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FOIA Caselaw Update: Fees and Fines

October 17th, 2012

Two recent appellate court decisions have clarified fee provisions of the FOIA.  One matter dealt with what fees a public body may charge in complying with a FOIA request while the second addressed whether a party is entitled to an award of attorney’s fees and the imposition of civil fines upon non-complainant public bodies.

Electronic vs. Paper Record Fees

In Sage Information Services v. Humm 2012 IL App (5th) 110580, the Plaintiff submitted a FOIA request to the Franklin County Assessor requesting an electronic copy of the real property assessment record for the entire county.  The assessor replied that a fee of $1,609.40 would be required representing $0.05 for each parcel in the county as provided in the Property Tax Code.

In ruling that the requested information must be provided for the actual cost of reproduction pursuant to the FOIA, the Fifth District Appellate Court found that the FOIA as amended in 2010 differentiates between fees for electronic and paper records.  Therefore, any statute setting forth a different fee schedule must specifically deal with the type of record requested.  Because the Property Tax Code only provides for additional fees in producing paper records, it was not applicable to the Plaintiff’s request for electronic records.  Notably, the opposite conclusion was reached under the previous version of the FOIA by the Second District Appellate Court in Sage Information Services v. King, 910 N.E.2d 1180 (2nd Dist. 2009).

The second recent FOIA case dealt with the assessment of attorney’s fees for prevailing FOIA requestors and the assessment of civil penalties upon non-compliant public bodies.

Awards of Attorney’s Fees and Civil Penalties

In Rock River Times v. Rockford Public School Dist. 205, 2012 IL App (2d) 110879, the Plaintiff newspaper filed a FOIA request seeking a copy of a letter written by a school principal in response to a reprimand by the superintendent.  The school district asserted two FOIA exemptions but was subsequently informed by the Public Access Counselor (PAC) that the proposed exemptions did not apply. The district’s attorney then became involved and asserted a third exemption to production under the FOIA.  The newspaper filed suit seeking to compel release of the letter.  Shortly after the filing of the lawsuit, the school district released the letter.  The newspaper then sought the imposition of a civil fine and recovery of their attorney’s fees from the school district.

Addressing the attorney’s fees issue, the Second District Appellate Court noted that the FOIA as amended in 2010 changed the language related to recovering attorney’s fees.  While the previous version provided that the court may award attorney’s fees if the plaintiff substantially prevails, it was amended to state that the court shall award attorney’s fees to a person seeking public records who prevails.  See 5 ILCS 140/11.  The Court held that in order for a party to prevail and be awarded attorney’s fees under the new FOIA, that party must have obtained “court ordered relief”.  In this case, because the school district released the letter prior to the Court ordering any relief, the newspaper was not a prevailing party and was not entitled to an award of attorney’s fees.

Pursuant to Section 11(j) of the FOIA, the trial court imposed a $2,500 fine on the school district for willful and intentional failure to comply with the FOIA stemming from their continued assertion of new exemptions subsequent to the PAC’s finding that the initial exemptions did not apply.  The Appellate Court held that this finding by the trial court was to be reviewed under the “manifest weight of the evidence” standard and found the imposition of the fine to be supported by the evidence.  This illustrates the important of involving counsel at the earliest stage of a potential denial of a FOIA request.