In two recent cases, Illinois courts provided guidance on when a party is a “prevailing party” under the Illinois Freedom of Information Act (FOIA) for purposes of obtaining attorney’s fees and whether a public body is required to create new records or answer a requester’s questions about records in response to a FOIA request. In Uptown People’s Law Center v. Department of Corrections, the Illinois Appellate Court held that a party can “prevail” under FOIA, even if there is no court ordered relief, if a proceeding commenced by the party leads the government to produce records. In Chicago Tribune Co v. Department of Financial and Professional and Regulation, the Illinois Appellate Court held that the FOIA does not require a public body to perform a review of its public records and prepare a tally of information for a requester that is not already contained in an existing document. These cases have important implications for public bodies responding to FOIA requests. First, whereas public bodies were previously incentivized to turn over records after a lawsuit had been filed to avoid an attorney’s fees award, after Uptown that incentive is gone. This may unnecessarily increase litigation over FOIA issues once a lawsuit has been filed. Second, with respect to creation of new records, the Chicago Tribune Co. case reinforces that the FOIA is not intended to require public bodies to create new records or answer a requester’s questions about records to comply with requests. A full summary of these two cases follows.
In Uptown, the Uptown People’s Law Center (UPLC), a not-for-profit organization that represents prisoners, sued the Illinois Department of Corrections (IDOC) for attorney’s fees, alleging that the IDOC failed to provide UPLC records in violation of FOIA. After Uptown filed suit but before the court could rule on the issue, IDOC released the requested documents to UPLC. IDOC relied on the 2012 Illinois Appellate Court’s holding in Rock River Times v. Rockford Public School District and which held that to be a “prevailing party” entitled to attorney’s fees under FOIA there must be court ordered relief. IDOC argued that UPLC could not receive attorney’s fees because IDOC released the records before any court ordered relief. The trial court agreed with IDOC and dismissed the case as moot.
On appeal, the Appellate Court found that Rock River was wrongly decided and held that UPLC was entitled to attorney’s fees. The court held that recent amendments to the FOIA were intended to make it easier for parties to obtain attorney’s fees, and that a party need not obtain judicial relief in order to “prevail” for purposes of an award of attorney’s fees.
In Chicago Tribune Co., the Tribune sued the Department of Financial and Professional and Regulation (DFPR), claiming that DFPR violated the FOIA by not responding to the Tribune’s requests for the number of complaints filed against physicians licensed by DFPR. DFPR had responded to the request by stating that it is not required to prepare new records to respond to a FOIA request and that it does not maintain records with the information sought in the ordinary course of business. A lawsuit followed, and the trial court found in favor of the Tribune.
On appeal, the Illinois Appellate Court reversed the trial court’s ruling. The Court found that the Tribune was asking that DFPR review its files, tally the number of complaints filed against physicians, and create new records that were not already in existence or maintained by DFPR in order to answer the requester’s question. The court reiterated that the FOIA requires that an entity provide access to public records already in existence, but does not require an entity to create records it did not maintain or answer questions from a FOIA requester.