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c. Delays

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  • Alabama

    The Alabama Supreme Court found in Birmingham News Co. v. Muse [Muse II, 1st appeal], 638 So. 2d 853 (Ala. 1994), that the question of delay in the release or ordered release of the requested records was moot and refused to address the issue. The Court did not suggest, however, that delay was an inappropriate issue to address, in the proper case.

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  • Alaska

    No cases specifically relating to this issue are addressed here.

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  • Arizona

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

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  • Arkansas

    A court could be called upon to decide whether delay on the part of an agency is tantamount to a denial of access, but this issue has not arisen in reported cases. If non-exempt public records are in “active use or storage,” the custodian has three working days to make them available for inspection and copying. Ark. Code Ann. § 25-19-105(e). A FOIA suit filed before the expiration of this period is premature. Hamilton v. Simpson, 67 Ark. App. 173, 176, 993 S.W.2d 501, 503 (1999).

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  • California

    While delay beyond that which is proscribed under Section 6253(c) of the CPRA may allow a requester to bring suit, the California Supreme Court has held that “requiring disclosure of otherwise exempt records as a penalty for delay in complying with the Act’s timing requirements is unduly harsh.”  Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 44 Cal. Rptr. 3d 663, 136 P.3d 194 (2006). But failing to assert a specific exemption while relying on others may waive the right to raise exemption for first time in subsequent litigation.  See, e.g., ANG Newspapers v. Union City, 33 Med. L. Rptr. 2069 (Cal. Sup. Ct. 2005) (ruling that City's failure to assert exemption waived right to raise exemption for first time in response to order to show cause).

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  • Colorado

    A hearing on the application is to be held "at the earliest practical time." 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 may award attorneys' fees and costs to a successful plaintiff. An improper delay in production of requested information may support such an award of attorneys' fees and costs.

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  • Georgia

    The courts are authorized to examine whether an agency's delay violates the Act.

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  • Hawaii

    Probably, since the OIP Rules establish time limits for disclosure.

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  • Idaho

    None specified.

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  • Illinois

    A public body’s failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request so as to trigger the requester’s right to suit.  See 5 ILCS 140/3(d); see 5 ILCS 140/11(a).  A public body that fails to respond to a request within the requisite periods set forth in 5 ILCS 140/3 but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies.  See 5 ILCS 140/3(d).

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  • Indiana

    To the extent that delays in responding to a written request for records are deemed to be a denial under the statute, the court could address this issue.

    The agency must produce the documents or allow the requestor to make copies within a reasonable time, so a reviewing court could find that the agency’s delay was unreasonable. Ind. Code § 5-14-3-3(b). However, an agency that agrees to provide records may not violate the statute if it fails to provide the records within the statutory time frame if the agency provides the records within a reasonable time and advises the requestor that the agency is not challenging the right to the documents. See Hrstich v. City of E. Chicago, 862 N.E.2d 9 (Ind. Ct. App. 2007) (unpublished).

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  • Kentucky

    Court actions under the Open Records Act may be brought concerning delays or other actions by public agencies that violate, or frustrate the intent of, the Act. See Ky. Rev. Stat. 61.882(1).

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  • Louisiana

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

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  • Maine

    An delay past the 5 working day period for response is considered a denial. Guy Gannett Publishing Co. v. Maine Dept. of Public Safety, 555 A.2d 474 (Me. 1989).  The Courts have not addressed what may constitute a “reasonable time” for providing access to a record. 1 M.R.S.A. § 408(1).

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  • Maryland

    Because a delay beyond the statutory time limits may constitute a denial, the court may address issues related to delay as well. § 4-203(b)(3).

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  • Massachusetts

    The court will not address delays since the right to initiate a suit exists immediately after the custodian refuses a request or has taken no action for ten days.

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  • Michigan

    Failure to respond to a request for information pursuant to Mich. Comp. Laws Ann. § 15.235(2) is considered a final determination by the public body to deny the request. See Local Area Watch v. City of Grand Rapids, 262 Mich. App. 136, 683 N.W. 2d 745 (2004) (defendant’s failure to timely respond qualifies as a violation of the provision even if the defendant acted in good faith).  If a circuit court later orders a public body which has failed to respond to a request to disclose or provide copies of the public record in question, the circuit court may assess punitive damages against the public body under Mich. Comp. Laws Ann. § 15.240(7). Mich. Comp. Laws Ann. § 15.235(3).  But under 15.235(2)(d), a public body may issue a notice extending for not more than ten business days the period during which the public body shall respond to the request.  For the purposes of FOIA, “business day” means Monday through Friday and not Saturday or Sunday (or legal holiday).  Key v. Township of Paw Paw, 254 Mich. App. 508 657 N.W. 2d 546 (2002). Moreover, under the 2015 amendment, “[i]f the court determines . . . that a public body willfully and intentionally failed to comply with this act or otherwise acted in bad faith, the court shall order the public body to pay, in addition to any other award or sanction, a civil fine of not less than $2,500.00 or more than $7,500.00 for each occurrence.” Mich. Comp. Laws Ann. § 15.240b.

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  • Montana

    A district court may consider whether a delay was undue and constitutes denial.

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  • Nevada

    There is no statutory or case law addressing the issue

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  • New Mexico

    Court will address any delay or 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 attorney fees.  NMSA 1978 § 14-2-12(B).

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  • North Dakota

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

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  • Ohio

    Courts will address delay, and may award statutory damages because of unreasonable delays. State ex rel. DiFranco v. City of So. Euclid, 144 Ohio St.3d 571, 45 N.E.3d 987, 2015-Ohio-4914.

    But the delays should be substantial in comparison with the apparent logistical difficulty of responding to the request. State ex rel. Warren Newspapers Inc. v. Hutson, 70 Ohio St. 3d 619, 640 N.E.2d 174 (1994); see also State ex rel. Wadd v. City of Cleveland, 81 Ohio St. 3d 50, 689 N.E.2d 25, 1998-Ohio-444; see also State ex rel. Consumer News Servs. Inc. v. Worthington City Bd. of Educ., 97 Ohio St. 3d 58, 776 N.E.2d 82 (2002) (finding that a six-day delay was not prompt, defining "prompt" as without delay and with reasonable speed), State ex rel. Office of Montgomery County Public Defender v. Siroki, 108 Ohio St. 3d 207, 842 N.E.2d 508 (2006) (holding that if an office could produce records in two days, then it should do so).

    Delay alone confers standing to sue. State ex rel. DiFranco v. City of So. Euclid, 144 Ohio St.3d 571, 45 N.E.3d 987, 2015-Ohio-4914.

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  • Oklahoma

    A public body must provide "prompt, reasonable access" to records. 51 O.S. § 24A.5.5.

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  • Oregon

    Under ORS 192.407, enacted in 2017, disputes over a public body’s compliance with the time requirements of ORS 192.329 are subject to administrative review. Generally, the courts have “the same authority with respect to petitions” under ORS 192.407 “as when inspection of a public record is denied.” ORS 192.407(2).

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  • Rhode Island

    Delay beyond ten business days constitutes denial. R.I. Gen. Laws § 38-2-7(b).

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  • South Carolina

    Delay is treated as denial.

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  • Tennessee

    This may be addressed by Court.

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  • Texas

    The Legislature “has not addressed or provided a waiver of sovereign immunity as to a claim that is based on a governmental body’s delay or its motives for delaying the release of information that is subject to disclosure under [the Act].” Gates v. Tex. Dep’t of Family and Protective Servs., No. 03-15-00631-CV, 2016 WL 3521888 at *4 (Tex. App.—Austin June 23, 2016, pet. denied).

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  • Utah

    If the government entity fails to provide the requested records or to issue a denial within the specified time period, such failure is equivalent to a denial of access and may be appealed as such. See Utah Code § 63G-2-204(8). In addition, a requester may judicially challenge the government entity’s use of the “extraordinary circumstances” provision in Utah Code section 63-2-204(5).

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  • Vermont

    The Vermont Supreme Court has held that “[b]ecause the statute does not provide a negative consequence for an agency’s failure to comply with the time requirement, nor does it specify a remedy such as a ‘deemed approval’ or ‘waiver of exemptions,’ . . . the time requirement of § 318 is intended to be directory rather than mandatory.”  Shlansky v. City of Burlington, 2010 VT 90, ¶ 17, 13 A.3d 1075, 1082-83 (Vt. 2010) (noting that instead of providing a deemed approval or waiver, “the Public Records Act explains that if a request is not timely fulfilled, it is deemed denied).  Accordingly, an agency’s delay in responding to a public records request is not addressed by the court, beyond pointing out that such a delay constitutes a denial.

     

    In the same case, the Vermont Supreme Court held that the “Public Records Act is not intended as a device to delay ongoing litigation or to enlarge the scope of discovery beyond that already provided under the court rules.”  Shlansky, 2010 VT at ¶ 19, 13 A.3d at 1083 (finding there was no basis to continue plaintiff’s traffic court case based on his public records suit); see also Wesco, Inc. v. Sorrell, 2004 VT 102, ¶ 22, 865 A.2d 350, 358 (Vt. 2004).

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  • West Virginia

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

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  • Wisconsin

    A court can order the release of records based on a delay. Wis. Stat. § 19.37(1).

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