1. Processing records requests
There are some disturbing trends reflecting efforts by some agencies to discourage public records requests by imposing delays and financial burdens through excessive and inappropriate demands for fees. But in general, it is probably fair to say that the vast majority of state and local public officials, agencies and entities in Alaska try to be, and are, responsive to public records requests from journalists and citizens. In most situations, the government cannot or does not require requesters to explain why they are looking for the records being sought. But requesters should keep in mind that it may often be useful to work with the public employees who control access to records, rather than treat them as adversaries. Records requests that are vague, broad and burdensome are more likely to trigger responses indicating that the records can’t be obtained without significant cost and/or delay, or without clarification. Sometimes you intend to make a broad request, or don’t want to reveal what you are looking for. But often, if you work with an agency and personnel who are familiar with the information they have, your search can be refined and limited in a way that is more effective in getting what you want, more quickly and with less expense than would otherwise have been the case.
If a FOIA request is made in person, the records should be made available immediately unless they are in active use or in storage. Ark. Op. Att’y Gen. No. 94-225. The statute does not state a specific time period in which the agency must respond to a records request that is not in person. See Ark. Code Ann. § 25-19-105. However, if the records are in storage or active use, the agency must provide a date and hour within three business days when the records will be available for inspection and copying. Ark. Code Ann. § 25-19-105(e). If the agency refuses to produce records based on an exemption, the agency must provide the basis for the refusal. Ark. Op. Att’y Gen. No. 84-79. The agency also must provide a response, even if the records sought do not exist. Ark. Op. Att’y Gen. No. 2005-298. Additionally, the agency cannot refuse to produce public records, even if the agency believes the request to be broad and burdensome. Daugherty v. Jacksonville Police Dept., 2012 Ark. 264, 411 S.W.3d 196 (2012).
The state agency has the responsibility to provide reasonable access to records once they are determined to be public records. Swaney v. Tilford, 320 Ark. 652, 898 S.W.2d 462 (Ark. 1995).
Under certain circumstances, an agency may take longer than three business days to respond to a FOIA request. Common situations are when the response to a request is particularly voluminous, when the records need to be reviewed with counsel to determine whether they are exempt, or when the agency must redact exempt information from public records. See Ark. Op. Att’y Gen. No. 2000-059, 98-223, 94-225.
The CPRA requires an agency to make disclosable public records “promptly available” to the requester upon payment of fees covering the direct cost of duplication, or a statutory fee if applicable. Cal. Gov’t Code § 6253(b). While an agency is required to make a determination on the request within 10 days from receipt (or an additional 14-days in unusual circumstances as statutorily defined) and notify the requester “of the determination and the reasons therefor,” there is no specific time period in the CPRA for the agency to actually produce responsive records. However, one California appellate court has noted that an agency’s one-month delay in producing responsive records—on top of the 24-day statutorily authorized delay—most likely violated the CPRA’s requirement that public records be provided “promptly” upon payment of fees. Marken v. Santa Monica-Malibu Unified Sch. Dist., 202 Cal. App. 4th 1250, 1268 n. 14, 136 Cal. Rptr. 3d 395 (2012) (“We have serious questions whether that delay was authorized under the CPRA (see § 6253, subd. (b)) [copies to be provided “promptly” upon payment of fees covering direct cost of duplication or statutory fee, if applicable].”).
As explained by the California Supreme Court, “[u]nless a records request is overbroad or unduly burdensome, agencies are obligated to disclose all records they can locate ‘with reasonable effort.’” City of San Jose v. Superior Court, 2 Cal. 5th 608, 627, 214 Cal. Rptr. 3d 274, 389 P.3d 848 (2017) (quoting Cal. First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 166, 78 Cal. Rtpr. 2d 847 (1998)). “Reasonable efforts do not require that agencies undertake extraordinarily extensive or intrusive searches however.” Id. at 627. Rather, “the scope of an agency’s search for public records ‘need only be reasonably calculated to locate responsive records.’” Id. (citations omitted).
In City of San Jose, the California Supreme Court also provided guidance to agencies for conducting searches for public records where the records are held in nongovernmental accounts, such as in public employees’ private email accounts, cell phones or computers. First, the agency should communicate the request to the employees. Then, it may “reasonably rely on the employees to search their own personal files, accounts, and devices for responsive materials.” Id. at 628. Training on how to conduct searches and requiring employee affidavits that provide a sufficient factual basis to determine whether withheld material is non-responsive also were approved by the court as appropriate procedures to ensure an adequate search “without treading on the constitutional rights of its employees.” Id. Lastly, the court offered that agencies can adopt polices “that will reduce the likelihood of public records being held in employees’ private accounts.” Id.
Whether complying with a request would be overly burdensome for an agency is a factor courts can consider against the public’s interest in disclosure. Id. at 629; see also ACLU v. Superior Court, 3 Cal. 5th 1032, 1046, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017)(stating that on remand a balancing analysis should include consideration of “the feasibility of, and interest implicated by, methods of anonymization petitioners have suggested”); Fredericks v. Superior Court, 233 Cal. App. 4th 209, 238, 182 Cal. Rptr. 3d 526 (2015)(discussing cases and noting burdensomeness of request given statutory confidentiality concerns may be weighed in balance).
At least one court has denied a requester's right to copy documents where they were available for inspection at the agency's office and the documents were voluminous (80,000) and costly to print and ship. Rosenthal v. Hansen, 34 Cal. App. 3d 754, 757, 761,110 Cal. Rptr. 257 (1973); but see CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 909, 110 Cal. Rptr. 2d 889 (2001) (even if it would cost the Department of Social Services approximately $43,000 to compile accurate list of every individual granted criminal conviction exemption to work in licensed day care facility and identity of each facility employing such individuals, cost was not valid reason to deny CPRA request); Cal. First Amendment Coalition, 67 Cal. App. 4th at 166 ("A clearly framed request which requires an agency to search an enormous volume of data for a 'needle in the haystack' or, conversely, a request which compels the production of a huge volume of material may be objectionable as unduly burdensome. [citations omitted] Records requests, however, inevitably impose some burden on government agencies. An Agency is obligated to comply so long as the record can be located with reasonable effort.").
A custodian shall not impose a charge for the first hour of time expended in connection with the research and retrieval of public records. After the first hour of time has been expended, the custodian may charge a fee for the research and retrieval of public records that shall not exceed thirty dollars per hours. Colo. Rev. Stat. § 24-72-205(6)(a) (2014). Starting July 1, 2019, and by July 1 of every five-year period thereafter, the director of research of the legislative counsel shall adjust the maximum hourly fee in accordance with the percentage change over the period in the United States Department of Labor, Bureau of Statistics, consumer price index for Denver-Boulder-Greeley, all items, all urban consumers, or its successor index. The director shall post the revised fee on the website of the General Assembly. Colo. Rev. Stat § 24-72-205(6)(b) (2014).
Under the FOIA, requesters have a right to inspect records “promptly” and “promptly” receive copies of such records. Conn. Gen. Stat. §§1-210(a), 1-212(a). Generally, a denial of a request must be made in writing within four business days of the request, and failure to comply with this time period is deemed a denial. Conn. Gen. Stat. §1-206(a). The FOIA does not require agencies to respond to written question or inquiries or to create documents. See Howard v. Regional School District No. 14, #FC 2011-075 (August 24, 2011)
District of Columbia
The D.C. Act provides that "in making any record available to a person…a public body shall provide the record in any form or format requested by the person, provided that the person shall pay the costs of reproducing the record in that form or format." D.C. Code Ann. § 2-532(a-1). The Act provides further that "a public body shall make reasonable efforts to search for the records in electronic form or format, except when the efforts would significantly interfere with the operation of the public body's automated information system." Id. at § 2-532(a-2). To meet that criterion, the agency must make "a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Fraternal Order of Police v. D.C., 79 A.3d 347, 360 (D.C. 2013) (internal quotation marks omitted) (quoting Doe v. District of Columbia Metro. Police Dep't, 948 A.2d 1210, 1220 (D.C.2008)).
The Act requires agencies to permit requests for records to be made by e-mail or fax provided the agency uses e-mail or fax in the normal course of business.
The Act requires agencies to “produce for inspection all records responsive to a request within a reasonable amount of time not to exceed three business days of receipt of a request.” O.C.G.A. § 50-18-71(b)(1)(A).
If some, but not all, records can be located and produced within three business days, the agency shall make those records available as soon as reasonable within that period. Id.
If additional records exist but cannot be located and produced within that three day period, the agency shall, as soon as reasonable within that period, “provide the requester with a description of such records and a timeline for when the records will be available for inspection or copying and provide the responsive records or access thereto as soon as practicable.” Id.
If an agency “has decided to withhold all or part of a requested record, the agency shall notify the requester of the specific legal authority exempting the requested record or records from disclosure by Code section, subsection, and paragraph within a reasonable amount of time not to exceed three business days or in the event the search and retrieval of records is [lawfully] delayed … then no later than three business days after the records have been retrieved.” § 50-18-71(d). “It shall be the duty of the agency having custody of a record to provide all other portions of a record for public inspection or copying.” § 50-18-72(b).
An agency may publicly and prominently (via its website and otherwise) designate one or more open records officers for the agency and require that all written requests for records be made to such officer, provided that the absence or unavailability of such officer shall not be permitted to delay the agency’s response. §§ 50-18-71(b)(1)(B) & (b)(2).
Neither the UIPA nor the OIP Rules set a specific time for an agency to respond to informal requests. Instead, the OIP Rules specify that the agency must provide access to any disclosable government record in a "reasonably timely manner." Haw. Code R. § 2-71-11(b)(1). If an agency fails to respond to an informal request, the requester may make a formal request for access to government records. Id. § 2-71-11(c).
Regarding formal requests, upon receiving a request for access to a record that is disclosable in its entirety under UIPA, the agency must disclose the record within ten days. Id. § 2-71-13(a).
If an agency receives a formal request for a record that is not subject to disclosure in its entirety, including records that need to be segregated, the agency must: (1) provide notice to the requestor within ten business days; and (2) disclose the requested record within five business days after providing notice or receiving prepayment, when applicable. Id. § 2-71-13(b). The notice provided must include:
The location where the record will be made available to the requester;
Information about fees, if applicable;
Instructions, if any, regarding additional arrangements that the requester must make with the agency to inspect or copy the records;
When the agency will make the records available to the requester; and
A description of any extenuating circumstances and, if that is the case, the agency's intent to disclose the records incrementally.
Id. § 2-71-14(a).
Under certain extenuating circumstances, see id. § 2-71-15, an agency may prolong disclosure by first providing a written acknowledgement within ten business days of receiving a request. Id. § 2-71-13(c). The acknowledgement must state that the notice ordinarily required will be provided within twenty business days of receiving the request and that disclosure will be made within five business after providing the notice or receiving prepayment, when applicable. Id. Furthermore, the existence of extenuating circumstances may also permit an agency to release records incrementally so long as the agency acts in good faith. Id. § 2-71-15(b).
The public agency may, but is not obligated to, provide the requester information to help the requester narrow the scope of the request or to help the requester make the request more specific when the response to the request is likely to be voluminous or require payment of authorized labor or copying fees. Idaho Code § 74-102(9).
Section 4 of the Act requires each public body to maintain basic information about the public body. If the public body has a website, that information must also be posted on the website.
Upon receipt of the request, the public body must respond within 5 business days, either by producing the records, denying the request and citing applicable exemptions found in the Act, or by requesting a 5-day extension.
A public body is required to make a reasonable search for the records. See PAC 17-013 for a discussion of what does not constitute a reasonable search
If the public body denies the request and cites a statutory exemption, the public body must state a detailed factual and legal basis for the application of the exemption.
If the public body claims that the exemption is overly broad or burdensome, that claim must be made in the 5-day response period or it is waived.
Each public body is required to appoint a FOIA officer, who has the statutory responsibility to respond to FOIA requests, and must undergo annual training from the Public Access Counselor.
When a public agency receives a records request, it must either provide the requested copies or allow the requestor to make copies within a reasonable time. Ind. Code § 5-14-3-3(b); see also Admin. Rule 9(H). However, the Access to Public Records Act and Administrative Rule 9 provide exemptions for types of documents that may not be disclosed or may be disclosed at the agency’s discretion. See Ind. Code § 5-14-3-4; Admin. Rule 9(G).
Additionally, even if a request is not exempted from the general disclosure rule, the agency is not required to honor the request if it does not identify the records requested with reasonable particularity. See id. § 5-14-3-3(a); Anderson v. Huntington Cnty. Bod. Of Commr’s, 983 N.E.2d 613, 617–19 (Ind. Ct. App. 2013) (holding that the county board had no legal obligation to produce the documents as requested when the request was not reasonably particular). “Whether a request identifies with reasonable particularity the record being requested turns, in part, on whether the person making the request provides the agency with information that enables the agency to search for, locate, and retrieve the records.” Anderson, 983 N.E.2d at 34. Also, at the agency’s discretion, the agency may require the request to be in writing or on an agency form. Id.
An agency may not deny a request because the requestor refuses to state the request’s purpose, unless a statute provides otherwise. Id.; see § 5-14-3-3(f) (providing that certain disclosed lists of names and addresses may not be used for political purposes).
When certain records are available in electronic form—including judgments, orders, and decrees—Courts “should endeavor” to make them remotely accessible. Id. 9(E). A public agency that maintains public records in an electronic data storage system must make “reasonable efforts” to provide the requestor “a copy of all disclosable data contained in the records on paper, disk, tape, drum, or any other method of electronic retrieval if the medium requested is compatible with the agency’s data storage system.” Ind. Code § 5-14-3-3(d).
The KORA applies to public records possessed by a public agency at the time the request is made. It does not require that a public agency do research, create a record, or write out a response to questions. Records not yet in existence are not subject to KORA; a prospective or standing request for "records as they become available" is not enforceable.
Upon receipt of a request under the Kentucky Open Records Act, a public agency is obligated to make a reasonable search to identify responsive records. 15-ORD-109. The public agency is also required to make a written response to the request within three (3) business days. Ky. Rev. Stat. 61.880(1).
Ky. Rev. Stat. 61.872(4) provides that “If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.”
Ky. Rev. Stat. 61.872(5) provides that “If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.”
Ky. Rev. Stat. 61.872(6) provides that “If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.”
The agency or official having custody or control of a public record must acknowledge receipt of a request within 5 working days of receiving the request. The agency or official may also request clarification concerning which public records are being requested.
Within a reasonable period of time of receiving a request, the agency or official must provide a good faith, nonbinding estimate of the time within which the agency or official will comply with the request, as well as a cost estimate. The agency or official must make a good faith effort to fully respond within the estimated time. A request is considered to have been received when the agency receives a “sufficient description” of the records sought.
If a request is submitted to an agency or official that does not maintain the requested records, the request must be forwarded to the correct agency or official without delay. See 1 M.R.S.A. § 408-A(3).
Agency custodians must adopt reasonable rules or regulations governing timely production and inspection of a public record. § 4-201(b). Generally, a custodian must grant or deny an application to inspect or copy a public record promptly, but not more than 30 days after receiving the application. §4-203(a). If a custodian reasonably believes that it will take more than 10 working days to produce a public record, the requester must be notified in writing or by electronic mail within 10 working days of receipt of the request the amount of time it will take to produce the record, an estimate of the fees to be charged, and the reason for the delay. § 4-203(b). Although the statute does not specify how an agency must respond to broad, vague or burdensome requests, the law requires that a custodian not ignore an application to inspect public records on the grounds that the application was intended for purposes of harassment. § 4-203(c)(2). Further, in the event of a dispute between an applicant and a custodian, including disputes regarding the Public Access Ombudsman will be called upon for a resolution. § 4-1B-04(a).
Within five business days of receiving a FOIA request, MCL 15.235(2) requires the public body to do one of the following: (a) grant the request; (b) issue a written notice denying the request; (c) grant the request in part and issue a written notice denying the request in part; or (d) issue a notice extending the time to respond to the request for not more than ten business days. Id. The public body may not issue more than one notice of extension for a particular request. MCL 15.235(2)(d). If the public body issues a notice extending the period of time to respond, it must specify the reasons for the extension and the date by which the public body will respond. MCL 15.235(7). In addition, the public body and the requestor may agree in writing to a different response time. MCL 15.235(2).
Failure to respond to the request pursuant to MCL 15.235(2) within five business days constitutes a final determination to deny a request if either: (a) the failure was willful and intentional; or (2) the request included language conveying a request for information within the first 250 words of the correspondence, or the envelope or subject line specifically included words such as “FOIA” or “freedom of information.” Id.
If a records request is made in writing, the custodian must respond in four business days and provide an estimate of the expected cost of the copies and (a) access to the requested records or copies of them; or (b) a written denial of the request which includes the legal basis for withholding the records; or (c) a written explanation of when the request can be processed, or estimation of the cost, and an opportunity for the requester to modify the request. Neb. Rev. Stat. §84-712(4). The requester has 10 business days to review the estimated cost and may “negotiate with the custodian to narrow or simplify the request, or withdraw it.” Id.
The Statute requires that a records request must be “reasonably described.” RSA 91-A:4,IV. Upon the receipt of such a request, the public body is required to make available an immediately available record. Id. For records that are not immediately available, the body has five days to either make the record available, deny the request in writing with reasons, or provide written acknowledgment of the request with information about the time needed to act on the request.
Under OPRA, agencies are required to disclose only "identifiable" governmental records not otherwise exempt; wholesale requests for general information, to be analyzed, collated, and compiled by the responding government entity, are not encompassed by OPRA. (See MAG Entertainment v. Division of Alcoholic Beverage Control, 375 N.J. Super. 534 (App. Div. 2005).
In Paff v. Galloway Township, 229 N.J. 340 (2017), the requestor sought specific fields of information (specifically, the sender, recipient, date and subject) in emails sent by the Township Clerk and Chief of Police over a two week period. The requestor did not seek the emails themselves, only these specific fields of information. The New Jersey Supreme Court found that these fields of information constituted government records under OPRA (subject to any applicable exemptions/redactions). The Court concluded that “[e]xtracting that kind of information requires ‘programming of information technology,’…a function the Legislature clearly envisioned the municipality performing, provided it has the means of doing so. Id. at 354. N.J.S.A. 47:1A-5(d) permits the imposition of a special service charge “if a request is for a record…(3) requiring a substantial amount of manipulation or programming of information technology.”
N.J.S.A. 47:1A-5(g) provides, in part: “If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.”
A custodian must provide proper and reasonable opportunities to inspect public records, must respond to requests to inspect records in the same medium, electronic or paper, in which the request was made, and must provide reasonable facilities to make or furnish copes of public records. NMSA 1978 § 14-2-7 (A-D). The requirement that a custodian provide reasonable opportunities for inspection does not mean that a request takes precedence over the other business of the public body. The custodian may take into account legitimate concerns of the public body subject to the request such as office hours, available space and personnel, and the need to safeguard records. New Mexico Attorney General’s Office, Inspection of Public Records Act Compliance Guide, 28-29 (8th ed. 2015). The custodian may impose reasonable restraints on access including appropriate times when, and places where, records may be inspected and copied. Id.
There are no statutory processing or mandatory use of a particular form of a request requirements under the Public Records Law. It is common practice to identify the records with as much particularity as is possible; to agree to pay the actual cost of providing the records but to request to be notified in advance if the total will exceed a particular amount; and to request, as provided by statute, that the records be provided “as promptly as possible.” G.S. § 132-6(a).
Except as otherwise provided by law, all records of a public entity are public records, open and accessible for inspection during reasonable office hours. “Reasonable office hours” includes all regular office hours of a public entity. If a public entity does not have regular office hours, the name and telephone number of a contact person authorized to provide access to the public entity’s records must be posted on the door of the office of the public entity, if any. Otherwise, the information regarding the contact person must be filed with the appropriate designee. N.D.C.C. § 44-04-18(1).
Upon request for a copy of specific public records, the entity shall furnish the requester one copy of the public records requested. An initial request need not be made in person or in writing, and the copy must be mailed upon request.
A public entity may require written clarification of the request to determine what records are being requested, but may not ask for the motive or reason for requesting the records or for the identity of the person requesting public records.
If a public entity receives five or more requests from the same requester within seven days, the public entity may treat the requests as one request in computing the time it takes to locate and excise the records. N.D.C.C. § 44-04-18(2).
The public entity must respond to a record request within a reasonable time.
The Public Records Act does not prescribe a specific time period for a public office to respond to a request, but responsive records must be “promptly prepared and made available for inspection.” Although a public office must act "promptly" to allow inspection, it may take a bit longer to provide copies: “within a reasonable period of time.” Ohio Rev. Code § 149.43(B)(1).
The determination of whether the time between request and producing a copy of a public record is reasonable “depends upon all the pertinent facts and circumstances.” State ex rel. Cincinnati Enquirer v. Deters, 148 Ohio St. 3d 595, 600, 71 N.E.3d 1076, 1081, 2016-Ohio-8195, ¶ 23.
“Promptly” means “without delay and with reasonable speed” and its meaning “depends largely on the facts in each case.” State ex rel. Wadd v. City of Cleveland, 81 Ohio St. 3d 50, 53, 689 N.E.2d 25, 28, 1998-Ohio-444 (23-day delay in providing all motor vehicle accident reports that for one day's worth of accidents was not prompt or reasonable, ordering the city to provide similar accident reports within eight days after accidents occur).
The Ohio Supreme Court ruled that a requester was not entitled to copies of police reports from Cleveland within eight days where the request effectively required the city to locate a particular class of police reports and then cull out unwanted records, and then review the remainder for potential redactions. State ex rel. Shaughnessy v. City of Cleveland, 149 Ohio St.3d 612, 76 N.E.3d 1171, 2016-Ohio-8447.
The requests in the Shaughnessy case: "every police incident report made during a seven-day period involving felonious assault or assaults causing serious harm, but excluding domestic violence, elder abuse by a caregiver, or assault upon a minor." He requested the same kinds of records for another two-week period. The city took 31 business days to produce the public records responsive to each request. The Ohio Supreme Court opined that 31 days "may appear to stretch the outer limits of reasonableness," but the requests were "improper because they asked Cleveland not only to retrieve records containing selected information but also to cull out the ones that he did not want." State ex rel. Shaughnessy v. City of Cleveland, 149 Ohio St.3d 612, 76 N.E.3d 1171, 2016-Ohio-8447, ¶ 22.
In gauging a public office's time to provide requested records, the public office is entitled to some time "to examine records prior to inspection in order to make appropriate redactions of exempt materials.” State ex rel. Cincinnati Enquirer v. Deters, 148 Ohio St. 3d 595, 600, 71 N.E.3d 1076, 1081, 2016-Ohio-8195, ¶ 23.
Where news organizations requested one video recording of one traffic stop by one police officer's body camera, the public office provided the a copy of the video nine days after the earliest request. That was two days after the news organizations sued. The Ohio Supreme Court declined to award statutory damages, ruling that the public office provided the video within the time allowed under the Public Records Act. State ex rel. Cincinnati Enquirer v. Deters, 148 Ohio St.3d 595, 600, 71 N.E.3d 1076, 1081, 2016-Ohio-8195, ¶ 25.
Where a police department took four months to respond to a request for "all incident reports and traffic tickets written" in a single year, the police department's response was neither prompt nor reasonable. State ex rel. Warren Newspapers at 624, 640 N.E.2d 174 (1994); State ex rel. DiFranco v. S. Euclid, 144 Ohio St.3d 565, 570, 45 N.E.3d 981, 986, 2014-Ohio-538, ¶ 27 (collecting prior cases between requester and agency showing “dilatory” responses of two months, six months, and eight months for the purposes of awarding statutory damages due to delay in providing requested records).
A public office can reject a public records request if the request is found to be indefinite, unreasonable in scope, or “would interfere with the sanctity of the recordkeeping process itself.” State ex rel. Zauderer v. Joseph, 62 Ohio App. 3d 752, 577 N.E.2d 444 (1989) (rejecting request for “all traffic reports” for being indefinite, unreasonable in scope, and overly burdensome).
If a requester makes an overly broad or vague request the public office may deny that request but “shall provide the requester with an opportunity to revise the request by informing the requester of the manner in which records are maintained by the public office and accessed in the ordinary course of the public office’s or person’s duties.” Ohio Rev. Code §149.43(b)(2).
The Public Records Act does not compel a public office “to do research or to identify records containing selected information.” State ex rel. Shaughnessy v. Cleveland, 149 Ohio St. 3d 612, 614, 76 N.E.3d 1171, 1174, 2016-Ohio-8447, ¶ 10; but see, State ex rel. Bott Law Grp., L.L.C. v. Ohio Dep't of Nat. Res., (Ohio App. 10th Dist. No. 12AP-448) 2013-Ohio-5219, ¶ 51 (Nov. 26, 2013)(ordering public office to “search its journal for responsive e-mail correspondence that were deleted in violation of its records retention policy, and … make reasonable efforts to identify all responsive records stored on the shared servers or on the personal computers of all former employees who are either identified in relator's records requests or whom are known to have generated or received responsive records.”).
The requester should be entitled to conduct a search of electronic records using “the machines and equipment necessary to reproduce the records and information in a readable form” under Ohio Rev. Code § 9.01. See, e.g., State ex rel. Gambill v. Opperman, 135 Ohio St.3d 298, 301-302, 986 N.E.2d 931, 935, 2013-Ohio-761, ¶ 16 (requester could “input search terms” into county’s electronic database to find public records that he wants and then print those records).
Every public body and public official has a specific duty to keep and maintain complete records. 51 O.S. § 24A.4. All records of public bodies and public officials shall be open for public inspection, copying or mechanical reproduction during regular business hours. 51 O.S. § 24A.5. The Act requires the public body to make a person available during regular business hours to provide access to the records. 2004 OK AG 3. See also Progressive Independence, Inc. v. Okla. Dep’t of Health, 2007 OK CIV APP 127 (each public body is responsible for making its records available to the public). In reaction to the Office of the Governor’s stated policy to process records requests on a “first come, first serve” basis, the Legislature amended the Act to provide that “A delay in providing access to records shall be limited solely to the time required for preparing the requested documents and the avoidance of excessive disruptions of the public body’s essential functions. In no event may production of a current request for records be unreasonably delayed until after completion of a prior records request that will take substantially longer than the current request.” 25 O.S. § 24A.5.6.
Upon a written request, a records custodian is required to provide a requestor with copies of the public records or a reasonable opportunity to inspect or copy the records. ORS 192.324(1) (formerly ORS 192.440, as amended). Under the 2017 amendments to the Oregon Public Records Law, the records custodian, upon receiving a records request in writing, is required to acknowledge the request in writing or complete the public body’s response to the request within five business days. ORS 192.324(2).
The 2017 amendments also create a general 15-business day requirement (5 business days to acknowledge, and10 business days more to comply) for a custodian to comply with the request, with exceptions as identified in the statute. ORS 192.329. The statute provides different options for the custodian to respond, ranging from acknowledging the request and providing an estimated time of processing to requesting additional clarifying information.
Any denial of the right to inspect or copy records, in whole or in part must be made to the person or entity requesting the right, along with the specific reasons for the denial, in writing, within ten (10) business days of the request. R.I. Gen. Laws § 38-2-7(a). It must also indicate the procedures for appealing the denial, as well as states whether such records do not exist or are not within the public body’s custody or control, if such is the case. R.I. Gen. Laws § 38-2-7(a), (c).
Except for good cause shown, any reason not specifically set forth in the denial shall be deemed waived by the public body. R.I. Gen. Laws § 38-2-7(a).
After revisions to SC FOIA in 2017, SC FOIA now provides that public bodies may seek relief from unduly burdensome, overly broad, vague, repetitive, or otherwise improper requests by filing an action with a circuit court. S.C. Code Ann. § 30-4-110. Similarly, the Act provides that a public by also bring an action when it has received a request but it is unable to make a good faith determination as to whether the information is exempt from disclosure. S.C. Code Ann. § 30-4-110
Informal record requests are directed to record custodian who may provide the record upon receipt of “actual costs” and/or fees. If fee is apt to be in excess of fifty dollars, requestor must confirm it will be paid before custodian is obligated to assemble records. SDCL §1-27-35 and SDCL §1-27-36. Denial of an informal request triggers formal written request process. The public record officer has ten days to respond by providing the record upon payment of costs and fees, denying the request, or acknowledging request and estimating further response time required. Denials are required to be explained in writing; however, failure of the record custodian to respond to the formal request in ten days is also considered a denial. SDCL §1-27-37.
A governmental body “must make a good faith effort to relate a request to information held by it.” Tex. Att’y Gen. ORD 561 (1990). The Act does not require governmental bodies to prepare new information in response to a request, nor does it require them to inform a requestor if relevant information comes into existence after the request is made. See A & T Consultants, Inc., 904 S.W.2d at 676 (reviewing statutory predecessor); Fish v. Dallas Indep. Sch. Dist., 31 S.W.3d 678, 681 (Tex. App.—Eastland 2000, pet. denied); Tex. Att’y Gen. ORD 452 (1986). The Act also explicitly provides that “an officer for public information or the officer’s agent is not required to perform general research within the reference and research archives and holdings of state libraries.” § 552.227.
Governmental bodies may ask the requestor to clarify a request for information, and may discuss with the requestor how the scope of a request might be narrowed if there is a large amount of relevant information. § 552.222(b).
Once located, responsive public information must be produced “promptly,” unless the governmental body believes an exception to disclosure applies. § 662.221(a). Governmental bodies may take a reasonable time to product information, but may not delay. See Tex. Att’y Gen. ORD 467 (1987). What constitutes a reasonable amount of time will vary case by case, depending on the nature request and volume of information at issue. See id.
Record requests must identify the record with reasonable specificity. Utah Code § 63G-2-204(1). Request fulfilment may be delayed under extraordinary circumstances, including if the request is for a voluminous quantity of records or a record series containing a substantial number of records, the requester seeks a substantial number of records, the entity is currently processing a large number of record requests, the request requires the entity to review a large number of records to locate the records requested, the decision to release a record involves legal issues requiring legal counsel, or segregating information that the requester is entitled to from information not entitled to requires extensive editing or computer programming. Id. § 63G-2-204(5).
The Public Records Act contains no exemption for overly broad, vague or burdensome requests. An agency in receipt of such a request will, however, typically respond seeking clarification regarding the scope of the request and notifying the requestor that it will take an additional 10 business days to respond to the request pursuant to 1 V.S.A. § 318(b)(5). In response to broad or burdensome requests, the agency may also request that “all charges be paid, in whole or in part, prior to delivery of the copies.” 1 V.S.A. § 316(c).
Last year, the Vermont Supreme Court addressed the scope of an agency’s obligations when conducting a search and held that “[i]n response to a public records request, a public agency must undertake a reasonable search to identify and disclose responsive, nonexempt public records.” Toensing v. AG of Vt., 2017 VT 99, ¶ 35, 178 A.3d 1000, 1012-13 (Vt. 2017). In Toensing, the court clarified that even emails “located in private accounts of state employees or officials” are public records if they were “produced or acquired in the course of agency business.” Id. at ¶ 12, 178 A.3d at 1004. Thus, “the critical question . . . is whether the [agency] conducted a search that was reasonably calculated to uncover all relevant public records.” Id. at ¶ 34, 178 A.3d at 1012 (concluding a “search will be adequate if the specified officials and employees are trained to properly distinguish public and nonpublic records, the agency asks them to in good faith provide any responsive public records from their personal accounts, and they respond in a manner that provides reasonable assurance of an adequate search”). The court rejected the argument that the agency should provide sworn affidavits from agency employees regarding the searches of their personal accounts and indicated that an agency could satisfy the search requirement by relying on affirmations from its employees “that the employee, without exception, has not produced or acquired any records in personal accounts in the course of agency business, or that the employee has identified all potentially responsive records through a specified word search, and has segregated and disclosed all records produced or acquired in the course of agency business as opposed to communications of an exclusively personal nature.” Id.
The Act requires that a public record identified with reasonable particularity must be located and either produced or withheld in strict accordance with Va. Code Ann. § 2.2-3704.B. There is no limitation on the thoroughness of the search obligation based on the difficulty of the search and retrieval. The Act accommodates this by permitting the public body, by automatic extension of time, agreement with the requester, and if necessary application to court, to extend the time in which the response is to be made. To the extent a deep search causes the public body to incur substantial actual search costs, the ability to charge the requester an amount not to exceed actual costs builds in a cost-benefit mechanism. See Va. Code Ann. § 2.2-3704.B., C. and F.
Agencies have a duty to conduct a reasonable search for requested records, and may be found to violate the Public Records Act if they fail to conduct a good faith search reasonably calculated to locate responsive records. Neighborhood Alliance v. Spokane County, 172 Wn.2d 702, 720, 261 P.3d 119 (2011). A request cannot be denied on the ground that it is overly broad or burdensome, but the request must be for identifiable records; by statute, a request cannot seek “all or substantially all records” of an agency, but can seek “all records regarding a particular topic or containing a particular keyword or name[.]” RCW 42.56.080(1).
The FOIA contains vague guidance regarding how agencies should handle broad, vague or burdensome requests, limited to the requirement that requests for information “must state with reasonable specificity the information sought . . .”, that the custodian of the records may make reasonable rules and regulations . . . to prevent interference with the regular discharge of his or her duties. One recent case expands upon this statutory language.
In Highland Mining v. West Virginia University School of Medicine, a FOIA requester sought a broad variety of documents and other information related to a university faculty member's research upon which he based articles published in scholarly journals. 235 W. Va. 370, 774 S.E.2d 36, 47 (2015). The University responded by producing 2,364 documents, totaling 11,090 pages and redacted 119 of those documents; it withheld 772 documents claiming several FOIA exemptions.
At that point the university argued that "while the FOIA is designed to foster public transparency and accountability, the Act also reflects the Legislature’s 'concern that information requests not become mechanisms to paralyze other necessary government functions,’ ” Id. By the time the Supreme Court reviewed case, the university claimed to have reviewed over 40,000 documents and identified over 200,000 potentially responsive documents. The Highland Mining court observed that the “FOIA requester is the ‘master’ of the FOIA request” and “FOIA requests are frequently clarified or modified even after a lawsuit is filed.”
The court rejected the trial court's ruling that Highland Mining's FOIA request was unduly burdensome. However, the court emphasized that, while the statute requires a public body to conduct a reasonable search for responsive records, "the FOIA does not require a public body to conduct what amounts to an unreasonably burdensome search in response to a request." Highland Mining, 599 S.E. 2d at 57. The court cited federal court cases finding unreasonably burdensome a FOIA request to locate “every chronological office file and correspondent file, internal and external, for every branch office, staff office [etc.]” and "recognizing public record laws are not designed to 'reduce government agencies to full-time investigators on behalf of requesters.'” Id.
In contrast, the West Virginia court referenced a federal case that rejected an agency's claim of undue burden when defendants “merely claim that [manually] searching . . . 25,000 paper files would be ‘costly and take many hours to complete,’ . . . [w]ithout more specification as to why a search certain to turn up responsive documents would be unduly burdensome.” Id.
Records that are readily available must be provided immediately. If the records are in active use or storage, then the custodian must respond to the request within seven days. If the records are not produced within the seven days, the response must state why the records are not available and a time period for when it is anticipated the records will be made available. A requester may ask a court to judge whether the custodian has demonstrated good cause for the delay. W.S.§ 16-4-202(c)