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Thursday, January 7, 2016

Attorneys' Fees Awarded Under FOIA Even Where Public Body Voluntarily Turns Over Records

We have reported previously on court cases that have interpreted the attorneys' fee provision in the FOIA statute for prevailing parties. In 2012, the Second District Appellate Court interpreted that provision in FOIA to require a public body to pay attorneys fees to a plaintiff only where the plaintiff prevailed in court - in other words, the court required nothing less than "court-ordered relief" in order for a party to obtain an attorneys fee award.  In 2014, the First District Appellate Court disagreed with the Second District's interpretation, finding that even where the public body voluntarily turns over the records to the plaintiff, the public body could still be responsible for the plaintiff's attorneys fees.  

As we noted in our blog post about these cases, this later ruling is a troubling one because it appears to impose a policy that punishes a public body even where it does the right thing - i.e., turns over records during litigation. We urged legislative action to clarify this issue, but unfortunately no action has been taken.  

Just last week, the Fifth District Appellate Court adopted the First District's interpretation, finding a public body responsible for the plaintiff's attorneys fees even where the public body turned over the records while litigation was pending.  Perdue v. Village of Tower Hill.  In this case, the appellate court held that no court order is required  for a plaintiff to prevail in a FOIA suit. Instead, a plaintiff may be entitled to attorneys' fees if the requester obtains the records after filing suit even without the court ordering the release. 

One interesting distinction between this case and the First District case is that the trial court in Perdue had awarded only about one-third of the requested attorneys' fees. The appellate court upheld this fee award as "reasonable," based on the Village's early attempts to try to resolve certain issues with the plaintiff which could have reduced litigation costs. The court also noted that the plaintiff only obtained about half of the records he originally requested, also supporting a lesser attorney fee award.

Unfortunately, this ruling, as well as the earlier First District holding, do little to encourage a public body to voluntarily release records after a complaint has been filed. 

Post Authored by Julie Tappendorf


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