9. Judicial remedies available

Injunctive relief is the modern remedy, sometimes coupled with a declaratory judgment.

The CPRA authorizes a court to order the public official or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. Cal. Gov’t Code § 7923.100. It also authorizes a person to institute proceedings for injunctive or declaratory relief or writ of mandate to enforce his or her right to inspect or to receive copies of public records or class of public records. Cal. Gov’t Code § 7923.000.  The CPRA also mandates that the requester recover reasonable attorneys’ fees and costs should he or she prevail in the litigation.  Cal. Gov’t Code § 7923.115.

Permitted remedies include “an injunction, a declaratory judgment, writ of mandamus and/or other appropriate relief.” 29 Del. C. § 10005(d).

Depending on the circumstances, a person seeking disclosure can institute proceedings for injunction or declaratory relief, or for an order to enjoin the public body from withholding the record and to compel production of the requested record. D.C. Code Ann. § 2-537(a)(1), (a)(2), (a-1), (a-2).

Georgia’s superior courts have statutory jurisdiction “in law and in equity” to enforce compliance with the Act. O.C.G.A. § 50-18-73(a).

“Upon a finding by a preponderance of the evidence that a lawful custodian has violated any provision of this chapter, a court:

Shall issue an injunction punishable by civil contempt ordering the offending lawful custodian and other appropriate persons to comply with the requirements of this chapter in the case before it and, if appropriate, may order the lawful custodian and other appropriate persons to refrain for one year from any future violations of this chapter.”

Iowa Code § 22.10(3).

A person alleging a violation of the Kentucky Open Records Act does not need to exhaust his or her remedies under the Act before filing suit. Ky. Rev. Stat. 61.882(2).

The Court may order that the record be disclosed. 1 M.R.S.A. § 409(1).

The statute specifically authorizes the court "to order compliance," that is, production of the records sought. G.L. c. 66, § 10(b). In addition, the court has general equitable powers to fashion appropriate remedies.

Where exemption is claimed, the court may consider allowing plaintiff’s counsel to have access to contested documents in camera under special agreement whenever possible. Evening News Ass'n v. City of Troy, 417 Mich. 481, 339 N.W.2d 421 (1983). In all cases, if the court determines that the public record is not exempt from disclosure, the court "shall order the public body to cease withholding or to produce all or a portion of a public record wrongfully withheld, regardless of the location of the public record." Mich. Comp. Laws Ann. § 15.240(4). The FOIA contains no provision imposing liability upon public officials who release information which may be exempt under the FOIA, but liability may be grounded upon statute or common law protection of records which are also exempt from disclosure under the Act. 1979-80 Op. Att'y Gen. 255, 299-300 (1979).

A party is not required to resubmit an FOIA request to ensure that it receives the requested information if the public body determines that the information has become non-exempt during the course of litigation. Rather, the trial court should properly consider a plaintiff's lawsuit a continuing request for information under the FOIA. Krug v. Ingham Cty. Sheriff's Office, 264 Mich. App. 475, 691 N.W.2d 50 (2004).

“If it is determined that access has been improperly denied, the court or agency head shall order that access be allowed. A requestor who prevails in any proceeding shall be entitled to a reasonable attorney’s fee.”  N.J.S.A. 47:1A-6.

Courts can grant declarative or injunctive relief, as well as mandamus relief. 51 O.S. § 24A.17.

The reviewing court may affirm or reverse the agency’s decision and, in certain situations discussed below, award reasonable attorneys’ fees and costs.

The Law spells out what the court must include in its decision: “The decision of the court shall contain findings of fact and conclusions of law based upon the evidence as a whole. The decision shall clearly and concisely explain the rationale for the decision.” 65 Pa. C.S.A. §§ 67.1301(1), 1302(a).

The Law defines the record on appeal: “The record before a court shall consist of the request, the agency’s response, the appeal filed under section 1101, the hearing transcript, if any, and the final written determination of the appeals officer.” Id. § 67.1303(b).

The Act does not limit what judicial remedies are available. The court may issue a writ of mandamus directing a governmental body to produce records for public inspection. Depending on the circumstances, an injunction or declaratory judgment also may be appropriate remedies.

The primary remedy available is that the court will simply order the release of all or part of the requested records. 1 V.S.A. § 319(a). If the agency has not honored the request because of the magnitude or difficulty of the request, but is not objecting on substantive grounds, the court can grant additional time to comply if the agency demonstrates “due diligence” and “exceptional circumstances.” 1 V.S.A. § 319(c).

The main remedies are mandamus, injunction, and the imposition of civil penalties.

The primary remedy is an order to release the record. Wis. Stat. § 19.37(1). The court also “shall” award damages of at least $100. Wis. Stat. § 19.37(2).