Court Upholds City's Response to FOIA that No Records Exist

Court Upholds City's Response to FOIA that No Records Exist

  Friday, December 05, 2025    Julie Tappendorf

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In 2023, a requester submitted several FOIA requests to a city police department seeking law enforcement records regarding himself. The city's response letter denying the request stated that (1) the records were exempt under 7(1)(a) and (2) "NO RECORDS FOUND." The requester then sued the city claiming it improperly withheld responsive records to his requests in violation of FOIA. The city filed a motion to dismiss which acknowledged that the city's response should have only noted that the city had no responsive records rather than citing a FOIA exemption. The circuit court granted the city's motion and dismissed the case finding that the city’s search did not identify any responsive records to the requests, and, therefore, the city cannot withhold records that do not exist. The requester appealed the circuit court’s decision, alleging that (1) the circuit court improperly dismissed his complaint, and (2) that the circuit court should have awarded attorney’s fees to the requester.

In Turner v. Vedra, the Illinois Appellate Court upheld the dismissal of the case. First, the Appellate Court determined that the non-existence of responsive records is an affirmative defense to a FOIA complaint. In this case, the Appellate Court determined that the city performed a reasonably diligent search that did not identify any records responsive to the requests, and the adequacy of the city’s search was supported by affidavits from the city’s FOIA officer and records department supervisor. Because the requester failed to allege any facts to indicate that records existed, or provide a counter-affidavit to rebut the city’s good faith affidavits, the Appellate Court determined that the circuit court properly dismissed the requester’s complaint.

Second, the Appellate Court rejected the requester’s claim for attorneys fees because (1) the requester was not a prevailing party in his FOIA litigation, and (2) the requester, as a pro se litigant, is not entitled to an award of attorneys fees under FOIA.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Appellate Court Upholds $14,500 Fine for Building Code Violations

Appellate Court Upholds $14,500 Fine for Building Code Violations

  Thursday, December 04, 2025    Julie Tappendorf

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An Illinois Appellate Court upheld an administrative hearing officer's decision to issue a $14,500 fine for ongoing and unresolved building code violations in Thakkar v. City of Aurora. 

After a city inspector conducted an inspection of a home, the city's code hearing officer issued a citation relating to 26 code violations. The city scheduled a reinspection of the home, which found that 14 violations had been resolved but 12 violations remained. The hearing officer issued a fine of $500 per day until the 12 violations were cured. After further inspections, the hearing officer ultimately fined the homeowner $14,500. The homeowner filed a lawsuit appealing the hearing officer's decision. 

The trial court upheld the hearing officer's decision and the homeowner appealed to the Illinois Appellate Court, which also affirmed the hearing officer's decision. The Court found that the homeowner conceded there were code violations, and that the evidence submitted into the record showed several violations had not yet been cured. The Appellate Court rejected the homeowner's arguments that the written and oral rulings were inconsistent, and that the case should be "DWP'd" because a written order had not hadn't been issued within three days of the hearing. In sum, the Court held that the hearing officer's decision finding violations and issuing a fine was not clearly erroneous.

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In the Zone: Court Upholds Revocation of Conditional Use Permit for Beer Garden

In the Zone: Court Upholds Revocation of Conditional Use Permit for Beer Garden

  Wednesday, December 03, 2025    Julie Tappendorf

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The Seventh Circuit Court of Appeals upheld a district court's denial of an injunction against a planning and development committee that had revoked a conditional use permit to operate an outdoor beer garden. Minocqua Brewing Company v. Daniel Hess.

In 2021, the owner of a microbrewery and pub applied for and was issued an administrative permit allowing the operation of a retail outlet accessory to the brewery. That permit expressly prohibited any outdoor operations. A year later, the owner applied for a conditional use permit to operate an outdoor beer garden which would require use of land owned by the town. The committee denied the conditional use permit, which the owner did not appeal. Later, the brewery submitted a revised application for the beer garden. In the meantime, the brewery was violating its retail outlet permit by operating outdoors, and the owner was criticizing town and county officials on social media and in public hearings. The committee ultimately decided to revoke the retail outlet permit because of the open and ongoing violations of the permit, but granted a conditional use permit for the outdoor beer garden conditioned on the owner meeting all of the conditions prior to the start of operation. 

The owner opened the beer garden but did not meet all of the conditions required for the permit. Ultimately, the committee suspended the outdoor beer garden permit for 90 days. The owner ignored the suspension and continued to operate the beer garden, and the committee then revoked the permit. The owner appealed the revocation to the board of adjustments which denied his appeal. The owner then filed a new conditional use application, while he continued to operate the beer garden without a permit. The owner also posted on social media that he would continue to operate without a permit regardless of the committee's decision on his new application. After a public hearing on the conditional use application, the committee denied the permit, citing the repeated violations and the brewery's continued operation without a valid permit.

The owner of the brewery sued, arguing that the committee retaliated against the owner and brewery for their political speech in violation of the First Amendment when it revoked the permit and denied a new permit. The court rejected their claims, finding that they failed to show a likelihood of success on the merits of the First Amendment retaliation claims. The court noted that any reasonable permit-issuing body would have revoked and denied permits given the owner's past and present willful violations of the permit requirements, as well as his promise of future violations. The court held that there can be no First Amendment retaliation if the adverse action (revocation and denial) would have occurred even in the absence of the protected speech.  

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Governor Signs Bill Amending OMA and FOIA

Governor Signs Bill Amending OMA and FOIA

  Tuesday, December 02, 2025    Julie Tappendorf

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We reported on SB 243 a couple of weeks ago which proposed various amendments to the Open Meetings Act and FOIA and that had been approved by both the senate and house of the Illinois General Assembly. The bill was just signed by the Governor last week and became P.A. 104-0438. A brief summary of the changes that will take effect on January 1, 2026 is below:

1. Meetings of Public Bodies Prohibited on Election Day

2. Military Service Added as a Reason for Remote Meeting Attendance 

3. Township OMA Training Option Available

4. Immunity for Public Officers and Employees for Record Disclosure in Compliance with PAC Opinion

5. Section 4 FOIA Posting Requirements Allow Website Posting

6. Junk Mail Excluded from FOIA Definition of Public Records

7. Electronic FOIA Submissions Must be in Body of Submission (not Attachment or Hyperlink)

8. Public Body Can Require Verification that FOIA Requester is a Person

9. Self-Evaluation Exemption from OMA Expanded to Include Facilitator from Regional Association

10. New FOIA Exemptions Added for Certain Criminal Justice and Nuclear Records 

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Illinois Supreme Court Grants Immunity to School District

Illinois Supreme Court Grants Immunity to School District

  Monday, December 01, 2025    Julie Tappendorf

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In Haase v. Kankakee School District, the Illinois Supreme Court considered whether a school district and its employees were entitled to immunity for a student injury under the Local Governmental and Governmental Employees Tort Immunity Act (“Tort Immunity Act”).

A parent sued a school district on behalf of his son who was injured during gym class. According to the complaint, the gym teacher walked the students through warmup activities and provided basketball and soccer balls to the students. The gym teacher then went to sit in the corner of the gym and began using his laptop. The complaint alleges that the gym teacher was aware of a child in the class who had been disciplined in the past for fighting and getting aggressive with other students. The gym teacher, principal, and student counselor, however, did not have any recollection or records of this child being aggressive with other students.  

The students began playing a soccer game, and the injured student testified that the other child was not playing for either team but was attempting to grab the ball from the students who were playing soccer. The situation escalated, and the injured student claims the child tackled him resulting in injury. Other students from the class testified they thought the game had turned unnecessarily rough. The gym teacher testified he had seen the incident but thought it was a normal scrum for a soccer ball. 

The Tort Immunity Act provides immunity for public bodies and public employees in limited circumstances. Section 3-108 of the Act immunizes a local public entity for negligent supervision of, or negligent failure to supervise, an activity on public property. However, there is an exception to this immunity where an employee of the public body acts with utter indifference or conscious disregard for the safety of others. 

The trial court held that the claims in the lawsuit were not sufficient to state a cause of action because the gym teacher’s conduct did not rise to the level of utter indifference or conscious disregard to defeat tort immunity. On appeal, a divided appellate court reversed the decision of the trial court and found that there was a dispute of fact regarding whether the child was known to be aggressive and whether the gym teacher acted with conscious disregard for the student’s safety based on this knowledge. 

On appeal to the Illinois Supreme Court, the Court held that because the complaint had not alleged conduct amounting to utter indifference or a conscious disregard for safety, the school district was immune from liability under Section 3-108 of the Tort Immunity Act. The Court concluded that the actions of the teacher did not rise to the level of willful and wanton conduct.

Post Authored by Alexis Carter, Ancel Glink

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Appeal of Pension Board Decision Dismissed for Violation of Court Rules in Use of AI

Appeal of Pension Board Decision Dismissed for Violation of Court Rules in Use of AI

  Tuesday, November 25, 2025    Julie Tappendorf

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An Illinois Appellate Court recently dismissed the appeal by a former police officer of a pension board's denial of pension benefits because he violated Illinois Supreme Court Rules when he filed an appellate brief almost wholly created with the aid of artificial intelligence (AI). Pletcher v. Village of Libertyville Police Pension Board.

The plaintiff was hired as a police officer in 2003, and filed an application for a non-duty disability pension in 2020. He subsequently withdrew his application, and returned to full duty. In 2022, he was placed on a performance improvement plan for certain violations of department orders and policies. Shortly thereafter, he filed a second application for a non-duty disability pension. The pension board held a hearing on the application and ultimately denied his application, finding that the officer's condition could have been remedied with medication, which the pension board found the officer refused to regularly to take.

The officer filed a complaint for administrative review with the trial court to appeal the pension board's decision, along with a brief supporting his complaint. In his brief, he cited to several cases that did not exist. At the hearing, the officer also attempted to introduce new evidence and exhibits that were not part of the original hearing. The pension board brought the nonexistent cases to the attention of the trial court and objected to the introduction of new evidence. At the conclusion of the hearing, the trial court upheld the pension board's denial of his pension application.

The officer then appealed to the Appellate Court. After he filed his brief with the Appellate Court, the pension board filed a response and a motion for sanctions alleging that the officer violated Illinois Supreme Court Rules for fictitious citations to the administrative record, citations to nonexistent cases, and fictitious holdings from actual cases. The Appellate Court noted that all parties in litigation (even pro se litigants) are obligated to comply with court rules and procedures. The Court also noted that the officer had cited five cases in his appellate brief that did not exist, and that the some of the actual cases cited in his brief did not stand for the propositions stated in his brief. The Court stated that the officer's status as a "pro se" party does not excuse his careless reliance on AI, and that he was aware of the risks of using AI-generated research when this same issue was raised at the trial court and yet he still chose to use AI in this manner in his appellate brief. After holding oral argument on the motion to dismiss the appeal, the Appellate Court granted the pension board's motion and the officer's appeal was dismissed.

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Appellate Court Interprets 50 Pages "Free of Charge" FOIA Provision

Appellate Court Interprets 50 Pages "Free of Charge" FOIA Provision

  Wednesday, November 19, 2025    Julie Tappendorf

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An Illinois Appellate Court ruled in favor of a public body in a FOIA case filed by a requester who claimed the public body violated FOIA when it consolidated his six FOIA requests in applying FOIA's fee provision. Walters v. McHenry County Sheriff's Office.

A requester filed six FOIA requests on the same day with a county sheriff's office seeking Department of Corrections inspection reports for six different years (one year per request). The sheriff's office responded to the requests by providing 50 pages free of charge, and stating that the requester would have to pay 15 cents per page for the 113 remaining pages. The requester filed a lawsuit claiming that the sheriff's office violated FOIA by consolidating the six requests for purposes of applying the provision of FOIA requiring public bodies to release 50 pages free of charge, arguing that each of the six requests should have been treated separately. The sheriff's office filed a motion to dismiss the case arguing that because the requester submitted the six requests together in one envelope on the same date, it was appropriate to aggregate and combine the requests in applying FOIA's fee provision. The trial court agreed with the sheriff's office, finding that the request was properly consolidated for purposes of applying FOIA's fee provision. 

On appeal, the Appellate Court upheld the trial court's ruling in favor of the sheriff's office but applied a different interpretation to the FOIA fee provision. The Appellate Court noted that the statute provides that “[n]o fees shall be charged for the first 50 pages of black and white, letter or legal sized copies requested by a requester.” The Appellate Court held that it was irrelevant whether the requester's FOIA requests were separate and distinct requests for different public records, and instead held that the requester's status as a single requester is what matters in applying this provision of FOIA, stating as follows:

Under the plain language of the statute, plaintiff—the “requester”—was entitled to “the first 50 pages *** requested” from defendant—the “public body”—free of charge. Id. Defendant provided 50 free pages to plaintiff and properly assessed fees for the additional 113 pages. Thus, plaintiff has not stated a valid claim against defendant for a FOIA violation, and the court was correct to dismiss his complaint. 

In short, the Appellate Court held that a requester is entitled to the first 50 pages free of charge requested by that requester from that public body, and since the sheriff's office provided the first 50 pages at no charge, there was no FOIA violation and the requester's complaint was properly dismissed.

It is important to note that this appears to be the first time an Appellate Court has interpreted this FOIA fee provision in this manner, and that this is an unreported order not a published opinion. So, it remains to be seen whether other Illinois courts would rule in the same manner (i.e., that the 50 pages "free of charge" provision applies to the requester and not to each request). 

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Officer Precluded from Membership in Second Police Pension Fund

Officer Precluded from Membership in Second Police Pension Fund

  Tuesday, November 18, 2025    Julie Tappendorf

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An Illinois Appellate Court upheld a pension board's decision to deny an application for pension membership in Kooistra v. Board of Trustees of Sycamore Police Pension Fund.

A deputy chief in a municipal police department retired from that department and began receiving a retirement pension. Subsequently, he was hired as a patrol officer in a second municipal police department and submitted an application for membership in the second municipality's pension fund. His application was denied by the police pension board based on section 3-124.1(b) of the Police Pension Code, which states as follows: 

(b) If a police officer who first becomes a member on or after January 1, 2019 is receiving pension payments (other than as provided in Section 3-109.3) and re-enters active service with any municipality that has established a pension fund under this Article, that police officer may continue to receive pension payments while he or she is in active service, but shall only participate in a defined contribution plan established by the municipality pursuant to Section 3-109.4 and may not establish creditable service in the pension fund established by that municipality or have his or her pension recomputed.” 40 ILCS 5/3-124.1(b)

The pension board determined that this statute precluded the officer from membership in the second municipality's pension fund because he was already receiving pension payments from the first municipality's pension fund; however, he could participate in a defined contribution plan. The officer appealed the pension board's decision to the circuit court which upheld the pension board's decision, and that ruling was then appealed to the Appellate Court.

On appeal, the Appellate Court analyzed the language in Section 3-124.1(b) and determined that it applied to the officer who was drawing a pension from his former employer. The Court rejected the officer's argument that the statutory provision did not apply to him because he became a "member" of the first municipality's pension fund before January 1, 2019. Instead, the Court agreed with the pension board's interpretation of the statute that it applies to the officer because he became a member of the second municipality's police department after the statutory cutoff date. In the Court's view, that was the most logical interpretation because the officer "first" becomes a member of the second municipality's police department upon reentry into active service, which would allow him to continue to receive pension payments from the first municipality but preclude him from participating in the second municipality's pension fund. The Court noted that this interpretation was consistent with the legislative intent of this section which was to prevent "double dipping" in two pension funds. 

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City Violated FOIA When it Charged a Fee for an Electronic Copy of an Incident Report

City Violated FOIA When it Charged a Fee for an Electronic Copy of an Incident Report

  Monday, November 17, 2025    Julie Tappendorf

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In response to a FOIA request seeking an electronic copy of an incident report, a city denied the request and directed the requester to contact the city police records department to purchase the report at a cost of $5 for residents, or for $10 for non-residents. After the requester submitted a request for review, the PAC issued its 13th binding opinion of 2025, finding the City in violation of Section 6(a) of FOIA by improperly assessing a fee for disclosing an electronic copy of the incident report. PAC Op. 25-013.

The PAC relied upon the language of Section 6(a) of FOIA, which states that:

Except to the extent that the General Assembly expressly provides, statutory fees applicable to copies of public records when furnished in a paper format shall not be applicable to those records when furnished in an electronic format.” (Emphasis added.)

Although the city argued that the report fees were listed on its website, the PAC determiend that the city did not cite a FOIA provision or any other law that authorized the city to charge a special fee for disclosing electronic copies of incident reports. Even if the city had adopted an ordinance establishing those fees, the PAC determined that a municipal ordinance is not a statute. Here, because the Illinois legislature had not expressly authorized a statutory fee in excess of the cost of the recording medium for electronic copies of incident reports, and it was feasible for the city to disclose the report in the electronic format sought by the requester without the need to purchase a recording medium, the city was prohibited by FOIA from assessing the requester a fee for disclosing an electronic copy of the incident report.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Appellate Court Vacates Zoning Violations Against Tree Service Business

Appellate Court Vacates Zoning Violations Against Tree Service Business

  Friday, November 14, 2025    Julie Tappendorf

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A tree service business owned property in a village's general business district. The village informed the business owner that its use of the property was not permitted by the village's zoning ordinance and conducted an administrative hearing on the alleged violation. At the administrative hearing, the business owner argued it was not operating a landscape contractor business as the village claimed, and that its operations were compliant with the village's zoning ordinance. At the conclusion of the hearing, tje administrative hearing officer found the business owner to be in violation of the zoning ordinance because (1) it was storing commercial vehicles and equipment on the property outside of an enclosed building, (2) the business operated a landscaping company which was not permitted in the general business district; and (3) commercial vehicles were parked on the property on an overnight basis in violation of the ordinance. The hearing officer issued a $150,000 fine against the business. 

The business filed a complaint seeking administrative review of the village's decision that it was in violation of the zoning ordinance. The circuit court upheld the hearing officer's decision, and that decision was appealed to the Illinois Appellate Court.

On appeal, the Appellate Court reversed the village's hearing officer's decision against the business, finding that (1) the business was operating a "contractor's shop" which was a permitted use in the business disrict; and (2) the parking of the businesses' commercial vehicles was allowed by the zoning ordinance, which allowed parking of commercial vehicles accessory to a business use. Because the Appellate Court found that the business was not in violation of the village's ordinances, it vacated the $150,000 fine. Tomax Tree Service, LLC v. Village of Westmont

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Quorum Forum Podcast Ep. 98: E-Bikes and E-Scooters at the APA-IL State Conference

Quorum Forum Podcast Ep. 98: E-Bikes and E-Scooters at the APA-IL State Conference

  Monday, November 10, 2025    Julie Tappendorf

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Ancel Glink's Quorum Forum recently released 98: E-Bikes and E-Scooters at the APA-IL State Conference

In this episode, Ancel Glink attorneys Tyler Smith and Eugene Bolotnikov discuss options for local governments to navigate the current regulatory landscape of e-bikes and e-scooters. The discussion aims to help communities address concerns regarding public safety while providing some clarity to the owners and operators of these vehicles. Tyler and Eugene recently presented on this topic at the 2025 APA-IL State Conference, delving into the regulatory options available to communities in Illinois.

Special Segment: Public Comment Live from the APA-IL Conference

• The episode includes a public comment segment featuring a live question and answer session focused on e-bike and e-scooter regulations, recorded live at the 2025 APA-IL State Conference.
• Participants ask questions about communities shifting regulation away from state-defined classes (such as regulating by wattage instead), the inconsistency of regulations between neighboring communities, and the overlapping jurisdiction of municipalities and park districts.
• The presenters note that there has been a significant rise in regulatory attention in Illinois, especially in Cook County suburbs, following high-profile, fatal collisions involving e-bikes and vehicles.

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In the Zone: General Assembly Sends "People Over Parking Act" to the Governor

In the Zone: General Assembly Sends "People Over Parking Act" to the Governor

  Wednesday, November 05, 2025    Julie Tappendorf

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During the recent veto session, the Illinois General Assembly passed a large mass transit bill (Senate Bill 2111) which, among other things, would create the "People Over Parking Act." If signed by the Governor, the Act would take effect on June 1, 2026, and restrict local authority to require minimum off-street automobile parking near public transit.

Prohibition on Minimum Off-Street Parking Near Transit

The fundamental effect of the Act is to prohibit local governments from setting requirements for mandatory off-street parking for automobiles in specific areas. With limited exceptions, a unit of local government may not impose or enforce any minimum automobile parking requirements on a development project that is located within:

• one-half mile of a public transportation hub; or
• one-eighth mile of a public transportation corridor.

Definitions

“Minimum automobile parking requirements” means any law, code, or policy that requires a minimum number of off-street, private parking spaces for new residential and commercial developments. This would include the minimum off-street parking requirements that are common in many local zoning ordinances.

The Act defines “development project” broadly to include nearly any project undertaken for the purpose of development of land. “Development project” does not include a project where any portion is designated for use as a hotel or other specified types of transient lodging.

 A “public transportation hub” includes:

• a rail transit station,
• a boat or ferry terminal served by either a bus stop or rail transit station, and
• an intersection of two or more bus routes with a combined frequency of bus service interval of 15 minutes or less during the morning and afternoon peak commute periods.

A “public transportation corridor” means a street on which one or more bus routes have a combined frequency of bus service interval of 15 minutes or less during the morning and afternoon peak commute periods. The Act does not define “morning and afternoon peak commute periods.”

This means the Act could affect Chicago Transit Authority (CTA) stations, Metra stations, Amtrak stations, and certain CTA or Pace bus routes providing frequent bus service.

Impact on Local Authority (Preemption of Home Rule Authority)

The Act applies to home rule and non-home rule units of local government.

Reserved Powers and Exceptions for Local Governments

While minimum automobile parking requirements would be generally prohibited near transit under this Act, local governments would retain the authority to regulate other aspects of parking and development, including:

1. Maximum Parking: A unit of local government is not prevented from enacting or enforcing local laws that establish a maximum parking requirement.
2. On-Street Parking: The Act does not prevent a unit of local government from regulating access to on-street parking.
3. Bicycle Parking: The Act does not restrict a unit of local government from enacting or enforcing local laws that establish a minimum parking requirement for bicycles, including electric-assisted bicycles.
4. Regulation of Voluntarily Provided Parking: If a developer chooses to provide off-street automobile parking voluntarily, the local government may require parking spaces to be:

• made available for car-share vehicles;
• shared with the public; or
• made available only for a fee (a local government may not require voluntarily provided parking to be provided free of charge).

Application to Existing Agreement or Site Plan

The Act would not apply if the requirements conflict with a contractual agreement or approved site plan that was executed or approved on or before the effective date of the Act. However, the prohibition would apply to any amendment or extension to the contractual agreement or approved site plan, if that amendment or extension increases automobile parking requirements. The Act does not define “contractual agreement” or “approved site plan,” so local governments should consult their attorneys about whether the Act would apply.

Next Steps

Local governments may need to evaluate areas in their community near transit that could be affected by the Act, and analyze their current zoning regulations for those areas, specifically their current parking requirements.

If the Governor signs the encompassing transit bill, the Act will be effective on June 1, 2026. If the Act does become effective, local governments could still encourage developers to voluntarily provide more off-street parking by (1) requiring parking spaces to be shared with the public; or (2) adopting on-street parking restrictions. Local governments could also amend their zoning application forms to ask an applicant to proactively assert whether the Act applies, so planning staff can review the grounds for that claim. In any event, local governments should contact their attorneys to evaluate how the Act might affect areas served by public transit.

Post Authored by Daniel J. Bolin, Ancel Glink

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