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 (FOIA) there is an onus on executive branches of government agencies to fully or partially disclose previously unreleased information or documents in the government agencies’ 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. One must note that exceptions to this act currently exist, and the Federal Government’s FOIA is different in parts to varying FOIA or Open Records Laws 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.
Case Study: Better Government Association v. Elk Grove Village
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 complete disclosure of information regarding government business and the official acts and policies of public officials.
All records related to decisions, procedures, rules, standards and other official aspects of governmental activity that affect conduct of Government and, by default, the public are open to production, inspection and 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 and importance of transparency in a functioning society.
Any public body that claims certain records are exempt from disclosure must prove their claim by carrying a burden of evidence. 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 open and transparent 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”.
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 utilizing 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, directing them to an obviously edited version found on their website).
Subject to the FOIA, 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 – a claim irrelevant to their initial request, and simply demonstrates to another degree that EGV’s refusal of compliance was wilful, intentional and in bad faith. FOIA provisions expressly state, and have been clarified in case law, that the purpose or use of the requested documents is irrelevant to whether they are exempt or not.
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.
How can PageFreezer help?
Open Records request are becoming increasingly frequent and so governmental and public bodies should have a standardized and efficient method of retaining and producing accurate records in line with federal, state and local laws.
PageFreezer technology provides an automated, cost-effective way to collect, retain and replay an agency’s online content and records without any involvement from IT professionals. PageFreezer crawling technology captures and archives all files, including links, audio and video, enabling live-replay and and evidentiary-standard records. Our SaaS solution ensures easy production of and compliance with FOIA requests, and saves bodies time, costs and the threat of sanction for non-compliance.
Don’t jeopardise your records or agency in light of FOIA or Open Records Requests – as a duty to retain and manage information, ensure you have the correct tools in place, such as PageFreezer, to do so.