c. Delays

The Alabama Supreme Court found in Birmingham News Co. v. Muse [Muse II, 1st appeal], 638 So. 2d 853 (Ala. 1994), that the question of delay in the release or ordered release of the requested records was moot and refused to address the issue. The court did not suggest, however, that delay was an inappropriate issue to address, in the proper case.

No cases specifically relating to this issue are addressed here.

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A court could be called upon to decide whether delay on the part of an agency is tantamount to a denial of access, but this issue has not arisen in reported cases. If non-exempt public records are in “active use or storage,” the custodian has three working days to make them available for inspection and copying. Ark. Code Ann. § 25-19-105(e). A FOIA suit filed before the expiration of this period is premature. Hamilton v. Simpson, 67 Ark. App. 173, 176, 993 S.W.2d 501, 503 (1999).

While delay beyond that which is proscribed under Section 7922.535 of the CPRA may allow a requester to bring suit, the California Supreme Court has held that “requiring disclosure of otherwise exempt records as a penalty for delay in complying with the Act’s timing requirements is unduly harsh.” Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 44 Cal. Rptr. 3d 663, 136 P.3d 194 (2006). But failing to assert a specific exemption while relying on others may waive the right to raise exemptions for first time in subsequent litigation. See, e.g., ANG Newspapers v. Union City, 33 Med. L. Rptr. 2069 (Cal. Sup. Ct. 2005) (ruling that City's failure to assert exemption waived right to raise exemption for first time in response to order to show cause).

A hearing on the application is to be held "at the earliest practical time." Colo. Rev. Stat. § 24-72-204(5).

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A court may award attorneys’ fees and costs to a successful plaintiff. An improper delay in production of requested information may support such an award of attorneys’ fees and costs.

Florida courts have addressed the issue of whether delayed access to public records is tantamount to an unlawful denial of access. Tribune v. Cannella, 458 So. 2d 1075 (Fla. 1983).

The courts are authorized to examine whether an agency's delay violates the Act.

Probably, since the OIP Rules establish time limits for disclosure.

None specified.

A public body’s failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request so as to trigger the requester’s right to suit. See 5 ILCS 140/3(d); see 5 ILCS 140/11(a). A public body that fails to respond to a request within the requisite periods set forth in 5 ILCS 140/3 but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. See 5 ILCS 140/3(d); Varan v. White, 2019 IL App (2d) 180305-U, ¶ 25.

To the extent that delays in responding to a written request for records are deemed to be a denial under the statute, the court could address this issue.

The agency must produce the documents or allow the requestor to make copies within a reasonable time, so a reviewing court could find that the agency’s delay was unreasonable. Ind. Code § 5-14-3-3(b). However, an agency that agrees to provide records may not violate the statute if it fails to provide the records within the statutory time frame if the agency provides the records within a reasonable time and advises the requestor that the agency is not challenging the right to the documents. See Hrstich v. City of E. Chicago, 862 N.E.2d 9 (Ind. Ct. App. 2007) (unpublished).

"A reasonable delay [to determine whether a confidential record is available for inspection and copying] should not exceed twenty calendar days and ordinarily should not exceed ten business days." Iowa Code § 22.8(4)(d). This deadline is not absolute. Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 461 (Iowa 2013). Rather, a government entity has twenty days to determine “whether a confidential record should be available for copying to the person requesting the right to do so.” Id. (quoting Iowa Code § 22.8(4)(d)).

Court actions under the Open Records Act may be brought concerning delays or other actions by public agencies that violate, or frustrate the intent of, the Act. See Ky. Rev. Stat. 61.882(1).

Yes. La. Rev. Stat. Ann. § 44:35(E).

An delay past the 5 working day period for response is considered a denial. Guy Gannett Publishing Co. v. Maine Dept. of Public Safety, 555 A.2d 474 (Me. 1989).  The Courts have not addressed what may constitute a “reasonable time” for providing access to a record. 1 M.R.S.A. § 408(1).

Because a delay beyond the statutory time limits may constitute a denial, the court may address issues related to delay as well. § 4-203(b)(3).

The court will not address delays since the right to initiate a suit exists immediately after the custodian refuses a request or has taken no action for ten days.

Failure to respond to a request for information pursuant to Mich. Comp. Laws Ann. § 15.235(2) is considered a final determination by the public body to deny the request. See Loc. Area Watch v. City of Grand Rapids, 262 Mich. App. 136, 683 N.W.2d 745 (2004) (defendant’s failure to timely respond qualifies as a violation of the provision even if the defendant acted in good faith). If a circuit court later orders a public body which has failed to respond to a request to disclose or provide copies of the public record in question, the circuit court may assess punitive damages against the public body under Mich. Comp. Laws Ann. § 15.240(7). Mich. Comp. Laws Ann. § 15.235(3). But under section 15.235(2)(d), a public body may issue a notice extending for not more than ten business days the period during which the public body shall respond to the request. For the purposes of FOIA, “business day” means Monday through Friday and not Saturday or Sunday (or legal holiday). Key v. Paw Paw Twp. , 254 Mich. App. 508, 657 N.W.2d 546 (2002). Moreover, under the 2015 amendment, “[i]f the court determines . . . that a public body willfully and intentionally failed to comply with this act or otherwise acted in bad faith, the court shall order the public body to pay, in addition to any other award or sanction, a civil fine of not less than $2,500.00 or more than $7,500.00 for each occurrence.” Mich. Comp. Laws Ann. § 15.240b.

If the court finds that an agency is not complying with the provisions of the Act, it may compel the agency to take prompt action to ensure compliance.

Delays in procedure. § 25-61-13.

Courts will address delays that violate the Sunshine Law.  Requests for records must be acted upon as soon as possible, but in no event later than three business days without reasonable cause for the delay (and any delay must be accompanied by a “detailed explanation of the cause of further delay and the place and earliest time and date that the record will be available.”  See Mo.Rev.Stat. § 610.023.4. When a citizen requested records for use at a hearing and received one of the requested records after the three-day time limit but before the hearing, a court found no Sunshine Law violation because the citizen had time to review the record prior to the hearing. Perkins v. Caldwell, 363 S.W.3d 149, 154 (Mo.Ct.App. 2012)

A district court may consider whether a delay was undue and constitutes denial.

There is no statutory or case law addressing the issue

Yes.

In a court action, the court will consider all issues raised by the pleadings, including denial of access to the records, the reasonableness of any fees, delays in obtaining records. See Techniscan Corp. v. Passaic Valley Water Comm’n, 218 N.J. Super. 226, 229 (App. Div. 1987). Common law access denials can be considered by the court as well as denials of access under OPRA.  In an action before the Government Records Council, the Council may only consider claims arising under OPRA.

Court will address any delay or denial of records and has the full authority to issue a Writ of Mandamus, order an injunction, or other appropriate remedy to enforce the provision of Public Records Act, including damages and attorney fees.  NMSA 1978 § 14-2-12(B), (D).

As discussed above, issues of agency failure to respond or delay in responding are governed by express time requirements set forth in FOIL. N.Y. Public Officers Law §§ 89(4)(a) and (b). See generally Malerba v. Kelly, 211 A.D.2d 479, 621 N.Y.S.2d 318 (1st Dep’t 1995) (holding proceeding moot insofar as it seeks documents already produced and dismissible as to other documents for failure to exhaust administrative remedies, but permitting administrative appeal due to agency’s laxity in responding to petitioner’s request); Newton v. Police Department City of New York, 183 A.D.2d 621, 585 N.Y.S.2d 5 (1st Dep’t 1992) (requester’s failure to appeal administratively normally would preclude judicial review, however, agency had been lax in responding). Administrative delay or default will not be determinative of whether or not access should have been granted. Floyd v. McGuire, 87 A.D.2d 388, 452 N.Y.S.2d 416 (lst Dep’t 1982), appeal dismissed, 57 N.Y.2d 774 (1982) (agency default does not mandate disclosure of requested materials).

The court may address unreasonable delays. See N.D.C.C. § 44-04-21.2(1). If an official takes longer than expected to fulfill a public records request, circumstances such as holiday closures, staffing, public health crises, and the time of the requester’s payment may be considered to determine whether that delay is reasonable. N.D. Op. Att’y Gen. 2023-O-06; N.D. Op. Att’y Gen. 2021-O-09. However, delays are heavily scrutinized. N.D. Op. Att’y Gen. 2021-O-09. The North Dakota Attorney’s General office considers a three-week delay to provide 334 pages of material unreasonable. N.D. Op. Att’y Gen. 2021-O-09. Additionally, waiting two months to respond to a public records request constitutes an unreasonable delay. N.D. Op. Att’y Gen. 2019-O-07.

Courts will address delay, and may award statutory damages because of unreasonable delays. State ex rel. DiFranco v. City of So. Euclid, 144 Ohio St.3d 571, 45 N.E.3d 987, 2015-Ohio-4914.

But the delays should be substantial in comparison with the apparent logistical difficulty of responding to the request. State ex rel. Warren Newspapers Inc. v. Hutson, 70 Ohio St. 3d 619, 640 N.E.2d 174 (1994); see also State ex rel. Wadd v. City of Cleveland, 81 Ohio St. 3d 50, 689 N.E.2d 25, 1998-Ohio-444; see also State ex rel. Consumer News Servs. Inc. v. Worthington City Bd. of Educ., 97 Ohio St. 3d 58, 776 N.E.2d 82 (2002) (finding that a six-day delay was not prompt, defining "prompt" as without delay and with reasonable speed), State ex rel. Office of Montgomery County Public Defender v. Siroki, 108 Ohio St. 3d 207, 842 N.E.2d 508 (2006) (holding that if an office could produce records in two days, then it should do so).

Delay alone confers standing to sue. State ex rel. DiFranco v. City of So. Euclid, 144 Ohio St.3d 571, 45 N.E.3d 987, 2015-Ohio-4914.

A public body must provide “prompt, reasonable access” to records. 51 O.S. § 24A.5(6). At least one trial court in Oklahoma has previously recognized a delay of 17 months considering the case’s specific circumstances to be neither prompt nor reasonable access as required by the Act See Branstetter v. Fallin, CV-2014-2372, OSCN, Court Letter Ruling at *3 (Dist. Ct. Okla. Cnty. Apr. 13, 2018), https://s3.documentcloud.org/documents/4438896/Judge-Davis-Letter-Ruling-1.pdf ("While Plaintiffs’ requests may not have been formally denied in this matter, it is uncontroverted that no documents were produced prior to the lawsuit being filed. At the core of this controversy is whether a delay in producing records in response to an open records request of over a year and a half to two years is a failure to provide ‘prompt, reasonable’ access to the records. It appears Defendants concede the delays in producing the documents in this case resulted in a response that was not prompt. The Court declines to opine as to the appropriate process or procedure for responding to an open records request or to set forth a hard and fast rule or a specific time frame for production of documents pursuant to an open records request; however, in this case, neither the delays nor the process which resulted in the delays in excess of 17 months was prompt or reasonable.”).

Under ORS 192.407, enacted in 2017, disputes over a public body’s compliance with the time requirements of ORS 192.329 are subject to administrative review. Generally, the courts have “the same authority with respect to petitions” under ORS 192.407 “as when inspection of a public record is denied.” ORS 192.407(2).

A delay in providing a response to a request is a deemed denial under the Law and may be appealed.

Delay beyond ten business days constitutes denial. R.I. Gen. Laws § 38-2-7(b).

Delay is treated as denial.

Presumably.

This may be addressed by Court.

The Legislature “has not addressed or provided a waiver of sovereign immunity as to a claim that is based on a governmental body’s delay or its motives for delaying the release of information that is subject to disclosure under [the Act].” Gates v. Tex. Dep’t of Family and Protective Servs., No. 03-15-00631-CV, 2016 WL 3521888 at *4 (Tex. App.—Austin June 23, 2016, pet. denied).

If the government entity fails to provide the requested records or to issue a denial within the specified time period, such failure is equivalent to a denial of access and may be appealed as such. See Utah Code § 63G-2-204(8). In addition, a requester may judicially challenge the government entity’s use of the “extraordinary circumstances” provision in Utah Code section 63-2-204(5).

The Vermont Supreme Court has held that “[b]ecause the statute does not provide a negative consequence for an agency’s failure to comply with the time requirement, nor does it specify a remedy such as a ‘deemed approval’ or ‘waiver of exemptions,’ . . . the time requirement of § 318 is intended to be directory rather than mandatory.”  Shlansky v. City of Burlington, 2010 VT 90, ¶ 17, 13 A.3d 1075, 1082-83 (Vt. 2010) (noting that instead of providing a deemed approval or waiver, “the Public Records Act explains that if a request is not timely fulfilled, it is deemed denied”).  Accordingly, an agency’s delay in responding to a public records request is not addressed by the court, beyond pointing out that such a delay constitutes a denial.

In the same case, the Vermont Supreme Court held that the “Public Records Act is not intended as a device to delay ongoing litigation or to enlarge the scope of discovery beyond that already provided under the court rules.”  Shlansky, 2010 VT at ¶ 19, 13 A.3d at 1083 (finding there was no basis to continue plaintiff’s traffic court case based on his public records suit); see also Wesco, Inc. v. Sorrell, 2004 VT 102, ¶ 22, 865 A.2d 350, 358 (Vt. 2004).

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A court can order the release of records based on a delay. Wis. Stat. § 19.37(1).