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3. Pro se

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  • Alabama

    An individual, but not a corporation, may bring suit in Alabama without an attorney in state court, Ala. Code § 34-3-19 (2002), or in federal court, 28 U.S.C. § 1654. There are no procedural provisions specific to pro se litigation. We know of no reported decisions of pro se litigation under the Alabama Public Records Law.

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  • Alaska

    It is certainly possible to proceed on your own behalf rather than through a lawyer to pursue a record request, as it would be the case in any civil litigation. See, for example, Jones v. Jennings, 788 P.2d 732 (Alaska 1990) (personnel file of police officer being sued by pro se litigant was required to be disclosed, subject to in camera inspection for redaction of sensitive personal information not needed by the plaintiff). The advisability of this depends upon the issues involved, particularly the grounds stated in any denial.

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  • Arizona

    (This section is blank. See the point above.)

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  • Arkansas

    While a litigant may represent himself in a FOIA case, as in any other civil action, proceeding pro se is not advisable. See Dauer v. Ponder, 274 Ark. 166, 623 S.W.2d 3 (1981) (FOIA plaintiff who chose to represent himself “necessarily must succeed or fail on [his] knowledge or ability”). Arkansas procedural rules are not particularly user-friendly. For example, rather than allow the simplified “notice pleading” used in the federal courts, Arkansas remains a “fact pleading” jurisdiction. Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981) (explaining Ark. R. Civ. P. 8(a)).

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  • California

    It is not advisable to proceed in pro se. If a court action must be brought, complex procedural requirements virtually necessitate the hiring of an attorney.

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  • Colorado

    Persons seeking access to public records may proceed pro se. Although no rule restricts an applicant from filing an action under the Open Records Act pro se, any non-lawyer who acts as a lawyer on his or her own behalf is held to the same rules and knowledge of the law as an attorney. See Viles v. Scofield, 128 Colo. 185, 261 P.2d 148 (1953). Because the custodian will most likely be represented by the Attorney General or agency counsel, a pro se litigant would be at a distinct disadvantage. For an action under the Open Records Act brought (and lost) by an applicant pro se, see Uberoi v. Univ. of Colo., 686 P.2d 785 (Colo. 1984).

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  • Connecticut

    Pro se appeals are possible, but since an administrative appeal must be done in strict compliance with UAPA, a pro se appellant runs the risk that he or she will lose the appeal for failing to observe certain technical procedures.

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  • Delaware

    Pro se litigation is possible but not advisable. It is recommended to petition the Attorney General, requesting that the Attorney General bring the action. 29 Del. C. § 10005(e).

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  • District of Columbia

    A requester may proceed pro se. A requester proceeding pro se is not entitled to attorneys' fees if he or she ultimately prevails on the claim. Donahue v. Thomas, 618 A.2d 601 (D.C. 1992).

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  • Florida

    The primary means of enforcing the provisions of Chapter 119 is to file an application for a writ of mandamus in circuit court.  Although an individual is privileged to proceed pro se, it is not advisable to do so since a familiarity with applicable substantive and procedural law is necessary.

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  • Georgia

    A suit to enforce the Act may be brought pro se but legal assistance may be useful in presenting the issues and expediting their resolution. See also O.C.G.A. § 50-18-73(b) (authorizing the award of attorney fees to the prevailing party under certain circumstances).

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  • Hawaii

    There are no requirements that an attorney be engaged, but technicalities of the law, questions concerning current applicability of many agencies' holdover rules, the constitutional basis of certain exceptions, and the procedural requirements of litigation make it generally advisable to retain an attorney.

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  • Idaho

    There are no prohibitions against a pro se proceeding. A pro se applicant should have a reasonable opportunity to prevail, unless he or she has a complicated statutory argument. Because Idaho law allows access to all public records, unless a statute expressly provides otherwise, and because public records are broadly defined, the legal issues confronting a court reviewing a denial are not necessarily complex.

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  • Illinois

    Nothing about the Act prohibits requesters from proceeding pro se, or “[f]or oneself; on one’s own behalf; without a lawyer.” Black's Law Dictionary 1236 (7th ed. 1999). Whether the requester wishes to proceed pro se will be up to the requester or the policy of the news organization. If the question is crystal clear, one might consider proceeding without a lawyer, but only if one is certain of his or her abilities to draft a civil complaint and other pleadings.

    Though 5 ILCS 140/11(i) permits recovery of attorneys’ fees, requesters who proceed pro se can not collect attorneys’ fees. See Hamer v. Lentz, 132 Ill. 2d 49, 547 N.E.2d 191, 138 Ill. Dec. 222 (1989) (denying attorneys’ fees to attorney proceeding pro se); see also Brazas v. Ramsey, 291 Ill. App. 3d 104, 682 N.E.2d 476, 224 Ill. Dec. 915 (2d Dist. 1997) (denying attorneys’ fees to non-attorney proceeding pro se).

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  • Indiana

    An individual (but not a corporation) may appear pro se, but pro se litigants are held to the same standard as parties represented by counsel. Diaz v. Carpenter, 650 N.E.2d 688, 691 (Ind. App. 1995). Therefore, it is not advisable to proceed pro se unless the individual has an intimate knowledge of legal procedures and analysis. Additionally, a pro se party may not receive attorney’s fees under the Access to Public Records Act. Marion Cnty. Election Bd. v. Bowes, 53 N.E.3d 1203, 1209 (Ind. Ct. App. 2016).

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  • Iowa

    Proceeding pro se is possible, but not advisable. There are numerous procedural pitfalls; the issues are relatively technical; and the party whose records one seeks to review will always be represented by counsel.

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  • Kansas

    K.S.A. 45-222(a) provides that a civil action in district court under KORA may be “brought by any person.”  There is no requirement that an attorney must represent that person.  Attorney fees, which a court can award if the agency to whom the request is directed acts in bad faith and without a reasonable basis in fact or law, may not be available to pro se litigants.

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  • Kentucky

    As with any court action, the litigant has the choice of proceeding pro se. As with most court actions, this is not advisable, inasmuch as the public agency will certainly be represented by counsel.

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  • Louisiana

    As with any lawsuit, it is possible, but probably not advisable, to proceed pro se. Louisiana courts are unaccustomed to litigation conducted by pro se plaintiffs. The litigant's lack of familiarity with court rules and procedures may increase the risk of waiving or failing to assert properly the right of access to public records.

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  • Maine

    Any individual may proceed pro se.  Most entities (e.g., corporations) must be represented by counsel, but for purposes of FOAA this is easily addressed by having an individual make a request.

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  • Maryland

    Because the defendant in such an action has the burden of justifying a decision to deny inspection of a public record, § 4-362(b)(2), the possibility of an applicant proceeding pro se is heightened. However, in light of the somewhat technical exemptions set forth in the PIA, proceeding on a pro se basis may not be advisable.

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  • Massachusetts

    An individual reporter, editor, or citizen may appear pro se. However, unless also a lawyer, he or she may not represent others or appear for a corporation. Varney Enterprises Inc. v. WMF Inc. 402 Mass. 79, 520 N.E.2d 1312 (1988) (corporation may not appear through corporate officer who is not licensed attorney).

    Pro se appearance in court is normally not advisable. The law in this area is becoming fairly complex.  In appropriate cases, a public records appellant may be able to obtain pro bono counsel by contacting the Reporters Committee, the author of this outline, or other organizations involved in access issues.

    In one extreme case, a court denied a records request altogether because it was unduly broad and appeared to be an act of harassment brought by a serial pro se plaintiff.  Erickson v. Executive Office of Environmental Affairs, 2006 WL 3010949 (Mass. Super. Ct. 2006) (Connolly, J.) (denying appeal brought by cat lady, who already had a documented history of making repeated overly broad and harassing requests, and who was seeking documents responsive to a request that was virtually unlimited in scope and time).  See also 950 C.M.R. § 32.08(2) (allowing Supervisor of Public Records to decline to take an administrative appeal that is deemed an act of harassment).

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  • Michigan

    The availability of attorney’s fees to a plaintiff who prevails in an FOIA action is intended to make access to legal services easier. Mich. Comp. Laws Ann. § 15.240(6).   See Omdahl v. Iron County Board of Education, 478 Mich. 423, 733 N.W. 2d 380 (2007) (the fact that a plaintiff is a licensed attorney does not mean that the plaintiff has an attorney, and therefore, the plaintiff may not recover attorney’s fees); Watkins v. Manchester, 220 Mich. App. 337, 559 N.W. 2d 81 (1996) (pro se plaintiff-attorney cannot recover attorney’s fees under FOIA).

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  • Minnesota

    Nothing in the Act prohibits pro se litigants, but as a general matter of practice, pro se litigation is not advised.

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  • Mississippi

    The chancellor is unlikely to take a pro se suit seriously. A requester litigating pro se is likely to lose rights on technical or procedural grounds.

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  • Montana

    The petition for relief should be drafted by an attorney; but there is no reason why a properly drafted petition could not be presented to the court by the requester pro se. Often times a district court will be more willing to talk with a requester pro se than to have an ex-parte conversation with the attorney for the requester. It is advisable, and probably necessary in any case, for the requester to accompany the attorney to the court. It should be noted, however, that most of the “bad” case law in Montana has come from litigation in which the requestor is pro se.

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  • Nebraska

    Action may be brought pro se. It is probably better to petition the attorney general rather than to bring a pro se action.

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  • Nevada

    Pro se representation is permitted at the District Court level.

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  • New Hampshire

    The Statute states that the petitioner "may appear with or without counsel." RSA 91-A:7. The petition will be deemed sufficient "if it states facts constituting a violation of this chapter." Id.

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  • New Jersey

    It is usually inadvisable to attempt a pro se court action to obtain records, due to both the substantive and procedural complexities involved.

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  • New Mexico

    New Mexico allows a pro se suit.

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  • New York

    Procedurally, in New York a person may prosecute or defend a civil action in person, except that a corporation or voluntary association must appear by an attorney. N.Y. Civ. Prac. L. & R. § 32l(a).

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  • North Carolina

    A petition seeking public records may be filed pro se, but this procedure is not recommended.

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  • North Dakota

    Pro se suits are not advisable in most instances. In many cases, the State Broadcasters Association or the North Dakota Newspaper Association will assist with either an amicus curiae brief or with the financing of the suit.

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  • Oklahoma

    While it is possible to proceed pro se, the Act does allow for the recovery of reasonable attorney fees if successful. Because the Act allows a cause of action for injunctive and declaratory relief, both requiring specialized pleading, it would be advisable to use an attorney and seek recovery of the fees.

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  • Oregon

    State law does not preclude a pro se litigant.

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  • Pennsylvania

    The Law does not prohibit pro se suits. However, the complexity of the public records determination and the interplay of the various statutes make legal representation advisable.

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  • Rhode Island

    As a general rule, acting pro se is not advisable because of the risks of failure to follow procedural rules or to discover applicable statutory and case law.

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  • South Carolina

    It is possible to bring suit without an attorney, but this reduces the likelihood for success unless the pro se litigant has experience in making a focused argument.

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  • Tennessee

    Pro se representation is possible. The success of such pro se actions may depend upon the receptivity of the judge to such representation and how well settled the issues of law are.

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  • Texas

    While it is possible for a party to pursue pro se court actions involving public information questions, it is not advisable for several reasons. First, judges generally are hostile to pro se actions. Second, anyone appearing in court (regardless of his or her legal abilities or the subject matter of the suit) must follow the Texas Rules of Civil Procedure, which are complex and occasionally quirky, especially to a layperson. Someone requesting public information probably wants access as soon as possible; a quicker resolution is more likely if the requestor's representative in court intimately knows its rules and the system. Third, the governmental body probably will be represented by an attorney. Fourth, laypersons may have difficulty researching prior open records decisions to cite to the court. Relatively few court opinions interpret the Act. Instead, the Texas Attorney General's opinions or more than 600 "Open Record Decisions" supply non-binding but persuasive interpretations of the Act.

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  • Utah

    Although it certainly is possible for individuals to represent themselves in a pro se lawsuit challenging the denial of records access, it is not always advisable. The statutory law governing records access in Utah is complex and ever-changing. As a result, it is usually beneficial to seek legal advice.

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  • Virginia

    The Act does not require that a natural person requester to be represented by an attorney. It has been held that a person who appears pro se cannot receive attorneys’ fees for a suit to enforce the Act; however, he may recover court costs. Fiscella v. ARHA, 50 Va. Cir. 102 (Alexandria Cir. Ct. 1999). The Act partially overrides Virginia's general ethical prohibition on the appearance of a corporate party without counsel, permitting a corporate petitioner to appear without counsel in a general district court only. Va. Code Ann. § 2.2-3713.B.

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  • Washington

    Pro se actions are difficult. They require not only familiarity with rules concerning filing and serving a lawsuit but scheduling a hearing as well. More importantly, a pro se litigant will have difficulty with the substantive argument because the law has become complex and agency attorneys have become very sophisticated in litigating public disclosure cases.

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  • West Virginia

    There is no requirement that an attorney file a FOIA suit. In fact, one court decision ordering public bodies to provide access to records was the result of suits filed pro se by individuals, representing themselves. Veltri v. Charleston Urban Renewal Authority, 178 W. Va. 669, 363 S.E.2d 746 (1987). However, seeking relief in court without the aid of an attorney is problematic and should be the subject of careful consideration of the temperament of the court toward the press and the identity and expertise of possible opposing counsel. Successful pro se FOIA litigants are entitled to an award of court costs, but because they have not been represented by an attorney, they are not eligible for an award of attorney fees. Smith v. Bradley, 223 W. Va. 286, at 293, 673 S.E.2d 500, at 507 (2007).

    In all Freedom of Information Act cases, the "burden is on the public body to sustain its action," W. Va. Code § 29B-1-5, and in a simple case one may be able to rely solely upon the agency' s inability to justify its denial. As a general rule, the more complicated or important the issue or the less time one has available to learn the basics of judicial procedures, the more one needs an attorney. The old adage that “he who represents himself has a fool for a client “should be considered before one proceeds pro se.

    Remember that, if an attorney is retained to obtain records and a court finds that the information requested was withheld wrongfully under the statute, the requester is entitled Court ordered  attorney fees that must be paid by the agency that withheld the information. Some attorneys may agree to represent a requester with the understanding that the requester will pay costs and that the attorney will be compensated for his or her work only if the suit causes withheld documents to be disclosed, thus triggering a judicial award of attorney fees. This was the arrangement between the newspaper and its attorneys in Daily Gazette Co. Inc. v. W. Va. Development Office, 206 W. Va. 51, 521 S.E.2d 543 (1999) (“Gazette II”).

    If your issue is an important one, other news organizations might be willing to join your case and share expenses. For example, in the suit which opened the West Virginia Board of Medicine's records and proceedings to the public, the two Charleston newspapers existing at the time — normally competitors — joined forces as plaintiffs to pursue an issue of great interest to both of them. See Daily Gazette v. W. Va. Board of Medicine, 177 W. Va. 316, 352 S.E.2d 66 (1986).

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  • Wisconsin

    Because of the basically common-law nature of access to records in Wisconsin, pro se procedures are definitely not recommended since few lay persons understand how to locate and apply court-made law. If the individual desiring access is unable to afford an attorney, the local district attorney or the attorney general may be persuaded to appear on behalf of the requester. Wis. Stat. § 19.37(1)(b).

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  • Wyoming

    Any person may appear before a court, with or without representation. See, e.g., Wyo. Stat. § 16-3-107(j) & (k) (1977, Rev. 1993). A corporation may not be represented pro se.

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