Remedies Available for Agency Non-Compliance With FOIA
The FOIA provides a comprehensive list of remedies against agencies and individuals for erroneously withholding requested information. The remedies that are available under the FOIA include:
- an order for injunction[i];
- writ of mandamus or a civil action in the nature of mandamus;
- an order for damages (recognized only in some states); and
- an order for production of agency records[ii].
Any person denied a copy or examination of a public record can enforce his/her rights and privileges by a petition for mandamus or injunction. A petition for injunction must be filed with a circuit court having jurisdiction in the county in which such rights and privileges are denied. The petition must be supported by an affidavit showing good cause. Such a petition will be heard within seven days from petition date[iii].
However an injunction will not be granted in cases where it appears that the acts complained of have already been committed and that there is no proof to show that such conduct will continue in future. This is because injunctive relief is an extraordinary remedy and injunctive relief is available only to prevent a threatened harm and not to redress harm that has already occurred[iv].
Failure by a public body to provide public information is clearly duty violation and in such cases, statutory mandamus is the appropriate remedy. A writ of mandamus is governed by equitable principles. Normally a writ of mandamus will not be awarded if the exercise ofsuch discretion would contravene the overall scheme of a state open records act.
In order to get a writ of mandamus, a plaintiff must satisfy the following:
- that there is no statutory exception or common-law limitation[v];
- that there is no specifically stated contrary reason submitted by a guardian of the public record;
- that there is a legal duty on the part of the public body to perform a non-discretionary act[vi];
- that there is a demand for performance of such act[vii]; and
- that there is a refusal to perform an act demanded[viii].
In cases where there is fear of future violations injunction will be the proper remedy. Mandamus will not be an adequate remedy in such cases because a writ will not prevent future harm[ix].
Generally, provision as to penalty is available under the FOIA for withholding information. Such penalty will not be imposed if in a trial court’s opinion the document is one that should not be disclosed.
Provision as to money damages are not provided under the FOIA. Therefore, courts generally do not grant a cause of action for money damages[x].
Similarly comprehensive and punitive damages are also not recognized under the FOIA of some states. As an exception to this general rule, some states have recognized the right for compensatory damages under FOIA. However punitive damage is awarded under some public-records laws if there is arbitrary delay and unlawful refusal to issue or disclose copies of public record by a public authority. Willful or unlawful refusal to applicants’ requests by a government official or agency is also subjected to punitive damages.
Generally, under states public-records laws, a minimum of $100 and other actual costs are awarded as damages for non fulfillment of an applicant’s request[xi]. Thus, a person seeking a right to inspect or to receive a copy of a public record will be awarded with reasonable attorney’s fees and other costs of litigation[xii].
Before granting a relief under FOIA, a court will look into the effect of such disclosure or non disclosure upon the public[xiii]. Once a decision has been taken by a court, it can be reversed only on the ground of abuse of the court process or that the decision was based on an erroneous legal principle.
Remedies that are not available under the FOIA are:
- imposition of discovery-type sanctions;
- an order requiring that an agency to abide by regulations in future; and
- an order to create records that do not exist;
[i] Grande Ronde Lumber Co. v. Buchanan, 41 Wn.2d 206 (Wash. 1952).
[ii] 5 USCS § 552.
[iii] Avara v. Baltimore News American Div., 292 Md. 543 (Md. 1982).
[iv] Jacksonville v. Wilson, 157 Fla. 838 (Fla. 1946).
[v] Beasley v. Beasley, 553 S.W.2d 541 (Mo. Ct. App. 1977).
[vi] O’Connor v. First Court of Appeals, 837 S.W.2d 94 (Tex. 1992).
[vii] Cleveland v. County of Jack, 802 S.W.2d 906 (Tex. App. Fort Worth 1991).
[viii] Hawthorne v. La-Man Constructors, Inc., 672 S.W.2d 255 (Tex. App. Beaumont 1984).
[ix] Town of Manalapan v. Rechler, 674 So. 2d 789 (Fla. Dist. Ct. App. 4th Dist. 1996).
[x] Wells v. Dep’t of Soc. Servs., 2009 U.S. Dist. LEXIS 91517 (M.D. La. July 29, 2009).
[xi] State ex rel. Weissenberger v. Kellberg, 222 Wis. 2d 221 (Wis. Ct. App. 1998).
[xii] Thibodeaux v. Field, 15 So. 3d 384 (La.App. 1 Cir. 2009).
[xiii] S. Yuba River Citizens League v. Nat’l Marine Fisheries Serv., 2008 U.S. Dist. LEXIS 107177 (E.D. Cal. June 20, 2008).