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F. Addressing government suits against disclosure

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  • Alaska

    Nothing applicable.

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  • Arizona

    Not addressed.

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  • Arkansas

    The FOIA itself does not speak directly to a right of action to enjoin the disclosure of records. However, such “reverse-FOIA” suits are not unknown in the state. E.g., McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). Nor are suits by a government agency to avert disclosure. For example, in Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986), the state revenue commissioner sought a declaratory judgment that certain tax records were not subject to the FOIA. An agency could presumably do the same thing with respect to records allegedly protected by the competitive advantage exemption. Ark. Dep’t of Fin. & Admin. v. Pharmacy Assocs., Inc., 333 Ark. 451, 970 S.W.2d 217 (1998) (holding the Department of Finance and Administration could assert the competitive-advantage exemption on behalf of the person who submitted the information). As a matter of procedure, one who seeks declaratory relief also may ask for an injunction, and one who obtains a declaratory judgment may later ask that it be enforced by injunction. See Ark. Code Ann. § 16-111-108 (formerly cited as Ark. Code Ann. § 16-111-110).

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  • California

    The California Supreme Court has held that an agency may not initiate a declaratory relief action to determine its obligation to disclose records to a member of the public. Filarsky v. Superior Court, 28 Cal. 4th 419, 426, 121 Cal. Rptr. 2d 844, 49 P.3d 194 (2002). Third parties with significant interests in the public disclosure of records may, however, seek relief barring the agency from disclosing records. See, e.g., Marken v. Santa Monica-Malibu Unif. Sch. Dist., 202 Cal. App. 4th 1250, 1265-68, 136 Cal.Rtpr. 3d 395 (2012).

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  • Colorado

    A public records custodian may file an application with a district court seeking an order permitting him or her to restrict or deny access to the records if (s)he establishes that although no specific statutory exemption from disclosure applies, public disclosure of the particular records would cause "substantial injury to the public interest." C.R.S. section 24-72-204(6); see also Civil Service Comm'n v. Pinder, 812 P.2d 645 (Colo. 1991)(to establish "substantial injury to public interest" to warrant nondisclosure, custodian must demonstrate that the particular circumstances of the case are such that the legislature could not have anticipated them); Bodelson v. Denver Publ'g Co., 5 P.3d 373 (Colo. App. 2000)(same). Alternatively, the custodian may apply to a district court for an order permitting him or her to restrict disclosure if the custodian "is unable, in good faith, after exercising reasonable diligence and after reasonable inquiry, to determine whether disclosure of the public record is prohibited" by the statute. Colo. Rev. Stat. § 24-72-204(6).

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  • Connecticut

    There are no specific provisions or reported court decisions discussing government suits against disclosure.

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  • Delaware

    On at least one occasion, a government agency has filed suit to bar disclosure, seeking a declaratory judgment that it did not have to produce requested information. See, e.g., Bd. of Managers of Delaware 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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  • District of Columbia

    The D.C. Act does not address government suits against disclosure.

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  • Georgia

    It is unusual but sometimes happens that a public agency that has received a request for records under the Act will itself file suit, seeking a declaration from the court as to how it should respond.  Most typically, this occurred when an agency received a request for records and intended to comply but a third party that had submitted the records claimed they were “trade secrets” that the agency could not lawfully disclose.  The Act now provides that an agency faced with such a situation should not file suit.  Rather, it must give the third party ten days notice of the agency’s intent to disclose unless the third party goes to court and obtains an injunction against disclosure.  O.C.G.A. § 50-18-72(a)(34).

    See also Smith v. DeKalb Cty., 288 Ga. App. 574, 576, 654 S.E.2d 469, 471 (2007) (Secretary of State had a “complete right” to file suit to enjoin county disclosure of certain voting data pursuant to the Act).

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  • Hawaii

    While agencies often request opinions to be issued by the OIP regarding particular records, suits specifically filed by government agencies to set a precedent on certain records have not surfaced in Hawaii.

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  • Idaho

    There are no cases in Idaho on this point.

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  • Illinois

    A public body that has been directed to release records pursuant to a binding opinion by the Attorney General may file a complaint for administrative review in the circuit courts or Cook or Sangamon County.  See 5 ILCS 140/11.5.  The binding opinion is treated as a final decision of an administrative agency under Illinois Administrative Review Law, 735 ILCS 5/Art. III. See 5 ILCS 140/11.5.

    A public body could also invoke the Declaratory Judgment provision of the Code of Civil Procedure 735 ILCS 5/101 et seq. to bring such a suit where no binding opinion was issued by the Attorney General.

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  • Indiana

    The Act does not specify any procedures or guidelines for addressing government suits against disclosure. Seeking the opinion of the Public Access Counselor is an advisable starting point for addressing these issues.

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  • Iowa

    There is no apparent case law on this topic.

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  • Kansas

    Not specifically addressed.

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  • Kentucky

    The court will utilize the Open Records Act and applicable case law to determine if the public agency’s refusal to disclose is legally justified.

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  • Louisiana

    There is no apparent case law on this topic.

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  • Maine

    A reverse FOAA action may be filed against government by a private party to prevent disclosure. See, e.g., The Lewin Group, Inc. v. Dep’t. of Health and Human Services, BCD-AP-14-01 (March 13, 2014).  The Law Court has not yet addressed the standard of judicial review in reverse-FOIA cases.  The remedy typically sought is a temporary restraining order and injunction barring access to specific records or requiring that a meeting take place in executive session.

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  • Maryland

    The exceptions requiring denials of requests for certain records and information have the consequence of imposing an obligation on the custodian to deny inspection. §§ 4-304, 4-328. If the custodian decides to release information or records that might be covered by the exceptions, the subject of a record or the person who submitted the record may bring suit to prevent disclosure. Accordingly, at least one court has recognized reverse PIA actions in Maryland. See CSX Transp., Inc. v. Maryland Dep’t of the Envir., No. 24-C-14-004378 (Cir. Ct. Balt. City Aug. 14, 2015) (recognizing “reverse PIA action” and upholding agency decision to release records); Norfolk Southern Ry. Co. v. Maryland Dep’t of the Envir., No. 24-C-14-004367 (Cir. Ct. Balt. City Aug. 14, 2015) (same). To guard against such actions, if a custodian proposes to release a document arguably covered under these exceptions, the custodian should contact the person potentially affected by release so that the person may advise regarding whether the record should remain confidential and to seek judicial intervention, if necessary.

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  • Michigan

    A plaintiff may bring an action to prevent disclosure of information held by a public body. See Bradley v. Saranac Community Schools, supra (a teacher may seek an injunction preventing disclosure of her personnel files); Tobin v. Michigan Civil Service Comm’n, supra (state employees may seek an injunction preventing the disclosure of the names and addresses of all civil service employees). Such an action, often referred to as a "reverse FOIA" action, usually alleges that the information is exempt from disclosure, and thus is analyzed under the FOIA. Bradley, supra, 455 Mich. at 292.

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  • Montana

    In the last several years, some governmental entities have been filing pre-emptive actions in district court pursuant to the Constitutional right-to-know provision, arguing that certain documents in their custody are private. The action is usually triggered by a media request for those documents. Accordingly, in high profile cases, the requestor should expect to be drawn in to a court action even if it elects not to commence suit to obtain access.

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  • Nevada

    No provision in Nevada law.

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  • New Hampshire

    The Statute does not address this issue.

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  • New Jersey

    In the Matter of the New Jersey Firemen’s Association Obligation to Provide Relief Applications Under the Open Public Records Act, 230 N.J. 258 (2017) - involved the filing by the Association of a declaratory judgment action in response to an OPRA request so as to obtain a judicial determination of its responsibilities under OPRA.  The Court held that the declaratory judgment action was improper because at the time it was filed the Association had already made a determination of its legal obligation with respect to the requested records and denied access to same, thereby extinguishing the controversy between the parties.  The Supreme Court further held that once the Association denied access to the requested records, N.J.S.A. 47:1A-6 authorized only Carter to seek judicial review of that decision. The Supreme Court expressly left open the question of “whether a public entity may file a pre-denial declaratory judgment action when confronted with an unsettled question that has not been litigated before and that implicates OPRA’s privacy prong, N.J.S.A. 47:1A-1.”

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  • New Mexico

    See generally Republican Party of New Mexico v. New Mexico Taxation & Revenue Dep't, 2012-NMSC-026, 283 P.3d 853 (records requested under IPRA were not protected from disclosure by executive privilege).

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  • North Carolina

    In 2004, the North Carolina courts ruled that government agencies may not use the Public records law as a sword by suing private citizens over a public records dispute. McCormick v. Hanson Aggregates Southeast Inc., 164 N.C. App. 459, 596 S.E.2d 431. cert. denied and appeal dismissed, 359 N.C. 69, 603 S.E.2d 131 (2004). See also City of Burlington v. Boney Publishers Inc., 166 N.C. App. 186, 600 S.E.2d 872 (2004), disc. rev. improvidently allowed, 359 N.C. 422, 611 S.E.2d 833 (2005).

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  • Ohio

    No provision of the Public Records Act authorizes a government suit against a requester to attempt to bar disclosure. The Ohio Supreme Court has permitted a newspaper to seek a writ of mandamus to compel access despite the pendency in a lower court of a government suit for declaratory judgment aimed at barring that access. State ex rel. Long v. Council of the Village of Cardington, 92 Ohio St. 3d 54, 748 N.E.2d 58 (2001).

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  • Oklahoma

    There have been no suits brought to date by governmental entities seeking to prevent disclosure of public records.

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  • Oregon

    Not addressed.

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  • Rhode Island

    This issue has not been addressed by the courts.

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  • South Carolina

    There is no prohibition against a public body initiating a suit seeking a declaration of the scope of disclosure required by the statute. There are two reported cases of this nature, and in both cases disclosure was appropriate. City of Columbia v. American Civil Liberties Union of S.C. Inc., 475 S.E.2d 747 (S.C. 1996); S.C. Tax Com'n. v. Gaston Copper Recycling Corp., 447 S.E.2d 843 (S.C. 1994).

    A public body may also bring a lawsuit to seek relief from unduly burdensome, overly broad, vague, repetitive, or otherwise improper requests, or where it has received a request but it is unable to make a good faith determination as to whether the information is exempt from disclosure. S.C. Code Ann. § 30-4-110(A).

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  • South Dakota

    Has not been raised in the specific context. However, in Hobart v. Ferebee, 2004 S.D. 138 (2004), the South Dakota Supreme Court struck down a protection order granted to a private citizen against his neighbor that required the neighbor to obtain court permission in advance of filing any complaints with any governmental agency on the grounds that it violated the First Amendment right of free speech and the right to petition the government.

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  • Tennessee

    The author is not aware of any lawsuits brought by the government to prevent disclosure. However, there has been a recent trend of persons opposed to disclosures suing a records custodian to prevent disclosure of particular records, when the custodian may not have wanted to make disclosure in any event. Then, those parties enter into an agreed judgment signed by the court to prevent disclosures, all without the knowledge or participation of those citizens who seek disclosure of such records. E.g. Consent Decree, Oct. 5, 2017, Woodward v. Chattanooga No. 1:17-cv-253 (E.D. Tenn 2017). Such actions, when accepted by the court, will likely be used to delay or prevent access to records.

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  • Texas

    Not addressed.

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  • Utah

    Not addressed.

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  • Vermont

    No case law on point.

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  • Virginia

    This issue has not arisen in Virginia. The organizations above are contact points should such a situation arise.

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  • Washington

    Agencies are entitled to bring suit to enjoin release of specific public records RCW 42.56.540.

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  • West Virginia

    In re Charleston Gazette FOIA Request involved a City that refused to release to a newspaper certain payroll records of police officers. 222 W. Va. 771, 671 S.E.2d 776 (W. Va. 2008). After refusing to disclose the requested records, the City sought a declaratory judgment that it had no legal duty to disclose the requested information. The Supreme Court of Appeals confirmed that a public body may seek a declaratory judgment as a means of vindicating its authority to withhold records made exempt by FOIA or other statute. However, the Court decided on the merits that the City had violated its duty under FOIA to disclose the withheld payroll records requested by the newspaper.  

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  • Wyoming

    As stated above, a governmental entity may seek an order from the district court authorizing the custodian to withhold a record that should otherwise be open because disclosure would cause "substantial harm" to the public interest.

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