6. Time limit for filing suit

The governing statute of limitations for actions for access under the Public Records Law is Alabama Code § 6-2-38(l) (1993), which provides that "[a]ll actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years." Since an action for records access typically asks for equitable relief, not money damages, timeliness of the action may also be governed by laches, which bars an action that is not brought within a "reasonable time," even if the statutory two-year period has not run. A defendant who seeks to bar an action by laches, however, must show that the plaintiff's delay in bringing suit resulted in prejudice to the defendant. See, e.g., Hogan v. Carter, 431 So. 2d 1160, 1164 (Ala. 1983).

As a practical matter, timeliness is not usually a problem in records access cases. These actions are typically brought by members of the news media, who want and often need access to the requested records as quickly as possible. A petition for access is often filed within days or weeks of the denial of access, and sometimes within hours of such denial. Undue delay in filing suit may jeopardize the chances of convincing a court to enter a preliminary injunction, however. See Birmingham News Co. v. Chambers, CV 89-186 (Cir. Ct. Shelby Cnty. May 17, 1989) (granting request for permanent injunction and ordering records released within seven days, but application for preliminary injunction denied because of perceived delay by newspaper in bringing suit) (entry of permanent injunction affirmed in Chambers v. Birmingham News Co., 552 So. 2d 854 (Ala. 1989)).

Occasionally, the question of mootness will arise in a records access case. In State ex rel. Kernells v. Ezell, 291 Ala. 440, 282 So. 2d 266 (1973), for example, a citizen asked to inspect a petition for a county liquor referendum, the probate judge refused, and the citizen petitioned for a writ of mandamus, by which time the election on the matter was already completed. The Alabama Supreme Court found that because of the timing of such referendums, the issue was "capable of repetition yet evading review" and rejected the probate judge's mootness argument.

The mootness argument by a state university in Birmingham News Co. v. Muse [Muse II, 1st appeal], 638 So. 2d 853 (Ala. 1994), was more persuasive to the appellate court. The newspaper appealed the trial court's denial of a preliminary injunction, arguing that timeliness of the release of the university's response to the NCAA letter of inquiry was significant in order to give the public an opportunity to be informed about the process in time to participate in it. The Alabama Supreme Court disagreed, noting that the trial court had later entered a permanent injunction granting access to the requested documents: "The only judgment now capable of having any effect is the permanent injunction, and we decline to express an advisory opinion on the preliminary injunction under the circumstances of this case." 638 So. 2d at 854.

There is no time limit spelled out in the statute or regulations for filing suit.

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

The FOIA contains no time limit for filing suit. Accordingly, the general five-year statute of limitations presumably applies. See Ark. Code Ann. § 16-56-115.

The CPRA does not set forth a statute of limitations for filing a lawsuit against a public agency. The limitations periods for causes of action for liabilities created by statute is three years. Cal. Civ. Proc. Code § 338. Because the relief sought under the CPRA is equitable in nature, the best course of action is to file suit without undue delay that a court could consider if the delay prejudices the agencies' case.

None.

The UAPA requires that the appeal be served upon the FOIC and all parties of record within forty-five days after mailing of the notice of the FOIC’s decision and that the appeal be filed with the court within forty-five days after mailing of the notice of the FOIC’s decision. See Conn. Gen. Stat. §4-183(b). In Emerick v. FOIC, 156 Conn. App. 232 (2015), the Appellate Court held that if the complainant files a motion for reconsideration with the FOIC, the forty-five day appeal period runs from the denial of that motion and not from the mailing of the notice of the denial.  See Conn. Gen. Stat. §4-183(c)(2).

The time limit for filing suit is within 60 days of a denial. 29 Del. C. § 10005(b). A court will dismiss an untimely action. Jenkins v. Gulledge, 1982 WL 593167 (Del. Super. Jan 25, 1982), aff’d, 449 A.2d 207 (Del. 1982). With that said, a timing deficiency is a procedural defect easily remedied with a new FOIA request. Id. The 60-day statute of limitations in Section 10005 has been held not to apply to the Attorney General because “[the] statute[ ] of limitations do not apply to a state when suing in its sovereign capacity.” Mayor & Council of Wilmington v. Dukes, 157 A.2d 789, 794 (Del. 1960).

The D.C. Act does not provide a specific time limit.  D.C. Code § 12-301(8), however, creates a general three-year statute of limitations for all actions.  Federal courts have applied a similar catch-all statute of limitations to FOIA actions.  See, e.g., Spannaus v. Dep't of Justice, 824 F. 2d 52, 55-56 (D.C. Cir. 1987).

Chapter 119 does not specify a time limit for filing suit to enforce the provisions therein. For causes of action not governed by a statute, the statute of limitations is generally four years. Fla. Stat. § 95.11(3)(p) (2020).

The statute does not set forth a specific limitations period for filing suit to enforce compliance.

An action may be brought at any time within two years after a denial. Administrative remedies need not be exhausted. See Haw. Rev. Stat. § 92F-15; State of Hawai'i Org. of Police Officers (SHOPO) v. Soc'y of Prof'l Journalists-Univ. of Hawai'i Chapter, 83 Haw. 378, 392, 927 P.2d 386, 400 (1996).

A person aggrieved by the denial of a request for a public record must file a petition within 180 days of the date of mailing of the denial. Idaho Code § 74-115(1).

There are no time limits prescribed in the Act, but judicial review should be sought as soon as possible. (Illinois law provides that all civil actions not otherwise provided for shall be commenced within five years after the cause of action accrued. See 735 ILCS 5/13-205.)

Interestingly, the law does not specify a time limit for filing suit for denial of access; however, suit may not be filed until there is a denial of access. Ind. Code § 5-14-3-9(e). However, filing an informal complaint or a formal complaint to the Public Access Counselor does not toll the statute of limitations for the underlying action. Id. § 5-14-4-13; 5-14-5-12.

There is a 30-day time limit to file a petition for judicial review after the administrative agency rehearing application has been denied or deemed denied.  Iowa Code § 17A.19.

There is no provision for limitation of actions under K.S.A. 45-222(a). K.S.A. 60-512 contains a three-year statute of limitations for "liability created by a statute," but depending upon the relief sought, a plaintiff should file a timely suit to avoid laches.

The Open Records Act does not have a specific statute of limitations for filing suit. However, there is a 30-day deadline to appeal an Attorney General decision under the Open Records Act. See KRS 61.880(5)(a).

Not specified. According to one Court of Appeal decision, a plaintiff may be subject to a laches defense if he or she delays filing suit beyond the time the custodian is obligated to maintain the requested records, even if the plaintiff requested the records while they were required to be, and apparently were, maintained. Benoit v. DeVillier, 649 So.2d 523 (La. App. 3d Cir. 1994), writ denied, 650 So.2d 243 (La. 1995).

Within 30 calendar days of denial. 1 M.R.S.A. § 409(1). The appeal period is strictly construed but may be re-started by making a subsequent request for the same records. Guy Gannett Publishing Co. v. Maine Department of Public Safety, 555 A.2d 474, 476 (Me. 1989) (“A party seeking disclosure is free to request the information more than once.”).

Any action for judicial review may be brought within two (2) years of the denial pursuant to Md. Code Ann., Cts. & Jud. Proc. § 5-110. See Kline v. Fuller, 56 Md. App. 294, 467 A.2d 786 (1983). If the defendant has materially and willfully misrepresented any information required to be disclosed under the PIA, and the information so misrepresented is material to the establishment of liability of the, the action may be brought at any time within two years after discovery of the misrepresentation. Cts. & Jud. Proc. § 5-110.

None prescribed.

A 1996 amendment to the FOIA requires an action to be commenced within 180 days after a public body's final determination to deny a request. Mich. Comp. Laws Ann. § 15.240(b). Previously, there was no time limit.

There is no stated statute of limitations within the Act.

No specific time limit set, although the general statute of limitations in Mississippi is three years. § 15-1-49. Obviously, a person seeking prompt access to public records would be well advised to file suit promptly.

A suit to enforce the Sunshine Law must be brought within one year from the time the violation is ascertainable and in no event more than two years after the violation. Mo.Rev.Stat. § 610.027.5. See Bartis v. City of Bridgeton, 2007 U.S. Dist. Lexis 36550; Columbo v. Buford, 93 S.W.2d 690, 695 (Mo.Ct.App. 1996) (“ascertainable” means when the alleged violation could have been discovered or when it was made known).

There is no time limit for filing a petition under the Montana Constitution or the open records act to obtain records.

No limitation period is stated in public records statutes. A four-year statute of limitations probably applies. See Neb. Rev. Stat. §25-212 (Reissue 2016) ("An action for relief not hereinbefore provided for can only be brought within four years after the cause of action.") A requester failing to bring suit within a reasonable time may be guilty of laches.

The NPRA provides no time limit for filing suit. A suit may be filed after a request for inspection or copying has been denied.

The Statute does not specify a time for filing suit, but delay might affect the court's view that the petition raises an important public issue.

The time limit for filing a Verified Complaint and Order to Show Cause to obtain records from a public agency or official is 45 days from the date of denial.  See Mason v. City of Hoboken, 196 N.J. 51 (2008). However, another request for the same records can be made at any time by another party, thereby triggering a new 45-day time limit for filing suit. See Shuttleworth v. City of Camden, 258 N.J. Super. 573, 597 (App. Div. 1992). It is not clear whether a complaint to the Government Records Council will also be subject to the 45-day limit although it is likely that will be the case.

There is no statutory or case law addressing this issue.  Unlikely to be less than two years.

A four month statute of limitations governs. N.Y. Civ. Prac. L. & R. § 217. Swinton v. Record Access Officers, 198 A.D.2d 165 (1st Dep’t 1993); Corbin v. Ward, 160 A.D.2d 596, 554 N.Y.S.2d 240 (1st Dep’t 1990), motion for leave to appeal denied, 76 N.Y.2d 706 (1990); Cosgrove v. Klingler, 58 A.D.2d 910, 396 N.Y.S.2d 498 (3d Dep’t 1977); Pelt v. New York City Police Dep’t, N.Y.L.J. (July 22, 1994 Supreme Court New York Cty.) (denying pro se application for disclosure of records for failure to timely commence Article 78 proceeding); Cmty. Sch. Dist. 6 v. Anker, N.Y.L.J., July 13, 1978 (Sup. Ct., New York Cty., 1978).

While the statute of limitations may bar a particular proceeding under FOIL, some courts have allowed a person to seek records again under applicable procedures. Young v. Smith, No. 86-0307 (Sup. Ct., Essex Cty., Jan. 9, 1987); In re Mitchell, N.Y.L.J., March 9, 1979 (Sup. Ct., Nassau Cty., 1979); Zaleski v. Hicksville Union Free Sch. Dist., N.Y.L.J., Dec. 27, 1978 (Sup; Ct., Nassau Cty., 1978). Contra, Corbin v. Ward, 160 A.D.2d 596, 554 N.Y.S.2d 240 (1st Dep’t 1990), motion for leave to appeal denied, 76 N.Y.2d 706 (1990) (court refused to consider an appeal of a second denial of access, where the appeal appeared to be an effort to obtain reconsideration of the prior request without any change in circumstances); Knapp v. Board of Education, No. 63341, (Sup. Ct., Steuben Cty., Nov. 23, 1990) (requester was barred from raising objections which had not been raised at time of earlier response).

The period of limitations runs from the date of receipt of notice of denial of the appeal. Church of Scientology v. State, 46 N.Y.2d 906, 387 N.E.2d 1216, 414 N.Y.S.2d 900 (1979). The final negative determination of the agency triggers the limitations period. Russo v. Nassau Cmty. Coll., 81 N.Y.2d 690, 603 N.E.2d 294, 623 N.Y.S.2d 15 (1993); Laureano v. Grimes, 179 A.D.2d 602, 579 N.Y.S.2d 357 (1st Dep’t 1992); Samuel v. Mace, (Sup. Ct., Monroe Cty., Dec. 11, 1991).

Filing the petition with the clerk may extend the basic limitation period. See Laureano v. Grimes, 179 A.D.2d 602, 579 N.Y.S.2d 357 (1st Dep’t 1992); citing Treadway v. Town Bd. of Town of Ticonderoga, 163 A.D.2d 637, 558 N.Y.S.2d 686 (3d Dep’t 1990); Matter of Medina v. Perales, 138 Misc.2d 1010, 525 N.Y.S.2d 991 (Sup. Ct. 1988); cf Matter of Long Island Citizens Campaign v. Cty. of Nassau, 165 A.D.2d 52, 565 N.Y.S.2d 852 (2d Dep’t 1991).

No specific statute of limitations appears in the Public Records Law; the law is not included in the general statutes relating to limitation; and no case has addressed the time limits of bringing suit. An argument could be made that the statute is three years, G.S. § 1-52(2) or that the general “all other actions” limitation of ten years applies. Any arguable statute of limitations problem could be fixed by a repeat of the public records request.

An action must be commenced within sixty days of the date the person knew or should have known of the violation or within thirty days of issuance of an attorney general’s opinion on the alleged violation, whichever is later. N.D.C.C. § 44-04-21.2(1).

Denial of Records: The statute of limitations for mandamus claims to compel the production of public records as required by R.C. 149.43(C) is six years from when cause of action accrues—the date when the requester first became aggrieved by the public office's noncompliance with its duties under the Public Records Act. This limitations period arises under Ohio Rev. Code § 2305.07, which imposes a six-year limitations period for a "liability created by statute other than a forfeiture or penalty." Ohioans for Concealed Carry, Inc. v. City of Cleveland, 90 N.E.3d 80, 2017-Ohio-1560 ¶ 48 (Ohio App. 8th Dist.) (149.43(C) actions for production of records are governed by six-year statute of limitations in R.C. § 2305.07, as they represent damages, not a penalty).

Destruction/Removal of Records: 149.351(B)(2) provides a statutory penalty—a “forfeiture”—for wrongful destruction of public records, and are subject to the one-year statute of limitations in R.C. § 2305.11. Ohioans for Concealed Carry, 2017-Ohio-1560 at ¶ 46.

In some circumstances, excessive delay in filing may be subject to the equitable doctrine of laches, and the court will not grant the requested writ of mandamus.

The statute of limitations for such a suit is two years. 12 O.S. § 95.

There is no specific time limit for filing suit by a requester, although the balancing tests incorporated in many statutory exceptions to disclosure could in some instances be tipped by the timeliness of the request. As above, public bodies must indicate their intention to sue and must begin suit within strict time constraints.

An appeal must be filed “within 30 days of the mailing date of the final determination of the appeals officer” for the Commonwealth, legislative, judicial or local agency.

No time limitation is set forth by the APRA or appeal. There is a three year statute of limitation for suits against the state. R.I. Gen. Laws § 9-1-25.

Suit must be filed and served no later than one year following the date on which the violation of the act occurred or one year after a public vote in public session when the vote discloses a previously undisclosed violation of the act. S.C. Code Ann. § 30-4-100(A).

Ninety days from receipt of denial or fee/time estimate. SDCL §1-27-38.   It should be noted that this relatively short statute of limitations can likely be circumvented by simply making another open records request.  It is doubtful that a denial of an open records request by a public record officer will serve as a bar to future litigation over that record.

The Act provides no time limit for filing suit. See Konvalinka v. Chattanooga – Hamilton County Hospital Authority, 2006 Tenn. App. LEXIS 600 (Tenn. Ct. App. Sept. 11, 2006) (noting absence of limitations period merely requires the requestor to make another request).  A six-year statute of limitations for malfeasance and nonfeasance of public officials may be applicable. T.C.A. § 28-3-109. Presumably, however, a new cause of action could accrue with each request.

The Act itself does not set out any special time limit for filing suit.  According to at least one court, “because there is no specific deadline for filing a civil enforcement proceeding . . . the four-year residual state of limitations applies.” Lisson v. Univ. of Tex. Inv. Mgmt. Co., No. 03-02-00465-CV, 2003 WL 21241631 at *2 (Tex. App.—Austin May 30, 2003, pet. denied).

The requestor is not required to wait for a decision of the Attorney General before seeking redress in court. Tex. Dep't of Pub. Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.—Austin 1992, no writ).

 

The petition must be filed within 30 days after the order or decision. See Utah Code § 63G-2-404(1)(b), (2)(b).

There is no stated time limit on the appeal to superior court from the agency head.

A petition for mandamus or prohibition should be filed without unreasonable delay.

Actions under the Public Records Act must be filed within one year of the agency’s claim of exemption, or the last production of a record on a partial or installment basis. RCW 42.56.550. The limitations period usually runs from the agency's final, definitive response to a records request, but case law recognizes the possibility that the period can be extended (or “equitably tolled”) if the agency silently withholds responsive records. See Belenski v. Jefferson Cnty., 186 Wn.2d 452, 378 P.3d 176 (2016).

The FOIA does not have a time limit for filing suit. As a practical matter, however, a new request to the agency would be advisable if there has been a long delay between the date of denial and the date a requester files suit or, if there is reason to believe that circumstances prompting the initial denial might have changed. When an agency fails to respond to a request for information within the five "working days" time period allocated by the FOIA, such inaction will likely be treated by West Virginia courts as a judicially reviewable denial of disclosure.

Requesters should be cautious about immediately rushing to court, however, without developing a more extensive written record. It is advisable to send at least one or more follow-up letter(s) to the non-responding public body emphasizing that it has failed to meet the statutory deadline for a response and warning that, should the body fail to respond promptly, the requester may seek a court order, thus exposing the public body to an award of attorneys’ fees and costs. One caveat to this suggestion applies when there is an urgent need to review documents in an expeditious fashion. When time is of the essence, one may be justified in going directly to court without further contacts. Such action should be the exception and not the rule.

Finally, it should be noted that, in some instances, a plaintiff in "certain civil actions" must give thirty-day prior notice to the West Virginia Attorney General of an intent to sue a state government agency. W. Va. Code § 55-17-3. However, the best interpretation of this statutory requirement is that it is only applicable to "litigation that may have significant consequences that can only be addressed by subsequent legislative action" and that FOIA lawsuits do not fall within this category. This is so because FOIA actions do not seek the expenditure of public funds as a remedy and because FOIA itself makes prompt agency and judicial responses a core goal of the statute.

There is no time limit for filing suit in the Open Records Law. The 3 year statute of limitations in Wis. Stat. § 893.93(1m) for liability under a statute may apply.

The filing requirements are governed by the Wyoming Rules of Civil Procedure. See, e.g., Wyo. R. Civ. P. 3 & 6.