By: Brittany Flaherty Theis

In October 2012, the Second District Appellate Court of Illinois issued its opinion in Rock River Times and McGehee v. Rockford Public School District 205. The court’s decision deals primarily with a petition for attorney fees and the imposition of a civil penalty under the Freedom of Information Act (“FOIA”). After reviewing the legislative history of the attorney fee provision of the FOIA, the court held the plaintiff did not prevail and, therefore, was not entitled to attorney fees. However, the court found the school district had willfully and intentionally failed to comply with FOIA and imposed a $2,500 civil penalty.

Rock River demonstrates the importance of fully addressing all applicable FOIA exemptions in the initial response to a FOIA request, and shedds light on the difficulty in utilizing the attorney fees provision to obtain fees in FOIA cases. Public bodies should thoroughly review each FOIA request and determine any and ALL applicable FOIA exemptions at the outset. Each of those exemptions should be expressed in an initial denial letter.

In Rock River, a school principal wrote a rebuttal to a separation of employment letter sent to him by the superintendent. A local newspaper requested a copy of the rebuttal, pursuant to FOIA. The school district advised the newspaper of its intent to deny disclosure pursuant to two exemptions – Section 7(1)(c) based on personal privacy and Section 7.5(q) based on the Personnel Record Review Act. That same day, the school sent a preauthorization request to the Public Access Counselor (“PAC”) indicating its intent to deny disclosure under these two exemptions. Eventually, the PAC addressed both exemptions and found that neither was applicable to the rebuttal.

The Illinois Press Association sent the school a letter asking it to reconsider the denial. In response, the school claimed a third exemption under FOIA – Section 7(1)(n), which exempts records relating to a public body’s adjudication of an employee grievance or a disciplinary case. The newspaper did not wait for the PAC’s response to its request for review. Rather, the newspaper filed a complaint against the school in court.

Only after the newspaper filed its suit did the school release the rebuttal letter, after which it filed a motion to dismiss the case as moot. The newspaper requested that the court deny the motion to dismiss so that it could file a petition for attorney fees and the imposition of a civil penalty under FOIA. The lower court determined the newspaper was not entitled to attorney fees, but it did impose a civil penalty. Both the school and the newspaper appealed, but the appellate court affirmed.

Attorney Fees
To determine whether to award attorney fees, the appellate court reviewed the history of the attorney fee provision. The court explained that while the original Illinois FOIA mimicked the federal FOIA (which awards attorney fees if a person seeking the right to inspect or receive public documents substantially prevails in a court proceeding pursuant to the Act), the 2010 amendment to the Illinois FOIA demonstrated the legislature’s intent to award attorney fees only where the plaintiff prevails. Prior to this amendment, substantially prevails was considered broad enough to encompass a plaintiff who succeeded without court involvement (the catalyst theory). The legislature was presumed to have known the prior interpretations and intended deletion of the word substantially to effect a change in the law. Here, the newspaper had not achieved “judicially sanctioned relief.” For those reasons, the newspaper failed in its argument that filing suit caused the school to change its position so attorney fees should be awarded.

Although the newspaper’s petition for attorney fees was not successful, it is important to note another aspect of the 2010 amendments. The legislature removed the court’s discretion to award attorney fees and mandated that fees be awarded when the person seeking records prevails. The legislature did so by changing the provision from “may award such person reasonable attorneys’ fees and costs” to “shall award such person reasonable attorneys’ fees and costs.” Therefore, when a plaintiff prevails, the court must award attorney fees.

Civil Penalty
The court imposed a penalty of $2,500 for the school’s failure to release the rebuttal when it was clear the first two exemptions did not apply (based on the PAC’s opinions and the school’s concessions). Rather than releasing the rebuttal, the school asserted a third exemption. The court explained that “nothing in the FOIA suggested that a public body could continue to assert new bases for nondisclosure of a public record once its original position was found to be incorrect.” There is “no hint” of any provision that a request to reconsider would trigger a new response period. The court found this aspect most troublesome for the school. It also believed that the course of events suggested the school first decided it would not release the rebuttal, and only then began to look for support for that decision. Further, “[i]t was only when the newspaper filed suit that the school was compelled to concede that its position was indefensible.” The court concluded the “continued withholding” after conceding the original two claimed exemptions were inapplicable constituted a willful and intentional violation of FOIA, and its overall conduct reflected a lack of good faith.

While most public bodies genuinely seek to comply with FOIA, skeptics might read the attorney fees portion of this case and note that there is little incentive for a public body, like the one in Rock River, to comply with FOIA until (or unless) there is an action filed against it. However, it would be wise for public bodies to consider the civil penalties imposed upon the school district for its lack of good faith and willful and intentional failure to comply with FOIA provisions. While this may not help the individual facing the option of filing suit or foregoing his interest in documents, time will show whether it will deter public bodies from risking suit rather than withholding documents.

For more information about the Freedom of Information Act or assistance complying with FOIA requests, please contact Whitt Law Attorney Brittany Flaherty Theis.

Rock River Times and Joe McGehee v. Rockford Public School District 205, 2012 IL App (2d) 110879 (Oct. 2012).

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