The Appellate Court of Illinois recently held that a requester under the Illinois Freedom of Information Act is entitled to attorney fees arising from a FOIA lawsuit if the public body produces the requested records after the requester files suit, even in the absence of a court order requiring production.

In Perdue v. Village of Tower Hill, 2015 IL App (5th) 140357-U, James Perdue submitted a FOIA request to the Village of Tower Hill, requesting that the Village produce 11 years of attorney contracts, billings, and disbursements. The Village suggested that Perdue narrow his request, but Perdue did not respond. The Village then denied the request as unduly burdensome. Perdue filed a petition for judicial review in circuit court, and the Village ultimately agreed to release six years of the records to Perdue.

Perdue filed a motion seeking attorney fees and costs, claiming he had paid about $17,000 to attorneys since submitting his FOIA request. The court awarded Perdue $6,500 in fees, reasoning that only a portion of the records requested were produced and that, had Perdue worked with the Village to narrow his request, the litigation could have been resolved earlier.

On appeal, Perdue argued he was entitled to all $17,000 in attorney fees because he “prevailed” in his FOIA suit, even though he did not obtain a court order requiring the Village to release the records. The appellate court held that “in order to ‘prevail’ in a FOIA suit, a court order is not required and a requester may be entitled to attorney fees if the requester prevails by obtaining the records after filing a suit.”

In this case, the parties came to an agreement to limit the request from 11 years of records to six years of records only after Perdue filed suit. Therefore, Perdue “prevailed” in the FOIA suit and was entitled to attorney fees.

This case clarifies the definition of a “prevailing party” in FOIA lawsuits in light of FOIA’s recent amendments and conflicting appellate court decisions interpreting the amendments.

Although this case holds a FOIA requester does not need a court order to obtain an attorney fee award, public bodies may point to other factors during the course of litigation to reduce the award, such as the requestor’s refusal to narrow a burdensome request.

FOIA issues continue to grow in complexity and create increased school district financial risk. Contact Steve Richart or Heather Brickman with your FOIA inquiries.