The burden of proof and of persuasion is on the agency asserting an exemption claim. 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).
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). SeeHarris, 241 Kan. at 65.
“[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.”