Prevention of “Willful, Intentional and Bad Faith Violation of FOIA” – Preservation and Presentation.
Freedom of Information (in the United States) refers to the legislation guiding bodies of information at the federal level and independently within the fifty states.
Subject to the Federal Freedom of Information Act, 5 U.S.C. s. 552; there is an onus on executive branches of government agencies to fully or partially disclose previously unreleased information or documents in the government’s possession to the public.
In addition to the making available of relevant documents, such agencies and bodies are subject to sanctions for delaying or hindering the process of access to information.
Note: Nine exceptions to this act currently exist, and the Federal Government’s FOIA is different in parts to varying FOIA passed by individual states.
Various amendments and extensions have been added since the enactment of the FOIA in 1967, to include the Electronic Freedom of Information Act Amendment 1996 (E-FOIA), ensuring the making available of electronic records (within 20 business days of notice), the 2010 repeal of FOIA Amendments in Wall Street Reform Act, and the proposed FOIA Oversight and Implementation Act of 2014.
Though heavily influenced by and subject to federal law, the provisions on access to information within individual states vary considerably, with certain states providing more pro-access freedom of information laws, and others more ambiguous in their nature, but
all in line with open government standards to facilitate access to public records to the public.
In a pending case, a suit was filed by Illinois-based government watchdog, the Better Government Association (“BGA”), suing governmental body Elk Grove Village (“EGV”) for refusal to respond to an FOIA request for records and footage of a recorded village board meeting in an appropriate manner. The Defendants refused production of documents and a video, and directed the Plaintiff to their website, resulting in what the Plaintiffs claim to be a “wilful, intentional and bad faith violation of FOIA”.
Plaintiff BGV alleges, in line with federal fundamentals and state policy, that the general public are entitled to full and complete disclosure of information regarding the affairs of government and the official acts and policies of those who represent them as public officials.
All records related to decisions, policies, procedures, rules, standards and other aspects of governmental activity that affect conduct of Government and lives of people are presumed to be open to inspection and/or copying. Restraints and exceptions on access to information are permitted by the FOIA but are strictly limited, due to the presumed need of full disclosure of information.
Any public body that claims certain records are exempt from disclosure has the burden of proving this exemption by clear and convincing evidence.
The open and simplistic language of Illinois statute states that “All records relating to the obligation, receipt and use of public funds of the State, units of local government and school districts are public records subject to inspection and copying by the public”.
To unduly deny access to records that fall under this provision and are not subject to exceptions would, in fact, be a “wilful, intentional, bad faith violation of FOIA”. If a public body intentionally fails to comply with the FOIA or otherwise act in bad faith, courts may impose a civil penalty of between $2500 and $5000 for each instance.
The Plaintiff claims that the denial of access to records and redirection to website is not in line with state provisions on freedom of access to information, which they should easily be able to provide if utilising the correct archiving methods, ensuring they are not held liable for not complying with state law.
EGV also failed to provide a recording of a village board meeting to BGA, instead directing them to a version found on their website, but the online video appeared to be edited (with graphics and addition of camera angles).
Subject to the FOIA, BGA are entitled to a copy of the video; including raw video capture. One must note that public bodies do not satisfy FOIA by directing requesters to information posted online.
EGV denied the request in full, in addition to claiming that BGA’s request was out of vendetta for an individual member of the authority. BGA claimed that this additional claim was irrelevant to BGA’s request, and simply demonstrates to another degree that EGV’s refusal of compliance was wilful, intentional and in bad faith.
The express language of FOIA provisions and previous court decisions in this area make clear that the purpose of a request is irrelevant to whether records are exempt.
- EGV public body under FOIA
- Records sought in BGA’s request – nonexempt public records
- EGV x produced requested records
- EGV violations = wilful, intentional and in bad faith.
The cost, time and damage to the reputation of a public body that FOIA related issues and litigation bring are significant- and unnecessary.
They are clearly stated by law, tantamount to the functioning of an open government and society – and easily avoided by utilizing the correct archiving methods and tools.
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