Not complying with FOIA requests can result in both legal and professional headaches.
Since 1967, The Freedom of Information Act (FOIA) allows the public to request records from federal agencies, which must disclose any information requested unless it falls under one of nine exemptions. All 50 states and the District of Columbia have similar statutes.
It is important to note that individual states may have their own FOIA laws that provide additional access to information and may have different requirements and exemptions.
To comply with the law, promote transparency, operate efficiently, and build public trust, it is essential that government agencies know their own state's individual FOIA requirements.
Mandated agencies that fail to comply with a FOIA request are opening themselves up to several potential consequences, and none of these are good.
Agencies beholden to the Act that should be aware of the risks associated with non-compliance include:
- Counties/State/Federal Agencies
- Special Districts
- Public Safety Agencies
Now that we have identified the types of agencies covered by the Act, let us look at what you can expect to happen if you or your organization fails to properly comply with a FOIA request.
What Can Happen If Your Agency Fails to Comply with a FOIA Request?
There are several things that can happen if you or your organization fail to properly comply with a FOIA request:
- Personal and Agency Litigation – Failure to comply with a FOIA request can result in a lawsuit being filed against you or your agency to compel the release of the requested information. The court can order that you or your agency provide the requested information and may also require payment for any attorney fees and court costs accrued.
- Fines and Sanctions – Both your agency and you personally may be subject to fines and other sanctions if found to have acted in bad faith or willfully withheld information.
- Job Loss – Whether this is the result of being fired or resigning, from the clerk to the city attorney, all the way up to the mayor, failure to comply with a FOIA request has the potential to cost you your position.
- Personal Stress – Failure to meet with a FOIA request can cause personal stress for a variety of reasons. As requests can be time-consuming and complex, they can easily cause government employees to feel overwhelmed. Also, instances, where a request is denied or delayed, can cause staff to feel frustrated or disappointed in their ability to serve the public as effectively as they would have liked.
- Embarrassment – Failure to comply with FOIA requests can also lead to being called out on social media, potentially damaging your agency's reputation, and eroding public trust in the government.
Now that we have looked at some of the things that can happen if your organization fails to comply with a FOIA request let us now consider some of the most common ways that agencies fail to achieve compliance.
Ways That Agencies May Not Be Properly Complying With the FOIA
There are several ways that agencies can be non-compliant, which include but are not limited to:
- On Purpose – It could be because an agency has a particularly vexatious requester, or because compliance with the request would open the agency up to significant litigation that could be worse than the potential penalties. Whatever the reason, sometimes agencies and individual staff members consciously make the decision to act against FOIA requirements.
- Missed Records Request – It may be an honest mistake or the result of carelessness; however, it is important that agencies do not let records requests slip through the cracks, which is why effective processes should be put in place to deal with them systematically.
- Failure to Redact Sensitive Information – Redacting sensitive information before a public record has been released is the responsibility of the agency and those involved in the public records request process, and failure to do so is likely to result in action against you or your organization. Again, it is important to become familiar with the laws that govern your agency, as requirements can be quite different from state to state.
- Missing Deadlines for Supplying Requested Information – Something as simple as a missed deadline can cause non-compliance when it comes to a public records request.
- Inefficient Payment Processing – When a payment is required, inefficient payment processing can slow down the delivery of requested information, indirectly causing non-compliance with a FOIA request. If the agency is not able to process the payment in a timely manner, it may miss the deadline for responding.
- Failure of Inter-Agency Units – Clerks and other government agency employees do their best to respond to public records requests but sometimes can be let down by a separate unit responsible for helping respond to the public records request. This is one of the dangers of having a decentralized process.
- Lack of Accessibility – In order to comply with FOIA requests, it is common sense that requesters with disabilities have the ability to make information requests in the first place. Depending on laws affecting your agency’s public records requests process, you may have to make further considerations, such as language accessibility.
Staying on Top of the FOIA and Your Public Records Requests Process
It is important for mandated agencies to comply with FOIA requests and provide timely and complete access to public information, as failure to do so can clearly have significant consequences.
Adopting an automated solution, like NextRequest, will help government agencies comply with FOIA requests. By automating the FOIA request process, government agencies can improve the efficiency and accuracy of the process, reduce errors, and improve compliance.
While it is important to draw a distinction between agencies and individuals that actively choose not to comply with a FOIA request, which is, of course, much more serious than accidentally missing a deadline or making an honest mistake, it is equally important to keep in mind that, accidental or otherwise, there can be negative consequences for non-compliance.
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