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Title 2 . Administration
Chapter 96 . Public Information
Section 335. Denial of request

2 AAC 96.335. Denial of request

(a) A request for a public record that complies with this chapter may be denied only if

(1) the record is not known to exist after the public agency makes a diligent search for it;

(2) the record is not in the public agency's possession, and after a diligent search the public agency does not know where the record is to be found;

(3) the record has been destroyed in accordance with an applicable record-retention schedule;

(4) nondisclosure of the record is authorized by a federal law or regulation, or by state law; or

(5) the record is believed to be in the agency's possession but has not yet been located, in which case the public agency shall proceed under (f) of this section.

(b) A request may be denied by the public agency head or by an agency employee to whom denial authority has been delegated by the public agency head.

(c) An initial denial of a written request must be in writing; must state the reasons for the denial, including any specific legal grounds for the denial; and must be dated and signed by the person issuing the denial. If a request is denied by a public agency employee to whom denial authority has been delegated, the notice of denial must reflect this delegation. A copy of 2 AAC 96.335 - 2 AAC 96.350 must be enclosed with the denial.

(d) A denial of a written request, in whole or in part, must state that

(1) the requestor may administratively appeal the denial by complying with the procedures in 2 AAC 96.340;

(2) the requestor may obtain immediate judicial review of the denial by seeking an injunction from the superior court under AS 40.25.125 ;

(3) an election not to pursue injunctive remedies in superior court shall have no adverse effects on the rights of the requestor before the public agency; and

(4) an administrative appeal from a denial of a request for public records requires no appeal bond.

(e) A denial of a written request is considered to be issued at the time the denial is either delivered to the United States Postal Service for mailing, or hand-delivered to the requestor by an employee or agent of the public agency.

(f) If a written request is denied because a record has not yet been located and the record is believed to exist in the agency's possession, the office in the public agency responsible for maintaining the record is believed to exist in the agency's possession, the office in the public agency responsible for maintaining the record shall continue to search until the record is located or until it appears that the record does not exist or is not in the public agency's possession. The public agency shall periodically inform the requestor of its progress in searching for the requested record.

(g) A record that is the subject of a public records request that has been denied shall not be destroyed or transferred from the public agency's custody, except that records may be transferred to state archives and records management services as provided by AS 40.21 and regulations adopted under AS 40.21. A public agency may not destroy or transfer custody of a record to which access has been denied or restricted until at least 60 working days after the requestor is notified in writing that the request has been denied, or if there is an administrative or judicial appeal or other legal action pending at the end of the 60-working-day period, until the requestor has exhausted those actions.

History: Eff. 11/6/94, Register 132

Authority: AS 40.25.110

AS 40.25.120

AS 40.25.123

AS 40.25.125

Editor's note: As of Register 176 (January 2006), and acting under AS 44.62.125 (b)(6), the regulations attorney relocated former 6 AAC 96.335 to 2 AAC 96.335, and made conforming technical changes to 2 AAC 96.335(c) and (d)(1), to reflect Executive Order 113 (2005). Executive Order 113 eliminated the Telecommunications Information Council and transferred its functions to the governor and to the Department of Administration. The history note for 2 AAC 96.335 carries forward the history from former 6 AAC 96.335.

As of Register 158 (July 2001), the regulations attorney made technical revisions under AS 44.62.125 (b)(6), to reflect the 2000 renumbering of former AS 09.25.100 - 09.25.220 by the revisor of statutes. The provisions of former AS 09.25.100 - 09.25.220 were relocated to AS 40.25.100 - 40.25.220.

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Last modified 7/05/2006