11. Fines

A number of Alabama statutes provide for fines for the unauthorized or prohibited disclosure of records that are made confidential by law. Some of these statutes purport to extract a fine from any person, arguably including reporters, who discloses the confidential record in question. See, e.g., Ala. Code § 12-15-100 ("Whoever, except for the purposes permitted and in the manner provided by this section, discloses or makes use of or knowingly permits the use of information concerning a child before the [juvenile] court directly or indirectly derived from the records of the court or acquired in the course of official duties, upon conviction thereof, shall be guilty of a misdemeanor."). If the reporter has not obtained the records "wrongfully," the reporter's disclosure of the records should be protected from penalty by federal constitutional law. See Fla. Star v. B.J.F., 491 U.S. 524 (1989) (ruling that the media was not liable for disclosure of rape victim's name in violation of state law). To obtain the protection of Florida Star, the reporter must not knowingly solicit confidential records.

There is no provision for fines against a requester under the CPRA. Attorney’s fees and court costs can only be assessed against a requester in litigation if the requester’s case is “clearly frivolous.” Cal. Gov’t Code § 7923.115(b).

For certain D.C. FOIA violations, additional penalties may be imposed:

Any person who commits an arbitrary or capricious violation of the provisions of [the D.C. Act] shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $100.00. A prosecution under this section may only be commenced by the issuance of a citation, which shall be personally served upon the defendant. The defendant shall not be arrested prior to the time of trial, except that a defendant who fails to appear for arraignment or trial may be arrested pursuant to a bench warrant and required to post a bond to secure his or her future appearance.

D.C. Code Ann. § 2-537(d).

The primary remedy available when a successful action is brought pursuant to Chapter 119 is a writ of mandamus requiring the agency to open its records for inspection. Fla. Stat. § 119.11(1) (1995); see also Town of Manalapan v. Rechler, 674 So. 2d 789, 790 (Fla. 4th DCA 1996).

In civil actions brought to enforce the Act, the court may impose on negligent violators a civil penalty not to exceed $1,000 for the first violation. In addition, for each additional violation that the violator commits within a 12-month period from the date the first fine was imposed, a court may impose an additional civil penalty or criminal fine not to exceed $2,500 per violation. O.C.G.A. § 50-18-74(a).

Construing the civil penalty provision of the Georgia open meetings act, the court held that private persons may sue to enforce the provision and to receive the civil penalty paid. Williams v. DeKalb Cty., 308 Ga. 265, 840 S.E.2d 423 (2020).

If the court finds that a party violated Iowa Code Chapter 22, it shall assess those persons who participated a fine of at least $100, but not more than $500. Iowa Code § 22.10(3)(b). If the person(s) knowingly violated the Chapter or knowingly participated in the violation, the fine shall be at least $1000, and not more than $2500. Id. A violating person shall not be assessed damages if the person proves that they did any of the following:
“(1) Voted against the action violating this chapter, refused to participate in the action violating this chapter, or engaged in reasonable efforts under the circumstances to resist or prevent the action in violation of this chapter.

(2) Had good reason to believe and in good faith believed facts which, if true, would have indicated compliance with the requirements of this chapter.

(3) Reasonably relied upon a decision of a court, a formal opinion of the Iowa public information board, the attorney general, or the attorney for the government body, given in writing, or as memorialized in the minutes of the meeting at which a formal oral opinion was given, or an advisory opinion of the Iowa public information board, the attorney general or the attorney for the government body, given in writing.” Id.

The district court has no authority to assess fines in an action brought by a private individual.  See K.S.A. 45-222.  In an action brought by the attorney general in district court, the court may assess civil penalties of up to $500.  K.S.A. 45-223.  The attorney general also has authority to assess civil penalties in connection with consent orders under K.S.A. 45-251.

Courts have discretion to "award the person an amount not to exceed twenty-five ($25) dollars for each day that he was denied the right to inspect or copy said public record." Ky. Rev. Stat. 61.882(5).

Any noncompliance with the order of the court may be punished as contempt of court. La. Rev. Stat. Ann. § 44:35(B).

For every willful violation of the Act, the state government agency or local government entity whose officer or employee committed the violation shall be liable for a civil violation and subject to a fine. 1 M.R.S.A. § 410.  Fines are tiered for repeated violations within a 4-year period: $500 for a first violation, a fine up to $1000 for a second violation, and a fine up to $2,000 for each additional violation. 1 M.R.S.A. § 410(2). The fine may only be collected by the state, not private persons. See Cook v. Lisbon School Cmte, 682 A.2d 672, 680 (Me. 1996) (“only the Attorney General or his representative may enforce the Freedom of Access Act by seeking imposition of a fine pursuant to section 410”).

Not available. The legislature has periodically declined to amend the statute to provide for fines.

Under the 2015 amendment to the Act, “[i]f the court determines . . . that a public body willfully and intentionally failed to comply with this act or otherwise acted in bad faith, the court shall order the public body to pay, in addition to any other award or sanction, a civil fine of not less than $2,500.00 or more than $7,500.00 for each occurrence.” Id. § 15.240b.

In addition, if the circuit court finds that the public body has "arbitrarily and capriciously" violated the FOIA by refusing to disclose or delaying in disclosing or providing copies of a public record, the court will award, in addition to any actual or compensatory damages, punitive damages in the amount of $1,000.00 to the person seeking the right to inspect or receive a copy of a public record." Mich. Comp. Laws Ann. § 15.240(7). Previously, the amount of punitive damages was $500.00, but the 2015 amendment doubled the amount. These damages are not to be assessed against an individual but against "the next succeeding public body that is not an individual and that kept or maintained the public record as part of its public function." Id.

Before a court can assess punitive damages against a public body for failing to grant a FOIA request, the court must: (1) order the public body to disclose all or a portion of the requested public record; and (2) determine that the public body’s refusal or delay in disclosing the record was arbitrary and capricious.  Ostaszewski v. City of Lansing, No. 343537, 2018 WL 6004488, at *2 (Mich. Ct. App. Nov. 15, 2018) (citing Mich. Comp. Laws §§ 15.235(4) and 15.240(7); Local Area Watch v. City of Grand Rapids, 262 Mich. App. 136, 153, 683 N.W.2d 745, 754 (2004) (same).

A plaintiff is not, of course, entitled to punitive damages or attorney’s fees and costs where he or she was not found to be entitled to the requested information. Bredemeier v. Kentwood Bd. of Educ., 95 Mich. App. 767, 291 N.W.2d 199 (1980) (defendant's failure to provide plaintiff with written notice of denial constituted a violation of FOIA, but plaintiff could not collect fees, costs, or damages where requested information was not in recorded form). Moreover, a party must raise an argument for compensatory damages or the claim is abandoned. See Prins v. Mich. State Police, 299 Mich. App. 634 (2013).

One example of a case where punitive damages were granted is Walloon Lake Water System v. Melrose Township, 415 N.W.2d 292, 296 (1987) where the actions of township officials in refusing FOIA requests without explanation and in rendering judicial order of disclosure impossible by disposing of the only copy of a document was considered an arbitrary and capricious violation of the FOIA as a matter of law. See also Kincaid v. Dep't of Corr., 180 Mich. App. 176, 446 N.W.2d 604, 607 (1989) (affirming award of $500 in punitive damages against defendant which arbitrarily and capriciously denied request on basis that requests were not sufficiently specific despite fact that defendant's own records established the opposite to be true).

N.J.S.A. 47:1A-11 provides:

1. A public official, officer, employee or custodian who knowingly and willfully violates P.L.1963, c. 73 (C.47:1A-1 et seq.), as amended and supplemented, and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation that occurs within 10 years of an initial violation, and $5,000 for a third violation that occurs within 10 years of an initial violation. This penalty shall be collected and enforced in proceedings in accordance with the “Penalty Enforcement Law of 1999,” P.L.1999, c. 274(C.2A:58-10 et seq.), and the rules of court governing actions for the collection of civil penalties. The Superior Court shall have jurisdiction of proceedings for the collection and enforcement of the penalty imposed by this section.

Appropriate disciplinary proceedings may be initiated against a public official, officer, employee or custodian against whom a penalty has been imposed.

Sanctions for noncompliance are damages, court costs, and reasonable attorneys' fees which "shall" be awarded.  NMSA 1978 § 14-2-12(D) (1993).  Damages include compensatory and actual damages but not punitive or statutory damages.  Faber v. King, 2015-NMSC-015, 348 P.3d 173.

Violations of the ORA can result in fines of up to $500. 51 O.S. § 24A.17(A).

The Law does not preclude fines: “Nothing in this act shall prohibit a court from imposing penalties and costs in accordance with applicable rules of court.” 65 Pa. C.S.A. § 67.1304(c). Bad faith may constitute grounds for an award of attorneys’ fees under 65 Pa. Stat. Ann. § 67.1304(a) or for the imposition of civil penalties under 65 Pa. Stat. Ann. § 67.1305. Uniontown Newspapers, Inc. v. Pa. Dep’t of Corr., 151 A.3d 1196 (Pa. Commw. Ct. 2016). However, evidence of bad faith is required. Barkeyville Borough v. Stearns, 35 A.3d 91 (Pa. Commw. Ct. 2016).

The Act does not contemplate the award of damages for an officer's non-compliance with the Act. Moore , 897 S.W.2d  at 501 (Tex. App.—Houston [1st Dist.] 1995, no writ). However, Sections 552.351-.353 set forth fines and other penalties that can be assessed under the Act. An officer for public information who, with criminal negligence, "fails or refuses to give access to, or to permit or provide copying of, public information" may be found guilty of a misdemeanor and face up to six months in jail and a $1,000 fine, or both. Tex. Gov't Code § 552.353(a), (e). Anyone who distributes information deemed confidential under the Act faces a similar criminal sentence and fine. Tex. Gov't Code § 552.352. Section 552.351 provides that any person who "willfully destroys, mutilates, removes without permission as provided [in the Act], or alters public information" may be found guilty of a misdemeanor and face up to three months in jail and a $4,000 fine, or both.

“A person who willfully destroys, gives away, sells, discards, or damages a public record without having authority to do so shall be fined at least $50.00 but not more than $1,000.00 for each offense.”  1 V.S.A. § 320.

No criminal fines are contemplated by the Act.

A requester who prevails against an agency that has denied a record may also receive a civil penalty in an amount not to exceed $100 per day for each day that the requester was denied the right to inspect or copy the public record. RCW 42.56.550(4). The factors courts apply in determining the amount of such awards are set out in Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 229 P.3d 735 (2010).

An authority or legal custodian who arbitrarily and capriciously denies or delays the response or charges excessive fees may be required to forfeit not more than $1,000, in an action brought by the attorney general or a district attorney. Wis. Stat. § 19.37(4).