Tag Archives: Illinois FOIA split

The Illinois appellate courts have recently split on their interpretation of the Illinois legislature’s 2010 amendment to the Freedom of Information Act’s (FOIA) fee-shifting provision that allows “prevailing” requesters to seek payment of their attorney fees from public bodies.  In 2012, the Second District held that the change to the law makes it harder for a requester to get attorney fees, while a 2014 decision by the First District recently found that not only was the change intended to make it easier to get attorney fees, but that the Second District was just plain wrong about the meaning of “prevail.”  So, what does this split about FOIA mean for requesters and public bodies?  Well, it depends…

Remind me what FOIA is again?

Most people think of FOIA as “like, that thing that makes people give you public records, right??”  Of course, if you asked them what they could do if the public body declines to offer up its treasure-trove of documents, you would get a lot of blank stares.

Under the Illinois FOIA, all public records are presumed to be open and accessible –unless they aren’t.  Like most things, there are numerous exceptions to FOIA.  If the public body declines to comply with a FOIA request and the requester thinks they’re wrong, a requester has two options to contest the response:  utilize the Public Access Counselor (through the Attorney General’s office) or file an action in circuit court.  For more information on making and responding to a FOIA request, as well as contesting a FOIA response, click here.

So, if I have to file a lawsuit against a public body to get a document, can I make them pay my attorneys’ fees?  It depends.

If the requester chooses to contest the denial in circuit court, Section 11 of the Illinois FOIA allows requesters to seek attorney fees incurred in circuit court. FOIA now mandates they be awarded if the requester “prevails” in court.  An earlier version of Section 11 made discretionary an award of attorney fees to the requester where they “substantially prevailed” under the “catalyst” theory – i.e., you, the requester, could recover attorneys’ fees despite the fact that a court had not yet rendered a judgment in your favor if the litigation caused the public body to change its position.  The federal FOIA, amended in 2007, explicitly adopted the catalyst theory.  By contrast, the Illinois FOIA, amended in 2010, specifically changed its language to leave out “substantially” before “prevails”, but made the award mandatory by the circuit court (changing “may award” to “shall award”). Read More…