G. Addressing government suits against disclosure

Although we know of no published cases involving a government suit against disclosure of public records, a declaratory judgment action filed by a governmental body under the former open meetings law in Alabama provides guidance if such an action should arise. In Huntsville-Madison County Airport Authority v. Huntsville Times, 564 So. 2d 904 (Ala. 1990), the Huntsville-Madison County Airport Authority claimed that the Huntsville Times newspaper "had accused it of conduct in violation of the [former] 'Sunshine Law.'" Id. at 904. The Authority brought a declaratory judgment action against the newspaper seeking answers to questions regarding whether the Authority was governed by the former Sunshine Law and, if so, to what extent. Id. at 905. The newspaper filed a motion to dismiss the action, asserting multiple grounds for dismissal, "including the lack of a justiciable controversy, prohibition against advisory opinions, failure to join indispensable parties, and failure to state a claim upon which relief could be granted." Id. The court granted the newspaper's motion and dismissed the Authority's action, holding that the Authority's complaint did not present a justiciable controversy, but rather sought an advisory opinion. Id.

"Any person may institute a proceeding for injunctive or declaratory relief, or for a writ of mandate, in any court of competent jurisdiction, to enforce that person’s  right to inspect or receive a copy of any public record or class of public records." Cal. Gov't Code § 7923.000. The California Supreme Court has held that the plain meaning of this provision "contemplates a declaratory relief proceeding commenced only by an individual or entity seeking disclosure of public records, and not by the public agency from which disclosure is sought." Filarsky v. Superior Court, 28 Cal. 4th 419, 426, 121 Cal. Rptr. 2d 844, 49 P.3d 194 (2002) (city may not initiate ordinary declaratory relief action to determine its obligation to disclose records to a member of the public as CPRA provides exclusive means for litigating question of whether records must be disclosed).

In 2012, Kansas Attorney General Derek Schmidt filed a civil action in Shawnee County District Court to obtain a temporary restraining order to prevent publication of certain notes and other materials that had been held by a deceased Kansas Bureau of Investigation (KBI) agent.  The agent, Harold Nye, had compiled the materials while investigating the notorious 1959 murder of the Clutter family in Holcomb, Kansas.  The murder case was famously described by Truman Capote in his 1966 best-seller, In Cold Blood.

Although the attorney general initially secured a temporary restraining order and preliminary injunction preventing publication, the district judge ultimately vacated those orders, finding such a prior restraint improper.  See Memo. Decision & Order, State of Kansas, ex rel. Attorney General Derek Schmidt v. Nye, et al., Shawnee County District Court Case No.12 CV 1053 (Shawnee Cty. Dist. Ct. Nov. 26, 2014), http://www.shawneecourt.org/DocumentCenter/View/526.

In 2010, the Department of Transitional Assistance warned a records requester that if he publicized information about how much the government had reimbursed stores for food stamps – data that the agency had turned over to the requester – he could face federal fines of up to $1,000, plus up to a year in jail.  (The requester did not buckle, and the agency took no further action.)  See M. Morisy, “Transparency Missing from Government,” CommonWealth, Summer 2011 (July 6, 2011).

More typically, requests to enjoin disclosure typically take the form of third-party suits against the government agency to preclude release of the third party’s documents that are in the agency’s possession. See, e.g., Wakefield Teachers Ass’n v. Sch. Comm. of Worcester, 431 Mass. 792, 793 & n.4 (2000) (complaint for injunctive relief brought on teacher’s behalf by teachers’ exclusive bargaining representative). Media entities can typically intervene in such situations. See, e.g., Bechtel Infrastructure Corp. v. Mass. Turnpike Auth., 16 Mass. L. Rep. 149 (Super. Ct. April 10, 2003) (intervention by Boston Globe).

A plaintiff may bring an action to prevent disclosure of information held by a public body. See Bradley v. Saranac Cmty. Sch., 455 Mich. 285 (1997) (a teacher may seek an injunction preventing disclosure of her personnel files); Tobin v. Mich. Civil Serv. Comm’n, 331 N.W. 2d 184 (1980) (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, 455 Mich. at 292.

In the Matter of the New Jersey Firemen’s Ass’n 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 the plaintiff 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.”

Not contemplated by Oklahoma law.

The Law does not provide a mechanism where an agency may challenge disclosure of records that are responsive under the Law. But agencies have filed lawsuits to prevent the disclosure of records. For example, the Commonwealth has sought to enjoin the disclosure of autopsy records on the theory that disclosure would hinder an ongoing investigation. In re Buchanan, 823 A.2d 146 (Pa. Super. Ct. 2003), aff’d 880 A.2d 568 (Pa. 2005); see also Juniata Valley Sch. Dist. v. Wargo, 797 A.2d 428 (Pa. Commw. Ct. 2002).

Not addressed.

Wisconsin has not addressed this issue.