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Tuesday, December 2, 2014

FOIA Bill a Mixed Bag for Public Bodies

House Floor Amendment No. 3 to Senate Bill 2799, introduced on Monday, proposes two amendments to the Illinois Freedom of Information Act.  The first would amend section 7(1)(f) of FOIA to modify the draft records/deliberative process exemption. The second would amend section 11(i) of FOIA to modify the attorneys’ fee provision for prevailing parties.  Although the proposed FOIA amendments were quietly incorporated into a bill initially introduced to amend the Illinois Act on the Aging, they are now getting a lot of attention from transparency advocates and others.   You can read the bill here.

With respect to the proposed changes to 7(1)(f), they don’t seem to offer anything groundbreaking for public bodies. The amendments clarify what a public body can do if a “draft record” is cited publicly by the head of the public body – under the proposed amendment, the public body can still claim the exemption to withhold the record, but would need to release that portion of the record that was publicly cited.  The amendments also state that records that qualify under this exemption remain exempt even after the record was adopted or incorporated into a final decision.  That last part may require further explanation since a record that is acted on by the public body would likely no longer qualify as a “preliminary” record.  Further clarification on the rationale for the 7(1)(f) amendments would also be helpful.  One positive change for public bodies is that the bill makes it clear that even purely factual material can qualify under the deliberative process exemption - recall the recent PAC opinion where the PAC stated otherwise, reported on yesterday's blog.  

It is the proposed changes to section 11(i) that seem to be of questionable benefit to public bodies.  Currently, there is a circuit court split on whether attorneys’ fees are recoverable if the public body voluntarily produces the records after a lawsuit has been filed.  In the first appellate district, the answer is yes, the requester is still entitled to recover its attorneys’ fees even if the public body voluntarily turns over the records.  The second appellate district held otherwise, however, finding that a requester was not entitled to attorneys’ fees unless the court ordered the public body to turn over the records.  I wrote about these two cases on the blog here.

I have two concerns with the proposed amendments.

First, the bill would mandate payment of attorneys' fees even if the public body voluntarily turns over records after a lawsuit is filed if the court imposes a civil penalty.  While you might think it unlikely that a public body would get hit with a civil penalty if it voluntarily turns over the records, that is exactly what happened in Rock River Times v. Rockford Public School District, 2012 IL App (2d) 1108798 (October 3, 2012).  In that case, the court did not require the school district to pay the newspaper's attorneys' fees.  Under the proposed bill, however, because the court imposed a civil penalty, the district would be mandated to pay attorneys' fees.

Second, the proposed amendment defines "prevailing" to include court-approved settlements and consent decrees.  In my opinion, it seems counterproductive to adopt a law that would seem to discourage public bodies from settling FOIA disputes for fear of having to pay the requester’s attorneys’ fees if it voluntarily provides the records to the requester.  Punishing a public body for settling litigation  doesn't benefit anyone.  Prolonged litigation is costly to taxpayers who will ultimately fund these cases.  And the requester is certainly not going to get the documents any sooner if the case continues in litigation rather than settling.    

What I find interesting is that the press association, Attorney General, and other transparency advocates are avidly opposing this bill.  Maybe I’m missing the benefit to the public body of the proposed changes to section 11(i)?

Post Authored by Julie Tappendorf


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