The amendments completely overhaul the penalties for violating FOIA. Fines are now significantly increased and are tied to the financial condition of the public body. They will range from $2,500 to $25,000 per violation for a first offense. These fines increase based on the number of violations successfully appealed within the past two years. For a second violation, the fine is a minimum of $7,500. For a third violation, the minimum penalty is $10,000, and the fine increases another $5,000 for a fourth or subsequent violation. If a violation is willful or arbitrary, fines range from $5,000 to $50,000. A public body that loses a request for an extension will be fined $100 per day beyond the 15-day production window.
These fines are designed to be significant enough that a public body cannot simply chose to risk paying fines to avoid disclosing records. Fines should also encourage public bodies to staff and train FOIA departments. Admittedly, the effectiveness of these amendments will depend, at least in part, on the courts applying the law in the spirit intended. Small townships for instance, should not face a $25,000 fine for a first-time violation. Large actors like universities or the state, however, should consistently be fined at the top end of the scale. To assist courts, the amendments specify that a public body’s budget, endowment and overall financial condition are relevant factors when calculating an appropriate fine.