Civil penalties are there for a reason

Did you know that in Florida, a government employee’s failure to comply with the state’s public records act can result in not only a $1,000 fine, but also one year in jail? Or both! It’s no mere theoretical penalty, it’s been imposed.

Fines imposed on Washington state and local officials have ballooned from $108,000 in 2006 to nearly $1.7 million in 2011, according to an examination of Public Records Act cases by a Seattle television station.

A judge in Washington last month imposed a record $649,896 fine against the Department of Social and Health Services for withholding records from an 18-year-old woman who sought information to the abuse she suffered as a child at the hands of her father.

Officials obviously keep violating the law, but I’m willing to bet that nearly $650,000 in fines will get an agency’s attention that they better toe the line. I’m also willing to bet that there are some taxpayers out there who are pretty angry that their tax dollars are being spent to litigate cases and then paying fines when records should have been disclosed in the first place.

Virginia law allows a judge to impose a civil penalty of between $500 and $2,000 for a first violation and between $2,000 and $5,000 for subsequent offenses. That’s a far cry from possible prison sentences and six-figure fines.

The fines are modest by comparison, but serious nonetheless. And the General Assembly thought the existence of penalties for FOIA violations was important enough to double them to this current rate in 2011, up from $250 to $1,000 and $1,000 to $2,500 in prior law.

And in 14 years of working closely on FOIA issues in Virginia, would you like to know how many times I’ve heard of judges imposing a financial penalty of any sort, even when they’ve found violations and awarded equitable relief and/or attorneys’ fees? Guess.

Twice.

One of those two I heard of only years after the fact and I do not know if the penalty was  paid (the penalties are not a windfall to the winning plaintiff; instead, they are to be paid into the State Literary Fund) or appealed.

The other one was in a 2009 case where a district court found the Madison County sheriff had violated FOIA by refusing to release the names of people serving on a citizens advisory board and imposed a $250 penalty.

But even that one documented-at-the-time penalty did not stand. At the circuit court level, the judge said there was no evidence that the sheriff’s violation was “willful and knowing,” the standard under FOIA. According to a report in the Culpeper Star-Exponent at the time, there was no evidence “that someone told the sheriff he must do ‘x’ and he did ‘y,’” and that without such evidence “it is hard to assess a penalty” against him.

It’s been a while since I was in law school, but I don’t remember a failure to follow someone else’s advice as the sole component of a finding of “willful and knowing” behavior. The sheriff, an elected official, is required by statute to receive, read and become familiar with FOIA’s terms.

The sheriff denied a citizen’s request for the names because he felt the citizen wanted to use the information for political purposes.  Virginia’s FOIA does not have any kind of purpose test -- never has -- which means that it doesn’t matter why people want records. If there is no exemption, then public records must be released, regardless of what the requesters want to do with them.

So, in that case, to claim that he did not act willfully and knowingly in withholding the records because he did not ignore someone else’s advice to release them seemed to absolve many an official of the responsibility to have a passing knowledge of the state’s one and only public records law.

The point here is not to rehash the Madison County case, though, it is to lament the fact that judges who have otherwise correctly identified FOIA violations throughout the years are routinely reluctant to impose the penalties provided for in the law. Apparently every violation is an innocent mistake.

Of course there are and have been mistakes. I’m not naive enough -- or suspicious enough -- to believe that every questionable refusal to turn over records is motivated by an intent to hide or cover up something.

But, I’m also not naive enough -- or trusting enough -- to believe that only two violations in at least 14 years were made willfully or knowingly.

Without any real teeth to the enforcement of FOIA, there is no incentive for the recalcitrant employee to give the records over. Sue me. It won’t cost me anything.

Virginia judges should take the civil penalties section of FOIA more seriously. And public officials who have found themselves on the losing end of FOIA cases should thank their lucky stars they don’t live in Florida or Washington.