The Open Records appeal process

From the Winter 2011 issue of The News Media & The Law, page 16.

If you’re lucky, your state has an open records ombudsman. These offices have different responsibilities, budgets and authority: Some states give the offices the authority to make binding decisions and some offices merely play an advisory role.

But whether there is a specific office designated for the job, an officer tasked with enforcing the public records act or a state attorney general with enforcement powers, citizens in all but eight states have a way to appeal a denial without resorting to filing suit in state court, either individually or through attorney general action.

Whether or not these options result in binding decisions or merely an advisory opinion varies state to state.

Nineteen states have open records ombudsman agencies or officers. Of those, seven are general, statewide ombudsman or administrative appeal agencies that also handle public records disputes; the other 12 states are access-specific.

More than half cannot issue binding opinions, including two, Maine and Virginia, that do not get involved in active disputes between requesters and the state, but exist more in an advisory capacity by educating the public and government workers on the state’s law.

Agencies with binding authority

Those states that have given binding authority to an agency or officer have granted similar powers and follow similar processes in reviewing disputes. Generally, once a requester brings a dispute to an agency, it may conduct an investigation into the dispute.

The agency will review the request and the denial, and some agencies have the authority to potentially subpoena witnesses, review the documents in question and conduct a hearing on the issue where both sides may present evidence.

With their binding authority, a decision will be ordered and the agency is often able to enforce the order either through penalties or litigation, often with the cooperation of the state attorney general.

Connecticut has one of the first ombudsman agencies in its Freedom of Information Commission, which has been enforcing the state’s open records law since 1975.

It has the authority to hold hearings, subpoena witnesses and require certain documents be produced. The decisions made by the commission are binding on agencies.

The commission can order the disclosure of records in a public records case and nullify decisions made at a meeting held in violation of the open meetings law.

In 2001, the Connecticut commission created model ordinances, which it periodically updates, so local municipalities in the state can create their own ombudsman boards.

Since 2004, Illinois has employed a public access counselor to enforce its open meetings and open records laws under the direction and supervision of the attorney general.

In 2010, Illinois amended its open record and open meetings laws, giving the counselor the power to subpoena witnesses, issue advisory opinions, conduct mediation and, at the public access counselor’s discretion, issue binding opinions to resolve disputes.

The new, stronger public access counselor in Illinois has empowered journalists, giving them a new outlet when their requests have been denied, Diana Rickert and Brian Costin of the Illinois Policy Institute said. However, there is more needed, as the counselor’s inability to penalize those who ignore its orders can leave many without access even after a favorable ruling by the counselor, Costin added.

“There are really no penalties for not complying with the [freedom-of-information] laws,” Costin said while recounting a personal experience in which it took several months after the counselor’s ruling to finally get the records he had requested.

The benefit of having a powerful public access counselor is that it gives opportunities to many who previously would not take the time to appeal and the counselor is especially helpful because it’s an outside agency, specializing in open records issues, Costin said.

But for a journalist on deadline, or even just someone not as persistent as Costin was in his dispute, a deliberate delay after the public access counselor’s ruling can result in a victory for the agency as records that should be open to the public remain closed, he alleged.

“It’s really easy for a municipality to abuse the process,” Costin said.

The Illinois attorney general can take legal action to enforce the binding public access counselor opinions. However, this does not necessarily mean a victory for the requester, Rickert said.

A court proceeding can still take months, or even years, to resolve, she said. Rickert and Costin praised the public access counselor as a tremendous step toward transparency, but criticized the office’s “lack of teeth.” However, both strongly recommended that requesters use the public access counselor if denied by an agency.

“It might be slow, but it’s better than nothing,” Costin said.

Massachusetts uses a supervisor of records to enforce the commonwealth’s Public Records Law. Upon the conclusion of an investigation, the supervisor will issue a written decision, which is binding on the agencies. If an agency fails to comply with the order, the supervisor may refer the manner to the state attorney general or a district attorney for further action.

Disputes arising under Pennsylvania’s Right-to-Know Law are handled by the Office of Open Records which, in addition to offering mediation services and providing education materials, has binding authority to resolve conflicts under the open records law.

Unlike some other states, this office also handles appeals of its own decisions — the office can be petitioned for reconsideration of its own decision — offering an extra step before requesters head to court, if they choose to use it. The Office of Open Records does not need to be used at any point during the appeals process. Requesters may sue in state court from the first denial.

South Dakota and Utah also have ombudsman agencies with binding authority to resolve disputes between state agencies and requesters, the Office of Hearing Examiners and the State Records Committee, respectively. South Dakota’s agency is a statewide general agency that handles all its agency hearings, including those involving the Department of Revenue and the Department of Insurance, whereas Utah’s is records-specific. The State Records Committee in Utah can fine agencies up to $500 per day for noncompliance with an order.

Agencies with nonbinding authority

If an oversight agency lacks binding authority over disputes, it cannot enforce any findings, but it will often still investigate a dispute and issue a decision, generally in the form of an advisory opinion. Often these agencies also provide educational materials and training to government actors and the general public.

The Florida Governor’s Office of Open Government, whose mandate was recently renewed by executive order when Gov. Rick Scott took office in January, has no authority over state agencies because its authority is not statutory. Because of the theory of separation of powers, no governor-created entity has the authority to oversee entities created by the legislature. In this case, Florida agencies are grounded in statutes from the state legislature and because the Office of Open Government was created by executive order and not a statute, it only has authority over other governor-appointed offices.

In Indiana, the public access counselor investigates allegations and issues advisory opinions in addition to education initiatives and compiling statistics on public access issues.

Because the counselor cannot issue binding decisions, the office focuses on education and mediation, while also issuing recommendations to the legislature, roles granted to the counselor by state statute.

Stephen Key, executive director and general counsel for the Hoosier State Press Association, prefers the public access counselor stay out of actual enforcement, preferring enforcement from an independent judge.

Providing the public access counselor with enforcement powers “would fundamentally change the role of the [counselor],” he said. Making the counselor “judge and jury” would lessen the incentive that agencies have to cooperate with public access counselor mediation. And in the more than 12 years of its existence, there has been great cooperation, Key said.

Key said the current set up has been working great in the state, with the public access counselor providing an important intermediary role before court. There are certainly instances of agencies disregarding pubic access counselor advisory opinions, but far fewer cases go to trial because those cases that are unfounded are avoided by the public access counselor intervening and explaining the law to the requester, he said.

“Now the cases that go to court are cases of bad actors or legitimate questions of law,” Key said. “[The counselor] eliminates the need to go to court when maybe it’s just a misunderstanding.”

Key said he encourages requesters to use the public access counselor when a request has been denied. “Take advantage of the expertise of the [counselor] and not just accept a ‘no’ because sometimes the agencies don’t fully understand the law.”

While Key said that the counselor in Indiana plays a significant role in the appeals process despite its lack of binding authority, the commissioner of administration in Minnesota appears to have a much smaller role. The commissioner issues advisory opinions on specific conflicts, but they are not binding on any agencies. In addition, if the commissioner’s opinion is in conflict with a previously issued state attorney general opinion, the attorney general’s opinion is controlling. If there are no conflicting opinions, state courts will give deference to the commissioner’s opinion during litigation. State agencies will also use the office as a source of advice when responding to requests.

Mississippi’s Ethics Commission also issues nonbinding advisory opinions when confronted with a dispute. The commission also offers mediation services and other measures to help resolve an issue without resorting to litigation.

The Freedom of Information Advisory Council in Virginia has limited power to act as an ombudsman agency. It can issue general advisory opinions, but will not involve itself in ongoing disputes. It will not issue an opinion on matters being litigated and it will not offer advice or testimony either. The council’s main function is that of training, education and helping others understand the state’s access laws. When a requester has a problem, the council will explain the law to them in hopes of helping them to understand why their request may have been denied.

In December 2010, the Virginia Governor’s Commission on Government Reform and Restructuring proposed to eliminate the council, in part due to budgetary concerns. No action has been taken on the recommendation.

Role of state attorneys general

For the states that do not have ombudsman offices, requesters are not necessarily left to fend for themselves when their request for access is denied.

Many states have empowered the attorney general to get involved in disputes. That power comes in different forms.

In several states, including Alaska, Georgia, Massachusetts, Missouri, Rhode Island and Texas, the attorney general has the authority to initiate court proceedings against a state agency on behalf of a requester. This power is not one that must be exercised, but these states have specifically granted their attorneys general the ability to do so, at their discretion.

In other states, like Florida and Georgia, the attorney general offers mediation services.

The attorney general in Colorado will occasionally submit friend-of-the-court briefs in an ongoing dispute.

New York and Delaware require their attorneys general to represent the state agency in a court proceeding regarding a records request.

However, Delaware allows for special circumstances where, after the petition of the requester, the attorney general “shall not” represent the agency and instead appear on behalf of the requester when it finds the agency guilty of malfeasance.

Only Kentucky and Nebraska empower their attorneys general to issue binding decisions in a public records dispute. In those states, the attorneys general exercise similar authority as the ombudsman agencies in other states by reviewing the requested documents, evidence and issuing formal opinions.

Jon Fleischaker, general counsel for the Kentucky Press Association and the writer of both versions of the Kentucky open records law — including the provision to use the attorney general for appeals — said the system has worked out really well since it was adopted in 1976.

It’s a process using people focused on the law, it’s inexpensive and you get quick decisions, he said.

“The idea was to give the authority to an office that already had authority over the state agencies,” Fleischaker added. “It never occurred to us to create a separate office.”

The initial law was passed in 1976, Fleischaker said.

In response to problems of agencies disregarding the attorney general’s ruling, the law was amended in 1992 so that requesters can bring action in court and only have to prove that the attorney general made a ruling. The added enforcement provision has helped make the system in Kentucky run smoothly, Fleischaker said.

Requesters do not have to use the attorney general option, though they usually do, he added.

“Most people, including the media, use it, but if you know there’s going to be an appeal or if you think you won’t get a favorable opinion from the attorney general, that’s when you go straight to court.”

Most other attorneys general, if they have a role in the open records process, exercise the ability to issue advisory opinions.

In Maryland, Minnesota, North Carolina and Oklahoma, issuing advisory opinions is their sole role. In Montana, the attorney general will also issue opinions, but citizens are not allowed to petition for an opinion individually, as in other states.

In other states, like New Hampshire, Utah, and West Virginia, the attorney general will advise the state agencies on the public records law, while in Wisconsin, the attorney general will only offer informal advice.

In total, 29 states and the District of Columbia impart some role for their attorney general in handling disputes between agencies and requesters. These roles vary greatly amongst those states and some states have both an ombudsman agency and an active attorney general.

The proposed agencies

While Virginia has proposed to eliminate its ombudsman agency, Washington state and the District of Columbia have proposed new laws that would create ombudsman agencies to oversee records disputes, with the D.C. proposal facing just one last hurdle before becoming law.

On Jan. 19, Washington, D.C., Mayor Vincent C. Gray signed into law a bill that creates an Open Government Office, which will at least nominally oversee the enforcement of the city’s open meetings and open records statutes. The bill was transmitted to Congress, where it will become law on April 3 if there’s no resolution in opposition to the legislation.

D.C.-area attorney and open government advocate Robert Becker said the creation of the office, while a first step, is a “bad first step.”

The original proposal for the office had strong enforcement powers, with the ability to subpoena witnesses, compel agency cooperation and enforce its orders through litigation, Becker said. The office that was created is “very weak,” he said.

As passed, the office can litigate to enforce the open meetings act, but not the open records law, Becker said. In addition, because the office can only issue advisory opinions, the litigation is not grounded in an official finding from the office. Becker said the office has “no teeth.”

“It can’t order [agencies] to do anything,” he said.

Becker is hopeful that the original bill’s sponsor, who had proposed the stronger open government office, will reintroduce the bill and give the people a better outlet for their appeals. Becker expressed optimism that the bill that was passed and Gray, who issued an executive order upon inauguration stating his commitment to transparency, will usher in a new attitude towards transparency in the district.

“The office can get better and can do a good job with the right direction,” Becker said.

Requesters in Washington state may also soon have an independent state agency to handle access disputes. The proposed Office of Open Records would resolve disputes through a hearing process and would also provide mediation services.

The disputes that proceed to a hearing will result in binding decisions. The bill creating the agency, HB 1044, also empowers the agency to set legal precedent with their decisions. The bill was in committee in the state House of Representatives in February.

Knowing where to go once your request has been denied is, unfortunately, something every requester needs to know going into the records request process. Court is, eventually, an option in every state, but when a state has an office or an agency to serve as an ombudsman, requesters should seriously consider using those resources.

An ombudsman agency like Pennsylvania’s Office of Open Records or Connecticut’s Freedom of Information Commission has an advantage over court because these agencies are staffed with experts in open records issues and they have binding authority to resolve the dispute.

Even the agencies that do not have binding authority can provide important insight that may be helpful in court, and their ability to educate the public and the government workers who handle requests is invaluable to the system. Advisory opinions may not have the force of an order, but requesters should use every resource available to them, especially if a court case looms.