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FOIA Challenger Denied Award of Attorney’s Fees and Penalties

By , March 22, 2023November 22nd, 2023News, The Extra Mile Newsletter

In Edgar County Watchdogs v. Joliet Township, a government oversight organization submitted a FOIA request to a township for a copy of a specific hard drive. The township responded that it lacked the in-house capability to copy the hard drive and sent the organization a $350 invoice prior to disclosing the requested records on an external hard drive, claiming that an outside IT company would need to copy the hard drive. The organization then sued the township for allegedly violating FOIA. After a hearing at which the requester’s attorneys indicated that they were merely seeking a copy of all documents on a specific hard drive, the court ordered the township to provide copies of all documents stored on the hard drive.  The requester then sought the award of attorney’s fees, costs, and civil penalties.

Under Section 11(i) of FOIA, a requestor who prevails in a FOIA lawsuit is entitled to attorneys’ fees and costs. As interpreted by the courts, such fees are only recoverable if, among other requirements, the requestor’s lawsuit was reasonably necessary to obtain the requested documents. Therefore, fees are not recoverable when a lawsuit serves to merely clarify or amend a FOIA request, because such clarification or amendment could occur without filing a lawsuit. The court found no dispute that the township wanted to produce the records on the hard drive. However, the township believed that the request included not just the records on the hard drive but also metadata, which required outside expertise to copy and disclose. Consequently, the court found that the organization could have made a reasonable attempt to clarify its request and avoided the lawsuit altogether.

Similarly, the organization was not entitled to civil penalties because the township did not willfully, intentionally, or in bad faith withhold the records. While no provision of FOIA expressly allowed the township to request the $350 charge, the township’s request was not made for a dishonest purpose and, therefore, did not amount to bad faith.  As a result, the organization was not entitled to civil penalties.

This case serves as a reminder that FOIA requesters can seek attorneys’ fees, costs, and civil penalties from public bodies.  It also demonstrates that courts often consider whether a public body has been reasonable in its handling of FOIA requests.  The court here seemed to reward the township for its willingness to produce the records, and as such, did not award fees and penalties to the requester.

Source: Edgar County Watchdogs, et al., v. Joliet Township, 2023 IL App (3d) 210520