Who Should Pay Legal Fees After a FOIA Fight?

A series of FOIA requests initiated by Illinois media outlets are the basis for Senate Bill 1514, which would “allow citizens and the media to recover attorney fees when prevailing in Freedom of Information Act (FOIA) disputes that are not determined in court,” according to the Rock River Times, one of the newspapers cited in the legislation.

The bill is currently awaiting a full Senate floor vote.

From the Rock River Times:

Attorney fees already are recoverable when the outcome of a FOIA lawsuit is decided by a judge. But some public officials have circumvented that provision by releasing information before a judge is able to make a ruling.

“It seems like settling out of court would be a good thing,” said Josh Sharp, director of government relations for the IPA. “But some officials have used the court system to delay the release of public documents, which can rack up huge legal fees for citizens requesting the information. Then, by releasing the documents before final adjudication, the officials avoid having to pay any of those fees.”

Sharp pointed to The Rock River Times’ efforts in 2010 to get Rockford Public School District 205 to release an unflattering letter written by former Rockford Auburn High School Principal Patrick Hardy. The school district seemed determined to hide the incriminating document. The Rock River Times and the IPA filed a lawsuit that took months and thousands of dollars to progress through the courts. Then, the school district finally released the letter — on a Wednesday evening before a Thanksgiving weekend (when the district thought no one would be paying attention to the news).

The Rock River Times and the IPA were declared victorious in court Aug. 18, 2011. The lawsuit was the first test of the state’s new FOIA, which went into effect Jan. 1, 2010. The school district was assessed Illinois’ first-ever fine for their willful disregard of the FOIA. But because a judge did not have to order the release of the document, the reporter, the newspaper and the IPA were not able to recover any legal fees.

“This is a case where the FOIA requestor clearly prevailed,” Sharp said. “Anytime the requestor prevails, he should be able to seek reimbursement of legal fees. The offender should not be able to game the system to avoid legal fees and delay the release of public documents. It’s a loophole that needs to be filled.”

The IPA, in Springfield, Ill., represents the interests of nearly 500 daily and weekly newspapers. The Rock River Times has been a member of the association since March 2004.