Persistent Ill. newspaper finally gets letter it sought

Tuesday, October 23, 2012

After generations of having their hopes dashed by immovable bureaucrats, dismissive officials and deferential judges, advocates of open government can hardly be blamed for being skeptical about the effectiveness of freedom of information laws. As the recent Illinois decision in Rock River Times v. Rockford Public School District shows, however, sometimes those laws actually work — at least in the end.

The document at issue in Rock River Times was a June 19, 2010, letter written by Patrick Hardy, a departing high school principal, to LaVonne Sheffield, then a controversial superintendent of Rockford Public Schools, one of Illinois’ largest school districts. In the nine-page, single-spaced letter, Hardy disputed Sheffield’s version of many events and accused Sheffield of poor leadership, dishonest management and excessive drinking.

Having heard about it, The Rock River Times, a small community newspaper, requested a copy of Hardy’s letter on Aug. 26, 2010, under the Illinois Freedom of Information Act. On Sept. 1, the school district — following the procedures required by the act — advised the Times and Illinois’ Public Access Counselor that it intended to deny the request.

According to the district, the letter was exempt from disclosure under two FOIA provisions. These involved unreasonable invasion of individuals’ personal privacy and violation of Illinois’ Personnel Record Review Act.

On Sept. 13, the state’s public-access counselor denied the school district’s reliance on the personal-privacy exemption, saying the district had failed to show that information in the letter was highly personal or objectionable. The access counselor, however, did not address the district’s reliance on the Personnel Record Review Act.

Not surprisingly, the district then informed the Times that its “primary basis” for withholding the letter was the Personnel Record Review Act and that it intended to maintain its denial of the Times’ request. The Times asked the public-access counselor to review the district’s reliance on the personnel-record law.

Though the public-access counselor’s office agreed to review the matter again, it inexplicably failed to advise the district of the Times’ request for further review. In the meantime, the district agreed to refer the Times’ initial request to its attorney for reconsideration. The Illinois Press Association next weighed in with its written opinion that the state FOIA required the letter’s disclosure.

On Oct. 4, the district learned that the public-access counselor had denied the exemption claimed under the Personnel Record Review Act. Four days later, the district’s lawyer acknowledged to the press association that the Personnel Record Review Act did not prohibit disclosure of the letter. However, the lawyer wrote, the district still was not going to release the letter because it believed a third exemption — for documents relating to employee grievances or discipline — applied.

Two weeks later, the public-access office told the parties it would consider the appropriateness of the newly claimed exemption. Unwilling to wait any longer, however, the Times sued the district on Nov. 3 in Circuit Court for the 17th Judicial Circuit, Winnebago County. The public-access counselor then informed the parties that, because of the suit, it would take no further action.

In its suit, the Times argued that the district had forfeited its right to assert the third exemption or, alternatively, that the exemption did not apply. In addition to seeking disclosure of the letter, the newspaper sought a penalty against the district for willfully and intentionally refusing to comply with the FOIA and the newspaper’s attorney’s fees and costs.

Around 5 p.m. on Nov. 24 (the Wednesday before the Thanksgiving holiday), the district released the letter, claiming that the public-access counselor recently had issued a verbal opinion rejecting the district’s third claimed exemption.

Shortly thereafter, the district moved to dismiss the lawsuit, claiming it was moot. The newspaper responded that it remained entitled to a civil penalty and its attorney’s fees and costs, citing in part an affidavit from the public-access office denying that it had issued a verbal opinion.

After further proceedings, the trial court denied the Times’ request for attorney’s fees and costs but awarded a $2,500 civil penalty.

In denying the newspaper’s request for fees, the court analyzed recent amendments to the Illinois FOIA that make fee awards mandatory, but only if a party “prevails” in the case. In light of these amendments, the court said, a party cannot obtain fees unless the party obtains “judicially sanctioned relief,” even if the party’s lawsuit prompts the release of documents. Because the district released the letter before a court order required it to do so, the Times had not obtained judicial relief.

In imposing the fine, the court noted that the FOIA permits a fine of no less than $2,500 and no more than $5,000 if a public body “willfully and intentionally” fails to comply with FOIA or otherwise acts in bad faith.

In this case, the judge held, a penalty was warranted because: “The entire course of events here strongly suggest(s) that the district first decided that it would not release a document it did not want to release, and only then did it begin looking for reasons to support a decision it had already made. The invocation of a new (and equally unfounded) basis for exemption after the first reasons had been proven incorrect is an indication of the district’s intransigence. Only when the requesting party filed suit was the district finally compelled to concede that its position was indefensible.”

Both parties appealed the judge’s ruling, with the Times seeking reversal of the denial of its request for fees and the district seeking reversal of the penalty.

On Oct. 3, 2012, the Illinois Appellate Court for the Second District unanimously affirmed the trial judge’s decision, holding that the judge had correctly applied the amendments regarding awards of attorney’s fees and finding that the penalty was appropriate. In affirming the penalty, the appellate court was particularly troubled by the district’s reliance on the purported “verbal opinion” of the public-access counselor.

“Not only did the school willfully and intentionally violate the FOIA by raising a third exemption after the first two were denied,” the court said, but it also “‘looked for a way to save face’ rather than simply admit it was wrong.”

Procedurally, of course, few would hold up the resolution of the Times’ FOIA request as a model for others to follow. Even with indefensible exemption claims, the district was able to delay release of the letter for three months and to require the Times to expend considerable resources to obtain it.

Compared with other FOIA cases that feature interminable delays and years of litigation, however, the decision in Rock River Times feels like — and is — a significant victory for open government.

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