State-by-State Report

Formal Statutory Mechanisms for FOI Complaints

By Courtney Anne Barclay*

All 50 states offer some statutory right of access to public records and open meetings.1 However, this right of access sometimes is violated either unintentionally or with malice. Enforcement, education, and improvement in the laws are some ways that these violations can be prevented. To achieve this, some states have statutorily charged certain individuals or entities with these duties. Some states have created agencies with investigatory power; other states specifically enumerate these powers to the attorney general. Some states create advisory panels that inform the legislatures on improvements that should be made to the laws. Still other states create commissions or councils to act as information resources, educating the public and the public agencies on the rights and responsibilities of each under the state access laws. Some states offer combinations of these responsibilities.

The following is a state-by-state report on states that specifically, statutorily charge an individual or entity with duties or responsibilities aimed at enforcing or improving compliance with access laws. This is representative of the statutory language only, and does not include duties found in other sources of law or informal mechanisms or procedures that states may utilize to resolve these issues.

Connecticut

The law requires a five-member Freedom of Information Commission to review and resolve complaints of alleged violations of the public record law. Conn. Gen. Stat. § 1-205(a). In investigating these complaints, the commission has the power to hold hearings, administer oaths, examine witnesses, receive oral and documentary evidence, subpoena witnesses to compel attendance and to require the production of any books and papers “which the commission deems relevant in any matter under investigation or in question.” Conn. Gen. Stat. § 1-205(d).

All of the commission’s decisions and opinions “shall” be made available to the public, along with related materials, “at a reasonable cost not to exceed the actual cost thereof to said commission but not less than twenty-eight dollars per item.” Conn. Gen. Stat. § 1-205(j).

The commission was statutorily required to produce a model ordinance for use by municipalities in establishing a municipal freedom of information advisory board. The boards acts as facilitators to ensure “efficient exchange of information” between the commission and the municipalities. The commission has the authority to periodically amend the model ordinance. Conn. Gen. Stat. § 1-205(f).

The commission is also charged by statute to conduct training sessions to educate members of public agencies on the public records law. These sessions “shall” be held at least annually. Conn. Gen. Stat. § 1-205(e).

The commission “shall” employ as many employees necessary to discharge its duties. Subject to funding and established procedures, the Commission may also enter into any necessary contractual agreements. Conn. Gen. Stat. § 1-205(h).

The five members of the commission “shall” be appointed by the governor with the “advice and consent” of the legislature to serve four years on the commission. No more than three of the five members “shall” be of the same political party. Conn. Gen. Stat. Ann. § 1-205(a). The governor “shall” select one of the members to serve as chair. For each day that a member acts in an official capacity at a hearing or meeting, he or she “shall” be paid two hundred dollars; members are also entitled to reimbursement for expenses in connection with their duties. Conn. Gen. Stat. § 1-205(b).

Three members of the commission constitute a quorum for voting purposes. This is not affected by vacancies. The governor may fill vacancies with the “advice and consent” of the legislature when it is in session and may fill vacancies on a temporary basis without the legislature until the next legislative session. Conn. Gen. Stat. § 1-205(g). The commission “shall” maintain permanent office space in the state capitol to where all papers filed with the commission “shall” be delivered. Conn. Gen. Stat. § 1-205(c).

District of Columbia

Any person denied the right to inspect a public record “may” petition the mayor to review the record. The mayor “shall” determine, within 10 business days, whether the record may be withheld from public inspection. The mayor’s determination “shall” be made in writing and include a statement of reasons for the decision. D.C. Code § 2-537(a) (2007). If the mayor denies the petition or fails to issue a decision within the allotted time, the petitioner “may” institute court proceedings. D.C. Code § 2-537(a)(1). If the mayor decides that the record may not be withheld, he or she “shall” order the public body to disclose the record immediately. If the public body does not comply, the petitioner “may” initiate court proceedings to compel disclosure. D.C. Code § 2-537(a)(2).

The mayor “shall” request annually from each public body a report on the public-record disclosure activities during the preceding year. The mayor “shall” submit the report to the D.C. City Council. The report “shall” include: 1) the number of requests for records received by the public body and the number of requests processed; 2) the number of determinations made by each public body not to comply with requests for records made to the public body and the reasons for each determination; 3) the number of requests for records pending before the public body as of a given date, and the median number of days that the requests had been pending before the public body at that time; 4) the number of administrative appeals, the result of the appeals, and the reason for the action upon each appeal that resulted in a denial of information; 5) the number of employees found guilty of a misdemeanor related to public records law; 6) the median number of days taken by the public body to process different types of requests, and the number of requests processed within 10 days, between 11 and 20 days, and in 21 days or more; 7) the total amount of fees collected by the public body for processing requests; 8) the number of hours that staff devoted to processing requests for records, and the total amount expended by the public body for processing these requests; and 9) a summary statement, and conclusions drawn from the data in the report regarding compliance with public records law. D.C. Code § 2-538(a).

The mayor “shall” make these reports available to the public on the Internet or by other electronic means. D.C. Code § 2-538(b).

The mayor also “shall” provide training to each individual designated as a public body’s freedom of information officer. The training “shall” consist of a minimum of eight hours regarding the implementation and compliance with the public records law. D.C. Code § 2-538(d).

Any person denied the right to inspect a public record held by the D.C. Council “may” initiate court proceedings to compel production of the record. D.C. Code § 2-537(a)(1)(a-1).

Florida

Statutory law creates, within the office of the state attorney general, a public records mediation program. In developing and maintaining the program, the attorney general is charged with hiring “one or more mediators” to facilitate in a “formal, nonadversarial” manner disputes involving access to public records. All mediators hired must be in good standing with the state bar association. Fla. Stat. § 16.60.

In addition to overseeing the mediation program, the office of the attorney general “shall” make recommendations to the state legislature for necessary legislation “governing access to public records.” Fla. Stat. § 16.60(3)(b). The office of the attorney general also “shall” assist the state department of state to prepare training sessions on access to public records issues. Fla. Stat. § 16.60(3)(c).

Recently in Florida, Governor Charlie Crist created the Office of Open Government. Fla. Exec. Order No. 07-01. The order charges the office with providing the governor and executive agencies with “guidance and tools to serve Florida with integrity and transparency.” The office’s primary functions are: 1) to assure full and expeditious compliance with Florida’s open government and public records laws; 2) to provide training to all executive agencies under my purview on transparency and accountability; 3) to ensure that governor’s office complies with public records requests in an expeditious manner. Each agency is “directed” to designate an individual as the public records/open government contact person, who will be the primary liaison between the agency and the Office of Open Government. Fla. Exec. Order No. 07-01.

Hawaii

The state statutes create a “temporary” Office of Information Practices within the office of the lieutenant governor that has the power to receive and resolve complaints pertaining to access to public records. The governor “shall” appoint a director of the office, in whom all responsibilities and duties are vested. Haw. Rev. Stat. §§ 92F-41, 92F-42 (2006).

Upon receiving a request, the office “shall … review and rule” on any agency’s denial or granting of access to records. Haw. Rev. Stat. § 92F-42(1). The office may also provide such advisory statements as to a person’s rights and the “functions and responsibilities” of agencies under the public records law. Haw. Code Ann. § 92F-42(3). Additionally, the office “shall” receive complaints from and actively solicit the comments of the public regarding the implementation of this chapter. Haw. Rev. Stat. § 92F-42 (8).

The office “shall” review the official acts, records, policies, and procedures of each agency. Haw. Rev. Stat. § 92F-42(9). The office also may investigate the level of compliance by an agency and any possible violations. In discharging this duty, the office may examine the records of any agency. Haw. Rev. Stat. § 92F-42(4). The office may seek to enforce this power of examination in the state court system. Haw. Rev. Stat. § 92F-42(5). Based on the office’s inquiry, it may recommend disciplinary action to appropriate officers of an agency. Haw. Rev. Stat. § 92F-42(6). The office “shall” also issue advisory opinions or guidelines as to an agency’s “functions and responsibilities” under the public records law in response to an agency request. Haw. Rev. Stat. § 92F-42(2). In addition, the office “shall” assist agencies in complying with the provisions of the pubic records law. Haw. Rev. Stat. § 92F-42(10).

In performing its duties, the office is mandated to adopt rules outlining certain procedures. The office “shall” adopt rules that create and define the fees and other charges that may be imposed for searching, reviewing, or segregating “disclosable records.” These rules “shall” also provide for a waiver of fees when the request serves the “public interest.” Haw. Rev. Stat. § 92F-42(13). The office also “shall” adopt rules that “set forth uniform standards” for the collection of records by agencies and for the disclosure of records “for research purposes.” Haw. Rev. Stat. § 92F-42(14)-(15). The office also “shall” adopt rules for an “administrative appeals structure.” The appeals structure will include agency procedures for processing records, including time limits for action by agencies. The administrative appeals structure also will include procedures for a direct appeal of disclosure decisions from the division maintaining the record. Haw. Rev. Stat. § 92F-42(12).

The office has the responsibility of informing the public on individual rights and specific procedures relevant to access to public records: 1) the right of access to records pertaining to the individual; 2) the right to obtain a copy of records pertaining to the individual; 3) the right to know the purposes for which records pertaining to the individual are kept; 4) the right to be informed of the uses and disclosures of records pertaining to the individual; 5) the right to correct or amend records pertaining to the individual; 6) and the individual's right to place a statement in a record pertaining to that individual. Haw. Rev. Stat. § 92F-42(11).

The office also “shall” oversee compliance of public records and open meetings laws by state and county boards. This includes receiving and resolving complaints, advising the boards and public about compliance, and reporting all complaints to the legislature each year. Haw. Rev. Stat. § 92F-42(18). The office “shall report annually to the governor and the state legislature on the activities and findings of the office of information practices, including recommendations for legislative changes.” Haw. Rev. Stat. § 92F-42(7).

Any person filing a civil action related to public records or open meeting laws “shall” notify the office. Haw. Rev. Stat. § 92F-15.3 (2006). The office also “shall have standing” to appear or intervene in cases in which there is a complaint filed under the public records or open meetings law. Haw. Rev. Stat. §§ 92F-15.3; 92F-42(16).

The statute vests all these powers and duties in the director of the office who “may” delegate them to “any other officer or employee of the office.” Haw. Rev. Stat. § 92F-41(c). The director “may” employ any necessary personnel, including attorneys and clerical staff. Haw. Rev. Stat. § 92F-41(d).

Indiana

The state statute establishes the Office of the Public Access Counselor. Ind. Code § 5-14-4-5 (2007). The counselor, appointed by the governor for a four-year term, “must” be a practicing attorney and “may not be actively engaged in any other occupation, practice, profession, or business.” Ind. Code §§ 5-14-4-6, 5-14-4-9.

The counselor has the following powers and duties: 1) to establish and administer a program to train public officials and educate the public on the rights of the public and the responsibilities of public agencies under the public access laws. The counselor may contract with a person or a public or private entity to fulfill the counselor's responsibility under this subdivision; 2) to conduct research; 3) to prepare interpretive and educational materials and programs in cooperation with the office of the attorney general; 4) to distribute to newly elected or appointed public officials the public access laws and educational materials concerning the public access laws; 5) to respond to informal inquiries made by the public and public agencies by telephone, in writing, in person, by facsimile, or by electronic mail concerning the public access laws; 6) to issue advisory opinions to interpret the public access laws upon the request of a person or a public agency. However, the counselor may not issue an advisory opinion concerning a specific matter with respect to which a lawsuit has been filed; and 7) to make recommendations to the general assembly concerning ways to improve public access. Ind. Code § 5-14-4-10.

Individuals or agencies “may” file formal complaints or informal inquiries with the counselor if they have been denied: 1) the right to inspect or copy public records; 2) the right to attend any public meeting of a public agency in violation of open meetings laws; or 3) any other right conferred by state statute or rule governing access to public meetings or public records. Ind. Code § 5-14-5-6. The individual or agency “must” file the complaint no later than 30 days following the denial of a request or the receipt of “notice in fact” that a public meeting was held if the meeting was held in secret or without notice. A complaint is filed on the date that it is received by the counselor or, if it is received after the 30 day limit, the date that it is postmarked. Ind. Code § 5-14-5-7. The counselor “shall” issue an advisory opinion on the complaint within 30 days of the filing date. Ind. Code § 5-14-5-9. If the counselor determines the complaint to have “priority,” the counselor “shall” issue an advisory opinion within seven days of the filing date. Ind. Code § 5-14-5-10.

The counselor “shall” report to the legislature on the counselor’s activities each year. The report “must” include: 1) the total number of inquiries and complaints received; 2) the number of inquiries and complaints received each from the public, the media, and government agencies; 3) the number of inquiries and complaints that were resolved; 4) the number of complaints received about state agencies, county agencies, city agencies, town agencies, township agencies, school corporations, and other local agencies; 5) The number of complaints received concerning public records and public meetings; and 6) the total number of written advisory opinions issued and pending. Ind. Code § 5-14-4-12.

The counselor “may” employ necessary personnel subject to budget approval. Ind. Code § 5-14-4-11.

Iowa

The statutes specify that the attorney general “may” seek judicial enforcement of the open meetings and public records laws in county district court. Iowa Code Ann. §§ 21.6, 22.10 (2007). In Iowa, the citizens’ aide receives complaints regarding alleged violations of public records and open meetings laws.2 The citizens’ aide is statutorily charged with the power to investigate any administrative action, but not specifically those concerning rights of access. Iowa Code Ann. §§ 2C.2, 2C.9 (2007).

Kansas

The county or district attorney of each county in the state “shall” report to the attorney general, no later than January 15 of each year, on all complaints received the preceding year regarding violations of the open records act and open meetings act. The report “shall” include the disposition of each complaint. The attorney general “shall” compile all reports with information on the complaints received and investigated by the attorney general’s office. The attorney general “shall” publish an annual abstract of the information. The abstract “shall” list all the public agencies that are the subject of complaints or investigations. Kan. Stat. Ann. § 75-753 (2006).

Kentucky

Individuals may request that the attorney general review an agency’s request to inspect a public record. To make this request, the individual “shall” send to the attorney general a copy of the written record request and the written denial. If the agency refused to provide a written response, only the written request must be provided. The attorney general “shall” review the complaint and issue a written decision within twenty days. Ky. Rev. Stat. Ann. § 61.880(2)(a) (2006). The attorney general “may” extend the time for review by no more than 30 working days by sending written notice to the requestor with an explanation of the reasons for the extension. The attorney general “may” use this extension for “unusual circumstances,” which means, “to the extent reasonably necessary to the proper resolution of an appeal”: 1) the need to obtain additional documentation from the agency or a copy of the records involved; 2) the need to conduct extensive research on issues of first impression; or 3) an unmanageable increase in the number of appeals received by the attorney general. Ky. Rev. Stat. Ann. § 61.880(2)(b).

The agency “shall” bear the burden of proof in the attorney general’s investigation. The attorney general “may” request additional documentation from the agency to substantiate its denial. The attorney general also “may” request a copy of the records that are the subject of the investigation, however, the records “shall not” be disclosed. Ky. Rev. Stat. Ann. § 61.880(2)(c).

When the attorney general renders a decision, he or she “shall” mail a copy to the agency and a copy to the requestor. Ky. Rev. Stat. Ann. § 61.880(2)(c). The requestor has thirty days from the day that the attorney general renders a decision to file an appeal. Ky. Rev. Stat. Ann. § 61.880(5)(a). If no appeal is filed within that time, the attorney general’s decision “shall have the force and effect of law.” Ky. Rev. Stat. Ann. § 61.880(5)(b).

If an individual “feels” that the intent of the publics records law or open meetings law is being violated short of a denial of inspection – including excessive fees or misdirection – the person “may” complain in writing to the attorney general. The complaint “shall” be subject to the same process as a denial complaint. Ky. Rev. Stat. Ann. § 61.880(4).

Maine

The state statute establishes the Right to Know Advisory Committee “to serve as a resource for ensuring compliance” with public records law and open meetings law. Me. Rev. Stat. Ann. tit. 1, § 411(1) (2006). The committee “shall” provide guidance in ensuring access to public records and meetings. The committee “shall” assist in the establishment of an “effective process” to address general compliance and respond to requests for interpretation and clarification of laws. Me. Rev. Stat. Ann. tit. 1, § 411 (6)(A).

The committee “shall” educate both the public and agencies and public officials about public records and meetings laws. It “shall” provide information on the basic requirements of the access laws and “best practices” for agencies and public officials. The committee also “shall” serve as a resource for agency training programs. The committee “shall” share “best practices experiences” with the agencies, as well as supporting the development of online training and written, question-and-answer summaries. Me. Rev. Stat. Ann. tit. 1, § 411 (6)(D).

The committee also “shall” make efforts to educate the public about both the public’s rights and role in open government. This “shall” include providing information about the access laws and the contact information for specific access inquiries. Me. Rev. Stat. Ann. tit. 1, § 411 (6)(B). The committee “shall” support the establishment and maintenance of a public website that offers the text of and information about the access laws. The website “must” include: contact information for agencies, a list of statutory exceptions to the public records law – or a link to them, and information on how the public can use the law to be “a better informed and active participant in open government.” Me. Rev. Stat. Ann. tit. 1, § 411 (6)(C).

The committee “shall” review public records exceptions and examine the statutory language for inconsistencies. Me. Rev. Stat. Ann. tit. 1, § 411 (6)(E)-(F). The committee may suggest improvements to clarify what information is not public and when it can be released. Me. Rev. Stat. Ann. tit. 1, § 411 (6)(F). The committee also “may” make recommendations for other improvements to the access laws. The committee also “may” make recommendations for “best practices” in providing access to the governor, the legislature, the chief justice of the supreme judicial court and local and regional governmental entities. Me. Rev. Stat. Ann. tit. 1, § 411 (6)(G). The committee also “shall” advise the legislature when it is considering legislation affecting public access to information. Me. Rev. Stat. Ann. tit. 1, § 411 (6)(H).

The committee “shall” review records collection, use, and keeping by agencies and officials to ensure that confidential information is protected and public records are accessible to the public. Me. Rev. Stat. Ann. tit. 1, § 411 (6)(J). The committee “may” hold public meetings to understand and consider issues concerning access to public records and proceedings. Me. Rev. Stat. Ann. tit. 1, § 411 (6)(I). The committee also “may undertake other activities consistent with its listed responsibilities.” Me. Rev. Stat. Ann. tit. 1, § 411 (6)(K).

Members of the committee are entitled to reimbursement for “necessary expenses.” Legislative members are entitled to receive the legislative per diem; public members are entitled to a comparable per diem “upon a demonstration of financial hardship.” Me. Rev. Stat. Ann. tit. 1, § 411 (8). The committee “shall” have staff support from the Legislative Council when the legislature is not in session. When funding allows, the committee “may” contract for support services. Me. Rev. Stat. Ann. tit. 1, § 411 (9).

The committee “shall” annually report to the governor, the legislative council, the legislature, and the chief justice of the supreme judicial court about the state of the freedom of access laws and the public's access to public proceedings and records. Me. Rev. Stat. Ann. tit. 1, § 411 (10).

The committee consists of the following members: 1) one senator who is a member of the joint legislative judiciary committee, appointed by the president of the senate; 2) one member of the state house of representatives who is a member of the joint legislative judiciary committee, appointed by the speaker of the house; 3) one representative of municipal interests, appointed by the governor; 4) one representative of county or regional interests, appointed by the president of the senate; 5) one representative of school interests, appointed by the governor; 6) one representative of law enforcement interests, appointed by the president of the senate; 7) one representative of the interests of state government, appointed by the governor; 8) one representative of a statewide coalition of advocates of freedom of access, appointed by the speaker of the house; 9) one representative of newspaper and other press interests, appointed by the president of the senate; 10) one representative of newspaper publishers, appointed by the speaker of the house; 11) two representatives of broadcasting interests, one appointed by the president of the senate and one appointed by the speaker of the house; 12) two representatives of the public, one appointed by the president of the senate and one appointed by the speaker of the house; and 13) the attorney general or the attorney general's designee. The advisory committee also “shall” invite the chief justice of the supreme judicial court to designate a member of the judicial branch to serve as a member of the committee. Me. Rev. Stat. Ann. Tit. 1, § 411(2). Legislative members are appointed for the duration of their legislative terms. All other members serve three-year terms. Members “may” continue to serve until their successors are appointed. Me. Rev. Stat. Ann. tit. 1, § 411(3). The committee “shall” select a chair during the first meeting and “may” select a new chair annually. Me. Rev. Stat. Ann. tit. 1, § 411 (4). The committee “may meet as often as necessary but not fewer than four times a year.” Me. Rev. Stat. Ann. tit. 1, § 411(5).

Maryland

The state statutes create a State Open Meetings Law Compliance Board. The board “shall” receive, review, and resolve complaints of alleged violations of the open meetings law. The board “shall” provide a written opinion that determines whether a violation occurred. The board also “shall” receive and review any complaint alleging a “prospective” violation of the open meetings law. The board “shall” study ongoing compliance with the open meetings law and make recommendations to the legislature for improvements to the law. Md. Code Ann., State Gov’t § 10-502.4(a)-(c) (2007).

The board shall conduct educational programs on the requirements of the open meetings law for the staffs and attorneys of: 1) public bodies, 2) the Maryland Municipal League, and 3) the Maryland Association of Counties. Md. Code § 10-502.4(d).

Annually, the board “shall” submit a report to the governor and the general assembly. The report “shall” include: 1) the activities of the board, 2) the opinions issued by the board, 3) the number and nature of complaints, and 4) any recommendations for improvements to the open meetings laws. Md. Code § 10-502.4(e).

The board has three members appointed by the governor with the “advice and consent” of the senate. At least one member “shall” be an attorney admitted to the Maryland Bar. Md. Code § 10-502.2(a)(1). Each member serves a three-year term and “may not” serve more than two consecutive terms. Md. Stat. § 10-502.2(b). The Governor “shall” appoint one of the members to serve as chair of the board. Md. Code § 10-502.2(a)(2). Members “may not” receive compensation for their service on the board, but are “entitled” to travel expense reimbursements. Md. Code § 10-502.3(c). The board “shall” receive staff from the attorney general’s office. Md. Code § 10-502.3(d).

Minnesota

The commissioner of the department of administration “may,” upon request by a government entity, provide a written opinion on questions relating to public access to government information, the rights of subjects of government information, or the classification of information under the public records law, and relating to open meetings requirements. Minn. Stat. § 13.072 (2006). The commission also “may” provide public bodies with written opinions on their duties under the access laws. Upon request by a person contesting a government decision regarding information practices, the commissioner “may” issue a written opinion that the person’s rights either as a subject of the data or to have access to the information. The commissioner also “may” provide the person with a written opinion on the compliance of the government entity with access laws.

Any person or entity requesting an opinion specific to the open meetings law “must” pay the commissioner a fee of $200. This fee will be appropriated to the commissioner for purposes of the disposition of the commissioner’s duties. Minn. Stat. § 13.072(1)(b). If the commissioner determines that no opinion will be issued, notice of such decision “shall” be provided to the requestor within five business days of receipt of request. If the commissioner does issue an opinion, he or she “shall” do so within 20 days of receipt. Minn. Stat. § 13.072(1)(c). This deadline “may” be extended “for good cause” for one additional 30-day period, provided that written notice is given to the requestor. The notice “must” state the reason for the extension. Minn. Stat. § 13.072(1)(d).

Opinions by issued by the commissioner are not binding, but “must” be given deference in a court proceeding. Minn. Stat. § 13.072(2). A written opinion by the attorney general “shall” take precedence over commissioner opinions. Minn. Stat. § 13.072(1)(f). A person or entity acting in compliance with an opinion issued by the commissioner “is not liable” for damages or attorneys fees in actions pursued under the public records and open meetings laws. Minn. Stat. § 13.072(2). The commissioner “shall” ensure the public disseminate of all his or her opinions. Minn. Stat. § 13.072(2).

The commissioner “may” establish a training program for state and local officials and employees regarding public information policy. The program “may” include basic training, specific training for specialized service sectors, and policy analysis and support. Minn. Stat. § 13.073(1). The commissioner “may” publicize the development and implementation of the training and seek input from state and local government entities. The commissioner “may” prepare a training guide that includes an overview of the program and its components. Minn. Stat. § 13.073(2).

The commissioner “shall” prepare model polices to aid government entities in compliance with the public records and open meetings laws. The commissioner “shall” offer the model policy for formal adoption by each entity. Minn. Stat. § 13.073(6).

Nebraska

Any person denied rights granted under the access to information laws “may” petition the attorney general. Neb. Rev. Stat. § 84-712.03(2) (2006). The attorney general “shall,” within 15 days, determine whether the record in question may be withheld from the public or whether the public body has violated public records law. Neb. Rev. Stat. § 84-712.03(2). If the attorney general determines that the public body is not in compliance with the law, the public body “shall” be ordered to disclose the record immediately. If the public body continues to withhold the record, the requestor “may”: 1) bring suit in trial court or 2) demand in writing that the attorney general bring suit in the name of the state. If the request demands it, the attorney general “shall” bring suit within 15 days of receipt of the demand. Any suit filed as a result of the attorney general’s decision “shall be assigned for hearing, trial, or argument at the earliest practicable date and expedited in every way.” Neb. Rev. Stat. § 84-712.03(2).

New Hampshire

The state statutes create an oversight commission “to study and oversee the right-to-know law” with specific reference to the increase use of electronic communications. N.H. Rev. Stat. Ann. § 91-A:11 (2006). The commission “shall” study aspects of the right-to-know law, specifically as it relates to electronic communication, including the extent to which the public will be granted access to stored computer data. The commission “shall” study the need for additional requirements or guidelines for email and other electronic communications. This includes guidelines for communication between appointed and elected officials and employees of governmental entities and for communication between constituents of appointed and elected official and employees of governmental entities. The commission “shall” study the ability of members of public bodies subject to the right-to-know laws to participate in meetings via electronic communications, such as teleconference. The commission also “shall” study issues “relative to public records posted to web sites of governmental entities.” The commission also “shall” study the archival requirements for electronic documents and the ability to recover costs relative to the retrieval of electronic files and communications. The commission “shall” study the status of proprietary information within the right-to-know law. The commission may also study any issue it deems “relevant.” N.H. Rev. Stat. Ann. § 91-A:13.

The commission “shall” make an annual report to the speaker of the house of representatives, the senate president, and the governor. The report “shall” include all findings from studies and any recommendations for changes to the legislation. N.H. Rev. Stat. § 91-A:15.

The commission “shall” consist of: a) four members of the house of representatives, one from the science, technology and energy committee, one from the municipal and county government committee, one from the judiciary committee, and one other member, appointed by the speaker of the house; b) three members of the senate, appointed by the president of the senate; c) three municipal officials, appointed by the New Hampshire Municipal Association; d) one school board member, appointed by the New Hampshire School Boards Association; e) one school administrator, appointed by the New Hampshire School Administrators Association; f) two county officials, appointed by the New Hampshire Association of Counties; g) four members of the public, one of whom shall be an attorney who has knowledge of and experience with the right-to-know law, one of whom shall be an information technology professional, and one of whom shall be a telecommunications professional, all appointed by the governor with the consent of the council; h) the attorney general, or designee. N.H. Rev. Stat. Ann. § 91-A:12(I). The members “shall” elect a chairperson. N.H. Rev. Stat. Ann. § 91-A14.

New Jersey

The state statutes create a Government Records Council. N.J. Stat. Ann. § 47:1A-7(a) (2006). The council “shall”: 1) establish an informal mediation program for the resolution of access disputes; 2) review and adjudicate complaints concerning denial of access to government records; 3) issue advisory opinions as to what types of records are accessible to the public; 4) prepare guidelines and a pamphlet for records custodians in complying with public records law; 5) prepare a pamphlet for custodians to provide to records requestors that explain the public’s right of access and the methods for resolution of disputes regarding access to records; 6) prepare lists for records custodians of the types of records that are public; 7) offer training opportunities for records custodians and public officers and employees that explain the public records laws; 8) operate a website and toll-free helpline that any person can call during “regular business hours” for information regarding public access laws, or to request mediation or file a complaint with the council due to a denial. N.J. Stat. Ann. § 47:1A-7(b).

The council “shall” offer mediation upon receipt of a written complaint alleging violation of the public records law. Mediation “shall be an informal, non-adversarial process having the objective of helping the parties reach a mutually acceptable, voluntary agreement. The mediator shall assist the parties in identifying issues, foster joint problem solving, and explore settlement alternatives.” N.J. Stat. Ann. § 47:1A-7(d). If mediation is denied or fails, the council “shall” initiate an investigation. The council “shall” make a determination whether the complaint is frivolous, without factual basis, or outside the council’s jurisdiction. If it is a valid complaint, the council “shall” notify the records custodian of the nature and facts of the complaint. The council “shall” provide the custodian with the opportunity to reply. If necessary, the council “shall” conduct a hearing on the matter. The council “shall”, by majority vote, render a decision as to whether the record in question is public, and whether it must be made available for public access. The council “may” impose penalties if it finds that the custodian has knowingly and willfully violated the public records law and has unreasonably denied access to public records. N.J. Stat. Ann. § 47:1A-7(e). The council “shall not” charge a fee for any action taken. N.J. Stat. Ann. § 47:1A-7(f).

The council “shall” consist of the Commissioner of Community Affairs or the commissioner's designee, the Commissioner of Education or the commissioner's designee, and three public members. The governor, with the advice and consent of the senate, shall appoint the three public members. No more than two of the public members “shall” be members of the same political party. The tenure of the three public members “shall” be limited to the term of the governor who appointed them, ending upon the appointment of a successor. During his or her term on the council, a public member “shall” not hold be elected or appointed to any other State or local office or employment. While a public member “shall” not receive a salary for his or her service on the Council, reimbursement for any “reasonable” and “necessary” expenses garnered while serving on the Council shall be provided. A public member “may” also receive such per diem payment as “may” be provided in the annual appropriations act. N.J. Stat. Ann. § 47:1A-7(a).

The council members “shall” choose one of the public members to at as the Council’s chair. The council “may” also employ an executive director, as well as any professional and clerical staff deemed necessary. The Council may call upon the Department of Community Affairs for any additional assistance needed. N.J. Stat. Ann. § 47:1A-7(a).

The governor “may” remove a council member from office for cause. Such vacancies among public members “shall” be filled in the same manner in which the original appointment was made. N.J. Stat. Ann. § 47: 1A-7 (a).

New York

The statutes create a Committee on Open Government that “shall”: 1) furnish to any agency advisory guidelines, opinions or other appropriate information regarding this article; 2) furnish to any person advisory opinions or other appropriate information regarding this article; 3) promulgate rules and regulations with respect to public records law; 4) request from any agency such assistance, services and information as will enable the committee to effectively carry out its powers and duties; 5) develop a form, which shall be made available on the internet, that may be used by the public to request a record; and 6) report on its activities and findings, including recommendations for changes in the law, to the governor and the legislature annually. N.Y. Pub. Off. Law § 89(1)(b) (McKinney 2006). Each agency “shall” forward to the committee all administrative appeal requests and resulting decisions or opinions. N.Y. Pub. Off. Law § 89(4).

The committee “shall” consist of the lieutenant governor or a delegate; the secretary of state or a delegate; the commissioner of the office of general services or a delegate; the director of the budget or a delegate; a representative of local government appointed by the governor, who, at the time of appointment, is serving as a duly elected officer of a local government; and six other persons, none of whom “shall” hold any other state or local public office. Four of the six “shall” be appointed by the governor, at least two of whom are or have been representatives of the news media. One of the six “shall” be appointed by the temporary president of the senate, and one by the speaker of the assembly. The members of the committee “shall be entitled” to reimbursement for “actual expenses” incurred in the discharge of their duties. The secretary of state’s office shall act as secretariat for the committee. N.Y. Pub. Off. Law § 89(1)(a).

North Dakota

Any person “may” request an opinion from the attorney general reviewing a written denial of a request to access records under the public records law, a denial of access under the open meetings law, or any other violation of public records or open meetings law by a public entity. Such requests “must” be made within 30 days of the alleged violation, or 90 days of the alleged violation if a meeting occurred without notice. N.D. Cent. Code § 44-04-21.1(1) (2005).

The attorney general “may” request any information claimed to be exempt or confidential for purposes of rendering a decision as to whether the information should be available to the public. The attorney general “shall” issue an opinion to the public entity that is the subject of the request, based on the facts given by that entity. N.D. Cent. Code § 44-04-21.1(1). If the attorney general decides that there has been a violation, the public entity has seven days to disclose the information, or otherwise correct the violation. N.D. Cent. Code § 44-04-21.1(2).

The attorney general also “may” refer to a state’s attorney any public servant who has been found in more than one opinion to have violated the public records or open meetings law. N.D. Cent. Code § 44-04-21.3.

Ohio

The attorney general “shall” develop, provide, and certify training programs and seminars for all elected officials and their designees that provide guidance in developing and updating policies regarding the access to information laws. The attorney general “shall” ensure that all trainings and programs are certified by the commission on continuing legal education. Ohio Rev. Code Ann. § 109.43(B) (2007). The attorney general “may” allow any other interested persons to attend the sessions, and “shall not” charge any persons or officials for attending. Ohio Rev. Code Ann. § 109.43(C). The attorney general “may” contract with state agencies or other public or private entities to conduct the training programs. Ohio Rev. Code Ann. § 109.43 (D). The contracting entity “may” charge a registration fee for attendance; the attorney general “shall” determine a reasonable amount for the fee based on “actual and necessary expenses.” Ohio Rev. Code Ann. § 109.43 (D).

The attorney general also “shall” develop and provide to all public offices a model public records policy. The policy will provide guidance to the offices in developing policies for responding to public records requests in compliance with the law. Ohio Rev. Code Ann. § 109.43 (E). The attorney general “may” provide other appropriate training or educational programs and materials regarding the state’s public access to information laws. Ohio Rev. Code Ann. § 109.43 (F).

The state auditor is charged with auditing state offices for compliance with the public records law. Ohio Rev. Code Ann. § 109.43 (G).

Oregon

Any person denied the right to inspect or receive a state agency record “may” petition the attorney general to review the requested record to determine if it may be withheld. The attorney general “shall” issue an order denying or granting the petition within seven days from the receipt of the petition. Or. Rev. Stat. § 192.450(1) (2005). This process is applicable to denials of records requests for records not held by a state agency, except that district attorneys “shall” carry out the functions of the attorney general for review. Or. Rev. Stat. § 192.460.

Rhode Island

Any person denied the right to inspect a public record “may,” after exhausting administrative appeals within the agency holding the record, file a complaint with the attorney general. R.I. Gen. Laws § 38-2-8 (2006). Any person also “may” file a complaint with the attorney general for alleged violations of the open meetings law. R.I. Gen. Laws § 42-46-8. The attorney general “shall” investigate the complaint and “may” institute proceedings for relief in the appropriate trial court if the claims are “meritorious.” R.I. Gen. Laws §§ 38-2-8, 42-46-8.

South Dakota

Upon receiving a complaint alleging violation of the open meetings laws, a state’s attorney “may” prosecute the case or determine that the case has no merit for trial. If the state’s attorney determines that the case has no merit, the state’s attorney “shall send a copy of the file to the attorney general, who “shall” use the information for statistical purposes. The state’s attorney also “may” send the complaint to the Open Meetings Commission. S.D. Codified Laws § 1-25-6 (2006).

The, commission “shall” examine any complaint file referred it by a state’s attorney. Based on the file and any written statements from involved persons, the commission “shall” issue a written determination on whether there is a violation of the public meetings law. The decision will include a statement of the reasons for the determination, as well as findings on each issue raised in the complaint. The final decision, determined by a majority vote of the commission, “shall” be filed with the attorney general and provided to: 1) the public entity and/or the public officer involved; 2) the state's attorney, and 3) any person that has made a written request for such determinations. S.D. Codified Laws § 1-25-7 (2006). If the commission determines that there has been a violation of the law, it “shall” issue a reprimand to the offending official or governmental entity.

The commission “shall” be comprised of five state’s attorneys appointed by the attorney general. Each member “shall” serve at the pleasure of the attorney general. The commission shall, by majority vote, annually select a chairperson. S.D. Codified Laws § 1-25-8.

Texas

Any public body that “wishes” to withhold from public disclosure certain information that it “considers” to be within one of the public records exceptions “must” request a decision, if one does not already exist, from the attorney general as to whether the information is within the exception. Tex. Gov’t Code Ann. § 552.301(a) (2007). The attorney general “shall promptly” render a decision no later than 45 working days from the date of receipt of the request for decision. The attorney general “may” extend this by 10 working days by notifying both the public body and the records requestor of the reasons for delay. Tex. Gov’t Code Ann. § 552.306(a). The attorney general “shall” issue a written opinion of his or her determination on whether the record is within the public records exception. A copy of this opinon “shall” be provided to the records requestor. Tex. Gov’t Code Ann. § 552.306(b).

Additionally, the state statutes create the Open Records Steering Committee to advise the attorney general on his or her duties relating to public records law: assisting public information officers in educating the public on its rights, adopting rules for public bodies to charge fees for public records requests, fielding and resolving requestor complaints of excessive charges for public records requests, and preparing biennial reports concerning charges made by state agencies for public records requests. Tex. Gov’t Code Ann. § 552.009(c). Members of the committee representing state governmental bodies and the public “shall” periodically study and determines types of public information that would be useful or cost-effective to be made available on the Internet or by some other electronic means. The committee “shall” report its findings and recommendations to the governor, the presiding officer of each house of the legislature, and the budget committee and state affairs committee of each house of the legislature. Tex. Gov’t Code Ann. § 552.009 (d).

The committee is composed of two representatives of the attorney general’s office; five public members appointed by the attorney general; three representatives appointed by the attorney general to represent respectively municipalities, counties, and school districts; and one representative of each of the following: the comptroller's office, the Department of Public Safety, the Department of Information Resources, the Texas State Library and Archives Commission, and the Texas Building and Procurement Commission. Tex. Gov’t Code Ann. § 552.009 (a). One of the representatives from the attorney general’s office will be designated by the attorney general to serve as the presiding officer of the committee. Tex. Gov’t Code Ann. § 552.009 (b).

Utah

The state statutes create the State Records Committee. The committee “shall” hear appeals from determinations of access. Utah Code § 63-2-502(1)(c) (2007). Any person “may” appeal a records request denial, whether in whole or in part. § 63-2-402(2). No later than five business days after receiving a notice of appeal, the executive secretary of the records committee “shall”: 1) schedule a hearing for the committee to discuss the appeal; 2) send a copy of the notice of the hearing to the petitioner; 3) send a copy of the notice of appeal and hearing to each member of the committee, the records officer and chief administrative officer of the government entity, any person with a business confidentiality claim in the records under appeal, and any person who participated in the request proceedings before the government entity. Utah Code § 63-2-403(4)(a). If the committee has decided the issue before, the executive secretary “may” decline to schedule a hearing. Utah Code § 63-2-403(4)(b)(i). The secretary “shall” send notice of denial and a statement of reason to the petitioner. The records committee “may” review disputed records, but “must” review them if the committee is weighing privacy interests or business confidentiality, in which case the review “shall” be in camera. Members “may not” disclose any information or record reviewed in camera, unless the committee determines that the record or information is a public record. Utah Code § 63-2-403(9).

The committee “shall” issue an order that “shall” include: 1) a statement of reasons for the decision, including citations to this chapter, court rule or order, another state statute, federal statute, or federal regulation that governs disclosure of the record, provided that the citations do not disclose private, controlled, or protected information; 2) a description of the record or portions of the record to which access was ordered or denied, provided that the description does not disclose private, controlled, or protected information or information exempt from disclosure; 3) a statement that any party to the proceeding before the records committee may appeal the records committee's decision to district court; and 4) a brief summary of the appeals process, the time limits for filing an appeal, and a notice that in order to protect its rights on appeal, the party may wish to seek advice from an attorney. Utah Code § 63-2-403(12). A failure to issue a decision within 57 days “shall” be considered a denial of appeal.

The committee consists of: 1) an individual in the private sector whose profession requires him to create or manage records that if created by a governmental entity would be private or controlled; 2) the state auditor or the auditor's designee; 3) the director of the Division of State History or the director's designee; 4) the governor or the governor's designee; 5) one citizen member; 6) one elected official representing political subdivisions; and 7) one individual representing the news media. Utah Code § 63-2-501(1). The committee “shall” annually appoint an executive secretary that “may not” serve as a voting member. Utah Code § 63-2-502(3). The attorney general’s office “shall” provide counsel to the committee. Utah Code § 63-2-502(8).

Virginia

The Virginia Freedom of Information Advisory Council serves as an advisory council to the legislative branch “to encourage and facilitate compliance with the state Freedom of Information Act.” Va. Code Ann. § 30-178(A) (2006). The council “shall,” upon request, provide advisory opinions or guidelines regarding state FOIA to any person or agency of state or local government in an “expeditious manner.” Va. Code Ann. § 30-179(1). The council also “shall” conduct training seminars and educational programs for members and staff of public bodies, and other interested parties. The council “shall” publish any educational materials it deems appropriate on the state FOIA provisions. Va. Code Ann. § 30-179(2)-(3).

The council “shall” assist in the development and implementation of laws relating to the public’s rights, the procedures, and the government’s responsibilities under the state FOIA. Va. Code Ann. § 30-179(5). The council “shall” request assistance, services, and information from any state or local agency that will assist the council in carrying out its duties. Va. Code Ann. § 30-179(4). The council “shall” report annually to the general assembly and the governor on the council’s findings and activities. The report “shall” be published as a “state document.” Va. Code Ann. § 30-179(6).

The council “shall” consist of 12 members including the Attorney General or his designee; the state librarian or his designee; the director of the division of legislative services or his designee. Four members “shall” be appointed by the speaker of the house of delegates: one member of the house of delegates and three nonlegislative citizen members, at least one of whom shall be or have been a representative of the news media. Three members “shall” be appointed by the senate committee on rules: one of member of the senate, one of whom shall be or have been an officer of local government, and one nonlegislative citizen at-large member. The final two members “shall” be nonlegislative citizen members appointed by the governor, one of whom “shall not” be a state employee. Va. Code Ann. § 30-178(B). The members “shall” elect a chair and vice-chair, who will serve two-year terms in those offices. Va. Code Ann. § 30-178(D). All appointments “shall” be staggered four-year terms. Legislative members and other state government officials “shall” serve terms that coincide with their terms of office. Va. Code Ann. § 30-178(C). Members “shall” not receive compensation but “shall” be reimbursed for all “reasonable and necessary” expenses. Va. Code Ann. § 30-178(E).

Washington

Any person denied the opportunity to inspect or copy a public record because a state agency determines the record to be exempt, “may” request the attorney general to review the denial. The attorney general “shall” issue a written opinion on whether the record is exempt. Wash. Rev. Code § 42.56.530 (2007). The attorney general also “may” provide information, technical assistance, and training on the provisions of the open meetings laws. Wash. Rev. Code § 42.30.210 (2007).

Wisconsin

The attorney general “may” respond to requests for advice on the applicability of the public records law, which any person “may” make. Wis. Stat. Ann. § 19.39 (2007). Any person denied access to a record “may” request in writing either a district attorney or the attorney general to initiate a court action for release of the record. Wis. Stat. Ann. § 19.37(1)(b) (2007).

Null States

No specific, statutory charges for enforcing or improving state access law compliance could be found for the states listed below. These states may have some form of informal review process or advisory body that is not codified in the state codes.