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137.

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 Previously this was subsection (a)(4)(D) of the FOIA, not (c), and it has now been repealed- see Pub.L. No. 98-620, 98 Stat. 3335 (1984).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 government.

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]