07/27/2016

By: Brittany Flaherty Theis

Last week, Governor Rauner signed House Bill 4715, which became Public Act 99-0586 (the “Public Act”). The Public Act amends the Freedom of Information Act (“FOIA”) to allow additional penalties for FOIA violations in cases filed after January 1, 2017, the effective date of the Public Act. The amendments made by the Public Act make it easier for courts to hold that public bodies intentionally violated FOIA and increase the likelihood that civil penalties will be imposed on a public body.

FOIA already provides that a requester may file an action for injunctive or declaratory relief pursuant to FOIA. Under the amendment, there will be a rebuttable presumption that the public body willfully and intentionally failed to comply with FOIA, for purposes of the penalties provided in FOIA, if:

1) the Attorney General has issued a binding opinion;
2) the public body has not filed for administrative review of the binding opinion within 35 days after it was served on the public body; and
3) the public body has not complied with the binding opinion within 35 days after the binding opinion is served on the public body.

The presumption that the public body willfully and intentionally failed to comply may be rebutted by a showing that the public body is making a good faith effort to comply with the binding opinion but compliance was not possible within the 35-day time frame.

Public bodies were previously subject to civil penalties if a court determined that the public body willfully and intentionally failed to comply with FOIA or otherwise acted in bad faith. The civil penalties could be between $2,500 and $5,000 for each occurrence. Now, the Public Act authorizes courts to impose an additional penalty of up to $1,000 for each day the willful and intentional violation continues if:

1) the public body fails to comply with the court’s order after 30 days;
2) the court’s order is not on appeal or stayed; and
3) the court does not grant the public body additional time to comply with the court’s order to disclose public records.

The overwhelming majority of Requests for Review do not result in binding opinions from the Public Access Counselor. However, it is much easier for public bodies to protect their rights under FOIA by consulting their attorney before responding to a Request for Review. If you need assistance with a matter related to FOIA, please contact Whitt Law Attorney Brittany Flaherty Theis.

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