Sanctions for Violating FOIA
Judicial Proceedings Against an Agency: The Act provides for
federal district court jurisdiction in proceedings brought against an agency
to enjoin its withholding of records. See 5 U.S.C. Sec. 552(a)(4)(B).
Previously this was subsection (a)(4)(D) of the FOIA, not (c), and it has
now been repealed- see Pub.L. No. 98-620, 98 Stat. 3335 (1984).|
In addition, amendments to the Act require the government to answer or
otherwise plead within 30 days after service, unless an extension is
obtained; this halves the 60-day period normally permitted in a federal
case. See 5 U.S.C. Sec. 552(a)(4)(C).
In a case brought under FOIA the court determines the matter de novo and
may examine the specific agency records in camera to determine whether
they should be withheld under any exemption. See 5 U.S.C. Sec.
552(a)(4)(B). The burden is on the government to sustain its action. Id.
The court may award reasonable attorney fees and other litigation costs
against the government when the complainant substantially prevails. See 5
U.S.C. Sec. 552(a)(4)(E).
Action Against Individual Employees: Sanctions may be taken against
individual agency employees who are found to have acted arbitrarily or
capriciously in improperly withholding records. Additionally, the court
must award attorney fees and other litigation costs against the
When the statutory requirements are found by the Court to have been met,
the Merit Systems Protection Board (MSPB) must promptly initiate a
proceeding to determine whether disciplinary action is warranted against the
office or employee who is primarily responsible for the withholding. The
MSPB, after investigating and considering the evidence, submits its findings
and recommendations to the agency concerned which then is required to take
the corrective action recommended by the Board. See 5 U.S.C. Sec.
552(a)(4)(F). Additionally, there now exists independent jurisdiction for
such MSPB investigations under 5 U.S.C. Sec. 1206(e)(1) (1982).
Failure to comply with a court order to produce the records in question
may also result in punishment for contempt for the responsible employee. See
5 U.S.C. Sec. 552(a)(4)(G).
[cited in USAM 3-17.150]