|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.|
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.