a. Denial

The typical public records case addresses a denial of the request for access to the records. See, e.g., Birmingham News Co. v. Muse [Muse I], 21 Media L. Rep. (BNA) 1094 (Cir. Ct. Lee Cnty., Ala., Dec. 7, 1992) (ordering release of NCAA letter of inquiry to public university, but delaying until date for university to file response).

An agency’s denial of a request for public records is appealable. Propriety of the denial is the main issue in most appeals.

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With respect to the denial of FOIA requests, the principal question litigated has been whether particular records are exempt from disclosure. In Orsini v. State, 340 Ark. 665, 671, 13 S.W.3d 167, 170-71 (2000), the Supreme Court held that “a hearing is required under [Ark. Code Ann.] § 25-19-107(b) for the circuit court to determine whether the requested [records] . . . qualify for exemption,” and that the court may examine the records in camera to make this determination. See also Gannett River States Pub. Co. v. Ark. Indus. Dev. Comm’n, 303 Ark. 684, 689-90, 799 S.W.2d 543, 546-57 (1990); Johninson v. Stodola, 316 Ark. 423, 427-28, 872 S.W.2d 374, 376 (1994). Another issue that has arisen with some frequency is whether a particular entity is subject to the FOIA. See, e.g., Sebastian Cnty. Chapter of American Red Cross v. Weatherford, 311 Ark. 656, 846 S.W.2d 641 (1993); Kristen Inv. Props., LLC v. Faulkner Cnty. Waterworks & Sewer Pub. Facilities Bd., 72 Ark. App. 37, 32 S.W.3d 60 (2000).

The court will determine whether the agency has met its burden of justifying its withholding of the requested records by determining whether a specific exemption from disclosure applies under the CPRA, or other law, or whether under the facts of a particular case the public interest served by not making the records public clearly outweighs the public interest served by disclosure of the records. Cal. Gov't Code § 7922.000; Cal. Gov't Code § 7923.110. “The court shall decide the case after the court does all of the following: ¶ (a) Examine the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code. ¶ (b) Examine any papers filed by the parties. ¶ (c) Consider any oral argument and additional evidence as the court may allow." Cal. Gov't Code § 7923.105.

a. Denial.

Unless the court finds denial of inspection was proper, it shall order the custodian to permit the inspection requested. Colo. Rev. Stat. § 24-72-204(5).

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A court will determine whether the reason for the denial is proper under Delaware’s FOIA.

Florida trial and appellate courts may, and have, addressed on numerous occasions the issue of whether access to public records has been wrongfully denied.  See, e.g., Warden v. Bennett, 340 So. 2d 978 (Fla. 2d DCA 1976); Johnson v. Jarvis, 74 So. 3d 168, 171 (Fla. 1st DCA 2011) (“The reasonableness of the appellee’s policy itself is not the subject of the inquiry.  Rather, the inquiry centers on whether the application of the policy resulted in an unjustified delay that amounted to an unlawful refusal to comply with chapter 119.”).

The courts regularly examine whether an agency's denial of a request is improper.

The court addresses the issue of denial de novo. Haw. Rev. Stat. § 92F-15(b).

If the Court determines that the public official was justified in refusing to make the requested record available, he shall return the item to the public official without disclosing its content and shall enter an order supporting the decision refusing disclosure. Idaho Code § 74-116(2).

The court has jurisdiction to enjoin the public body from withholding public records and to order the production of any public records improperly withheld from the person seeking access. If the public body can show that exceptional circumstances exist, and that the body 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). In any action considered by the court, the court shall consider the matter de novo, and shall conduct such in camera examination of the requested records as it finds appropriate to determine if such records or any part thereof may be withheld under any provision of this Act. See 5 ILCS 140/11(f). The court shall order the public body to provide an index of the records, with a description of the document and the exemption claimed, to which access has been denied. 5 ILCS 140/11(e).

A court may address the denial of access to a public record under de novo review. See Ind. Code § 5-14-3-9(e)–(g).

If a government agency does not act in good faith when denying access to public records, the court may impose attorney’s fees on the government agency. See City of Riverdale v. Diercks, 806 N.W.2d 643, 646 (Iowa 2011).

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(s) 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 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, 241 Kan. at 65; see also HN 3 (“Under K.S.A. 45–221(a)(10)(A), the burden of establishing that disclosure of criminal investigation files is in the public interest is upon the person.”)

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.

The vast majority of issues addressed by courts in Open Records Act cases involve the question of whether the public agency’s denial of a records request violates the Act, i.e., whether the requested records are exempt from disclosure.

Yes. La. Rev. Stat. Ann. § 44:35(A).

The Court will consider whether the denial of a FOAA request was for “just and proper cause” and may “enter an order for disclosure.” 1 M.R.S.A. § 409(1).  “[T]he court has the discretion to determine the process necessary for the resolution of disputed facts, giving due consideration to the efficacy, costs, and time required for each method of presentation of evidence.”  Dubois v. Dep't of Env't Prot., 2017 ME 224, ¶ 10, 174 A.3d 314, 317.

The court may address all issues relating to denial of access to the public record, as well as review decisions issued by the State Public Information Act Compliance Board. See § 4-362. Prince George's County v. Washington Post Co., 149 Md. App. 289, 314, 815 A.2d 859, 873 (2003).

The court may address denial. G.L. c. 66, § 10(b).

The plaintiff in a FOIA suit need only show that a request was made and denied. The burden then shifts to the defendant agency to show a viable defense — insufficient description of the record, the fact that no record existed, or exemption from disclosure. Pennington v. Washtenaw Cty. Sheriff, 125 Mich. App. 556, 336 N.W.2d 828 (1983). A written notice denying a request for a public record in whole or in part is considered a final determination by the public body and must contain:

(1) An explanation of the basis under the FOIA or other statute for the determination that the public record, or the portion thereof, is exempt from disclosure, if that is the reason for denying the request or a portion thereof;

(2) A certificate that the public record does not exist under the name given by the requester or by another name reasonably known to the public body, if that is the reason for denying the request or a portion thereof;

(3) A description of a public record or information on a public record which is separated or deleted if a separation or deletion is made; and

(4) A full explanation of the requesting person's right to seek judicial review, including the right to receive attorney’s fees and damages, if the circuit court determines that the public body has not complied with Mich. Comp. Laws Ann. § 15.235 and orders disclosure of all or part of a public record.

See Mich. Comp. Laws Ann. § 15.235(5).

The individual designated in Mich. Comp. Laws Ann. § 15.236 as responsible for denying requests is to sign the written notice of denial. Id. § 15.235(6).

If the court finds that a denial was issued in violation of the Act, it may compel the entity to provide access to the data.

Denial of records. § 25-61-13.

A court has held that a Sunshine Law request was properly denied where the requesting individual asked for the governmental body to create a new, customized record, as opposed to requesting access to existing records in the possession of the governmental body. Jones v. Jackson County Circuit Court, 2005 Mo. App. LEXIS 231 (Mo.Ct.App. Feb. 8, 2005).

A district court may consider whether there has been a denial of access, and whether the fees for the records are excessive and constitute denial.

There is no statutory or case law addressing the issue

Yes.

In a court action, the court will consider all issues raised by the pleadings, including denial of access to the records, the reasonableness of any fees, delays in obtaining records. See Techniscan Corp. v. Passaic Valley Water Comm’n, 218 N.J. Super. 226, 229 (App. Div. 1987). Common law access denials can be considered by the court as well as denials of access under OPRA.  In an action before the Government Records Council, the Council may only consider claims arising under OPRA.

A court will address any denial of records and has the full authority to issue a Writ of Mandamus, order an injunction, or other appropriate remedy to enforce the provision of Public Records Act, including damages and attorneys’ fees.  NMSA 1978 § 14-2-12(B), (D). 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.

The FOIL authorizes judicial review of a denial of access to a record through an Article 78 proceeding. N.Y. Pub. Off. Law § 89(4)(b). In determining whether access should have been granted or denied, the court may need to address, among other things, whether that which is requested is a “record” under FOIL, whether the entity holding the record is an “agency” subject to FOIL, whether the record was reasonably described, and whether the requested record falls within a statutory exemption so that access may be withheld. See, e.g., Capital Newspapers Div. of Hearst Corp. v. Whalen, 69 N.Y.2d 246, 505 N.E.2d 932, 513 N.Y.S.2d 367 (1987) (“record” and “agency” questions), Konigsberg v. Coughlin, 68 N.Y.2d 245, 501 N.E.2d 1, 508 N.Y.S.2d 393 (1986) (“reasonably described” question); Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986) (entitlement to exemption question).

On the issue of whether or not an agency can withhold a given record, the agency has the burden to prove that a record falls within an exemption, N.Y. Pub. Off. Law § 89(4)(b), and the court must determine whether the agency has met this burden of proof. Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986); Washington Post v. Insurance Dep’t, 61 N.Y.2d 557, 463 N.E.2d 604, 475 N.Y.S.2d 263 (1984); Doolan v. BOCES, 48 N.Y.2d 341, 398 N.E.2d 533, 422 N.Y.S.2d 927 (1979). See also Grune v. Alexanderson, 168 A.D.2d 496, 562 N.Y.S.2d 739, (2d Dep’t 1990) (agency failed to identify with specificity those portions of records claimed to be exempt). If an agency claims it does not possess the desired record, the agency must provide sufficient evidentiary proof that it does not have the requested record. Key v. Hynes, 205 A.D.2d 779 (2d Dep’t 1994).

The standard of review is not whether the agency’s determination was arbitrary or capricious or without rational basis. Rather the person resisting disclosure must prove entitlement to one of the exceptions. Laureano v. Grimes, 179 A.D.2d 602, 579 N.Y.S.2d 357 (1st Dep’t 1992). Conclusory allegations do not satisfy the agency’s burden to particularize that the material requested falls within an exemption. Allen v. New York State Department of Motor Vehicles, 147 A.D.2d 856, 538 N.Y.S.2d 78 (3d Dep’t 1989); Key v. Hynes, 205 A.D.2d 779, 613 N.Y.S.2d 926 (2d Dep’t 1994) (holding that an agency seeking to avoid disclosure of a document it allegedly cannot locate must provide sufficient evidentiary proof that it does not have such document similar to the proof necessary to sustain a FOIL exemption; conclusory allegations are insufficient).

The court may address alleged denials. See N.D.C.C. § 44-04-21.2(1).

Courts primarily will redress denial of requests.

Any person denied access may bring a civil action. 51 O.S. § 24A.17(B).

Injunctive relief to reverse a denial may be sought. ORS 192.431.

An agency must set forth a specific reason for denying a request and cannot assert new grounds for denial on appeal.  See, e.g., Signature Info. Sols., LLC v. Aston Twp., 995 A.2d 510, 512 (Pa. Commw. Ct. 2010).

May be addressed. However, except for good cause shown, any reason not specifically set forth in the initial denial letter shall be deemed waived by the public body. R.I. Gen. Laws § 38-2-7(a).

This is the most common basis for a suit, and the method by which the public body's assertion of an exemption is tested.

Presumably.

This will be addressed by Court.

“Section 552.321 confers upon the trial court the authority to issue a writ of mandamus in three circumstances: where a governmental body refuses to request an attorney general's decision on whether information is public; where the governmental body refuses to supply public information; and where a governing body refuses to supply information that the attorney general has determined is public information not excepted from disclosure.” Thomas, 71 S.W.3d at 481; see Loving v. City of Houston, 282 S.W.3d 555, 561 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (“A suit for mandamus may be filed to compel a governmental body to make information available for public inspection under certain circumstances; and Hankins v. Dallas Independent School Dist., 698 F.Supp. 1323, 1332 (N.D. Tex. 1988) (“[H]ad Plaintiff not been allowed to inspect his personnel file, his recourse was to seek a writ of mandamus against the officials who refused to allow him to inspect his personnel file.”).

The court shall rule on the propriety of any denial of access and may order the disclosure of records properly classified as private, controlled, or protected if the interest favoring access outweighs the interest against access. See Utah Code § 63G-2-404(7)(a).

The court considers all issues framed by the denial, and makes its own determination as to the scope or applicability of the exemption(s) relied on.  See, e.g., Herald Ass’n v. Dean, 174 Vt. 350, 355, 816 A.2d 469, 474 (Vt. 2002) (analyzing whether documents sought were public records, whether claimed exemptions applied, and whether redactions would be appropriate).

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