Court Rules on Attorney Fees and Civil Penalties under FOIA

Interpreting the attorney fees and civil penalty provisions under the Freedom of Information Act (FOIA), as amended in 2010, the Illinois Appellate Court for the Second District has opined that: (1) an award of attorney fees is appropriate only if the FOIA requester prevails in the litigation through judicially sanctioned relief (i.e., a court order or judgment), and (2) the court shall impose a civil penalty upon a public body if its course of conduct in responding to a FOIA request demonstrates a lack of good faith.

A Brief Overview of the Decision

The Court’s decision in The Rock River Times vs. Rockford Public School Dist. 205, 2012 IL App (2d) 110879 (Oct. 3, 2012), affirmed a trial court ruling that FOIA requester The Rock River Times was not entitled to an award of attorney fees for the lawsuit it filed to challenge the school district’s denial of its records request because the court did not order the school district to release the record.  Rather, because the school district ultimately voluntarily released the record, the requester did not “prevail” in the litigation, which is now required under FOIA, as amended in 2010, in order for a court to award reasonable attorney fees to a requester.  This is true even though the school district’s voluntary disclosure did not occur until 21 days after the lawsuit was filed.

The Court further affirmed the trial court’s imposition of a $2,500 civil penalty against the school district for the manner in which it responded to the FOIA request.  The record demonstrated to the Court that the school district: (1) first decided that it would not release the record and then searched for reasons to prevent disclosure; (2) disregarded the express language under FOIA which requires a public body to assert all reasons for denying a records request within the statutory timeframe for response; (3) created its own procedural process in addressing the FOIA request, which is not supported by statute; and (4) should have released the record upon learning that the first, and only two exemptions it cited to withhold disclosure were not valid, rather than asserting a new, third exemption which also was not applicable.   

The overall lesson to be learned from this decision is that responding to FOIA requests in a timely and lawful manner must remain a high priority for public bodies.

The detailed  factual and legal analysis of the Court’s decision is set forth below.

The Facts

On August 26, 2010, a reporter with The Rock River Times submitted a FOIA request to the school district for a copy of the principal’s written rebuttal to a “separation of employment” letter issued by the superintendent.  Four business days later, the school district timely issued an “intent to deny” letter to the requester and a “pre-authorization” letter to the Illinois Attorney General’s Public Access Counselor (“PAC”)  seeking permission to assert the FOIA Section 7(1)(c) “personal privacy” exemption.[1]  In addition to asserting the “personal privacy” exemption, the school district also claimed that the Personnel Records Review Act (the “PRRA”) prohibited disclosure of this record and, thus, cited FOIA Section 7.5(q) as an additional basis to deny the request.  No other exemptions were cited by the school district.  On September 13, 2010, the PAC denied the school district’s request to assert the “personal privacy” exemption, but did not opine on the validity of the PRRA exemption because it was not subject to the “pre-authorization” process.  Upon receiving the PAC’s response, the school district issued a denial letter to the requester citing the PRRA exemption, which included a notice that it could seek review of the denial by the PAC.

On September 23, 2010, the requester submitted a Request for Review (the “Review”) with the PAC.  Without advising the school district of the pending Review and providing it an opportunity to respond, the PAC determined that the school district could not rely upon the PRRA exemption to deny the request.  The school district did not learn of the PAC’s decision until October 4, 2010.  However, on September 29, 2010, it notified the requester that it would ask legal counsel review and reconsider its denial under the PRRA exemption.  The requester responded on October 1, 2010, explaining why the PRRA exemption did not apply to the record.  On October 8, 2012, the school district’s legal counsel issued a letter to the requester agreeing that the PRRA exemption did not apply, but now claiming that FOIA Section 7(1)(n) exemption prevented disclosure of the record.[2]  This exemption had not previously been cited by the school district as a basis to deny the request.  Legal counsel further stated that her letter constituted a timely response under FOIA because it was issued within five business days following receipt of the requester’s October 1 letter.
On November 3, 2010, the requester filed a lawsuit against the school district under FOIA, as to the school district’s denial under FOIA Section 7(1)(n).  On November 24, 2010, the school district released the rebuttal letter.  The school district stated that it decided to release the record after receiving a verbal opinion from the PAC that the third exemption also did not apply.  The PAC asserted that it never issued such verbal opinion.

The Lawsuit and Appeal

The basis of the requester’s claim was that the school district had either waived its right to assert the FOIA Section 7(1)(n) exemption or it did not apply.  The requester further claimed that the school district acted “willfully, intentionally and in bad faith in relying on a series of baseless exemptions, one after another, in an effort to avoid compliance with FOIA.”
The school district moved to dismiss the lawsuit as moot since it had voluntarily released the rebuttal letter.  The requester submitted a response asking the court to deny the motion so that it could pursue its request for attorney fees and a civil penalty under FOIA.

In order to determine whether an award of attorney fees and imposition of a civil penalty was appropriate, the court had to interpret a recently amended FOIA section and a new FOIA section.  Effective January 1, 2010, FOIA Section 11(i) was amended to read that “[i]f a person seeking the right to inspect or receive a copy of a public record prevails in a proceeding under this Section, the court shall award such person reasonable attorney fees.” (emphasis added).  Prior to the amendment, the italicized text read “substantially prevails” and “may”, respectively.  The 2010 amendments to FOIA also added a new section which provides that if a “public body willfully and intentionally failed to comply with this Act, or otherwise acted in bad faith, the court shall impose upon the public body a civil penalty of not less than $2,500 nor more than $5,000 for each occurrence.”

The requester’s argument that it prevailed and attorney fees were appropriate because the lawsuit prompted the school district to voluntarily change its conduct was rejected by the trial and appellate courts.  While such standard applied prior to the 2010 FOIA amendments, the court determined that the legislature must have intended to delete the word “substantially” and require that a requester actually “prevail” in order for the court to award attorney fees.

In considering the imposition of a civil penalty, the court examined the language under FOIA which requires a public body to respond to a FOIA request within five business days after receipt, and if the request is denied, specify the reasons for the denial and any exemption claimed.  The conclusion was that “nothing in the FOIA suggested that a public body could continue to assert new basis for non-disclosure of a public record once its original position was found to be incorrect.”  To the contrary, FOIA requires a public body to specify the “reasons” for the denial and any exemption claimed within five business days of receipt (unless the timeframe for response is extended).  Thus, because the school district did not assert the FOIA Section 7(1)(n) exemption (or any language which would have identified this as one of the reasons for non-disclosure), the school district should have released the record once it learned that the PAC found the PRRA exemption inapplicable.
While the above conduct may not generally rise to the threshold of imposing a civil penalty, the totality of the circumstances and the school district’s conduct tipped the scale in favor of imposing a $2,500 civil penalty.  The court believed the school district “understood it was wrong on all three claimed exemptions, but was looking the other way to save face rather than simply admitting it was wrong and disclosing the document”, and that it “first decided that it would not release a document which it did not want to release” and then began “looking for reasons to support the decision it had already made.”

Significance of the Court’s Decision

1. A public body must strictly comply with the timeframes set forth under FOIA.  Failure to do so could result in payment of a requester’s attorney fees and/or a significant civil penalty to be paid from public funds. 
   
2. A public body may only deny a request for records under FOIA if one of the exemptions under FOIA Sections 7(1) or 7.5 applies.  The public body has the burden of proving by “clear and convincing” evidence that the exemption applies to the record at issue.   
   
3. If a public body believes a record may be exempt from disclosure under FOIA, it should review each FOIA exemption to determine if one or more apply to the record.  If there is more than one reason to support non-disclosure of the record, the public body should cite all reasons and applicable exemptions in its response letter.  Failure to do so may constitute a waiver of the right to later assert the exemption.  A brief consultation with legal counsel before a public body issues a denial letter under FOIA may be appropriate under certain circumstances and could avoid future litigation concerning the denial. 
   
4. The new standard for awarding attorney fees tracks the language under FOIA:  a requester must actually “prevail” in the litigation (court order/ judgment in favor of the requester and against the public body).  It is certainly possible that the legislature could further amend FOIA to address the situation where a public body discloses the record only after litigation is filed. 
   
5. There is now an Illinois Appellate Court decision which affirmed the imposition of a significant civil penalty on a public body for its conduct in responding to a FOIA request.  Responding to FOIA requests in a timely and lawful manner must remain a priority for public bodies.

If you have questions about this decision or FOIA, please contact any Robbins Schwartz attorney.

[1] Please note that FOIA has since been amended and a public body is no longer required to issue “intent to deny” or pre-authorization letters before denying a request for records under FOIA Sections 7(1)(c) and (f).

[2] FOIA Section 7(1)(n) exempts from disclosure records “relating to a public body’s adjudication of an employee grievance or disciplinary case”.  

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