FOIA Advisor

Q&A: Penalties for violating FOIA

Q&A (2015-16)Allan BlutsteinComment

Q.  What are the potential penalties for violations of FOIA, for example: (1) refusing to release FOIA eligible documents, (2) intentionally failing to record FOIA documents, (3) intentionally deleting massive numbers of FOIA documents, and
(4) excessively slow to release FOIA documents.  Have any federal employees been convicted of violating the FOIA? Who is the highest ranking federal employee to be convicted?

A.  The FOIA itself provides for the possibility of sanctions against an individual agency employee under limited circumstances.  Specifically, if a district court assesses attorney fees against the federal government and finds that the agency acted "arbitrarily or capriciously" in improperly withholding records, the U.S. Office of Special Counsel must "initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding."  5 U.S.C. § 552(a)(4)(F).  The agency must then implement whatever "corrective action" that the U.S. Office of Special Counsel recommends.  Id.     

Further, federal employees may be subject to criminal penalties for the willful and unlawful destruction, removal, or private use of federal records, See 18 U.S.C. § 2071.   

The U.S. Office of Special Counsel has not initiated any proceedings under 5 U.S.C. § 552(a)(4)(F) between 2008 and 2015, according to annual reports submitted by the U.S. Department of Justice to Congress.  I am not aware of any FOIA-related criminal convictions or prosecutions.