Guide Compare Tool

Comparing: C. Administrative appeal.

Alabama

Alabama has no provision for administrative appeal from denial of access to public records. A public official who is reluctant to produce the requested records can sometimes be persuaded, however, to seek a ruling from the Alabama Attorney General's office, pursuant to the following statute:

[The Attorney General] shall give his or her opinion in writing, or otherwise, on any question of law connected with the interests of the state or with the duties of any of the departments, when required by the Governor, Secretary of State, Auditor, Treasurer, Superintendent of Education, Commissioner of Agriculture and Industries, Director of Department of Finance, Comptroller, State Health Officer, Public Service Commissioners, Commissioner of Conservation and Natural Resources, or the Director of the Department of Revenue or any other officer or department of the state when it is made, by law, his or her duty so to do, and he or she shall also give his or her opinion to the chairman of the judiciary committee of either house, when required, upon any matter under the consideration of the committee.

The Attorney General shall give his or her opinion, in writing or otherwise, as to any question of law connected with the duties of the following county or city officer when requested so to do in writing: judge of probate, clerk of the circuit court, sheriff, city and county boards of education, county commission, register of the circuit court, tax collector, tax assessor, mayor or chief executive officer of any incorporated municipality, city council or like governing body of any incorporated municipality, or any other officer required to collect, disburse, handle, or account for public funds.

Ala. Code § 36-15-1(a), (b) (2001).

A written opinion from the Alabama Attorney General is advisory, not binding, but it "shall protect such officer and the members of such board, local governing body or agency to whom it is directed or for whom the same is secured from liability to either the state, county or other municipal subdivisions of the state because of any official act or acts heretofore or hereafter performed as directed or advised in such opinion." Ala. Code § 36-15-19 (1991); Curry v. Woodstock Slag Corp., 242 Ala. 379, 6 So. 2d 479 (1942). As the number and results of the Attorney General opinions cited in this outline attest, the Alabama Attorney General's office has, throughout the course of several changes in administrations, consistently upheld the spirit, the letter, and the rationale of Alabama's Public Records Law.

Alaska

Bear in mind that the discussion of administrative procedures in this subsection generally is based on 2 AAC 96.100 et seq., governing access to records of state administrative agencies, and may not be applicable to other public entities. The municipal ordinance governing access to Anchorage records, for example, provides that "any denial of a request for information or inspection of public records shall be automatically appealed to the mayor, and a written reply will be given within seven working days either granting or denying the appeal." AMC 3.90.060(B). Any appeal from the clerk's office or ombudsman's office is to the Anchorage Assembly, and any appeal from the school district is to the Anchorage School Board. Id.

Arizona

There is no requirement that an administrative appeal be submitted prior to the initiation of a lawsuit.

Arkansas

Nothing in the FOIA addresses an administrative appeal within the agency from a denial of the request. Because there are no specified administrative procedures to exhaust, the initial denial should be treated as final for purposes of judicial review. See Ark. Code Ann. § 25-19-107(a) (citizen denied rights under FOIA “may appeal immediately from the denial”). Exhaustion of administrative remedies is not necessary in FOIA cases unless declaratory relief is sought. Rehab Hospital Services Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985).

California

The CPRA does not mention administrative appeals, but provides for immediate access to any court of competent jurisdiction, without the need to exhaust administrative remedies. Cal. Gov't Code § 6258. Designated state agencies, however, may have adopted regulations for administrative appeals. Cal. Gov't Code § 6253.4. Additionally, many municipalities have adopted sunshine ordinances which may allow for internal review of the municipality's denial.

The Attorney General is not empowered to enforce the provision of the CPRA unless the AG has itself been denied access to public records under the Act.

Colorado

Not applicable.

Connecticut

FOIA states that any person denied the right to inspect or copy a public record may appeal to the FOIC. Conn. Gen. Stat. §1-206(b).

Delaware

Delaware does not have an administrative appeal procedure.

District of Columbia

(This section is blank. See the subpoints below.)

Florida

There are no state requirements or options for administrative appeals.

Georgia

The Act does not require or otherwise provide for administrative appeals.

Hawaii

The OIP is empowered to review and rule on agency denials and to adopt rules setting forth an internal appeals structure providing for direct appeal and time limits.

The OIP has prepared a first draft of its rules for the administrative appeal procedures and has made it available for public review and comment. OIP Annual Report 1999. These rules will govern the procedures for filing an appeal to the OIP by a person denied access to a government record and the review and hearing of an appeal. Id. Even without a formal appeal process, the OIP informally assists requesters and agencies in resolving disputes arising out of requests or denials. This assistance may sometimes lead to a formal written OIP opinion.

Idaho

Not applicable.

Illinois

(This section is blank. See the subpoints below.)

Indiana

There are no administrative appeals procedures under the Act. A person denied access is advised to seek the intervention of the state Public Access Counselor, not only to facilitate access to the record but also to lay the foundation for entitlement to attorney fees if litigation is required. Ind. Code § 5-14-3-9(i); see also 2(b) below.

Iowa

(This section is blank. See the subpoints below.)

Kansas

There are no provisions for appeal. A requester may proceed directly to the district court.

Kentucky

(This section is blank. See the subpoints below.)

Louisiana

Not available.

Maine

None.

Massachusetts

There is an optional administrative appeal to the Supervisor of Public Records in the Office of the Secretary of the Commonwealth. G.L. c. 66, § 10(b); 950 CMR 32.08(2). A requester wishing to appeal the denial of a request has the choice of either petitioning the Supervisor for a decision, or else immediately initiating a court proceeding. The Supervisor has jurisdiction over appeals for non-compliance with any part of the regulations, including those relating to fees. 950 CMR 32.08(2). Except in cases where it is known that the record holder will litigate in any event, the administrative route is often quicker and less expensive.

Maryland

A person or governmental unit may seek administrative review if the agency denying access is included within the provisions of the Maryland Administrative Procedure Act ("APA"), Md. Code Ann., State Gov't §§ 10-201 to 10-300. § 10-622. The review will be conducted in accordance with the provisions of the APA. A person or governmental unit, however, need not exhaust the administrative remedy provided by § 10-622 before filing a court action. § 10-622(c); Massey v. Galley, 392 Md. 634, 898 A.2d 951 (2006). Administrative review is not available when the official custodian temporarily denies inspection of a public document pursuant to § 10-619 of the PIA on the ground that disclosure would cause substantial injury to the public interest. Id. Moreover, administrative review under the APA for contested cases is largely for factual disputes. See PIA Manual, at 59. Consequently, because a PIA dispute will usually involve a question of law as to the scope of a statutory exemption to disclosure, the administrative route may not be advisable. Id.

Michigan

The FOIA was amended in 1996 to permit administrative appeals. If a request is denied, a requester may (but is not required to) submit to the head of the public body "a written appeal that specifically states the word appeal and identifies the reason or reasons for reversal of the disclosure denial." Mich. Comp. Laws Ann. § 15.240(1)(a). Within 10 days after receiving a written appeal, the head of the public body must do one of the following:

(a) reverse the disclosure denial;

(b) issue a written notice to the requesting person upholding the disclosure denial;

(c) reverse the disclosure denial in part and issue a written notice to the requesting person upholding the disclosure denial in part; or

(d) under unusual circumstances, as defined in Mich. Comp. Laws Ann. 15.232(i), issuing a notice extending for not more than 10 business days the period during which the head of the public body shall respond to the appeal. Not more than one notice of extension shall be issued for a particular appeal. Mich. Comp. Laws Ann. § 15.240(2)(d). Under Mich. Comp. Laws Ann. § 15.240(3), a board or commission that is the head of a public body is not considered to have received a written appeal until the first regularly scheduled meeting following submission of the written appeal.  See Federated Publications, supra for discussion of this provision.  

Minnesota

Either the state agency or person requesting data may request an opinion from the Commissioner of Administration as to the public nature of the data sought. § 13.072.  In addition, a person aggrieved by an alleged violation of the Act may file a complaint with the Office of Administrative Hearings. §13.085.  

Mississippi

(This section is blank. See the subpoints below.)

Missouri

The Sunshine Law does not provide for an express right of an administrative appeal. An informal administrative "appeal" to a superior may be successful and less expensive than litigation.

Montana

There are no administrative appeal requirements. The individual requesting the document may go directly to district court to obtain relief under the statute and the constitutional provision listed above.

Nebraska

(This section is blank. See the subpoints below.)

Nevada

The Nevada Public Records Act makes no provision for administrative review of denials.

New Hampshire

Not required; the Statute provides an immediate remedy in Superior Court.

New Jersey

Under OPRA, the remedy for denial of a request for public records is by a prerogative writs action in the Law Division of the Superior Court. N.J.S.A. 47:1A-6. The statute also provides an alternate mechanism, at the sole option of the requester, of filing a complaint with the Government Records Council. Claims under the common law right to know are only cognizable in Superior Court.

New Mexico

Exhaustion of administrative remedies is not required prior to an action to enforce the inspection of Public Records Act. §14-2-12(C), NMSA 1978.

New York

(This section is blank. See the subpoints below.)

North Carolina

The North Carolina Public Records Law contains no requirements or procedures for administrative appeals in instances where access to public records is denied. If anyone is charged a fee that the requester believes is excessive, the requester may ask the Information Resource Management Commission to mediate the dispute. G.S. § 132-6.2(c).

Ohio

Ohio does not have an administrative appeal procedure. Aggrieved requesters may go directly to court.

Oklahoma

The act does not provide for an administrative appeal.

Pennsylvania

The Act requires an administrative appeal process before any court action.

Requesters may file an appeal with either the Office of Open Records or the designated appeals officer within 15 days of the mailing date of the agency’s response or a deemed denial.    A final determination must be mailed to the requester and agency within 30 days of receipt of the appeal.

The Act permits but does not require the Office of Open Records to “promulgate regulations relating to appeals involving a Commonwealth agency or local agency. Section 504(a).

The procedures for administrative appeals are set forth below.

Rhode Island

(This section is blank. See the subpoints below.)

South Carolina

Not applicable in South Carolina.

South Dakota

The 2008 amendments added an administrative review of whole or partial denials of record requests.  SDCL § 1-27-35 thru 43.

Tennessee

The Tennessee Public Records Act makes no provision for administrative review of denials.  Requestors might seek assistance of the state open records counsel to facilitate getting the records.

Texas

The Act does not provide any "administrative appeal" procedure.

Utah

(This section is blank. See the subpoints below.)

Vermont

Although the act does not explicitly require an administrative appeal to the agency head before commencing a court challenge, the Vermont Supreme Court has held that the structure of the act imposes such a requirement. Bloch v. Angney, 149 Vt. 29, 538 A.2d 174 (1987).

Virginia

The Act has no provision for an administrative appeal. Informal appeals to a public body's chief executive officer or attorney are encouraged.

Wisconsin

Administrative appeals are not provided. Cf. State ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 595, 547 N.W.2d 587, 592 (1996) (records requesters need not give notice or opportunity for review to public entity before commencing an action under the Open Records law). An informal "administrative" appeal may be taken to the state attorney general who is specifically authorized to respond to any request for advice as to the applicability of the open records law to any specific set of circumstances. Wis. Stat. § 19.39. Generally, custodians comply with that advice.

North Dakota

North Dakota law lays out the administrative appeal procedure:

44-04-21.1. Administrative review procedure.

1. Any interested person may request an attorney general’s opinion to review a written denial of a request for records under section 44-04-18, a denial of access to a meeting under section 44-04 19, or other alleged violation of section 44-04-18, 44-04-19, 44-04-19.2, 44-04-20, or 44-04-21 by any public entity other than the legislative assembly or any committee thereof. A request made under this section must be made within thirty days of the alleged violation, except that a request based on allegations that a meeting occurred without the notice required by section 44-04-20, must be made within ninety days of the alleged violation. In preparing an opinion under this section, the attorney general has discretion to obtain and review a recording made under section 44-04-19.2. The attorney general may request and obtain information claimed to be exempt or confidential for the purpose of determining whether the information is exempt or confidential. Any such information may not be released by the attorney general and may be returned to the provider of the information. The attorney general shall issue to the public entity involved an opinion on the alleged violation unless the request is withdrawn by the person requesting the opinion or a civil action has been filed involving the possible violation. If the request pertains to a public entity as defined in subdivision c of subsection 12 of section 44-04 17.1, the opinion must be issued to the public entity providing the public funds. In any opinion issued under this section, the attorney general shall base the opinion on the facts given by the public entity.

2. If the attorney general issues a written opinion concluding that a violation has occurred, the public entity has seven days after the opinion is issued, regardless of whether a civil action is filed under section 44-04-21.2, to disclose the record, to issue a notice of a meeting that will be held within a reasonable time to correct the violation, or to take steps to correct any other violation. If the public entity fails to take the required action within the seven-day period and the person requesting the opinion prevails in a civil action brought under section 44-04-21.2, the person must be awarded costs, disbursements, and reasonable attorney’s fees in the action and on appeal. The consequences for failing to comply with an attorney general’s opinion issued under this section will be the same as for other attorney general’s opinions, including potential personal liability for the person or persons responsible for the noncompliance.

3. If a state-level public entity as defined in subdivision a of subsection 12 of section 44-04-17.1 does not comply in full with the attorney general’s opinion, and a civil action is brought under section 44-04-21.2 or is reasonably predictable, the entity, at its sole cost and expense, shall retain separate counsel who has been approved and appointed by the attorney general as a special assistant attorney general to represent the entity in that action.

Oregon

If a records request is denied by a state public body, appeal is made to the Attorney General. ORS 192.450. If the denial is made by a county, city, or other local body, the appeal is made to the district attorney for the county where the public body is located. ORS 192.460. If the denial is made by an elected official, however, any appeal must be taken directly to court. ORS 192.480.

Contents of appeal letter. The Public Records Law prescribes a form of petition for reviewing a denied public records request. ORS 192.470.

Description of the record. The petition should describe the records sought with particularity.

Need to address fee issues. No.

Plea for quick response. There is no need to make such a plea. Both the Attorney General and a district attorney must rule on the petition within seven days of receipt. ORS 192.465.

Can the request be for future records? It would not appear that a public body could effectively deny a request to inspect records not yet existing, and denial is required for appeal.

Washington

If the agency denies a request, it must review that denial within a two-day period. At the end of that period an agency is deemed to have taken its final action and the denial is ripe for judicial review. RCW 42.56.520, eff. 7/1/06). There is no need to go through an extensive administrative appeal process. In most cases, the initial decision by an agency is its final decision.

The Public Records Act allows any requester whose public disclosure request has been denied to seek a written opinion from the Attorney General as to whether the record is exempt. RCW 42.56.530. The Attorney General’s determination of whether the records at issue are exempt, though persuasive, is not binding on the state agency or on the requester. Other informal avenues that have been successful are approaches to the attorney representing the agency. Often these attorneys are independent of the agency and, therefore, are willing to make an independent assessment of the legal situation.

Wyoming

This is not applicable in Wyoming.

West Virginia

Unlike the federal FOIA, West Virginia's Freedom of Information Act has no provisions for administrative appeals. Since the request for records must be made to the agency's chief executive — "the elected or appointed official charged with administering a public body," W. Va. Code § 29B-1-3(2) — there usually is no practical avenue for informal administrative appeals.

Some agencies, such as professional licensing boards, may have an administrator who is not actually a decision maker. In these cases, a denial by the "custodian" may not reflect agency policy, and an informal appeal to the governing board could be pursued. Also, in the case of refusals by local agencies that are under the indirect supervision of a state agency, an informal appeal to the state agency may be worthwhile. (W. Va. Code § 16-5-26 provides for such an administrative appeal in one instance: denials of access to local vital statistics records are appealable to the state health department.)

Since there is no formalized procedure for such appeals, ordinarily you must depend on the administrator's cooperation to present the request to the governing body and to obtain a prompt decision. If you decide to pursue this approach, provide a clear description of the records or portions of records to which you were denied access and of the reasons given for such denial (or of the relevant facts if you are raising another issue such as excessive fees or delays). State why you consider the administrator's decision wrong: if possible, quote the specific portion of the statute or case that makes the error clear. Remember, if the issue isn't clear, it is unlikely that the administrator's decision will be overruled except by a court. It might be advisable to indicate that if a failure to disclose the requested information is successfully challenged in court, the agency may be required to pay the attorney fees of the requester.

There is no time limit established either for taking the informal appeal, or for receiving a decision. An appeal letter should specify the time limit within which you desire a response and should state that a failure to respond within this period will be considered a denial. Be reasonable in setting this time limit: since there are no established procedures for such appeals, an expeditious decision is unlikely. If your appeal is directed to a part-time governing board, a greater delay in receiving a response must be expected. If you need the requested materials promptly, the only truly effective avenue of appeal is to a circuit court.