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3. Is delay recognized as a denial for appeal purposes?


  • Alabama

    The Muse II (1st appeal) decision does not mean that a delay-equals-denial argument is foreclosed. See 628 So. 2d 853 (Ala. 1994). If an agency delays in producing the requested records so that public benefit of the records is effectively undermined, a good argument can be made for delays being equivalent to denial of access. Furthermore, if the agency refuses to produce the requested records and also refuses to give an overt denial of access to the records, a good case can be made that after a reasonable period of time, under the circumstances, delay is equivalent to denial and the requester can proceed to court without waiting for an overt denial.

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  • Alaska

    The agency must give a written response granting or denying a written request within the prescribed time limit. If no such response has been received by you within a reasonable time after the expiration of the time limit, you may consider the request denied and pursue an appeal. 2 AAC 96.325(f).
    The only reasons for which the request may be denied are that the record is not known to exist, or it is not in the agency's possession and after a diligent search the agency does not know where the record is to be found, or the record has been destroyed in accordance with applicable record-retention schedules, or that federal law or regulation, or state law, authorizes nondisclosure of the record; or that the record is believed to exist in the agency's possession but has not yet been located. 2 AAC 96.335. In the case of an unlocated record, the agency must continue to search until the record is located or it appears that the record does not exist and the agency must periodically inform you of the office's progress in this search. 2 AAC 96.335(f).
    Denials of record requests may be made by the agency head or by someone to whom that agency head has delegated authority, and must be in writing, stating any specific legal grounds for the denial. The denial must be dated and signed by the person making the determination. It must inform you that you may appeal the denial by complying with the procedures set out in the regulations, but also that the you may obtain immediate judicial review of the denial by seeking an injunction from the superior court under AS 40.25.125 instead of pursuing an administrative appeal. It must further advise you that an election not to pursue injunctive remedies in superior court shall have no adverse effects on your rights before the public agency, and that an administrative appeal from a denial of a request for public records requires no appeal bond. Further, a copy of the appeal procedures must be enclosed with the denial. The denial is considered to be issued at the time that it is either delivered to the U.S. Postal Service for mailing or is hand delivered to you by an agent of the agency (other than a post office employee). 2 AAC 96.335(b) through (e).

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  • Arizona

    Yes.  See Phoenix New Times, 217 Ariz. at 538, 177 P.3d at 280 (stating the failure to promptly produce records in response to a request constitutes a denial of access to public records and gives the superior court discretion to award attorneys’ fees).

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  • Arkansas

    The agency’s failure to respond promptly is presumably a denial of “the rights granted to him or her” by the FOIA. Ark. Code Ann. § 25-19-107(a). If the deadline is not met, the requester can seek immediate judicial relief.

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  • California

    A delay beyond the 10 plus 14-day period allowed under Section 6254(c) is arguably a violation of the CPRA giving a requester standing to sue the agency. See, e.g., Marken v. Santa Monica-Malibu Unified Sch. Dist., 202 Cal. App. 4th 1250, 1268 n. 14, 136 Cal. Rptr. 3d 395 (2012) (stating that district’s one-month delay in producing records—beyond the 24-day time period allotted to make the determination in unusual circumstance—to allow teacher to file preliminary injunction raised “serious questions” about whether the delay violated the CPRA); Rittiman v. Public Utilities Com., 80 Cal. App. 5th 1018, 1038, 295 Cal. Rptr. 3d 285 (2022) (characterizing seven-month delay between time commission accepted requester’s administrative appeal without ruling on it and the filing of petition for writ of mandate as “egregious by any measure” and thus concluding that petitioner was not required to wait any longer).

    A lawsuit is a costly method to obtain a response, however. Practically speaking, filing a writ petition or an action for declaratory or injunctive relief may be premature if the agency has not definitively denied the request. On the other hand, if the delay is unreasonable and it becomes clear that the agency is refusing to respond or has gone substantially beyond the 10 plus 14-day period, then it might be worthwhile to file a lawsuit, even if it is only to get a response from the agency. In this circumstance, writing the agency and informing it that suit will be filed absent a written response or production of records by a stated date, would assist in establishing that the inaction is a violation of the CPRA and an intended denial by the agency.

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  • Colorado

    Not by statute.

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  • Connecticut

    Yes, failure to comply with a request to inspect or copy a public record within the applicable number of business days shall be deemed to be a denial. Conn. Gen. Stat. §1-206(a).

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  • Delaware

    Any citizen denied access to public records as provided in this chapter may bring suit within 60 days of such denial. 29 Del. C. § 10005(b).

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  • District of Columbia

    Failure to respond within the statutory time frame is considered a denial and an exhaustion of remedies, unless an appeal to the Mayor is brought. D.C. Code Ann. § 2-532(e).

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  • Florida

    An “unreasonable” delay in providing access to records to a person who has requested the opportunity to inspect or copy the records of an agency may be treated as a denial for purposes of judicial relief.  Cf. Tribune Co. v. Cannella, 458 So. 2d 1075 (Fla. 1984).

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  • Georgia

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

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  • Hawaii

    Neither UIPA nor the OIP Rules specifically addresses this issue.  The Supreme Court of Hawaii, however, has interpreted “‘denial of access [to records to be] synonymous with ‘withholding access.’” State of Hawai'i Org. of Police Officers (SHOPO) v. Soc'y of Prof'l Journalists-Univ. of Hawai'i Chapter, 83 Haw. 378, 392, 927 P.2d 386, 400 (1996). The court relied upon federal case law that had defined “withholding to include not only denials, but any agency response that has the ‘net effect . . . significantly to impair the requester’s ability to obtain the records or significantly to increase the time he [or she] must wait to obtain them.’” Id. (citing McGehee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983), vacated in part on other grounds, 711 F.2d 1076 (1983) (emphasis added)). Thus,

    [a]ccess is withheld, and a person aggrieved thereby, not only by an agency's outright denial of access, but also, for example, by the agency's non-response, claim that the request was not specific enough to identify the records sought, imposition of unauthorized or excessive fees as a condition of access, or claim that it does not have the records sought.

    Id. at 400-01, 927 P.2d at 392-93.

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  • Idaho

    In the event that there is no response from the agency, the request will be deemed denied within ten (10) working days following the request. Idaho Code § 74-103(2).

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  • Illinois

    Yes, a request is deemed denied if a public body fails to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt. 5 ILCS 140/3(d); see also 5 ILCS 140/9(c). A public body that fails to respond to a request within the timeframes provided for in 5 ILCS 140/3 (generally 5 days, and an additional 5 day if an extension is requested) but, later, provides the requester with copies of the requested public records may not impose a fee for such copies. 5 ILCS 140/3(d). A public body that fails to respond to a request received may not treat the request as unduly burdensome under 5 ILCS 140/3(g).

    Procedure for denial. Denial must be in writing and state the reasons for the denial, including a detailed factual basis for the application of any exemption claimed, as well as the names and titles or positions of each person responsible for the denial. See 5 ILCS 140/9(a). Each notice of denial by a public body must also inform the requester of the right to review by the Public Access Counselor, provide the address and phone number for the Public Access Counselor, and inform the requester of his right to judicial review under 5 ILCS 140/11.

    When a request for public records is denied on the grounds that the records are exempt under 5 ILCS 140/7, the notice of denial shall specify the exemption claimed to authorize the denial and the specific reasons for the denial, including a detailed factual basis and a citation to supporting legal authority. 5 ILCS 140/9(b). Copies of all notices of denial must be retained by each public body in a single central office file that is open to the public and indexed according to the type of exemption claimed and, to the extent feasible, according to the types of records requested. 5 ILCS 140/9(b); but cf. Duncan Publ’g Inc. v. City of Chicago, 304 Ill. App. 3d 778, 709 N.E.2d 1281, 237 Ill. Dec. 568 (1st Dist. 1999) (holding that individual departments of city were subsidiary public bodies and, thus, public bodies that were each individually subject to the Act; as such, they could comply with the Act by each department retaining copies of notices of denials in their own single, central office file and need not retain the notices in a single, central office file for the entire city).

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  • Indiana

    If a written request has been made and there is no response for more than seven days, the request is deemed to be denied. Ind. Code § 5-14-3-9(b). In the case of an in-person oral request, a delay of 24 hours or more in responding to the request is deemed to be a denial. Id.

    The agency must produce the documents or allow the requestor to make copies within a reasonable time, so a reviewing court could find that the agency’s delay was unreasonable. Ind. Code § 5-14-3-3(b). However, an agency that agrees to provide records may not violate the statute if it fails to provide the records within the statutory time frame if the agency provides the records within a reasonable time and advises the requestor that the agency is not challenging the right to the documents. See Hrstich v. City of E. Chicago, 862 N.E.2d 9 (Ind. Ct. App. 2007) (unpublished).

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  • Iowa

    No statutory provisions or reported cases address this.

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  • Kansas

    A delay is not recognized as a denial for appeal purposes. If the request is not granted immediately, the custodian is required to 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. K.S.A. 45-218(d).

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  • Kentucky

    If the agency refuses to provide a written response to a request within five business days, the requester may seek enforcement of the Open Records Act with the Attorney General. Ky. Rev. Stat. 61.880(2)(a). However, “[i]f the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.” 40 KAR 1:030 § 6.

    If the requester believes the intent of the Open Records Act “is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.” Ky. Rev. Stat. 61.880(4); 92-ORD-35 (finding three-month delay in redacting exempt information from records was unreasonable).

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  • Louisiana

    Delay is recognized as a denial for appeal purposes. A requester may institute proceedings five days from the date of the request, exclusive of Saturdays, Sundays, and legal public holidays. La. Rev. Stat. Ann. § 44:35(A).

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  • Maine

    Yes. Delay in responding to a request is recognized as a denial for appeal purposes of when the delay extends beyond the five-working-day deadline. Cook v. Lisbon School District, 544 A.2d 335 (Me. 1996). An appeal must be brought within the deadline set for appeal after denial, which is 30 days. See 1 M.R.S.A. § 409(1); Guy Gannett Publishing Co. v. Maine Department of Public Safety, 555 A.2d 474 (Me. 1989).

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  • Maryland

    Because the time limits imposed by the PIA are mandatory, a failure to disclose within the prescribed time period will constitute a denial for purposes of administrative or judicial review. If delay beyond the time requirements set forth in the PIA is unavoidable for practical reasons, the applicant should be advised. § 4-203(b)(3); see also PIA Manual, at 4-4 (discussing steps a custodian should take to avoid a "constructive denial"). If a custodian works with the applicant in good faith and at least meets the 10-day notification requirement of GP § 4-203(b)(2), a reviewing court will likely consider the agency’s failure to produce records within the requisite time period to be a bona fide, rather than a sanctionable violation of the PIA. See GP §§ 4-203(b)(3); 4-362(d)(1). A custodian could also bring the issue to the Public Access Ombudsman to hear and resolve the applicant’s concerns about the timeliness of response.  § 4-1B-04(a); PIA Manual, at 4-4. Courts interpreting the federal FOIA have granted extensions in extraordinary cases. See ACLU v. Leopold, 223 Md. App. 97, 124 (2015); Open American v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976). A failure to produce requested records within the established time frames does not result in a waiver of any applicable exemptions. Stromberg Metal Works Inc. v. University of Maryland, 382 Md. 151, 161 (2004).

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  • Massachusetts

    Ten days' inaction after receipt of request is treated as denial. G.L. c. 66, § 10(b); 950 CMR 32.08(1).

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  • Michigan

    Failure to respond to a request within the five-business day statutory period is recognized for appeal purposes as a final determination by the public body to deny the request. Mich. Comp. Laws Ann. § 15.235(3); see also Hartzell v. Maryville Cmty. Sch. Dist., 183 Mich. App. 782, 455 N.W.2d 411 (1990) (awarding costs and attorney’s fees to plaintiff because, instead of advising plaintiff that requested document did not exist, agency simply did not respond to request).

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  • Minnesota

    Delay is not specifically recognized as a denial under the Act. However, if the delay is such that the entity is effectively not complying with the Act, a requester may bring an action in state civil court to compel compliance with the provisions of the Act. Minn. Stat. § 13.08, subd. 4. Alternatively, the requester may file a complaint with the Office of Administrative Hearings, seeking an order to compel compliance. Minn. Stat. § 13.085, subd. 2(a).

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  • Mississippi

    The Act does not classify delay as a denial, but it does specifically require action within a total of 14 days.

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  • Missouri

    There is no specific guidance for determining when a reasonable denial has become a de facto denial.

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  • Montana

    There is no case law or statutory law that concludes that delay is recognized as a denial for purposes of appeal, and usually the custodian gives an immediate response with respect to whether the documents will be produced.

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  • Nebraska

    As long as the custodian sends a written explanation within four business days after actual receipt of the request that explains the reason for the delay in complying with the request, the delay will not be treated as a denial for litigation purposes.

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  • Nevada

    No case authority recognizes delay as a denial for appeal purposes.

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  • New Hampshire

    The Statute does not address this issue.  But in ATV Watch v. N.H. Dep’t of Resources & Econ. Dev., 155 N.H. 434 (2007), the Court ruled that it was error for the trial court to find that the state agency had complied with the Statute by responding to the request “in a reasonable manner.”  The Court held that the 5-day response time in RSA 91-A:4,IV “is absolute.”

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  • New Jersey

    In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request, unless the requestor has elected not to provide a name, address or telephone number, or other means of contacting the requestor.  N.J.S.A. 47:1A-5(i)(1).

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  • New Mexico

    A written request that has not been permitted within fifteen (15) days of receipt may be deemed denied.  NMSA 1978 § 14-2-10.  Any administrative remedies do not have to be exhausted prior to an action to enforce the inspection of Public Records Act.  NMSA 1978 § 14-2-11(A) and § 14-2-12(C).

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  • New York

    As stated above, according to the express terms of the May 2005 amendments to FOIL, an agency’s failure to comply with the timing requirements set forth in the statute is deemed a denial of access that may be administratively appealed. N.Y. Public Officers Law § 89(4)(a). The amendment should eliminate the need to rely on previous court decisions recognizing a constructive denial based on an agency’s failure to response to a FOIL request within a reasonable period of time. See, e.g., Inner City Press/Cmty. on the Move v. N.Y. City Dep’t of Housing Preservation and Development, Index No. 126653/93 (Sup. Ct. New York Cty. November 9, 1993) (failure of the agency to respond results in a constructive denial of the request and authorizes an appeal). The time periods for agency compliance are now express and specific deadlines in the statute.

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  • North Carolina

    The requirement that records be provided “as promptly as possible” has existed for many years, but no appellate court has applied that requirement. The N.C. Court of Appeals explicitly declined to consider timeliness when it was not required by the case. “Whether the length of defendants’ delay in producing copies of the requested public records constitutes a denial of access is not a question we need address at this time because we have found plaintiff’s complaint sufficient on other grounds.” State Employees Ass’n of N. Carolina, Inc. v. N. Carolina Dept. of State Treasurer, 364 N.C. 205, 213, 695 S.E.2d 91, 96-97 (2010).

    In 2021, a Columbus County trial court held that an unjustified one-month delay in production of records was tantamount to a denial and required not only that the records be produced, but also that the sheriff was responsible for paying the newspapers’ full attorney fees. “The plaintiffs have been denied access to public records in the sense that an unnecessary, undue, and unreasonable delay in providing them amounts to a substantial failure to comply with the Public Records Law.” The News Reporter Co., et al. v. Jody Greene, Case No. 20 CVS 1147, Columbus County, North Carolina (Feb. 19, 2021). The sheriff did not appeal and paid $32,287.69 in costs and fees to the plaintiffs.  While this decision isn't from an appellate court, it can serve as a cautionary tale for custodians who are not acting promptly.

    One trial court did find, however, that the Public Records Law “does not provide relief for mere delay in producing copies of public records,” Quality Built Homes, Inc. v. Vill. of Pinehurst, 1:06CV1028, 2008 WL 3503149 (M.D.N.C. Aug. 11, 2008).

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  • North Dakota

    The open records statute does not address whether a delay is recognized as a denial for appeal purposes.

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  • Ohio

    Ordinarily, a demand and refusal must precede suit for the requester to be "aggrieved." Only those who are "aggrieved" by a public office's noncompliance with its duties have standing to sue. See Ohio Rev. Code § 149.43(C); State ex rel. Collins v. Corbin, 73 Ohio App. 3d 410, 597 N.E.2d 544 (1992).

    But delay in receiving a response from a public office is, itself, sufficient to have standing to sue. State ex rel. DiFranco v. South Euclid, 138 Ohio St.3d 367, 7 N.E.3d 1136, 2014-Ohio-538.

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  • Oklahoma

    The Act does not impose specific time limits, but at least one trial court in Oklahoma has previously recognized delay as a denial for appeal purposes (e.g., a delay of 17 months) See Branstetter v. Fallin, CV-2014-2372, OSCN, Court Letter Ruling at *3 (Dist. Ct. Okla. Cnty. Apr. 13, 2018), ("While Plaintiffs’ requests may not have been formally denied in this matter, it is uncontroverted that no documents were produced prior to the lawsuit being filed. At the core of this controversy is whether a delay in producing records in response to an open records request of over a year and a half to two years is a failure to provide ‘prompt, reasonable’ access to the records. It appears Defendants concede the delays in producing the documents in this case resulted in a response that was not prompt. The Court declines to opine as to the appropriate process or procedure for responding to an open records request or to set forth a hard and fast rule or a specific time frame for production of documents pursuant to an open records request; however, in this case, neither the delays nor the process which resulted in the delays in excess of 17 months was prompt or reasonable.”).

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  • Oregon

    Yes, under the 2017 amendments to the Public Records Law. ORS 192.407(1) provides that a public body’s failure to provide a required response to a records request within the specified time period of ORS 192.329 “shall be treated as a denial of the request,” and is subject to review, unless the public body is able to demonstrate that it was not required to comply under ORS 192.329. In addition, a party may seek review of a public body’s estimated timeframe for complying with a records request if they believe the timeframe is unreasonable or will result in undue delay of disclosure, ORS 192.407(2), and may further seek review of “any other instance” of failure to comply with ORS 192.329.

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  • Rhode Island

    Under the APRA, an agency must deny a request for records in writing, giving the specific reasons for its denial and indicating the procedures for appealing the denial, within ten (10) business days of the request. Failure to so respond is deemed a denial. The limit may be extended to thirty business days for good cause. R.I. Gen. Laws § 38-2-7.

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  • South Carolina

    Yes. A failure to respond and provide the records within the statutory time causes the request to be granted. The stated purpose of the act is to enable citizens to learn of the activities of government at a minimum cost or delay, so a delay can be considered to be a de facto denial of access. S.C. Code Ann. § 30-4-15.

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  • South Dakota

    Yes. Failure to respond in ten days is tantamount to a denial. SDCL §1-27-37.

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  • Tennessee

    If the custodian fails to comply with the seven day requirement for a response, the requestor may pursue a legal action for the records. T.C.A. § 10-7-503(a)(3).

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  • Texas

    Not specifically addressed.

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  • Utah

    If an entity fails to provide the requested records or notification of denial within the specified time period, the failure is equivalent to denial of access. See Utah Code § 63G-2-204(8).

    The following is a list of “extraordinary circumstances” that allow a government entity additional time in which to comply with a record request, including the additional time allowed for each circumstance listed:

    (i) “[A]nother governmental entity is using the record, in which case the originating governmental entity shall promptly request that the governmental entity currently in possession return the record.” Id. § 63G-2-204(5)(a). In such a case, the entity currently in possession of the record shall return the record within five business days, unless it would impair the holder's work. See id. § 63G-2-204(6)(a).

    (ii) “[A]nother governmental entity is using the record as part of an audit, and returning the record before the completion of the audit would impair the conduct of the audit.” Id. § 63G-2-204(5)(b). In this case, the originating entity shall notify the requester when the record is available. See id. § 63G-2-204(6)(b).

    (iii) The request is for a large quantity of records, the government entity possesses a large number of requests at the current time, or the request requires the government entity to review a large number of records. See id. § 63G-2-204(5)(c)-(e). In these cases, the government entity shall: (a) disclose the records that it has located and the requester is entitled to inspect; (b) provide the requester with a time estimate of when the additional records will be available; and (c) complete the work and disclose the records as soon as reasonably possible. See id. § 63-2-204(6)(c).

    (iv) The request involves unresolved legal issues “that require the governmental entity to seek legal counsel for the analysis.” Id. § 63G-2-204(5)(f). In this case, the government entity shall have an additional five business days to either approve or deny the request. See id. § 63G-2-204(6)(d).

    (v) The segregation of records requires extensive editing. See id. § 63G-2-204(5)(g). In this case, the government entity is allowed 15 business days from the original request to comply. See id. § 63G-2-204(6)(e).

    (vi) The segregation of records requires computer programming. See id. § 63G-2-204(5)(h). In this case, the government entity must respond as soon as reasonably possible. See id. § 63G-2-204(6)(f).

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  • Vermont

    Failure to meet the statutory response deadline(s) is deemed a denial for subsequent appeal purposes. 1 V.S.A. § 318(a)(2).

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  • Virginia

    A failure to respond to a request is deemed a denial and constitute a violation of the Act. Va. Code Ann. § 2.2-3704.E.

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  • West Virginia

    The FOIA does not specifically specify the consequences of a public body's failure to respond within the five-day limit. However, the courts routinely have treated such lack of response, for purposes of judicial review, as a denial of the request. Failure of a custodian  to provide a timely response to a FOIA request is considered a violation of the statutory mandate. The Federal FOIA explicitly allows a requester to file suit in court if an agency fails to respond to the request.  5 U.S.C § 552 (4)(C)(i) (“Any person making a request to any agency for records under paragraph (1), (2), or (3) of this subsection shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph”).

    Requesters should be cautioned that in many cases when the public body has not responded to a FOIA request within the time mandated by the five working days limit, it is inadvisable to immediately file a lawsuit asking a court to order release of responsive documents. Rather, if the exigency of the moment allows, the requester should send a letter (preferably by certified mail, return receipt requested), documenting that the time for response is over and asking for an immediate response. One might consider sending an additional letter or letters creating a paper trail that can be attached to a court complaint if a response isn’t forthcoming. A court is not likely to look with favor on a public body’s failure to respond, when it asks for an unreasonable extension of time to respond or refuses to give the requester a fair estimate of the time beyond 5 working days that it will take to respond to a request. This advisability of taking this approach to an untimely response, or no response from a public body, depends upon how important is a very quick response.

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