil rights lawsuit in January 2016 against more than a dozen
named individuals, including AST officers, based on their alleged actions during the
investigation and his arrest.4
In September 2016 Basey filed two public records requests with AST. He
sought records related to his specific investigation, records related to AST’s use of
1
AS 40.25.120(a)(6)(A).
2
AS 40.25.122.
3
Indictment, United States v. Basey, No. 4:14-CR-00028 (D. Alaska filed
Dec. 16, 2014).
4
Complaint, Basey v. Hansen, No. 4:16-CV-00004 (D. Alaska filed Jan. 15,
2016).
-2- 7214
military search authorizations, and disciplinary and training certification records for two
AST investigators who are defendants in the civil case.5 About a week later AST denied
Basey’s requests on the basis that all of the information he requested pertained to
pending litigation. Basey appealed to the Commissioner of the Department of Public
Safety,6 challenging AST’s determination that the records were not disclosable and
arguing that any nondisclosable information could be redacted. The Commissioner
denied the appeal. The denial letter stated that the requested records “pertain to a matter
that is currently the subject of civil and/or criminal litigation to which [Basey is] a party”
and that pursuant to AS 40.25.122 the records “continue to be unavailable through [a
public records request] and must be obtained in accordance with court rules.”
Basey subsequently filed a complaint in superior court to compel AST to
produce the records. The State filed a motion to dismiss, asserting that two statutory
exceptions justified the denial of Basey’s requests. First, the State claimed that
“[AS] 40.25.120(a)(6)(A) authorizes refusal to disclose records when the records pertain
to a pending criminal prosecution,” and it asked the court to take judicial notice of the
pending federal criminal case. Second, the State claimed “[AS] 40.25.122 authorizes
refusal to disclose records when the requestor is a party in a pending civil lawsuit that
relates to the sought after records,” and it asked the court to take judicial notice of the
pending federal civil case. The State attached a redacted version of the federal civil
complaint to its motion.
5
Basey apparently believes these records are relevant to — among other
things — his theory that AST has a pattern of using military search authorizations for
civilian investigations in violation of the Posse Comitatus Act, 18 U.S.C. § 1385 (2012).
See generally United States v. Dreyer, 804 F.3d 1266, 1272-77 (9th Cir. 2015) (en banc)
(discussing and applying the Posse Comitatus Act).
6
See 2 Alaska Administrative Code (AAC) 96.340(a) (Supp. 2016).
-3- 7214
Basey opposed the motion, challenging the State’s characterizations of the
cited statutory exceptions. Citing Brady v. State7 and an attorney general opinion,8 he
argued that the AS 40.25.122 litigation exception applies only when the requestor is
“involved in litigation with the state” and that he had named individual persons, not the
State, in his civil suit. (Emphasis in original.) Basey also argued that the
AS 40.25.120(a)(6)(A) law-enforcement exception did not apply because the State had
not “made a sufficient showing . . . that disclosure of the requested records and
information would reasonably interfere with enforcement proceedings.”9
Without holding a hearing, the superior court dismissed the case with
prejudice “[b]ased upon the reasoning in [the State’s] Motion to Dismiss.”
III. STANDARD OF REVIEW
The State did not indicate the procedural basis for its motion to dismiss, nor
did the superior court do so in granting the motion. We construe the motion as one to
dismiss for failure to state a claim pursuant to Alaska Civil Rule 12(b)(6),10 which we
7
965 P.2d 1 (Alaska 1998).
8
1994 INFORMAL OP. ATT’Y GEN. 99.
9
Basey also argued that the State had violated 2 AAC 96.330 (Supp. 2016)
by failing to segregate and redact nondisclosable information to provide otherwise
disclosable records. He renews this argument on appeal, but we do not address it as we
reverse on other grounds. The superior court may address it on remand as appropriate.
10
See Shooshanian v. Wagner, 672 P.2d 455, 461 (Alaska 1983) (explaining
that a Rule 12(b)(6) motion “tests the legal sufficiency of the complaint’s allegations”
(quoting Dworkin v. First Nat’l Bank of Fairbanks, 444 P.2d 777, 779 (Alaska 1968))).
Our disposition of this appeal would be the same were we instead to construe the motion
as one for summary judgment. See Alaska R. Civ. P. 56.
-4- 7214
review de novo.11 Under Rule 12(b)(6) “[a] complaint should not be dismissed ‘unless
it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim’
that would entitle him to some form of relief.”12 This case also presents questions of
statutory interpretation, which we decide “using our independent judgment.”13 We
consider the statute’s “text, legislative history, and purpose.”14
IV. DISCUSSION
“[T]here is a strong commitment in Alaska ‘to ensuring broad public access
to government records.’ ”15 Consequently, “[e]very person has a right to inspect a public
record in the state,” subject to certain exceptions set forth in statute.16 These exceptions
are “narrowly construe[d]” in order to further the legislative policy of broad access,17 and
the State generally bears the burden of showing that a record is not subject to
11
Larson v. State, Dep’t of Corr., 284 P.3d 1, 6 (Alaska 2012).
12
Id. (quoting Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 254 (Alaska
2000)); see Alaska R. Civ. P. 12(b)(6).
13
Bernard v. Alaska Airlines, Inc., 367 P.3d 1156, 1160 (Alaska 2016)
(quoting Donahue v. Ledgends, Inc., 331 P.3d 342, 346 (Alaska 2014)).
14
Lingley v. Alaska Airlines, Inc., 373 P.3d 506, 512 (Alaska 2016) (citing
Donahue, 331 P.3d at 346).
15
Fuller v. City of Homer, 113 P.3d 659, 665 (Alaska 2005) (quoting Fuller
v. City of Homer, 75 P.3d 1059, 1061 (Alaska 2003)).
16
AS 40.25.120(a); Gwich’in Steering Comm. v. State, Office of the
Governor, 10 P.3d 572, 578 (Alaska 2000).
17
Gwich’in Steering Comm., 10 P.3d at 578 (citing Capital Info. Grp. v. State,
Office of the Governor, 923 P.2d 29, 33 (Alaska 1996)).
-5- 7214
disclosure.18 Throughout this case, the State has relied on only two exceptions to justify
AST’s nondisclosure of the requested records: the AS 40.25.122 litigation exception and
the AS 40.25.120(a)(6)(A) law-enforcement-interference exception.
A. Litigation Exception (AS 40.25.122)
Alaska Statute 40.25.122 provides that documents relating to litigation
involving a “public agency”19 are subject to disclosure, with one exception:
A public record that is subject to disclosure and copying
under AS 40.25.110-40.25.120 remains a public record
subject to disclosure and copying even if the record is used
for, included in, or relevant to litigation, including law
enforcement proceedings, involving a public agency, except
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. In this section, “involved in litigation” means
a party to litigation or representing a party to litigation,
including obtaining public records for the party.
Basey was unquestionably “involved in litigation” when he submitted his records
requests, but he asserts that the exception does not apply because he was not involved
in litigation with a public agency. Rather, he was involved in litigation with individual
state officers he sued in their personal capacity. The State responds that the exception
18
Anchorage Sch. Dist. v. Anchorage Daily News, 779 P.2d 1191, 1193
(Alaska 1989); see also Fuller, 113 P.3d at 665 (“There is a presumption in favor of
disclosure of public documents.”); cf. Gwich’in Steering Comm., 10 P.3d at 579
(explaining that for a public official to invoke the deliberate process privilege, the official
“must show as a threshold matter that the communication is both ‘predecisional’ and
‘deliberative’ ”).
19
“ ‘[P]ublic agency’ means a political subdivision, department, institution,
board, commission, division, authority, public corporation, council, committee, or other
instrumentality of the state or a municipality; ‘public agency’ includes the University of
Alaska and the Alaska Railroad Corporation.” AS 40.25.220(2).
-6- 7214
applies but does not cite any authority for its position or otherwise develop its
argument.20 Implicit in the State’s unsupported argument is a contention that the
litigation exception applies whenever the requestor is involved in litigation, regardless
of whether a public agency is a party to the litigation.
Both Basey’s narrow reading of the litigation exception and the State’s
broad reading are plausible on the face of AS 40.25.122: the statute’s first clause refers
to “litigation . . . involving a public agency,” but the second clause — containing the
exception — refers only to “litigation.” Basey’s is the more natural construction, though.
Generally, “each part . . . of a statute should be construed with every other part . . . so as
to produce a harmonious whole.”21 The litigation exception contained in the second
clause of AS 40.25.122 is an apparent exception to the first clause: the clauses are joined
with the conjunction “except,” and they both refer to the same subject matter. When the
clauses are read together, the litigation exception exempts fromdisclosure certain records
20
The State comes close to making an argument when it asserts that Basey
“properly could obtain the sought after materials via the discovery rules applicable in the
criminal prosecution and civil rights cases, not via a public records request.” But the
State did not make this argument in the superior court and offers no support for it now,
other than a general citation to “Federal Criminal Rule 16 and Federal Civil Rules 27
37.” And the State does not explain why the supposed availability of the documents
under the rules of discovery renders them unavailable under the Public Records Act.
Cf. Rowan B., Sr. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
320 P.3d 1152, 1156 (Alaska 2014) (explaining that the Public Records Act and
discovery rules “[b]oth provide access to information, but they do so for different reasons
and provide different types of access”). We treat this point as waived. See Hagen v.
Strobel, 353 P.3d 799, 805 (Alaska 2015). In contrast with the State, Basey cites
pertinent case law and attorney general opinions in support of his argument. See Brady
v. State, 965 P.2d 1 (Alaska 1998); 1993-99 FORMAL OP. ATT’Y GEN. 1; 1994 INFORMAL
OP. ATT’Y GEN. 99.
21
Ward v. State, Dep’t of Pub. Safety, 288 P.3d 94, 99 (Alaska 2012) (quoting
Forest v. Safeway Stores, Inc., 830 P.2d 778, 781 (Alaska 1992)).
-7- 7214
otherwise disclosable under the first clause of the section — that is, certain records “used
for, included in, or relevant to litigation . . . involving a public agency.”22 The exception
therefore applies only when the litigation involves a public agency.
The history of the litigation exception confirms this interpretation. The
apparent precursor to AS 40.25.122 is a regulation drafted by the Department of Law and
adopted in 1982. Former 6 Alaska Administrative Code (AAC) 95.150 provided that if
a “requestor . . . is in litigation with an agency in a judicial or administrative forum,
disclosure of . . . records relevant to that litigation or reasonably likely to lead to the
discovery of relevant evidence is governed by the rules or orders in that forum.”23 In a
letter presenting 6 AAC 95.150 and related regulations, Attorney General Wilson
Condon explained that the regulation was a response to an “attempt” the preceding year
“by an attorney in the midst of litigation to carry on discovery of evidence outside the
parameters of the court rules.”24 According to Attorney General Condon, the attorney’s
use of the Public Records Act to obtain discovery had “intruded on the state’s ability to
22
AS 40.25.122 (emphasis added). Cf. N. Alaska Envtl. Ctr. v. State, Dep’t
of Nat. Res., 2 P.3d 629, 635-36 (Alaska 2000) (reasoning that a statute’s exemption of
permit issuances from a written-findings requirement otherwise applicable to “disposals”
implies that permit issuances are “disposals”); 2A NORMAN J. SINGER & SHAMBIE
SINGER, STATUTES AND STATUTORY CONSTRUCTION § 47:11, at 326 (7th ed. 2014)
(“Exceptions, like provisos, restrict general legislative language.”).
23
Former 6 AAC 95.150 (eff. 10/8/1982; repealed 11/6/1994) (emphasis
added). Another pertinent regulation, still in effect, is 2 AAC 96.220 (Supp. 2016). It
provides: “[A] public agency may inquire whether [the requestor] is a party, or
represents a party, involved in litigation with the state or a public agency to which the
requested record is relevant. If so, the [requestor] shall be informed to make the request
in accordance with applicable court rules.” While 2 AAC 96.220 does not state that the
litigation exception applies only when the requestor is involved in litigation with a public
agency, it strongly implies that this is the case.
24
1982 INFORMAL OP. ATT’Y GEN. 493, 497.
-8- 7214
present its case at trial since the state’s witnesses had to divert their attention from the
trial to respond to the requests.”25
The legislature took up this issue eight years later in 1990 when it enacted
House Bill (H.B.) 405, a significant overhaul of the Public Records Act.26 According to
Assistant Attorney General Jeff Bush, who testified in support of H.B. 405, the
Department of Law “worked closely” with the bill’s sponsor, Representative Kay Brown,
in coming to a final version of the bill.27 The bill did not contain a litigation exception
when it first passed the House.28 But Representative Brown suggested in a memorandum
to Pat Pourchot, the Chair of the Senate State Affairs Committee, that “a provision
relating to public records involved in litigation” be added.29 The proposed litigation
provision was “OK with Dept. of Law/[Assistant Attorney General] Bush,” according
to a handwritten note on Senator Pourchot’s copy of the memorandum.30 The provision
made it into the Senate State Affairs Committee substitute31 and ultimately into the
25
Id.
26
Ch. 200, SLA 1990.
27
Testimony of Jeff Bush, Assistant Att’y Gen. at 1:50, Hearing on H.B. 405
Before the Sen. State Affairs Comm., 16th Leg., 2d Sess. (Apr. 25, 1990).
28
See Committee Substitute for House Bill (C.S.H.B.) 405 (FIN), 16th Leg.,
2d Sess. (1990); 1990 House Journal 3021.
29
Memorandum from Rep. Kay Brown to Sen. Pat Pourchot on C.S.H.B. 405,
16th Leg., 2nd Sess., Alaska Leg. Microfiche Collection No. 6708 (Apr. 7, 1990).
30
Id.
31
Senate Committee Substitute for Committee Substitute for House Bill
(S.C.S. C.S.H.B.) 405 (STA), 16th Leg., 2d Sess. (1990).
-9- 7214
enacted statute,32 and it is now codified at AS 40.25.122.33 After the Senate’s version of
H.B. 405 had passed both chambers, Attorney General Douglas Baily sent a bill review
letter to Governor Steve Cowper in which he discussed the litigation exception.34 He
wrote that AS 40.25.122 was “consistent with . . . 6 AAC 95.150 and [did] not change
existing law.”35
The foregoing history shows that the litigation exception was initially
conceived to protect the State during litigation — to ensure that the State receives the
protections afforded by the rules of discovery. Attorney General Condon cited this
purpose when he presented former 6 AAC 95.150, and in fact 6 AAC 95.150 only
applied when the requestor was in “litigation with an agency.” There is no indication
that the legislature intended a different purpose when it enacted AS 40.25.122. To the
contrary, the Department of Law’s substantial involvement in drafting H.B. 405 and its
approval of adding a litigation provision to the bill suggest that AS 40.25.122 was
intended as a statutory replacement for 6 AAC 95.150. Attorney General Baily’s
contemporaneous interpretation of AS 40.25.122 strongly supports this conclusion.36
32
Ch. 200, § 6, SLA 1990.
33
The litigation provision was originally codified at AS 09.25.122 but was
later renumbered as AS 40.25.122. AS 40.25.122 revisor’s note.
34
Letter from Att’y Gen. Douglas Baily to Gov. Steve Cowper, File No. 883
90-0175 (June 18, 1990).
35
Id.
36
We “exercise[] [our] independent judgment on matters of statutory
interpretation,” and the weight we accord an attorney general’s “opinion[] is largely” a
matter of “discretion.” Grimes v. Kinney Shoe Corp., 938 P.2d 997, 1000 n.7 (Alaska
1997) . Here, Attorney General Baily’s interpretation is entitled to significant deference
given that the Department of Law drafted the original version of the litigation exception,
(continued...)
-10- 7214
The history of the litigation exception thus indicates the exception was intended to apply
only when the requestor is involved in litigation “involving a public agency.”37
Former Attorney General Bruce Botelho reached the same conclusion in
a 1994 informal opinion.38 He referred to the legislative history, citing Attorney General
Baily’s bill review letter and former 6 AAC 95.150.39 He further explained that “[t]here
are legitimate public policy reasons for differentiating between record requests made by
parties involved in litigation against the state and those made by other parties”:
When the state is involved in the litigation, requiring the
discovery rules to apply to documents sought by the other
side ensures that the state is not disadvantaged in litigation by
its public records statutes. . . . [I]t ensures equal footing for
the state. This analysis simply does not apply when the state
isn’t a party to the litigation.[40]
Attorney General Botelho briefly addressed this issue again in a formal opinion to the
Commissioner of the Department of Public Safety on “requests for public release of . . .
law enforcement records.”41 There too he concluded that the litigation exception applies
36
(...continued)
former 6 AAC 95.150, and was substantially involved in drafting H.B. 405. Cf. Flisock
v. State, Div. of Ret. & Benefits, 818 P.2d 640, 645 (Alaska 1991) (“The interpretation
of legislation by . . . the agency that sponsored the bill is entitled to be given weight by
the court in construing the intent of the statute.”).
37
AS 40.25.122.
38
1994 INFORMAL OP. ATT’Y GEN. 99.
39
Id. at 99-100.
40
Id. at 100.
41
1993-99 FORMAL OP. ATT’Y GEN. 1.
-11- 7214
only to “records sought in conjunction with litigation involving the State.”42 He
explained that the purpose of the exception was to “ensure[] that the state and its
agencies are given the same protections afforded all litigants by the court rules governing
discovery even when the documents sought are public records.”43 We find the reasoning
in these opinions persuasive, and the State does not repudiate the opinions or otherwise
attack their reasoning.44
Finally, we note that we endorsed Basey’s narrow interpretation of
AS 40.25.122 in Brady v. State.45 We wrote that the statute “limits access to otherwise
public records by ‘person[s] involved in litigation’ with the State.”46 That case did not
present the question whether the litigation exception applies only when the requestor is
42
Id. at 3-4 & n.3 (emphasis in original).
43
Id. at 3.
44
See Bullock v. State, Dep’t of Cmty. & Reg’l Affairs, 19 P.3d 1209, 1216
(Alaska 2001) (“Attorney General’s opinions, while not controlling, are entitled to some
deference in matters of statutory construction.”); Allison v. State, 583 P.2d 813, 817 n.15
(Alaska 1978) (indicating that whether an attorney general’s opinion has “been
challenged” is a factor to be considered in deciding how much weight to accord the
opinion (quoting Smith v. Mun. Court of Glendale Judicial Dist., 334 P.2d 931, 935 (Cal.
Dist. App. 1959))); see also supra note 36.
45
965 P.2d 1, 18, 22 (Alaska 1998).
46
Id. at 18 (alteration in original) (emphasis added) (quoting former
AS 09.25.122 (1998), later renumbered as AS 40.25.122); see also id. at 22 (“The statute
. . . directs in mandatory language that ‘with respect to a person involved in litigation
[with a public agency], the records sought shall be disclosed in accordance with the rules
of procedure applicable in a court.’ ” (alteration in original) (emphasis added) (quoting
former AS 09.25.122 (1998), later renumbered as AS 40.25.122)).
-12- 7214
involved in litigation with a public agency or applies more broadly,47 and thus our
interpretation of AS 40.25.122 in Brady is perhaps dictum.48 Nonetheless, it is
significant that the narrow reading of the litigation exception seemed most natural to this
court.49
The litigation exception in AS 40.25.122 thus applies only when the
requestor is involved in litigation “involving a public agency.” The State failed to
establish Basey was involved in such litigation. Basey’s complaint refers to his criminal
case, but that case is being prosecuted by the federal government, not the State. The
federal government is not a “public agency” as defined in the Public Records Act.50
47
Rather, we addressed an equal protection challenge to the litigation
exception, finding the challenge inadequately briefed and thus waived. Id. at 19. We
also reviewed the superior court’s dismissal on summary judgment of a claim that state
officials retaliated against a litigant by applying the AS 40.25.122 litigation exception
“overbroadly.” Id. at 22. We held that the claim was properly dismissed because an
official’s “letter offering to permit [the litigant] access to all public records, if [he] would
commit in writing not to use such access to gather documents for litigation, rebut[ted]
any inference that officials were acting with retaliatory intent.” Id.
48
See VECO, Inc. v. Rosebrock, 970 P.2d 906, 922 (Alaska 1999) (“Dicta is
defined as ‘[o]pinions of a judge which do not embody the resolution or determination
of the specific case before the court.’ ” (alteration in orginal) (quoting BLACK’S LAW
DICTIONARY 454 (6th ed. 1990))); see also Joseph v. State, 26 P.3d 459, 468-69 (Alaska
2001) (“Dictum is not holding.”).
49
The State also assumed in Brady that this was the correct reading. See Brief
of Appellees at 12 n.1, Brady, 965 P.2d 1 (No. S-07916), 1997 WL 34617347, at *12 n.1
(stating that AS 40.25.122 applied “because the [appellants were] involved in litigation
with the State”).
50
AS 40.25.220(2); see supra note 19.
-13- 7214
The State requested that the superior court take judicial notice of Basey’s
civil case,51 but no public agency is a party to that case either. Rather, Basey’s civil
complaint names a number of individual state officials as defendants, and explicitly states
Basey is suing them “[i]n their individual capacities.”52 Basey brought his complaint
pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics,53 neither of which provides for a cause of action against a state or
state agency.54
The State has not argued that Basey’s civil or criminal case “involv[es] a
public agency” in some way other than a public agency being a party to the case, and we
do not address this possibility. In other words, we decline to decide whether a public
agency might be involved in litigation for the purpose of AS 40.25.122 even though it
51
Basey argues the superior court erred in taking “judicial notice of disputed
matters outside the pleadings without converting the motion to dismiss [into a motion for
summary judgment] or explicitly stating that said matters were being excluded.” See
Pedersen v. Blythe, 292 P.3d 182, 185 (Alaska 2012) (“[J]ust as it does when converting
a motion to dismiss [to a motion for summary judgment], the court must give notice . . .
of its intent to take judicial notice and ‘afford [the parties] an opportunity to dispute the
facts judicially noticed.’ ” (quoting Schwartz v. Commonwealth Land Title Ins. Co., 374
F. Supp. 564, 579 (E.D. Pa. 1974))). Since we reverse the superior court on other
grounds, we do not address this argument.
52
Complaint, supra note 4, at 1.
53
403 U.S. 388 (1971); see Complaint, supra note 4, at 2.
54
See State, Dep’t of Corr. v. Heisey, 271 P.3d 1082, 1095 (Alaska 2012) (“A
Bivens claim is a judicially created claim which gives relief to plaintiffs claiming federal
constitutional violations by federal agents.” (emphasis added)); State, Dep’t of Health
& Soc. Servs., Div. of Family & Youth Servs. v. Native Vill. of Curyung, 151 P.3d 388,
403 (Alaska 2006) (“The [United States] Supreme Court has unequivocally held that
states are not proper defendants under § 1983.” (citing Arizonans for Official English v.
Arizona, 520 U.S. 43, 69 (1997))).
-14- 7214
is not a party to the litigation, and we decline to decide whether the State has shown any
such involvement. We conclude it was error for the superior court to grant the State’s
motion to dismiss pursuant to AS 40.25.122.
B. Law-Enforcement-Interference Exception (AS 40.25.120(a)(6)(A))
The State invokes an additional exception to the Public Records Act.
Alaska Statute 40.25.120(a)(6)(A) provides that law enforcement records are not subject
to production under the Public Records Act if disclosing them “could reasonably be
expected to interfere with enforcement proceedings.” Although Basey is involved in an
enforcement proceeding as a defendant in a federal criminal action, he contends the State
failed to show that disclosure of the requested records could reasonably be expected to
interfere with the federal proceeding. Echoing the argument that it made in the superior
court, the State responds — without elaboration — that AS 40.25.120(a)(6)(A) allows
AST “to decline to disclose the [requested records] in light of their being the subject
matter of the pending criminal prosecution.”
We need not decide today precisely what kind of showing the State must
make to invoke AS 40.25.120(a)(6)(A). It suffices to say the State cannot invoke the
law-enforcement-interference exception merely by pointing to a pending criminal case
involving the requestor. If the legislature had intended to create a per se exception that
applies any time the requestor is being prosecuted — even by the federal government and
not the State — the legislature would not have required that the requested records be
“reasonably . . . expected to interfere” with the prosecution.55
Based on the record before the court, dismissing Basey’s complaint
pursuant to AS 40.25.120(a)(6)(A) was error. Basey’s complaint referred to his federal
criminal prosecution, but nothing in the complaint shows “beyond doubt” that disclosure
55
AS 40.25.120(a)(6)(A).
-15- 7214
of the requested records could reasonably be expected to interfere with the federal
criminal case.56 Even if we assume that the superior court converted the motion to
dismiss into one for summary judgment,57 it was error to grant summary judgment on the
basis of this exception.58 The State did not offer any evidence showing — and did not
even allege — that disclosure of the requested records could reasonably be expected to
interfere with enforcement proceedings.59
V. CONCLUSION
Because the State failed to show that the litigation exception or the law
enforcement-interference exception applies, we REVERSE the superior court’s grant of
the State’s motion to dismiss and REMAND for further proceedings consistent with this
opinion.
56
Larson v. State, Dep’t of Corr., 284 P.3d 1, 6 (Alaska 2012) (quoting
Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 254 (Alaska 2000)).
57
See Alaska R. Civ. P. 12(b).
58
See Alaska R. Civ. P. 56(c); Reasner v. State, Dep’t of Health &Soc. Servs.,
Office of Children’s Servs., 394 P.3d 610, 613-14 (Alaska 2017) (“[S]ummary judgment
is appropriate only when no reasonable person could discern a genuine factual dispute
on a material issue.” (alteration in original) (quoting Christensen v. Alaska Sales &Serv.,
Inc., 335 P.3d 514, 520 (Alaska 2014))).
59
See French v. Jadon, Inc., 911 P.2d 20, 23 (Alaska 1996) (“The moving
party has the burden of proving an absence of issues of material fact.”).
-16- 7214