After a City denied a FOIA request asking for traffic and
environmental studies related to a development project, the requestor sued. Two weeks after the requester filed the lawsuit, the City provided the records to the requester. The circuit court held the case was “moot” since the City disclosed
the responsive records. However, the court did award the requester attorneys fees, finding that the requestor had “prevailed”
in his FOIA case because the City provided the records. On appeal, the City argued that requestor was not entitled to attorney
fees and alternatively, that the fee award should be reduced. 

In Kieken v. City of Joliet, the Third District Appellate Court upheld the circuit court’s award of attorneys fees. The Third District acknowledged that the Appellate Districts
are divided on the issue of when a plaintiff has “prevailed” in a
FOIA lawsuit to trigger FOIA’s attorneys’ fee provision. The Third District
noted that the Second District holds that a plaintiff is entitled to attorneys’
fees under 11(i)
only if there is a court order in the plaintiff’s favor
in the FOIA lawsuit. So, if requested records are voluntarily provided by the public body while the lawsuit
is still pending, a plaintiff cannot have “prevailed” for
purposes of an attorneys’ fee award under FOIA. On the other side, the
First, Fourth, and Fifth Districts all hold that the attorneys’ fee
provision in FOIA can be triggered even without a court order, meaning a plaintiff
can “prevail” in their FOIA lawsuit even if the public body voluntarily provides
the records while litigation is pending.

In this case, the Third District joined the First, Fourth,
and Fifth Districts, holding that a court order is not required for a plaintiff
to “prevail.” The Third District adopted a test requiring a plaintiff to show that: (1)
plaintiff filed a lawsuit against a public entity, (2) the entity produced the
requested documents, (3) the lawsuit caused the documents’ production, and (4)
the lawsuit was reasonably necessary to obtain those documents. In this case, the Third
District held that the requestor’s lawsuit was reasonably necessary to obtain
the requested documents, and the circuit court did not abuse its discretion in
awarding attorneys’ fees to the requestor.

Post Authored by Eugene Bolotnikov, Ancel Glink