4. Provisions for broad, vague, or burdensome requests

Except where exempt by express provisions of law, an agency is required to make records promptly available to any person upon receipt of a request that “reasonably describes an identifiable record or records . . . .”  Cal. Gov’t Code § 7922.530(a). “However, the requirement of clarity must be tempered by the reality that a requester, having no access to agency files, may be unable to precisely identify the documents sought.” Getz v. Superior Court, 72 Cal. App. 5th 637, 650, 287 Cal. Rptr. 3d 722 (2021).  In Getz, the court rejected a county’s argument that the request was “overbroad and unreasonable” where the county  produced an index to the requester of 42,582 e-mails responsive to the request, thus demonstrating “that the records could be located with reasonable effort and the volume of material was not unmanageable.”  Id. at 651.  See also CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 909, 110 Cal. Rptr. 2d 889 (2001) (even if it would cost the Department of Social Services approximately $43,000 to compile accurate list of every individual granted criminal conviction exemption to work in licensed day care facility and identity of each facility employing such individuals, cost was not valid reason to deny CPRA request).

At least one court has denied a requester's right to copy documents where they were available for inspection at the agency's office and the documents were voluminous (80,000) and costly to print and ship. Rosenthal v. Hansen, 34 Cal. App. 3d 754, 757, 761,110 Cal. Rptr. 257 (1973).  Similarly, "[a] clearly framed request which requires an agency to search an enormous volume of data for a 'needle in the haystack' or, conversely, a request which compels the production of a huge volume of material may be objectionable as unduly burdensome. [citations omitted] Records requests, however, inevitably impose some burden on government agencies. An Agency is obligated to comply so long as the record can be located with reasonable effort." Cal. First Amendment Coal. v. Superior Court, 67 Cal. App. 4th 159, 166, 78 Cal. Rptr. 847 (1998).

Additionally, courts have recognized that the cost and effort of producing public records is a factor that may be considered under Section 7922.000’s public interest balancing test. See, e.g., Nat. Lawyers Guild v. City of Hayward, 9 Cal. 5th 488, 508, 263 Cal. Rptr. 3d 124, 464 P.3d 594 (2020) (“[Section 7922.000] speaks broadly of the ‘public interest,’ a phrase which encompasses public concern with the cost and efficiency of government.”); N. Cty. Parents Org. v. Dep’t of Ed., 23 Cal. App. 4th 144, 151-52, 28 Cal. Rptr. 2d 359 (1994) (“A court performing this balancing test is authorized to take into account any expense and inconvenience involved in segregating non-exempt from exempt information, because the statutory term ‘public interest’ ‘encompasses public concern with the cost and efficiency of government.’” (citation omitted)); Fredricks v. Superior Court, 233 Cal. App. 4th 209, 228, 182 Cal. Rptr. 3d 526 (2015) (quoting N. Cty. Parents Org.).

Not addressed.

The D.C. Court of Appeals has held that the both the “language” and “animating spirit of D.C. FOIA” mandate that even an overly broad or vague request will not render that request “void from the start.” Fraternal Order of Police v. District of Columbia, 139 A.3d 853, 859-60 (D.C. 2016). “The implementing regulations of D.C. FOIA . . . impose no greater burden on requesters than to ‘reasonably describe the desired record(s).’” Id. at 861 (citing 1 D.C. Mun. Regs. tit. 1 § 402.4). If that burden is not met, however, the FOIA officer has an “affirmative obligation” to “engage with the requester and seek out the information needed to fulfill the request.” Id. (citing 1 D.C. Mun. Regs. tit. 1 § 402.5). If such information is required to fulfill the request, the clock for production does not start until the FOIA Officer receives the information. 1 D.C. Mun. Regs. tit. 1 § 405.6.

Similarly, unlike federal courts interpreting the federal FOIA, the D.C. Court of Appeals has held that the D.C. Act does not allow requests to be treated as “void-for-volume” (that is, void for being overly burdensome on the agency). F.O.P., 139 A.3d at 862-63. The court further noted that this remains an issue for the legislature—should there be provisions added to D.C. FOIA to allow for further time extensions in cases of excessive burdens of production?—but that the legislature has not yet taken it up. Id. at 863 n.24.

Broad, vague or burdensome requests may trigger certain of the Act’s fee provisions. As amended in 2012, the Act now provides that, “In any instance in which an agency will seek costs in excess of $25.00 for responding to a request, the agency shall notify the requester within a reasonable amount of time not to exceed three business days and inform the requester of the estimate of the costs, and the agency may defer search and retrieval of the records until the requester agrees to pay the estimated costs unless the requester has stated in his or her request a willingness to pay an amount that exceeds the search and retrieval costs.” O.C.G.A. § 50-18-71(d).

The Act further provides that, “In any instance in which the estimated costs for production of the records exceeds $500.00, an agency may insist on prepayment of the costs prior to beginning search, retrieval, review, or production of the records.” Id.

If the cost of a past request has not been paid, “an agency may require prepayment for compliance with all future requests for production of records from that person until the costs for the prior production of records have been paid or the dispute regarding payment resolved. Id.

There is no specific statutory provision covering search requests, and there are no reported cases.

“The custodian may refuse to provide access to a public record, or to permit inspection, if a request places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency. However, refusal under this subsection must be sustained by preponderance of the evidence.”

K.S.A. 45-218(e).

If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal . . . shall be sustained by clear and convincing evidence. Ky. Rev. Stat. 61.872(6).

Failure to respond to the request pursuant to MCL 15.235(2) within five business days constitutes a final determination to deny a request if either: (a) the failure was willful and intentional; or (2) the request included language conveying a request for information within the first 250 words of the correspondence, or the envelope or subject line specifically included words such as “FOIA” or “freedom of information.”  Id.

OPRA only allows requests for records, not requests for information.  A wholesale request for a public agency to research, analyze, collate, and compile general information, rather than a proper request for specific documents, is improper under OPRA.   MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super. 534, 543 (App. Div. 2005).

“If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.”  N.J.S.A. 47:1A-5(g).

NMSA 1978, Section 14-2-8(c) requires that any person making a request for public records identify the records sought with reasonable particularity. Courts have interpreted reasonable particularity. The Attorney General’s IPRA Guide (“Guide”) specifies that “reasonable particularity” does not require that a person identify the exact record sought. See Hector Balderas, IPRA Guide 33 (8th ed. 2015). Instead, it requires that the description provided be sufficient to “enable the custodian to identify and find the requested record.” Id.

NMSA 1978, Section 14-2-10 provides: “If a custodian determines that a written request is excessively burdensome or broad, an additional reasonable period of time shall be allowed to comply with the request. The custodian shall provide written notification to the requester within fifteen days of receipt of the request that additional time will be needed to respond to the written request. The requester may deem the request denied and may pursue the remedies available pursuant to the Inspection of Public Records Act if the custodian does not permit the records to be inspected in a reasonable period of time.”

If a request would clearly cause excessive disruption of the essential functions of the public body, then the public body may charge a reasonable fee to recover the direct cost of record search and copying. 51 O.S. § 24A.5(4)

The Public Records Act contains no exemption for overly broad, vague or burdensome requests.  An agency in receipt of such a request will, however, typically respond seeking clarification regarding the scope of the request and notifying the requestor that it will take an additional 10 business days to respond to the request pursuant to 1 V.S.A. § 318(b)(5).  In response to broad or burdensome requests, the agency may also request that “all charges be paid, in whole or in part, prior to delivery of the copies.”  1 V.S.A. § 316(c).

“A request for public records shall identify the requested records with reasonable specificity.” Va. Code Ann. § 2.2-3704.B. If a response cannot be made within the five-day period that is the default deadline under the Act, the public body may trigger an additional seven business-day period to respond by specifying in writing the conditions that make a timely response impossible. The exception is a records request under Va. Code Ann. §2.2-3706.1 for criminal investigative files, where the public body may trigger an additional 60-day period for making a response to a request. Va. Code Ann § 2.2-3704.B.4.

 

If the public body wants time beyond the statutory extension period, and after making reasonable efforts to reach an agreement with the requester concerning the production of records, the public body may petition the court for additional time “when the request is for an extraordinary volume of records or requires an extraordinarily lengthy search,” and a response within the indicated deadlines will prevent the public body from meeting its operational responsibilities. Va. Code Ann § 2.2-3704.C.

 

“A request for a record without a reasonable limitation as to subject matter or length of time represented by the record does not constitute a sufficient request.” Wis. Stat. § 19.35(1)(h).