8. Burden of proof

Government records are presumptively open, so the burden is on the government to show that an exception or exclusion to access applies. Chambers v. Birmingham News Co., 552 So. 2d 854, 856-57 (Ala. 1989).

The burden of proof and of persuasion is on the agency asserting an exemption claim.  American Civil Liberties Union Found. v. Superior Court, 3 Cal. 5th 1032, 1043, 221 Cal. Rptr. 832, 400 P.3d 432 (2017); Los Angeles County Bd. of Supervisors v. Superior Court, 2 Cal. 5th 282, 291, 212 Cal. Rptr. 3d 107, 386 P.3d 773 (2016); Long Beach Police Officers Assn. v. City of Long Beach, 59 Cal. 4th 59, 66, 172 Cal. Rptr. 3d 56, 325 P.3d 460 (2014); BRV, Inc. v. Superior Court, 143 Cal. App. 4th 742, 755, 49 Cal. Rptr. 3d 519 (2006); Bakersfield City Sch. Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1045, 13 Cal. Rptr. 3d 517 (2004); Cal. State Univ. (Fresno) v. Superior Court, 90 Cal. App. 4th 810, 831, 108 Cal. Rptr. 2d 870 (2001).

The custodian of records bears the burden of proof of justifying its denial of a public records request. 29 Del. C. § 10005(c).

The burden is on the agency to sustain its action. D.C. Code Ann. § 2-537(b).

A lawsuit to enforce compliance with the Act requires a written request for identifiable records made to the records’ custodian. The custodian bears the burden of justifying the adequacy of its response, see, e.g., Parker v. Lee, 259 Ga. 195, 198, 378 S.E.2d 677, 680 (1989), and the reasonableness of any fee imposed, see, e.g., McFrugal Rental of Riverdale, Inc. v. Garr, 262 Ga. 369, 418 S.E.2d 60 (1992).

Once a plaintiff shows the defendant is subject to the requirements of chapter 22, the records in question are government records, and the defendant refused to make those government records available, the defendant then has the burden of showing compliance by a preponderance of the evidence. Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 460 (Iowa 2013).

K.S.A. 45-222(c) provides that “in any action hereunder, or under K.S.A. 2018 Supp. 45-251, and amendments thereto, the burden of proof shall be on the public agency to sustain its action.”  Thus, the defendant agency must prove by preponderance of the evidence that the requested record fits the exemption or exemptions contained in K.S.A. 45-221(a)(1) through (55) authorizing its nondisclosure.

The burden of proof related to litigating whether criminal investigation records were properly withheld under K.S.A. 45-221(a)(10) is more complicated.  In Harris Enterprises, Inc. v. Moore, the Kansas Supreme Court ruled, contrary to the plain language of the statute, that a plaintiff requesting “criminal investigation records” must prove that disclosure of the records is “in the public interest” under K.S.A. 45-221(a)(10).  The “burden of establishing that disclosure is in the public interest lies with the person seeking disclosure.”  Harris Enters., Inc. v. Moore, 241 Kan. 59, 65–66 (1987).

As to the remaining factors set forth in K.S.A. 45-221(a)(10), the agency is tasked with proving that disclosure of the requested records would result in “probable harm” as described in K.S.A. 45–221(a)(10)(B) through (F).  See Harris, 241 Kan. at 65.

In an appeal of an Attorney General’s decision, the court shall determine the matter de novo. In an original action or an appeal of an Attorney General’s decision, the burden of proof shall be on the public agency. Ky. Rev. Stat. 61.882(5).

“A party seeking the administrative denial of the request to inspect records has the burden to show just and proper cause for the denial.” Blue Sky W., LLC v. Maine Revenue Servs., 2019 ME 137, ¶ 23, 215 A.3d 812, 821; see 1 M.R.S.A. § 409(1) (requiring agency or official “file a statement of position explaining the basis for denial” within 14 days of service of the appeal).

“The public agency shall have the burden of proving that the denial of access is authorized by law. If it is determined that access has been improperly denied, the court or agency head shall order that access be allowed. A requestor who prevails in any proceeding shall be entitled to a reasonable attorney’s fee.”  N.J.S.A. 47:1A-6.

No statutory or case law guidance.

Any person denied access to records of a public body or public official may bring a civil suit for declarative or injunctive relief. 51 O.S. § 24A.17. During litigation, the person, agency or political subdivision denying access to open records shall at all times bear the burden of establishing such records are protected by a confidential privilege. 51 O.S. § 24A.2.

Where an aggrieved requestor files suit:

“[T]he court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in section 317 of this title, and the burden of proof shall be on the public agency to sustain its action.”

1 V.S.A. § 319(a).

The public body bears the burden of proof to establish an exclusion by a preponderance of the evidence. No court is required to accord any weight to the determination of a public body as to whether an exclusion applies.