Appeals Court: Agencies can be forced to pay
Failure to process public records requests can lead to $100/day fines
In a ruling this week, the Court of Appeals found that public agencies can be ordered to pay up to $100 per day for providing incomplete or inadequate responses to requests filed under the state’s Inspection of Public Records Act.
The order was filed Monday in a case by animal welfare activist Marcy Britton, who alleges the Attorney General’s Office failed to turn over around 350 emails that should have been provided in response to an IPRA request she filed in 2009. The order reverses an earlier ruling by a 2nd Judicial District Court judge who found that Britton was not entitled to statutory damages.
Without a per-day penalty, the Court of Appeals wrote, “there exists no incentive for a public body to do anything more than provide a perfunctory ‘response’ to a request no matter how incomplete and inadequate.”
Britton sought a series of records related to the Attorney General’s Animal Cruelty Task Force out of concern that the group was euthanizing animals. In a June 30, 2009, request, she asked for communications between people associated with the task force over the previous two years.
She eventually received hundreds of records from the AG’s Office, though she had been led to believe that far more were available. According to the Court of Appeals, in January 2012, Britton received a response to a separate IPRA request filed with the State Auditor’s Office seeking records it maintained related to the AG’s Office task force. She noticed that the state auditor provided records that were within the scope of her June 2009 request, according to the Appeals Court order. The AG’s Office later agreed to run a new search, which turned up at least 350 emails responsive to Britton’s request that had not yet been produced.
“The AG’s position in this case was that any timely response to an IPRA request, no matter how inadequate, is immune from statutory damages,” Britton’s attorney John Boyd said in a news release.
Melanie Majors, executive director of the Foundation for Open Government, called the decision “a major step in ensuring that our state’s government is open, transparent and accessible.”
In a brief urging the court to side with Britton, FOG wrote that the now-reversed District Court decision “encourages deceptive responses to IPRA requests” and without a deterrent, like statutory damages, government entities have little incentive “to behave openly and transparently by disclosing the existence of responsive documents.”
The case has been remanded to the District Court, which must determine whether the AG’s Office’s failure to provide all records was unreasonable. If so, the court “must award plaintiff damages up to $100 per day accruing from the date the district court determines the AGO was in noncompliance until it came into compliance.”
A spokesman for the AG’s Office said Wednesday that the agency is “reviewing all options with regard to this case.”