School Avoids Attorneys Fees But Not $2,500 Penalty in FOIA Case
Yesterday, the Second District Appellate Court denied a newspaper’s request for attorneys’ fees under the Illinois FOIA but granted the newspaper’s request for a civil penalty against a school district that initially refused to release a letter in response to the newspaper’s FOIA request. Rock River Times v. Rockford Public School District, 2012 IL App (2d) 1108798 (October 3, 2012).
The dispute involved a newspaper’s request for a copy of a letter written by a school principal in response to a reprimand by the superintendent, referred to as the “rebuttal letter.” Initially, the school cited two exemptions in denying the newspaper’s FOIA request: (1) “personal privacy” and (2) the Personnel Record Review Act. In accordance with the requirements of FOIA at that time, the school sent a letter to the PAC requesting permission to deny based on “personal privacy.” The PAC denied the pre-authorization request, but the school continued to rely on the second claimed exemption. The newspaper filed an appeal, and the PAC concluded that the second exemption also did not apply. When the school subsequently claimed a third exemption (adjudication of an employee grievance or disciplinary case), the newspaper filed a lawsuit.
While the case was pending in the trial court, the school released the rebuttal letter to the newspaper and filed a motion to dismiss the newspaper’s case based on mootness. The newspaper responded with a request for award of attorneys’ fees and a civil penalty against the school. The trial court first looked at the statutory attorneys’ fee provision that had been recently amended to state that if the requester “prevails in a proceeding under this Section, the court shall award such person reasonable attorneys’ fees and costs.” Previously, the language had stated that a court “may award” fees if the requester “substantially prevails.” In this case, the court found that the newspaper was not entitled to attorneys’ fees because it had not achieved “judicially sanctioned relief. However, the court did impose a penalty of $2,500 against the school because the school asserted a third exemption once its original position was found to be incorrect. According to the trial court, the “continued withholding” of the rebuttal letter by the school constituted a willful and intentional violation of the FOIA, justifying the imposition of a civil penalty.
The appellate court affirmed the trial court on both the denial of the newspaper’s attorneys’ fees and the imposition of the civil penalty against the school.
First, the appellate court determined that FOIA requires nothing less than court-ordered relief in order for a party to be entitled to attorneys fees under FOIA. Because the school had released the rebuttal letter before the court ordered any relief, the newspaper was not a prevailing party under FOIA.
Second, the court interpreted FOIA to require the imposition of a penalty for a willful and intentional failure to comply with FOIA. In this case, in raising a third exemption after the first two were rejected by the PAC, the school did not act in good faith, and the civil penalty was justified.
Based on this ruling, a public body might avoid an attorneys’ fee award if it releases the requested records prior to an adverse court ruling. However, that action may not avoid the imposition of a civil penalty, which at a minimum will set the public body back $2,500.
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