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Monday, March 3, 2014

Appellate Courts Disagree on FOIA Attorneys Fee Provision

In Uptown People's Law Center v. Dept. of Corrections, 2014 IL App (1st) 130161, the First Appellate District of Illinois rejected the Second District's interpretation of the "prevailing party" provision under FOIA that required court-ordered relief for an award of attorneys fees. This could set the issue up for the Illinois Supreme Court, if this case is appealed. 

The facts are not terribly important but they do set up the controversy.  Uptown requested certain documents from IDOC under FOIA. Uptown sued, claiming that IDOC failed to turn over the records. During the lawsuit, IDOC turned over the documents.  Uptown then filed a petition for attorneys fees under section 11 of FOIA that provides that a "prevailing party" is entitled to an award of attorneys fees. IDOC argued that Uptown had not prevailed because IDOC turned over the records before a court issued an order compelling it to do so. 

The trial court agreed with IDOC and denied fees to Uptown, relying on a Second District case, Rock River Times v. Rockford Public Sch. Dist., 2012 IL App (2d) 110879 (we previously reported in this blog here). In Rock River Times, the court interpreted the prevailing party language of FOIA to apply only if a court ordered relief, not if the public body turned over the records during litigation. In that case, like here, the records were turned over before the court issued a ruling. 

The First District acknowledged the Rock River Times ruling, but found that that Second District "wrongly decided" that case.  In the First District's opinion, the legislature modified the FOIA statute in 2010 to make it easier for plaintiffs to obtain attorneys fees against public bodies. So, according to the Uptown court, "prevails" does not require judicial relief.  Ultimately, the Uptown court did not award attorneys fees against IDOC because Uptown was represented by salaried employees, and did not expend additional funds for outside attorneys.

The First District's interpretation of "prevailing party" is likely to cause a great many problems for public bodies, and in my opinion, does no great favors to people who file FOIA requests either.  

With the 2012 Rock River Times ruling, public bodies were encouraged to turn over records during litigation to avoid a large attorneys fee award.  That benefits the public body by avoiding a large attorneys fee award. It benefits the plaintiff because he or she gets the records sooner. It benefits the judicial system, because it puts an end to costly and time-consuming litigation. And, it benefits the public as a whole (taxpayers) because they won't be responsible for paying a plaintiff's attorneys fees.

With this most recent Uptown ruling, however, a public body might decide to take its chances in litigation rather than turn over the records early if it is going to be responsible for paying attorneys fees even for voluntary compliance.  The plaintiff may wait months or even years to obtain the records. 

Stepping on my soapbox:  Certainly, we want our public bodies to do the right thing and comply with FOIA requests in a timely and appropriate manner.  But, imposing a policy that "punishes" the public body even when it does the right thing a little late by turning over the records during litigation is not good for anyone. There are other penalties that can be used to "punish" the public body who delays releasing records, such as the penalty imposed on the public body in the Rock River Times case.  

Post Authored by Julie Tappendorf, Ancel Glink


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