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6. Subsequent remedies

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  • Alaska

    A requester may obtain judicial review of the denial of a request for reconsideration or appeal to the agency head, by appealing the denial to the superior court. 2 AAC 96.350, AS 40.25.124. The regulations governing state agencies specify that no appeal bond can be imposed in connection with such an appeal to the superior court. 2 AAC 96.335(d)(4). In cases not involving state agencies, although the regulation may not technically be applicable, a person seeking review from any denial of a request for public records should strenuously object to an attempt to impose any appeal bond. The specific recognition of this in the state regulations was included at the urging of counsel for press organizations commenting on these regulations. In normal administrative appeals, an appeal bond in the amount of $750 is an ordinary requirement of the appellate rules. It seems highly inappropriate, though, to convert any citizen's request for public records into an administrative appeal, with its corresponding burdens such as the appeal bond, simply because administrative regulations are adopted to delineate rights and obligations under the statute and to spell out how administrative agencies are to handle records requests. As a matter of public policy, there should be no requirement of a $750 appeal bond. If it is raised, I suggest challenging the $750 bond requirement, as an improper and burdensome tax on the citizen's right to obtain access to public records, imposed by administrative regulation without statutory authority. In any event, it can be waived upon a showing of indigence.

    A record that is the subject of a public records request that has been denied shall not be destroyed or transferred from the public agency's custody (except that records may be transferred to state archives and records management services as provided by statute). A public agency may not destroy or transfer custody of a record to which access has been denied or restricted until at least 60 working days after the requester is notified in writing that the request has been denied, or if there is an administrative or judicial appeal or other legal action pending at the end of the 60-working-day period, until the requester has exhausted those actions. 2 AAC 96.335(g).

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  • Arizona

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

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  • Arkansas

    There is no administrative appeal process from the denial of a request. See part V.D.8, infra, for the remedies that are available.

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  • Connecticut

    Decisions of the FOIC may be appealed to the Superior Court in accordance with Conn. Gen. Stat. §4-183, the Uniform Administrative Procedure Act ("UAPA"). Notwithstanding the provisions of Conn. Gen. Stat. §4-183, in any such appeal of a decision of the FOIC, the court may conduct an in camera review of the original or a certified copy of the records which are at issue in the appeal but were not included in the record of the commission's proceedings, admit the records into evidence and order the records to be sealed or inspected on such terms as the court deems fair and appropriate, during the appeal. The commission shall have standing to defend, prosecute or otherwise participate in any appeal of any of its decisions and to take an appeal from any judicial decision overturning or modifying a decision of the commission. Conn. Gen. Stat. §1-206(c). See id.

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  • Delaware

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

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  • District of Columbia

    If the Mayor denies the appeal, or fails to act within 10 working days, court review is possible. D.C. Code Ann. § 2-537(a)(1).

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  • Georgia

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

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  • Hawaii

    The only subsequent appeal available is a judicial appeal in which the case is considered de novo by the circuit court. Appeals to the OIP are without prejudice to the right to appeal before the courts. Haw. Rev. Stat. § 92F-15.5(a).

    Separate from a subsequent appeal to the circuit court, however, the Director of the OIP has the discretion, on its own initiative or upon request by a party, to reconsider its final decision. Haw. Code R. §2-73-19(a). The Director also has the discretion to reconsider a precedent set by a prior published OIP decision. Id. § 2-73-19(c). A party’s request for reconsideration must be made in writing within ten days of the Director issuing its final decision. Id. § 2-73-19(b), (d).

    Reconsideration of either a final decision or of a precedent must be based upon one or more of the following: (1) a change in the law; (2) a change in the facts; (3) or other Compelling circumstances. Id. § 2-73-19(d). The OIP may require the party seeking reconsideration to provide a written statement setting out the basis for its request. Id. The party not requesting reconsideration will be given notice of any such request received and granted, a copy of the request, and any written statements filed. Id. Additionally, the OIP must also allow the non-requesting party to submit a counterstatement. Id.

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  • Idaho

    Not applicable.

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  • Illinois

    There are no other administrative appeal procedures provided by the Act.  Only a binding opinion is appealable—an advisory opinion is not. See 5 ILCS 140/9.5(f)-(h).

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  • Indiana

    Because there is no administrative appeals process, there are no “subsequent remedies.” However, an aggrieved party may submit an inquiry to or file a complaint with the Public Access Counselor, Ind. Code § 5-14-5-6, and may file an action with the court, Ind. Code § 5-14-3-9(e).

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  • Iowa

    If the district court remands the matter to the agency for further proceedings (see Iowa Code § 17A.19(10)), the matter will proceed according to agency procedure and the order of the court. Otherwise, no subsequent administrative remedies exist.

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  • Kentucky

    Once the Attorney General issues a decision, the Attorney General will not accept a request to reconsider it. 40 KAR 1:030 § 4. A party has 30 days to appeal the Attorney General's decision by filing an action in Circuit Court. Ky. Rev. Stat. 61.880(5)(a). If an appeal is not timely filed, the Attorney General's decision has the force of law and may be enforced in the Circuit Court where the public agency has its principal place of business or where the public record is maintained. Ky. Rev. Stat. 61.880(5)(b); see also Cabinet v. Todd Cty. Standard, 488 S.W.3d 1 (Ky. Ct. App. 2015).

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  • Maine

    The Act does not provide for administrative appeal.

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  • Maryland

    An applicant or a custodian may appeal the decision issued by the Board pursuant to § 4–362. § 4-1A-10(b). An appeal under this subsection automatically stays the decision of the Board pending the circuit court’s decision or no more than 30 days after the date on which the defendant serves an answer or otherwise pleads to the complaint, whichever is sooner. § 4-1A-10(c).

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  • Michigan

    Not specifically addressed.

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  • Montana

    There are no administrative appeal requirements.

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  • Nebraska

    If the public body continues to withhold the record, the requester may bring suit or demand, in writing, that the attorney general bring suit in the name of the state.

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  • New Jersey

    1. Subsequent remedies.

    An appellant can file an appeal of the GRC’s decision or the Superior Court’s decision to the Appellate Division.

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  • New Mexico

    There is no statutory or case law addressing this issue.

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  • North Carolina

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

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  • Oklahoma

    Not applicable.

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  • Oregon

    Any subsequent appeal must be taken to court.

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  • Rhode Island

    Unavailable. Appeals, as stated above, are directly to the Attorney General. Alternatively, the initial denial by the agency is deemed an exhaustion of administrative remedies, and the person seeking access may directly file a civil action for injunctive or declaratory relief in the Superior Court in the county where the record is maintained. R.I. Gen. Laws §  38-2-8(b).

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  • South Carolina

    Not applicable in South Carolina.

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  • South Dakota

    Decision of Office of Hearing Officer may be appealed to circuit court.

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  • Utah

    An individual may appeal the chief administrative officer’s determination to the State Records Committee. The notice of appeal must be filed with the executive secretary within 30 days of the chief administrative officer’s final determination, or within 45 days of the original record request if the chief administrative officer failed to make a determination or if the appeal is of the government entity’s claimed extraordinary circumstances. See Utah Code § 63G-2-403(1).

    The Records Committee, within three days after receiving the notice of appeal, must schedule a hearing to take place no sooner than 16 days and no later than 64 calendar days after the filing date. See id. § 63G-2-403(4)(a).

    The Records Committee must make a final determination and issue a signed order within seven business days of the hearing. See id. § 63G-2-403(11)(a).

    If the Records Committee fails to issue a decision within 73 calendar days of the filing of the notice of appeal, the failure shall be considered a denial. See id. § 63G-2-403(13).

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  • Vermont

    If the head of the agency denies the administrative appeal or fails to respond within five business days, the requestor may file a civil action in Vermont superior court.  1 V.S.A. § 319(a).

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  • West Virginia

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

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