“Lock her up?” Should FOI scofflaws go to the slammer — or to the curb?

By Frank D. LoMonte

“Freeze! Keep your hands where I can see them, and drop the spreadsheets.”

We may be a ways from “NCIS-FOIA,” but a couple of recent open-government cases provide a reminder that, yes, it’s possible to actually get arrested and even go to jail for flagrant abuses of the public’s right to know.

In Georgia, a former aide to Atlanta’s then-mayor, Kasim Reed, who purposefully slow-walked journalists’ public-records requests, was found guilty and ordered to pay a $1,500 fine after a Dec. 19 trial.

The case resulted from an award-winning series about corruption in city government by the Atlanta Journal-Constitution, which obtained text messages in which Jenna Garland instructed city employees to “provide information in the most confusing format available” and delay responding as long as possible.

In South Dakota, a county auditor is facing misdemeanor charges after being accused of repeatedly violating a state law that entitles the public to see the “agenda packet” for county commission meetings, either online or on-site at the meeting. The case, believed to be the first criminal prosecution in the 55-year history of South Dakota’s open-meetings law, carries a potential $500 fine and 30 days in jail.

Two cases can’t exactly be called a “trend,” but given the scarcity of prosecutions over the history of state freedom-of-information laws, even one is remarkable.

Not everyone thinks handcuffs are a proportional remedy for foot-dragging on transparency. One South Dakota commentator suggested that the state’s attorney acted overzealously in turning auditor Rebecca Krein’s freedom-of-information obstructionism into a criminal case.

But if not arrest, then what is the way to bring open-government scofflaws into compliance? The normal incentives — being sued and paying expensive legal bills — don’t apply to public employees. Their lawyers are paid for by the very taxpayers who’ve been denied access to information. Even a defeat in court can effectively be a “win,” if it delays the release of sensitive or unflattering information long enough for it to become worthless. And there does not seem to be much reputational loss-of-face in being publicly shamed as an FOI scofflaw — any blame normally sticks to the agency, not to the individual custodian making the decision.

Federal open-records law provides one potential model, though whether it produces any results is unclear.

The Freedom of Information Act (“FOIA”), provides that if a federal employee is found to have flagrantly violated the law in destroying or withholding public documents to avoid disclosure, the case should be referred to the federal personnel agency, which can impose sanctions up-to-and-including dismissal.

There is no data on how often federal employees get suspended or fired for willfully violating FOIA, but personnel action — not police action — seems like the punishment that best fits the crime. Loss of a government job will cost a lot more than the typical $500 statutory fine that accompanies a misdemeanor open-records violation. It removes a problem employee who has abused the public trust, while also sending a powerful deterrent message to others.

Relatedly, every public-records denial (full or partial) should be required to carry the name of the responsible public employee(s) who took part in the decision, not just the generic stamp of the agency. That way, the press and public can identify whether certain government employees are disproportionately straining (or outright ignoring) the law, which should be a consideration if that employee is up for a more responsible position of authority.

Frank LoMonte is a professor of media law at the University of Florida and director of the Brechner Center for Freedom of Information.