Open-records laws are often violated with impunity due to lax laws and agencies' ability to use taxpayer-paid lawyers

Map shows jail time for violating state records laws. Only penalties explicitly included in those laws were included.

Maximum civil fine for a first offense of open records law. Only provisions which penalized under-disclosure were counted.

Sometimes not much happens when government officials and agencies violate a state’s open-records laws, the National Freedom of Information Coalition says in its latest white paper, “Blueprint to Transparency: Non-compliance and Lack of Enforcement of Open Records Laws in Select U.S. States.”

The paper looks at the varying enforcement mechanisms in state laws, including criminal penalties, civil penalties and "fee shifting," the disadvantage that record-seekers face in legal battles with government agencies that don't incur hourly legal fees because they have in-house attorneys.

The paper, which includes case studies of several states, makes five recommendations for improving open-records laws and policies to enforce them:

• Strengthen fee-shifting provisions, which are paramount to ensuring compliance, by allowing any plaintiff that substantially prevails to recover attorney’s fees, or even making it mandatory.
• Enforce civil penalties that accrue from the date of unlawful withholding of records; enact provisions to make the responding public official or agency head personally liable for civil fines; escalate penalties for repeated violations to encourage compliance.
• Increase accountability and powers among enforcement officials and agencies tasked with these roles, like attorneys general and ombuds, while considering new roles for inspectors general, public-information officers and citizen oversight boards.
• Initiate robust primary (alternative) dispute-resolution solutions that give requesters the ability to appeal a decision without the need to hire a lawyer.
• Advocate for imposition of other sanctions, such as mandatory open-government training, to prevent repeat violations; institute mandatory training for all public-record stewards, public employees and officials, to prevent violations from occurring in the first place.

NFOIC is publishing a series of white papers examining how freedom of information affects citizens' lives, offering comparative analysis of laws, practices and policies across the U.S. "If you know academics, government agencies or stakeholder groups who may be interested in online public records portal administration, please share this research with them," NFOIC says. "We hope this white paper can assist in the effort for improved records administration in cities and states across the U.S and look forward to hearing your feedback: nfoic@nfoic.org."

Map shows attorney-fee-shifting provisions. Indiana and Minnesota mandate fee-shifting only when a requester seeks enforcement after a state agency fails to release records in violation of an administrative advisory opinion. Kansas, Maine, Mississippi, Missouri, New Hampshire and Rhode Island allow or mandate fee-shifting only when the violating agency has withheld the records knowingly, willingly, or otherwise in bad faith. (National Freedom of Information Coalition maps)