New FOIA Penalties for Failing to Comply with Binding PAC Opinions and Court Orders

Effective January 1, 2017, public bodies that fail to comply with binding decisions issued by the Illinois Attorney General’s Public Access Counselor (“PAC”) may face additional fines and penalties.

On July 19, 2016, Governor Rauner signed Public Act 99-0586 into law, which amends and adds sections to the Illinois Freedom of Information Act (“FOIA”).  Pursuant to Section 11 (j), if a court determines that a public body has “willfully and intentionally” failed to comply with FOIA, or otherwise acted in bad faith, the court shall impose a civil penalty upon the public body of not less than $2,500 nor more than $5,000 for each occurrence. 

Pursuant to the amendments, the court may impose an additional penalty of up to $1,000 for each day the violation continues if:

(1) the public body fails to comply with the court’s order after 30 days;

(2) the court’s order is not on appeal or stayed; and

(3) the court does not grant the public body additional time to comply with the court’s order to disclose public records. 

Moreover, pursuant to newly added Section 11.6,  there is a rebuttable presumption that the public body “willfully and intentionally” failed to comply with FOIA for purposes of Section 11(j), if:

(1) the Attorney General issues a binding PAC opinion;

(2) the public body does not file for administrative review of the binding opinion within 35 days after the binding opinion is served; and

(3)  the public body does not comply with the binding opinion within 35 days after the binding opinion is served.

A public body may rebut the presumption that it has “willfully and intentionally failed to comply” with FOIA by showing that it is “making a good faith effort to comply with the binding [PAC] opinion, but compliance was not possible within the 35 day time frame.”

These new penalties will apply to binding PAC opinions that are requested or issued on or after, January 1, 2017.