Illinois FOIA Update: Three Decisions Local Officials Need to Understand

1. Good Intentions May Not Protect You From Penalties 

A public body that loses a FOIA lawsuit can be ordered to pay the requester’s attorney fees. And under section 11(j) of FOIA, if a court finds that a public body “willfully and intentionally failed to comply” with the law, “or otherwise acted in bad faith,” it must impose a civil penalty of $2,500 to $5,000 for each occurrence.

For a small township or district, that’s real money. 

Illinois appellate courts don’t agree on what those words require. In Williams v. Bruscato (2021), the Second District read them together: a penalty requires a violation that was willful, intentional and in bad faith, meaning done “with a dishonest purpose.” Later decisions followed that reading, including a 2023 First District case and a 2023 Third District case involving a township. 

This year, the First District went the other way. In Lucy Parsons Labs v. Chicago Police Department, a published decision issued in June, the court held that a willful and intentional violation is enough on its own. No separate proof of dishonesty is needed. In September, another First District panel applied that rule in NBC Subsidiary v. Chicago Police Department. The department had denied a TV station’s request in full under a standing practice of withholding records from open investigations, without reviewing the documents one by one. The trial court described the problem as “bad policy, confusion and ineptness,” not dishonesty, but found the denial was “deliberate and by design.” The appellate court said that was enough for a penalty. (NBC is an unpublished Rule 23 order, so it isn’t binding precedent, but it follows the published Lucy Parsons Labs decision.) 

Until the Illinois Supreme Court settles the question, the standard a court applies may depend on where a case is filed. The practical answer is to make sure every denial would hold up under either standard. 

What this means for you: The NBC case shows how penalties actually happen. The problem wasn’t a bad motive. It was a blanket denial without a document-by-document review. A few habits go a long way: 

• Confirm the exemption fits each record. Review the documents themselves before withholding them, and release the parts that aren’t exempt. 
• Explain your reasoning. Name the specific exemption in your response and say briefly why it applies. 
• Keep a short file note. Record who reviewed the request, what was found and why anything was withheld or redacted. 
• Watch the clock. Respond within five business days, or send a proper written extension. 
• Ask before you deny. If you’re not sure an exemption applies, call us before the response goes out. 

2. Forwarding an Email to Your Attorney Doesn’t Make It Private 

This one surprises a lot of officials. In Binding Opinion 26-010, the Attorney General’s Public Access Counselor looked at emails between a city official and a private contractor. The official later forwarded those emails to the city attorney to ask for legal advice. When a reporter requested them, the city said they were protected by attorney-client privilege. 

The Public Access Counselor said no. Attorney-client privilege covers communications made in confidence to an attorney acting as a lawyer, for the purpose of getting legal advice, that have stayed confidential, and it protects the attorney’s advice back to the client as well. The emails between the official and the contractor didn’t meet that test when they were written, and sending them to a lawyer later didn’t change that. In the opinion’s words, forwarding pre-existing records to counsel while seeking legal advice “does not transform those records into privileged attorney-client communications.” 

What this means for you: Your confidential requests for legal advice, and the advice you get back, can still be privileged. Notably, the reporter in the Chicago case hadn’t asked for the city’s messages to its lawyers, only for the contractor emails themselves. But a record that was public before it reached your attorney stays public afterward. Assume anything you exchange with a vendor, contractor or another agency could be released, and keep your questions to counsel in separate, confidential messages rather than in reply threads with outside parties. 

3. Good News for Water and Sewer Systems 

Not every ruling went against public bodies. In Binding Opinion 26-009, someone asked a city water department for storm sewer maps, GIS data and engineering drawings covering part of the city. The public body denied the request under FOIA’s utility exemption, section 7(1)(x), and the Public Access Counselor agreed. 

The key takeaway is that the exemption covers maps and records showing the location of utility facilities. The public body did not have to prove that releasing them would create a security risk. Showing where the facilities are was enough. 

For water districts, sanitary districts and towns that run their own utilities, this gives clear authority to protect system maps. A few practical tips: 

• Put it in writing. Cite section 7(1)(x) by name in your denial letter. 
• Release what isn’t covered. Budgets, contracts, rate ordinances and board minutes are still public records. 
• Have a plan for legitimate needs. Engineers, contractors and neighboring agencies sometimes need the maps for real work. There are ways to share them without making them public, so talk to us about setting that up. 

A Quick Refresher on 2026 Changes 

These rulings come on top of FOIA amendments in Public Act 104-0438, which took effect January 1, 2026. The changes most likely to come up for a small public body: 

• Email requests. You don’t have to open an attachment or click a link to read an electronic FOIA request. If a request arrives that way, you must tell the requester, within five business days, that the request needs to be in the body of the message. 
• Junk mail. Unsolicited commercial mail or email that no one at the public body responded to is no longer a “public record.” You don’t have to keep it under the Local Records Act or produce it under FOIA. 
• Required postings. If you have a website, the basic information section 4 of FOIA requires (a description of the public body, its budget, offices and employees, and how to request records) now only has to be posted there. If you don’t have a website, it still goes up at your office. 
• Requests that may not come from a person. If you reasonably believe a request wasn’t submitted by a person, you can ask the requester, within five business days, to confirm orally or in writing that they are one. Your response deadline pauses until they do, and you can deny the request if they don’t respond within 30 days. You can’t require personal or identifying information to verify. 
• Protection for staff. Officers and employees, not just the public body, are now immune from liability when they release records in line with an Attorney General opinion. 

We’re Here to Help 

Most FOIA requests are routine. The difficult ones tend to show up at the worst time, with a five-business-day clock already running, and the decisions made in those first few days are the ones a court or the Public Access Counselor will look at later. A short conversation before a response goes out is almost always simpler than sorting things out after a Request for Review or a lawsuit has been filed. 

If your board, clerk or FOIA officer has a question about a request, an exemption or your FOIA policies, give us a call. We work with townships, villages, road districts, and water and sanitary districts across central Illinois, and no question is too small. 

Call our Mackinaw office at 309-359-3461 or our Morton office at 309-266-6211, or contact us at email@mcgrathpc.com. 

This post is general information, not legal advice for any specific situation.