Court: IL Secretary of State can't charge $20K for documents after taking 6 months to respond to FOIA ask

By D.M. Herra | May 7, 2019

When the Illinois Secretary of State’s Office failed to respond to a Freedom of Information Act request on time, it also forfeited the right to demand nearly $20,000 in copying fees from the requester, a state appeals court has ruled.

The Illinois Second District Appellate Court overturned a ruling by DuPage County Circuit Court Judge Paul Fullerton that found the office was entitled to its statutory copying fees even though it did not respond to the FOIA request for more than six months.

Plaintiff Joseph Varan submitted the FOIA request in February 2016. According to court documents, he was seeking all of the public documents filed with the Secretary of State on behalf of 26 named corporations and limited liability companies within a specific time frame. He made his request by emailing the office’s business services department and by filling out a contact form on the office website. Varan received a reply email from the business services department the same day.

Under FOIA, a public body has five business days to respond to a FOIA records request by either fulfilling it, denying it or asking for more time. According to court documents, when Varan heard nothing more from the Secretary of State for two months, he filed a complaint for declaratory judgment seeking release of the records at no cost, plus court costs and a civil penalty.

Four months after the complaint was filed, and six months since the original request, Varan was contacted by the office’s FOIA officer, saying she had just received his request and asking for an additional five days to fill it. The officer’s next email to Varan said the requested documents had been located and there was a fee of $25 per document plus copying fees of 15 cents per page – coming to a total of $19,711.55 the plaintiff would have to pay before the documents were released.

FOIA specifies that if a public body responds to a FOIA request after the five-day period or after denying the request, it cannot charge a fee for the records. In its defense, the Secretary of State’s office argued that language does not apply because it has not yet released the documents to Varan.

“We reject this circular argument, as defendant’s only basis for withholding the records is plaintiff’s nonpayment of the fee,” Justice Robert B. Spence wrote in the court’s opinion. “It would defy logic to allow plaintiff’s nonpayment of the fee to preempt the statutory language that prohibits the imposition of that same fee.”

The Secretary of State’s Office also claimed it had not violated FOIA because while its response came six months after Varan’s original request, it came only two days after the FOIA officer first received that request. The office pointed to two FOIA requests Varan had made years earlier, both of which were sent directly to the FOIA officer. He never paid the document fees for those requested records, the office said, and this time deliberately made his request to the wrong departments in an effort to circumvent the process and avoid the fees by catching the office in a technicality.

The appellate court was unimpressed, noting that FOIA specifies the body is to respond within five days of receiving the request, not within five days of the FOIA officer receiving the request. The office acknowledged it received Varan’s request the day he sent it, and the fact that it was not forwarded to the right person does not extend the five-day time limit.

The court reversed the circuit court ruling and ordered the Secretary of State’s Office to release the documents at no cost. The court also ordered the circuit court to make a determination regarding Varan’s request for court costs and civil penalties.

The decision was filed as an unpublished order under Supreme Court Rule 23, which limits its use as precedent except under very limited circumstances.

Spence was joined in the court’s opinion by Justices Susan F. Hutchinson and Mary S. Schostok.

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Circuit Court of Dupage County Illinois Second District Appellate Court Illinois Secretary of State

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