After a police department failed to respond to a news agency’s FOIA request, the
requester filed a lawsuit. Although the department
produced its responsive records during the litigation, the requester filed a
petition for civil penalties against the department pursuant to Section 11(j)
of FOIA, which states that:

If
the court determines that a public body willfully and intentionally failed to
comply with this Act, or otherwise acted in bad faith, the court
shall also impose upon the public body a civil penalty of not less than $2,500
nor more than $5,000 for each occurrence. 5 ILCS 140/11(j).

After
an evidentiary hearing, the circuit court found that the department had
willfully and intentionally violated FOIA because it had knowledge of FOIA’s
response requirements and did not to demonstrate a good reason for
non-compliance with those requirements. However, relying on prior Illinois
cases that required a requester to demonstrate both (1) a willful and
intentional violation of FOIA, and (2) that the FOIA violation was deliberate,
by design, and done with a dishonest purpose, the circuit court ruled that the
requester was not entitled to civil penalties, because the requester did not prove
that the department had a dishonest purpose when violating FOIA.

After
the requester appealed the circuit court’s ruling, an Illinois Appellate Court (First District) reversed the circuit court’s denial of civil penalties, and sent the case back to the circuit court to determine appropriate civil penalties. Lucy
Parsons Labs v. Chicago Police Department. The Appellate Court determined
that the “or otherwise acted in bad faith” language in Section 11(j) is a
catch-all category of possible bad faith actions that a public body can take in
violation of FOIA. In other words, the examples of bad faith conduct included
in Section 11(j) of FOIA—willful and intentional noncompliance—is an
illustrative example of bad faith conduct rather than an exhaustive list. The Appellate Court reasoned that interpreting Section 11(j) of FOIA to require
demonstrating that a public body “willfully, intentionally, and in bad
faith failed to comply with the FOIA” supplants the catchall term, and replaces
it with the conjunctive “and,” which imposes a higher standard of proof to
demonstrate bad faith non-compliance with FOIA, and eliminates the possibility
that a “willful and intentional” violation of FOIA could, by itself, warrant
civil penalties. In this case, because the circuit court found that the
department intentionally and willfully violated FOIA, the Appellate Court ruled
that the circuit court’s order finding that the requester had not met its
burden of proof for the imposition of civil penalties against the department
was against the manifest weight of the evidence.

Post Authored by Eugene Bolotnikov, Ancel Glink