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Monday, June 13, 2016

Proposed Changes to FOIA for Noncompliance with PAC Binding Opinions

The Illinois legislature recently passed House Bill 4715, which makes changes to the Freedom of Information Act.  The bill adds Section 11.6 to FOIA, providing that a requester who files a lawsuit under Section 11 of FOIA seeking to enforce a binding opinion of the PAC office of the Attorney General will have a rebuttable presumption that the public body willfully and intentionally failed to comply with FOIA if:

1.  The PAC issues a binding opinion under Section 9.5 of FOIA;
2.  The public body does not file for administrative review of the binding opinion within 35 days after it is served on the public body;  and
3.  The public body does not comply with the binding opinion within 35 days after it is served on the public body. 

The proposed legislation further states that the public body may rebut the presumption by showing that it is making a good-faith effort to comply with the binding opinion but that compliance was not possible within 35 days.

The proposed legislation also provides that a court may impose a penalty of up to $1,000 per day against the public body if the violation continues if:

1.  The public body fails to comply with the court order after 30 days,
2.  The court order is not appealed or stayed, and
3.  The court does not grant the public body additional time to comply. 

This new section would only apply to binding opinions requested or issued on or after January 1, 2017.

If signed by the Governor, these will impose pretty significant penalties on public bodies for noncompliance with binding PAC opinions.  

Post Authored by Erin Baker, Ancel Glink


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