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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.

Please contact Heather Brickman or Steve Richart with your FOIA questions.