There’s more on that three vs. five days for agencies to respond to a public records request

Oh, here we are again, writing about the three-day response to an open records request. You remember the one; the one that the GOP supermajority changed to five days during the 2021 session.

Perish the thought they would do that!!

At the time, we knew of only four states — including Kentucky — that had as little as a three-day requirement for responding. Yeah, we know it had been in the law since the mid-1970s but it seemed many thought the world would end with anything more than three days.

So this week, the question reared its ugly head again. The Florida Press Association asked what time period states had in laws on responding to a request. I simply explained Kentucky was a three-day state but as of this year’s legislature, it moved to five days.

Then I laughed when I started seeing responses from other states, wondering how those who thought the world would end with anything more than three days would survive in some of the states.

First, you have to know what was asked of state press association executive directors. This came from Florida:

“Florida’s open records law requires that governmental agencies respond to public records requests in a “reasonable” amount of time. But there is no definition of “reasonable” and this has created problems with timely responses.”

Several states responded. For instance:

• Virginia — Our language says “five days” but they can (and do) find many ways to get around this requirement.

• Ohio — We are also “reasonable’ … and what’s reasonable gets decided based on what was asked for. A simple request for a copy of an existing record that’s easy to locate usually 2-3 business days… Something that requires lots of copying, researching to see if a record exists of something… those are allowed to take longer before someone says it was “unreasonable”….

• Pennsylvania — Pennsylvania’s Right to Know Law (RTKL) requires the agency to respond, in writing, within 5 business days of the receipt of the request. The response must do one of three things:

1. Grant access and provide a fee estimate, or
2. Deny access, explain the legal reason why and provide information about how to file an administrative appeal, or
3. Take an additional 30 calendar days in limited circumstances.
In practice, most initial responses take 30 additional days, most often for legal review. Some of those are likely made in bad faith, but there’s no good mechanism to challenge the extension.
• Louisiana — They have three days to say if they will or will not turn over records. If they deny, they have to tell you why. But you have to wait five days to file a suit if they deny or do not respond, so it’s really five days. If they agree to turn over records, they can provide an estimated timeframe to provide information that includes redactions, segregation or production.

• Michigan — Ours says five days…to respond.  Not to fill the request.  Below is the language. Note the extension.Unless otherwise agreed to in writing by the person making the request, a public body shall, subject to subsection (10), respond to a request for a public record within 5 business days after the public body receives the request by doing 1 of the following:

(a) Granting the request.

(b) Issuing a written notice to the requesting person denying the request.

(c) Granting the request in part and issuing a written notice to the requesting person denying the request in part.

(d) Issuing a notice extending for not more than 10 business days the period during which the public body shall respond to the request. A public body shall not issue more than 1 notice of extension for a particular request.

• Mississippi — It’s a leisurely seven-day window in Mississippi, unfortunately.

• Illinois — Illinois is 5 days, and they can take a 5-day extension.

• Nevada — Government needs to respond within five days in Nevada. Requestors must file suit to enforce the requirement and can recover attorneys fees if they prevail.

• Vermont — Vermont expects public records to be turned over immediately, but the law does allow some wiggle room for up to 3 days (like in use or in storage.)

• New York — In New York, the agency has to respond to the request within 5 business days. If it can’t fulfill the request within that time, it can have an additional 20 days. That 20 days can be re-upped forever with no penalty.  Our recently deposed Governor was known for making the 20-day extensions last for several years.

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