The First District Appellate Court overturned a trial court’s denial of civil penalties in a FOIA case challenging a police department’s response to a news media’s FOIA requests. NBC Subsidiary v. Chicago Police Department.
NBC filed FOIA requests with a police department seeking surveillance video, incident reports, witness statements, and other records relating to a hit-and-run crash, as well as emails to and from two police officers relating to the crash. The police department responded by referring the requester to its records inquiry section for the crash reports and by denying the request for body-work camera footage. The response also denied other requested records claiming they were exempt because there was an ongoing criminal investigation. The police department sent an extension notice regarding the request for emails, but later denied that request citing to the same ongoing criminal investigation exemption.
NBC filed a lawsuit against the police department, claiming it violated FOIA. The trial court ruled in favor of the police department relating to certain counts in the complaint, including finding that the police department completed a reasonable search and that certain responsive records had been destroyed pursuant to the department’s records retention policy. However, the court ruled against the department regarding its withholding of certain records in their entirety. The court also found that the department “willfully and intentionally violated FOIA” by not producing the requested records. The department subsequently produced the requested records, and NBC then filed a motion seeking its attorneys fees and an award of civil penalties against the department. The court granted NBC’s request for attorneys fees. However, the court denied NBC’s request for civil penalties, applying a Second District Appellate Court ruling that would require NBC to show that the department “willfully, intentionally, and in bad faith” (emphasis added) failed to comply with FOIA. In this case, the trial court found there was no evidence that the department acted with a “dishonest purpose” by withholding the records.
NBC appealed, arguing that FOIA does not require a showing of bad faith to justify the imposition of civil penalties if the public body is shown to have willfully and intentionally violated FOIA. The Appellate Court agreed with NBC, stating as follows:
We agree with this court’s decisions in Tobias and Lucy Parsons Labs that
section 11(j) does not require separate showings that the public body both “willfully and
intentionally” violated FOIA and did so “in bad faith,” or with a “dishonest purpose.” This analysis
is true to the language of section 11(j), which allows for the imposition of civil penalties when “a
public body willfully and intentionally failed to comply with this Act, or otherwise acted in bad
faith.” 5 ILCS 140/11(j). We agree with Tobias and Lucy Parsons Labs that this
court’s decision in Williams “failed to honor the disjunctive ‘or’” in section 11(j), and in doing so
created a more demanding standard for the imposition of civil penalties than contemplated by the
text of the statute. [citations omitted] Thus, we decline to follow Williams or Thomas.
Applying its interpretation of section 11(j) of FOIA, the First District Appellate Court found that the department’s “deliberate and by design” conduct in denying the FOIA request was enough to justify the imposition of civil penalties. As a result, the Appellate Court sent the case back to the trial court to make a determination on an appropriate civil penalty against the police department.
This decision means that the First and Second District Appellate Courts have taken a different position on the type of conduct by a public body that justifies the imposition of civil penalties for a FOIA violation.
