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8. Judicial remedies available

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  • Alaska

    The court can order that the public record at issue be provided, and can order other injunctive or declaratory relief to which the requester shows he or she is entitled. There is no provision in the statute for an award of damages for wrongfully withholding documents.

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  • Arizona

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

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  • Arkansas

    1. Any citizen “denied the rights granted to him or her” by the FOIA may appeal to the appropriate circuit court, Ark. Code Ann. § 25-19-107(a), which may issue “orders” to redress the denial. Ark. Code Ann. § 25-19-107(c). Failure to comply with such an order constitutes contempt of court. Id. Using this broad remedial power, a circuit court may direct an agency to produce records for inspection and copying or to charge a copying fee that does not exceed the actual costs of reproduction.
    2. Declaratory relief may be granted in FOIA cases. Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989), overruled on other grounds by Harris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006); Ark. Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975). However, a party must exhaust administrative remedies prior to seeking such relief. Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985). A court has discretion in deciding whether to entertain an action for declaratory judgment, Jessup v. Carmichael, 224 Ark. 230, 232, 272 S.W.2d 438, 440 (1954), and the presence of factual issues may make the case unsuitable for declaratory relief. See Jones v. Am. Home Assur. Co., No. CA04-1345, 2005 WL 1463406, at *3 (Ark. Ct. App. June 22, 2005); Bankers & Shippers Ins. Co. v. Kildow, 9 Ark. App. 86, 654 S.W.2d 600 (1983).
    3. In light of Constitutional Amendment 80, which merged law and equity and abolished the state’s separate chancery courts as of July 1, 2001, a circuit court may also grant an injunction or employ other equitable remedies. Prior to merger, circuit courts lacked power to issue injunctions, Ark. Game & Fish Comm’n v. Sledge, 344 Ark. 505, 42 S.W.3d 427 (2001); however, but chancery courts had the power to grant injunctive relief in FOIA cases. E.g., Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986). An injunction will not be issued when there is an adequate remedy at law. E.g., Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997). Because Ark. Code Ann. § 25-19-107 arguably provides such a remedy in FOIA cases, injunctive relief may be inappropriate.
    4. Plaintiffs in FOIA cases also have asked circuit courts to issue a writ of mandamus. The general rule is that mandamus will not lie when another adequate remedy exists. Kemp-Bradford VFW Post 4764 v. Wood, 262 Ark. 168, 554 S.W.2d 344 (1977). Because adequate relief may be obtained under Ark. Code Ann. § 25-19-107, mandamus seems inappropriate in FOIA cases. See id. However, the Supreme Court has expressly held that mandamus is appropriate when the plaintiff seeks to force a governing body to hold an open meeting. Ark. State Police Comm’n v. Davidson, 252 Ark. 137, 477 S.W.2d 852 (1972). The remedy has also been employed in cases involving access to records, although its propriety in that situation has not been addressed. See, e.g., McMahan v. Bd. of Trustees, 255 Ark. 108, 499 S.W.2d 56 (1973). If the circuit court fails to act in an FOIA case, the plaintiff may petition the Supreme Court for a writ of mandamus. See Boyd v. Keith, 330 Ark. 626, 954 S.W.2d 942 (1997).
    5. Language in Ark. Code Ann. § 25-19-107(a) suggests that FOIA suits may be brought against state agencies, but such actions may be considered suits against the state and thus barred under Article V, § 20 of the state constitution. A suit is not barred, however, if the state would incur no financial obligation were the plaintiff to prevail; thus, a FOIA action against a state agency is permissible if the plaintiff waives costs and expenses. Comm’n on Judicial Discipline & Disability v. Digby, 303 Ark. 24, 792 S.W.2d 594 (1990). Other entities — such as cities, counties, school districts, and private organizations supported by public funds — may be sued directly. See, e.g., City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990). Officials of these entities, as well as state officials, may also be named as FOIA defendants. See, e.g., Daugherty v. Jacksonville Police Dep't, 2012 Ark. 264, 411 S.W.3d 196 (2012).
    6. Although the FOIA itself does not speak directly to a right of action to enjoin the disclosure of records, such “reverse-FOIA” suits are not unknown in the state. E.g., McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). These suits seem justifiable, particularly in view of the fact that FOIA exemptions are mandatory rather than discretionary. Moreover, the act appears to contemplate such “reverse” litigation in at least one situation, i.e., when personnel or evaluation records are involved. See Ark. Code Ann. § 25-19-105(c)(3).
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  • California

    The only judicial remedy available under the CPRA is immediate disclosure of the public records, a declaratory judgment governing the alleged practice or future disclosure of the same type of documents in question, if applicable, and the recovery of costs and reasonable attorneys' fees. If an agency fails to obey a court order, contempt sanctions may be imposed by the court, after hearing on an order to show cause. Cal. Gov't Code § 6259(c).

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  • Colorado

    If the court finds denial of inspection was improper, it shall order the custodian to permit the inspection requested and award the plaintiff her reasonable attorneys' fees. Colo. Rev. Stat. § 24-72-204(5).

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  • Connecticut

    The Superior Court can affirm, reverse, modify, or remand the case back to the FOIC for further proceedings.

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  • Delaware

    If an adequate remedy at law is available in the form of a writ of mandamus, the Court of Chancery will not hear FOIA cases relating to access to records. Brisco v. Gulledge, 1981 WL 15137 (Del. Ch. Apr. 3, 1981).

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  • District of Columbia

    The D.C. Act specifically authorizes injunctive or declaratory relief. D.C. Code Ann. § 2-537(a)(1). In any suit brought under the D.C. Act, the government has the burden of proof. Id. at § 2-537(b).

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  • Georgia

    The superior courts have jurisdiction in law and in equity to entertain actions to enforce compliance with the provisions of the statute. O.C.G.A. § 50-18-73(a). The Act also makes provision for civil and criminal penalties.  § 50-18-74.

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  • Hawaii

    The court may compel disclosure. Additionally, the court may assess damages caused by failure of an agency to properly maintain a personal record, id. § 92F-27(c)(1); reasonable attorneys' fees and costs, id., §§ 92F-15(d), 92F-27(c)(2), 92F-27(d); and criminal sanctions for government officials and employees making disclosure knowing disclosure is prohibited or for any person that obtains access to or a copy of a government record by "false pretense, bribery, or theft with actual knowledge that disclosure is prohibited . . . ." Id. § 92F-17.

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  • Idaho

    The court may order that the records be released and may order that court costs and reasonable attorney fees be assessed. Although the Act does not specifically address the subject, the court should also be able to render declaratory or injunctive relief in appropriate circumstances. Idaho Code § 74-116.

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  • Illinois

    The circuit court has jurisdiction to enjoin the public body from withholding public records and to order the production of any public records improperly withheld. If the agency can show that exceptional circumstances exist, and that it is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records. See 5 ILCS 140/11(d).

    A circuit court considering the propriety of a public body’s denial of access to public records may conduct an in camera examination of the requested records to determine if the records or any part of them may be withheld under any provision of the Act.  See 5 ILCS 140/11(e).

    The burden is on the public body to establish by clear and convincing evidence that its refusal to permit public inspection comports with the provisions of the Act. See 5 ILCS 140/11(f); see also Lieber v. Board of Trs., 176 Ill. 2d 401, 680 N.E.2d 374, 223 Ill. Dec. 641 (Ill. 1997) ("If the requesting party subsequently challenges the denial in circuit court . . ., the public body has the burden of proving that the records in question fall within the exemption it has claimed.").

    To meet its burden and to assist the court in making its determination, the public body must provide a detailed justification for any claimed exemption, addressing the requested documents specifically and in a manner allowing for adequate adversary testing. Illinois Educ. Ass'n v. Illinois State Bd. Of Educ., 791 N.E.2d 522 (Ill. 2003); see 5 ILCS 140/9(a) (“Each public body denying a request for public records shall notify the requester in writing of the decision to deny the request, the reasons for the denial, including a detailed factual basis for the application of any exemption claimed, and the names and titles or positions of each person responsible for the denial.)

    Vague and conclusory affidavits will not suffice to meet the burden of proof. Illinois Educ. Ass'n v. Illinois State Bd. Of Educ., 791 N.E.2d 522 (Ill. 2003).

    In the event of noncompliance with a court order to disclose records, the court may enforce its order against any public official or employee subject to the order or primarily responsible for such noncompliance through the court’s contempt powers.  5 ILCS 140/11(g).

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  • Indiana

    The court may compel the agency to permit inspection and copying of the record for which access has been denied, or it may conclude that the record is exempt from disclosure. See Ind. Code § 5-14-3-9(f).

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  • Iowa

    1. The rights and remedies provided by this section are in addition to any rights and remedies provided by section 17A.19. Any aggrieved person, any taxpayer to or citizen of the state of Iowa, or the attorney general or any county attorney, may seek judicial enforcement of the requirements of this chapter in an action brought against the lawful custodian and any other persons who would be appropriate defendants under the circumstances. Suits to enforce this chapter shall be brought in the district court for the county in which the lawful custodian has its principal place of business.

    2. Once a party seeking judicial enforcement of this chapter demonstrates to the court that the defendant is subject to the requirements of this chapter, that the records in question are government records, and that the defendant refused to make those government records available for examination and copying by the plaintiff, the burden of going forward shall be on the defendant to demonstrate compliance with the requirements of this chapter.

    3. Upon a finding by a preponderance of the evidence that a lawful custodian has violated any provision of this chapter, a court:

    a. Shall issue an injunction punishable by civil contempt ordering the offending lawful custodian and other appropriate persons to comply with the requirements of this chapter in the case before it and, if appropriate, may order the lawful custodian and other appropriate persons to refrain for one year from any future violations of this chapter.

    b. Shall assess the persons who participated in its violation damages in the amount of not more than five hundred dollars and not less than one hundred dollars. However, if a person knowingly participated in such a violation, damages shall be in the amount of not more than two thousand five hundred dollars and not less than one thousand dollars. These damages shall be paid by the court imposing them to the state of Iowa if the body in question is a state government body, or to the local government involved if the body in question is a local government body. A person found to have violated this chapter shall not be assessed such damages if that person proves that the person did any of the following:

    (1) Voted against the action violating this chapter, refused to participate in the action violating this chapter, or engaged in reasonable efforts under the circumstances to resist or prevent the action in violation of this chapter.

    (2) Had good reason to believe and in good faith believed facts which, if true, would have indicated compliance with the requirements of this chapter.

    (3) Reasonably relied upon a decision of a court, a formal opinion of the attorney general, or the attorney for the government body, given in writing, or as memorialized in the minutes of the meeting at which a formal oral opinion was given, or an advisory opinion of the attorney general or the attorney for the government body, given in writing.

    c. Shall order the payment of all costs and reasonable attorney fees, including appellate attorney fees, to any plaintiff successfully establishing a violation of this chapter in the action brought under this section. The costs and fees shall be paid by the particular persons who were assessed damages under paragraph "b" of this subsection. If no such persons exist because they have a lawful defense under that paragraph to the imposition of such damages, the costs and fees shall be paid to the successful plaintiff from the budget of the offending government body or its parent.

    d. Shall issue an order removing a person from office if that person has engaged in a prior violation of this chapter for which damages were assessed against the person during the person's term.

    4. Ignorance of the legal requirements of this chapter is not a defense to an enforcement proceeding brought under this section. A lawful custodian or its designee in doubt about the legality of allowing the examination or copying or refusing to allow the examination or copying of a government record is authorized to bring suit at the expense of that government body in the district court of the county of the lawful custodian's principal place of business, or to seek an opinion of the attorney general or the attorney for the lawful custodian, to ascertain the legality of any such action.
    Iowa Code § 22.10.

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  • Kansas

    Remedies include: injunction, mandamus or other appropriate order on application of any person. K.S.A. 45-222(a).

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  • Kentucky

    The Circuit Court may enforce the Open Records Act “by injunction or other appropriate order.” Ky. Rev. Stat. 61.882(1).

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  • Louisiana

    Writ of mandamus, injunctive or declaratory relief, together with attorneys' fees, costs, damages, and civil penalties, if available. La. Rev. Stat. Ann. § 44:35(A).

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  • Maine

    The typical judicial remedy is “an order for disclosure.”  1 M.R.S.A. § 409(1). This remedy is not exclusive, however, and a declaratory judgment may also be sought.  “The court’s consideration of the records withheld will generally be accomplished by an in camera review of the disputed records.”  Dubois v. Dept. of Envtl. Prot., 2017 ME 224 ¶ 9, 174 A.3d 314, 317 (Me. 2017).

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  • Maryland

    The court may enjoin the state, a political subdivision, or a unit, an official, or an employee of the State or a political subdivision from withholding the public record, may order production of the record that was withheld, and may punish the responsible employee for contempt for noncompliance with the order. § 4-362(c)(3). See also Office of the State Prosecutor v. Judicial Watch Inc., 356 Md. 118, 127, 737 A.2d 592, 597 (1999) (holding that a trial court's order requiring the Office of the State Prosecutor to produce a Vaughn index was an injunction under the PIA). The court may also award actual damages against the governmental unit if it knew its denial was without basis. § 4-362(d)(1); but see ACLU v. Leopold, 223 Md. App. 97, 123 (2015) ("actual damages" under the statute does not include emotional damages). Damages under this subsection may not exceed $1,000. § 4-362(d)(3). An official custodian is also liable for actual damages for failure to petition a court for an order to continue a temporary denial. § 4-362(d)(2).

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  • Michigan

    Where exemption is claimed, the court may consider allowing plaintiff’s counsel to have access to contested documents in camera under special agreement whenever possible. Evening News Ass'n v. City of Troy, 417 Mich. 481, 339 N.W.2d 421 (1983). In all cases, if the court determines that the public record is not exempt from disclosure, the court "shall order the public body to cease withholding or to produce all or a portion of a public record wrongfully withheld, regardless of the location of the public record." Mich. Comp. Laws Ann. § 15.240(4). The FOIA contains no provision imposing liability upon public officials who release information which may be exempt under the FOIA, but liability may be grounded upon statute or common law protection of records which are also exempt from disclosure under the Act. 1979-80 Op. Att'y Gen. 255, 299-300 (1979).

    A party is not required to resubmit an FOIA request to ensure that it receives the requested information if the public body determines that the information has become non-exempt during the course of litigation. Rather, the trial court should properly consider a plaintiff's lawsuit a continuing request for information under the FOIA. Krug v. Ingham County Sheriff's Office, 264 Mich. App. 475, 691 N.W.2d 50 (2004).

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  • Montana

    A court may order that the records be disclosed. It may also issue a continuing restraining order against withholding the documents or similar documents in the future.

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  • Nebraska

    "In any suit filed under this section, the court has jurisdiction to enjoin the public body from withholding records, to order disclosure, and to grant such other equitable relief as may be proper." Neb. Rev. Stat. §84-712.03.

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  • Nevada

    The NPRA provides only for an order permitting inspection or copying.

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  • New Hampshire

    The Statute provides for declaratory and injunctive relief, including ex parte relief if the court "shall reasonably deem such an order necessary to ensure compliance with the provisions of this chapter." RSA 91-A:7. The court may enjoin future violations of the Statute, and it may invalidate action taken at a meeting held in violation of the Statute. RSA 91-A:8, I and II.

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  • New Jersey

    The available remedies include an order directing that access to all records be permitted, that access to only portions of redacted records be permitted, or that no access be permitted. The court can also rule on the reasonableness of fees. See Techniscan Corp. v. Passaic Valley Water Comm’n, supra; Shuttleworth v. City of Camden, supra.

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  • New Mexico

    A Writ of Mandamus, injunction, or other appropriate remedy, including damages and attorneys' fees.  NMSA 1978 § 14-2-12.  Damages include compensatory and actual damages but not punitive or statutory damages.  Faber v. King, 2015-NMSC-015, 348 P.3d 173.

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  • North Carolina

    The principal remedy available in a proceeding commenced pursuant to G.S. § 132-9 is for the court to enter an order compelling the custodian of the records to make them available for public inspection, examining and copying.

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  • North Dakota

    The court may award declaratory relief, an injunction, a writ of prohibition or mandamus, costs, disbursements, and reasonable attorney’s fees against the entity. N.D.C.C. § 44-04-21.2(1). For an intentional or knowing violation, the court may also award damages in an amount equal to one thousand dollars or actual damages caused by the violation, whichever is greater. N.D.C.C. § 44-04-21.2(1).

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  • Ohio

    The chief judicial remedy is a writ of mandamus that compels a public office to comply with its mandatory duty, but the writ does not apply to failures to comply in the future. It only remedies present, existing failures to comply. State ex rel. Brown v. Ashtabula Cty. Bd. of Elections, 142 Ohio St.3d 370, 31 N.E.3d 596, 2014-Ohio-4022.

    The court also can award statutory damages of $100 for each business day that the public office did not produce public records, but the first day that counts is the day upon which the requester sues, and the maximum award is $1,000. Ohio Rev. Code § 149.43(C)(2).

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  • Oklahoma

    Injunctive or declaratory relief. 51 O.S. § 24A.17.B.

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  • Oregon

    Injunctions or declaratory judgments are the sole remedies available. In the event that the court orders the records to be released and the public body refuses to do so, such a refusal could be punished as a contempt of court. ORS 192.431(1) (formerly ORS 192.490(1)). The statute does not permit the award of any damages or other remedies against the agency other than attorneys’ fees and costs.

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  • Rhode Island

    Suit may be filed for injunctive or declaratory relief. R.I. Gen. Laws § 38-2-8(b). In Rhode Island Federation of Teachers v. Sundlun, 595 A.2d 799 (R.I. 1991), the Court held that this section does not provide a remedy to compel nondisclosure when a public body or official is about to disclose material that might be entitled to an exemption under this Act.

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  • South Carolina

    Injunction and declaratory judgment.

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  • South Dakota

    Writs of mandamus or prohibition.

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  • Tennessee

    The court, upon a finding for the petitioner, shall order the records to be made available and afford the petitioner whatever additional relief is necessary "to give the fullest possible access to public records." T.C.A. § 10-7-505(d) (1999).

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  • Texas

    The Act does not limit what judicial remedies are available. The court may issue a writ of mandamus directing a governmental body to produce records for public inspection. Depending on the circumstances, an injunction or declaratory judgment also may be appropriate remedies.

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  • Utah

    The district court shall review de novo, and without a jury, a party’s petition for review of a records committee decision. See Utah Code § 63G-2-404(6).

    The court can order the disclosure of the record with restrictions on future access. See id. § 63G-2-404(7)(b).

    The court may enjoin a government entity that violates or proposes to violate GRAMA’s provisions. See id. § 63G-2-802(1).

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  • Vermont

    The primary remedy available is that the court will simply order the release of all, or part, of the requested records. 1 V.S.A. § 319(a). If the agency has not honored the request because of the magnitude or difficulty of the request, but is not objecting on substantive grounds, the court can grant additional time to comply if the agency demonstrates “due diligence” and “exceptional circumstances.” 1 V.S.A. § 319(c).

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  • Virginia

    The statutory remedies are a writ of mandamus or an injunction. The former compels compliance with the Act and the latter prohibits noncompliance. Va. Code Ann. § 2.2-3713.A.  If the court finds that the violations were willfully and knowingly made the court shall assess a civil penalty. Va. Code Ann. § 2.2-3714.

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  • Washington

    A court may order an agency to release a record or to respond to a record request, and may award fees, costs and statutory penalties to a prevailing requester.  RCW 42.56.550.  It also may enjoin the release of a record upon motion of the agency or a third party who is named in the record or to whom the record specifically pertains.  RCW 42.56.540.

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  • West Virginia

    The Freedom of Information Act specifically authorizes declaratory and injunctive relief. These same remedies are available if the records are sought under a common law right of access or the constitutional open courts mandate. Complaints should invoke all applicable bases for relief.

    In extraordinary situations, where the statutory FOIA procedures are for some reason inadequate, or where the claim to access is based upon the constitution or common law, it is possible to bypass the circuit courts and instead seek a writ of mandamus directly from the Supreme Court of Appeals. Mandamus, which is used to command a public official to perform his legal duty, was the primary method of enforcing access rights at common law. Today, its only particular advantage is the immediate access it provides to the Supreme Court of Appeals.

    However, in recent years, the state's high court has been reluctant to accept such cases for judicial review, preferring to have circuit court review FOIA claims in the first instance. In most cases, however, filing a complaint in the circuit court will be a prerequisite to review by the Supreme Court of Appeals after the trial court issues a decision on the merits of a FOIA claim. In Sattler v. Holliday, 173 W. Va. 471, 318 S.E.2d 50 (1984), the Supreme Court rejected a petition for a writ of mandamus seeking access to a prosecutor's records, because the circuit court proceedings provided by the FOIA had been bypassed without any compelling reason.

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  • Wyoming

    The exclusive remedy provided for in the Public Records Act is to apply to the district court of the district wherein the record is found for any order directing the custodian of the record to show cause why he should not permit the inspection of the record. Wyo. Stat. § 16-4-203(f).

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