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d. Patterns for future access (declaratory judgment)

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  • Alabama

    A judicial action for access to public records may include a demand for declaratory judgment, asking the trial court to declare that a particular category of requested records is public under the Public Records Law. Rule 57 of the Alabama Rules for Civil Procedure provides for an action for declaratory judgment. In at least one  case, however, the trial judge ordered a city internal audit released, as a public record, but refused to find that all internal audit reports of the city are "automatically subject to public disclosure." Birmingham News Co. v. Bedingfield, CV 91-1803 JDC (Cir. Ct. of Jefferson County, Ala., May 2, 1991) (affirmed in Bedingfield v. Birmingham News Co., 595 So. 2d 1379 (Ala. 1992)).

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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 declaratory judgment may be appropriate in an action brought under the FOIA. Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989), overruled on other grounds by Harris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006); Ark. Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975). However, a party seeking declaratory relief must exhaust administrative remedies. Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985). A court has discretion in deciding whether to entertain an action for declaratory judgment, Jessup v. Carmichael, 224 Ark. 230, 232, 272 S.W.2d 438, 440 (1954), and the presence of factual issues may make the case unsuitable for declaratory relief. See Jones v. Am. Home Assur. Co., No. CA04-1345, 2005 WL 1463406, at *3 (Ark. Ct. App. June 22, 2005); Bankers & Shippers Ins. Co. v. Kildow, 9 Ark. App. 86, 654 S.W.2d 600 (1983).

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  • California

    Upon the filing of a complaint for declaratory relief, the court may enter a prospective order governing future rights of access to the records or a class of records; otherwise the court shall not issue any order applying to future denials of disclosure of records by the agency.

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  • Colorado

    No decided cases on this point.

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  • Connecticut

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

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  • Delaware

    A declaratory judgment action is a permissible means of bringing an alleged violation of the Act to the attention of the court in an attempt to gain future access to the information. Likewise, declaratory actions can be brought for a finding that no such violation occurred. See, e.g., Bd. of Managers of Delaware Criminal Justice Info. Sys. v. Gannett Co., 808 A.2d 453 (Del. Super. 2002) (where a declaratory action was brought by the State after a media company sought information).

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  • Georgia

    The courts are authorized to enjoin future violations.

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  • Hawaii

    Yes. It is likely that the court will defer to the OIP, which has been given the mandate to provide advisory opinions at the request of the agencies and individuals and which has been given the power to enforce compliance and to investigate violations. Haw. Rev. Stat. § 92F-42.

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  • Idaho

    None specified.

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  • Indiana

    The Access to Public Records Act does not contemplate declaratory judgment actions unless there has been a denial.  However, the Indiana Convention and Visitors Association brought a declaratory judgment action to determine if it must respond to a request for disclosure from Indianapolis Newspapers Inc. Indianapolis Convention and Visitors Ass’n Inc. v. Indianapolis Newspapers Inc., 577 N.E.2d 208 (Ind. 1991). The answer was yes because the association was a “public agency.” Id.

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  • Kentucky

    Kentucky’s Open Records Act does not include any express provisions regarding declaratory judgments.

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  • Louisiana

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

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  • Maine

    A declaratory judgment may be sought, but in practice a court's decision with respect to one record will be treated as if it were a declaratory judgment pertaining to all similar records.

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  • Maryland

    If an agency has frustrated judicial review by presenting testimony or affidavit in conclusory form, the trial court may, depending upon all of the circumstances, appropriately exercise its discretion by ordering more detailed affidavits or by conducting an in-camera inspection, or simply by ordering disclosure because of the agency's failure to meet its burden of satisfying the court that an exemption applies. See § 4-362(c)(2); Epps v. Simms, 89 Md. App. 271, 598 A.2d 756 (1991); Cranford v. Montgomery County, 300 Md. 759, 481 A.2d 221 (1984).

    The ultimate standard for determining whether an in-camera inspection is to be made is whether the trial judge believes that it is needed in order to make a responsible determination on claims of exemptions. Epps, 89 Md. App. 271, 598 A.2d 756. Factors that may be involved in determining whether an in-camera inspection is necessary include: (1) judicial economy; (2) conclusory nature of the agency affidavits; (3) bad faith on the part of the agency; (4) disputes concerning the contents of the document; (5) whether the agency has proposed in-camera inspection; and (6) the strength of public interest in disclosure. Id. The court has the power to issue injunctions or institute disciplinary actions. See § 4-362(c)(3) and (e); Equitable Trust Co. v. State, Comm'n on Human Relations, 42 Md. App. 53, 399 A.2d 908 (1979), rev'd on other grounds 287 Md. 80, 411 A.2d 86 (1980).

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  • Massachusetts

    Authority to make declaratory judgments exists but is always discretionary with court. See G.L. c. 231 A.

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  • Michigan

    Not addressed.

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  • Montana

    It is not necessary to file a declaratory judgment action in order to obtain continuing relief.

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  • Nevada

    There is no statutory or case law addressing the issue

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  • New Hampshire

    Yes, see RSA 91-A:8,V. “The court may also enjoin future violations of this chapter, and may require any officer, employee, or other official of a public body or public agency found to have violated the provisions of this chapter to undergo appropriate remedial training, at such person or person's expense.”

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  • New Mexico

    Courts can order any appropriate remedy to enforce the provision of Public Records Act, including provisions for future compliance, damages and attorneys' fees.  NMSA 1978 §§ 14-2-12(B)(D).

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  • North Carolina

    Most complaints for violation of the public records law contain parallel requests for declaratory relief under the Declaratory Judgment act. G.S. §§ 1-253 et seq.

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  • North Dakota

    If a court finds a violation, the court may award declaratory relief, an injunction, a writ of prohibition or mandamus, costs, disbursements, and reasonable attorney’s fees against the entity. N.D.C.C. § 44-04-21.2(1).

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  • Ohio

    Suits seeking access to public records may be commenced in the first instance in any appellate level court or in the trial level court. An appellate level court will write opinions. Those opinions have the effect of declaratory judgments making law that guides public offices and requesters in future situations.

    However, the Ohio Supreme Court has refused to issue a writ of mandamus to require an agency to prospectively make certain records available. State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Comm’rs, 120 Ohio St. 3d 372, 384, 899 N.E.2d 961, 974, 2008-Ohio-6253, ¶ 47 (denying writ of mandamus to compel the board, in the future, to promptly make public records available for inspection upon request).

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  • Oklahoma

    Declaratory judgments may be sought. 51 O.S. § 24A.17.B.

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  • Oregon

    Declaratory relief may be sought.

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  • Rhode Island

    Declaratory judgments may be sought. R.I. Gen. Laws § 38-2-8(b).

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  • South Carolina

    The act allows declaratory judgments as well as injunctive relief.

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  • Tennessee

    Court is “empowered to exercise full injunctive relief and remedies.” T.C.A. § 10-7-505(d).

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  • Texas

    A governmental body may file a declaratory judgment action against the Attorney General to determine its rights and liabilities under the Act. City of Garland, 22 S.W.3d 351. A requestor may also file a declaratory judgment action. Dominguez v. Gilbert, 48 S.W.3d 789, 796 (Tex. App.—Austin 2001, no pet.).  However, the Austin Court of Appeals stated that while under earlier versions of the Act, requestors could sue for declaratory judgment in addition to mandamus, the Court declined to express an opinion as to whether the 1999 amendments to the Act changed the law in that regard.  Id.

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  • Utah

    The court can order the disclosure of a record with restrictions on future access. See Utah Code § 63G-2-404(7)(b).

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  • Vermont

    Declaratory judgment is a possibility, although not specifically mentioned, to set up future guidelines.  No published cases in Vermont have analyzed a declaratory judgment claim under the Public Records Act.

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  • West Virginia

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

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  • Wisconsin

    There is no specific provision in the Open Records Law for declaratory relief.

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