Section 2026.455  Requests for Review of Denials − Public Access Counselor

a)         A person whose request to inspect or copy a record is denied by the Commission may file a request for review with the Public Access Counselor established in the Office of the Attorney General not later than 60 days after the date of the final denial.  The request for review shall be in writing, be signed by the requester, and include a copy of the request for access to records and any response from the Commission.  (Section 9.5(a) of FOIA)

b)         A person whose request to inspect or copy a record is made for a commercial purpose may not file a request for review with the Public Access Counselor.  A person whose request to inspect or copy a record was treated by the Commission as a request for a commercial purpose may file a request for review with the Public Access Counselor for the limited purpose of reviewing whether the Commission properly determined that the request was made for a commercial purpose.  (Section 9.5(b) of FOIA)

c)         Within 7 business days after the Commission receives a request for review from the Public Access Counselor, the Commission shall provide copies of records requested and shall otherwise fully cooperate with the Public Access Counselor. (Section 9.5(c) of FOIA)

d)         Within 7 business days after it receives a copy of a request for review and request for production of records from the Public Access Counselor, the Commission may, but is not required to, answer the allegations of the request for review.  The answer may take the form of a letter, brief, or memorandum.  The Public Access Counselor shall forward a copy of the answer to the person submitting the request for review, with any alleged confidential information to which the request pertains redacted from the copy. (Section 9.5(d) of FOIA)

e)         The requester may, but is not required to, respond in writing to the answer within 7 business days and shall provide a copy of the response to the Commission. (Section 9.5(d) of FOIA)

f)         In addition to the request for review, and the answer and response to the request, if any, a requester or the Commission may furnish affidavits or records concerning any matter germane to the review. (Section 9.5(e) of FOIA)

g)         A binding opinion from the Attorney General shall be binding upon both the requester and the Commission, subject to administrative review under Section 2026.475. (Section 9.5(f) of FOIA)

h)         If the Attorney General decides to exercise his or her discretion to resolve a request for review by mediation or by a means other than issuance of a binding opinion, the decision not to issue a binding opinion shall not be reviewable. (Section 9.5(f) of FOIA)

i)          Upon receipt of a binding opinion concluding that a violation of FOIA has occurred, the Commission will either take necessary action immediately to comply with the directive of the opinion or shall initiate administrative review under Section 2026.475.  If the opinion concludes that no violation of FOIA has occurred, the requester may initiate administrative review under Section 2026.475. (Section 9.5(f) of FOIA)

j)          If the Commission discloses records in accordance with an opinion of the Attorney General, the Commission is immune from all liabilities by reason thereof and shall not be liable for penalties under FOIA. (Section 9.5(f) of FOIA)

k)         If the requester files suit under Section 2026.465 with respect to the same denial that is the subject of a pending request for review, the requester shall notify the Public Access Counselor. (Section 9.5(g) of FOIA)

l)          The Attorney General may also issue advisory opinions to the Commission regarding compliance with FOIA.  A review may be initiated upon receipt of a written request from the Chairman of the Commission or the Commission's Chief Legal Counsel, which shall contain sufficient accurate facts from which a determination can be made.  The Public Access Counselor may request additional information from the Commission in order to assist in the review.  If the Commission relies in good faith on an advisory opinion of the Attorney General in responding to a request, the Commission is not liable for penalties under FOIA, so long as the facts upon which the opinion is based have been fully and fairly disclosed to the Public Access Counselor.  (Section 9.5(h) of FOIA)