5. Waiting for a response

Alabama has no provision for administratively appealing denials of access to public records.

The agency head or his or her designee must issue a written determination stating which of the records that are subject to the appeal will be disclosed and which will not, "as soon as practicable but not later than the tenth working day after the close of the record on appeal." 2 AAC 96.345(a). The agency head may extend the 10-working-day period for a period not to exceed 30 working days upon written request from the requester, or by sending a written request to the requester within the basic 10-working-day period. 2 AAC 96.345(b). Any determination denying your appeal must be in writing, must state the specific statute, regulation, or court decision, which is the basis for the denial and must state briefly the reason for the denial. 2 AAC 96.350. The denial must further inform you that you have a right to obtain judicial review of the denial by commencing an action in superior court. Id.

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

There is no administrative appeal process from the denial of a request.

Not applicable.

The FOIC is required to hear and decide the appeal within one year. Conn. Gen. Stat. §1-206(b). (This statute was amended in 1986 to increase this time period from 30 days to one year in response to the Supreme Court’s decision in Town of North Haven v. FOIC, 198 Conn. 498, 503 A.2d 1161 (1986) (FOIC must hear and decide appeal within statutory time limitations)).

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

The agency has five days (not including weekends or holidays) to file a response to the appeal after receiving its copy of the appeal. 1 D.C. Mun. Regs. tit. 1 § 412.5. The Mayor has 10 days, not including weekends and holidays, in which to make a written determination of the outcome of the appeal. D.C. Code Ann. § 2-537(a); 1 D.C. Mun. Regs. tit. 1 § 412.7.

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

Before accepting an appeal, the Director will initially assess whether the appeal complies with the requirements of Haw. Code R. § 3-73-12. Haw. Code R. § 2-73-13. Once the Director has accepted an appeal, it has five days to either:

Notify the appellant that the appeal will not be heard and specify the reasons why the appeal is not warranted or the additional information that the OIP requires for the appeal to proceed;

Issue a notice of appeal to the appellant and the agency whose action is being appealed.

Id. The OIP’s notice of appeal must include a description of the general procedures that the OIP will follow in resolving the appeal and set out the responsibilities of each of the parties in responding to the appeal. Id.

Within ten days of receiving a notice of appeal, the agency must provide a written response to the OIP including the following information:

A concise statement of the factual background;

A list identifying or describing the records being withheld;

The agency’s explanation of its position, including its justification for denying access to the records substantiated by citations to specific statutory sections and other law that support its position;

Any evidence necessary to support application of any claimed exception, exemption, or privilege; and

Contact information for the agency officer or employee authorized to respond and make representations on behalf of the agency with respect to the appeal.

Id. § 2-73-14.

Not applicable.

The time frames for responding to correspondences pertaining to a request for review before the Public Access Counselor are set forth in 5 ILCS 140/9.5(c), (d), (f).

Because there is no administrative appeals process, there is no appeal letter to which a response would be required.

Consult the local court administrator for an estimate of the likely hearing date.

The Attorney General allows the public agency an opportunity to submit a written response to the appeal, which must also be sent to the requester. See 40 KAR 1:030 § 2. The public agency is required to carry the burden of proving that its actions are justified under the law. See Ky. Rev. Stat. 61.880(2)(c).

The Attorney General has twenty (20) days from the receipt of the appeal, excluding holidays and weekends, to issue a written decision stating whether the agency violated the Open Records Act. See Ky. Rev. Stat. 61.880(2)(a). The Attorney General may extend this period by an additional 30 business days if additional documentation or extensive research is needed or if there is an "unmanageable increase" in appeals to review. See Ky. Rev. Stat. 61.880(2)(b). The Attorney General is required to send copies of the decision to the agency and the requester. See Ky. Rev. Stat. 61.880(2)(c).

The Act does not provide for administrative appeal.

The Public Access Ombudsman must issue a final determination within 90 calendar days after receiving a request for dispute resolution, unless the parties mutually agree to extend the deadline. GP § 4-1B-04(b).

The PIA Compliance Board must issue a written decision within 120 days, at latest. GP § 4-1A-07(c)(1). Once the Board receives a complaint, it must promptly send the complaint to the relevant custodian and request a response, which is due within 30 calendar days GP § 4-1A-06(b)(1); COMAR 14.02.02.03. If the custodian does not respond within 30 days, the Board will proceed to rule on the facts presented in the complaint. GP § 4-1A-06(c); COMAR ​​14.02.02.05. The Board may also, in its discretion, allow the complainant to submit a reply, which must be filed within 15 days of receiving the response. COMAR 14.02.02.04 and 14.02.03.04. If the information in the complaint, response, and reply is sufficient for making a determination, the Board will issue a written opinion within 30 days after receiving the custodian’s response. GP § 4-1A-07(a); COMAR 14.02.07.02. If that information is insufficient, the Board may convene an informal conference and then issue its opinion within 30 days following the conference. GP § 4-1A-07(b). If the Board is unable to issue an opinion within these specified time periods, the Board must state in writing the reason for its inability to issue a timely opinion and then issue an opinion as soon as possible but no later than 120 days after the filing of the complaint. GP § 4-1A-07(c)(1).

The regulations state that the Supervisor shall act and render a written opinion "within a reasonable time," 950 CMR 32.08(3), and the public records office normally responds reasonably promptly. An appellant would be wise to check on the status of the appeal periodically, because the Supervisor may close an appeal where there has been no communication from the requester for a six-month period.  Id.

Not specifically addressed.

With respect to requests for a Commissioner’s Opinion, if the commissioner decides not to issue an opinion, he or she will provide a notice of that decision within 5 business days of the receipt of the request. Minn. Stat. § 13.072, subd. 1(c). If the commissioner decides to issue an opinion, such issuance must be made within 20 days of receipt of the request. Minn. Stat. § 13.072, subd. 1(c). The commissioner may "for good cause" extend this deadline for one additional 30-day period. Minn. Stat. § 13.072, subd. 1(d).
In the case of an administrative complaint, within twenty business days after the complaint is filed (or the respondent’s time to file a response, including any exceptions, has expired), the administrative law judge will either dismiss the claim, or schedule a hearing. Minn. Stat. § 13.072, subd. 3. The hearing must be held within 30 business days after the parties are notified that a hearing will be held. Minn. Stat. § 13.072, subd. 4(a).

Public body has 14 days after receiving request from Ethics Commission. § 25-61-13.

N/A.

There are no administrative appeal requirements.

Not addressed.

There is no separate or specific statutory or case law guidance.

A response to an appeal is due within 10 business days of its receipt, and shall either fully explain in writing the reasons for further denial, or provide access to the record sought. N.Y. Pub. Off. Law § 89(4)(a). Failure to issue a determination upon appeal within the required ten business day period constitutes a denial of access entitling the requester to bring an Article 78 proceeding in New York State Supreme Court. Public Officers Law § 89(4)(b). FOIL’s 2005 amendments should render unnecessary reliance on a previous line of cases addressing constructive denials of appeals. Floyd v. McGuire, 87 A.D.2d 388, 390, 452 N.Y.S.2d 416 (lst Dep’t 1982), appeal dismissed, 57 N.Y.2d 774 (1982) (“the time limitation should be read as directory rather than mandatory, and the consequences of failure by the agency to comply [is not mandatory disclosure of records but rather] . . . is that the applicant will be deemed to have exhausted his administrative remedies and will be entitled to seek his judicial remedy”). Accord Vent v. Bates, 89 A.D.2d 567, 452 N.Y.S.2d 98 (2d Dep’t 1982); Professional Standards Review of America v. New York State Department of Health, 193 A.D.2d 937 (3d Dep’t 1993) (granting access to contract bid submitted by private organization and to factual and statistical data used by agency in making its final determination to award the contract); New York Ass’n of Homes and Services for the Aging Inc. v. Axelrod, No. 7414-85 (Sup. Ct., Albany Cty., Aug. 28, 1985).

No. Denial of access on appeal affords the requester the right to seek judicial review. N.Y. Pub. Off. Law § 89(4)(b). See also Reese v. Mahoney, (Sup. Ct., Erie Cty., June 28, 1984) (rejecting a Cty.’s multi-tiered appeal procedure which was prescribed by local law as an addition to the appeal process of FOIL).

Is exhaustion of administrative remedies required?

Failure to pursue an administrative appeal from an initial denial of records will generally preclude subsequent judicial relief for failure to exhaust administrative remedies. Malerba v. Kelly, 211 A.D.2d 479, 621 N.Y.S.2d 318 (1st Dep’t 1995) (holding proceeding moot insofar as it seeks documents already produced and dismissible as to other documents for failure to exhaust administrative remedies, but permitting administrative appeal due to agency’s laxity in responding to petitioner’s request); Reubens v. Murray, 194 A.D.2d 492, 599 N.Y.S.2d 580 (1st Dep’t 1993) (failure to appeal the denial within 30 days constitutes failure to exhaust administrative remedies and precludes judicial relief); Newton v. Police Dep’t City of New York, 183 A.D.2d 621, 585 N.Y.S.2d 5 (1st Dep’t 1992); City of Kingston v. Surles, 180 A.D.2d 69, 582 N.Y.S.2d 844 (3d Dep’t 1992); Murphy v. State Educ. Dep’t, 148 A.D.2d 160, 543 N.Y.S.2d 70, (1st Dep’t 1989); Kurland v. McLaughlin, 122 A.D.2d 947, 505 N.Y.S.2d 967 (2d Dep’t 1986); Town of Hempstead v. Commissioner, 119 A.D.2d 582, 500 N.Y.S.2d 751 (2d Dep’t 1986); Johnson Newspaper Corp. v. Stainkamp, 94 A.D.2d 825, 463 N.Y.S.2d 122 (3d Dep’t 1983), aff’d 61 N.Y.2d 958 (1984); Moussa v. State, 91 A.D.2d 863, 458 N.Y.S.2d 377 (4th Dep’t 1982); Matter of Hightower, (N.Y.L.J., Sup. Ct., November 23, 1993) (holding that an Article 78 proceeding to compel disclosure may not be maintained where there has been a failure to exhaust administrative remedies). See also Irving Bank Corp. v. Considine, 138 Misc.2d 849, 525 N.Y.S.2d 770 (Sup. Ct. 1988) (Public Officers Law § 89(5) sets forth a very detailed schedule within which applications for confidential treatment of commercial trade information and secrets and appeals therefrom must be made, and failure to follow this schedule can result in failure to exhaust administrative remedies).

Failure to exhaust administrative remedies is not always required. Barrett v. Morgenthau, 74 N.Y.2d 907, 548 N.E.2d 1300 (1989) (DA failed to demonstrate establishment of appeals procedure and failed to advise requester of availability of administrative appeal, therefore, he cannot complain of failure to exhaust administrative remedies); New York News Inc. v. Grinker, 142 Misc.2d 325, 537 N.Y.S.2d 770, (Sup. Ct. 1989) (failure to make formal application or to appeal agency’s first decision was excused where agency’s public statements demonstrated that a request would be futile); Pasik v. State Bd. of Law Examiners, 114 Misc.2d 397, 451 N.Y.S.2d 570 (Sup. Ct. 1982), modified on other grounds, 102 A.D.2d 395, 478 N.Y.S.2d 270 (lst Dep’t 1984) (where agency claimed it was totally exempt from FOIL, exhaustion of administrative remedies doctrine was no bar); Couch and Howard, P.C. v. Gridley, No. 41724 (Sup. Ct., Otsego Cty., Jan. 25, 1985) (where request was initially directed to city manager, court held that he must be presumed head of city and therefore no administrative appeal need be taken prior to judicial review); In Re Julie Purcell, 77 A.D.3d 1328, 909 N.Y.S.2d 238 (4th Dep’t 2010) (respondent properly exhausted her administrative remedies when she sent a letter objecting to the denial of her FOIL request and asking that the letter be considered an appeal).

There is no provision for administrative appeal, by letter or otherwise.

In preparing an opinion, the attorney general has discretion to obtain and review a recording made under N.D.C.C. § 44-04-19.2. N.D.C.C. § 44-04-21.1.The attorney general may also request and obtain information claimed to be exempt or confidential for the purpose of determining whether the information is exempt or confidential. N.D.C.C. § 44-04-21.1. The attorney general must issue to the public entity involved an opinion on the alleged violation unless the request is withdrawn by the person requesting the opinion or a civil action has been filed involving the possible violation. N.D.C.C. § 44-04-21.1.

Not applicable.

Typically, the Attorney General or district attorney has seven days in which to grant or deny the petition in whole or in part. ORS 192.418. However with respect to health regulatory boards, the Attorney General’s office takes the position that the statutes allow 15 days to respond where an affected licensee has the right to respond to the petition. See Attorney General’s Manual, § I.F.1.c.

After an appeal is filed, the Office of Open Records will send an acknowledgment letter recognizing receipt of the appeal and will assign an appeals officer to review the appeal. 65 Pa. C.S.A. § 67.1101(a)(2). The appeals officer is required to make a “final determination” that must be mailed to the requester and agency “within 30 days of receipt of the appeal.” Id. § 67.1101(b)(1). If the appeals officer fails to do so, “the appeal is deemed denied.” Id. § 67.1101(b)(2).

The appeals officer is required to do the following:

1. Set a schedule for the requester and open records officer to submit documents in support of their positions;
2. Review all information filed relating to the request;
3. Consult with agency counsel as appropriate;
4. Issue a final determination.

See id. § 67.1102(a).

If a person other than an agency or requester has a direct interest in the appeal, that person may, “within 15 days following receipt of actual knowledge of the appeal but no later than the date the appeals officer issues an order, file a written request to provide information or to appeal before the appeals officer or to file information in support of the requester’s or agency’s position.” Id. § 67.1101(c)(1). The appeals officer may grant the request if no hearing has been held, no order has been issued, and the appeals officer believes the information will be “probative.” Id. § 67.1101(c)(2). Copies of the written request shall be sent to the requester and agency. Id. § 67.1101(c)(3).

Prior to issuing the final determination, the appeals officer may, but is not required to, conduct a hearing. Id. § 67.1102(a)(2). The decision to hold a hearing “is not appealable.” Id. If a hearing is held, Pennsylvania rules governing administrative practice and procedure (1 Pa. Code Pt. II) shall apply; if a hearing is not held, those rules do not apply “except to the extent that the agency has adopted these chapters in its regulations or rules under this subsection.” Id. § 67.1102(b)(1)-(2).

The appeals officer may admit into evidence testimony, evidence and documents that the appeals officer believes is reasonably probative and relevant, and may limit the nature and extent of evidence found to be cumulative. Id. § 67.1102(a)(2). The Office of Open Records, a judicial agency, the Attorney General, Auditor General, State Treasurer or district attorney may adopt procedures relating to appeals. Id. § 67.1102(b). The Office of Open Records has not adopted formal regulations implementing the Law. The Office of Open Records maintains procedural guidelines on its website. https://www.openrecords.pa.gov/Appeals/ProceduralGuidelines.cfm.

A final determination by the chief administrative officer must be made within ten (10) business days after submission of a review petition. R.I. Gen. Laws §  38-2-8(a).

Not applicable in South Carolina.

No time limit in which Office of Hearing Examiners must hold hearing of decide case.

The chief administrative officer must make a determination on the appeal within five business days of receiving the notice of appeal or, if a business confidentiality claim is at issue, within twelve business days of receiving the notice of appeal. See Utah Code § 63G-2-401(5). If no determination is made within the specified time period, the failure to make a determination shall be considered an order denying the appeal. See id. In Young v. Salt Lake County, 52 P.3d 1240, 1243 (Utah 2002), the Utah Supreme Court concluded that the chief administrative officer’s belated response to an appeal was the determinative date in evaluating the timeliness of an appeal. The court held that the chief administrative officer’s eventual response to the appeal enabled the petitioner to file a petition for judicial review within 30 days from the response. If the chief administrative officer had not responded at all, however, the petitioner’s appeal would have been deemed untimely, as it was outside the 35-day period provided by Utah Code section 63G-2-404(2)(b)(ii). See id. at 1244.

If the head of the agency fails to issue a decision on the appeal within five business days, it is deemed a denial.  1 V.S.A. § 318(a)(2).

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