I'm reading a "public records exception" to my state's Freedom of Access Law. One says:

  1. Public records. The term "public records" means any written, printed or graphic matter or any mechanical or electronic data compilation from which information can be obtained, directly or after translation into a form susceptible of visual or aural comprehension, that is in the possession or custody of an agency or public official of this State or any of its political subdivisions, or is in the possession or custody of an association, the membership of which is composed exclusively of one or more of any of these entities, and has been received or prepared for use in connection with the transaction of public or governmental business or contains information relating to the transaction of public or governmental business, except:


B. Records that would be within the scope of a privilege against discovery or use as evidence recognized by the courts of this State in civil or criminal trials if the records or inspection thereof were sought in the course of a court proceeding;


Can somebody explain the full meaning of what they're saying is an exception in B and how that doesn't exclude just about any record you can imagine?

2 Answers 2


The wording is a little confusing, but I interpret it as saying the following:

Normally, discovery in a court case allows either party to demand documents from the other, to be used as evidence. However, our courts have exceptions; certain documents might be 'privileged against discovery', meaning they couldn't be demanded in that way. If one of those exceptions would apply to a document under court rules, then you can't request it under Freedom of Access either.

To know what those privileges are, and how broadly they apply, you'll have to consult the rules of court procedure for your state.

  • +1 This answer would be better if you gave common - or typical - examples.
    – Patrick87
    Commented Apr 14, 2016 at 0:12
  • Like lawyer/client & Doctor/patient privilege
    – Dale M
    Commented Apr 15, 2016 at 4:14

They are saying that if the material would be privileged for discovery purposes in a court case, it does not have to be turned over as a public record.

Suppose that a town is a party to a lawsuit. The city council members have regular meetings with their lawyers to confer on the lawsuit. Records are kept at such meetings.

Such material is not discoverable by the other side because meetings with lawyers are privileged. Therefore, the town could deny you access to such records as well.

That is the most common case of privileged information but there are other such conditions.

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