FOIA Plaintiffs Can Be Awarded Attorney’s Fees When the Public Agency Voluntarily Produces Documents after Suit is Filed
A recent appellate court decision highlights the need for public agencies to timely respond to FOIA requests. In Uptown v. Dept. of Corrections, 2014 IL App (1st) 130131 the court held that the entry of a court order in favor of a requestor for public records is not a prerequisite for being awarded attorney’s fees.
In November 2011, Uptown, a not-for-profit organization that represents prisoners regarding conditions of confinement, made three separate FOIA requests to the Illinois Department of Corrections (IDOC), all of which received no response. Uptown filed suit against the IDOC seeking a declaratory judgment that IDOC had violated FOIA, an order to force IDOC to release the records it had requested, and an award of attorney fees. Uptown subsequently filed a petition for attorney fees. In November 2012, a full year after the original requests, IDOC tendered all requested documents to the plaintiff. The trial court had not yet ruled on the merits of plaintiff’s complaint.
Uptown filed an amended fee petition arguing that an order compelling disclosure was not required in order to “prevail” in a manner consistent with FOIA language. IDOC argued the complaint was moot because the IDOC had provided all requested records and that Uptown had not actually prevailed. The trial court agreed with IDOC and dismissed the case as moot, satisfied that IDOC had eventually cooperated with the FOIA request “of its own accord without an order by the court.” The appellate court reversed finding that an order for relief is not required.
The appellate court noted that effective January 1, 2010, section 11(i) of FOIA was amended to state as follows: “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. The Uptown court disagreed with a decision from the Second District that had held a court order granting relief is required in order to be awarded attorney’s fees. (Rock River Times v. Rockford Pub. School Dist. 205, 2012 IL App (2d) 110879). In rejecting Rock River, the Uptown court determined that Section 11(i) is intended to ensure successful plaintiffs can obtain attorney fees regardless of the extent to which they prevail, no matter how slight. Moreover, the 2010 amendments to Section 11 were meant to increase the instances in which a plaintiff obtains attorney’s fees after receiving a requested document, not to decrease those instances.
Uptown allows plaintiffs to prevail and be awarded attorney’s fees under FOIA without a court order granting relief on the merits. Public agencies must endeavor to process FOIA requests in a timely manner and to raise objections/exemptions timely. Public bodies that ignore or delay responding to FOIA requests until requestors file suit risk being assessed the requestor’s attorney’s fees. At this time, it is unclear whether the Fourth District Appellate Court would follow the reasoning in Rock River or Uptown. Play it safe: timely respond to FOIA requests.
* Allen Yow is a partner at the law firm of Rammelkamp Bradney, P.C. where he concentrates in school law, family law, municipal law, and trial practice/ligitation.