Background
The following template is for journalists seeking to compel a state or local agency to turn over records requested under the Alaska Public Records Act (“APRA”). The template provides a general outline for complaints filed in an Alaska superior court with areas for editing in brackets.
APRA gives journalists and other persons the right to inspect the public records of “all publicagencies,” except those records that are exempt from public disclosure.1 The categories ofrecords that are exempt from disclosure are identified in Alaska Stat. § 40.25.120.Before seeking a court order to compel production of public records, the person seeking therecords must first make a request to the agency. The following explains the process:
1. Request records from the agency
The first step is to ask the appropriate agency for the records being sought. Although APRA applies to both state and municipal agencies,2 there may be variations in the procedures different agencies use to process requests for records. Before making a records request, it is advisable to contact the agency that maintains the records to determine if it has any particular forms or unique procedures for records requests.
Most agencies within the executive branch of the state government are governed by the regulations in the Alaska Administrative Code at 2 AAC 96.100 – 96.900.3 The Administrative Code permits a request for records to be made orally, but states that the only administrative remedy for denial of an oral request is to file a written request.4 To avoid misunderstandings and the possibility of unnecessary delays, it is advisable to submit the initial request for records in writing rather than orally. A written request will also help ensure a clear record for possible court action.
To obtain records from most agencies within the executive branch of state government, the Alaska Administrative Code provides that:
1. A request for records of an agency may be filed at the nearest office of the agency;5
2. The requestor must describe the records sought in sufficient detail to enable the agency to locate the records;6
3. If the request includes a stamped, addressed postcard, the agency must “promptly” use it to acknowledge the date the request was received;7
4. The agency must respond to the request “as soon as practicable,” but not later than ten business days after receiving the records request, by (a) providing all requested public records that are disclosable, and (b) notifying the requestor of any requested public records that are not disclosable, and the legal and factual basis for determining that those records are not disclosable.8 In the alternative, if the requestor’s description of the records being sought was not sufficient to allow the agency to identify them, the agency may respond within ten days by notifying the requestor that his or her request cannot be processed until additional information is furnished, in which case the ten-day period for providing a substantive response will not begin to run until a sufficient description of the requested records is received by the agency.9
The Administrative Code also specifies certain circumstances that permit extension of an agency’s ten-day period for responding to a records request.10 Keep in mind that these procedures, and the required time periods for responding to records requests, may be different than those used by agencies of municipal governments and agencies of the state government not covered by the Administrative Code regulations.
APRA permits an agency to charge a fee for copying public records, which may not exceed the standard cost of duplication established by the agency.11 If the production of records for one requestor requires more than five person-hours in a single month, APRA also directs the agency to charge the requestor for the personnel costs associated with the search and copying tasks for that month.12 APRA, however, does permit the agency to reduce or waive a fee when it determines that the reduction or waiver is in the public interest.13 If the fee is not waived, the agency may require payment before providing the requested records.14
2. Optional: Pursue an administrative appeal if the agency does not produce all requested records
If a state or municipal agency denies any part of a request for public records, the requestor may be able to obtain reconsideration of the agency’s initial action by submitting an appeal to the agency. An administrative appeal is optional, and the requestor does not need to pursue an administrative appeal before filing suit for injunctive relief in superior court.15
APRA requires most public agencies in the executive branch of the state government, public agencies in the legislative branch, public agencies in the judicial branch, and the University of Alaska to provide for administrative appeal of actions they have taken in response to requests for public records.16 Agencies of municipal governments may also have procedures for administrative appeals. If the requestor wants to pursue an administrative appeal, he or she should contact the agency involved to determine the agency’s appeal requirements. The deadlines for filing an administrative appeal, and the procedures involved, can vary among the various agencies governed by APRA.
3. Court action to compel production of public records
APRA has two provisions that authorize court action to enforce a person’s right to public records. Alaska Statute § 40.25.124 provides the right to file a court appeal from any “final administrative order” made by a public agency under the Act. Alaska Statute § 40.25.125 provides the right to file a lawsuit for an injunction against any person having custody or control of public records who has denied or obstructed the inspection of those records. Both types of cases must be filed in one of Alaska’s superior courts.
The attached can be used as a template for a complaint. The complaint should be filed in the superior court for the judicial district in which either (a) your claim arose, or (b) the defendant can be personally served.17 Your claim will have arisen where the agency that denied your records request is located.
Before filing suit, it is important to carefully consider your chances of success and the agency’s expressed reasons for withholding requested records. Under Alaska’s court rules, the losing party in a lawsuit is generally required to pay a portion of the winning party’s attorneys’ fees and litigation costs, even if he or she was asserting reasonable (but unsuccessful) claims.18 This means that you may be liable for part of the agency’s attorneys’ fees and costs if you file an unsuccessful lawsuit.
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1 Alaska Stat. § 40.25.110(a). See also Alaska Stat. § 40.25.120.
2 See Alaska Stat. § 40.25.220(2).
3 APRA requires the adoption of separate regulations to govern records requests made to public agencies in the legislative and judicial branches of the state government, and record requests made to the University of Alaska. Alaska Stat. § 40.25.123.
4 2 AAC 96.310.
5 2 AAC 96.305.
6 2 AAC 96.315.
7 2 AAC 96.310(a).
8 2 AAC 96.325.
9 2 AAC 96.315.
10 2 AAC 96.325.
11 Alaska Stat. § 40.25.110(a & b). Fees may also be charged for providing public records in electronic format. Alaska Stat. § 40.25.115.
12 Alaska Stat. § 40.25.110(c).
13 Alaska Stat. § 40.25.110(d).
14 Alaska Stat. § 40.25.110(c).
15 Alaska Stat. § 40.25.125.
16 Alaska Stat. § 40.25.123.
17 See Alaska Rules of Civil Procedure, Rule 3(c).
18 See Alaska Rules of Civil Procedure, Rules 79 & 82.