The Illinois Fourth District Appellate Court recently found in Uptown People’s Law Center v. The Department of Corrections that a unit of local government was required to pay attorney’s fees for failing to produce Freedom of Information Act (FOIA) requested documents, even if the requested documents were produced prior to a court order requiring them to be provided. The Second District (most of Chicagoland and northern Illinois outside of Cook County) had reached the opposite conclusion recently in Rock River Times v. Rockford Public School District 205, making the issue highly uncertain going forward.
In Uptown, Uptown had submitted a FOIA request to the Department of Corrections seeking various documents. The Department of Corrections failed to tender the documents until two months after Uptown had filed a complaint against the Department seeking a declaratory judgment for the request and an award of attorney’s fees. Despite the Department having tendered the requested documents in the interim, Uptown maintained its request for attorney’s fees from the Department, pursuant to the Illinois Freedom of Information Act, 5 ILCS 140/11(i):
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 attorneys’ fees and costs.
The issue for the Fourth Circuit to decide was whether a court order was necessary in order for a party to prevail on a FOIA request. The Department argued that because the documents had already been tendered prior to the issuance of a court order, Uptown had not in fact prevailed as required by Section 11 (this was the Rock River Times holding).
The Fourth District specifically took difference with the Second District and found that a court order is not necessary in order for a party seeking FOIA compliance to have been deemed to prevail. The court found that to hold otherwise, there would be no incentive for a unit of local government to comply with a FOIA request until a complaint was filed by the requestor. At that time, the unit of local government could then comply (after forcing the requestor to incur legal fees) and suffer no adverse consequences.
Because two appellate districts have reached contrary conclusions on the issue, the Illinois Supreme Court will likely need to resolve the issue of whether the Illinois legislature intended that a party is entitled to attorney’s fees absent court-ordered relief. We will keep you posted on any new developments on this issue.
PRACTICE POINT: Nothing changes the fundamental need for local governments to continue to properly respond to FOIA requests and doing so makes the issue of attorney’s fees moot. However, Rock River should not be relied upon as a solid basis of immunity.
Author: Timothy J. Clifton