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Tuesday, July 30, 2013

City Violated FOIA by Failing to Issue Written Denial

In the 13th binding opinion of 2013, the Public Access Counselor of the Illinois Attorney General's office (PAC) issued a fairly routine opinion finding the City of Harvey in violation of FOIA because it did not release all of the responsive records within the statutory time period or deny the request in writing.  PAC Op. 13-013.  No breaking news with this ruling.
A Chicago Tribune reporter filed five FOIA requests with the City seeking various records related to a development project.  The requested records included requests for proposals, financial statements, audits, budgets, insurance policies, liens, loans, contracts, mortgages, bills, payments, tax records, building permit applications, permits, inspection records, bond documents, and a variety of other records.  Because the City only provided some of the requested records to the reporter, he filed a request for review with the PAC office.  The City responded to the appeal in writing to the PAC, explaining that City employees were continuing to search for records and intended to respond to the request.  The City explained that the City Clerk had verbally informed the reporter that it was working on the request, but needed additional time to gather all of the records.
The PAC determined that the City's failure to provide all of the requested documents within the five day time frame required by FOIA constituted a denial of the request.  Because the City failed to issue a written denial as required by FOIA, the City was in violation of that statute.  The penalty?  The City must "immediately" provide the reporter with copies of all non-exempt records responsive to his request, and provide a written explanation of the reasons for any exemption or redaction. 
Based on the new appellate court decision in Champaign v. Madigan, the reporter, a prevailing party in this case, will not be entitled to recover his attorneys' fees since attorneys' fees are only recoverable when a requester brings an action in court to enforce FOIA, not when the requester files a request for review with the PAC. 


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