Court Clarifies FOIA Fees: Technical Costs Can Be Recouped Without Penalty

This month’s column discusses the Third district Appellate Court case of Edgar County Watchdogs v. Joliet Township, 2023 IL App (3d) 210520 (Ill. App. 2023) affirming the trial court’s finding that the Township did not willfully, intentionally and in bad faith fail to comply with a Freedom of Information Act (FOIA) request to duplicate a hard drive when the Township merely attempted to recoup costs from the requesting party in order to do so.

In Edgar County Watchdogs, Plaintiff requested a copy of the hard drive contents of a specific computer owned by the Township. Plaintiff claimed to qualify as both media and non-profit under the FOIA request and stated that the request was not for personal or commercial benefit. Township employees lacked the experience to copy the hard drive, so the Township obtained a quote from an IT firm. Accordingly, the Township sent an invoice to Plaintiff for $350 for two hours of IT firm work at $150 per hour and $50 for a 500GB external hard drive. In response, Plaintiff inquired as to what statutory authority the Township relied upon in order to demand such fees. The Township did not respond, and Plaintiff filed suit claiming that the Township violated FOIA for failure to produce the requested records and alleging that the Township “willfully and intentionally” failed to comply with FOIA.

                   Fees For Production Of Documents Under A FOIA Request

Under the FOIA, a public body “is obligated to make its public records available for inspection and copying.” Martinez v. Cook County State’s Attorney’s Office, 2018 IL App (1st) 163153. “The purpose of FOIA is to open governmental records to the light of public scrutiny.” Id.

Section 6 of the FOIA addresses fees that a public body may charge for producing documents pursuant to a FOIA request:

“(a) When a person requests a copy of a record maintained in an electronic format, the public body shall furnish it in the electronic format specified by the requester, if feasible. If it is not feasible to furnish the public records in the specified electronic format, then the public body shall furnish it in the format in which it is maintained by the public body, or in paper format at the option of the requester. A public body may charge the requester for the actual cost of purchasing the recording medium, whether disc, diskette, tape, or other medium. If a request is not a request for a commercial purpose or a voluminous request, a public body may not charge the requester for the costs of any search for and review of the records or other personnel costs associated with reproducing the records. Except to the extent that the General Assembly expressly provides, statutory fees applicable to copies of public records when furnished in a paper format shall not be applicable to those records when furnished in an electronic format.

….

(b) Except when a fee is otherwise fixed by statute, each public body may charge fees reasonably calculated to reimburse its actual cost for reproducing and certifying public records and for the use, by any person, of the equipment of the public body to copy records. *** In calculating its actual cost for reproducing records or for the use of the equipment of the public body to reproduce records, a public body shall not include the costs of any search for and review of the records or other personnel costs associated with reproducing the records, except for commercial requests as provided in subsection (f) of this Section. Such fees shall be imposed according to a standard scale of fees, established and made public by the body imposing them. The cost for certifying a record shall not exceed $1.

….

(d) The imposition of a fee not consistent with subsections 6(a) and (b) of this Act constitutes a denial of access to public records for the purposes of judicial review.” Id. § 6(a)-(b), (d).

An individual denied access to a public record may file suit for injunctive and other relief. Id. Should they prevail, the party is entitled to reasonable attorney fees and other relief. Id. If it is determined that the public entity acted “willfully and intentionally” in its failure to comply with FOIA, the court may even impose civil penalties. Id.

Motions For Summary Judgment

Both parties filed motions for summary judgment in the trial court. Plaintiff argued that the records were properly requested and should be immediately released. The Township asserted that its employees did not have the expertise to copy the hard drive, and it should be permitted to recoup the costs of bringing in an outside IT company to do so. The trial court believed that the Township had acted in good faith in its attempt to produce such documents and questioned whether Plaintiff was actually seeking the operating system programs and metadata stored on the hard drive or simply the documents contained on the hard drive.

The specific FOIA request was seeking “the contents of the hard drive”, not necessarily a duplicate hard drive including operating system programs and metadata. The trial court interpreted “the contents of the hard drive” to mean copies of all documents stored on the computer – Meta data need not be reproduced. Therefore, the trial court ordered the Township to copy the documents and send them to Plaintiff within 28 days. The court felt that the request was simply seeking the copying of the documents, and Township employees should be capable of producing such documents. Production of such documents should not require the technical expertise of an outside IT firm. Therefore, the Township cannot demand fees to respond to the request.

Pursuant to the trial court’s order, the Township produced copies of the documents stored on the hard drive rather than producing a duplicate hard drive. Thereafter, Plaintiff filed a petition for fees, expenses and civil penalties in excess of $20,000 against the Township for having to pursue the matter in court. The Township contended that it did not violate FOIA and that Plaintiff ultimately did not prevail in their FOIA action as the hard drive was not required to be produced. The trial court found that the FOIA request was vague, and Plaintiff failed to further clarify what Plaintiff was actually seeking – a duplicate hard drive with metadata or simply the documents stored on the hard drive. The trial court denied Plaintiff any fees, finding that Plaintiff could have made a reasonable attempt to clarify the request to the Township in lieu of filing the lawsuit.

Appellate Court Affirms Trial Court’s Denial Of Fees And Penalties

The Appellate Court first addressed the issue of attorney fees and costs under the abuse of discretion standard. “An abuse of discretion exists where no reasonable person would agree with the position of the trial court.” Brax v. Kennedy, 363 Ill. App. 3d 343, 355 (2005). In 2010, Section 11(i) of the FOIA was amended to replace the word “may” with the word “shall” to address fees as follows: “If a person seeking the right to inspect or receive a copy of a public record prevails in a proceeding under this Section, the court shall award such person reasonable attorneys’ fees and costs.” 5 ILCS 140/11(i) (West 2010). Changing the language to “shall” required the court to award reasonable attorney fees and costs to a plaintiff who prevails under a FOIA action. The amendment also removed the language requiring a public entity lack any reasonable basis for the denial of the request. Id.

While the 2010 amendment appeared to be more favorable to Plaintiffs prevailing under FOIA requests, the amendment was not intended to “open the floodgates for any litigant—meritorious or not—to receive attorney fees.” Donley v. City of Springfield, 2022 IL App (4th) 210378. The amendment may have removed the question of entitlement regarding attorney fees, a question of eligibility remained. Id.

Eligibility for Attorney Fees and Costs Under FOIA

For a Plaintiff to obtain fees and costs under the current version of the FOIA, the following four requirements must be met:

(1) Plaintiff must file a lawsuit against the public entity;

(2) the public body ultimately produced the documents;

(3) the lawsuit caused the production of the documents; and

(4) the lawsuit was reasonably necessary to obtain those documents.

Donley, 2022 IL App (4th) 210378.

In this case, Plaintiff met the first three requirements. However, the trial court found the lawsuit “unnecessary” and that it could have reasonably been avoided had Plaintiff simply clarified the request. Therefore, the lawsuit was not reasonably necessary to obtain the documents, and Plaintiff did not meet the fourth requirement. The trial court properly denied the request for fees and cost.

Civil Penalties Under FOIA

Lastly, the Appellate Court addressed the trial court’s denial of civil penalties due to the Township’s demand of $350 as a “willful, intentional and bad faith” violation of FOIA. Under Section 11(j) of the FOIA (5 ILCS 140/11(j) (West 2020)), plaintiffs are entitled to civil penalties if they can show a public body willfully, intentionally, and in bad faith failed to comply with the FOIA. Williams v. Bruscato, 2021 IL App (2d) 190971. “To warrant the imposition of a civil penalty under section 11(j), the public body not only must have intentionally failed to comply with the FOIA but must have done so deliberately, by design, and with a dishonest purpose.” Id.

The Township had the authority to charge $50 for the external hard drive pursuant to Section 6(a) of the FOIA as “actual costs of purchasing the recording medium”. 5 ILCS 140/6(a) (West 2020). Courts have ruled that a public body cannot charge more than the cost of the electronic recording device when a FOIA requester seeks electronic records. Sage Information Services v. Suhr, 2014 IL App (2d) 130708. However, when interpreting Section 6 of the FOIA the Appellate Court found as follows:

“In drafting section 6 of the FOIA, the legislature seemed to presume that no costs would be borne by a public body in responding to a FOIA request other than the cost of purchasing a recording medium because the public body’s “personnel” would be able to “reproduce the records” requested. See 5 ILCS 140/6(a) (West 2020). Here, where the Township’s personnel lacked the expertise to produce what the Township believed plaintiffs were requesting, a copy of the hard drive itself, the Township sought to pass on the costs it incurred in responding to plaintiffs’ request to plaintiffs, the requester. While no provision of the FOIA expressly allowed the Township to request such fees from plaintiffs, the Township’s request was not made for a dishonest purpose and, therefore, did not amount to bad faith. See Williams, 2021 IL App (2d) 190971. The Township merely attempted to recoup its costs from the party requesting the information, rather than passing on those costs to Township taxpayers.” Edgar County Watchdogs, 2023 IL App (3d) 210520 (Ill. App. 2023).

Accordingly, the Appellate Court agreed with the trial court’s finding that the Township did not act willfully, intentionally and in bad faith.  The judgment of the trial court denying Plaintiff fees and penalties was affirmed.