2. To whom is an appeal directed?
The appeal of a denial of a request for state agency records must be directed to the head of the agency from which you are requesting the records. This is apparently the case, regardless of whether the agency head or subordinate was the one who initially denied your request. The agency head may delegate authority and duties to respond to an appeal for reconsideration to a full-time employee of the public agency not involved in the denial and not subordinate to the employee responsible for the denial. The employee delegated this authority may not sub-delegate to another employee. 2 AAC 96.345(c).
The state ombudsman, a legislative employee, may be a source of help for citizens denied access to public records by state agencies. AS 24.55.200. (Similarly, a municipal ombudsman, such as the Municipality of Anchorage’s, 2 AMC 60.160 et seq., may be helpful for those dealing with the city of Anchorage and its employees and contractors.) The attorney general's office advises its client state agencies on legal matters, and often can be helpful in advising agencies of their duties to provide public access as afforded by state statutes and regulations, but it does not provide legal advice to private individuals and entities. Opinions of the attorney general are published, and are available for inspection, online and otherwise.
The appeal can be taken to the Pulaski County Circuit Court. The appeal can be taken in the circuit court located in the plaintiff’s residence if the defendant is the State of Arkansas, a state agency or department, or a state institution. If the defendant is a private organization supported by or expending public funds or an agency of a county, municipality, township, or school district, then the appeal may be taken in the circuit court in the jurisdiction where the defendant is situated. Ark. Code Ann. § 25-19-107(a).
There is no appeal within individual agencies, and exhaustion of administrative remedies is not necessary in FOIA cases unless declaratory relief is sought. Rehab Hospital Servs. Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985).There is no FOIA ombudsman or state commission.
When personnel or evaluation records are at issue, the FOIA allows (but does not require) the person making the request, the custodian of the records, or the person about whom the records are maintained to seek an opinion from the Attorney General. Ark. Code Ann. § 25-19-105(c)(3)(B) & (C).
While the Attorney General’s Office does not handle administrative appeals from a CPRA denial, it does issue opinions in various matters that have persuasive effect. When the law is unsettled or unclear, seeking an opinion from the Attorney General on the matter may be an avenue to persuade an agency to comply with the request.
The appeal is brought by filing a notice of appeal with the FOIC. Upon receipt of notice of appeal, the FOIC will serve notice of the appeal upon interested parties. Conn. Gen. Stat. §1-206(b). If the appeal involves a public employee's personnel or medical file or similar file, then the FOIC will require the public agency to notify the employee and his collective bargaining representative of the appeal, and the employee then has the right to appear as a party. Conn. Gen. Stat. §1-206(b).
The hearing before the FOIC is governed by FOIC regulations which allow for the presentation of evidence and cross-examination of witnesses, among other things. The FOIC evidentiary hearing is held before a single commissioner of the FOIC, who prepares a proposed decision which is subsequently ruled on by the entire FOIC. In Bd. of Educ. v. FOIC, 208 Conn 442, 545 A.2d 1064 (1988), the Supreme Court held that before the FOIC may order an agency to disclose records, it must find that those records exist, and must pursue the data-gathering process provided for in Conn. Gen. Stat. §1-205(d) rather than requiring the respondent agency to provide affidavits as to the existence vel non of the requested records. In Sinchak v. FOIC, No. CV 03-0826293, 2004 WL 304185 (Conn. Super. Jan. 27, 2004), the court held that incarcerated persons who have no personal representative may participate in FOIC hearings by telephone.
The FOIC has the authority to impose civil penalties in certain circumstances. Conn. Gen. Stat. §1-206(b)(2). In C.J. Mozzochi v. FOIC, No. CV 90-0374538S, 1990 WL 265733 (Conn. Super. Dec. 21, 1990), the Superior Court overruled the FOIC's order barring plaintiff from filing further complaints without first getting its permission, ruling that only the legislature could provide for sanctions and this was one it had not enacted. Subsequently, §1-206(b)(2) was amended and (b)(3) was added to provide authority for the FOIC to decline to hear appeals in certain cases if they determine that doing so would perpetrate an injustice or constitute an abuse of administrative process. The FOIC's determination not to entertain an appeal is appealable to the Superior Court.
The FOIC's regulations allow any person to request to participate in the hearing before the FOIC either as a party or as an intervenor. Conn. Agencies Regs. §1-21j-28.
The FOIC's jurisdiction ends if an appeal is withdrawn. Dep't. of Public Safety v. FOIC, 103 Conn. App. 571, 930 A.2d 739 (2007). The FOIC has an ombudsman program to resolve disputes. The attorney general plays no role in FOIA appeals.
District of Columbia
In most cases, an appeal should be directed to the Mayor. D.C. Code Ann. § 2-537(a). A copy of the appeal should be provided to the public body whose denial is being appealed. A person denied the right to inspect a public record in the possession of the Council need not appeal to the Mayor and may institute court proceedings. D.C. Code Ann. § 2-537(a-1). Presently, there are no alternatives to these methods of appealing a formal denial.
Appeals of an agency’s refusal, or partial refusal, to provide access to their records is to be directed to the Director of the OIP. Haw. Code R. § 2-73-12; see also HRS § 92f-15.5 (providing for appeals directly to the OIP and that such appeals do not prejudice a person’s right to appeal to the circuit court after a decision by the OIP has been made).
The Office of Information Practices
The OIP enforces the UIPA and oversees compliance with the open records law. Haw. Rev. Stat. § 92F-42.
The OIP plays an important role in formulating, mediating, and shaping disclosure practices of state agencies under the law.
The Director of the Office of Information Practices:
Shall, upon request, review and rule on an agency denial of access to information or records, or an agency's granting of access;
Upon request by an agency, shall provide and make public advisory guidelines, opinions, or other information concerning that agency's functions and responsibilities;
Upon request by any person, may provide advisory opinions or other information regarding that person's rights and the functions and responsibilities of agencies under this chapter 92F;
May conduct inquiries regarding compliance by an agency and investigate possible violations by any agency;
May examine the records of any agency for the purpose of conducting inquiries regarding compliance and seek to enforce that power in the courts of this State;
May recommend disciplinary action to appropriate officers of an agency;
Shall report annually to the governor and the state legislature on the activities and findings of the OIP, including recommendations for legislative changes;
Shall receive complaints from and actively solicit the comments of the public regarding the implementation of chapter 92F;
Shall review the official acts, records, policies and procedures of each agency;
Shall assist agencies in complying with the provisions of this chapter;
Shall inform the public of the following rights of an individual and the procedures for exercising them:
The right of access to records pertaining to the individual;
The right to obtain a copy of records pertaining to the individual;
The right to know the purposes for which records pertaining to the individual are kept;
The right to be informed of the uses and disclosures of records pertaining to the individual;
The right to correct or amend records pertaining to the individual; and
The individual's right to place a statement in a record pertaining to that individual;
Shall adopt rules that set forth an internal appeals structure which provides for agency procedures for processing records requests, a direct appeal from the division maintaining the record and time limits for action by agencies;
Shall adopt rules that set forth the fees and other changes that may be imposed for searching, reviewing, or segregating disclosable records as well as to provide for a waiver of such fees when the public interest would be served;
Shall adopt rules which set forth uniform standards for the records collection practices of agencies;
Shall have standing to appear in cases where the provisions of this chapter or part I of chapter 92 are called into question;
Shall adopt, amend, or repeal rules pursuant to chapter 91 (administrative procedures) necessary for the purposes of this chapter; and
Shall take action to oversee compliance with part I of chapter 92 (open meetings) by all state and county boards including:
Receiving and resolving complaints;
Advising all government boards and the public about compliance with chapter 92 (public agency meetings and records); and
Reporting each year to the legislature on all complaints received.
Haw. Rev. Stat. § 92F-42.
The ombudsman, who is appointed by the legislature, has jurisdiction to investigate the administrative "acts of agencies." Haw. Rev. Stat. § 96-5; see generally id., ch. 96 (describing functions of the Office of Ombudsman).
A person who was denied access to public records, by a public body other than the General Assembly and its committees, commissions and agencies, may file a request for review with the Public Access Counselor established in the Office of the Illinois Attorney General. See 5 ILCS 140/9.5(a).
A public body’s denial of a FOIA request can be appealed either to the Public Access Counselor established in the Office of the Illinois Attorney General or to circuit court—not to the public body itself.
The Public Access Counselor established in the Office of the Illinois Attorney General acts as the ombudsman deciding and, in some cases, mediating FOIA disputes. The procedures before the Public Access Counselor’s office as well as relevant timeframes for submitting arguments are set forth in 5 ILCS 140/9.5.
The request for review procedure should proceed as follows: “Upon receipt of a request for review, the Public Access Counselor shall determine whether further action is warranted. If the Public Access Counselor determines that the alleged violation is unfounded, he or she shall so advise the requester and the public body and no further action shall be undertaken. In all other cases, the Public Access Counselor shall forward a copy of the request for review to the public body within 7 working days after receipt and shall specify the records or other documents that the public body shall furnish to facilitate the review. Within 7 working days after receipt of the request for review, the public body shall provide copies of records requested and shall otherwise fully cooperate with the Public Access Counselor. If a public body fails to furnish specified records pursuant to this Section, or if otherwise necessary, the Attorney General may issue a subpoena to any person or public body having knowledge of or records pertaining to a request for review of a denial of access to records under the Act. To the extent that records or documents produced by a public body contain information that is claimed to be exempt from disclosure under Section 7 of this Act, the Public Access Counselor shall not further disclose that information. Within 7 working days after it receives a copy of a request for review and request for production of records from the Public Access Counselor, the public body may, but is not required to, answer the allegations of the request for review. The answer may take the form of a letter, brief, or memorandum. The Public Access Counselor shall forward a copy of the answer to the person submitting the request for review, with any alleged confidential information to which the request pertains redacted from the copy. The requester may, but is not required to, respond in writing to the answer within 7 working days and shall provide a copy of the response to the public body.” See 5 ILCS 140/9.5(c)-(d).
The requester and the public body may submit to the Public Access Counselor affidavits or records concerning any matter germane to the review. See 5 ILCS 140/9.5(e). The Public Access Counselor may issue a subpoena to any person or public body having knowledge of or records pertaining to a request for review of a denial of access to records under the Act. See 5 ILCS 140/9.5(c).
The Attorney General may choose (1) to issue a binding opinion pertaining to a request for review; (2) to issue an advisory opinion pertaining to a request for review; (3) to mediate a dispute; or (4) otherwise address the matter without the issuance of a binding opinion. See 5 ILCS 140/9.5 (f). The Attorney General makes its binding opinions available on its website at http://foia.ilattorneygeneral.net/2011binding.aspx.
Because there is no administrative appeals process, there is no specific person to whom further requests should be made. A savvy requester will seek to have either the agency’s public information officer or legal counsel intervene.
The Office of the Public Access Counselor responds to inquiries from the public and public agencies on public access issues. Ind. Code § 5-14-4-10. An individual or a public agency denied the right to inspect or copy records may file a formal complaint or make an informal inquiry with the Counselor. Ind. Code § 5-14-5-6. The complaint must be filed within 30 days of the denial of access. Ind. Code § 5-14-5-7. Once the Public Access Counselor receives the complaint, a copy must be forwarded immediately to the public agency that is the subject of the complaint. Ind. Code § 5-14-5-8. The Public Access Counselor may conduct an investigation, and the public agency is required to cooperate in any investigation. Ind. Code § 5-14-5-5. The Public Access Counselor is required to issue an advisory opinion not later than thirty days after the complaint is filed. Ind. Code § 5-14-5-9. If the Public Access Counselor determines that a complaint has priority, an advisory opinion must be issued within seven days. Ind. Code § 5-14-5-10. The statute of limitations for filing a lawsuit is not tolled by filing a formal complaint with the Public Access Counselor. Ind. Code § 5-14-5-12. The Public Access Counselor’s advisory and informal opinions are available at http://www.in.gov/pac.
The attorney general has no responsibility for public access issues under the Act. The attorney general is, however, may investigate and enforce violations of the Social Security number confidentiality law, Indiana Code Section 4-1-10, effective July 1, 2005. Ind. Code § 4-1-10-11.
Application for rehearing is directed to the agency whose final decision is challenged. Iowa Code § 17A.16.
Petition for judicial review is directed to the Iowa District Court for Polk County, or the county in which petitioner resides or has its principal place of business. Iowa Code § 17A.19(2).
Action is filed by the party seeking to enforce the provision of chapter 17A or retained counsel for that party. If the agency is the party seeking judicial review, it is typically represented by the Iowa Attorney General.
Issues on appeal under chapter 17A are limited to whether substantial rights of the petitioner have been prejudiced because the agency action is: (a) in violation of constitutional or statutory provisions; (b) in excess of the statutory authority of the agency; (c) in violation of an agency rule; (d) made upon unlawful procedure; (e) affected by other error of law; (f) in a contested case, unsupported by substantial evidence in the record made before the agency when that record is viewed as a whole; or (g) unreasonable, arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.
Iowa Code § 17A.19(10).
Each public agency is required to designate an official custodian who is the agency’s authority concerning open records requests. Ky. Rev. Stat. 61.876(1)(b); Ky. Rev. Stat. 61.870(5). If the public agency denies a request, the requester may ask the Attorney General to review the decision. Ky. Rev. Stat. 61.880(2). The requester should forward the Attorney General a copy of the written request and a copy of the agency's denial. Ky. Rev. Stat. 61.880(2).
If either party is unsatisfied with the Attorney General's decision, the party may file an appeal with the Circuit Court within 30 days from the date of the attorney general's decision. Ky. Rev. Stat. 61.880(5)(a). A timely appeal will be treated as if it was brought in Circuit Court pursuant to Ky. Rev. Stat. 61882. If not timely appealed, the attorney general's decision has the force of law. Ky. Rev. Stat. 61.880(5)(b).
Appeals of the denial of an open records request by the director of the Legislative Research Commission (on behalf of Kentucky’s General Assembly or the Legislative Research Commission) must be made to the Legislative Research Commission instead of to the Attorney General. See Ky. Rev. Stat. 7.119(3). Otherwise, the process is the same.
Either the applicant or the custodian may contact the Public Access Ombudsman to resolve a dispute involving public records access. § 4-1A-04. The Ombudsman makes reasonable attempts to resolve disputes between applicants and custodians relating to requests for public records, including disputes over applications of an exemption; redactions of information in the public record; failures to produce a public record in a timely manner or to disclose all records relevant to the request; overly broad requests for public records; the amount of time a custodian needs, given available staff and resources, to produce public records; a request for or denial of a fee waiver; and repetitive or redundant requests from an applicant. § 4-1B-04(a).
To seek review from the State Public Information Act Compliance Board for imposition of a fee greater than $350, the applicant or a designated representative should file a written complaint stating that the custodian charged a fee of more than $350 and that the fee was unreasonable. § 4-1A-05(a). The signed complaint should be accompanied by the original PIA request and identify the custodian, the action taken, the date of the action and the circumstances related to the action. § 4-1A-05(b).
The Office of the Attorney General periodically issues advisory opinions. See PIA Manual and http://www.marylandattorneygeneral.gov/Pages/Opinions/index.aspx for opinions cited therein.
Individual agencies are not authorized to handle appeals.
Appeal is to Supervisor of Public Records within the Division of Public Records, part of the office of the Secretary of the Commonwealth. The Supervisor has discretion whether or not to accept an appeal. 950 CMR 32.08(2); Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at pp. 2, 7. Among other reasons, the Supervisor may reject an appeal if the request: appears to be an act of harassment, or is made in aid of the commission of a crime; involves a matter that is the subject of active litigation, administrative hearings, or mediation; or is made for purely commercial purposes. 950 CMR 32.08(2). Once the appeal is accepted, Supervisor will normally “provide an opinion on the appropriateness of the records custodian’s response” and will also determine “whether the requested record is public.” Guide, supra.
No formal appeal to Attorney General. In any event, should first petition Supervisor of Public Records. If governmental entity fails to comply with Supervisor’s order on appeal, then Supervisor may refer the matter to the Attorney General. When those two agencies have not seen eye to eye on the interpretation of the statute, however – as has frequently been the case – such referral either does not take place or else brings no results. CommonWealth magazine reported in 2008 that of 52 public records appeals referred to the Attorney General’s office by the Supervisor of Public Records over a 5-year period, the attorney general ordered full release of documents in 10 cases and partial release in 3 more; reversed the Supervisor’s determination in another 10; and failed altogether to respond to 14. C. Herman, CommonWealth, Fall 2008 (Oct. 2, 2008).
See Mich. Comp. Laws 15.240 for how the requested person should appeal. If a “public body makes a final determination to deny all or a portion of a request,” the requestor can do one of two things. First, he or she can “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 denial,” or second, he or she can “commence a civil action in the circuit court . . . to compel the public body’s disclosure of the public records within 180 days after a public body’s final determination to deny a request.”
There are no procedures for appeal of the denial of a request. The only remedy available is top go directly to court. Often times a letter from an attorney setting forth the merits of disclosure and the risk of paying the requestor’s attorney fees will cause the agency to produce the documents.
There is no statutory procedure for appeal within the agency denying the request. An informal "appeal," initiated by writing in a letter to the superior of the person denying the request, is occasionally effective.
There is no state commission or ombudsman to handle or oversee public records issues.
A person denied rights under the public records law may "petition the attorney general to review the record and determine whether it may be withheld from public inspection." Neb. Rev. Stat. §84-712.03. There are no formal requirements for this "petition," but it should identify the record withheld, include a copy of the agency's denial letter, refer to any statutory authority that the requester feels compels access and request action pursuant to §84-712.03. The "petition" may simply be a letter to the attorney general.
Under §84-712.03, the attorney general must determine whether access should be granted within 15 calendar days of submission of the petition. If it is determined that the record may not be withheld, the attorney general must order the public body to immediately disclose the record. Id. If the public body continues to withhold the record, the requester may bring suit or demand, in writing, that the attorney general bring suit in the name of the state. If such demand is made, the attorney general must bring suit within 15 calendar days. The requester has an absolute right to intervene in any suit brought by the attorney general. Id.
Under OPRA, the remedy for denial of a request for public records is by initiating a summary proceeding in the Law Division of the Superior Court by way of a Verified Complaint and Order to Show Cause. R. 4:67. The statute also provides an alternate mechanism, at the sole option of the requestor, of filing a complaint with the Government Records Council. N.J.S.A. 47:1A-6. Claims under the common law right to know are only cognizable in Superior Court.
No formal administrative appeal procedures exist. The New Mexico Foundation for Open Government strongly advises disappointed requesters to create a clear written paper trail to the custodian to avoid unnecessary disputes and litigation. An action to enforce the Inspection of Public Records Act may be brought by the state attorney general. NMSA 1978 § 14-2-12(A)(1). Ombudsman proceedings are not available.
Claims for violation of the Public records law could properly be filed in the district or superior court divisions of the General Court of Justice. Most cases are brought in Superior Court but there may be reasons to bring the matter in District Courts which are in session more frequently in less populous areas.
The request for review is directed to the state attorney general. N.D.C.C. § 44-04-21.1.
While the initial request should be made to the individual agency from whom the record is sought, the review of the denial of the request is made to the state attorney general. N.D.C.C. § 44-04-21.1.
Any interested person may request an attorney general’s opinion to review a written denial of a request for records, a denial of access to a meeting, or other alleged violation of the open records or open meetings laws by any public entity other than the legislative assembly or any committee thereof. N.D.C.C. § 44-04-21.1.
If county, city, or local public bodies, the appeal is directed to the district attorney for the county where the records are located. For requests to health professional regulatory boards, as defined in ORS 676.160, for records “contain[ing] information concerning a licensee or applicant,” the petitioner must first send a copy of the petition by first class mail to the health professional regulatory board, then file the petition with the Attorney General. ORS 192.450(4); Attorney General Guide § (G)(1)(c). Note that decisions by individually elected officials to withhold records are not reviewable by the Attorney General or district attorney but are subject to court review. See ORS 192.480; Attorney General Manual § I(G)(3).
Generally, all denials by state public bodies are directed to the Attorney General. However, see above regarding health professional regulatory boards and elected officials. There is no state commission or ombudsman for appeals.
Administrative appeals are exclusively with the chief administrative officer of the agency. R.I. Gen. Laws § 38-2-8(a). Upon denial, a formal complaint may be filed with the Attorney General. R.I. Gen. Laws § 38-2-8(b). The APRA specifies that appeals are by “any person or entity denied the right to inspect a record.” R.I. Gen. Laws § 38-2-8(a).
The Rhode Island Supreme Court has determined that a requestor “may” direct an appeal to the chief administrator officer of the agency but is not required to do so. The Legislature, in R.I. Gen. Laws § 38-2-8, created an alternative to an administrative appeal, in that a person denied the right to inspect records has the option of retaining private counsel and instituting proceedings for injunctive or declaratory relief in the superior court. Downey v. Carcieri, 996 A.2d 1144 (R.I. 2010).
A person aggrieved by a government entity’s access determination can file a notice of appeal with the government entity’s chief administrative officer. See Utah Code § 63G-2-401(1).
A political subdivision is entitled to establish a separate appeals process. See id. § 63G-2-701(4)(a). A political subdivision that adopts an appeals process must submit a copy and a summary description to the state archives. See id. § 63G-2-701(7). The political subdivision must provide for an appeals board composed of three members, one of whom is an employee of the political subdivision and two of whom shall be members of the public with at least one having professional experience with requesting or managing records. See id. § 63G-2-701(5)(c). Political subdivisions can provide for an additional level of administrative review by the State Records Committee. See id. § 63G-2-701(6).
Decisions of the appeals boards of the political subdivisions can be appealed to the district court. See id. § 63G-2-701(6).