Always keep in mind that the object of a suit over violations of open meetings or records is primarily intended to allow you access to the meeting or record, and to obtain information for use in gathering and reporting news, rather than simply to win a victory in a lawsuit or otherwise. As a result, you should keep in mind your goal of getting the information, and constantly be aware of other sources of obtaining that, formal or informal, while you or your lawyers pursue lawsuits or other similar remedies.
Although the Bagley-Keene Act does not require making a written demand on the state body before filing an action in court, one way to resolve an alleged violation may be to initiate correspondence with the state body, urging them to correct the alleged violation. Section 11130.3 states, "Nothing in this section shall be construed to prevent a state body from curing or correcting an action challenged pursuant to this section." Cal. Gov't Code § 11130.3.
A party may appeal the decision of the Attorney General by bringing a judicial action within 30 days of the Attorney General's opinion. Ky. Rev. Stat. 61.846(4)(a). However, a party may not simultaneously seek the Attorney General's review of a complaint while pursuing an action in Circuit Court. See 93-OMD-81 ("a person cannot seek relief from this office under Ky. Rev. Stat. 61.846 when the same and additional questions are currently pending before a circuit court").
Any person may file a complaint with the state Attorney General or the district attorney, each of whom must institute enforcement proceedings unless written reasons are given as to why the suit should not be filed. La. Rev. Stat. Ann. § 42:25.
Generally, the Act’s enforcement provisions do not “affect or prevent the use of any other available remedies.” § 3-401(a)(4). Injunctive, declaratory relief, and any other appropriate relief are available from the courts. § 3-401(d). Moreover, a petitioner is not required to file a complaint with the OMCB before filing suit. § 3-401(e).
The court may award declaratory relief, an injunction, a writ of prohibition or mandamus, costs, disbursements, and reasonable attorney’s fees against the entity. N.D.C.C. § 44-04-21.2(1). For an intentional or knowing violation, the court may also award damages in an amount equal to one thousand dollars or actual damages caused by the violation, whichever is greater. N.D.C.C. § 44-04-21.2(1).
Any action that is a product of a violation of N.D.C.C. §§ 44-04-19, 44-04-20, or 44-04-21 is voidable by a court in a civil action. N.D.C.C. § 44-04-21.2(2).
The remedies provided are not available if a violation has been corrected before a civil action is filed and no person has been prejudiced or harmed by the delay. N.D.C.C. § 44-04-21.2(3). An interested person or entity may not file a civil action seeking attorney’s fees or damages, or both, until at least three working days after providing notice of the alleged violation to the chief administrative officer for the public entity. N.D.C.C. § 44-04-21.2(3). This provision does not apply if the attorney general has found under N.D.C.C. § 44-04-21.1, on a prior occasion, that the public entity has violated the open records or meetings laws. N.D.C.C. § 44-04-21.2(3).
The best subsequent measure available is to sue in mandamus for the creation of minutes of meetings that were unlawfully closed. State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996); State ex rel. The Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990).
If possible to do in advance, it is always advisable to request access to a meeting to which one has reason to believe he will be excluded. Once denial is given, then the person can proceed to district court.
In practice, interested persons — e.g., news reporters — try to make their concerns known to the public body as loudly and as early as possible, in the hopes that logic, or more likely political acumen, will influence the body’s decision not to go into a questionably legitimate executive session. The reality is that almost all such situations are likely to have already occurred, especially where local boards typically meet in the evening hours, before there is even an opportunity to pursue judicial relief.