Role of the Attorney General
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| 1. Select a state |
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Alabama • Alaska • Arizona Arkansas • California • Colorado Connecticut • Delaware • Florida Georgia • Hawaii • Idaho Illinois • Indiana • Iowa Kansas • Kentucky • Louisiana Maine • Maryland • Massachusetts Michigan • Minnesota • Mississippi Missouri • Montana • Nebraska Nevada • New Hampshire New Mexico • New Jersey New York • North Carolina North Dakota • Ohio • Oklahoma Oregon • Pennsylvania • Rhode Island South Carolina • South Dakota Tennessee • Texas • Utah Vermont • Virginia • Washington West Virginia • Wisconsin • Wyoming |
| 2. See also |
The role of the Attorney General with regard to open records varies greatly by state from enforcement powers to virtually no role at all. The various functions are listed below.
Select a state
Here is a list of declarations of intent by state:
Alabama Public Records Law
State open records laws do not give the State Attorney General a specific role to play within the enforcement of the measure. That said, however, the State Attorney General could potentially be called upon to prosecute violators of the open records law under the Code of Alabama 1975, § 13A-10-12, which addresses tampering with governmental records. [1]
Alaska Public Records Act
There is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records.
Arizona Public Records Law
There is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records.
Arkansas Freedom of Information Act
The Freedom of Information Act (FOIA) for Arkansas does authorize the State Attorney General to provide opinions, albeit non-binding ones, in specific cases involving personnel and job evaluation records. Ark. Code Ann. § 25-19-105(c)(3)(B) states, "Either the custodian, requester, or the subject of the records may immediately seek an opinion from the Attorney General, who, within three (3) working days of receipt of the request, shall issue an opinion stating whether the decision is consistent with this chapter. In the event of a review by the Attorney General, the custodian shall not disclose the records until the Attorney General has issued his opinion." However, § 25-16-702 of the Arkansas Code Annotated points out that the only individuals who can request an opinion of the Attorney General are the Governor, heads of the state executive departments, prosecuting attorneys of any circuit, both houses of the State General Assembly, and county boards of elections commissioners.
The State Attorney General is also charged with the power of enforcement in cases of FOIA non-compliance. The State Supreme Court case of Bryant v. Weiss (1998), in which the state's top law enforcer was regarded as a citizen entitled to employ the FOIA, affirmed this opinion. Therefore, the State Attorney General may file a request that had been denied to another citizen and, if the request is once again denied, then he/she may bring civil action under the FOIA in place of the original requester.
California Public Records Act
There is currently no provision within the CPRA that permits the State Attorney General to initiate proceedings against a public state agency to disclose public records unless the Attorney General has been denied access to public records.
Colorado Open Records Act
There is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records.
Connecticut Freedom of Information Act
There is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records.
Delaware Freedom of Information Act
Amended §10005(e) of Title 29 of the Delaware Code specifies that if an individual's petition for access to information is denied, it can be given to the State Attorney General who will “promptly determine whether the petition is against an administrative office or officer, agency, department, board, commission or instrumentality of state government which the Attorney General is obliged to represent pursuant to §2504 of this Title." [1] If a violation of the State Freedom of Information Act has occurred, "the Attorney General shall not represent the public body in any appeal filed pursuant to this Chapter for such violation if the public body the Attorney General is otherwise obligated to represent fails to comply with the Chief Deputy’s determination." [1]
Florida Sunshine Law
There has yet to be a case in which a local state court has specifically addressed the issue of who exactly may sue to enforce the public records rights laid out under Chapter 119 of the state statutes. However, My Florida Sunshine, a website operated by the State Attorney General's Office dedicated to providing state citizens with all available information regarding state open record and meetings laws, states that it is "the local state attorney has the statutory authority to prosecute alleged criminal violations of the open meetings and public records law."
Georgia Open Records Act
§ 50-17-73(b) of the Official Code of Georgia Annotated (OCGA) states that "the Attorney General shall have authority to bring . . . actions, either civil or criminal, in his or her discretion as may be appropriate to enforce compliance with this article" under the state's open records act."
Hawaii Uniform Information Practices Act
There is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records.
Idaho Public Records Act
With enforcement of Public Records Act left in the hands of the private sector, the role of the State Attorney General in this process is rather limited. The Attorney General is charged with only two specific responsibilities in regards to the state's open records law - providing information to the public about their rights under the Act and to encourage state agencies and officials to comply with the law.
Illinois Freedom of Information Act
Indiana Access to Public Records Act
There is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records. Those denied access to public records are advised under the Act to seek remedy by filing suit in any court of competent jurisdiction within the state.
Iowa Open Records Law
Under § 22.10 of the Iowa Code Annotated, "any aggrieved person, any taxpayer to or citizen of the state of Iowa, or the attorney general or any county attorney, may seek judicial enforcement of the requirements of this chapter in an action brought against the lawful custodian and any other persons who would be appropriate defendants under the circumstances." [1]
Kansas Open Records Act
Under Kansas Statutes Annotated (K.S.A.) 45-228, the State Attorney General "or county or district attorney may:
- (a) Subpoena witnesses, evidence, documents or other material;
- (b) take testimony under oath;
- (c) examine or cause to be examined any documentary material of whatever nature relevant to such alleged violations;
- (d) require attendance during such examination of documentary material and take testimony under oath or acknowledgment in respect of any such documentary material; and
- (e) serve interrogatories" [1]
Kentucky Open Records Act
If an individual's request for access to public records in the possession of a state governmental agency is denied, in spite of their proper compliance with request procedures detailed under the state's open records law, the requester may ask the state's Attorney General to review the decision after first providing the Attorney General's Office " a copy of the written request and a copy of the written response denying inspection." [1] Within twenty days, the State Attorney General will issue a written decision as to whether or not the state governmental agency did indeed violate the provisions of the state's open records law. The State Attorney General is also authorized to review requests in which the requester feels as though the intent of the open records act is "being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant." [1]
Should either party feel as though the Attorney General's verdict is unsatisfactory, one of the parties may file an appeal with the local Circuit Court within thirty days of the decision being issued. If, however, an appeal is "not filed within the thirty (30) day time limit, the Attorney General's decision shall have the force and effect of law." [1]
Louisiana Public Records Act
There is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records.
Maine Freedom of Access Act
Although the State Attorney General may enforce the Act, prosecution are virtually unheard of.
Maryland Public Information Act
The State Attorney General frequently issues opinions as to the applicability of the state's Public Information Act and issues guidelines to the various state agencies. Click here to view Opinions of the Attorney General on the Maryland Public Information Act
Massachusetts Public Records Act
The Supervisor of Public Records, authorized under Chapter 66 § 10(b) of the state's General Laws, "may notify the attorney general or the appropriate district attorney thereof who may take whatever measures he deems necessary to insure compliance with the provisions of this section." [1] The State Attorney General decides on a case-by-case basis as to whether or not to take up court action in order to ensure compliance with the law. The Attorney General, however, is not authorizes to request specific oversight of a public records request.
Michigan Freedom of Information Act
There is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records.
Minnesota Data Practices Act
There is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records.
Mississippi Public Records Act
There is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records.
Missouri Sunshine Law
While the State Attorney General frequently issues non-binding opinions in support of the enforcing the state's Sunshine Law, the statewide governmental official rarely initiates litigation; if he does, it is merely to file a brief as amicus curiae.
However, under 610.027 of the Missouri Sunshine Law, "any Missouri taxpayer, citizen or aggrieved person, the Attorney General, or the county prosecutor may bring a court action to enforce the Sunshine Law. The lawsuit must be filed in the circuit court in the county where the public governmental body has its principal place of business. A lawsuit must be filed within one year from when the violation is ascertainable, and in no event shall it be brought later than two years after the violation occurred." So while there is no precedent set by previous office holders enabling the State Attorney General to enforce the measure, the law does authorize to pursue such action should he want to do so.
Click here to view Opinions of the Attorney General on the Missouri Sunshine Law
Montana Public Records Act
Although the State Attorney General is not authorized by any specific statute within the Act to enforce its provisions, the office may issue non-binding advisory opinions in response to questions raised by public agencies or officials concerning the law; private citizens, however, are not able to request such opinions.
Nebraska Public Records Law
Under § 84-712.03 of the Nebraska Revised Statutes, any individual denied access to public records "can petition the Attorney General to review the matter to determine whether a record may be withheld from public inspection or whether the public body that is custodian of the record has otherwise failed to comply with the Public Records Statutes." [1] A decision on such a matter must be delivered by the State Attorney General within fifteen calendar days starting from the date on which the petition was submitted. Should the public agency or state governmental official continue to withhold requested records after the Attorney General has handed down his decision, the requester may "demand in writing that the Attorney General bring suit in the name of the state in the trial court of general jurisdiction for the same purpose." [1]
Nevada Open Records Act
Although the State Attorney General may issue non-binding advisory opinions when requested to do so in regards to the state's open records law, there currently stands no provision that empowers the State Department of Law to enforce the right of the public to access governmental records.
New Hampshire Right to Know Law
Although there is currently no provision that authorizes the State Attorney General to enforce the state's Right to Know law, the office does advice public agencies and state governmental officials that receive right-to-know requests and also responds to requests made by the public for information in regards to the law.
New Jersey Open Public Records Act
The State Attorney General serves no specific role in the enforcement of the open records law other than standing in as acting attorney for the Government Records Council.
New Mexico Inspection of Public Records Act
Although the State Attorney publishes compliance guides and checklists for the state sunshine laws and participates in seminars, he does not, however, exercise prosecutorial powers in the enforcement of the Act.
New York Freedom of Information Law
In the event a legal proceeding is enacted against a public agency or state governmental official under Article 78 for failure to properly comply with the state's Freedom of Information Law, the State Attorney General will act as the agency's defense.
North Carolina Public Records Law
Although the State Attorney General does issue opinions in response to requests made by public officials to interpret the state's public records law and publishes a guide for the general public, the State Law Department plays no specific role in the enforcement of it.
North Dakota Open Records Statute
Under § 44-04-21.1 of the North Dakota Century Code, any individual whose request for access to public records has been denied may request an opinion be issued by the State Attorney General. This written opinion must be delivered within thirty days of the alleged violation. Should the Attorney General decide in favor of the requester, the public agency or state governmental official has seven days after the opinion is issued to comply with the open records request, regardless of whether civil action is brought against them or not. Failure to comply with the Attorney General's opinion "will be the same as for other attorney general's opinions, including potential personal liability for the person or persons responsible for the noncompliance." [1] Additionally, if civil action is brought against the public agency accused of violating the open records law, " the entity, at its sole cost and expense, shall retain separate counsel who has been approved and appointed by the attorney genrepresent the entity in that action." [1]
Ohio Open Records Law
The State Attorney General's Office serves as a means for both public officials and citizens to understand their rights and responsibilities under the state's sunshine laws. In addition to providing free training for individuals interested in the concept of open government, the Attorney General publishes a yearly manual called the Sunshine Book that serves as a guide in helping to answer questions related to the laws. The Ohio Public Records Act states that if "a person who believes that the Act has been violated must independently pursue a remedy, rather than asking a public official such as the Ohio Attorney General to initiate legal action on his or her behalf."
Oklahoma Open Records Act
Besides issuing opinions on specific questions raised in regards to the application of the law, there is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records.
Click here to view Opinions of the Attorney General on the Oklahoma Open Records Law
Oregon Public Records Law
An individual whose request to access public records is denied by a state agency or official can appeal to the State Attorney General, who "acts not as legal counsel for state agencies, but in a quasi-judicial role." [1] At the same, however, the State Attorney General's Office is also allowed under the law to continue to provide advice to the state agencies under scrutiny even after a petition has been filed against them compelling the agency to disclose public records.
If a public agency continues to deny an individual's request for public records after discussing the matter with the Attorney General, the individual may file a petition for review with the State Justice Department. The Attorney General has a period of seven days in which to decide whether or not to proceed in whole or in part with the petition. Should the Attorney General not reach a decision regarding the matter within that allotted time, "failure to issue an order is treated as a denial for purposes of permitting judicial review." [1] Thereafter, the burden of sustaining its denial of the records request is placed squarely on the shoulders of the state agency in question.
However, under § 192.480 of the Oregon Revised Statutes, neither the State Attorney General nor any district attorney within the state is allowed to review the decision of an elected official to withhold a specific record from inspection under the public records law. Accordingly, "this rule applies regardless of whether the record in question is in the custody of the elected official or in the custody of any other public agency, so long as the elected official claims the right to withhold the record." [2] Therefore, the only recourse for the requester is to take the matter up with the courts. At the discretion of either the State Attorney General or district attorney, the Attorney General or district attorney may serve as counsel for an elected official called into court over the matter of the refusal to grant an open records request to an individual.
In addition to publishing an annual Government Transparency Report to highlight the most pressing problems in the state's public records law, the State Attorney General also provides public citizens with a free online Public Records and Meetings Manual in effort to layout their specific rights under the law.
Pennsylvania Right to Know Law
There is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records.
Rhode Island Access to Public Records Act
Under § 38-2-8(b) of the Rhode Island General Laws, the State Attorney General is charged with investigating any complaint brought by a private citizen related to access to public records. At the same time, however, the individual denied the request is allowed to pursue legal action in Superior Court of the county in which the records are maintained.
South Carolina Freedom of Information Act
Besides issuing advisory opinions in regards to the state's open records law, the State Attorney General plays no active litigative role in the enforcement of the right of the public to access governmental records.
South Dakota Sunshine Law
There is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records.
Tennessee Open Records Act
There is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records.
Texas Public Information Act
If information requested by an individual falls within one of the exceptions to disclosure as stated under the state's Public Information Act, a public agency may release said information while it seeks an open records decision from the State Attorney General. A public agency cannot determine on its own whether or not to withhold information unless a previous determination regarding a specific information request had been reached by either a court or the State Attorney General
Utah Government Records Access and Management Act
Under § 63G-2-502(8) of the Utah Code Annotated, the role of the State Attorney General is merely to "provide counsel to the records committee and shall review proposed retention schedules." [1]
Vermont Public Records Law
There is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records.
Virginia Freedom of Information Act
There is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records.
Washington Public Records Act
Under § 42.56.530 of the Revised Code of Washington, "whenever a state agency concludes that a public record is exempt from disclosure and denies a person opportunity to inspect or copy a public record for that reason, the person may request the attorney general to review the matter. The attorney general shall provide the person with his or her written opinion on whether the record is exempt." [1] This, however, does not in any way constitute an attorney-client relationship.
West Virginia Freedom of Information Act
Although the state's Freedom of Information Act does not specifically mention the State Attorney General's role in the enforcement of the law, § 6-9A-12 of the West Virginia Code, under the West Virginia Open Governmental Proceedings Act, "it is the duty of the attorney general to compile the statutory and case law pertaining to this article and to prepare appropriate summaries and interpretations for the purpose of informing all public officials subject to this article of the requirements of this article." [1]
Wisconsin Open Records Law
If an individual's request for access to public records is denied by a public agency or state governmental official, under § 19.37(1) of the Wisconsin Statutes, this person may "submit a written request to the district attorney of the county where the record is located or to the Attorney General requesting that an action for mandamus be brought asking the court to order release of the record to the requester." [1]
Wyoming Sunshine Law
There is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records.
See also
- State sunshine laws
- Years that state FOIA laws were enacted
- List of who can make public record requests by state
External links
References
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