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5. Pleading format

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  • Alabama

    The early records access cases in Alabama proceeded on petition for writ of mandamus. See, e.g., Brewer v. Watson [Brewer II], 65 Ala. 88, 96 (1880) (pre-Public Records Law case; "mandamus will lie to compel inspection" of public records); Holcombe v. State ex rel. Chandler, 240 Ala. 590, 200 So. 739 (1941) ("the publisher of a newspaper has such a public interest as will entitle him or his duly accredited representatives to a right of inspection of public records, and on denial the aid of a court by writ of mandamus to compel such public official to allow a reasonable inspection of public records in his charge, in order that the publisher may disseminate correct information therefrom to the public interest thus served"). As recently as 1973, the Alabama Supreme Court was still declaring that "[m]andamus is the proper remedy to compel a public official having custody of public writings to permit a citizen to inspect such public writings." State ex re. Kernells v. Ezell, 291 Ala. 440, 282 So. 2d 266 (1973); see also Walsh v. Barnes, 541 So. 2d 33, 34 (Ala. Civ. App. 1989) (grant of petition for writ of mandamus for access to public records affirmed).

    A petition for injunctive relief coupled with a prayer for declaratory judgment, is the typical pleading in the most recent cases. Since mandamus is permitted only when no other relief is available, the recent acceptance by trial and appellate courts of actions for injunctive relief in public records cases suggests that mandamus may no longer be appropriate. See Accident Info. Servs. of Ala. Inc. v. Hoover, CV 92-9619 (Cir. Ct. of Jefferson Co., Ala., Jan. 11, 1993) (defendant moved to dismiss petition for writ of mandamus because injunctive relief would be adequate remedy). The petition for injunctive relief should ask the court to enjoin the defendant from denying the plaintiff access to the requested records.

    The Supreme Court of Alabama has declared that "a motion to intervene is the procedurally correct means to seek the opening of a sealed court file." Holland v. Eads, 614 So. 2d 1012, 1014 (Ala. 1993). The Court has also made clear that the trial judge must do a complete in camera review of the withheld records in all public records cases and make "individualized determinations as to whether the [requested records] are due to be disclosed under the standards set out in Stone [404 So. 2d 678], Chambers [552 So. 2d 854], and [Muse, 638 So. 2d 853]." Birmingham News Co. v. Muse [Muse II, 1st appeal], 638 So. 2d 853, 858 (Ala. 1994).

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  • Alaska

    Pleadings must be in the normal format prescribed by court rules. While the regulations governing public records requests to state agencies use traditional language of administrative agency law, including the fact that a denial "is the final agency decision" and can be appealed to the superior court, so that one might argue the normal 30-day period for bringing an appeal from a final agency action would be applicable, support for argument to the contrary may be found in the fact that it may be sought without exhausting administrative remedies at all pursuant to AS 40.25.125.

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  • Arizona

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

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  • Arkansas

    The normal rules of pleading that govern civil cases presumably apply in FOIA suits. See Rule 8, Ark. R. Civ. P. Arkansas is a “fact pleading” jurisdiction with requirements more stringent than those applicable in federal court. See Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981) (explaining Ark. R. Civ. P. 8(a)). More informal pleading may be permissible in FOIA cases, however, because the act refers to a “petition” that is to be filed in an “appeal” to the appropriate circuit court. Ark. Code Ann. § 25-19-107(a) & (b). There being no reported cases on this point, a FOIA plaintiff should follow the general pleading rules. Cf. Dauer v. Ponder, 274 Ark. 166, 623 S.W.2d 3 (1981).

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  • California

    The CPRA provides that one may seek injunctive or declaratory relief or a writ of mandate to enforce his or her right to inspect or to receive a copy of any public record. Cal. Gov't Code § 6258. In California, the pleading format for injunctive and declaratory relief is a complaint. The proper pleading form for a writ of mandate is a verified petition. Because one section of the CPRA refers to the procedure as a "verified petition," the initial pleadings, whether a complaint or petition, should be verified. See Cal. Gov't Code § 6259.

    The choice of procedures to use may depend upon local court rules and practices in the county where the action is filed. The declaratory relief procedure enables the court to enter a prospective order governing future rights of access to the records. The petition procedure offers the advantage that the hearing procedure can frequently be expedited.

    Where the petition procedure is used, a party will typically seek an alternative writ directing disclosure of the public records or requiring the agency to appear at a hearing to show cause why a peremptory writ directing disclosure should not issue. The court, in its discretion, will issue the alternative writ and order to show cause to the public agency, which may be made returnable within a few days, but usually not longer than the general notice period for law and motion matters. The CPRA provides that the court set the time for responsive pleadings and hearings "with the object of securing a decision as to such matters at the earliest possible time." Cal. Gov't Code § 6258.

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  • Colorado

    See C.R.C.P. 121(c)§ 1-20.

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  • Connecticut

    Pleading format is that of a regular civil action.

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  • Delaware

    General rules of pleading are typically followed. Where a citizen's action, seeking a writ of mandamus to compel county officials to produce various documents that were requested in the context of another lawsuit relating to alleged campaign improprieties, was brought under Delaware's FOIA, the court found that as to certain requests, the record was unclear as to whether mandamus was the only available relief obtaining for those documents. Mell v. New Castle County, 835 A.2d 141 (Del. Super. 2003).

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  • District of Columbia

    The Superior Court rules apply.

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  • Georgia

    Suits to enforce the Act are typically initiated by filing with the court a verified complaint against the custodian of the records, specifying and attaching the request, which now must be in writing, and the custodian's response (or lack thereof), and explaining the alleged violation of the Act and a description of the relief sought. Where the custodian has refused to allow access, the complaint typically seeks issuance of an injunction requiring the custodian to afford access now, and in the future, and is accompanied by a motion and supporting memorandum to the same effect. Where time is an issue, the motion should request entry of an immediate injunction and request that the court hear the matter on an emergency basis.

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  • Hawaii

    See Haw. R. Civ. P.; Haw. R. Cir. Ct.

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  • Idaho

    The only particular pleading format requirement is that the action be styled as a “petition.” Idaho Code § 74-115(1). Otherwise, the pleading should mirror a complaint and contain the basic facts of the request, the denial, the agency involved and other facts underlying the claim.

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  • Illinois

    There is no particular format prescribed by the statute; the pleading format should simply take the form of a civil complaint filed in that court. See Illinois Code of Civil Procedure, 735 ILCS 5/1-101 to 22-105, and allege a request, an improper denial.  The prayer for relief should include a request for attorneys’ fees and costs.  If the requester believes that the public body acted in bad faith in denying access to the records, a request for civil penalties may be added.  5 ILCS 140/11.

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  • Indiana

    Pleading forms are governed by Rule 10 of the Indiana Rules of Trial Procedure. Pleading captions must include the names of the parties, the title of the action, the court and case number. The pleadings must be signed, and copies served on all other parties or their counsel.

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  • Iowa

    Pleading format is governed by the Iowa Rules of Civil Procedure. See e.g., Iowa R. Civ. P. 1.401-1.423.

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  • Kansas

    No particular format is specified; the action is a civil suit governed by K.S.A. Chapter 60.

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  • Kentucky

    Kentucky’s Open Records Act does not provide for any specific pleading format. Pleading formats in Kentucky’s Circuit Courts are governed generally by the Kentucky Rules of Civil Procedure and more specifically by local rules of the various Circuits.

    To receive priority on the docket the pleading should alert the Circuit Court that the lawsuit concerns the Open Records Act. See Ky. Rev. Stat. 61.882(4).

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  • Louisiana

    Not specified. Cases usually are brought as requests for a writ of mandamus directed to the custodian of the requested records.

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  • Maine

    The pleading is in the form of a statutory appeal – a petition for review under M. R. Civ. P. 80B (local government) or 80C (state government) pursuant to 1 M.R.S.A. § 409(1). The appeal is from the governmental agency's administrative action denying access to a record. The appeal should include a concise statement of the grounds on which the plaintiff contends that relief should be awarded, and the specific relief sought.  A pleading typically describes the records sought (and attaches the request and the response), applicable law requiring disclosure, and the agency’s response.  “[T]he court has discretion to determine the process necessary for the resolution of disputed facts, giving due consideration to the efficacy, costs, and time required for each method of presentation of evidence.”  Dubois v. Dept. of Envtl. Prot., 2017 ME 224 ¶ 10, 174 A.3d 314, 317 (Me. 2017).

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  • Maryland

    The complainant files a complaint with the circuit court and the defendant files an answer or otherwise pleads to the complaint within thirty days after service of the complaint. § 4-362(a) and (b). The defendant may submit a memorandum in support of its decision to deny access. § 4-362(b)(2)(ii).

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  • Massachusetts

    Complaint. Massachusetts has in substance adopted the Federal Rules of Civil Procedure.

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  • Michigan

    Public records are prima facie disclosable to any person who makes an adequate request. Booth Newspapers Inc. v. Regents of the University of Michigan, 93 Mich. App. 100, 286 N.W.2d 55, 59 n.9 (1979). The complainant need not allege that the materials sought are not subject to statutory exemption. Exemption is a defense in actions brought under the FOIA. Booth Newspapers Inc. v. Regents of the University of Michigan, 286 N.W.2d at 60. The application of exemptions requiring legal determinations are reviewed de novo, while the application of exemptions requiring determinations of a discretionary nature are reviewed under a clearly erroneous standard. Federated Publications Inc. v. City of Lansing, 467 Mich. 98, 649 N.W.2d 383 (2002) abrogated on other grounds by Herald Co. Inc. v. Eastern Michigan University Bd. of Regents, 475 Mich. 463 (2006).  The burden is on the public body to sustain denial of the request, Mich. Comp. Laws Ann. § 15.240(4), but in applying the public interest balancing test, the circuit court should consider the fact that records have been made exemptible under § 15.243(1)(s). Federated Publications Inc. v. City of Lansing, supra, 649 N.W.2d at 385.

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  • Montana

    A simple petition for relief setting forth the facts supporting the denial of access, as well as a description of the document requested and the relief sought, is sufficient to bring the matter before the district court. See Board of Trustees v. Board of County Commissioners, 186 Mont. 148, 606 P.2d 1069 (1980).

    The special writs of mandamus and prohibition are inappropriate. A simple petition to the court alleging the violations is all that is required. See Goyen v. City of Troy, 276 Mont. 213, 915 P.2d 824 (1996).

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  • Nebraska

    No statutory provision regarding pleading of public record violation. See Neb. Rev. Stat. §25-2156 to 25-2169 (Reissue 2016) for general mandamus requirements.

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  • Nevada

    Either a suit filed under the Nevada Rules of Civil Procedure or a petition for a writ of mandate under Chapter 34 of Nevada Revised Statutes may be appropriate.

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  • New Hampshire

    The petition will be deemed sufficient "if it states facts constituting a violation of this chapter." RSA 91-A:7

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  • New Jersey

    A suit to obtain access to records is styled with the party seeking access as the plaintiff and the public agency and/or the record custodian as the defendant. A complaint to the Government Records Council merely must be a writing alleging that a custodian has improperly denied access. N.J.S.A. 47:1A-7(d).

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  • New Mexico

    Normal pleading format.

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  • North Carolina

    G.S. § 132-9 does not prescribe any particular form of pleadings, but most public records cases are commenced by the filing of a petition.

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  • North Dakota

    The complaint must be accompanied by a dated, written request for the requested record. N.D.C.C. § 44-04-21.2(1).

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  • Ohio

    The party bringing suit must seek a writ of mandamus. Doing so requires suing in the name of the state of Ohio, i.e., "State of Ohio, ex rel. John Doe," or "State ex rel. John Doe." Ohio Rev. Code § 2731.04.

    The party bringing suit is called the "relator," and the parties being sued are called "respondents."

    Also, in addition to pleading the basic circumstances demonstrating that the party suing is "aggrieved" by the public office's failure to comply with the public records statute, the party bringing suit should plead the following elements: (1) the party made a demand upon the public office for public records, which the public office has actually or effectively denied, (2) the party has a clear legal right to the relief sought from the public office and the public office has a clear legal duty to provide the relief, (3) Ohio Rev. Code § 149.43(C) authorizes the court to issue a writ of mandamus, and (4) there is no adequate alternative remedy in the ordinary course of the law. But see State ex rel. Lucas County Board of Commissioners v. Ohio Environmental Protection Agency, 88 Ohio St. 3d 166, 724 N.E.2d 411 (2000) ("Mandamus is the proper remedy to compel compliance with the Public Records Act, and persons requesting records under R.C. 149.43(C) need not establish the lack of an alternative, adequate legal remedy in order to be entitled to the writ"). The complaint should describe the records sought specifically.

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  • Oklahoma

    A petition should allege that a record is in the hands of a public officer or office, and that official has failed to make the record available for inspection. 51 O.S. § 24A.17.

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  • Oregon

    The proceedings are either for injunctive relief or declaratory relief in the circuit court, the trial court of general jurisdiction. See ORS 192.411 and 192.415. The Oregon Uniform Trial Court Rules, as supplemented by local court rules, dictate the nature and form of the pleadings to be used under the Oregon Rules of Civil Procedure. In order to make certain that the litigation is given the priority permitted by statute, the complaint should be captioned to indicate that it is litigation under the Public Records Law.

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  • Rhode Island

    The pleading is in the form of a civil complaint against the agency alleging that the agency denied access, the records sought are public records, and plaintiff followed all proper procedures in making the request, with a prayer for injunctive or declaratory relief.  See R.I. Gen. Laws § 38-2-8(b).

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  • South Carolina

    Suit is subject to the South Carolina Rules of Civil Procedure and requires the filing of a summons and a complaint with allegations of fact and a request for relief.

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  • South Dakota

    A simple pleading alleging failure to comply with open records law might suffice. Certainly the usual remedies such as mandamus, prohibition, injunction or declaratory judgment action would seem appropriate, too. However, mandamus and prohibition do not employ a summons, making the “summons” directive problematic. SDCL §1-27-37.

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  • Tennessee

    The Act denominates a pleading to obtain access to records as a petition. The petitioner should allege Tennessee citizenship. T.C.A. § 10-7-505(a). After the individual has filed a petition with the proper court, that court shall "issue an order requiring the defendant or respondent party or parties to immediately appear to show cause . . . why the petition should not be granted." T.C.A. § 10-7-505(b). In the interest of expeditious hearings, a formal written response to the petition is not required, and the generally applicable periods of filing such responses do not apply. T.C.A. § 10-7-505(b). The party in charge of keeping the records bears the burden of proving, by a preponderance of the evidence, that the records sought are exempted from the Act or that there is some other justification for non-disclosure. T.C.A. § 10-7-505(c).

    Individuals serving as records custodian may be named as defendants in the lawsuit. Kersey v. Jones, 2007 Tenn. App. LEXIS 402 (Tenn. Ct. App. July 23, 2007).

    The petition must allege that the custodian refused the requestor’s request to see or have copies of the records. Kersey v. Bratcher, 253 S.W.3d 625 (Tenn. Ct. App. 2007).

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  • Texas

    Pleadings for an open records mandamus or other action are no different than other civil pleadings and must comport with requirements of the Texas Rules of Civil Procedure. Proceedings brought under the Act are brought, heard, and determined in the same manner as civil actions generally. Cornyn v. City of Garland, 994 S.W.2d 258, 264 (Tex. App.—Austin 1999, no pet.).

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  • Utah

    The petition is a complaint, the format and the contents of which are governed by the Utah Rules of Civil Procedure. See Utah Code § 63G-2-404(2).

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  • Vermont

    There is no prescribed format for pleadings — a simple complaint will do — in the appeal to superior court from the agency head.

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  • Virginia

    No special pleading format is required that would not be used in a petition for mandamus or for injunctive relief. The petition must be supported by an affidavit showing good cause.  Va. Code Ann. § 2.2-3713.A.

    A form petition for injunctive or mandamus relief under the Act in a General District Court [Form DC-95] is available on the Supreme Court of Virginia’s website. See http://www.courts.state.va.us/forms/district/dc495.pdf.

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  • Washington

    Not specified. The usual rules for civil litigation apply.

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  • West Virginia

    The complaint need only contain a “a short and plain statement of the claim showing that the pleader is entitled to relief, and a demand for judgment for the relief the FOIA plaintiff seeks. Relief in the alternative or of several types may be demanded. Every such pleading shall be accompanied by a completed civil case information statement in the form prescribed by the Supreme Court of Appeals. W. Va. R. Civ. P. 8.

    If the complaint seeks injunctive relief, it must be verified. The complaint must describe the contents of the FOIA request and state when and to whom the request was made. The reasons (if any) given for the denial of the FOIA request must be set forth. It is advisable to invoke the FOIA in the complaint, as well as the state constitution and common law, if applicable, as the legal basis for the claim. If either the request or the denial is in writing, a copy should be attached to the complaint as an exhibit. Moreover, it may be advisable to attach other documents including letters and email communications that reveal a course of conduct by a public body to support the complaint allegation that it has violated the FOIA. It is important to clearly identify the information to which access was denied.

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  • Wisconsin

    The requester may proceed by a petition for alternative writ of mandamus or by summons and complaint, often accompanied by a motion to shorten time for answer since the records custodian has already considered and denied access to the requested records and may not add to the justifications set forth in the denial letter. See Wis. Stat. § 801.02(5); Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 427, 279 N.W.2d 417 (1979).

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  • Wyoming

    The court has directed that the format should follow the Wyoming Rules of Civil Procedure. Wyo. Stat. § 16-4-203(g) (1977, Rev. 1991); See, e.g., Wyo. R. Civ. P. Section III ("Pleadings and Motions").

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