F. Are there sanctions for noncompliance?
The Public Records Act provides no sanctions for noncompliance, but it does provide, in AS 40.25.125, for injunctive relief against anyone keeping you from getting public records: “A person having custody or control of a public record who denies, obstructs, or attempts to obstruct, or a person not having custody or control who aids or abets another person in denying, obstructing, or attempting to obstruct, the inspection of a public record subject to inspection under AS 40.25.110 or 40.25.120 may be enjoined by the superior court from denying, obstructing, or attempting to obstruct, the inspection of public records subject to inspection under AS 40.25.110 or 40.25.120. A person may seek injunctive relief under this section without exhausting the person's remedies under AS 40.25.123 - 40.25.124.” In exceptional cases, in addition to adverse publicity, other remedies such as recalls or criminal prosecution, or contempt citations for failure to abide by a court injunction or other order, are theoretically possible. See [Open Records] §V.D.10-.11, for discussion of certain other potentially applicable penalties, fines and sanctions. Traditionally, a significant deterrent against noncompliance had been that full attorney fees were available to the prevailing plaintiff in a public interest suit, which a suit asserting a right of public access to government information normally would be. However, in 2003, the Alaska Legislature largely eliminated the public interest litigant exception to the general rule in Alaska that prevailing parties can recover a portion of their fees from the other side. In 2007, the Alaska Supreme Court rejected legal challenges seeking to overturn this law, and in 2018 the Court said public interest litigants seeking access to records couldn’t avoid this result by claiming it was constitutional litigation. See generally, Open Records Guide, §IV.D.9(a). Between the “loser pays” prevailing party fee rule applicable to all Alaska litigants, and elimination of the public interest exception, Alaska has become the only state that would presumptively impose fees and costs on news media and other public interest litigants who unsuccessfully pursue non-frivolous claims. This change has had and is likely to have a significant adverse effect on the press.
The FOIA provides for both criminal and civil enforcement. The FOIA’s criminal sanctions are found in Section 25-19-104, which provides that “[a]ny person who negligently violates any provisions of this [act] shall be guilty of a Class C misdemeanor.” A Class C misdemeanor is punishable by a fine of up to $500, imprisonment for up to 30 days, or both. Ark. Code Ann. §§ 5-4-104, -201, -401. The FOIA’s civil process is found in Section 25-19-107 and permits civil suits to enforce the FOIA. Section 25-19-107(c) empowers courts to find guilty of contempt persons who fail to comply with court orders, and Section 25-19-107(d) allows an award of attorney fees to a “substantially prevail[ing plaintiff] unless the court finds that the position of the defendant was substantially justified or that other circumstances make an award of these expenses unjust.”
The CPRA does not provide for sanctions for an agency's noncompliance with its disclosure obligations. Reasonable attorneys' fees and costs are mandatory to the prevailing plaintiff under Section 6259(d), however. If an agency fails to obey a court order requiring disclosure of public records, contempt sanctions may be imposed, following a hearing on an order to show cause. Cal. Gov't Code § 6258.
Any person who willfully and knowingly violates the provisions of the public records act is guilty of a misdemeanor, carrying a fine, upon conviction, of not more than $100 and/or imprisonment in the county jail for not more than 90 days. Colo. Rev. Stat. § 24-72-206
If the court finds that a criminal justice agency arbitrarily or capriciously withheld a criminal justice record, the court may impose a penalty of $25 per day (for each day of withholding) that must be personally paid by the custodian. Colo. Rev. Stat. § 24-72-305(7).
The FOIC has the authority to impose civil penalties of not less than twenty dollars and not more than one thousand dollars against any custodian or other official upon a denial of a right under FOIA "without reasonable grounds." Conn. Gen. Stat. §1-206(b)(2). See Nastro v. FOIC, 2008 Conn. Super. LEXIS 1892 (2008) (affirming imposition of civil penalty).
Any person who willfully, knowingly and with intent to do so, destroys, mutilates or otherwise disposes of any public record without the approval required under FOIA or unless pursuant to chapter 47 or 871, or who alters any public record, shall be guilty of a class A misdemeanor and each such occurrence shall constitute a separate offense. Conn. Gen. Stat. §1-240(a).
In Burton v. FOIC, 161 Conn. App. 654, certify. Denied 321 Conn. 901 (2016), the Appellate Court held that a complainant before the FOIC did not have standing to appeal the FOIC’s refusal to impose a civil penalty because the complainant was not aggrieved by that determination.
Any member of any public agency who fails to comply with an order of the Freedom of Information Commission shall be guilty of a class B misdemeanor and each occurrence of failure to comply with such order shall constitute a separate offense. Conn. Gen. Stat. §1-240(b).
A public agency may also bring an action in Connecticut Superior Court against any person whose appeal to the FOIC was denied because the FOIC determined that the "appeal or the underlying request would perpetrate an injustice or would constitute an abuse of the commission's administrative process." Conn. Gen. Stat. §1-241. The court may issue an injunction prohibiting the person from bringing further appeals to the FOIC; if the person continues to appeal, he or she will be conclusively in contempt of the order and the agency may seek further relief from the court. Id. See also Hodge v. FOIC, 2008 Conn. Super. LEXIS 2906 (2008), for a discussion regarding procedures for imposition of a civil penalty.
The Act provides that any person or entity deliberately violating the Act (1) by knowingly and willingly failing or refusing to provide access to records not subject to exemption, (2) by knowingly and willingly failing or refusing to provide access to such records within the Act’s time limits or (3) by knowingly and willingly frustrating or attempting to frustrate the access to records by intentionally making records difficult to obtain or review shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $1,000.00 for the first violation. O.C.G.A. § 50-18-74(a).
Alternatively, negligent violations of the Act may result in a civil penalty not to exceed $1,000.00 for the first violation. Id.
A civil penalty or criminal fine not to exceed $2,500.00 per violation may be imposed for each additional violation that the violator commits within a 12 month period from the date the first penalty or fine was imposed. Id.
In addition, persons or entities that destroy records for the purpose of preventing their disclosure under the Act may be subject to prosecution under § 45-11-1. Id.
Further, in any enforcement action in which the court determines that a person or entity acted without substantial justification in not complying with the Act (or in instituting the litigation), the court may assess reasonable attorney’s fees and other litigation costs. O.C.G.A. § 50-18-74(b).
Idaho Code § 74-116(2) provides that, in any action to enforce the provisions of the Act, a “court shall award reasonable costs and attorney fees to the prevailing party or parties, if it finds that the request or refusal to provide records was frivolously pursued.” In addition, the Act provides that a court may assess a civil penalty of up to $1,000 against any public official who it finds “has deliberately and in bad faith improperly refused a legitimate request for inspection or copying.” Idaho Code § 74-117.
Yes, a requester who prevails in a court proceeding can recover reasonable attorneys’ fees and costs.
See 5 ILCS 140/11(i). Moreover, if 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 also impose upon the public body a civil penalty. The penalty should range between $2,500 and $5,000 for each occurrence. In assessing the civil penalty, courts consider in aggravation or mitigation the budget of the public body and whether the public body has previously been assessed penalties for violations of this Act. See 5 ILCS 140/11(j).
In addition to authorizing a lawsuit to compel the public agency to release a record, Ind. Code Section 5-14-3-9(e), the statute also provides for disciplinary consequences to employees who violate the Act. Except as provided by Ind. Code § 4-15-10 (the state employees’ Bill of Rights), an employee or officer of a public agency who knowingly or intentionally discloses information classified as confidential by state statute commits a Class A misdemeanor. Ind. Code § 5-14-3-10(a). Furthermore, if a public employee intentionally, knowingly or recklessly discloses or fails to protect information classified as confidential by state statute, that employee may be disciplined in accordance with the personnel policies of the agency that employs him. Ind. Code § 5-14-3-10(b). If, however, a public employee “unintentionally or unknowingly” discloses confidential or erroneous information in response to a request under the Access to Public Records Act, or if the public employee discloses confidential information in reliance on an advisory opinion by the public access counselor, then that employee is “immune from liability” for such a disclosure. Ind. Code § 5-14-3-10(c).
Iowa Code § 22.6, which provided: “It shall be unlawful for any person to deny or refuse any citizen of Iowa any right under this chapter, or to cause any such right to be denied or refused. Any person knowingly violating or attempting to violate any provision of this chapter where no other penalty is provided shall be guilty of a simple misdemeanor,” was repealed by the Legislature in 2011. Acts 2011 (84 Gen. Assemb.) Ch. 106, S.F. 289 § 16 (Iowa 2011).
Iowa Code § 22.10 governs civil enforcement. That provision provides:
- The rights and remedies provided by this section are in addition to any rights and remedies provided by section 17A.19. Any aggrieved person, any taxpayer to or citizen of the state of Iowa, or the attorney general or any county attorney, may seek judicial enforcement of the requirements of this chapter in an action brought against the lawful custodian and any other persons who would be appropriate defendants under the circumstances. Suits to enforce this chapter shall be brought in the district court for the county in which the lawful custodian has its principal place of business. Iowa Code § 22.10(1).
- Once a party seeking judicial enforcement of this chapter demonstrates to the court that the defendant is subject to the requirements of this chapter, that the records in question are government records, and that the defendant refused to make those government records available for examination and copying by the plaintiff, the burden of going forward shall be on the defendant to demonstrate compliance with the requirements of this chapter.
- Upon a finding by a preponderance of the evidence that a lawful custodian has violated any provision of this chapter, a court:
a. Shall issue an injunction punishable by civil contempt ordering the offending lawful custodian and other appropriate persons to comply with the requirements of this chapter in the case before it and, if appropriate, may order the lawful custodian and other appropriate persons to refrain for one year from any future violations of this chapter.
b. Shall assess the persons who participated in its violation damages in the amount of not more than five hundred dollars and not less than one hundred dollars. However, if a person knowingly participated in such a violation, damages shall be in the amount of not more than two thousand five hundred dollars and not less than one thousand dollars. These damages shall be paid by the court imposing them to the state of Iowa if the body in question is a state government body, or to the local government involved if the body in question is a local government body. A person found to have violated this chapter shall not be assessed such damages if that person proves that the person 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 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 attorney general or the attorney for the government body, given in writing.
c. Shall order the payment of all costs and reasonable attorney fees, including appellate attorney fees, to any plaintiff successfully establishing a violation of this chapter in the action brought under this section. The costs and fees shall be paid by the particular persons who were assessed damages under paragraph "b" of this subsection. If no such persons exist because they have a lawful defense under that paragraph to the imposition of such damages, the costs and fees shall be paid to the successful plaintiff from the budget of the offending government body or its parent.
d. Shall 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.
4. Ignorance of the legal requirements of this chapter is not a defense to an enforcement proceeding brought under this section. A lawful custodian or its designee in doubt about the legality of allowing the examination or copying or refusing to allow the examination or copying of a government record is authorized to bring suit at the expense of that government body in the district court of the county of the lawful custodian's principal place of business, or to seek an opinion of the attorney general or the attorney for the lawful custodian, to ascertain the legality of any such action.
In addition to the remedies available to the attorney general under K.S.A. 45-251, any agency that knowingly violates the act can be fined up to $500 for each violation. K.S.A. 45-223. 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).
A Circuit Court may award a successful requester costs and reasonable attorney fees incurred if the requester prevails against the agency and the agency willfully withheld records in violation of the Kentucky Open Records Act. Ky. Rev. Stat. 61.882(5). Courts also 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." Id.
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 for which a forfeiture of not more than $500 may be adjudged. 1 M.R.S.A. § 410. The fine may only be collected by the state, not private persons.
A substantially prevailing plaintiff may recover reasonable attorney’s fees and litigation expenses if the court determines that the refusal to provide access to public records or illegal action at a public meeting “was committed in bad faith.” 1 M.R.S.A. § 409(4). Attorney’s fees and litigation costs may not be awarded to or against a federally recognized Indian tribe. Id.
Yes. The circuit court may enjoin the State, a political subdivision, or a unit, an official, or an employee of the State or og a political subdivision from withholding the public record or a copy, printout or photograph of the record; order the production of the withheld record or copy, printout or photograp;h, and award actual damages including attorneys' fees to the complainant if the Court finds that the complainant substantially prevailed in the suit seeking enforcement of the Act. § 4-362(c), (f); but see ACLU v. Leopold, 223 Md. App. 97, 123 (2015) ("actual damages" under the statute does not include emotional damages). In addition, a person, including an officer or employee of a governmental unit, is liable to an individual for actual damages that the court considers appropriate if the court finds by clear and convincing evidence that the person willfully and knowingly (1) allows inspection of a public record that names or identifies the individual (e.g., by address, description, fingerprint, picture) or (2) obtains, discloses or uses personal information. § 4-401(a). Further, a person is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $ 1,000 if he/she/they willfully or knowingly violates any provision of the Act, fails to petition a court after a temporary denial, or by false pretenses, bribery, or theft, accesses a personal record, the disclosure of which is prohibited. § 4-402(a)-(b); see also § 4-362(d). Custodians found to have acted arbitrarily or capriciously in withholding a public record may be subject to disciplinary action. § 4-362(e). And custodians who fail to comply with a court order for production of a public record may be punished for contempt. § 4-362(e).
"The court shall award reasonable attorney’s fees, costs, and disbursements" to a requesting person that prevails under the FOIA. Mich. Comp. Laws Ann. § 15.240(6). If the requesting person only prevails in part, "the court may, in its discretion, award all or an appropriate portion of reasonable attorney’s fees, costs, and disbursements." Id. Moreover, under the 2015 amendment, “[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.” Mich. Comp. Laws Ann. § 15.240b.
In a suit brought by a requester, the court may award attorney fees if the requester has "substantially prevailed." Neb. Rev. Stat. §84-712.07. Violation of the public records statutes is a Class III misdemeanor, and any official who violates the statutes may be removed or impeached. Neb. Rev. Stat. §84-712.09.
The requester can recover his or her costs and reasonable attorney’s fees in the proceeding from the governmental entity. NRS 239.011. An officer who mutilates, destroys, conceals, erases, obliterates or falsifies any record or paper appertaining to his or her office, is guilty of a category C felony. NRS 239.310.
The Statute provides for reasonable attorneys’ fees if the court finds that a public body "knew or should have known that the conduct engaged in was a violation of" the Statute. RSA 91-A:8,I. Should the court find that a public official or employee of a public body has acted in bad faith, it may award such fees personally against the public official or employee. Id. Costs are awarded if the court finds that the lawsuit was necessary to make the information available or proceeding open to the public. On the other hand, the court may award attorneys’ fees in favor of a public body if it finds that the lawsuit was in "bad faith, frivolous, unjust, vexatious, wanton, or oppressive." RSA 91-A:8,I-a.
In addition to awarding attorneys’ fees and costs, the court may invalidate action taken by a public body in violation of the Statute, and it may enjoin future violations of the Statute. RSA 91-A:8,II and III.
A requestor who prevails in any proceeding shall be entitled to a reasonable attorneys' fee. (See N.J.S.A. 47:1A-6). In addition, a public official, officer, employee or custodian who knowingly and willfully violates OPRA 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 the initial violation, and $5,000 for a third violation occurring within 10 years of an initial violation that. Appropriate disciplinary proceedings may be initiated against a public official, officer, employee or custodian against whom a penalty has been imposed.
(See N.J.S.A. 47:1A-11).
No, except that a requester who prevails in a civil suit brought pursuant to the Public Records Law may seek an award of attorney fees. The statute makes an award of attorney fees to a party winning access virtually mandatory. The court “shall” award fees unless the noncompliant public agency was following a judgment or order of a court, a published appellate opinion, or a written opinion from the attorney General. G.S. § 132-9(c).
If the attorney general issues a written opinion concluding that a violation has occurred, the public entity has seven days after the opinion is issued, regardless of whether a civil action is filed, to disclose the record. N.D.C.C. § 44-04-21.1(2). If the public entity fails to disclose the record within the seven-day period and the person requesting the opinion prevails in a civil action brought under N.D.C.C. § 44-04-21.2, the requestor must be awarded costs, disbursements, and reasonable attorney’s fees in the action and on appeal. Id. The consequences for failing to comply with an attorney general’s opinion also include potential personal liability for the person or persons responsible for the noncompliance. Id.
In a civil action, the court may award declaratory relief, an injunction, a writ of prohibition or mandamus, costs, disbursements, and reasonable attorney’s fees against the entity for any violation. N.D.C.C. § 44-04-21.2. For an intentional or knowing violation, the court may award damages in an amount equal to $1,000 or actual damages caused by the violation, whichever is greater. Id. These remedies are not available if a violation has been corrected before a civil action has been filed and no person has been prejudiced or harmed by the delay. Id. However, if the entity has previously violated the open records laws, these remedies would still be available. Id.
Finally, the attorney general may refer to the appropriate state’s attorney any public servant who has been found in more than one opinion to have violated the open records law. N.D.C.C. § 44-04-21.3. A public servant who knowingly violates the open records law is guilty of a class A misdemeanor. Id.
The act provides fixed statutory damages of $100 per business day for non-compliance with a request, so long as the request is delivered by hand-delivery or certified mail. Ohio Rev. Code § 149.43(C); See, e.g., State ex rel. DiFranco v. S. Euclid, 138 Ohio St. 3d 367, 374, 7 N.E.3d 1136, 1142, 2014-Ohio-538, ¶ 28.
Statutory damages are not punitive, but instead represent the presumptive injury suffered by a requester for lost use of the requested records—due to the public office's delay in providing them.
A requester's eligibility for statutory damages does not begin until the day that a requester sues, so that is the first day that the public office could be liable for the $100-a-day damages. The most in statutory damages that a requester can recover for the public office's delay in providing the requested records is $1,000.
“Stacking” of statutory damages for “essentially the same records request” is not allowed, as “no windfall is conferred by the statute.” State ex rel. Dehler v. Kelly, 127 Ohio St.3d 309, 939 N.E.2d 828, 2010-Ohio-5724.
The statute authorizes a reviewing court to reduce statutory damages in whole or in part if it finds a person well-informed about the state of the law would conclude that the public office was complying with the current state of the law, and that nondisclosure furthered the public policy underlying whatever authority the public office relied upon in denying access to the records. Ohio Rev. Code § 149.43(C)(1).
The statute authorizes courts to award reasonable attorneys’ fees to a prevailing requester, but that award is discretionary with the court in most instances. Ohio Rev. Code § 149.43(C)(3). The court must award attorneys’ fees only where the public office ignores a request without responding at all, or where the office promises to provide the requested records within a specified period of time, but breaks that promise. Ohio Rev. Code § 149.43(C)(3).
A successful litigant is not entitled to attorney fees when the work is done by in-house counsel who did not receive any compensation beyond counsel's regular salary. State ex rel. Beacon Journal Publ'g Co. v. Akron, 104 Ohio St. 3d 399, 819 N.E.2d 1087, 2004-Ohio-6557.
Any willful violation may be prosecuted by the District Attorney's office. 51 O.S. § 24A.17.A. Any person denied access to records may bring an action for declaratory and/or injunctive relief. 51 O.S.§ 24.A.17.B.1. See Lawson v. Curnutt, 2010 OK CIV APP 78, 239 P.3d 192 (A person denied access to records may bring suit for declarative or injunctive relief but the suit shall be limited to records requested and denied prior to filing the action); See also City of Broken Arrow v. Bass Pro Outdoor World, L.L.C., 2011 OK 1, 250 P.3d 305.
Noncompliance with a public records request can result in a public body being required to pay the reasonable attorney fees of the requestor in a court action. ORS 192.431(3) requires the court to award reasonable attorney fees and costs to a requestor who prevails in a suit and allows the court to decide whether to award fees and costs (or a portion) if the requestor prevails in part.
In addition, if a state agency fails within seven days of an Attorney General order to disclose records to either comply with the order or provide notice of intent to seek judicial review (or fails to initiate proceedings seven days thereafter), the public body will be required to pay the requestor’s reasonable attorney fees regardless of who later prevails in the suit. Id.
Separately, tampering with public records is a criminal offense. ORS 162.305.
If a request for access to records was initially denied and a court later determines that the request should have been granted, the court has the option of reducing or waiving the statutory fees for search and/or retrieval if it determines that the information requested is in the public interest and likely to contribute significantly to public understanding of the operations or activities of the government. R.I. Gen. Laws § 38-2-4(e); see also Direct Action for Rights and Equality v. Gannon, 819 A.2d 651 (R.I. 2003).
A willful violation is no longer considered a misdemeanor and subject to escalating fines and possible imprisonment for repeat offenses; however, if a court finds that a public body has arbitrarily and capriciously violated the provisions of this chapter by refusal or delay in disclosing or providing copies of a public record, the requester may be awarded actual or compensatory damages, or injunctive relief, and the public body may be fined Five Hundred Dollars. S.C. Code Ann. § 30-4-110
In an action brought under Section 552.321 or 552.3215, the court “shall assess costs of litigation and reasonable attorney fees incurred by a plaintiff who substantially prevails.” § 552.323(a). However, a court may not assess costs and fees against a governmental body if the court finds that the governmental body acted in reasonable reliance on a judgment or court order, an appellate court decision, or a written decision of the Attorney General. Tex. Gov’t Code § 552.323. In determining awardable costs and attorney fees under § 552.324 (in a suit brought by a governmental body seeking to withhold information), the court must consider whether the conduct of the governmental body had a reasonable basis in law and whether the litigation was brought in good faith. Tex. Gov’t Code § 552.323(b).
Section 552.351 provides that a person commits a criminal offense if the person willfully destroys, mutilates, removes without permission, or alters public information. Such an offense is a misdemeanor punishable by a fine of not less than $25 or more than $4,000, or confinement in jail for not less than three days or more than three months, or both. Tex. Gov’t Code § 552.351(b).
An officer of public information or the officer’s agent commits a crime if, with criminal negligence, that person fails or refuses to give access to, or to permit or provide copying of, public information to a requestor. Tex. Gov’t Code § 552.353(a). Such a violation is a misdemeanor punishable by a fine of not more than $1,000, or confinement in jail for not more than six months, or both. Tex. Gov’t Code § 552.353(e).
A district court may enjoin any government entity or political subdivision that violates or proposes to violate GRAMA. See Utah Code § 63-2-802(1). A district court also may “assess against any governmental entity or political subdivision reasonable attorney fees and other litigation costs reasonably incurred in connection with a judicial appeal of a denial of a records request if the requester substantially prevails.” Id. § 63G-2-802(2)(a). However, any claims for attorneys’ fees or for damages are subject to the Governmental Immunity Act. See id. § 63G-2-802(5). Criminal penalties also exist for certain GRAMA violations. See id. § 63G-2-801. “A public employee or other person who has lawful access to any private, controlled, or protected record” and “intentionally discloses, provides a copy of, or improperly uses” such record, with the knowledge that disclosure or use is prohibited, except as provided in Subsection 53-5-708(1)(c), is “guilty of a class B misdemeanor.” See id. § 63G-2-801(1)(a). “A person who by false pretenses, bribery, or theft, gains access to or obtains a copy of any private, controlled or protected record to which the person is not legally entitled is guilty of class B misdemeanor.” Id. § 63G-2-801(2)(a). “A public employee who intentionally refuses to release a record, the disclosure of which the employee knows is required by law, is guilty of a class B misdemeanor.” Id. § 63G-2-801(3)(a).
None provided for by statute, although the court may award reasonable attorneys’ fees and litigation costs to a substantially prevailing complainant under § 319(d). In addition, § 320 provides that an agency employee who arbitrarily or capriciously withholds public records may be subject to disciplinary action, and that, in the event of noncompliance with a court disclosure order, the employee or official responsible for the noncompliance may be held in contempt. Section 320(c) also provides that 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.”
In a proceeding commenced pursuant to § 2.2-3713 against members of public bodies for a violation of § § 2.2-3704, 2.2-3705.1 through 2.2-3705.7, 2.2-3706, 2.2-3707, 2.2-3708.2, 2.2-3710, 2.2-3711 or § 2.2-3712, the court, if it finds that a violation was willfully and knowingly made, shall impose upon such officer, employee or member in his individual capacity, whether a writ of mandamus or injunctive relief is awarded or not, a civil penalty of not less than $500 nor more than $2,000, which amount shall be paid into the State Literary Fund. For a second or subsequent violation, such civil penalty shall be not less than $2,000 nor more than $5,000. Va. Code Ann. § 2.2-3714.
A requester who prevails against an agency that has denied a record must be awarded their costs, including reasonable attorneys’ fees. RCW 42.56.505(4). In addition, the court must award civil penalties in an amount not to exceed $100 per day for each day that the requester was denied the right to inspect or copy a public record. Id. 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).
The FOIA was amended in 2001 to provide that "any custodian of any public records who willfully violates the provision of [FOIA] may be charged with a misdemeanor and upon conviction the custodian may be fined not less than two hundred dollars nor more than one thousand dollars or be imprisoned for more than twenty days, or both. W. Va. Code § 29B-1-6.