Victors in FOIA disputes should recover legal fees

• The Rock River Times’ 2010 battle with school district over release of Patrick Hardy letter referenced

Staff Report

SPRINGFIELD, Ill. — The Illinois Press Association (IPA) is urging the passage of 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.

The bill, introduced by state Sen. Daniel Biss, D-Evanston, recently passed out of the Senate Executive Committee on a vote of 14-0. It now heads to the Senate floor for a full vote.

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.”

In his ruling in The Rock River Times’ and the IPA’s case against the school district, Winnebago County Circuit Judge Eugene G. Doherty, said, “The record gives a clear impression that the District understood that it was wrong on all three claimed exemptions, but was looking for a way to save face rather than simply admitting it was wrong and disclosing the document.” He further states: “the entire course of events here strongly suggest that the District first decided that it would not release a document which it did not want to release, and only then did it begin looking for reasons to support a decision it had already made. The invocation of a new (and equally unfounded) basis for exemption after the first reasons had been proven incorrect is an indication of the District’s intransigence. Only when the requesting party filed suit was the District finally compelled to concede that its position was indefensible.”

In praising the ruling, Illinois Attorney General Lisa Madigan said: “This case demonstrates the critical importance of enforceable transparency laws. People have a fundamental right to know how their government conducts itself on their behalf.”

The IPA and The Rock River Times were represented in the FOIA case by Don Craven of Springfield, Ill., legal counsel for the IPA.

Craven said: “This case was a poster child for the imposition of civil penalties. The district was delaying, playing games and exemption shopping. When pushed, they invented a conversation with PAC Cara Smith — a conversation she says never took place — and released the document at 5 p.m. on Thanksgiving Eve, citing, of course, their long-standing policy of open and transparent government. Perhaps writing this check for civil penalties will encourage the district to have a slightly more sincere policy in support of open and transparent government.”

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.

From the April 10-16, 2013, issue

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