Another Illinois Appellate District Finds Voluntary Release of FOIA Records After Suit is Filed Will Not Avoid the Award of Attorneys Fees to the Requester

Section 11(i) of the FOIA provides “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 attorneys’ fees and costs.” In Perdue v. Village of Tower Hill, the Fifth District of the Illinois Appellate Court was charged with interpreting that section of the FOIA to determine whether attorneys’ fees are available when the public body voluntarily produces the records without a court order but after the requester has filed suit. That court joined the First District (and disagreed with the Second District) to find that a court order is not required for a plaintiff to be a prevailing party and thus obtain attorneys’ fees in a FOIA dispute.

In Perdue, a requester sought 11 years of records pertaining to bills and disbursements of funds between the Village and its attorney. The Village attempted to confer with the requester to clarify the definition of the term “disbursements” and to narrow the scope of the request. The requester failed to respond and the Village denied the request as unduly burdensome. The requester then brought suit against the Village.

Prior to the commencement of trial, the Village and the requester agreed that the Village would release six years of billing records rather than 11. The requester then sought $17,000 in attorneys’ fees. The trial court awarded the requester $6,500 in attorneys’ fees, because only a portion of the records sought were released, such records were released by agreement, and the fact that litigation could have been resolved in less time, resulting in lower legal fees. Both parties appealed the trial court’s award.

On review, the Fifth District Appellate Court reviewed Section 11(i) of the FOIA, which was amended in 2010, to determine whether the requester had “prevailed” and was therefore entitled to attorneys’ fees. In 2001, the United States Supreme Court (in a non-FOIA case) found that “prevailing party” status required a judicially sanctioned change in the relative positions of the parties, and that voluntary compliance by the defendant was insufficient. Thereafter, Congress amended the federal FOIA to avoid the effect of the Supreme Court’s decision, legislating that a complainant substantially prevails when relief is obtained through a judicial order or a voluntary change of position by the agency. The Illinois FOIA was later amended to require that attorneys’ fees be awarded to a requester who prevails, as opposed to “substantially prevails”; but the amendment did not define or explain the term “prevails.”

Prior to the amendment, Illinois courts had awarded attorneys’ fees in FOIA cases based on an agency’s voluntary production of records without a court order. After the amendment, the Second District Appellate Court found that the legislature changed the standard, requiring a court order to obtain attorneys’ fees. The First District Appellate Court, reviewing the legislative history, came to the opposite conclusion (See our previous alerts on the Second District and First District opinions.). In this case, the Fifth District joined the First in deciding that attorneys’ fees are available when an agency voluntarily releases records without a court order after suit has been filed. The court was persuaded by the legislative history, which it interpreted to expand rather than restrict the instances where a requester could obtain fees, as well as the purpose of the FOIA to further the philosophy of open government and public participation by providing public records as expediently and efficiently as possible.

The Fifth District also approved the trial court’s reduction of attorneys’ fees from $17,000 to $6,500. Section 11(i) of the FOIA provides for “reasonable” attorneys’ fees and instructs the court to consider the degree of relief obtained relative to the relief sought. In light of the fact that the Village reached out to the requester before the suit was filed and the requester chose to sue rather than work out an agreement, thus delaying resolution and increasing his costs, and that the requester obtained six rather than 11 years of records in the settlement, the court found the reduction in fees reasonable.

This opinion provides guidance as well as caution to public bodies that attorneys’ fees may be awarded in FOIA cases where records are turned over after a law suit is filed, even if done so voluntarily. The case also shows the importance of attempting to resolve issues with a requester before a suit is filed, as such actions may lead to a decrease in any attorney’s fee award granted.