Senator Kennedy Grills Witnesses on FOIA and Personal Liability for Withholding Documents

The Problem with FOIA Enforcement

• 💡 Witnesses agree that people respond to incentives and that what is allowed will continue.
• ⚠️ Current Freedom of Information Act (FOIA) statutes, including enhanced affirmative disclosure requirements and public interest balancing tests, can be ignored.
• 🎯 Both Democratic and Republican administrations stall and resist turning over documents, indicating it's an "executive branch thing."

Proposed Solution: Personal Liability

• 🔑 Senator Kennedy proposes creating personal liability for individuals responsible for withholding documents.
• 💰 Current mechanisms, like attorney's fees, are ineffective as employees don't personally incur the cost when the government pays for lawyers.
• ⚖️ The existing statutory mechanism for intentional withholding without a reasonable basis has almost never been used.

The Need for Clear Consequences

• 🚀 To solve the problem of bad-faith withholding, there needs to be a clear message that personal liability will be enforced.
• ✅ Holding individuals personally responsible, with due process and a reasonable definition of bad faith, is suggested as a more effective deterrent.
• 🗣️ Witnesses largely agree that making it clear that obstructionists will be held personally liable is the most effective way to ensure compliance with FOIA requests.