Freedom of Information Act:

Federal Court Decisions Have Not Required the Office of Special Counsel to Initiate Disciplinary Actions for the Improper Withholding of Records

GAO-18-235R: Published: Mar 13, 2018. Publicly Released: Mar 13, 2018.

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David A. Powner
(202) 512-9286
PownerD@gao.gov

 

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What GAO Found

According to available information and officials of the Department of Justice (Justice) and the Office of Special Counsel (OSC), since fiscal year 2008, no court orders have been issued that required OSC to initiate a proceeding to determine whether disciplinary action should be taken against federal agency Freedom of Information Act (FOIA) personnel. Although Justice reported that it had identified six court cases (between fiscal years 2013 and 2016) in which the requesters sought to have OSC initiate an investigation, the courts denied those requests, finding that each case did not result in the courts taking three requisite actions necessary to involve OSC.

Why GAO Did This Study

Based on the principles of openness and accountability in government, FOIA requires federal agencies to provide the public with access to agency records unless the information is exempt or excluded from disclosure. Each year, federal agencies respond to FOIA requests and subsequently release information to FOIA requesters that contributes to the understanding of government actions. However, in responding to these requests, agencies may have used one of nine exemptions to withhold some or all of the information requested. In other instances, agencies may not have responded to requests in a timely manner. FOIA allows requesters to sue an agency in federal court if the agency does not respond to a request for information within the statutory time frames or if the requesters believe they are entitled to information that is being withheld by the agency. Further, the act requires OSC to initiate a proceeding to determine whether disciplinary action is warranted against agency personnel in cases involving lawsuits where a court has found, among other things, that agency personnel may have acted arbitrarily or capriciously in responding to a FOIA request.

GAO was asked to provide information regarding federal court decisions that pertain to the improper withholding of FOIA records. This report discusses how many court decisions citing the improper withholding of FOIA records have resulted in disciplinary actions against responsible agency personnel. To complete this work, GAO searched Justice's Office of Information Policy website to identify any court decisions related to the improper withholding of FOIA records. GAO also reviewed Justice's FOIA Litigation and Compliance reports for fiscal years 2008 through 2016, the years for which Justice was required to report this information. In addition, GAO interviewed relevant officials from Justice and OSC.

What GAO Recommends

GAO is not making any recommendation in this report.

For more information, contact David Powner at 202-512-9286 or pownerd@gao.gov.

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