Court Finds Immunity for City's Paramedic Actions Under EMS Act

Court Finds Immunity for City's Paramedic Actions Under EMS Act

  Thursday, December 31, 2020    Julie Tappendorf

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An Illinois Appellate Court recently rejected a lawsuit filed against a City relating to EMS services. Gary v. City of Calumet City. 

In 2014, a woman suffered an asthma attack and was treated by City paramedics after her mother called 911. The woman passed away 10 days later, and her mother sued the City claiming the paramedics acted willfully and wantonly in treating her. The Court disagreed, finding in favor of the City under the Emergency Medical Services Systems Act which provides immunity from civil liability when emergency medical services are provided in good faith, except in cases of willful and wanton misconduct. The Court did not find that the paramedics actions rose to the level of willful and wanton misconduct and, therefore, the City was immune from liability in this action.

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Court Dismisses Land Use Claims

Court Dismisses Land Use Claims

  Wednesday, December 30, 2020    Julie Tappendorf

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An Illinois Appellate Court recently upheld the dismissal of a complaint against a municipality, finding that the landowner had no lawfully vested right and that his regulatory takings claim was precluded by a claim that had already been litigated in federal court. Storey v. City of Alton.

In 1999, Michael Storey bought property in Alton in order to develop it into a mobile home development. The property was annexed into the City by a 1986 pre-annexation agreement. Storey claims the annexation agreement provided for rezoning of the land to allow for the placement of manufactured homes and that he would be entitled to subdivide the property.

Storey sought to subdivide the property and submitted a request to the City for approval in 2008, which the City denied, at least in part because the available water supply did not meet fire safety standards. Five years later, Storey submitted two proposed plats of subdivision , but the City notified him that they were defective due to various problems and omissions related to the application.

After the City’s denial of the proposed subdivision, Storey filed a lawsuit against the City in federal court claiming that the City had used its position to prevent him from subdividing his property under false pretenses, and that the City continuously cited him for ordinance violations while allowing his neighbors to violate the same City ordinances. The federal court ruled in favor of the City, finding that Storey's equal protection and state law claims were brought too late and were barred by the statute of limitations. The federal court also found that law enforcement officials are entitled to a great deal of discretion in how they choose to prosecute offenses, so it rejected Storey's equal protection claim that every ordinance violation or criminal act has to be prosecuted. Storey appealed to the Seventh Circuit, which upheld the federal court’s decision. On June 11, 2018, the United States Supreme Court refused to hear his appeal.

A year later, Storey filed a complaint in state court, based on the same factual allegations. The trial court dismissed that complaint and Storey appealed.

On appeal, the Appellate Court also ruled in the City’s favor. The Court reasoned that because there was currently no proposed plat pending with the City for the development of his property, his request for an order to approve a plat (mandamus relief) was not ripe for review and any opinion by the court would be advisory at best. The Court also found that the mandamus action was time barred.

In addition, the Court rejected Storey's argument that his regulatory takings claim was different from the equal protection claim he had brought in federal court, finding that the underlying transaction or events for each of the claims were identical—both claims sought to challenge the City’s denial of his proposed subdivision plat based on the lack of a water supply to the property. As a result, the Court held that Storey could not relitigate the same issue in state court that he had lost in the federal court.

Post Authored by Rain Montero & Julie Tappendorf, Ancel Glink

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PAC Issues Binding Opinion on FOIA and Police Report Involving Juvenile Victim

PAC Issues Binding Opinion on FOIA and Police Report Involving Juvenile Victim

  Tuesday, December 29, 2020    Julie Tappendorf

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The PAC issued its eighth binding opinion for 2020 finding a public body in violation of FOIA for withholding a police report involving a juvenile victim in PAC Op. 2020-08. 

In September, an attorney submitted a FOIA request to a Sheriff’s Office seeking a police report involving the alleged sexual assault of a minor. The attorney submitted the FOIA request on behalf of his client (the minor’s father) for a civil matter. The Sheriff’s Office denied the request citing FOIA section 7(1)(a), claiming the report was specifically prohibited from disclosure by the Juvenile Court Act of 1987 (JCA). After the attorney submitted an appeal with the PAC office of the Attorney General contesting the denial, the PAC issued a binding opinion finding that the Sheriff’s Office violated FOIA by improperly withholding the responsive report. 

The PAC rejected the Sheriff’s Office conclusory assertion that reports involving minors are entirely exempt from disclosure. The PAC noted that the Sheriff's Office's denial lacked the detailed factual and legal basis necessary to withhold the report under FOIA section 7(1)(a). In addition, the report concerned an alleged crime committed by an adult against a minor so it did not qualify as a “juvenile law enforcement record” as defined in the JCA because the report did not relate to a juvenile committing or suspected of committing an offense. Since the JCA does not prohibit disclosing police reports regarding a minor who is an alleged victim (unless the suspect or perpetrator is also a juvenile), the PAC concluded that the report was improperly withheld from disclosure. 

The Sheriff's Office did not raise a privacy exemption for the records pertaining to a juvenile victim, maybe because the attorney for the minor's father was the requester. However, public bodies might want to keep that exemption in mind (i.e., section 7(1)(c) of FOIA) when they receive a FOIA request asking for records pertaining to a juvenile victim.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Access to Candidate Nominating Petitions

Access to Candidate Nominating Petitions

  Monday, December 28, 2020    Julie Tappendorf

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This year is a local election cycle for many Illinois units of local government, and many candidates for local office filed their nominating petitions and other candidacy paperwork last week. A question was recently raised regarding access to candidate nominating petitions and filings, and whether the exemptions under FOIA apply to certain information within those filings.

Cerrtainly, nominating petitions and candidacy papers are public records under FOIA. As a result, there may be certain information within those documents that could be considered exempt from FOIA, such as signatures and home addresses. The problem with redacting petition signers signatures and home addresses before providing these records is that this type of redaction could conceal the very information a person might need to determine whether a candidate complied with the requirements of the Election Code for his or her candidacy. For example, if a potential objector could not view the petition signers signatures, how could the objector determine whether the signatures matched voter records? Similarly, how could an objector determine whether a candidate was a resident if the candidate's home address was redacted?

Section 10-7 of the Illinois Election Code includes a provision that requires local election officials to provide access to these candidacy filings for this reason (see below). Because of the very short time-frame for filing an objection to a candidacy's filing and to ensure that access meets the purpose of the objection process to confirm a candidate's eligibility to run for office, it is recommended that local election officials provide persons with prompt access to candidacy papers, without making any redactions to those papers. 

All certificates of nomination and nomination papers when presented or filed shall be open, under proper regulation, to public inspection, and the State Board of Elections and the several election authorities and local election officials having charge of nomination papers shall preserve the same in their respective offices not less than 6 months.

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County Dispatch Services Protected by Tort Immunity Act

County Dispatch Services Protected by Tort Immunity Act

  Tuesday, December 22, 2020    Julie Tappendorf

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An Illinois Appellate Court recently held that a county and its employees had immunity from liability in a case brought by the husband of a woman who died after driving under the influence of alcohol. Schultz v. St. Clair County.

Plaintiff sued the County, a 9-1-1 agency, the ETSB, and an unnamed dispatcher claiming they were responsible for his wife's death. According to the complaint, the plaintiff had called 9-1-1 to report that his wife was under the influence of alcohol and asking police to prevent her from driving her vehicle. He claims the dispatcher refused to call police to his wife's location which he claims led to her death that evening. Defendants filed a motion to dismiss the case, arguing that the Tort Immunity Act protected the defendants from liability. Specifically, Section 4-102 provides as follows:

Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals.

The trial court dismissed the case and plaintiff appealed.

The Appellate Court first noted that Section 4-102 had been previously interpreted by the Illinois Supreme Court to provide immunity where dispatch services are called upon to dispatch police in response to a request for services and the police do not respond. Applying that case to the plaintiff's claims, the Appellate Court found the defendants to be immune from liability under Section 4-102. The Court also rejected plaintiff's argument that the Emergency Telephone Systems Act imposes liability or responsibility for dispatch services, finding the Tort Immunity Act to be clear on the applicable immunities. 

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Court Upholds City's Denial of PSEBA Benefits in Training Exercise

Court Upholds City's Denial of PSEBA Benefits in Training Exercise

  Monday, December 21, 2020    Julie Tappendorf

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An Illinois Appellate Court recently ruled in favor of a municipality in a challenge to the City's decision denying PSEBA benefits to a firefighter. Heneghan v. City of Evanston

A City firefighter was injured during a live fire training exercise. He applied for and was approved for an on-duty disability pension for his injuries sustained during the training exercise. He also applied for benefits under the Public Safety Employee Benefits Act (PSEBA) which provides health insurance benefits for public safety officers who suffer catastrophic injuries incurred under specified statutory circumstances. The City denied PSEBA benefits finding that although the injury met the first part of the Act (i.e., it was a "catastrophic injury"), it did not satisfy the second part of the Act - in this particular case, the City found that the injury was not occurred "in response to what was reasonably believed to be an emergency." 

The firefighter sued, and the trial court upheld the City's decision to deny PSEBA benefits. On appeal, the Appellate Court also ruled in the City's favor. The Court rejected the plaintiff's argument that the live fire exercise itself was the emergency and that any resulting injury satisfied the second part of the Act, finding that to be an overly broad reading of previous cases interpreting the Act. The fire itself was not the emergency, and instead the act leading to the injury must qualify as an emergency. In this case, plaintiff's fall was not due to any emergency as the emergency situation involved in this case (the failure of equipment) had been resolved before plaintiff was injured. As a result, the City's finding that plaintiff was not responding to an emergency when he was injured was not a mistake, and the City's denial of PSEBA benefits was not clearly erroneous. 

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Election Law Prohibiting "Ballot Selfies" Upheld as Constitutional

Election Law Prohibiting "Ballot Selfies" Upheld as Constitutional

  Friday, December 18, 2020    Julie Tappendorf

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An Illinois Appellate Court recently upheld as constitutional Section 29-9 of the Illinois Election Code (prohibiting photographs of a completed ballot) against a challenge that it violated the First Amendment right to free speech. Oettle v. Guthrie, 2020 IL App (5th) 190306.

On November 6, 2018, Oettle went to her assigned polling place to cast her vote. She asked one of the election judges if she could take a "ballot selfie" with her completed ballot and was told no because this practice was against Illinois law. She did not take the photograph but did file a lawsuit against various election officials and the State Board of Elections challenging the constitutionality of the law as a violation of her First Amendment right to free speech. The trial court dismissed the case, and she appealed.

On appeal, the Appellate Court reviewed the statute that has been interpreted to prohibit the taking of photographs of completed ballots. Section 29-9 of the Election Code states as follows: 

Section 29-9. Unlawful observation of voting. Except as permitted by this Code, any person who knowingly marks his ballot or casts his vote on a voting machine or voting device so that it can be observed by another person, and any person who knowingly observes another person lawfully marking a ballot or lawfully casting his vote on a voting machine or voting device, shall be guilty of a Class 4 felony.

The Court noted that this provision has been been interpreted to make it unlawful to take a photograph of a completed ballot. The Court determined that the restriction did not limit a voter's access to a ballot or limit the voter's choice in voting. Instead, the purpose of the statute was to protect ballot security and restrict an outsider's access to viewing a voter's completed ballot, important protections for voters to ensure that voters are able to voter their conscience free from coercion, influence, or bribery in furtherance of the system of democracy. The Court also acknowledged that allowing "ballot selfies" could lead to delays and disorganization at the polls. In short, the statute was a reasonable restriction and the trial court properly dismissed the plaintiff's First Amendment challenge.

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Governor Extends Tier 3 Mitigations Through January 9th

Governor Extends Tier 3 Mitigations Through January 9th

  Tuesday, December 15, 2020    Julie Tappendorf

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On Friday, Illinois Governor Pritzker issued another disaster declaration dated December 11, 2020, regarding the COVID-19 pandemic. The December declaration is pretty consistent with the November declaration, including the Governor's finding that in-person attendance of more than ten people at a regular meeting location of a meeting subject to the Open Meetings Act is not feasible. 

The Governor also issued EO 2020-74 re-issuing many of the previous executive orders pertaining to the COVID-19 pandemic, including extending EO 2020-73 which imposed Tier 3 mitigation measures throughout the state until January 9, 2020. You can read the new EO here. 

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Court Reverses Firefighter Pension Board’s Decision Terminating Disability Payments

Court Reverses Firefighter Pension Board’s Decision Terminating Disability Payments

  Thursday, December 10, 2020    Julie Tappendorf

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 In Pagorek v. Board of Trustees of the City of Harvey's Firefighter Pension Fund, the Illinois Appellate Court overturned a pension fund board’s decision that had found a firefighter was no longer disabled  and did not qualify for a disability pension.

Pagorek was hired as a firefighter in 1997. In January 2005, he slipped and fell and experienced severe lower back and leg pain. Pagorek filed an application for a disability pension in November 2005. After medical evaluation, doctors concluded Pagorek could not lift loads greater than 120 pounds or carry loads greater than 100 pounds, which was required by firefighters. The pension board granted Pagorek a non-duty disability pension after a finding that he was "permanently, medically disabled."

Under the Illinois Pension Code, firefighters who are under 50 years of age who receive disability benefits are required to undergo annual medical examinations to "verify continuance of disability." In a 2017 examination, a pension board-selected doctor found that, although Pagorek was experiencing mild pain, he was no longer disabled to the point of requiring disability payments. Pagorek sought his own medical opinion from two other doctors that contradicted the board's doctor.

During a board hearing to evaluate Pagorek's disability eligibility, Pagorek stated that he had not sought physical therapy for his condition because he was uninsured for most of the time between 2007 to 2017 although he had worked two jobs while receiving disability benefits. Pagorek's counsel argued that the board's medical expert was "extremely biased" after testimony found she represented insurers and employers 99% of the time during similar proceedings. Based on the pension board's medical expert's opinion, the board terminated Pagorek's disability benefits. 

Pagorek then filed a lawsuit and the circuit court upheld the pension board's decision. However, on appeal, the appellate court found that the pension board's decision, based on one doctor's medical opinion concluding Pagorek could return to full duty, was against the manifest weight of the evidence. The board's doctor had opined that Pagorek's pain did not affect his daily life, allowing him to get physically demanding jobs. However, the court found these conclusions contradicted other medical evaluations and Pagorek's overall physical condition. Pagorek testified he could not perform daily activities like picking up his kids or bending and twisting his back without pain. Further, Pagorek's position as a satellite dish installer only required him to occasionally lift 30 lbs. satellite dishes and 50 lbs. ladders, which were far lighter than the required 120 lbs. of lifting needed as an active duty firefighter. As a result, the reviewing court reversed the board's decision that had terminated Pagorek's disability pension.

Post Authored by Mike Halpin & Julie Tappendorf, Ancel Glink

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Appellate Court Upholds Village of Deerfield's Assault Weapon Ban

Appellate Court Upholds Village of Deerfield's Assault Weapon Ban

  Wednesday, December 09, 2020    Julie Tappendorf

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An Illinois Appellate Court recently issued a ruling in favor of the Village of Deerfield on a challenge to its assault weapon and large magazine ban. Easterday v. Village of Deerfield.

In 2013, the Village of Deerfield passed an ordinance regulating the storage and transportation of assault weapons in the Village. The ordinance did not ban these weapons, however. The ordinance was adopted pursuant to the Village's home rule powers and was intended to fall under a state law enacted in 2013 that provided a window for municipalities to ban assault weapons. According to the appellate court ruling, the Village was not ready to impose a total ban on assault weapons but wanted to preserve the right to do so in the future through an amendment to this 2013 ordinance.

In 2018, the Village adopted two ordinances amending the village code to prohibit the possession, manufacture, transfer, transport, storage, or keeping of any assault weapon or large capacity magazine. The Village provided a 60 day grace period for persons to come into compliance with the new ordinance.

Shortly after the ordinances were adopted, Easterday and Guns Save Life sued the Village to challenge the ordinances. These two cases were consolidated. The lawsuits brought a variety of legal challenges to the assault weapon ban, including that it was preempted by state law and was an unconstitutional "taking," among other claims.

In 2019, the trial court issued an injunction prohibiting the Village from enforcing the ordinances. We wrote about that ruling on the blog here. The court determined that the ordinances were preempted by the FOID Card Act and the Concealed Carry Act (both state laws). 

The Village appealed, and the First District Appellate Court issued its ruling on December 4, 2020. 

After addressing a number of jurisdictional and procedural issues, the Appellate Court addressed the preemption argument under the FOID Card Act. Deerfield argued that the FOID Act expressly authorized municipalities to regulate assault weapons under the following language in section 13.1(c): 

(c) Notwithstanding subsection (a) of this Section, the regulation of the possession or ownership of assault weapons are exclusive powers and functions of this State. Any ordinance or regulation, or portion of that ordinance or regulation, that purports to regulate the possession or ownership of assault weapons in a manner that is inconsistent with this Act, shall be invalid unless the ordinance or regulation is enacted on, before, or within 10 days after the effective date of this amendatory Act of the 98th General Assembly. Any ordinance or regulation described in this subsection (c) enacted more than 10 days after the effective date of this amendatory Act of the 98th General Assembly is invalid. An ordinance enacted on, before, or within 10 days after the effective date of this amendatory Act of the 98th General Assembly may be amended. The enactment or amendment of ordinances under this subsection (c) are subject to the submission requirements of Section 13.3. For the purposes of this subsection, ‘assault weapons’ means firearms designated by either make or model or by a test or list of cosmetic features that cumulatively would place the firearm into a definition of ‘assault weapon’ under the ordinance.

According to Deerfield, any home rule unit that regulated assault weapons within the window specified in section 13.1(c) will retain their concurrent regulatory power. Deerfield argued that it had retained that authority when it adopted its initial ordinance regulating the storage of assault weapons in 2013. The Appellate Court agreed with the Village, finding that the legislature had reserved certain powers to home rule units as a "hybrid" regulatory scheme. As a result, the Appellate Court found the trial court had erred in ruling against the Village on this preemption issue because the Village had preserved its rights to regulate assault weapons when it adopted the 2013 initial ordinance.

On the issue of the Village's ban on large capacity magazines, however, the Appellate Court found that the Village was preempted by the FOID Card Act and the Concealed Carry Act to the extent that the ban regulates ammunition for handguns.

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Supreme Court Rules in Favor of Religious Uses in COVID Case

Supreme Court Rules in Favor of Religious Uses in COVID Case

  Tuesday, December 08, 2020    Julie Tappendorf

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As many of you are all ready aware, the U.S. Supreme Court issued a ruling the day before Thanksgiving regarding a challenge to New York Governor Cuomo's executive order restricting attendance at places of worship to address the spread of the virus that has caused the COVID-19 pandemic. Roman Catholic Diocese of Brooklyn et al v. Governor Cuomo. 

The challenge had been brought by two places of worship located in areas that, at the time of the lawsuit filing, were located in "orange" zones that limited places of worship to 10 persons. The Supreme Court's decision was 5 to 4 in favor of the religious institutions that had filed the lawsuit, although the opinion itself contained multiple concurrences and dissents. The main focus of the opinion was the majority's view that the Governor's order treated religious uses less favorably than non-religious uses. For example, the Court noted that big box stores and grocery stores in the orange zones could allow hundreds of people to shop but religious institutions were limited to 10 persons in those same zones. 

The Supreme Court's opinion on COVID restrictions and their impact on religious exercise certainly seems to have shifted from where the Court was just a few months ago. As we reported previously on this blog, the Supreme Court denied Elim Romanian Church's appeal of a Seventh Circuit ruling involving a challenge to Illinois Governor Pritzker's restrictions on religious services, finding the challenge moot. Elim Romanian Church et al. v. Pritzker. The Supreme Court had also upheld California's restrictions on places of worship, finding that California had a compelling government interest in protecting the health and safety of residents and that the state had not treated places of worship less favorably than comparable assembly uses. South Bay Pentecostal Church v. Governor Newsom. In its more recent case, the Court seems to expand on what it considers "comparable" uses for purposes of determining whether religious uses are treated less favorably.

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Court Dismisses Church's First Amendment Claims against Village

Court Dismisses Church's First Amendment Claims against Village

  Monday, December 07, 2020    Julie Tappendorf

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Our friends at the Law of the Land blog recently reported on a federal district case from Illinois that may be of interest to our readers.

In Word Seed Church v Village of Homewood, IL, 2020 WL 6719030 (ND IL. 11/16/2020), a church had sued the Village of Homewood challenging the Village's zoning ordinance because it allegedly impeded the church's ability to establish a place of worship in the Village because the zoning ordinance required a special use permit to operate in any zoning district within the Village. The Village responded that the church did not have "standing" to sue the Village because its claims were speculative and because the church did not own property within the Village that would be subject to the ordinance. As a result, the church had not suffered any injury or damages because of the zoning ordinance. The district court agreed with the Village and dismissed the case, finding that the church had not shown how the zoning ordinance violated their right to free religious exercise where the alleged harm was not caused by the Village's zoning ordinance. Any damages that may have been suffered by the church were caused by the seller backing out of the sale of the property to the church and not because of the zoning ordinance. 

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New Podcast Released - Social Media Workshop

New Podcast Released - Social Media Workshop

  Thursday, December 03, 2020    Julie Tappendorf

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Ancel Glink's Quorum Forum podcast just released Episode 47: IAMMA Social Media Workshop! A description of this podcast is below and you can listen to the podcast on the Quorum Forum website here.

Quorum Forum Episode 47:  IAMMA Social Media Workshop!

How do the First Amendment and other laws apply to local government employees on social media? Ancel Glink Attorneys Matt DiCianni and Dan Bolin talk about it at the Illinois Association of Municipal Management Assistants (IAMMA) Social Media Workshop, discussing what agencies can do about their employees’ personal social media use and the importance of implementing a social media policy. 

How have the pandemic, civil unrest, and elections affected your employees on social media? Email us at podcast@ancelglink.com!

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Court Analyzes Subsidiary Body Factors Under FOIA

Court Analyzes Subsidiary Body Factors Under FOIA

  Wednesday, December 02, 2020    Julie Tappendorf

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In 2014, the Better Government Association (BGA) made FOIA requests to the Metropolitan Pier and Exposition Authority (MPEA) and Navy Pier, Inc. (NPI) seeking records relating to the operation of Navy Pier. While MPEA supplied some responsive records and indicated that certain other responsive records did not exist, NPI denied the request entirely claiming that it was not a public body subject to FOIA. The BGA sued MPEA and NPI, alleging FOIA violations. The trial court held that MPEA was required to produce public records in NPI’s possession that related to its services to MPEA because NPI performed a governmental function on the MPEA's behalf and the records requested directly related to that governmental function under FOIA section 7(2). However, the trial court determined that NPI was not a subsidiary public body of MPEA, so it was not directly subject to FOIA. 

On appeal, the appellate court agreed with the trial court in Better Gov't Ass'n v. Metro. Pier & Exposition Auth. & Navy Pier.

First, the appellate court determined that because NPI fulfills the duties the state legislature assigned by statute to the MPEA concerning Navy Pier, and the NPI records at issue directly related to NPI’s performance of a governmental function of behalf of MPEA, NPI performs a governmental function on behalf of MPEA. That means that MPEA was required to disclose the requested records directly related to that governmental function in NPI’s possession, and the appellate court ruled in favor of BGA on this particular argument. 

However, the appellate court rejected BGA's argument that NPI was a subsidiary body under FOIA that would require NPI to comply with FOIA as a general rule. The appellate court applied the four factors established by the Illinois Supreme Court case for determining when a particular entity was considered a "subsidiary body" that would be subject to FOIA. Here, the appellate court concluded that NPI was not a subsidiary body of MPEA. Specifically, the appellate court determined that NPI was a formally independent corporation with a separate legal identity from MPEA and MPEA did not maintain operational control over NPI. Also, since most of NPI's funds for daily operations were raised without MPEA's assistance and MPEA’s capital contributions primarily improved the value of MPEA’s property and did not fund NPI’s operations, MPEA’s contributions were not construed as publicly funding NPI. Additionally, while NPI performs a governmental function on the MPEA's behalf, that factor alone does not outweigh the other factors indicating that NPI did not operate as a subsidiary of MPEA. Contrary to BGA’s argument, whether NPI asserted tort immunity in past lawsuits does not amount to an admission regarding NPI being subject to governmental control by MPEA. 

Post Authored by Eugene Bolotnikov, Ancel Glink

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Court Overturns Civil Penalty Award in FOIA Case

Court Overturns Civil Penalty Award in FOIA Case

  Tuesday, December 01, 2020    Julie Tappendorf

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In Peery v. Madison Cty. State's Attorney's Office, an Illinois Appellate Court overturned an order that imposed civil penalties against a public body under FOIA for failing to disclose certain misplaced records because the evidence did not suggest the records were withheld intentionally, willfully, or otherwise in bad faith.

This case arose from four separate FOIA requests submitted to the Madison County State's Attorney's Office (SAO) in 2016. The SAO provided certain records, but redacted some of them based on applicable FOIA exemptions. The requester then sued the SAO, claiming the SAO violated FOIA in responding to his four FOIA requests. The court determined that the SAO ultimately did comply with FOIA in responding to the requests, but nevertheless awarded civil penalties of $2,500 to the requestor after determining that the SAO willfully and intentionally failed to comply with FOIA, or otherwise acted in bad faith, when it initially misplaced certain responsive records. The SAO appealed, arguing that the trial court erroneously awarded civil penalties to the requester because the evidence did not support a finding of a willful, intentional, or bad faith violation of FOIA. 

On appeal, the Appellate Court determined there was no evidence that the SAO intentionally withheld letters, and once the SAO located the misplaced records, it immediately released the misplaced documents to the requestor, demonstrating good faith effort on the SAO's part to comply with FOIA. As a result, the Appellate Court overturned the award of civil penalties to the requester.

Post Authored by Eugene Bolotnikov, Ancel Glink

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