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Federal judge allows rare sanction motion in FOI Act case

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  1. Freedom of Information

    News Media Update         WASHINGTON, D.C.         Freedom of Information    

Federal judge allows rare sanction motion in FOI Act case

  • A U.S. District Court judge invited Judicial Watch to seek sanctions against the Department of Commerce for its initial mishandling of FOI Act requests for information on the late Commerce Secretary Ron Brown.

Oct. 25, 2004 — The Department of Commerce could face rarely imposed sanctions for mishandling a 1998 Freedom of Information Act response to watchdog organization Judicial Watch for records concerning the late Ron Brown, who served as commerce secretary in the Clinton administration prior to his death in a plane crash.

A federal district judge in Washington, D.C., in the conclusion to a lengthy decision on the FOI Act case issued Sept. 30, invited Judicial Watch to seek costs and attorneys fees and to ask the court to make any findings needed to refer the case to the Office of Special Counsel for investigation under the FOI Act’s cumbersome and rarely invoked sanction procedures.

Judicial Watch had not decided by mid-October whether to seek the sanctions against the department.

After several years of litigation, Judge Royce Lamberth found that the Department of Commerce had correctly invoked exemptions to the FOI Act in records it still had not made available to Judicial Watch. He noted that in the course of the litigation — involving five separate lawsuits by Judicial Watch — the department had followed his orders to conduct a second more rigorous search for documents and had justified the withholding of each record or portions of records to the court’s satisfaction.

However, Lamberth offered Judicial Watch the chance to seek sanctions against the department for its initial abuses of its FOI process. Lambert reiterated findings he made in 1998 when the litigation began:

“The record in this case establishes beyond any reasonable dispute that [this] search was inadequate, unreasonable and unlawful under the FOIA. The DOC failed to search entire offices that were likely, if not certain, to hold responsive documents. Documents were destroyed, discarded, and given away, sometimes without being searched to determine if they were responsive, other times with full knowledge that they were responsive.”

Before there can be a special counsel investigation under the FOI Act, a court must order the production of agency records found to be improperly withheld, it must award attorney fees and litigation costs and it must issue a specific “written finding” of suspected arbitrary or capricious conduct.

(Judicial Watch v. Department of Commerce; Attorney: Paul Orfanedes, Washington, D.C.) RD

© 2004 The Reporters Committee for Freedom of the Press

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