Updates on cases, laws, and other topics of interest to local governments

Subscribe by Email

Enter your Email:
Preview | Powered by FeedBlitz

Subscribe in a Reader

Follow Municipal Minute on Twitter


Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Thursday, October 19, 2023

Appellate Court Upholds Attorneys Fee Award in FOIA Challenge

After a City denied a FOIA request asking for traffic and environmental studies related to a development project, the requestor sued. Two weeks after the requester filed the lawsuit, the City provided the records to the requester. The circuit court held the case was "moot" since the City disclosed the responsive records. However, the court did award the requester attorneys fees, finding that the requestor had “prevailed” in his FOIA case because the City provided the records. On appeal, the City argued that requestor was not entitled to attorney fees and alternatively, that the fee award should be reduced. 

In Kieken v. City of Joliet, the Third District Appellate Court upheld the circuit court's award of attorneys fees. The Third District acknowledged that the Appellate Districts are divided on the issue of when a plaintiff has "prevailed" in a FOIA lawsuit to trigger FOIA’s attorneys' fee provision. The Third District noted that the Second District holds that a plaintiff is entitled to attorneys' fees under 11(i) only if there is a court order in the plaintiff's favor in the FOIA lawsuit. So, if requested records are voluntarily provided by the public body while the lawsuit is still pending, a plaintiff cannot have "prevailed" for purposes of an attorneys' fee award under FOIA. On the other side, the First, Fourth, and Fifth Districts all hold that the attorneys' fee provision in FOIA can be triggered even without a court order, meaning a plaintiff can "prevail" in their FOIA lawsuit even if the public body voluntarily provides the records while litigation is pending.

In this case, the Third District joined the First, Fourth, and Fifth Districts, holding that a court order is not required for a plaintiff to "prevail." The Third District adopted a test requiring a plaintiff to show that: (1) plaintiff filed a lawsuit against a public entity, (2) the entity produced the requested documents, (3) the lawsuit caused the documents’ production, and (4) the lawsuit was reasonably necessary to obtain those documents. In this case, the Third District held that the requestor’s lawsuit was reasonably necessary to obtain the requested documents, and the circuit court did not abuse its discretion in awarding attorneys’ fees to the requestor.

Post Authored by Eugene Bolotnikov, Ancel Glink


Post a Comment