[author: Maria Mazza]

In two recent decisions, the Illinois Appellate Court clarified the fees that a public body can charge for copying records pursuant to a Freedom of Information Act (FOIA) request and the circumstances justifying the imposition of attorneys’ fees and penalties against a public body.

In Sage Information Services v. Humm, the Illinois Appellate Court considered a request made pursuant to the FOIA to the chief county assessment officer for “the current real property assessment record file for the entire county…for a copy, on CD or similar electronic media.” Humm agreed to email the requested records upon receipt of the amount of $1,609.40, pursuant to section 9-20 of the Property Tax Code (35 ILCS 200/9-20) which permits the assessor to charge a reasonable fee beyond actual costs for the copying of property records.

The Appellate Court considered Section 6 of the FOIA, which authorizes public bodies to charge fees, and found that the FOIA clearly expresses the intent that public bodies can only charge the cost of the electronic medium. Section 6 of the FOIA provides that with respect to electronic records “[a] public body may charge the requester for the actual cost of purchasing the recording medium. A public body may not charge the requester for the cost of any search for and review of the records or other personnel costs associated with reproducing the records.”

The trial court, which held in favor of the public body, erroneously relied upon the previous version of Section 6, which authorized a fee in excess of the cost of copying paper or electronic records, where another statute so provided, according to the Appellate Court. The Appellate Court held that the current version of Section 6 of the FOIA expressly provides that in the case of electronic records, statutory fees relating to paper copies are not applicable. Thus, the Appellate Court held that the FOIA did not justify the imposition of fees in excess of the cost of the electronic medium used to store the requested records. In so holding, the Appellate Court noted that allowing a substantial fee, such as the one public body attempted to impose, would constitute a restraint on access to information, which would be contrary to the FOIA’s legislative intent.

In Rock River Times v Rockford Public School District 205, a school district denied a newspaper’s request under the FOIA for certain records based on the personal privacy exemption and records prohibited from disclosure under the Personnel Record Review Act.

The PAC reviewed the denial and found that the exemptions were inapplicable. The school district then claimed that the records were exempt because they involved a public body’s adjudication of an employee grievance or disciplinary case. The school district, however, subsequently released the record after the newspaper filed suit to compel release of the record.

At the circuit court level, the newspaper pursued attorneys’ fees. After the PAC’s decision, the school district argued that the newspaper was not entitled to attorneys’ fees because the school district had voluntarily released the letter. The current version of the attorneys’ fees provision contained in Section 11(i) of the FOIA provides that “[i]f 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 attorneys’ fees and costs.” (Emphasis added). Prior to amendments to the FOIA, the attorneys’ fees provisions provided that “[i]f a person seeking the right to inspect or receive a copy of a public record substantially prevails in a proceeding under this Section, the court may award such person reasonable attorneys’ fees and costs.” (Emphasis added).

The Appellate Court noted that prior to the amendment to the FOIA, case law established that the phrase “substantially prevails” applied where the plaintiff succeeded without court involvement. Thus, the Appellate Court interpreted the deletion of the word “substantially” as the legislature’s intent to change the law and require court-ordered relief. Accordingly, the Appellate Court held that the newspaper was not entitled to attorneys’ fees because the school district released the letter prior to an order of relief.

The Appellate Court next considered whether imposing sanctions against the school district was appropriate. Section 11(j) of the FOIA provides that a public body that willfully and intentionally fails to comply with FOIA or acts in bad faith may be subject to a civil penalty of not less than $2,500 or more than $5,000. The Appellate Court found that the school district acted in bad faith by attempting to raise a third exemption, after the first two had been rejected, and by basing its release of the record on an alleged oral opinion of the PAC, that was later contradicted by the PAC.

These cases provide helpful interpretations on amended provisions under the FOIA. The Humm decision makes clear that with respect to electronic records a public body can only charge costs for the electronic medium used. The Rock River Times decision clarifies that an actual court ruling is necessary in order to succeed on a claim for attorneys’ fees under the FOIA, but that civil penalties may still be assessed.