1. Search obligations

Within 10 days of receipt of a CPRA request, each agency is obligated to “determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons thereof.”  Cal. Gov’t Code § 7922.535.  This provision necessarily requires the agency to search for public records in order to make the determination. However, a request that “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.” Cal. First Amendment Coal. v. Superior Court, 67 Cal. App. 4th 159, 166, 78 Cal. Rptr. 847 (1998) (quotation omitted).  “Records requests, however, inevitably impose some burden on government agencies.  An Agency is obligated to comply so long as the records can be located with reasonable effort.”  Id.; see, e.g., 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).

Each public body must “provide reasonable assistance to the public in identifying and locating public records to which they are entitled access.” 29 Del. C. § 10003(d). The public body must make a “reasonable effort” in searching for requested records. Id. § 10003(f)(2), (i).

The D.C. Court of Appeals has endorsed the test employed by federal courts for evaluating the adequacy of a search for documents responsive to a FOIA request. Doe v. D.C. Metro. Police Dep’t, 948 A.2d 1210, 1220 (D.C. 2008). Courts assess whether an entity subject to FOIA has fulfilled its search obligations not by looking to the “fruits of the search,” but rather to the “appropriateness of the methods used to carry out the search.” Fraternal Order of Police v. District of Columbia, 139 A.3d 853, 864 (D.C. 2016) (citations omitted).  “An agency's search conducted in response to a FOIA request ‘need not be perfect, only adequate, and adequacy is measured by the reasonableness of the effort in light of the specific request.’” Fraternal Order of Police, Metro. Police Labor Comm. v. District of Columbia (FOP Peaceoholics), 79 A.3d 347, 360 (D.C. 2013) (quoting Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir.1986)).

Depending on the specifics of the request, the required scope of the search might be quite broad. See, e.g., Fraternal Order of Police v. District of Columbia, 139 A.3d 853, 866 (D.C. 2016) (“But as to those records created and stored in electronic form, we do not know and cannot simply assume, in this age of computerized connectivity, that it would be unreasonable for MPD's FOIA officer to search all of MPD's email accounts, regardless of how many accounts that might be.”).

The Act imposes a search obligation upon an agency in receipt of a request under the Act but the obligation is limited. “The legislature did not intend for a custodian of public records to comb through his files in search of documents sought by a public citizen. To the contrary, all that is required of a public records custodian is that he provide reasonable access to the files that are sought.” Felker v. Lukemire, 267 Ga. 296, 298–99, 477 S.E.2d 23, 25 (1996). See, e.g., Griffin Indus., Inc. v. Ga. Dep't of Agric., 313 Ga. App. 69, 74, 720 S.E.2d 212, 216 (2011)(given evidence that agency “did not maintain the purported e-mails on its system and would have to extract them from backup tapes using a laborious compilation process, the information sought … ‘was not an existing public record, and non-disclosure thereof did not violate the Act.’). See also Schick v. Bd. of Regents, 334 Ga. App. 425, 429, 779 S.E.2d 452, 456 (2015) (indicating that late production of records, if material and willful, may justify award of attorney’s fees).

A public body is required to make a reasonable search for the records based on the facts of the case. Maynard v. Central Intelligence Agency, 986 F.2d 547, 559 (1st Cir. 1993); Public Access Opinion 16-006 (available at https://perma.cc/EVQ2-TGPE (public body failed to perform reasonable search for email records).

Note: A public body is not required to perform an exhaustive search, but should construe the request liberally to search reasonable locations containing records. If the public body determines there are no records, they must show the adequacy of the search, typically with a detailed affidavit of the type of search performed and locations possibly containing the requested records. The burden then shifts to the requester to produce evidence of an inadequate search. Better Gov’t Ass’n. v. City of Chicago, 2020 IL App (1st) 190038, ¶¶ 31-32.

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.

There is no specific statutory provision covering what obligations there are to undertake an electronic search for documents, and there are no reported cases.

“Each request for access to a public record shall be acted upon as soon as possible, but not later than the end of the third business day following the date that the request is received. If access to the public record is not granted immediately, the custodian shall give a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection. If the request for access is denied, the custodian shall provide, upon request, a written statement of the grounds for denial. Such statement shall cite the specific provision of law under which access is denied and shall be furnished to the requester not later than the end of the third business day following the date that the request for the statement is received.”

K.S.A. 45-218(d).

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.

A wholesale request for a public agency to research, analyze, collate, and compile general information, rather than a proper request for specific documents, is improper under OPRA.   MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super. 534, 543 (App. Div. 2005).

The statute provides a very strong statement in support of access to public records:

Recognizing that a representative government is dependent upon an informed electorate, the intent of the legislature in enacting the Inspection of Public Records Act is to ensure, and it is declared to be the public policy of this state, that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees.  It is the further intent of the legislature, and it is declared to be the public policy of this state, that to provide persons with such information is an essential function of a representative government and an integral part of the routine duties of public officers and employees.

NMSA 1978 § 14-2-5 (1993).

Public bodies are required to undertake a search for records in response to ORA requests.

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.” Tex. Gov’t Code § 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. Id. § 552.222(b).

Once located, responsive public information must be produced “promptly,” unless the governmental body believes an exception to disclosure applies. Id. § 662.221(a).  Governmental bodies may take a reasonable time to produce 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 of the request and volume of information at issue.  See id.

The Vermont Supreme Court recently 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. Attorney Gen. 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 custodian of a requested record must promptly, but in all cases within five working days of receiving a request, provide the requested records to the requester, or make one of four responses detailed in Va. Code Ann. § 2.203704.B.

Wisconsin has not addressed this issue.