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Tuesday, November 22, 2022

Bill Would Add a Definition for "Prevail" for FOIA's Attorneys' Fee Provision

The General Assembly recently introduced HB 5820, which proposes to amend section 11(i) of the Freedom of Information Act (FOIA) to add a definition of the word “prevail” for purposes of awarding attorneys fees to a prevailing party who challenges a FOIA decision by a public body. If passed, a plaintiff would be deemed to have "prevailed" in a FOIA lawsuit if it either (1) obtains a court order requiring the public body to turn over the records to the plaintiff or (2) receives all requested records from the public body.  

Currently, FOIA section 11(i) does not define the word “prevail,” but merely provides that: 

If a person seeking the right to inspect or receive a copy of a public record prevails in a proceeding under this Section, the court shall award such person reasonable attorney's fees and costs.

In a prior blog post, we discussed the current Illinois Appellate Court split as to when a plaintiff is considered to have “prevailed” in a FOIA lawsuit to trigger FOIA’s attorneys’ fee provision. The First, Fourth, and Fifth District Appellate Courts hold that a court order is not required to trigger FOIA’s attorneys' fee provision, meaning a plaintiff could "prevail" in their FOIA lawsuit even if the public body provides the records while litigation is pending. On the other hand, the Second District Appellate Court holds that a plaintiff is entitled to attorneys' fees only if there is a court order in the plaintiff's favor in the FOIA lawsuit. Under the Second District approach, even if requested records are provided to a plaintiff while the FOIA lawsuit is pending, a plaintiff will not have "prevailed" for purposes of FOIA's attorneys' fee provision.

If HB 5820 is enacted, a plaintiff would have “prevailed” for purposes of triggering FOIA’s attorneys’ fee provisions if the plaintiff either obtains a court order in plaintiff’s favor or receives all requested records from a public body. 

Post Authored by Eugene Bolotnikov, Ancel Glink


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