Transparency Without the Tripwires: Avoiding FOIA Litigation Before It Starts

Illinois townships and public entities understand that transparency is part of public service. The Freedom of Information Act exists for an important reason. Citizens have a right to know how public business is being conducted. Public officials should take that obligation seriously, respond promptly, produce public records when required, and document their compliance.

At the same time, recent public filings involving Illinois townships and other public bodies illustrate a growing concern. FOIA requests that begin as transparency inquiries can quickly become fee-shifting litigation if the public body misses a deadline, provides an incomplete response, redacts records without adequate explanation, or fails to include required denial language.

The issue is not whether public bodies must comply with FOIA. They must. The issue is how they can maintain transparency while avoiding unnecessary litigation exposure.

In one recent Kankakee County case, Judiciocracy LLC and the Coalition Opposing Governmental Secrecy sued 17 public bodies, after sending a December 2025 FOIA request seeking attorney bills, engagement agreements, and records identifying attorneys or legal professionals who represented or advised each entity. The complaint alleged, among other things, incomplete productions, insufficient searches, improper redactions, failure to disclose attorney identities, and failure to comply with FOIA’s denial requirements.

A similar Fulton County lawsuit named eight public bodies and followed much the same general structure. The request sought attorney bills, engagement agreements, and records identifying legal professionals. The complaint alleged incomplete responses, summaries instead of invoices, over-redactions, failure to conduct reasonable searches, and failure to provide proper denial language.

Those allegations may or may not ultimately be proven in court. However, the filings provide a useful lesson for all public entities. Requests involving attorney invoices, legal engagements, privilege issues, and redactions should be treated with special care.

The public filings and demand letters reviewed for this article also show the settlement pressure that can follow after suit is filed. In one matter, the post-suit demand letter offered early resolution if the township accepted within seven days, produced documents within fourteen days, and paid fees and costs within thirty days. The demand was $1,367.06, with a warning that fees could increase significantly if the matter was not promptly resolved. The letter also referenced a pre-settlement platform and stated that failure to use the platform would add a $150 paralegal cost to any settlement offer.

In another matter, a demand letter used a similar structure, including a pre-settlement platform, a seven-day acceptance window, a fourteen-day production deadline, and a $1,490.95 settlement demand.

For small public bodies, that creates a difficult practical reality. Even when the entity believes it substantially complied, the cost of litigating may exceed the cost of settlement. A four-figure demand may be less expensive than motion practice, discovery, briefing, and hearings. That does not mean every claim has merit. It means the economics of FOIA litigation can create pressure to resolve claims early, even where a public entity has defenses.

Demand letters in FOIA litigation often cite prior fee awards and civil penalties as evidence of the risk of continued litigation. Public entities should take those warnings seriously, but they should not evaluate risk based solely on the demand letter. FOIA’s fee-shifting provision is real. If a requester prevails, the court shall award reasonable attorney’s fees and costs. FOIA’s penalty provision is also real. If a court determines that a public body willfully and intentionally failed to comply with FOIA, or otherwise acted in bad faith, the court may impose a civil penalty.

At the same time, each FOIA case turns on its own facts. What was requested, when the public body responded, what records were produced, what was withheld or redacted, how the public body explained its decision, and whether the requester can establish entitlement to fees or penalties. When a public entity receives a litigation threat or settlement demand, it should promptly review the underlying FOIA response with counsel, assess whether any deficiencies can be cured, and make an informed decision about whether to settle, supplement the response, or defend the case.

When the public body relies upon part-time officials, limited administrative staff, and no in-house legal department, even an unintentional mistake can become expensive. A late response can become leverage. A vague denial can create avoidable risk. An overbroad redaction can turn a routine records request into litigation. That is why process matters.

Most FOIA requests are, and should be, handled in the first instance by administrative staff. Clerks, supervisors’ offices, and FOIA officers are often well-equipped to process routine requests for minutes, agendas, ordinances, budgets, payroll records, contracts, and other commonly requested documents. There is no need to create a system where every ordinary FOIA request requires attorney review.

However, not every FOIA request is routine. When a request is unusually broad, seeks attorney invoices or legal engagement records, raises privilege or redaction issues, appears to be part of a coordinated request campaign, or comes from a requester with a history of FOIA litigation, public officials should consider involving counsel early. A short legal review before the response deadline expires is often far less expensive than defending a lawsuit over an incomplete production, an unsupported redaction, or a missing denial notice.

What Should Public Entities Do?

First, calendar the deadline immediately. For ordinary, non-commercial FOIA requests, a public body generally must comply with or deny the request within five business days after receipt. FOIA permits a written extension of up to five additional business days for certain statutory reasons, but some requests, including commercial-purpose or voluminous requests, and requests from recurrent requesters, may be subject to different rules. A requester may also agree to additional time. Since the deadline can affect the public entity’s defenses and options, calculate it carefully and involve counsel when there is any doubt.

Second, keep a complete FOIA file. The file should include the request, the date received, the calculated response deadline, any extension notice, all communications with the requester, notes regarding the search, the records produced, and any records withheld or redacted.

Third, search broadly and document the search. A public entity should be able to identify who searched, where they searched, what terms were used, what records were found, and why certain locations were or were not likely to contain responsive records.

Fourth, produce the records requested, not just a substitute summary. If the request asks for attorney invoices, a payment ledger or summary may not be enough. If invoices contain privileged information, redact narrowly and explain the basis for the redaction.

Fifth, treat partial denials like denials. If a public entity withholds or redacts records, the response should cite the specific exemption, provide a factual basis for applying it, identify the person responsible for the denial, and include the appeal/review rights required by FOIA, including review by the Illinois Attorney General’s Public Access Counselor and judicial review.

Sixth, know when to elevate. Routine FOIAs can usually be handled by trained administrative staff. Complex, legalistic, or litigation-prone requests should be reviewed by counsel before the entity responds. That includes requests involving attorney bills, personnel records, law-enforcement records, settlement agreements, privilege issues, extensive redactions, or requesters with a  history of FOIA litigation.

Finally, make timeliness part of the compliance strategy. A public entity that needs more time should use the statutory extension process. A public entity that has no responsive records should say so clearly. A public entity that is producing some records but withholding or redacting others should identify what is being withheld and why. Silence, delay, and vague responses create unnecessary exposure.

The answer to FOIA litigation risk is not secrecy. It is disciplined compliance. Public entities should not ignore FOIA requests, delay responses, or reflexively withhold records. Those mistakes create risk. The better defense is prompt, professional compliance. Meet the deadline, make a real search, produce what must be produced, redact only what the law permits, explain the decision clearly, and involve counsel when the request becomes complex or litigation-prone.

FOIA should promote transparency, not become a toll booth. Public entities can honor the public’s right to know while protecting their taxpayers from avoidable litigation costs.

Steve Judge is a municipal defense attorney and principal of Judge Law, LLC, representing Illinois townships and public entities in litigation, governance, and risk management.