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C. Administrative appeal

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  • Alaska

    Bear in mind that the discussion of administrative procedures in this subsection generally is based on 2 AAC 96.100 et seq., governing access to records of state administrative agencies, and may not be applicable to other public entities. The municipal ordinance governing access to Anchorage records, for example, provides that "any denial of a request for information or inspection of public records shall be automatically appealed to the mayor, and a written reply will be given within seven working days either granting or denying the appeal." AMC 3.90.060(B). Any appeal from the clerk's office or ombudsman's office is to the Anchorage Assembly, and any appeal from the school district is to the Anchorage School Board. Id.

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  • Arizona

    There is no requirement that an administrative appeal be submitted prior to the initiation of a lawsuit.

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  • Arkansas

    Nothing in the FOIA addresses an administrative appeal within the agency from a denial of the request. Because there are no specified administrative procedures to exhaust, the initial denial should be treated as final for purposes of judicial review. See Ark. Code Ann. § 25-19-107(a) (citizen denied rights under FOIA “may appeal immediately from the denial”). Exhaustion of administrative remedies is not necessary in FOIA cases unless declaratory relief is sought. Rehab Hospital Servs. Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985).

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  • California

    The CPRA does not mention administrative appeals, but provides for immediate access to any court of competent jurisdiction, without the need to exhaust administrative remedies. Cal. Gov't Code § 6258. Designated state agencies, however, may have adopted regulations for administrative appeals. Cal. Gov't Code § 6253.4. Additionally, many municipalities have adopted sunshine ordinances which may allow for internal review of the municipality's denial.
    The Attorney General is not empowered to enforce the provision of the CPRA unless the AG has itself been denied access to public records under the Act.

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  • Colorado

    Not applicable.

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  • Connecticut

    FOIA states that any person denied the right to inspect or copy a public record may appeal to the FOIC. Conn. Gen. Stat. §1-206(b).

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  • Delaware

    Delaware does not have an administrative appeal procedure. See above for the procedure to request a decision from the attorney general.

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  • Georgia

    The Act does not require or otherwise provide for administrative appeals.

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  • Hawaii

    The OIP is empowered to review and rule on agency denials and to adopt rules setting forth an internal appeals structure providing for direct appeal and time limits. In 2012, the OIP promulgated a comprehensive set of rules governing the procedures for filing an appeal to the OIP by a person denied access to government records. See generally Haw. Code R. ch. 2-73. In order to help explain its new administrative appeals rules, the OIP created a comprehensive guide that summarizes, in question and answer format, the main points to know on filing an administrative appeal with the OIP. The “Guide to Appeals to the Office of Information Practices” can be found at: http://oip.hawaii.gov/laws-rules-opinions/rules/.

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  • Idaho

    Not applicable. “The sole remedy for a person aggrieved by the denial of a request for disclosure is to institute proceedings in the district court of the county where the records or some part thereof are located, to compel the public agency or independent public body corporate and politic to make the information available for public inspection in accordance with the provisions of this chapter.”  Idaho Code § 74-115(1).  The Governor created the position of Public Records Ombudsman, at least in part, to address the concern that average citizens often would not pursue a denial of their public records request given the cost of litigation.  While the Ombudsman position is limited to reviewing, and assisting, with executive branch records, the hope is that future legislation will address expanding the authority and/or jurisdiction of the Ombudsman over all public records in Idaho.

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  • Indiana

    There are no administrative appeals procedures under the Act. A person denied access is advised to seek the intervention of the state Public Access Counselor, not only to facilitate access to the record, but also to lay the foundation for entitlement to attorney fees if litigation is required. Ind. Code § 5-14-3-9(i).

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  • Kansas

    There are no provisions for appealing a denial of requested records. A requester may proceed directly to the district court.

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  • Maine

    The Act does not provide for administrative appeal.  A complaint may be made to the FOAA ombudsman, but there is no formal complaint process and the ombudsman does not have the authority to issue binding rulings.

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  • Maryland

    A person or governmental unit may seek administrative review either through the Public Access Ombudsman or, for fee disputes, the State Public Information Act Compliance Board.  PIA Manual, at 5-3; see also § 4-1B-04(a); § 4-1A-04(a).  The Ombudsman does not have the power to resolve a dispute with the finality necessary for judicial review, nor is there a requirement to bring a dispute to the Ombudsman before seeking judicial review. PIA Manual, at 5-4.

    A person or governmental unit, however, may seek judicial review of the State Public Information Act Compliance Board, but need not exhaust the administrative remedy provided by the Board before filing a court action. § § 4-1A-10(a); Massey v. Galley, 392 Md. 634, 898 A.2d 951 (2006). Unlike a resolution reached by the Ombudsman, the Board’s decision has a binding effect. § 4-1A-04(a)(2), (3).

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  • Massachusetts

    There is an optional administrative appeal to the Supervisor of Public Records in the Office of the Secretary of the Commonwealth. G.L. c. 66, § 10(b); 950 CMR 32.08(2). A requester wishing to appeal the denial of a request has the choice of either petitioning the Supervisor for a decision, or else immediately initiating a court proceeding. The Supervisor has jurisdiction over appeals for non-compliance with any part of the regulations, including those relating to fees. 950 CMR 32.08(2). Except in cases where it is known that the record holder will litigate in any event, the administrative route is often quicker and less expensive.

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  • Michigan

    The FOIA was amended in 1996 to permit administrative appeals. If a request is denied, a requester may (but is not required to) submit to the head of the public body "a written appeal that specifically states the word ‘appeal’ and identifies the reason or reasons for reversal of the denial." Mich. Comp. Laws Ann. § 15.240(1)(a). Within 10 days after receiving a written appeal, the head of the public body must do one of the following:

    (a) reverse the disclosure denial;

    (b) issue a written notice to the requesting person upholding the disclosure denial;

    (c) reverse the disclosure denial in part and issue a written notice to the requesting person upholding the disclosure denial in part; or

    (d) under unusual circumstances, as defined in Mich. Comp. Laws Ann. 15.232(i), issuing a notice extending for not more than 10 business days the period during which the head of the public body shall respond to the appeal. Not more than one notice of extension shall be issued for a particular appeal. Mich. Comp. Laws Ann. § 15.240(2)(d). Under Mich. Comp. Laws Ann. § 15.240(3), a board or commission that is the head of a public body is not considered to have received a written appeal until the first regularly scheduled meeting following submission of the written appeal.  See Federated Publications, supra for discussion of this provision.

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  • Montana

    There are no administrative appeal requirements. The individual requesting the document may go directly to district court to obtain relief under the statute and the constitutional provision listed above.

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  • Nevada

    The NPRA makes no provision for administrative review of denials.

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  • New Hampshire

    There is no administrative appeal.  The Statute provides an immediate remedy in Superior Court where the case is given “high priority on the court calendar.”

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  • New Jersey

    Under OPRA, the remedy for denial of a request for public records is by initiating a summary proceeding in the Law Division of the Superior Court by way of a Verified Complaint and Order to Show Cause. R. 4:67.  The statute also provides an alternate mechanism, at the sole option of the requestor, of filing a complaint with the Government Records Council. N.J.S.A. 47:1A-6. Claims under the common law right to know are only cognizable in Superior Court.

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  • New Mexico

    Exhaustion of administrative remedies is not required prior to an action to enforce the inspection of Public Records Act.  NMSA 1978 § 14-2-12(C).

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  • North Carolina

    The North Carolina Public records law contains no requirements or procedures for administrative appeals in instances where access to public records is denied. If anyone is charged a fee that the requester believes is excessive, the requester may ask the information resource Management Commission to mediate the dispute. G.S. § 132-6.2(c).

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  • North Dakota

    North Dakota law lays out the administrative appeal procedure:

    44-04-21.1. Administrative review procedure.

    1. Any interested person may request an attorney general’s opinion to review a written denial of a request for records under section 44-04-18, a denial of access to a meeting under section 44-04 19, or other alleged violation of section 44-04-18, 44-04-19, 44-04-19.2, 44-04-20, or 44-04-21 by any public entity other than the legislative assembly or any committee thereof. A request made under this section must be made within thirty days of the alleged violation, except that a request based on allegations that a meeting occurred without the notice required by section 44-04-20, must be made within ninety days of the alleged violation. In preparing an opinion under this section, the attorney general has discretion to obtain and review a recording made under section 44-04-19.2. The attorney general may request and obtain information claimed to be exempt or confidential for the purpose of determining whether the information is exempt or confidential. Any such information may not be released by the attorney general and may be returned to the provider of the information. The attorney general shall issue to the public entity involved an opinion on the alleged violation unless the request is withdrawn by the person requesting the opinion or a civil action has been filed involving the possible violation. If the request pertains to a public entity as defined in subdivision c of subsection 12 of section 44-04 17.1, the opinion must be issued to the public entity providing the public funds. In any opinion issued under this section, the attorney general shall base the opinion on the facts given by the public entity.

    2. If the attorney general issues a written opinion concluding that a violation has occurred, the public entity has seven days after the opinion is issued, regardless of whether a civil action is filed under section 44-04-21.2, to disclose the record, to issue a notice of a meeting that will be held within a reasonable time to correct the violation, or to take steps to correct any other violation. If the public entity fails to take the required action within the seven-day period and the person requesting the opinion prevails in a civil action brought under section 44-04-21.2, the person must be awarded costs, disbursements, and reasonable attorney’s fees in the action and on appeal. The consequences for failing to comply with an attorney general’s opinion issued under this section will be the same as for other attorney general’s opinions, including potential personal liability for the person or persons responsible for the noncompliance.

    3. If a state-level public entity as defined in subdivision a of subsection 12 of section 44-04-17.1 does not comply in full with the attorney general’s opinion, and a civil action is brought under section 44-04-21.2 or is reasonably predictable, the entity, at its sole cost and expense, shall retain separate counsel who has been approved and appointed by the attorney general as a special assistant attorney general to represent the entity in that action.

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  • Ohio

    Ohio does not have an administrative appeal procedure. Aggrieved requesters may go directly to court, but Ohio does have a special court procedure in the Court of Claims that is optional for someone suing to gain access to public records. That procedure is explained below:

    Court of Claims

    1. Who may file a complaint?

    Any person who has been “allegedly aggrieved by a denial of access to public records” after filing a public records request under Ohio Rev. Code § 149.43(B). Ohio Rev. Code § 2743.75(C)(1).

    A person who has been denied records may file a complaint with the court of claims under Ohio Rev. Code § 2743.75(C)(1) or a mandamus action in a common pleas court, court of appeals, or Ohio Supreme Court under Ohio Rev. Code § 149.43 (C)(1)(b). A requester may not file both actions simultaneously for the same request. Ohio Rev. Code § 2743.75(C)(1).

    If the court of claims determines that the complaint presents a “case of first impression that involves and issue of substantial public interest, the court shall dismiss the case,” and a person may then file a mandamus action under Ohio Rev Code § 149.43(C). Ohio Rev. Code § 2743.75(C)(2).

    2. Expedited Process.

    The court of claims process for resolving disputes about denials of record requests is designed to be an “expeditious and economical procedure.” Ohio Rev. Code § 2743.75(A). The process encourages settlement by requiring mediation in most cases and a special master makes a recommendation to the court applying the law to the facts of the case to attempt to reduce the burden on the parties. Ohio Rev. Code § 2743.75.

    If the court determines that the complaint constitutes a “case of first impression that involves and issue of substantial public interest, the court shall dismiss the case,” and a person may then file a mandamus action under Ohio Rev Code § 149.43(C). Ohio Rev. Code § 2743.75(C)(2).

    3. What Court?

    If the requester chooses to sue in a common pleas court instead of the court of claims, the only common pleas court with jurisdiction is the court of common pleas of the county where the public office with the records is located. Ohio Rev. Code § 149.43(C)(1)(b).

    Or the requester may file the complaint in the court of appeals with jurisdiction over the location where the public office did not comply with the request. Ohio Rev. Code § 149.43(C)(1)(b)

    Or the requester may file the complaint originally in the Ohio Supreme Court. Ohio Rev. Code § 149.43(C)(1)(b).

    4. Complaint.

    a. Filing Fee.

    The complaint must be filed with a filing fee of twenty-five dollars ($25) payable to the clerk of the court in which the complaint is filed. Ohio Rev. Code § 2743.75(D)(1).

    b. Contents of the Complaint.

    The clerk of the court of claims will designate a form to file a complaint under Ohio Rev. Code § 2743.75 (D)(1).

    The records request, any written responses related to the request, and any other communications relating to the request must be attached to the complaint. Ohio Rev. Code § 2743.75(D)(1).

    c. Service of the Complaint.

    The clerk will serve the public office with the complaint. Ohio Rev. Code § 2743.75(D)(1).

    5. Mediation.

    The special master will immediately refer a case to mediation services unless the special master determines that “in the interest of justice considering the circumstances of the case and the parties, the special master determines the case should not be referred to mediation.” Ohio Rev. Code § 2743.75 (E)(1).

    Mediation may be conducted by telephone or other electronic means. Ohio Rev. Code (E)(1).

    If mediation leads to an agreement between the parties, the complaint is dismissed. Ohio Rev. Code (E)(1).

    If the parties cannot come to an agreement during mediation, the public office must file a response to the complaint or a motion to dismiss. Ohio Rev. Code § 2743.75 (E)(2).

    6. Public Office Response or Motion to dismiss.

    The public office or person responsible for public records must file a response and a motion to dismiss, if applicable, within ten (10) days of the termination of mediation. Ohio Rev. Code § 2743.75(E)(2).

    No other motions or pleadings will be taken at this point in the process unless “the special master directs in writing that a further motion or pleading be filed.” Ohio Rev. Code § 2743.75 (E)(2).

    7. Special Master’s Recommendation.

    a. Prior to the Special Masters Recommendation.

    Prior to submitting the special master’s recommendation, the parties may attach supporting affidavits to their pleadings, the special master may require additional information or affidavits from the parties, but the special master shall not permit discovery. Ohio Rev. Code § 2743.75(E)(3).

    b. The Special Master’s Recommendation.

    The special master must submit his recommendation within seven business days after receiving the public office’s response. Ohio Rev. Code § 2743.75(F)(1).

    The special master’s recommendation is based on “the ordinary application of statutory law and case law as they existed at the time of the filing of the complaint.” Ohio Rev. Code § 2743.75(F)(2).

    Any objections to the special master’s recommendation must be made within seven (7) business days after the recommendation is filed. Ohio Rev. Code § 2743.75(F)(2).

    “If neither party timely objects, the court of claims shall promptly issue a final order adopting the report and recommendation, unless it determines that there is an error of law or other defect evident on the face of the report or recommendation.” Ohio Rev. Code § 2743.75(F)(2).

    c. Objections and Responses to the Special Master’s Recommendation.

    Any objections to the special master’s recommendation must be made within seven (7) business days after the recommendation is filed. Ohio Rev. Code § 2743.75(F)(2).

    Any objection s must be specific and “state with particularity all grounds for the objection.” Ohio Rev. Code § 2743.75(F)(2).

    The opposing party may file a response to the objection within seven (7) days of receipt of the objection. Ohio Rev. Code § 2743.75(F)(2).

    The court shall issue a final order that “adopts, modifies, or rejects” the recommendation within seven (7) business days of a response to an objection. Ohio Rev. Code § 2743.75(F)(2).

    8. Final Order.

    “If neither party timely objects, the court of claims shall promptly issue a final order adopting the report and recommendation, unless it determines that there is an error of law or other defect evident on the face of the report or recommendation.” Ohio Rev. Code § 2743.75(F)(2).

    The court shall issue a final order that “adopts, modifies, or rejects” the recommendation within seven (7) business days of a response to an objection. Ohio Rev. Code § 2743.75(F)(2).

    If the court determines that the public office denied the person access to records in violation of Ohio Rev. Code § 149.43 and no appeal has been filed, then the public office shall give the person access to or copies of the requested records, pay the person’s $25 filing fee, and pay any other costs incurred in the action but, “shall not be entitled to recover attorney’s fees.” Ohio Rev. Code § 2743.75(F)(3).

    9. Appealing a Final Order.

    A party must timely object to the special master’s recommendation to reserve the right to appeal unless the court materially alters the recommendation. Ohio Rev. Code § 2743.75(G)(1).

    Appeals shall be given precedence over other pending matters to ensure a prompt decision. Ohio Rev. Code § 2743.75(G)(1).

    If the appellate court finds that a public office denied a person access to public records in violation of Ohio Rev. Code § 149.43(B) and obviously filed the appeal for no reasonable cause or to unduly harass the person, the court may award attorney’s fees to the person. Ohio Rev. Code § 2743.75(G)(2).

    10. Fees

    The complaint must be filed with a filing fee of $25 payable to the clerk of the court in which the complaint is filed. Ohio Rev. Code § 2743.75(D)(1).

    If the court determines that the public office denied the person access to records in violation of Ohio Rev. Code § 149.43 and no appeal has been filed, then the public office shall give the person access to or copies of the requested records, pay the person’s $25 filing fee, and pay any other costs incurred in the action but, “shall not be entitled to recover attorney’s fees.” Ohio Rev. Code § 2743.75(F)(3).

    If, on appeal, the court finds that a public office denied a person access to public records in violation of Ohio Rev. Code § 149.43(B) and obviously filed the appeal for no reasonable cause or to unduly harass the person, the court may award attorney’s fees to the person. Ohio Rev. Code § 2743.75(G)(2).

    Mandamus action.

    A person who has been denied records may file a complaint with the court of claims under Ohio Rev. Code § 2743.75(C)(1) or a mandamus action under Ohio Rev. Code § 149.43 (C)(1)(b) but may not file both actions simultaneously for the same request. Ohio Rev. Code § 2743.75(C)(1).

     

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  • Oklahoma

    The Act does not provide for an administrative appeal.

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  • Oregon

    Appeal from the denial of disclosure of records held by a state public body goes first to the Attorney General. ORS 192.411(formerly ORS 192.450). An appeal concerning county, city or local records goes first to the district attorney for the county in which the records are located. ORS 192.415 (formerly ORS.192.460). Appeals concerning records held by any elected official go directly to circuit court. ORS 192.427 (formerly ORS 192.480).

    Contents of agency appeal letter. The Public Records Law prescribes a form of petition for reviewing a denied public records request. ORS 192.422 (formerly ORS 192.470).

    Description of the record. The petition should describe with particularity the records sought.

    Need to address fee issues. No.

    Plea for quick response. There is no need to make such a plea. Both the Attorney General and a district attorney must rule on the petition within seven days of receipt, or else the petition is deemed denied. ORS 192.418.

    Can the request be for future records? It would not appear that a public body could effectively deny a request to inspect records not yet existing, and denial is required for appeal.

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  • South Carolina

    Not applicable in South Carolina.

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  • South Dakota

    The 2008 amendments added an administrative review of whole or partial denials of record requests. SDCL §1-27-35 to §1-27-43.

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  • Tennessee

    The Tennessee Public Records Act makes no provision for administrative review of denials. Requestors might seek assistance of the state open records counsel to facilitate getting the records.

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  • Texas

    The Act does not provide any “administrative appeal” procedure.

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  • Vermont

    Although the act does not explicitly require an administrative appeal to the agency head before commencing a court challenge, the Vermont Supreme Court has held that the structure of the act imposes such a requirement. Bloch v. Angney, 149 Vt. 29, 31 538 A.2d 174 (Vt. 1987).

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  • Virginia

    The Act has no provision for an administrative appeal. Informal “appeals” to a public body's senior staff or chief executive officer, or its attorney, can be useful in obtaining informal reconsideration of decisions to deny access.

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  • Washington

    Requesters may ask the agency to review any denial of a records request.. RCW 42.56.520(4). This administrative appeal is not required, but if the requester does take this step, the agency denial is deemed final (meaning the requester can file a lawsuit) within two days. Id.

    The Public Records Act allows any requester whose public disclosure request has been denied to seek a written opinion from the Attorney General as to whether the record is exempt. RCW 42.56.530. The Attorney General’s determination of whether the records at issue are exempt, though persuasive, is not binding on the state agency or on the requester. Other informal avenues that have been successful are approaches to the attorney representing the agency. Often these attorneys are independent of the agency and, therefore, are willing to make an independent assessment of the legal situation.

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  • West Virginia

    Unlike the federal FOIA, West Virginia's Freedom of Information Act has no provisions for administrative appeals. Since the request for records must be made to "the elected or appointed official charged with administering a public body," W. Va. Code § 29B-1-3(2) — there usually is no avenue for formal or informal administrative appeals of a request denial. As noted above, it is important to develop a “paper trail” of the requester’s efforts to obtain a response to a FOIA request. If the requester is a journalist, it may be advisable to write and publish stories about the public body’s failure to comply with its legal duties under FOIA.

    Some agencies, such as professional licensing boards, may have an administrator who is not actually a decisionmaker. In these cases, a denial by the "custodian" may not reflect agency policy, and an informal appeal to the governing board might be considered. Also, in the case of refusals by local agencies that are under the indirect supervision of a state agency, an informal appeal to the state agency may be worthwhile. (W. Va. Code § 16-5-27 (c) provides for such an administrative appeal in one instance: denials of access to local vital statistics records are appealable to the state health department.)

    Because there is no formalized procedure for such appeals, ordinarily one must depend on the administrator's cooperation to present the request to the governing body and to obtain a prompt decision. If this approach is pursued, it is important to provide a clear description of the records or portions of records that were denied and of the reasons given for such denial (or of the relevant facts if you are raising another issue such as excessive fees or delays). The requester should state why the administrator's decision wrong: if possible, the specific portion of the statute or case that makes the error clear should be referenced. Remember, if the issue is not clear, it is unlikely that the administrator's decision will be overruled except by a court. It is often advisable for the requester to indicate that if a failure to disclose the requested information is successfully challenged in court, the agency may be required to pay the attorney fees of the requester.

    There is no time limit established either for making an informal appeal, or for receiving a decision. An appeal letter should specify the time limit within which you desire a response and should state that a failure to respond within this period will be considered a denial. Be reasonable in setting this time limit: since there are no established procedures for such appeals, an expeditious decision is unlikely. If an informal appeal is directed to a part-time governing board, a greater delay in receiving a response must be expected. It should be understood that an informal appeal from a record custodian’s denial of a FOIA request is an option that can delay resolution of the matter and is unlikely to be successful in many cases. Generally, public bodies will not overturn a record custodian’s denial of a FOIA request, notwithstanding whether the denial was lawful or not.  If a requester needs the requested materials promptly, the only truly effective avenue of appeal is to a circuit court.

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  • Wyoming

    This is not applicable in Wyoming.

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