This week Governor Rauner signed a bill amending the Freedom of Information Act to increase the possible penalties for a FOIA violation. This amendment makes it easier for courts to hold that a public body intentionally violated FOIA, which increases the likelihood that a public body will be subject to penalties. Public Act 99-0586 will take effect on January 1, 2017.
Under the amendment, if the Attorney General issues a binding FOIA opinion against a public body, there will be a rebuttable presumption that the public body “willfully and intentionally” failed to comply with FOIA if the public body does not either comply with the opinion or file a court action to challenge the opinion within 35 days. The presumption of an intentional and willful violation may be rebutted if the public body shows it made a good faith effort to comply with the AG’s binding opinion but that compliance within 35 days was not possible. Willful and intentional violations of FOIA are subject to penalties of $2,500-$5,000 per violation.
Also under the amendment, a court may now impose an additional penalty of up to $1,000 for each day a willful and intentional violation continues if: a) the public body fails to comply with the court’s order after 30 days; b) the court’s order is not appealed or stayed; and c) the court does not grant the public body additional time to comply with the court’s order to disclose public records.