A. How to start

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(1) Custodian of Records. Under the Open Records Act, the person to whom a request for inspection should be directed is the custodian of records. See Colo. Rev. Stat. § 24-72-203(1)(a). The first step, then, is to determine where the records are located and who has custody of them.

(2) Request for Inspection.

(a) Requests for inspection may be either written or oral. A written request may be made in advance; an oral request may be made to the custodian at the place where the records are kept.

(b) Inspection of public records must be done "at reasonable times." Colo. Rev. Stat. § 24-72-203(1)(a). The official custodian may make rules and regulations governing inspection of public records which are "reasonably necessary" for the protection of the records and the prevention of "unnecessary interference" with the regular duties of the custodian or his office. Colo. Rev. Stat. § 24-72-203(1)(a).

(c) Therefore, a person wanting to inspect records should inquire of their custodian whether any rules or regulations restrict of limit access to particular times, dates, etc., or whether written requests are required.

(d) As a general rule, the more specific the request the better. Any identification of the document by date, author, agency, subject matter is helpful to the custodian in locating the requested records.

(3) When Records are not Available.

(a) If the requested records are not in the custody or control of the person to whom application is made, that person must immediately notify the applicant that the records are not in his or her custody. Colo. Rev. Stat. § 24-72-203(2)(a). See Pruitt v. Rockwell, 886 P.2d 315 (Colo. App. 1994). The applicant may request written notification. The notification must state in detail, to the best of the person's knowledge and belief:

The reason for the absence of the records;

Their location; and

Who has custody or control of the records. Colo. Rev. Stat. § 24-72-203(2)(a).

(b) If an official custodian has custody of correspondence sent or received by an elected official, the custodian shall consult with the elected official prior to permitting inspection of the correspondence for the purpose of determining whether the correspondence is a public record. Colo. Rev. Stat. § 24-72-203(2)(b).

(c) If the requested records are in the custody or control of the person to whom application for inspection is made, but the records are in active use or storage, the custodian shall immediately notify the applicant that the records are not available at the time. The applicant may request written notification. The applicant may request that the custodian set a date and hour of the notification when the records will be available for inspection. Colo. Rev. Stat. § 24-72-203(3)(a). The date and hour set for inspection must be within a reasonable time after the request, presumed to be three days. Such period may be extended up to seven days if extenuating circumstances exist. A finding that extenuating circumstances exist shall be made in writing by the custodian and shall be provided to the person making the request within the three-day period. Colo. Rev. Stat. § 24-72-203(3)(b). Extenuating circumstances only exist when:

A broad request is made that encompasses all or substantially all of a large category of records and the request is without sufficient specificity to allow the custodian reasonably to gather the records within the three-day period;

A broad request is made that encompasses all or substantially all of a large category of records and the agency is unable to gather the records within the three-day period because the agency needs to devote all or substantially all of its resources to meeting an impending deadline or period of peak demand that is either unique or does not occur more often than once a month or, in the case of the general assembly or its staff or service agencies, the general assembly is in session.

FOIA states that: “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.” Conn. Gen. Stat. §1-212.

“[T]here is a strong presumption that public records should be made available for public inspection without delay.”  O.C.G.A. § 50-18-70(a).  Georgia law is to be “broadly construed to allow the inspection of government records” as “public access to public records should be encouraged.”  Id.

So, if you want access to records you believe to be in the possession of a state or local agency or a private person or entity functioning on their behalf, don’t be shy about simply asking the agency or private person or entity to show them to you. If they refuse, ask them to explain why.

A request to review or obtain a copy of a public record begins with a request for such record to the records custodian.

Each public agency is required to promulgate rules and regulations which shall include the title and address of the official custodian, the fees charged for copies, and the procedures to be followed in requesting public records. Ky. Rev. Stat. 61.876; see also 200 KAR 1:020 (administrative regulation for state agencies).

In addition, each public agency is directed to provide "suitable facilities" for persons to inspect public records. Ky. Rev. Stat. 61.872(1); see also 93-ORD-39 ("public agencies must work in a spirit of cooperation with individuals wishing to inspect their records").

Public records requests may be made in person or in writing; and if in writing, by mail, facsimile or email. G.L. c. 66, § 10(b); 950 CMR 32.05(3).

Under the public records act, as well as the specific statutes governing confidential documents, the request for a document should be submitted directly to the custodian of the document. The request does not have to be in writing but any refusal can be reduced to affidavit form in the event the requester desires to litigate the issue. Because access to immediate district court resolution is available in Montana, there is no need to reduce the request to writing. However, the attorney general has ruled that governments may require that the request be reduced to writing. 37 A.G. Op. 107 (1976).

N.J.S.A. 47:1A-5(f) provides:

The custodian of a public agency shall adopt a form for the use of any person who requests access to a government record held or controlled by the public agency. The form shall provide space for the name, address, and phone number of the requestor and a brief description of the government record sought. The form shall include space for the custodian to indicate which record will be made available, when the record will be available, and the fees to be charged. The form shall also include the following: (1) specific directions and procedures for requesting a record; (2) a statement as to whether prepayment of fees or a deposit is required; (3) the time period within which the public agency is required by P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented, to make the record available; (4) a statement of the requestor's right to challenge a decision by the public agency to deny access and the procedure for filing an appeal; (5) space for the custodian to list reasons if a request is denied in whole or in part; (6) space for the requestor to sign and date the form; (7) space for the custodian to sign and date the form if the request is fulfilled or denied. The custodian may require a deposit against costs for reproducing documents sought through an anonymous request whenever the custodian anticipates that the information thus requested will cost in excess of $5 to reproduce.

The Appellate Division held in Renna v. Cty. of Union, 407 N.J. Super. 230 (App. Div. 2009) that all OPRA requests must be in writing but that no custodian shall withhold records if the written request contains the requisite information prescribed by N.J.S.A. 47:1A-5(f) (name, address, phone number and a brief description of the records sought).

There are no prescribed procedures to follow or forms to submit in connection with the inspection, examination or copying of public records in North Carolina. Experience indicates that the overwhelming majority of such requests are made orally and are fulfilled readily and informally. North Carolina’s Public Records Law requires that access to public records must be granted by “every person having custody of public records.” Thus requests can be, and are, addressed to virtually any public employee.

The APRA has no general provisions governing the process for making a request. Each public body must establish its own access procedures. R.I. Gen. Laws § 38-2-3(d). However, a public body may not require written requests for public information available pursuant to R.I. Gen. Laws § 42-35-2 or for other documents prepared for or readily available to the public.  R.I. Gen. Laws § 38-2-3(d).

An “informal request” can be made. SDCL §1-27-35. If that is denied in whole or in part, then a formal written request can be made. SDCL §1-27-27.

Although the Act does not prohibit oral requests, a request must be in writing before Section 552.301 applies. Under that section, a governmental body that receives a written request for information it considers exempt from disclosure (even though there has been no specific previous determination that such information is exempt) must ask for a decision from the Attorney General within 10 days of receiving the written request. Tex. Gov't Code § 552.301(a) and (b). Oral requests do not trigger this 10-day deadline. See Tex. Att'y Gen. ORD-304 (1982). Accordingly, a written request is an implied requirement of the Act.  See Tex. Gov’t Code § 552.234 (specifying the permissible formats for issuing “written” requests) A subpoena duces tecum or a request for discovery that is issued in compliance with a statute or a rule of civil or criminal procedure is not considered to be a request for information under the Act. Tex. Gov’t Code § 552.0055.

Written requests do not have use "magic words." Tex. Att'y Gen. ORD-483 (1987). A written request includes a request made in writing by electronic mail or facsimile transmission. Tex. Gov't Code § 552.301. The written request should be made to the officer for public information, Section 552.301(c), defined in Section 552.201 as the "chief administrative officer of a governmental body." Also, each elected county officer is the officer for public information created or received by that county officer's office. Tex. Gov't Code § 552.201(b).  Effective September 1, 2019, written requests must be made via: (1) United States mail; (2) electronic mail; (3) hand delivery; or (4) any other appropriate method approved by the governmental body, including: (A) facsimile transmission; and (B) electronic submission through the governmental body's Internet website.  Tex. Gov’t Code §552.234.

 

As a practical matter, though, and to help avoid delays, it is advisable to send a duplicate copy to the clerk who normally handles the requested records. And while the Act does not require a requestor to specify a deadline for requested production of information, such a specification may hasten release of the information. The statute requires only "prompt" production by the officer for public records and requires that the officer seek within a reasonable time — no later than 10 business days after receipt of the request — an Attorney General's opinion if the governmental body deems the records excepted from the statute's disclosure requirements. While custodians frequently take the 10-day limit to either furnish the requested records or request an Attorney General opinion, the ready availability of many records and the importance of timely disclosure to the requestor in many cases suggest a reasonable time would be less than 10 days. Consequently, the requestor should designate a short deadline where appropriate.

The request should identify what information is sought as accurately as possible, because the governmental body can ask for clarification if it cannot reasonably understand the request. Tex. Att'y Gen. ORD-23 (1974); § 552.222. Likewise, the governmental body must make a good faith effort to explain what type of records are available, so a vague request can be narrowed. Tex. Att'y Gen. ORD-87 (1975).

Arrangements to inspect & copy. "It shall be a policy of a governmental body to provide a suitable copy of public information within a reasonable time after the date on which the copy is requested." Tex. Gov't Code § 552.228(a). If the information exists in an electronic or magnetic form, the requestor may request a copy in paper or electronic form. Tex. Gov't Code § 552.228(b). Under Section 552.230 of the Act a governmental body may promulgate reasonable rules, which are consistent with the Act, of procedure under which public information may be inspected and copied efficiently, safely, and without delay. Examination of the information must be completed within 10 business days after the custodian of the information makes it available. Tex. Gov't Code § 552.225(a). The officer for public information shall extend the initial examination period by an additional 10 business days if, within the initial period, the requestor files a written request for additional time. The officer for public information shall extend an additional examination period by another 10 business days if, within the additional period, the requestor files a written request for more additional time. Tex. Gov't Code § 552.225(b). The time during which a person may examine information may be interrupted by the officer for public information if the information is needed for use by the governmental body. The period of interruption is not considered to be a part of the time during which the person may examine the information. Tex. Gov't Code § 552.225(c).

Charges for providing copies of public information. The charge for providing a copy of public information shall be an amount that reasonably includes all costs related to reproducing the requested information. Tex. Gov't Code § 552.261. If a copy request or request to inspect a paper record exceeds $40, the governmental body must provide an itemized statement that details all estimated charges. Tex. Gov't Code § 552.2615. If the requestor does not request a copy of the public information, a charge may not be imposed for making that information available for inspection. Tex. Gov't Code § 552.271. For requests to inspect electronic information that is not available directly online to the requestor, a charge may not be imposed, unless complying with the request will require programming or manipulation of data. Tex. Gov't Code § 552.272. If a request is for 50 or fewer pages of paper records, the charge for providing the copy of the public information may not include costs of materials, labor, or overhead, unless the pages to be photocopied are located in two or more separate buildings that are not physically connected with each other; or a remote storage facility. Tex. Gov't Code 552.261(a).

 

Do as much homework as possible before submitting a request.  Look at the public body’s website to identify what records it may have and who the FOIA officer is. An informal courtesy call before making a submission is sometimes helpful to confirm what your research has shown and that you are targeting the correct public body.  Requests should be clear and specific to avoid wrangling over ambiguous language.  The narrower the request, consistent with your needs, the less likely it is that you will encounter resistance or delay.

All state public bodies subject to the Act, any county or city, any town with a population greater than 250, and any school board are obligated to make certain specified information public and to link to such information on its website.  The information is: (1) a plain English explanation of the rights of a requester, the procedures to obtain public records from the public body, and the responsibilities of the public body in complying with the Act; (2) contact information for the person designated by the public body as its FOIA officer to assist a requester in making a request or to respond to requests; (3) a general description, summary or index of the types of records maintained by that public body; (4) a general description, summary or list of any exemptions in the law that permit or require public records to be withheld from release; (5) any policy the public body has concerning the type of public records it routinely withholds from release as permitted by the Act or other law, and (6) a statement quoting the reasonable cost provisions of the Act governing permissible charges for access to records. Va. Code Ann. § 2.2-3704.1.A.

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The Public Records Act is silent as to the procedure for obtaining records.  The statute does mention an “application,” but does not define what is meant by that term. Written requests are necessary when the requester has been denied access to the records. A custodian must cite the reasons and the legal authority for denying access to records or information if requested to do so in writing. The official custodian of any public record may make rules and regulations regarding the inspection of the records. If the custodian feels that substantial injury to the public interest would result from disclosure of the record, he may apply to the district court where the record is located for an order permitting him to restrict disclosure. Wyo. Stat. § 16-4-203(g) (1977, Rev. 1991 & Cum. Supp. 1996). See Foreword; Sheridan Newspapers, supra, at 798.