There is no provision for penalties against a requester under the CPRA. Attorneys’ fees and costs can only be assessed against a requester in litigation if the requester’s case is “clearly frivolous.” Cal. Gov’t Code §6259(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). No other sanctions are addressed.
Knowing and willful violators of the Act—those who (1) fail to refuse to provide access to records not subject to exemption, (2) fail or refuse to provide such access within the Act’s time limits or (3) frustrate or attempt to frustrate such access by intentionally making records difficult to obtain or review—may be criminally prosecuted and found guilty of a misdemeanor punishable by a fine not to exceed $1,000 for the first violation and $2,500 for each repeat violation within 12 months of the first fine’s imposition. O.C.G.A. § 50-18-74(a).
In addition, the Act provides that persons or entities that destroy records for the purpose of preventing their disclosure under the Act may be subject to criminal prosecution under O.C.G.A. § 45-11-1, a felony. § 50-18-74(b).
If the court determines that a public body willfully and intentionally failed to comply with the Act, or otherwise acted in bad faith, the court shall impose a civil penalty between $2,500-$5,000 for each occurrence. The court may impose an additional penalty of $1,000 per day the violation continues if: (1) the public body fails to comply with a court order for 30 days; (2) the court’s order is not on appeal or stayed; and (3) the court does not grant the public body additional time to comply with its order. 5 ILCS 140/11(j); Williams v. Bruscato, 2021 IL App (2d) 190971, ¶ 15 (penalties may only be assessed upon showing the public body intentionally failed to comply with FOIA “deliberately, by design, and with a dishonest purpose”).
If the violating person is a public official, Iowa Code § 22.10(3)(d) mandates that the Court “[s]hall issue an order removing a person from office if that person has engaged in a prior violation of this chapter for which damages were assessed against the person during the person’s term.” Iowa Code § 22.10(3)(d).
In an action brought by a private person under K.S.A. 45-222, “[t]he district court may require a defendant to complete training approved by the attorney general concerning the requirements of the open records act.” K.S.A. 45-222(a). In a private enforcement action, attorney fees may be awarded to a party if the court finds that the other party’s conduct was in bad faith and without a reasonable basis in fact or law. K.S.A. 45-222(c).
The Law provides for a civil penalty in two situations:
A civil penalty of “not more than $1,500” if an agency denied access to a public record “in bad faith.” 65 Pa. C.S.A. 67.1305(a).
A civil penalty of “not more than $500 per day until the public records are provided” if the agency or public official “does not promptly comply with a court order.” § 67.1305(b).
The Law does not explicitly provide for criminal liability. Yet it provides for immunity from civil and criminal liability in certain circumstances.
It states that “[e]xcept as provided for in sections 1304 and 1305 and other statutes governing the release of records, no agency, public official or public employee shall be liable for civil damages or penalties resulting from compliance or failure to comply with this act.” Id. § 67.1306(a).
Moreover, “[n]o agency, public official or public employees shall be liable for civil or criminal damages or penalties under this act for complying with any written public record retention and disposition schedule.” Id. § 67.1306(b).
Other statutory provisions penalize a failure to disclose. See, e.g., 25 Pa. C.S.A. § 3503-04 (misdemeanor, punishable by fine or imprisonment, to refuse to permit inspection of election records).
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.” Id. § 320(b).
Civil penalties may be imposed on an individual where the court finds a willful and knowing violation of the Act. For a first offense, the penalty range is $500 to $2000. For a second offense, the penalty range is $2000 to $5000. Where a record has been altered or destroyed to evade compliance with the Act, a penalty of $100 per document may be imposed. Va. Code Ann § 2.2-3714.
If the court finds that an authority or custodian has “arbitrarily and capriciously denied or delayed response to a request or charged excessive fees, the court may award punitive damages to the requester.” Wis. Stat. § 19.37(3).