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a. Denial

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  • Alabama

    The typical public records case addresses a denial of the request for access to the records, with the court deciding whether the requested records are public records, whether they are subject to an exclusion in whole or in part, and sometimes the logistics of an ordered disclosure of the records. See, e.g., Birmingham News Co. v. Muse [Muse I], 21 Media L. Rep. (BNA) 1094 (Cir. Ct. of Lee County, Ala., Dec. 7, 1992) (release of NCAA Letter of Inquiry to public university ordered, but delayed until date for university to file response).

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  • Alaska

    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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  • Arizona

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

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  • Arkansas

    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).

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  • California

    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 § 6255; Cal. Gov't Code § 6259(b). "The court shall decide the case after examining the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code, papers filed by the parties and any oral argument and additional evidence as the court may allow." Cal. Gov't Code § 6259(a).

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  • Colorado

    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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  • Connecticut

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

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  • Delaware

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

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  • Florida

    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.”).

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  • Georgia

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

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  • Hawaii

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

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  • Idaho

    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).

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  • Illinois

    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).

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  • Indiana

    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).

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  • Kansas

    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.

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  • Kentucky

    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.

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  • Louisiana

    Yes. La. Rev. Stat. Ann. § 44:35(A).

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  • Maine

    The court is required to decide the issues presented by the appeal de novo, i.e., independent from and without deference to the governmental body’s findings of fact or conclusions of law. 1 M.R.S.A. § 409; see also Pinkham v. Dept. of Transp, 2016 ME 74, ¶ 7, 139 A.3d 904.  If the court determines that the denial was not for just and proper cause, it shall enter an order for disclosure. 1 M.R.S.A. § 409.

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  • Maryland

    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).

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  • Massachusetts

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

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  • Michigan

    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 County Sheriff, 125 Mich. App. 556, 336 N.W.2d 828, 832 (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. Mich. Comp. Laws Ann. § 15.235(4).

    The individual designated in Mich. Comp. Laws Ann. § 15.236 as responsible for denying requests is to sign the written notice of denial. Mich. Comp. Laws Ann. § 15.235(5).

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  • Minnesota

    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.

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  • Mississippi

    Denial of records. § 25-61-13.

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  • Montana

    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.

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  • Nevada

    There is no statutory or case law addressing the issue

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  • New Mexico

    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.

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  • New York

    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).

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  • North Dakota

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

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  • Ohio

    Courts primarily will redress denial of requests.

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  • Oklahoma

    Any person denied access may bring a civil action. 51 Okla. Stat. Supp. 2005, § 24A.17.B.

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  • Oregon

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

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  • Pennsylvania

    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).

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  • Rhode Island

    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).

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  • South Carolina

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

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  • Tennessee

    This will be addressed by Court.

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  • Texas

    “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.”).

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  • Utah

    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).

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  • Vermont

    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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  • West Virginia

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

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