3. Contents of a written request
Regulations adopted by the state to govern requests for public records from the state provide that a request must describe the public records sought "in sufficient detail to enable the agency to locate them." 2 AAC 96.315(a). The agency is required to make reasonable efforts to assist you in identifying and describing the public records sought, and to assist you in formulating your request. If records are described in general terms (for example, "all records concerning the environment"), the agency must attempt to communicate with you in order to identify the records sought, with a view toward both speeding the response to the request, and lessening the administrative burden of processing an overly broad request. 2 AAC 96.315. The regulations say that these attempts may not be used as means to discourage requests. Id.
A requester seeking electronic services and products must describe what is sought with enough specificity to allow the public agency to ascertain the electronic services and products that are requested, 2 AAC 96.410(e), and the regulations do not require agencies to assist those seeking electronic services and products in the same fashion as is required with respect to public records.
Fees may not be assessed as a condition of inspecting public records if the public agency receiving the request does not incur costs to search for the requested public record. 2 AAC 96.240(c). Presumably, the search costs referred to in this regulation that might possibly be used as a condition for inspection of public records could only include those personnel costs required to complete search and copying tasks to the extent that the production of records for that requester in a calendar month has exceeded five person hours. AS 40.25.110(c). A search charge for any amount of time less than six hours incurred for this requester in a calendar month, or based on personnel costs higher than allowed by the statute, is not authorized by law. Id. Requesters cannot be charged for time spent by public officials or employees separating out nondisclosable, privileged documents from non-privileged, disclosable documents. Fuller v. City of Homer, 113 P.3d 666 (Alaska 2005). Public agencies may establish a fee schedule for duplicating public records, and must establish a fee schedule for providing electronic services and products. Except in the case of news organizations, fees must be paid before the records are disclosed. A public agency may require payment in advance of a search for a public record if the agency reasonably believes that the search will generate a fee under AS 40.25.110 (which allows charges for production of records only to the extent that the personnel costs required to complete the search and copying tasks for any one requester in a calendar month exceeds five person hours). If the request is from a news organization or an employee or agent of a news organization and the state agency reasonably believes that the requested records search will require more than five hours to complete, the agency head may require payment in advance of the search by the news organization only when the request is unreasonable or in bad faith, the news organization has failed to pay for previous requests, or the request requires extraordinary expenditures of state resources. 2 AAC 96.400(c). A public agency may waive the requirement under (c) for payment in advance if the requester and the public agency agree in writing to mutually acceptable time frames for payment. 2 AAC 96.400(d). Any time that elapses between the time a requester is sent notice that processing the request will generate chargeable fees and the time the requester makes suitable arrangement for payment of those fees is excluded from the ten (10) working day period for responses or extensions of that period. 2 AAC 96.325(c).
If your request includes a stamped, addressed postcard, the agency must promptly use it to give a dated acknowledgment of receipt of your request for public records, 2 AAC 96.310(a), or for electronic services and products, 2 AAC 96.410(a).
The request should be drafted narrowly, identifying the documents to be inspected with as precisely as possible.
A person may make “an ongoing request for disclosure of a narrowly defined, clearly identifiable category of to-be-created [public records].” West Valley View, Inc. v. Maricopa Cty. Sheriff’s Office, 216 Ariz. 225, 229, 165 P.3d 203, 207 (Ct. App. 2007) (future press releases).
Whether written or oral, a request “shall be sufficiently specific to enable the custodian to locate the records with reasonable effort.” Ark. Code Ann. § 25-19-105(a)(2)(C) (added by Act 1653 of 2001). This provision is essentially a codification of Attorney General’s opinions construing the prior version of the statute, which was silent on the question. See, e.g., Ark. Op. Att’y Gen. Nos. 2000-271, 96-354, 92-289, 90-261. The request should clearly state that records are being sought under the FOIA, for some agencies receive few FOIA requests and may be unfamiliar with the act.
As amended by Act 1653 of 2001, the FOIA gives citizens the right to “inspect, copy, or receive copies of public records.” Ark. Code Ann. § 25-19-105(a)(2)(A). Upon payment of any required fees, the agency must furnish copies if it has the necessary equipment. Id. § 25-19-105(d)(2)(A). Unless a specific statutory provision authorizes a higher fee, “any fee for copies shall not exceed the actual costs of reproduction, including the costs of the medium of reproduction, supplies, equipment, and maintenance, but not including existing agency personnel time associated with searching for, retrieving, reviewing, or copying the records.” Id. § 25-19-105(d)(3)(A)(i). The custodian may also charge “the actual costs of mailing or transmitting the record by facsimile or other electronic means.” Id. § 25-19-105(d)(3)(A)(ii). An itemized breakdown of all charges is required, id. § 25-19-105(d)(3)(B), and the custodian may require advance payment if the estimated fee exceeds $25.00. Id. § 25-19-105(d)(3)(A)(iii).
To guard against unexpectedly high charges, a requester should include in his letter a “ceiling” for copying costs he is willing to pay, along with a request that the agency contact him if it appears that the ceiling will be exceeded. Also, the requester may be able to obtain a fee waiver. As amended by Act 1653 of 2001, the FOIA provides that “[c]opies may be furnished without charge or at a reduced charge if the custodian determines that the records have been requested primarily for noncommercial purposes and that waiver or reduction of the fee is in the public interest.” Ark. Code Ann. § 25-19-105(d)(3)(A)(iv).
There is no charge if the requester simply wishes to inspect the records or make copies with his or her own equipment. The requester has no right, however, to remove the records from the custodian’s office in order to copy them. See Blaylock v. Staley, 293 Ark. 26, 28-29, 732 S.W.2d 152, 154 (1987); Ark. Op. Att’y Gen. Nos. 2001-052, 95-355, 95-327.
Requesters will seldom have occasion to seek expedited treatment. The FOIA appears to contemplate immediate access during the regular business hours of the custodian, unless the records are in active use or storage. See Ark. Code Ann. § 25-19-105(a)(1) & (e); Hengel v. City of Pine Bluff, 307 Ark. 457, 821 S.W.2d 761 (1991). Records in active use or storage must be made available within three working days of the FOIA request. Ark. Code Ann. § 25-19-105(e). However, the custodian has a “reasonable time” to respond to the request if the records are voluminous or if they must be reviewed to decide whether an exemption applies. Ark. Op. Att’y Gen. Nos. 2000-059, 99-157, 98-223, 96-354, 94-225.
Requests for records that might be created at some point in the future are unlikely to be honored because the FOIA applies only to existing records. Swaney v. Tilford, 320 Ark. 652, 656, 898 S.W.2d 462, 465 (1995).
A simple request describing the records with specificity and asking that they be made available immediately is sufficient. An agency is required to comply with the request so long as the record can be located with reasonable effort. See City of San Jose v. Superior Court, 2 Cal. 5th 608, 627, 214 Cal. Rptr. 3d 274, 389 P.3d 848 (2017); California First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 166, 78 Cal. Rptr. 2d 847 (1998); State Bd. of Equalization v. Superior Court, 10 Cal. App. 4th 1177, 1186, 13 Cal Rptr. 2d 342 (1992).
If the requester is uncertain of how to describe the documents sought because he or she does not know what documents the agency maintains, for example, the requester can seek the assistance of the agency, which is required to, among other things, "[a]ssist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated." Cal. Gov't Code § 6253.1.
Extraneous matter, such as the reason for the request, is unnecessary unless the information is covered by Section 6254(f)(3) of the Government Code. Under Section 6257.5, an agency may not deny access based on the purpose for which the record is being requested. Cal. Gov't Code § 6257.5. However, disclosure of the purpose of the request may assist the agency in locating responsive documents. See Cal. Gov't Code § 6253.1.
It is good practice to include a statement that if the agency contends that some portion of the record is exempt from disclosure, the exempt material should be deleted and the remainder of the record be disclosed. Cal. Gov't Code § 6253(a).
The agency may charge a fee for the direct costs of copying the records or a "statutory fee," if applicable. Cal. Gov't Code § 6253(b). Thus, it is good practice to either tender the fee, if known, with the request or to state in the request that payment will be made at the time copies are provided. One may request a waiver of the fee as the agency has complete discretion to grant the waiver or demand payment of the fee before providing copies.
If disclosure is time sensitive, it is a good idea to remind the agency that the CPRA states that the agency is to make the records "promptly" available and, absent unusual circumstances, it must makes a determination of whether the records are disclosable public records no later than 10 days from receipt of the request. Cal. Gov't Code § 6253(b) and (c).
The request must be for existing records, not future records. See definition of "public records" and "writings" in the CPRA, Cal. Gov't Code § 6252(e) and (g).
In all cases in which a person has the right to inspect any public record, he may request that he be furnished copies, printouts, or photographs of such record. Colo. Rev. Stat. § 24-72-205(1).
A person may request copies, printouts or photographs of a public record. Colo. Rev. Stat. § 24-72-205(1).
A custodian may impose a fee in response to a request for the research and retrieval of public records only if the custodian has, prior to the date of receiving the request, either posted on the custodian’s web site or otherwise published a written policy that specified the applicable conditions concerning the research and retrieval of public records by the custodian, including the amount of the current fee. Colo. Rev. Stat. § 24-72-205(6)(a).
The custodian may charge a fee, to be set by the official custodian, not to exceed one dollar and twenty five cents per page, unless actual costs exceed that amount. Where fees are specifically prescribed by law, such specific fees apply. Colo. Rev. Stat. § 24-72-205(1). No fee may be charged to the record requester for transmitting public records via e-mail. Colo. Rev. Stat. § 24-72-205(1)(b).
If special facilities, other than those present at the place where the records are kept, are necessary, the cost of providing them shall be paid by the person requesting the record. Colo. Rev. Stat. § 24-72-205(2).
If the state or any of its agencies has performed a manipulation of data so as to generate a record in a form not used by the state or by the agency a reasonable fee may be charged to the person making the request. Such fee shall not exceed the actual cost of manipulating the data and generating the record in accordance with the request. Persons making subsequent requests for similar records may be charged a fee not in excess of the original fee. Colo. Rev. Stat. § 24-72-205(3).
If the public record is a result of computer output other than word processing, the fee may be based on recovery of the actual incremental costs of providing the electronic services and products together with a reasonable portion of the costs associated with building and maintaining the information system. Such fee may be reduced or waived by the custodian if the electronic services and products are to be used for a public purpose, including public agency program support, nonprofit activities, journalism, and academic research. Fee reductions and waivers must be uniformly applied among persons who are similarly situated. Colo. Rev. Stat. § 24-72-205(4).
Although there is no statutory provision specifically regulating please for quick responses, the custodian is required to set a time for inspection within three business days of receiving a public records request, unless extenuating circumstances exist to request an extension for ten business days.
The written request should describe the public records with sufficient particularity so that the public agency can retrieve the records. See Perkins v. FOIC, 228 Conn. 158, 635 A.2d 783 (1993) (it would be "unreasonable" to deny access to FOIA "simply because of arguable imperfections in the form in which a request for public records is couched."). Fee issues need not be addressed; however, a fee waiver can be requested. See Records Outline at I.D.3. The records must be made available "promptly;" if a response is not given within four days, it is deemed a presumptive denial of access. See Records Outline at V.B. There are no specific provisions or reported court decisions discussing requests for future records. Any individual may copy a public record through the use of a hand-held scanner. A public agency may establish a fee structure not to exceed ten dollars for an individual to pay each time the individual copies records at the agency with a hand-held scanner. As used in this section, "hand-held scanner" means a battery operated electronic scanning device the use of which (1) leaves no mark or impression on the public record, and (2) does not unreasonably interfere with the operation of the public agency. Conn. Gen. Stat. §1-212(g); see also Records Outline at I.C.3.
The letter must describe the records requested. Broad sweeping requests are not permitted. Del. Op. Att'y Gen., No. 95-ib24 (Aug. 7, 1995); Del. Op. Att'y Gen., No. 03-ib24 (Oct. 30, 2003). "It is the duty of the requestor to frame the request with sufficient specificity so that it is not unnecessarily broad." Del. Op. Att'y Gen., No. 03-ib24 (Oct. 30, 2003) (citing Del. Op. Att'y Gen., No. 95-ib24 (Aug. 7, 1995)). FOIA does not require a public body to honor "[b]road, sweeping requests lacking specificity." Del. Op. Att'y Gen., No. 03-ib24 (Oct. 30, 2003) (citing Del. Op. Att'y Gen., No. 94-I030 (Oct. 19, 1994)).
A FOIA request must sufficiently describe the records requested in order to enable a public body to locate the records. See Del. Op. Att'y Gen., No. 95-ib24 (Aug. 7, 1995). FOIA, however, does not require a citizen to identify each individual record that might be within the purview of the request. Del. Op. Att'y Gen., No. 03-ib13 (June 2, 2003). Such a requirement would be unreasonable because the public body, as the custodian of the records, is in a unique position to know what records it has. Id. All that is required is that the public body have enough information to know what records may be responsive to the request in order to search for and locate those records, if in fact they exist. Id. See also Del. Op. Att'y Gen., No. 97-ib06 (Mar. 17, 1997) (FOIA requires "the requesting party . . . to allow the public body to locate the records with reasonable diligence").
The letter should offer to pay reasonable copying charges as the "reasonable expense" of copying can be levied on the requesting party. 29 Del. C. § 10003(a). The letter should contain a deadline such as 10 days and include a statement that the requester will sue if the Act is not complied with. The request cannot be for future records.
District of Columbia
A public body must act on any request "reasonably describing any public record." D.C. Code Ann. § 2-532(c). Where possible, specific information regarding names, places, events, subjects, dates, files, titles, file designation or other identifying information should be supplied. The Mayor's office has ruled that a requester does not have a right to receive an answer to a general interrogatory, and that an agency does not have to respond to a request if it requires investigation or creating a new record. Therefore, it would seem that a requester should identify specific records to which he or she desires access. D.C. Action for Children v. Dep't of Human Serv., FOIA App. No. 95-16 (Office of the Mayor, Oct. 2, 1995).
The D.C. Act allows public bodies to collect fees for the actual costs of searching, reviewing and/or copying records. D.C. Code Ann. § 2-532(b). As discussed above, the fee schedules that may be adopted by a public body vary depending on the purpose of the request and the identity of the requester. Requesters may include in their request letters a specific statement limiting the amount of fees they are willing to pay.
Requesters may also request a waiver or reduction of fees in their request letters. To request a waiver or reduction of fees, requesters should include in their request letters a description of how the requested records will be used to benefit the general public. See D.C. Code Ann. § 2-532(b). As a matter of practice, a member of the media should state in a request that furnishing the requested information can be considered as primarily benefiting the general public and specifically request a waiver of fees as being in the public interest. If a waiver of fees is requested, however, it should also be stated that the requester is prepared to pay the reasonable fees incurred, at least up to some stated amount, should the waiver be denied.
The D.C. Act does not contain a provision for requesting expedited consideration. Under the D.C. Act, disclosure must be made, or denied, within 15 days, excluding weekends and legal holidays. D.C. Code Ann. § 2-532(c). In unusual circumstances, defined by the statute, an agency may extend the deadline up to 10 days, excluding weekends and holidays. Id. at § 2-532(d).
The request itself and the outside of the envelope it is in, or the subject line of the fax cover page or e-mail with which it is sent, should indicate that it is a Freedom of Information Act Request. Requesters should include a daytime telephone number, e-mail address or mailing address so that they can be contacted regarding their request.
A request for access to identifiable public records, addressed to the records’ custodian or, if the agency has designated one, to an agency open records officer, is all that the Act requires. If the request is expected to entail significant search and retrieval time, a statement that the requester is willing to pay such costs up to a certain amount may the request’s processing. Absent such a statement, an agency is entitled to defer processing pending an agreement to pay if search and retrieval costs are expected to exceed $25. O.C.G.A. § 50-18-71(d).
A formal request for access to government records must be in written, electronic, or other physical form. Haw. Code R. § 2-71-2.
The OIP Rules require a formal request to include the following:
Information that would enable the agency to correspond with or contact the requester;
A reasonable description of the requested record to enable agency personnel to locate it with reasonable effort. The description should include, if known, the record name, subject matter, date, location, and any other additional information that reasonably describes the requested record;
If applicable, a request for a waiver of fees for searching for, reviewing, or segregating the requested record, when the requester believes that a waiver would serve the public interest in accordance with section 2-71-32; provided that the request states the requester's identity and other facts that support the request for a waiver of fees; and
A request to inspect or obtain a copy of the records described and, if applicable, the means by which the requester would like to receive the copy.
Id. § 2-71-12(b).
A request should describe, as completely as possible, the records sought. Generally, the request will be directed to the custodian of the records, although in some circumstances the request may need to be sent to the agency head. The actual request may be informal or formal.
The Act does not specify whether the request must address fee issues. In practice, many media requesters indicate that they are willing to pay some amount in copying fees for their public records request and ask the responding agency to let them know if such amount is likely to cover the actual cost of copying.
Although the Act makes no explicit requirements for the contents of a written request, it should be as specific as possible and cite applicable provisions of the Act. See 5 ILCS 140/3(c).
The Act contemplates reduction or elimination of copying costs if the request is in the public interest. 5 ILCS 140/6(c). As noted, for paper copies for the first 50 pages are free, and electronic records are available for the cost of the medium used to produce the records. If the request is large, and you expect paper copies, you should request a fee reduction or waiver.
FOIA does set a 5 working day deadline for responses, and the PAC has emphasized that public bodies should act expediently in releasing public records. 5 ILCS 140/1; see also 5 ILCS 140/3(e)(vii).
Records that are not yet in existence are not covered by the FOIA. The Act does not compel the creation of a new record.
The FOIA does not require public bodies to interpret or advise requesters as to the meaning or significance of the public records. 5 ILCS 140/3.3.
Any requests, whether oral or written, must identify with reasonable particularity the record being requested. Ind. Code § 5-14-3-3(a)(1); see also 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.
The statute does not require fee issues to be addressed in the request, but it is a good idea to do so, especially if the requester has a maximum that can be spent on the request. If the requester wants a fee waiver, it would be wise to request it then. See Ind. Code § 5-14-3-8(i), (k).
The statute does not require a requester to say when the document is needed, but there is no downside to telling the agency if there are time pressures.
In theory, the request can seek future records, provided the request is made with sufficient specificity that will enable the agency to comply.
In your written request, include a specific description of the records. Offer to advance fees and inquire regarding likely cost. Iowa Code § 22.3.
If you need a quick response, explain why your plea for quick response is different from all such pleas. It is unlikely that the custodian will agree to continue the search as additional documents are filed in the future — another request will be necessary.
State agencies are required to define information policies. They must adopt rules which provide the following:
(a) "the nature and extent of the personally identifiable information collected by the agency, the legal authority for the collection of that information and a description of the means of storage;
(b) a description of which of its records are public records, which are confidential records and which are partially public and partially confidential records, and the legal authority for the confidentiality of the records. The description shall indicate whether the records contain personally identifiable information;
(c) the procedure for providing the public with access to public records;
(d) the procedures for allowing a person to review a government record about that person and have additions, dissents or objections entered in that record unless the review is prohibited by statute;
(e) the procedures by which the subject of a confidential record may have a copy of that record released to a named third party;
(f) the procedures by which the agency shall notify persons supplying information requested by the agency of the use that will be made of the information, which persons outside of the agency might routinely be provided this information, which parts of the information requested are required and which are optional and the consequences of failing to provide the information requested; and
(g) whether a data processing system matches, collates or permits the comparison of personally identifiable information in one record system with personally identifiable information in another record system."
Iowa Code § 22.11(1).
A public agency shall not require that a request contain more information than the requester's name and address and the information necessary to ascertain the records to which the requester desires access and the requester's right of access to the records. K.S.A. 45-220(b).
Records not yet in existence are not subject to KORA. A public agency is not required to create a record or to prepare a report or conduct an investigation upon a request for information. Kan. Att’y Gen. Op. 1993-126.
The request must describe the records to be inspected: "Blanket requests for information on a particular subject without specifying certain documents need not be honored." 95-ORD-121; see also Ky. Rev. Stat. 61.872(3)(b) (directing requester to "precisely describe" the records). The requester has no right to the inspection of records that do not currently exist. 95-ORD-43 (stating that "a 'standing request' . . . is not proper" under the Open Records Act). See also 97-ORD-18. The custodian of records may also require a written request to contain the requester’s printed name and signature. Ky. Rev. Stat. 61.872(2).
If the requester seeks to have the copies of the records mailed to the requester, the requester may be required first to pay all fees and the cost of mailing. Ky. Rev. Stat. 61.872(3)(b).
There is no specific provision for expedited requests.
Not specified by statute.
Request need only be specific enough to allow custodian to identify and locate records. Op. Att'y Gen. 89-602A. Courts have, however, refused to impose a duty on public bodies to "create" documents not already in existence. See, e.g., Nungesser v. Brown, 667 So. 2d 1036 (La. 1996) (reversing Court of Appeal decision requiring Commissioner of Insurance to provide data requested by plaintiff, where data did not exist in the form specified by the plaintiff).
Copies of records may be furnished without charge or at a reduced charge to indigent persons of the state. Also, copies of state public records may be furnished without charge or at a reduced charge if the custodian determines that the use of such copies will be limited to a public purpose, including but not limited to use in a hearing before any governmental regulatory commission. La. Rev. Stat. Ann. § 44:32(C)(2); see also Op. Att'y Gen. 95-102 (custodian of records may use discretion to provide copies free of charge to indigent persons).
Advance payment is required only if examination is to be conducted outside of regular office hours and fees include reasonable compensation for the custodian or custodian's representative. La. Rev. Stat. Ann. § 44:32(A).
It is common for written requests to include language to the effect of, “I am willing to pay up to $____ for copies of the record I have requested. Please notify me if the costs will exceed that amount.”
The request need not specify a quick response, but it is often useful to quote the statute's requirement that records not in use be made available "immediately." La. Rev. Stat. Ann. § 44:33(B)(1).
The law does not specify the required contents of a written request. The request should state with sufficient clarity the records or information sought, may ask that the request be expedited to the extent the records or information are needed within a particular time frame, may request a fee waiver if the request is in the public interest if the requester is indigent, and may remind the agency about applicable legal requirements (e.g., that the agency must acknowledge the request, provide a good faith estimate of costs if over $100, etc.).
The Maryland Attorney General's Office has provided a "Sample Request Letter" in Appendix A to the PIA Manual. The format of the request letter should include the following: (1) it should advise the custodian that the applicant is seeking inspection and/or copies of public records pursuant to the PIA, providing citation to the relevant provisions of the PIA; (2) it should provide, to the extent possible, a particularized and detailed description of the records sought, including relevant dates; (3) it should request a written statement from the agency as to the reason for any denial of the right to inspect or copy records (or any portion thereof), citation to the law or regulation supporting the agency's decision, and the available remedies for review of a denial; (4) it should request that the applicant be provided with any reasonably segregable portion of the record if parts of the record are exempt from disclosure; (5) it should request fee information or fee schedules regarding the search for, preparation of and reproduction of the records, or if a waiver of fees is requested, provide the reasons for waiver and citation to the PIA provision permitting waiver of fees, together with the required affidavit of indigency; (6) it should request a copy of all regulations adopted by the agency which implement the PIA; and (7) it should advise the agency of the applicant's right to a timely response pursuant to the PIA and that failure to respond to the request within the statutory time period will be considered a denial by the applicant and appropriate judicial relief will be sought (if this is the requester's intention). See PIA Manual, at App. A; see also regulations promulgated by the authority from which records are sought; e.g., COMAR 28.01.04.07 (Office of Administrative Hearings); COMAR 29.01.02.05 (Department of State Police).
An FOIA request must describe the public record "sufficiently to enable the public body to find the public record." Mich. Comp. Laws Ann. § 15.233(1). While Mich. Comp. Laws Ann. § 15.235(2) gives the public body five business days in which to respond to requests, if the request does not contain sufficient information it may be denied on that ground. If additional information is provided that sufficiently describes the public record, the period within which the response must be made dates from the time the additional information is received. 1979-80 Op. Att'y Gen. 255, 268-69 (1979). See Coblentz, supra, for discussion of the word “sufficiently.”
Under Mich. Comp. Laws Ann. § 15.233, one has a right to subscribe to "future issuances of public records which are created, issued, or disseminated on a regular basis." This section provides that such subscriptions be valid for up to six months at the request of the subscriber, and that the subscriptions are renewable. Mich. Comp. Laws Ann. § 15.233(1).
The requestor should narrow the request to mitigate against high gathering fees and eliminate a back-and-forth delay to ascertain precisely which records are requested. Any fee issues need to be resolved. Generally, the more precise the request the less likely high fees will be charged and the documents will be produced more quickly. Mont. Code. Ann. § 2-6-1006(2) requires the agency to “respond (to a request) in a timely manner.” The request may also be made for documents to be received or generated by the agency in the future.
Nebraska law does not state formal requirements for requesting government records. Requests can be made orally or in writing, although any oral request that is denied should be promptly followed by a specific, detailed, written request so that attempted access is documented. Moreover, the four-day response period included in Neb. Rev. Stat. §84-712(4) is triggered only by a written request. Each request should be as specific as possible by describing records with as much detail as possible, and should ask for prompt agency action on the request.
Neb. Rev. Stat. §84-712.04 requires an agency denying a records request to provide, in writing, a description of the record withheld, the statutory authority under which the record is withheld, the name of the official responsible for denial of the request and notification of administrative or judicial remedies for denial. Each agency must maintain a file of such denial letters. Because such denial letter provides information helpful to further review of the denial, persons seeking access should follow up and obtain the denial letter if the record is not produced, and should cite §84-712.04 in a written record request.
In each request for records, it is helpful to acknowledge and agree to pay the fee that may be charged for reproducing requested documents, which may not exceed the actual cost of making the copies available. Particularly if the request involves a significant number of documents or is a complicated request, it also may be helpful to ask the custodian to contact you if the amount of the fee exceeds a certain amount.
Neb. Rev. Stat. §84-712(4) requires the custodian to provide access to or copies of requested documents "as soon as is practicable and without delay." Unless the request is exceptionally difficult or extensive, the request must be completed within four business days following the receipt of the request. This does not preclude compliance before the end of the four-day period. If the request is simple, the custodian should comply before the four-day deadline. Therefore, it is possible that the request may be fulfilled sooner than four days. If this is important at the time of the request, the written request may identify the need for a timely response.
Records Custodian Accountability
- Availability of Public Records
- Availability. When a request is made, the custodian of public records to whom the request is directed must provide access to the records and copies of the requested records if copying equipment is reasonably available. Neb. Rev. Stat. §84-712.01(3).
- Exceptions. If there is a legal basis for denial of access and copies to requested public records, the custodian to whom the request is directed must provide a written denial of the request, which must include the following information:
- a description of the contents of the records withheld;
- a statement of the specific reasons for the denial, including citations to the particular statute relied upon for the denial;
- the name of the public official or employee responsible for the decision to deny the request; and
- Notification of any administrative or judicial right to review the decision to deny the claim.
Neb. Rev. Stat. §84-712.02(3), 84-712.04.
- Deadlines to Comply with Requests
- The custodian must respond to a written request "as soon as practicable and without delay, but not more than four business days after actual receipt of the request."
- Within four days, the custodian must either
- Produce copies or provide access to the documents requested.
- If the custodian cannot comply with the request because of "exceptional difficulty or the extensiveness of the request," the custodian must provide a written explanation of the delay, including the earliest practicable date for complying with the request, an estimate of the expected cost, and a chance to modify or prioritize the items within the request. Neb. Rev. Stat. §84-712.02(3).
- If the request for reproduction of documents is denied, the records custodian must provide a written denial as soon as practicable and without delay, but no more than four business days after actual receipt of the request. The written denial, among other things, must identify the legal basis for the denial.
- Availability of Public Records
The written request should be made on a standard Public Records Request Form and be as specific as possible. NRS 239.008; NAC 239.863. The contents of the request should identify:
- Contact information of the person submitting the request
- The date of the request
- A title or description of the public record that is sufficient to identify the record
- Type of access requested: inspect (view only), copy or receive a copy of the public record
- Type of medium requested: paper, electronic, certified, etc.
- Preferred delivery: by mail, facsimile machine, electronic mail and the applicable (internet or physical) address information
- An affirmation that the person understands: a. There may be a fee to receive a copy of a public record, which must be paid in full before receiving the copy; and b. If the copy fees exceed $25, a written cost estimate will be produced.
The request for public records must be for identifiable documents and not for future records or for abstract information.
The public agency must respond not later than the end of the fifth business day, but there is no obligation to respond sooner than this date. NRS 239.0107(1).
The request — whether in writing or made orally — must "reasonably describe" the record. RSA 91-A:4,IV. The public agency or public body has to disclose records “immediately available” for release,” otherwise it has five days to disclose the records or notify the requester when the records will be available. RSA 91-A:4,IV.
N.J.S.A. 47:1A-5(f) requires the request contain a brief description of the record sought as well as the name, address, and phone number of the requestor.
A written request should contain as detailed a description of the records sought as possible. It should be directed to the designated records custodian, in the case of a municipality the municipal clerk.
It is not essential that the fee issue be addressed in the initial request, since OPRA permits inspection as well as copying. N.J.S.A. 47:1A-5(a). It is often easier to simply inspect all relevant records and then request copies of the important ones after the inspection has been completed. N.J.S.A. 47:1A-5(b) establishes the maximum per page cost for copies of a government record in the absence of another law or regulation fixing the fee.
N.J.S.A. 47:1A-5(i) directs that custodian shall grant or deny a request for access as soon as possible but not later than seven business days unless the record is archived or in storage or the request would substantially disrupt agency operations. N.J.S.A. 47:1A-5(e) provides that immediate access should ordinarily be granted to budgets, bills, vouchers, contracts and public employee salary and overtime information.
The definition of government record, which speaks to a record “made, maintained or kept on file” and the statutory time limit to grant or deny a request would seem to result in a conclusion that the request cannot be for future records.
Persons seeking access shall identify the records sought with "reasonable particularity." NMSA 1978 § 14-2-8(C). A written request shall provide the name, address, and telephone number of the person seeking access to the records and shall identify the records sought with reasonable particularity. NMSA 1978 § 14-2-8(C). A person requesting copies may be charged a reasonable fee, not to exceed $1 per page for ordinary-sized documents, and the public body may require advance payment of the fee, but no specific language is necessary in the initial written request for documents. NMSA 1978 § 14-2-9(B). The initial written request does not need to contain any specific request for a quick response as the timeframes are specifically set out in the statute. Under § 14-2-8(D), the custodian of the records must respond to a written request "immediately or as soon as practicable under the circumstances." The requester must provide the name, address and telephone number of the person seeking the records and, optionally, the person may request a receipt. NMSA 1978 § 14-2-8(C). A sample request to inspect public records is included in the Appendix to the Attorney General's Compliance Guide. New Mexico Attorney General’s Office, Inspection of Public Records Act Compliance Guide, (8th ed. 2015).
With two exceptions, the Public records law does not require a request to be in writing. A public agency may require a request for copies of computer databases to be made in writing, and a public agency providing copies of a geographical information system may require an agreement in writing that the requester will not use the record for commercial purposes. G.S. §§ 132-6.2(c) and 132-10.
There are no statutory requirements of the particular form of a request. 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).
The open records law does not require that requests be in writing and thus does not provide requirements for the content of a written request. Other statutory provisions may apply. For example, N.D.C.C. § 12-60-16.6 states that requests for criminal history information must be in writing and specifies the information that must be included in the written request.
Additionally, in order to bring a court action under N.D.C.C. § 44-04-21.2, the complaint must be accompanied by a dated, written request for the requested record. N.D.C.C. § 44-04-21.2.
The request may be for future records. See, e.g., N.D. Op. Att’y Gen. 98-O-22 (1998) (a public entity cannot deny a request for a record on the basis that the record does not exist if the record was created or received while the request was pending).
The statute does not require that requests be in writing, and does not authorize public offices to require that requests be in writing. However, the Ohio Supreme Court has required that requests identify the records “with reasonable clarity.” State ex rel. Morgan v. City of New Lexington, 112 Ohio St. 3d 33, 857 N.E.2d 1208 (2006). Furthermore, because putting requests in writing can assist the requester, the requester should describe the records requested with specificity. Public offices may be justified in denying requests that are so broad that it requires public officials to research to locate selected information contained within portions of a large volume of records. State ex rel. Thomas v. Ohio State Univ., 71 Ohio St. 3d 245, 643 N.E.2d 126 (1994); State ex rel. Zauderer v. Joseph, 62 Ohio App. 3d 752, 577 N.E.2d 444 (1989); State ex rel. Fant v. Greater Cleveland Regional Transit Author., No. 63737, unreported (Ohio App. 8th Dist. 1993) (no authority for requiring public body to do research for requester when requester could inspect the records himself). A public office has no duty to create a document by searching for and compiling information from its existing records.
The request should be specific and avoid “overly broad” requests or it may be narrowed by the court. State ex rel. Glasgow v. Jones, 119 Ohio St. 3d 391, 894 N.E.2d 686 (2008) (limiting a request for “all” a legislator’s e-mail during her tenure to those e-mails that dealt with a specific bill). But see State ex rel. Toledo Blade Co. v. Seneca County Bd. of Comm’rs, 120 Ohio St. 3d 372, 899 N.E.2d 961, 2008-Ohio-6253 (allowing a request to inspect all e-mails to and from three county commissioners for an entire year).
The statute requires public offices to organize records so as to facilitate public access. Ohio Rev. Code § 149.43(B). State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 750 N.E.2d 156 (2001) (request was too broad that sought "any and all records generated in the possession of your department containing any reference whatsoever to Kelly Dillery"); State ex rel. Kerner v. State Teachers Retirement Board, 82 Ohio St. 3d 273, 695 N.E.2d 256 (1998).
A written request need not address fee issues, unless the request is to the Bureau of Motor Vehicles for copies. To avoid the highest level of fees authorized by law, a request to the bureau should state (honestly) that the requester does not intend to use or forward the requested copies for surveys, marketing, solicitation, or resale for commercial purposes. Ohio Rev. Code § 149.43(F).
A plea for a quick response, notifying the public office when the requester is coming, or setting a reasonable deadline for compliance is a good idea.
The statute does not address whether a request can seek access to records that will exist, but which do not exist yet. The Ohio Supreme Court has held that a relator may not compel an agency to comply with requests that have yet to be made. State ex rel. Toledo Blade Co. v. Seneca County Bd. of Comm’rs, 120 Ohio St. 3d 372, 899 N.E.2d 961, 2008-Ohio-6253. However, if the court determines that a continuing “pattern of nonresponsiveness” exists, a writ of mandamus may be appropriate. State ex rel. Toledo Blade Co. v. Seneca County Bd. of Comm’rs, 120 Ohio St. 3d 372, 382, 899 N.E.2d 961 (2008).
To the extent that the public officer perceives the request as asking it to create a nonexistent record, the request will be denied. State ex rel. Scanlon v. Deters, 45 Ohio St. 3d 376, 379, 544 N.E.2d 680 (1989).
The public office is not required to provide written reasons for denying a request. State ex rel. Leonard v. White, 75 Ohio St. 3d 516, 664 N.E.2d 527 (1996). But, a requester should ask the public office to state the reasons, citing legal authority, for denying part or all of a request.
Also, the request should refer to the Public Records Act by name and by citation ("R.C. 149.43").
If a written request is made, the records sought should be described as specifically as possible. This would be especially essential if the search is not exempt from assessment of a search fee.
If possible, every request should state that the request is made in the public interest so as to avoid the possibility of being assessed a search fee. The request should contain a cap the requester is willing to pay for the documents and an indication that the requester should be contacted if the cost will exceed the stated cap.
The Act requires a public body to grant "prompt, reasonable access." A person should consider placing a time limit in the written request on the production of the record to establish a record for future legal action.
There is no specific provision for requesting future records. The practical problem of requesting future records is that the request may not be promptly acted upon at a future date because the act lacks any specific provisions. It would be advisable to request the record at the time it is discovered.
There are no specific content requirements. The request should specify records requested as well as is possible.
The request should be as specific as to time and nature as possible. In particular, limitations on dates of records will frequently speed a response. A general description of the subject matter or content is common.
There is no need to address fees. If the fees will exceed $25, a public body must now confirm consent to its estimated fees before incurring them. ORS 192.324(4)(c) (formerly 192.440).
No specific requirements. While the statute allows for fees, there is no requirement that the request address the fee issue. In addition, a public body shall provide an estimate of the costs of a request for documents prior to providing copies. R.I. Gen. Laws § 38-2-4(c). When a public body establishes a procedure for APRA requests under R.I. Gen. Laws § 38-2-3(d), it can require that requests be made in writing and also that such written requests must be made on a specific request form. The procedures also can exclude requests via electronic mail. If a public body’s procedures are silent as to accepting e-mail requests, then it must accept requests via e-mail and treat them the same as other requests. See Op. Att’y Gen. PR 09-29 (Nov. 19, 2009), 2009 WL 6329137.
The act specifies only that the request for access to records other than those covered in section 30-4-30(d) be in writing. S.C. Code Ann. § 30-4-30(c). This writer's recommendation is to direct a letter or email to the agency head or chief administrator unless a person has previously been designated by the agency to respond to requests for records. The request should be for access to inspect records unless you have already determined the document you want. The more narrow or precise the request the lower the cost will be for access or copying. It is appropriate in the writing to request a reduced fee where the request is in the public interest. It is appropriate in the request to solicit an itemized estimate of costs for providing access or copies and to suggest a method or time of payment of any deposit required. If you desire a copy in an electronic format, the format should be specified. It is also a good practice when requesting electronic copying to supply either a flash drive, website, or email address where the duplicates can be delivered. The law is silent on requests for access to records that may be created or come into the possession of the public body in the future, but those agencies that are cooperative will respond favorably to the request, while those agencies that resist public intrusion into their domains will probably reject continuing requests for access as the records become available.
The more narrow the description of the records the greater the chances that the fee for the search will be reduced or waived.
There is no need to address the fee issue, but, as noted above, it is a good idea to request a reduced fee.
Everybody needs everything yesterday, so unless you have a prior relationship with the public body, your request is likely to invoke the response that appeared on a sign above the desk of an employee in the Department of Motor Vehicles: "Procrastination on your part does not necessarily constitute an emergency on my part."
There is no specific reference to future records, but in the area where a search is being made to fill a position of public employment, it is recommended that a request for access be made at the time the position becomes vacant. Such a request generally relates to future records.
No specific requirements for a written request, but clarity is strongly recommended to avoid delays. SDCL §1-27-37 (3). Again, although not required, to the degree possible, the record should be plainly identified to eliminate confusion and delay. With respect to fees, a promise to pay is a prerequisite to receiving records. SDCL §§1-27-35 thru 37. There are no provisions to expedite response or to request future records.
Written requests should be clear as to the specific records sought. If specific enough, the requester does not have to appear personally to inspect the records, but may have copies delivered to him. Jackson v. Root, 2001 Tenn. App. LEXIS 871 (Tenn. Ct. App. Nov. 26, 2001). The requester may ask for the complete file of a particular matter and, if he is unable to personally appear to select documents to be copied from that file, can have the custodian copy and deliver the entire file, so long as the requester pays for copying and delivering. Rutter v. Wells, 2004 Tenn. App. LEXIS 626 (Tenn. Ct. App. Sept. 27, 2004).
Requests should contain offers to pay reasonable fees for duplication. The Act has no provision for fee waivers or advance payments. There are numerous reports of agencies or other entities have imposed prohibitive fees to discourage requests.
A plea for quick response may be effective, depending upon the particular records custodian.
There is no provision in the Act regarding requests for future records. Presumably, a request could be for future records, but as a practical matter, such a request could easily be overlooked, and therefore, someone seeking future records would be advised to periodically renew the request.
The request should identify what information is sought as accurately as possible, because the governmental body can ask for clarification if it cannot reasonably understand the request. Tex. Att’y Gen. ORD-23 (1974); Tex. Gov’t Code § 552.222. Likewise, the governmental body must make a good faith effort to explain what type of records are available, so a vague request can be narrowed. Tex. Att’y Gen. ORD-87 (1975). Written requests do not have to be in any particular form or use “magic words.” Tex. Att’y Gen. ORD-483 (1987). A written request includes a request made in writing by electronic mail or facsimile transmission. Tex. Gov’t Code § 552.301.
The written request should be made to the officer for public information, Section 552.301(c), defined in Section 552.201 as the “chief administrative officer of a governmental body.” Also, each elected county officer is the officer for public information created or received by that county officer’s office. Tex. Gov’t Code § 552.201(b).
The request need not inquire about the cost associated with the request. Rather, if a copy request or request to inspect a paper record exceeds $40, the governmental body must provide an itemized statement that details all estimated charges. Tex. Gov’t Code § 552.2615. If the requestor does not request a copy of the public information, a charge may not be imposed for making that information available for inspection. Tex. Gov’t Code § 552.271.
While the Act does not require a requestor to specify a deadline for requested production of information, such a specification may hasten release of the information. The statute requires only “prompt” production by the officer for public records and requires that the officer seek within a reasonable time — no later than 10 business days after receipt of the request — an Attorney General’s opinion if the governmental body deems the records excepted from the statute’s disclosure requirements. While custodians frequently take the 10-day limit to either furnish the requested records or request an Attorney General opinion, the ready availability of many records and the importance of timely disclosure to the requestor in many cases suggest a reasonable time would be less than 10 days. Consequently, the requestor should designate a short deadline where appropriate.
The Attorney General has taken the position that governmental bodies are not required to comply with a continuing request to supply information as such information is prepared in the future. See Tex. Att’y Gen. OR2011-04693 (2011); Tex. Att’y Gen. ORD 476 (1987). This position is grounded in the principle that the Act “does not require a government entity to prepare or assemble new information in response to a request.” Thompson v. Miller, No. 03-98-00627-CV, 1999 WL 549205 at *2 (Tex. App.—Austin July 29, 1999, no pet.). The Austin Court of Appeals, however, at least implicitly recognized that a continuing request might be proper. See Ctr for Econ Just v. Am. Ins. Ass’n, 39 S.W.3d 337, 342 (Tex. App.—Austin 2001, no pet.) (holding that an open-ended, continuing request under the Public Information Act for data as it becomes available necessarily involves looking to the version of the Act in effect each time the data is available for release).
A governmental agency does not comply with Act by releasing to the requestor another record as substitute for specifically requested record unless the requestor agrees to the substitution. Tex. Att’y Gen. OR2009-11812 (2009).
A written request must contain the requester’s name, mailing address, and daytime telephone number, as well as a reasonable description of the record requested. See Utah Code § 63G-2-204(1).
To obtain an expedited response, the requester must demonstrate that the record request benefits the public rather than the individual requester. See Utah Code § 63G-2-204(3)(a). Journalists requesting records for publication or broadcast are presumed to be acting to benefit the public. See id. § 63G-2-204(4).
There is no statutory requirement that the request be stated with any degree of particularity, although obviously the more precise the description the more likely the requester is to receive an intelligent response. The act does require that the custodian be something more than just a passive conduit, as it requires her or him to certify that the requested records, if non-existent, also do not exist under “any other name known to the custodian.” Thus, for example, if the records are generally described but the wrong label used, that is not grounds for a disclosure refusal. 1 V.S.A. § 318(b)(4).
The Public Records Act provides that “[u]pon request, the agency shall provide an estimate of the charge” for complying with the request. 1 V.S.A. § 316(c). As a practical matter, it is good practice to include a request for an estimate of the cost in your public records request.
The Act requires that the requester identify the requested records with reasonable specificity. Va. Code Ann. § 2.2-3704.B. The Act does not require that fees be mentioned in the request. However, if requesting an estimate for search and copying charges, it is best to put it in writing. If the requester asks for an estimate, one must be provided. Va. Code Ann. § 2.2-3704.F.
If a public body determines in advance that charges for producing the requested records are likely to exceed $200, the public body may, before continuing to process the request, require the requester to agree to payment of a deposit not to exceed the amount of the advance determination. Va. Code Ann. § 2.2-3704.H.
A typical written request (in the absence of a contrary agency requirement as to form) should (1) state clearly that it is a request for public inspection of records under the Public Records Act, (2) describe concisely and specifically the records sought, (3) state the time and date the request is being made, (4) indicate to whom the agency should respond and how the requesting party may be contacted by mail and telephone, and (5) note that the law requires a prompt response to the request and a written statement of the specific reasons for a denial, subject to judicial review and imposition of statutory costs, attorneys’ fees and a civil penalty for wrongful denial.
Any FOIA request must describe the information sought "with reasonable specificity." W. Va. Code § 29B-1-3(4). Written requests should also specify that the request is being made both under the Freedom of Information Act and under the common law right of access. If another statute provides for broader access to the requested materials, that statute also should be mentioned.
The Supreme Court has not defined the term "reasonable specificity." But in Richardson v. Kimball, 176 W. Va. 24-25, 340 S.E.2d 582, 583-84 (1986), it ruled that a town's denial of an FOIA request for inspection of "all traffic records" for a three-year period — based on the contention that the request was not "reasonably specific" — was so unjustified that the town was found to have acted in bad faith, thus supporting an award of attorneys' fees.
The statute does say that furnishing copies is one permissible response. It also indicates that the public body may establish fees to reimburse it for the "actual cost of reproduction." W. Va. Code § 29B-1-3(5). Does this mean that a public body may respond with copies and a bill for reproduction costs? This should be allowed only if copies are requested and the fees understood. If there is any doubt, the public body should offer the option of the second response and make known the time and place at which the person may inspect and copy the records. Many requesters may prefer this latter course to avoid undue expense if the amount of responsive information is large and the "actual cost of reproduction" would be significant.
The requester should specifically request to review, rather than copy, responsive documents if that is his/her preference. Subsequently, copying may be requested of some or all responsive documents, after they have been reviewed and relevant information identified. Certainly, if a request specifically asks for copies, it should recite the requesters understanding of the fee which will be charged.
The Freedom of Information Act requires a response to all requests within five working days. The request should ask that this time limit be met. If there is a particularly urgent need for the records, this should be explained and an expedited response requested.
The statute neither prohibits nor specifically authorizes a request for future records nor is there case law on the subject. So long as information can be identified with "reasonable specificity," an FOIA request for future records might be honored in the discretion of the public body. However, in the absence of a statutory requirement that a public body disclose future records based on a preliminary request, it would not be surprising if many agencies refuse to comply with such request. Should a public body refuse to honor a request for future records made in advance of their creation, the requester likely would have no recourse but to file periodic requests for the same information. Keep in mind, also, that a requester may have a statutory or common law right to require the public body to create records and then make them available for public inspection or copying. See generally, Daily Gazette v. Withrow, 177 W. Va. 110, 350 S.E.2d 738 (1986).