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4. Issues the court will address


  • Alaska

    The court may address any issues involved in the appeal or in the record request. Although no decision has addressed whether matters outside the scope of the appeal can be addressed, the fact that the law specifically rejects any requirement that administrative remedies be exhausted would seem to support an argument that any issues pertaining to the public records request could be raised, whether or not they were made part of any administrative appeal below. However, this is more likely to the be the case in a suit filed in the trial court after an agency has denied access, as opposed to efforts to present to the state supreme court on appeal issues not raised in the trial court. Courts can and have addressed improper delays, and also have rendered declaratory judgments with respect to access questions and issues concerning future access.

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  • Arizona

    (This section is blank. See the subpoints below.)

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  • Arkansas

    (This section is blank. See the subpoints below.)

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  • Connecticut

    The appeal is based on the FOIC record; the Superior Court may affirm the FOIC’s decision or remand for further proceedings. The Superior Court may also reverse or modify the FOIC's decision if it is (1) in violation of constitutional or statutory provisions; (2) in excess of the FOIC's statutory authority; (3) made upon unlawful procedure; (4) affected by an error of law; (5) clearly erroneous; or (6) arbitrary or capricious. See Conn. Gen. Stat. §4-183(g). The court may review the public records in issue in camera during the appeal. The Superior Court may not reverse an FOIC ruling based upon an argument (e.g., a claim of exemption) that had neither been raised before nor addressed by the FOIC. Dortenzio v. FOIC, 42 Conn. App. 402, 679 A.2d 978 (1996); see also Conn. Gen. Stat. §1-206(d).

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  • Delaware

    The burden of proof is on the custodian of records to justify the denial of access to records or any failure to comply with the act. 29 Del. C. § 10005(c).

    A court will address the reason for denial, scope of request, applicable exemptions, fees for records and delays.

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  • District of Columbia

    The court reviews the matter de novo, D.C. Code § 2-537(b), and should provide a decision that is sufficiently detailed to demonstrate that such review has occurred. The decision should articulate the precise relationship between each claim for exemption and the contents of the specific documents held to be exempt. Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d 517, 523 (D.C. 1989). In addition, the court is permitted to examine any withheld documents in camera to determine whether they should be exempt. D.C. Code Ann. § 2-537(b). However, requests for in camera inspection must be relatively focused. When a party has simply requested a mass of documents, many of which are clearly exempt from release, the court has no obligation to review the documents to determine whether they contain some parts that may be disclosed. Hines v. Bd. of Parole, 567 A.2d 909, 913 (D.C. 1989).

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  • Georgia

    The Act affords courts the jurisdiction and authority "in law and in equity" to address any and all issues related to compliance with the Act. O.C.G.A. § 50-18-73(a).

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  • Idaho

    The court will consider whether the denial was proper and also whether the actions of the respective parties were legitimately pursued. If the court finds that the “request or refusal to provide records was frivolously pursued,” the court shall award reasonable costs and attorney fees to the prevailing party. Idaho Code § 74-116(2).  See Idaho Conservation League, Inc. v. Idaho State Department of Agriculture, 143 Idaho 366, 146 P.3d 632 (2006) (Idaho Supreme Court awarded fees to requestor when agency’s appeal “was frivolously pursued”).

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  • Illinois

    The court may address the denial as well as the question of the amount of fees the agency seeks to charge.

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  • Iowa

    Whether defendant is subject to the requirements of chapter 22;

    Whether the records in question are government records;

    Whether defendant refused to make the records available; and

    Whether defendant has demonstrated compliance with the requirements of chapter 22.

    Iowa Code § 22.10(2) and (3); Diercks v. Malin, 894 N.W.2d 12, 18 (Iowa Ct. App. 2016).

    If a government agency does not act in good faith when denying access to public records, the court may impose attorney’s fees on the government agency. See City of Riverdale v. Diercks, 806 N.W.2d 643, 646 (Iowa 2011) (requiring the city to pay Diercks’ reasonable attorney fees because the court “found the City violated the statute by withholding the video and implicitly reject the City’s defense of a ‘good-faith, reasonable delay’ under section 22.8(4)”).

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  • Kansas

    The court may address any issue raised "to enforce the purpose" of the Act. K.S.A. 45-222(a).

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  • Kentucky

    Original actions and appeals of Attorney General decisions are treated essentially the same in the Circuit Court. In both cases, the Circuit Court will examine whether the public agency violated the Open Records Act by denying access to a record, by charging excessive fees, or otherwise. The Court may inspect the disputed records before deciding the case. See Ky. Rev. Stat. 61.882(3). The public agency is required to carry the burden of proof to justify its actions. Id.

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  • Minnesota

    The court is able to compel compliance with the provisions of the Act. Such compliance might include providing access to data, setting aside fees, requiring prompt action by the agency, etc. The court may impose a civil penalty and may award costs and disbursements, including attorneys’ fees. Minn. Stat. § 13.08, subd. 4.

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  • Missouri

    The court will consider the reasons for the denial, fees charged for the records, and any unreasonable delays. The Sunshine Law authorizes a public governmental body which is in doubt about the legality of closing a particular meeting, record, or vote to bring a suit at its own expense in the circuit court of the county of its principal place of business to ascertain the propriety of any such action. Mo.Rev.Stat. § 610.027(5). However, a court will not provide declaratory relief unless there is an actual meeting, record or vote at issue. See Fulson v. Kansas City Star Company, 816 S.W.2d 297, 299 (Mo.Ct.App. 1991) (denied declaratory relief sought by board of directors of school district and newspaper because questions were abstract, and did not relate to particular meetings, records, or votes of the school district).

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  • Montana

    In response to the petition, the court may consider whether or not there has been a denial of access; whether the fees for the records are excessive and constitute denial; whether a delay was undue and constitutes denial; and courts can even enter continuing restraining orders directing the governmental body to desist from denying access to the same document or something similar in the future. It is not necessary to file a declaratory judgment action in order to obtain continuing relief. The petition seeking the documents will suffice to permit a pleading for future relief.

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  • Nebraska

    "In any suit filed under this section, the court has jurisdiction to enjoin the public body from withholding records, to order disclosure, and to grant such other equitable relief as may be proper." Neb. Rev. Stat. §84-712.03.

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  • Nevada

    The NPRA specifically provides only for an action addressing permission to inspect or copy the requested record.

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  • New Hampshire

    Any issue within the scope of the Statute and raised by the petition will be addressed, including points a. through d. that follow.

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  • New Jersey

    In a court action, the court will consider all issues raised by the pleadings, including denial of access to the records, the reasonableness of any fees, delays in obtaining records. See Techniscan Corp. v. Passaic Valley Water Comm’n, 218 N.J. Super. 226, 229 (App. Div. 1987). Common law access denials can be considered by the court as well as denials of access under OPRA.  The court may want to hear from a third-party if his/her privacy rights are implicated by the release of the requested records.  In an action before the Government Records Council, the Council may only consider claims arising under OPRA.

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  • North Carolina

    G.S. § 132-9 provides that the courts shall have jurisdiction to issue orders “compelling disclosure” of public records. North Carolina case law makes it clear that the courts can and do consider and rule upon related issues, such as the practice of charging excessive fees in order to discourage requests. Although the public records law makes no specific reference to declaratory judgments, an order compelling disclosure of a particular type or category of document is, as a practical matter, tantamount to a declaratory judgment with respect to all similar documents. Courts issuing orders compelling disclosure frequently include wording to make it clear that future requests for the same or similar categories or documents must also be honored. Additionally, a recent Court of Appeals decision makes clear that in order to have jurisdiction, the party seeking public records must request mediation pursuant to G.S. § 7A-38.3E within 30 days of the responsive pleading. Tillett v. Town of Kill Devil Hills, 809 S.E.2d 145 (2017).

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  • North Dakota

    The court may address violations of N.D.C.C. §§ 44-04-18, 44-04-19, 44-04-19.2, 44-04-20, or 44-04-21.

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  • Oregon

    The court will determine the matter de novo. The burden is on the public body to demonstrate the applicability of the exemption and, where applicable, any interest in nondisclosure. ORS 192.431(1) (formerly ORS 192.490). The court is entitled to view the records in chambers to examine the relevance of the exemptions claimed. Kluge v. Or. State Bar, 172 Or. App. 452, 19 P.3d 938 (2000).

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  • Pennsylvania

    The Law provides that the Commonwealth Court and Courts of Common Pleas shall render decisions that contain findings of fact and conclusions of law based upon the evidence as a whole. 65 Pa. C.S.A. §§ 67.1301(a), 1302(a). The court will independently review the Office of Open Record’s determination and may substitute its own findings of fact for that of the Office of Open Records. Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013).

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  • South Carolina

    Suit is authorized "to enforce the provisions" of the act. Enforcement may relate to denial of the request, applicability of claimed exemptions from disclosure, reasonableness of the fees, format of the copies provided, constraints on access for inspection, the refusal to accept a request because the entity is not a public body, or any other matter within the scope of the act. S.C. Code Ann. § 30-4-100(A).

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  • South Dakota

    Presumably the court will address whatever is necessary to implement open records law, either allowing or denying access. However, there are no procedural or substantive provisions under the open records law regarding enforcement by lawsuit.

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  • Tennessee

    The courts are directed to address the issue of denial of access. T.C.A. § 10-7-505(b). See Quillen v. Crocket, 20 TAM 22-22 (Tenn. Ct. App. May 20, 1995) (Court reversed a dismissal of case in which the respondent failed to provide petitioner with all information in criminal action).

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  • Texas

    A requestor's mandamus suit asks the court for an order compelling a governmental body to make information available for public inspection, as required by the Act. See Tex. Gov't Code § 552.321. A court, therefore, can address any question related to such requested order, which potentially could include whether the governmental body's denial of access was proper, whether the fees charged are excessive or beyond the actual cost of providing such records, or whether the governmental body has failed to "promptly" produce public information for inspection. See Tex. Gov't Code § 552.221. However, one court has limited the authority of a trial court to issue a writ of mandamus pursuant to Section 552.321 to three instances: (1) where a governmental body refuses to request an attorney general's decision on whether information is public; (2) where the governmental body refuses to supply public information; (3) and where a governing body refuses to supply information that the attorney general has determined is public information not excepted from disclosure. Thomas v. Cornyn, 71 S.W.3d 473, 481 (Tex. App.—Austin 2002, no pet.).

    A lawsuit brought under Texas' Uniform Declaratory Judgments Act can address questions involving rights under the Act, including future access. Tex. Civ. Prac. & Rem. Code. §§ 37.001-.011. The governmental body may only raise in the suit exceptions that were raised before the Attorney General. Tex. Gov't Code § 552.326. Declaratory judgments may be reviewed as other orders, judgments, and decrees under Texas law. Tex. Civ. Prac. & Rem. Code § 37.010.

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  • Virginia

    In accordance with a greater weight of the evidence standard, the Court will generally determine whether the public body has violated the Act by either failing to timely respond to the request or improperly withholding records which are not exempted by the Act. See RF&P Corp. v. Little, 247 Va. 309, 440 S.E.2d 908 (1994) (standard of proof). The public body bears the burden to prove its entitlement to an exclusion by a preponderance of the evidence. Va. Code Ann. § 2.2-3713.E.

    "A citizen alleging violation of the rights and privileges afforded by the FOIA and seeking relief by mandamus pursuant to Code § 2.2-3713.A is not required to prove a lack of an adequate remedy at law, nor can the mandamus proceeding be barred on the ground that there may be some other remedy at law available." Cartwright v. Commonwealth Transportation Commissioner, 270 Va. 58, 613 S.E.2d 449 (2005).

    Request for Injunctive Relief: The Court will determine whether the violation was willful, knowing, and substantial. Injunction will not be granted where the procedural violation of the Act is minor and unintended. Shenandoah Publishing House Inc. v. Winchester City Council, 37 Va. Cir. 149 (City of Winchester Cir. Ct. 1994).

    Entitlement to Fees: Where the petitioner has substantially prevailed on the merits of the case, attorneys' fees and reasonable costs shall be awarded, unless special circumstances make such an award unjust. Va. Code Ann. § 2.2-3713(D). See Redinger v. Casteen, 36 Va. Cir. 479 (City of Richmond Cir. Ct. 1995).  An award of attorneys’ fees under the Act may only be imposed against the public body with custody over the public records. See Virginia Educ. Ass'n v. Davison, 294 Va. 109, 121–22, 803 S.E.2d 320, 326 (2017).

    Imposition of Penalties: The Court will determine whether there has been a willful and knowing violation of the Act. If so, a civil penalty will be imposed, as well as possibly a writ of mandamus or injunctive relief. Va. Code Ann. § 2.2-3714. RF&P Corporation v. Little, 247 Va. 309, 440 S.E.2d 908 (1994). Penalties will not be assessed where there is a technical violation of the Act. Mannix v. Washington County Board of Supervisors, 27 Va. Cir. 397 (Washington County Cir. Ct. 1992).

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  • West Virginia

    The FOIA confers on the court "jurisdiction to enjoin the custodian or public body from withholding records and to order the production of any records improperly withheld from the person seeking disclosure." W. Va. Code § 29B-1-5(2). The statute also authorizes the court to enter a declaratory judgment that can establish patterns for future access. During the course of the litigation, depending on the plaintiff’s claims, the court will determine whether there has been a denial of access to records or the fees demanded by the public body are within the scope permitted by the law, whether any claim of exemption is valid, and the scope and application of an exemption if relevant to the requested information.

    The court may choose to review withheld documents in camera (without counsel or parties present) or require the appointment of a special master to accomplish this task. See e.g., Daily Gazette Co. Inc. v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996) (“Gazette II”).

    Other provisions of the Freedom of Information Act may be alleged to have been violated by a public body, such as the limitations on fees charged for copying, time limits for responding to requests, and a determination of whether the petitioner is entitled to an award of attorneys' fees, may also be addressed in a FOIA request for judicial review.

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  • Wisconsin

    The court may rule on whether or not:

    1. the record should or should not be produced for inspection;
    2. the fees charged were proper or excessive;
    3. any delay was excessive.

    There is no specific provision in the Open Records Law for declaratory relief.

    In deciding an Open Records case, the court is not limited to the evidence that was before the records custodian at the time of his or her decision. See Kailin v. Rainwater, 226 Wis. 2d 134, 146, 593 N.W.2d 865, 870 (Wis. Ct. App. 1999) (“Because of the de novo determination of the question of law involved, the trial court may consider all relevant and material information brought to its attention by the parties, even in a trial, regardless of whether that information was before the records custodian.”).

    The court may permit the requesting party to access the record under restrictive orders for the purpose of arguing the case if the court deems that appropriate. Wis. Stat. § 19.37(1)(a). Either the grant or denial of access is not an abuse of discretion. Milwaukee Journal v. Call, 153 Wis. 2d 313, 450 N.W.2d 515 (Wis. Ct. App. 1989); Appleton Post-Crescent v. Janssen, 149 Wis. 2d 294, 441 N.W.2d 255 (Wis. Ct. App. 1989). Vaughn indices have not been required or used in Wisconsin practice.

    The subject of a record is not a necessary party to enforcement proceedings, Wis. State Journal v. Univ. of Wis.-Platteville, 160 Wis. 2d 31, 465 N.W.2d 266 (Wis. Ct. App. 1990), but ordinarily has a right to intervene, Armada Broad., Inc. v. Stirn, 183 Wis. 2d 463, 516 N.W.2d 357 (1994).

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  • Wyoming

    The court will address all issues relating to the Public Records Act, including an agency’s failure to comply with an order from the Public Records Ombudsman. See Wyo. Stat. § 16-4-203(f)(i).

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