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11. Other penalties

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  • Alaska

    The regulations provide no fines or other penalties for denying or delaying access to public records. However, Alaska law allows recovery of costs and a portion of attorney fees incurred (generally 20-30%) in successful suits to obtain public records, but also exposes access litigants to the risk of paying the other side’s fees and costs if the suit seeking access to records is unsuccessful.  See, Open Records Guide, §IV.D.9. In extreme cases, there are criminal penalties for "tampering with public records." The Alaska criminal code provides that "a person commits the crime of tampering with public records who knowingly suppresses, conceals, removes or otherwise impairs the . . . availability of a public record, knowing that the person lacks the authority to do so." AS 11.56.820; see also AS 11.56.815. Further, it is a misdemeanor to dismiss, demote, suspend, lay off, or otherwise make subject to any disciplinary action any employee receiving compensation for services provided to the state, for communicating matters of public record or information under the Public Records Act.  AS 39.90.010.

    Also, in 1989, the Alaska Legislature adopted the Alaska Whistleblower Act, AS 39.90.100 - 39.90.150, which provides protection for public employees who expose wrongdoing or speak out on matters of public concern. One court that has addressed this issue held that a report by a public employee to news media is not protected, as such, by the Whistleblower Act. Shecter v. City of Fairbanks, and Cummings v. City of Fairbanks, Consolidated Case No. 4FA -91-0029 (Super. Ct. 4th Jud. Dist. at Fairbanks), and the Whistleblower Act does not authorize disclosure of information that is legally required to be kept confidential.  AS 39.90.100(c)(3). The statute authorizes a person whose rights have been violated to bring a civil suit for damages (including punitive damages) and other relief and also provides for civil fines of up to $10,000 against violators. The law covers those who work for the state, quasi-public corporations or authorities established under state law, the University of Alaska and municipalities, school districts, regional educational attendance areas, and other political subdivisions of the state. Municipalities that provide substantially similar protections for their employees by ordinance can be exempted. In addition, the Alaska Supreme Court has ruled that an allegation of a violation of the Open Meetings Act is sufficient grounds to support a recall petition directed at removing elected public officials from office. While the issue has not apparently arisen, there is no obvious reason why allegations of violations of the Public Records Act would not have similar effect.

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  • Arizona

    If wrongfully denied access to public records, the person also “has a cause of action against the officer or public body for any damages resulting from the denial.” A.R.S. § 39-121.02(C) (emphasis added).

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  • Arkansas

    Negligent violation of the FOIA is a criminal offense, a misdemeanor. Ark. Code Ann. § 25-19-104. Upon conviction, the defendant can be punished by a fine of no more than $500, a jail term of up to 30 days, or both. Ark. Code Ann. §§ 5-4-401(b)(3), § 5-4-201(b)(3); Ark. Code Ann. § 25-19-104. Criminal prosecutions for FOIA violations are relatively infrequent but do occur. For example, the mayor of Hartford was convicted in Greenwood Municipal Court for participating in discussions about matters other than personnel issues during an executive session of the city council. The municipal court ordered the mayor to read the FOIA and to attend a seminar on the act. See “Judge rules mayor ran afoul of FOI,” Southwest Times Record (July 20, 2000). Until 2005, the FOIA expressly allowed sentences of “appropriate public service or education, or both,” alternatively to fine or jail term, but that language was deleted with implementation of a legislative overhaul of criminal code provisions in 2005.

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  • California

    The CPRA itself does not provide for the imposition of any penalties.

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  • Colorado

    The penalties of Colo. Rev. Stat. § 24-72-206 are the exclusive remedies available under the Open Records Act. Board of County Comm'rs v. HAD Enterprises Inc., 35 Colo. App. 162, 533 P.2d 45 (1974); Pope v. Town of Georgetown, 648 P.2d 672 (Colo. App. 1982).

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  • Connecticut

    A public agency may bring suit in Superior Court against anyone to whom the FOIC denied the right to appeal pursuant to §1-206(b)(2) and (3), seeking to enjoin the person from again bringing an appeal to the FOIC that would perpetrate an injustice or abuse the administrative process. If after an injunction is granted, the FOIC determines that such an appeal has been filed, the FOIC finding serves as a conclusive finding of violation of the injunction, entitling the agency to seek relief in Superior Court. Conn. Gen. Stat. §1-21l.

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  • Delaware

    Not available.

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  • Georgia

    Persons or entities that destroy records for the purpose of preventing their disclosure under the Act may be subject to prosecution for criminal destruction and concealment of public records.  O.C.G.A. § 50-18-74(a) (referencing § 45-11-1).

    In addition, elected officials may be subject to recall for violation of the Open Records Act. See Steele v. Honea, 261 Ga. 644, 409 S.E.2d 652 (1991) (determining that violation of Open Meetings Act is proper ground for recall).

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  • Hawaii

    Criminal penalties. An officer or employee who intentionally discloses a government record or any confidential information in violation of specific confidentiality statutes is guilty of a misdemeanor, unless a greater penalty is provided by law. Haw. Rev. Stat. § 92F-17(a); see Honolulu Corp. Counsel Memo. of Law No. 95-7 (June 19, 1995) (warning Department of Data Systems of its potential liability if volunteers reveal confidential information obtained in performance of their tasks). Any person who intentionally gains access to or obtains a copy of a government record by false pretense, bribery, or theft, with actual knowledge that access is prohibited is guilty of a misdemeanor. Haw. Rev. Stat. § 92F-17(b). Failure to disclose records may result in imposition of an award of attorneys' fees. Id. § 92F-15(d); Burnham Broad., Civ. No. 92-0161 (Haw. 3d Cir. 1992).

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  • Idaho

    None specified.

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  • Illinois

    There are no other penalties prescribed by the Act, except that a court may enforce its orders through its general contempt powers. See 5 ILCS 140/11(g).

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  • Indiana

    A public employer, public official, or an employee or officer of a contractor or subcontractor of a public agency who knowingly discloses information classified as confidential by state statute commits a Class A infraction. Ind. Code § 5-14-3-10(a). In addition, a public employee may be disciplined in accordance with personnel policies. Ind. Code § 5-14-3-10(b).

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  • Kansas

    On an action by a prosecuting authority, a penalty up to $500 may be assessed. K.S.A. 45-223.

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  • Kentucky

    Public agency officials who willfully conceal or destroy public records with the intent to violate the Open Records Act may be prosecuted for a Class A misdemeanor for each separate violation, and officials who fail to provide records in violation of a court order may be held in contempt of court. See Ky. Rev. Stat. 61.991(2).

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  • Louisiana

    "If the court finds that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32 . . . it may award the requester any actual damages proven by him to have resulted from the actions of the custodian . . . . In addition, if the court finds that the custodian unreasonably or arbitrarily failed to respond to the request as required . . . it may award civil penalties not to exceed $100 per day, exclusive of Saturdays, Sundays, and legal public holidays, for each such day of failure to give notification. The custodian shall be personally liable for the payment of any such damages, and shall be liable in solido with the public body for the payment of the requester's attorneys' fees and other costs of litigation, except where the custodian has withheld or denied production of the requested record or records on advice of the legal counsel representing the public body in which the office of such custodian is located. . . ." La. Rev. Stat. Ann. § 44:35(E); Twardzikv. Orleans Parish Sch. Brd., 876 So. 2d 855 (La. App. 4th Cir. 2004) (no evidence custodian acted arbitrarily or capriciously in handling request for records); Ott v. Clarkson, 863 So. 2d 663 (La. App. 4th Cir. 2003) (the fact that appellant was able to obtain relevant documents from a different source that were not found in custodian's records does not necessarily indicate that the custodian acted surreptitiously or unreasonably); Johnson v. City of Pineville, 9 So.3d 313 (La.App. 3d Cir. 2009) (awarding civil penalty of $50 per day for arbitrary and capricious failure to produce arrest records); Deshotels v. White, 226 So.3d 1211 (La.App. 1st Cir. 2017) (awarding civil penalty of $100 per day); Innocence Project v. New Orleans Police Dep’t, 129 So.3d 668 (La.App. 4th Cir. 2013) (awarding civil penalty of $5000); Capital City Press, LLC v. LSU Board of Supervisors, 168 So.3d 669 (La.App. 1st Cir. 2014) (reversing district court finding of contempt and $500 per day fine). Turning the intent of this provision on its head, one Court of Appeal has held repeatedly that these penalties are not applicable if there is no question that the records requested are public records. Washington v. Reed, 668 So. 2d 1313 (La. App. 1st Cir. 1996); Elliot v. District Atty of Baton Rouge, 664 So. 2d 122 (La. App. 1st Cir. 1995), writ denied 664 So. 2d 440 (La. 1995); Foster v. Kemp, 657 So. 2d 681 (La. App. 1995) (all reasoning that the notification requirement referred to in LSA-R.S. 44:35(E)(1) only applies when a question is raised by the custodian as to whether the requested documents are public records).

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  • Maryland

    The PIA also provides for disciplinary action. § 4-362(e). The court must send a certified copy of its finding to the appointing authority of the custodian, upon a finding that the custodian acted arbitrarily or capriciously in withholding the public record. Id. Upon receipt of such a statement and after appropriate investigation, the appointing authority is required to take disciplinary action warranted under the circumstances. Id.

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  • Michigan

    Not specified.

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  • Montana

    There are no other penalties associated with a refusal to provide access to documents.

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  • Nebraska

    "Any official who shall violate the provisions of [the public records statutes] shall be subject to removal or impeachment and in addition shall be deemed guilty of a Class III misdemeanor." Neb. Rev. Stat. §84-712.09.

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  • Nevada

    Other penalties, such as civil suit damages, are unlikely since the NPRA provides immunity for a public officer or employee who acts in good faith in refusing to disclose public records. NRS 239.012.

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  • New Hampshire

    Actions for Damages. The Statute contains no provision for collecting damages on the basis of a violation of the Statute.

    RSA 91-A:9 states that a person is guilty of a misdemeanor who knowingly destroys any information with the purpose to prevent such information from being inspected or disclosed in response to a request under this chapter. If a request for inspection is denied on the grounds that the information is exempt under this chapter, the requested material shall be preserved for 90 days or while any lawsuit pursuant to RSA 91-A:7-8 is pending.

    If the court finds a “bad Faith” violation of the Statute under RSA 91-A:8,IV, it has the authority to require the official to reimburse the public body or agency for any attorney’s fees and/or costs it is ordered to pay.

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  • New Jersey

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

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  • New Mexico

    Damages are theoretically available.  NMSA 1978 § 14-2-12(D).  Damages include compensatory and actual damages but not punitive or statutory damages.  Faber v. King, 2015-NMSC-015, 348 P.3d 173.

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  • North Dakota

    The attorney general may refer to the appropriate state’s attorney any public servant as defined in N.D.C.C. § 12.1-01-04 who has been found in more than one opinion issued to have violated N.D.C.C. §§ 44-04-18, 44-04-19, 44-04-19.2, 44-04-20, or 44-04-21. N.D.C.C. § 44-04-21.3. A public servant who knowingly violates N.D.C.C. §§ 44-04-18, 44-04 19, 44-04-19.2, 44-04-20, or 44-04-21 is guilty of an offense under N.D.C.C. § 12.1-11-06.

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  • Ohio

    The public records statute does not authorize courts to impose penalties.

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  • Oklahoma

    A public official convicted of violating the Act may be sentenced to up to one year in county jail. 51 O.S. § 24A.17.A.

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  • Rhode Island

    If it finds that a public body wrongfully denied access to public records, the court shall order the public body to provide the requested records at no cost to the prevailing party.  R.I. Gen. Laws § 38-2-9.

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  • Tennessee

    There is no provision for other penalties in the Act; however, if a records custodian fails to obey a court order to release records, the government agency and the custodian himself might be fined for contempt of court. Moody v. Hutchison, 159 S.W.3d 15 (Tenn. Ct. App. 2005). (imposing criminal contempt penalties).

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  • Texas

    Not specified.

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  • Utah

    A government entity or political subdivision may take disciplinary action, including suspension or discharge, against any employee who intentionally violates GRAMA’s provisions. See Utah Code § 63G-2-804.

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  • Vermont

    If the court orders production of the records, finds that they were improperly withheld, orders payment of legal fees and costs, and “additionally” finds that the denial “raise[s] questions” of arbitrary or capricious action by the agency, then the “Department of Human Resources if applicable to that employee” must promptly hold proceedings to see if any disciplinary action is warranted. 1 V.S.A. § 320(a). If the court’s disclosure order is not obeyed the court may punish for contempt the “responsible employee or official, and in the case of a uniformed service, the responsible member.” § 320(b).

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  • Virginia

    Pleadings in cases to enforce the Act are subject to the same good faith requirements as all pleadings.  Thus, in light of a requester's repeated filings in the courts over the same matters that repeatedly had been rejected (over five times), the court granted sanctions in the amount of $1500, and costs and fees, but refused to prohibit future filings because the next petition might not be frivolous. Davis v. Allen, 44 Va. Cir. 237, 242-43 (Richmond Cir. Ct. 1997).

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  • Washington

    See section on Fines.

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  • West Virginia

    Imprisonment in the county jail for not more than twenty days is an alternative sanction that, in lieu of, or in addition to, a fine, may be imposed in the court’s discretion. W. Va. Code § 29B-1-6. Once a circuit court has ordered production of documents or disclosure of information, noncompliance with the order of the court may be punished as contempt of court. W. Va. Code § 29B-1-5(2).

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  • Wyoming

    None are stated in the Public Records Act.

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