New Law Creates Additional Fines for FOIA Violations

Author: William C. Westfall

July 21, 2016

Earlier this week, Governor Rauner signed two bills collectively known as “Molly’s Law.”  The bills are seemingly unrelated with regard to topic, but developed as a result of a terrible set of facts. Essentially, this new law extends the statute of limitations for wrongful death suits and amends possible fines for FOIA violations. The law becomes effective on January 1, 2017.

Regarding wrongful death suits, the law extends the time in which to file a claim from 2 years to 5 years. As it relates to the FOIA violations, and in addition to other penalties previously provided, the law allows a judge to impose per diem violations against the public body in the amount of $1,000, if three conditions are met:

  • the public body fails to comply with a court order after 30 days;
  • the court’s order is not on appeal or stayed; and
  • the court does not grant the public body additional time to comply with the courts order to disclose the record.

Further, there is a separate and distinct issue addressed in the new law concerning the “willful and intentional” nature of a public body’s failure to comply with FOIA. Specifically, the new law creates a rebuttable presumption that the public body willfully and intentionally failed to comply with FOIA if:

  • the attorney general issued a binding opinion pursuant to section 9.5;
  • the public body did not file for administrative review of the binding opinion within 35 days after the binding opinion is served on the public body; and
  • the public body does not comply with the binding opinion within 35 days after the binding opinion is served on the public body.

The relationship between “Molly’s Law” and these binding opinions came after the attorney general’s office issued a Public Access Counselor (PAC) opinion finding that the Illinois State Police improperly denied Molly’s father access to her post-mortem photographs. For more information on this PAC opinion, please see our March article.

In short, the potential for liability as it relates to FOIA violations is increasing. As such, public bodies need to educate themselves, constantly stay apprised of PAC opinions, and consult with their attorneys when questions arise.