"Are the Government's Conversations with AI Accessible Under Public Records Laws and FOIA?"

A very interesting forthcoming article by noted media lawyer Steve Zansberg in the Fall 2026 issue of the Communications Lawyer; the Summary:

• AI prompts and outputs used by government officials to conduct public business should generally be treated as public or agency records subject to state public records laws and FOIA.
• While courts have not yet resolved how these laws apply to AI chatbot conversations, existing legal principles strongly support disclosure when the records relate to official functions.
• Practical barriers such as poor retention, high costs, and asserted privileges will likely shape future disputes over access.

And an excerpt from the Introduction:

In 2025, a combined reporting project between Cascade Public Broadcasting and KNKX-TV exposed that city workers, including the mayor’s staff, in two Washington cities utilized ChatGPT to write mayoral letters, generate grant applications, draft policy documents, synthesize public comments, and compose replies to citizens and the media. The joint reporting effort revealed alleged bid-rigging performed through AI prompts and responses, and that half of a letter the mayor of Bellingham sent to state authorities seeking funds for a Native American tribe was actually copied, verbatim, from ChatGPT. That reporting was enabled by the successful use of the Washington Public Records Act. Similarly, in 2025, the Texas Department of Transportation produced numerous conversations between its employees and ChatGPT in response to a records request under that state’s public records law.

But not all public officials have been willing to provide their AI prompts and results to requesters under state and federal public records laws. As recently reported in Wired magazine, both the “Department” of Government Efficiency and the Department of Housing and Urban Development denied Democracy Forward’s Freedom of Information Act (FOIA) requests for the AI prompts and responses used in those agencies’ crafting of official policies; HUD cited the deliberative process privilege (FOIA Exemption 5) as grounds for its withholding decision. At the state level, the City of Colorado Springs, Colorado, recently refused to provide a local television station copies of the AI chatbot interactions of that city’s mayor, citing two exemptions from disclosure in Colorado’s Open Records Act: “work product assembled for the benefit of elected officials” and “deliberative process” materials….

No court has yet published a decision applying either FOIA or a state public records act to government officials’ “conversations” with AI chatbots. While disputes over records access percolate their way up through the courts, this article examines what the public’s right to know “what their government is up to” is when it uses generative AI to conduct public business….

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