The Freedom of Information Act allows requesters to sue an agency in federal court if they are dissatisfied with the agency’s responsiveness but such suits are not resulting in referrals to the Office of Special Counsel to initiate disciplinary actions against the federal employees involved, GAO has found.
The FOIA law allows suits 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. In certain circumstances the court must make a referral to the OSC, which then may recommend discipline that the employing agency would have to carry out.
However, GAO said that according to both OSC and the Justice Department, over at least the last 10 years no court orders have been issued that required OSC to start such an investigation.
It said that there have been six cases in which the requesters did ask the court to order OSC to initiate an investigation, but the courts denied those requests because the three standards necessary to involve OSC had not been met.
Those standards are that the court orders the production of any agency records improperly withheld; requires the government to pay the attorney fees and other litigation costs of the requester; and finds that the events raise questions about whether agency personnel had acted arbitrarily or capriciously.