6. Subsequent remedies

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

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).

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

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

Not applicable.

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.

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

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).

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

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.

Not applicable.

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).

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).

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.

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).

The Act does not provide for administrative appeal.

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).

None, other than court action.

Not specifically addressed.

Opinions issued by the commissioner are not binding on a government entity, but "must be given deference by a court or other tribunal in a proceeding involving the data." Minn. Stat. § 13.072, subd. 2.  That said, requesting a Commissioner’s Opinion is not a condition precedent to bringing a legal action on the same issue. Minn. Stat. § 13.072, subd. 2.

In the case of an administrative complaint, a party aggrieved by a decision of the administrative law judge may seek judicial review by the Minnesota Court of Appeals.  Minn. Stat. § 13.085, subd. 5(d).

Ethics Commission may mediate. Opinion is to be considered if suit is filed. § 25-61-13(10)(a).

N/A.

There are no administrative appeal requirements.

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.

An appellant can file an appeal of the GRC’s decision or the Superior Court’s decision to the Appellate Division.  N.J.S.A. 47:1A-7; R. 4:67-6(c)(1).

The court shall award damages, costs and reasonable attorneys’ fees to any person whose written request has been denied and is successful in a court action to enforce the provisions of the Inspection of Public Records Act. NMSA 1978 § 14-2-12.  The court may require production of public documents and the court may enter orders as to future procedures or responses.

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.

North Dakota law also provides for court action, as discussed below.

Not applicable.

Any subsequent appeal must be taken to court.

A dissatisfied requester or agency may file an appeal with the Commonwealth Court. 65 Pa. C.S.A. § 67.1301(a). If an appeal is filed, the agency, the requester and the Office of Open Records or designated appeals officer shall be served with notice and shall have an opportunity to respond. Id. § 67.1303(a).

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).

Not applicable in South Carolina.

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

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).

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).

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