Tobias v. City of Chicago's Office of the Mayor

2026 IL App (1st) 241435-U

• Court: Appellate Court of Illinois
• Decided: March 2, 2026
• Docket: 1-24-1435
• Status: Unpublished

Opinion

2026 IL App (1st) 241435-U

FIRST DIVISION March 2, 2026

No. 1-24-1435

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

JAMES TOBIAS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) ) No. 23 CH 05933 CITY OF CHICAGO OFFICE OF THE MAYOR, ) ) The Honorable Defendant-Appellee. ) David B. Atkins, ) Judge Presiding. ______________________________________________________________________________

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Howse and Cobbs concurred in the judgment.

ORDER

HELD: The scope of the search by defendant for public records responsive to plaintiff’s freedom of information request was reasonable and adequate, and summary judgment in favor of defendant on this issue is affirmed. Defendant was not entitled to summary judgment on plaintiff’s claim for statutory penalties based upon defendant’s assertion that its failure to produce responsive records until mid-litigation was not willful, intentional, or in bad faith as a matter of law.

¶1 Plaintiff-appellant James Tobias appeals from the circuit court’s order denying his partial

motion for summary judgment and granting summary judgment in full to defendant-appellee, the

City of Chicago’s Office of the Mayor (City), under the Freedom of Information Act (FOIA) (5 No. 1-24-1435

ILCS 140/1 et seq. (West 2022)). On appeal, Tobias contends the court erred in determining that

the scope of the City’s FOIA search was reasonable and in granting the City summary judgment

as to civil penalties, thus declaring them unwarranted. We affirm in part and reverse in part.

¶2 I. BACKGROUND

¶3 The record reveals that in May 2023, Tobias, an independent journalist, sent two FOIA

requests to the City, with one seeking “[a]ll text messages sent or received by Chief of Staff

Richard Guidice on May 15 and May 16, 2023,” and the other seeking “[a]ll text messages

between Mayor Brandon Johnson and Stacy Davis Gates, president of the Chicago Teachers

Union,” including “records produced between May 15, 2023 and the date this request is

processed.” (Emphasis added.) We take judicial notice that Mayor Johnson was inaugurated on

May 15, 2023. See People v. Castillo, 2022 IL 127894, ¶ 39; Boston v. Rockford Memorial

Hospital, 140 Ill. App. 3d 969, 972 (1986); City of Chi., Off. of the Mayor,

www.chicago.gov/city/en/depts/mayor.html (last visited Dec. 11, 2025) [https://perma.cc/B6K5-

2P7R].

¶4 The City assigned tracking numbers FO46961-051823 for the Davis Gates request and

FO46965-051823 for the Guidice request, while recording submission dates of May 18, 2023.

Nevertheless, the record reflects that Tobias e-mailed the requests to the City via the FOIA

records system on May 19, 2023. The same day, the City responded to Tobias, noting that his

requests had been submitted and were “being processed.” The City also provided him the

tracking numbers for review at the “Public Records Center.” The parties on appeal appear to

agree that May 19, 2023, is the date the City received Tobias’s records requests. See 5 ILCS

140/3(d) (West 2022).

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¶5 In response to the requests, on May 26, 2023, the mayor’s assistant press secretary and

FOIA officer Thomas Skelton contacted the Chicago Department of Assets, Information, and

Services (Information Department) to initiate a search of Guidice’s texts on his city-issued cell

phone. The same day, Skelton issued letters via a computer application to Tobias, informing him

that the City required a five-day extension, to June 2, 2023, for one or more of the reasons cited

in the statute (id. § 3(d), (e)), including that the requested records were stored in other locations;

personnel first had to examine whether the records were exempt; the requests could not be timely

complied with absent undue burden to the public body; and they had to consult another public

body or components of a public body having a substantial interest in the requests. Skelton did not

obtain any responsive records by June 2, 2023, and, therefore, did not produce records by that

due date. Under FOIA, this led to a constructive denial of the requests. 1 See id. § 3(e), (f)

(“Failure to respond within the time permitted for extension shall be considered a denial of the

request.”). Several days later, on June 5, 2023, Tobias sought a status update, but the City did not

respond.

¶6 On June 23, 2023, Tobias filed suit against the City, alleging it willfully and intentionally

or otherwise in bad faith failed to comply with FOIA. As relief, Tobias requested that the City

conduct “adequate searches of the requested records” and produce the non-exempt records, in

addition to paying civil penalties and attorney fees. Attached to the complaint were the

documents revealing the correspondences between Tobias and the City, including his requests.

1 The parties do not dispute that on May 26, 2023, within five business days of May 19, the City properly sought to extend the time to respond to the records requests. See 5 ILCS 140/3(d), (e) (West 2022) (“The time for response *** may be extended by the public body for not more than 5 business days from the original due date”). The parties agree that the due date for records following that five-day extension was Friday, June 2, 2023. See id. We note that the due date was actually Monday, June 5, 2023, given that Monday, May 29, was Memorial Day and thus not a business day. We nonetheless proceed based on the parties’ agreement.

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¶7 The City filed its answer on August 4, 2023, also alleging several affirmative defenses,

including that records of Mayor Johnson and Guidice were exempt. Specifically, the City

asserted exemptions for private and personal information (id. § 7(1)(b), (c)); records involving

expressed opinions or policies/actions (id. § 7(1)(f)); and certain communications/materials made

in relation to litigation or an audit (id. § 7(1)(m)).

¶8 In October 2023, Tobias moved for partial summary judgment under FOIA, asserting that

the public records were presumed to be open for inspection and the City had to prove any

exemptions, and asking that the records be immediately released. He also moved for an index of

the withheld records. See id. § 11(e). Tobias reserved seeking civil penalties and attorney fees for

after a ruling on the requested records’ production and search issues. See id. § 11(i), (j).

¶9 The City filed its opposition to the motion, along with its own cross-motion for summary

judgment on November 20, 2023. As part of its motion, the City produced Tobias’s requested

records, consisting of four pages of text messages. The City maintained it had conducted a

reasonable search and argued that Tobias’s action was therefore moot. The City further asserted

that the denial of Tobias’s request was not made in bad faith and there was no evidence to merit

civil penalties. In support, the City attached Tobias’s complaint, along with the aforementioned

records. The City also attached Skelton’s affidavit, wherein he described the searches conducted

on both Guidice’s and Mayor Johnson’s cell phones. As for Guidice, Skelton attested that the

Information Department could not timely search his phone on May 26, 2023, because Guidice

had not enrolled in text archiving. 2 Once Guidice did so, the Information Department conducted

2 Skelton attested it was his understanding that when a cell phone user enrolls in text archiving, the system created an archive of all text messages on the phone, including those existing prior to the enrollment date.

4 No. 1-24-1435

the search. On July 13, 2023, the Information Department sent Guidice’s responsive texts to

Skelton.

¶ 10 Skelton attested that subsequently, on August 11, 2023, he searched Mayor Johnson’s

personal cell phone, seeking text messages from May 15 to June 2, 2023, the constructive denial

date. See Better Government Ass’n v. City of Chicago Office of Mayor, 2020 IL App (1st)

190038, ¶ 36 (noting, communications pertaining to public business within public officials’

personal text messages and e-mail accounts are public records subject to FOIA). During the

search, Skelton identified a number of texts potentially responsive to the FOIA request, although

certain ones were redacted as personal communications that did not qualify as public records. On

August 24, Skelton asked the Information Department to search Mayor Johnson’s city-issued cell

phone, which did not produce any responsive texts. Due to the complaint Tobias filed and on the

advice of counsel, Skelton did not provide Tobias with the responsive text messages. Skelton

explained that he failed to meet the June 2, 2023, deadline because he “did not have any

responsive records at that time.”

¶ 11 The City therefore argued it was entitled to summary judgment. Tobias responded in

relevant part that the City “arbitrarily limited the date range” of the Johnson/Davis Gates request.

Tobias argued that, according to the plain language of his request which sought “records

produced between May 15, 2023 and the date this request is processed,” the City should have

searched Mayor Johnson’s personal cell phone for the dates, May 15 through August 11 (rather

than June 2), 2023. He reasoned that the City “did not do any work to process the request until

5 No. 1-24-1435

August 11,” when it conducted the search. Tobias also challenged as suspect the redactions and

methodology for searching the cell phones. 3

¶ 12 Tobias next argued that the court should deny the City’s motion on civil penalties,

maintaining that a reasonable fact finder could conclude the City had acted willfully,

intentionally, and in bad faith by needlessly delaying production of the texts and asserting

exemptions over documents it had never reviewed. He noted the City had filed its answer and

affirmative defenses before reviewing all of the recovered records. Tobias requested an

evidentiary hearing to determine whether civil penalties were warranted, although he expressly

noted he had “not moved for civil penalties” but reserved the right to do so. He responded to the

City’s motion in that regard, claiming there was a genuine issue of material fact.

¶ 13 The circuit court heard oral arguments on the parties’ cross-motions for summary

judgment and, pursuant to the parties’ agreement, conducted an in camera review of the redacted

material, finding those messages did not constitute public records because they did not pertain to

the transaction of public business. See 5 ILCS 140/2(c) (West 2022). The court then issued a

written order denying Tobias’s partial motion for summary judgment and granting the City’s

motion in full.

¶ 14 In so doing, the court rejected Tobias’s contention that the City was required to extend

the search date to August 11, 2023, based on Tobias’s request of “records produced between

May 15, 2023, and the date this request is processed.” The court noted that the term “processed”

was undefined and that shortly after receiving Tobias’s requests, Skelton assigned them internal

3 Tobias argued the City had not shown it adequately searched the mayor’s city-issued cell phone, as there was no evidence the mayor had enrolled in text archiving. Tobias requested that the court order a supplemental search. Pursuant to that request, the City later filed a supplemental affidavit from deputy press secretary and FOIA officer Hibo Aden, attesting that following a search, there were no text messages between Mayor Johnson and Davis Gates on the mayor’s city-issued cell phone from May 2023 to April 4, 2024.

6 No. 1-24-1435

reference numbers and notified Tobias of the five-day extension. The court ruled that June 2,

2023, the constructive denial date, was a proper end date for the search. The court further found

the City’s delay in producing records was not a deliberate, dishonest attempt to violate FOIA.

Rather, the City simply did not have the requested records by the June 2 due date.

¶ 15 Following the granting of summary judgment for the City, Tobias appealed.

¶ 16 II. ANALYSIS

¶ 17 As set forth, the parties filed cross-motions for summary judgment on the issue of

whether the City violated FOIA. In seeking summary judgment, the City also moved to avert the

imposition of civil penalties, while Tobias claimed there was a genuine issue of material fact in

that regard.

¶ 18 Summary judgment is proper where the pleadings, affidavits, depositions, admissions,

and exhibits, when viewed in a light most favorable to the nonmoving party, demonstrate that

there is no genuine issue as to any material fact and the movant is entitled to judgment as a

matter of law. 735 ILCS 5/2-1005(c) (West 2022); Koulogeorge v. Campbell, 2012 IL App (1st)

112812, ¶ 21. Summary judgment is a drastic means of disposing of litigation and, therefore,

should be allowed only where the moving party’s right to judgment is clear and free from

doubt. Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 423-24 (1998). As such, if reasonable

persons can draw divergent inferences from undisputed material facts or if there is a dispute as to

a material fact, summary judgment should be denied and the issue decided by the trier of fact. Id.

at 424. Where, as here, the parties also file cross-motions for summary judgment, they concede

there are no genuine issues of material fact on distinct issues and invite the court to decide those

questions presented as a matter of law. Koulogeorge, 2012 IL App (1st) 112812, ¶ 21. We

proceed in our de novo review of the trial court’s decision regarding summary judgment and the

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construction of FOIA. Kelly v. Village of Kenilworth, 2019 IL App (1st) 170780, ¶ 29; Dumke v.

City of Chicago, 2013 IL App (1st) 121668, ¶ 11; Koulogeorge, 2012 IL App (1st) 112812, ¶ 21.

¶ 19 The purpose of FOIA is to allow public scrutiny of governmental records. Dumke, 2013

IL App (1st) 121668, ¶ 12; 5 ILCS 140/1 (West 2022). The government, under FOIA, has a

fundamental obligation to operate openly and provide public records as expediently and

efficiently as possible. Green v. Chicago Police Department, 2022 IL 127229, ¶ 37. To that end,

a public body must comply with a valid request for information within five business days of

receiving the request, unless a narrow statutory exemption applies. 5 ILCS 140/3(d), 7 (West

2022); Day v. City of Chicago, 388 Ill. App. 3d 70, 73 (2009); see In re Appointment of Special

Prosecutor, 2019 IL 122949, ¶ 60 (records that do not fall within the statutory exemptions are

improperly withheld); Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d

390, 418 (2006) (noting that “[t]he burden shall be on the public body to establish that its refusal

to permit public inspection or copying is in accordance with the provisions of the FOIA”).

¶ 20 Within that period, the public body also may extend its response time “not more than 5

business days from the original due date” for several enumerated statutory reasons, unless the

parties otherwise agree in writing on an alternate extension date. 5 ILCS 140/3(d), (e) (West

2022). Although FOIA provides the public easy access to government information and

encourages requestors to seek judicial relief where a public body wrongfully withholds records,

FOIA may not be used to disrupt a governmental body’s proper work beyond the responsibilities

delineated therein. Id. § 1; Special Prosecutor, 2019 IL 122949, ¶ 25; Uptown People’s Law

Center v. Department of Corrections, 2014 IL App (1st) 130161, ¶ 10; Dumke, 2013 IL App

(1st) 121668, ¶ 12.

¶ 21 A. Scope of the Records Search

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¶ 22 Tobias first contends that the City improperly narrowed the scope of its search for public

records under FOIA. Here, Tobias submitted two requests for governmental records, and the City

extended the response period five business days but then did not produce the requested records

by the June 2, 2023, deadline or respond to Tobias’s query for a status update. See Green, 2022

IL 127229, ¶ 15; 5 ILCS 140/3(e), (f) (West 2022). As set forth, Tobias filed suit shortly

thereafter, and the City ultimately provided Tobias with four pages of public records.

¶ 23 As before the circuit court, Tobias argues that the City failed to comply with his

Johnson/Davis Gates request because it prematurely ended the records search on Mayor

Johnson’s personal cell phone. 4 Specifically, Tobias maintains that he sought all text messages

between Mayor Johnson and Davis Gates between May 15, 2023, and “the date this request is

processed.” Citing the principle that public bodies must liberally construe FOIA requests (Better

Government Ass’n, 2020 IL App (1st) 190038, ¶ 31), Tobias asserts the language, “is processed,”

encompassed the days up to and including when the City ultimately searched for and obtained

the records. He claims this was August 11. As relief, he asks that we reverse and remand for the

City to conduct his proposed records search from May 15 to August 11, 2023, and produce any

additional responsive records.

¶ 24 The City responds, as it did below, that it “processed” the Johnson/Davis Gates request

on June 2, 2023, the date the request was constructively denied by statute. See 5 ILCS 140/3(e),

(f) (West 2022). The City maintains the scope of its search was reasonable. Thus, there are no

improperly withheld public records. See id. § 11(d).

¶ 25 To prevail on summary judgment under FOIA in this case, the public body had the

burden of showing that its search and the scope of the search were adequate. See Chicago

4 Tobias does not challenge the City’s search of Mayor Johnson’s city-issued cell phone.

9 No. 1-24-1435

Recycling Coalition v. City of Chicago Department of Streets & Sanitation, 2023 IL App (1st)

220154, ¶ 26; Rodriguez v. Department of Defense, 236 F. Supp. 3d 26, 35 (D.D.C. 2017). The

adequacy of that search must be judged by a standard of reasonableness and depends on the

individual facts of the case. See Better Government Ass’n, 2020 IL App (1st) 190038, ¶ 31. In

liberally construing the FOIA requests, the City was required to search those places that were

reasonably likely to contain the responsive records. See id.

¶ 26 The Plain Language of the Records Request

¶ 27 We agree that the City did just that in analyzing the plain language, “the date this request

is processed,” and in describing the scope of its search via Skelton’s affidavit. The verb

“process” means “to subject to or handle through an established usually routine set

of procedures,” as in to “process insurance claims.” (Emphasis in original.) Merriam-Webster

Online Dictionary, www.merriam-webster.com/dictionary/process (last visited Dec. 12, 2025)

[https://perma.cc/F6YC-RM5C]. The term “processed” in the phrase “is processed” is a past

participle functioning as a predicate adjective. See William Strunk Jr. & E. B. White, The

Elements of Style 18, 93 (4th ed. 1999).

¶ 28 Thus, the passive voice participial phrase can be interpreted in various ways given that

“to process” includes procedures or stages. For example, as the trial court noted, the City

“processed” Tobias’s two FOIA requests when it acknowledged their receipt and assigned them

internal reference numbers. The City also “processed” the requests when it denied the requests

by operation of the statute when the response window closed. It then “processed” the requests

when it conducted the searches. Notably, the searches of Mayor Johnson’s personal and work

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cell phones occurred on different days, August 11 and 24, 2023, respectively. 5 Curiously, Tobias

is not requesting a search through August 24, 2023, notwithstanding that his records request did

not distinguish between Mayor Johnson’s personal and work cell phones. Last, the requests were

“processed” when the records were physically retrieved and then again when they were produced

during litigation.

¶ 29 Tobias’s request, even when liberally analyzed to effectuate FOIA’s purpose of open

governmental accountability, reasonably could be construed to require the search to conclude the

date the devices were searched, when the records were retrieved, or when the records were

produced. See Better Government Ass’n, 2020 IL App (1st) 190038, ¶ 31. Where a request may

be interpreted in multiple ways, we will not require a public body to be bound to one

interpretation over another. A person requesting documents of a governmental body funded by

taxpayer dollars must make his request sufficiently clear, but Tobias did not do that. See id. at 97

(noting that “a requestor must ‘reasonably describe[ ]’ the records sought”). Otherwise, the

request itself thwarts the expedient and efficient production of public documents.

¶ 30 The Scope of the Search for Records Was Adequate

¶ 31 Regardless of the interpretations that Tobias’s request inspired, we conclude the scope of

the City’s search was more than adequate. Here, the reasonable end date for the search was in

fact May 19, 2023, when the City acknowledged receiving the request, rather than the statutory

denial date. See Better Government Ass’n, 2020 IL App (1st) 190038, ¶ 31. When Tobias e-

mailed his request on May 19, 2023, for text messages exchanged between Mayor Johnson and

Davis Gates from May 15, 2023, until the date the request was “processed,” Tobias effectively

5 We observe that the City searched the officials’ cell phones well past the June 2, 2023, statutory deadline. We address only the required scope of the search in light of the request and not the City’s compliance with FOIA deadlines, a matter discussed in the second section of this decision.

11 No. 1-24-1435

asked for text messages that had not been created. That is, no text messages between May 20,

2023, and August 11, 2023, then existed. Under FOIA, an individual cannot prospectively

request a record that does not yet exist. Therefore, the appropriate scope of the search was May

15 to May 19, 2023.

¶ 32 A review of FOIA supports this conclusion, as the statute’s language is the most reliable

indicator of the legislature’s intent, and we must give effect to its plain and ordinary

meaning. Kelly, 2019 IL App (1st) 170780, ¶ 29. Section 2 of FOIA defines “public records” as

all records pertaining to the public business “having been prepared by or for, or having been or

being used by, received by, in the possession of, or under the control of any public body.” 5

ILCS 140/2 (West 2022); see Hites v. Waubonsee Community College, 2016 IL App (2d)

150836, ¶ 71 (noting that public records are “information or documentation pertaining to a public

body’s operation that the public body prepared, used, or had under its control”). Dovetailing with

this definition, section 1.2 also states: “[a]ll records in the custody or possession of a public body

are presumed to be open to inspection or copying.” (Emphasis added.) 5 ILCS 140/1.2 (West

2022); see also id. §5 (requiring public bodies to make available “a reasonably current list of all

types or categories of records under its control”). These statutory provisions contemplate that the

records requested already must be in the public body’s possession or under its control.

¶ 33 Likewise, the legislature expressly contemplated the consequences of when a public body

fails to respond to a request within the five-day extension period but thereafter provides the

requested public records. In such an instance, the public body cannot charge a fee for the copies

and, if it fails to respond, cannot treat the request as unduly burdensome. Id. § 3(d). The statute

does not provide that the search can be extended beyond the request date or, assuming the

requested records exist, the statutory denial date. See id. (“Failure to comply with a written

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request *** or deny a request within 5 business days after its receipt shall be considered a denial

of the request.”). We thus reject Tobias’s contention that the City had to search for records up

until August 11, 2023, the date the City searched Mayor Johnson’s personal cell phone. We

agree with the City that Tobias’s “request cannot impose a more expansive obligation than that

imposed by FOIA itself.”

¶ 34 Tobias’s argument also runs contrary to our supreme court’s recent decision in Green,

2022 IL 127229. There, the plaintiff, a former inmate convicted of a quadruple homicide,

submitted a request to the Chicago Police Department (CPD) on November 18, 2015, for past

complaints against police officers. CPD constructively denied the request and cited, as an

exemption, an injunction and court order issued in a separate case requiring CPD to destroy

certain of those documents. The injunction, however, was subsequently invalidated and that case

overturned during the litigation in Green. On appeal, the supreme court considered “whether

FOIA authorizes the circuit court to account for changed circumstances” regarding whether the

public documents were “improperly withheld” under section 11 of FOIA. Id. ¶ 1. More

specifically, Green addressed whether the withholding of documents should be analyzed at the

statutory denial stage, when the injunction/case precluded the documents’ production, or during

litigation, when the injunction/case were invalidated and no longer served as an exemption.

¶ 35 The supreme court in Green sided with the statutory denial period, stating a public body

need not “continue monitoring a request once it has been denied.” Id. ¶ 53. The court reasoned

that a requester had five years to file a complaint after being denied access and could unfairly

delay judicial review while requiring the public body to endlessly reprocess old requests or risk

being penalized. The court, moreover, held that if circumstances change, a requester can simply

resubmit “a previously unsuccessful request.” Id. Although not directly on point, Green counsels

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that in this case, the City was required to analyze Tobias’s request based on records available

during the statutory response period, not afterwards during litigation, as Tobias argues. Likewise,

Green counsels that if Tobias wished to access text messages created beyond May 19, 2023, he

simply could have submitted another FOIA request. See id.

¶ 36 Distinguishing Federal Caselaw

¶ 37 Citing federal case law, Tobias nonetheless insists that the “date of search” was the

proper end date for his request. We reject this contention for several reasons. First, federal court

decisions remain only persuasive authority, notwithstanding the similarity between the Illinois

and federal FOIA statutes, and this court is bound by decisions of the Illinois supreme court

unless the United States Supreme Court offers contrary authority. Special Prosecutor, 2019 IL

122949, ¶ 55; Village of Deerfield v. Greenberg, 193 Ill. App. 3d 215, 222 (1990); see Dumke,

2013 IL App (1st) 121668, ¶ 14 (noting the Illinois FOIA was patterned after the federal

Freedom of Information Act (5 U.S.C. § 552 (2000))). Tobias fails to point to any Illinois

authority mandating the date-of-search end date for a request such as his. While he wishes this

court to adopt that standard, we are not free to rewrite legislation or ignore the statutes identified

above. See People v. Reed, 2025 IL 130595, ¶ 93.

¶ 38 Second, as the City notes, the federal FOIA differs in numerous ways from our state

FOIA as to the records request and response process. Under the federal FOIA, governmental

agencies have 20 days to determine “whether to comply with [a] request” once it is received,

although that period may be extended in “unusual circumstances,” such as when the records are

stored in other facilities. 5 U.S.C. § 552(a)(6)(A)(i), (B), (C)(i) (2018). Also, if a request cannot

be processed within 20 days, the agency may allow the requester to make amendments. 5 U.S.C.

§ 552(a)(6)(B)(ii) (2018). Regardless, if the agency determines to comply with a request, the

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records must “be made promptly available” to the requester. 5 U.S.C. § 552(a)(3)(A), (6)(C)(i)

(2018). As such, the federal provisions do not have a fixed compliance deadline. By contrast, our

statutes provide for a short 5-to-10-day period to comply with or deny a request for records

already under the public body’s control. 5 ILCS 140/3(d) (West 2022). Tobias has not made a

persuasive argument that the federal and state statutory schemes are sufficiently similar

regarding the search process and scope such that we are compelled to follow federal law for the

“date of search.” See Kelly , 2019 IL App (1st) 170780, ¶ 43 (noting key differences can exist

between federal and our state FOIA provisions).

¶ 39 Third, the federal cases on which Tobias relies are inapposite, as they involve federal

administrative rules. In Public Citizen v. Department of State, 276 F.3d 634 (D.C. Cir. 2002), the

plaintiff, a nonprofit organization, sued the Department of State alleging that its date-of-request

cut-off policy had been promulgated without sufficient notice and comment under the federal

administrative procedure rules and also was unreasonable when applied to the plaintiff’s FOIA

requests. On appeal, the district court rejected the first argument. As to the second, it merely held

that the Department of State had “made no showing” that a date-of-request cut-off policy was

always reasonable, thus suggesting it could be applied on a case-by-case basis. Id. at 643-44. As

specifically applied to the plaintiff’s FOIA request, the court held that the Department of State

had failed to justify its date-of-request policy or that the alternative date-of-search cut-off would

result in an “administrative nightmare.” Id. at 644. The court reasoned that the plaintiff should

not be forced to “file multiple FOIA requests to obtain documents that the Department [of State]

would have released in response to a single request had it used a later cut-off date.” Id. at 643.

The court also reasoned that a date-of-search cut-off presented minimal hassle and increased

documents retrieval.

15 No. 1-24-1435

¶ 40 Following that case, Edmonds Institute v. United States Department of the Interior, 383

F. Supp. 2d 105, 111 (D.D.C. 2005), stated that the D.C. Circuit had “all but endorsed the use of

date-of-search as the cut-off date for FOIA requests.” There, the court noted that the Department

of Interior had adopted a date-of-search policy rule and rejected the plaintiff’s request for a

search cut-off on the date the documents were released. See 5 U.S.C. § 552(a)(1), (D)(i) (2018)

(each agency must publish rules for public records requests).

¶ 41 Tobias’s reliance on these cases is misplaced. Tobias has not pointed to any similar

administrative rules issued by the City, or any other public body, which dictate a date-of-search

cut-off date. Notably, under Illinois’s FOIA, public bodies may promulgate rules and regulations

in accordance with section 3 as to “the availability of records and procedures to be followed.”

See 5 ILCS 140/3(h) (West 2022). Moreover, our supreme court in Green expressly rejected the

same reasoning that Public Citizen relied on to justify adopting a date-of-search policy. Our

supreme court in Green stated: “Assessing the public body’s denial under the circumstances that

existed at the time of the denial fosters finality in processing information, allows a requester to

refile the request to account for postresponse events, and promotes the goal of providing

releasable records expediently and efficiently.” Green, 2022 IL 127229, ¶ 58. Based on the

foregoing, Tobias has failed to persuade this court that we must follow federal case law here.

¶ 42 We therefore conclude that the City has fulfilled its burden of establishing the scope of its

search was more than reasonable and, thus, adequate. Better Government Ass’n, 2020 IL App

(1st) 190038, ¶ 32. Tobias has failed to produce countervailing evidence or argument. See id.

Thus, the scope/sufficiency of the search is not genuinely at issue, records were not improperly

withheld, and the trial court rightly granted the City summary judgment on that issue.

¶ 43 B. Civil Penalties

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¶ 44 We next address Tobias’s contention that the court erred in granting summary judgment

to the City on civil penalties, declaring them unwarranted. Subsection 11(j) of FOIA provides

that “[i]f the court determines that a public body willfully and intentionally failed to comply with

this Act, or otherwise acted in bad faith, the court shall also impose upon the public body a civil

penalty of not less than $2,500 nor more than $5,000 for each occurrence.” 5 ILCS 140/11(j)

(West 2022).

¶ 45 Here, the trial court noted that the City did not produce the relevant records on June 2,

2023, as required, but nevertheless concluded the delay was not a “deliberate, dishonest attempt

to violate FOIA.” The court reasoned that the City attested it did not have the records on June 2,

it “retrieved” them several months later, and it ultimately produced them as part of the summary

judgment motion.

¶ 46 Tobias maintains that, viewing the evidence in a light most favorable to him as plaintiff,

there remains an issue of material fact as to whether civil penalties are warranted,

notwithstanding the documents’ production. See Staake v. Department of Corrections, 2022 IL

App (4th) 210071, ¶ 32 (finding that although the requested FOIA documents were produced

mid-litigation, the civil penalties claim survived); Martinez v. City of Springfield, 2022 IL App

(4th) 210290, ¶ 43. He requests further proceedings to resolve this issue and an opportunity to

file a petition for civil penalties. We review the matter de novo. See Pielet v. Pielet, 2012 IL

112064, ¶ 30; Staake, 2022 IL App (4th) 210071, ¶ 28; but see Thomas v. County of Cook, 2023

IL App (1st) 211656, ¶ 16 (applying a manifest-weight-of-the-evidence standard of review);

Edgar County Watchdogs v. Joliet Township, 2023 IL App (3d) 210520, ¶ 31 (same); Rock River

Times v. Rockford Public School District 205, 2012 IL App (2d) 110879, ¶ 48 (same).

¶ 47 The Plain Language of Subsection 11(j) of FOIA

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¶ 48 As set forth earlier, when interpreting a statute such as FOIA’s subsection 11(j), we must

honor the legislature’s intent. The most reliable indicator of that intent is the statute’s language,

given its plain and ordinary meaning. Special Prosecutor, 2019 IL 122949, ¶ 23. To reiterate, the

public body must have “willfully and intentionally failed to comply” with FOIA “or otherwise

acted in bad faith.” 5 ILCS 140/11(j) (West 2022). A willful act is “done deliberately,” while an

intentional act is “done by intention or design.” Merriam-Webster Online Dictionary,

www.merriam-webster.com/dictionary/willful (last visited Dec. 12, 2025)

[https://perma.cc/6PY8-NRHA]; Merriam-Webster Online Dictionary, www.merriam-

webster.com/dictionary/intentional (last visited Dec. 12, 2025) [https://perma.cc/H6SJ-DPWE].

“Bad faith” signifies a “lack of honesty in dealing with other people” and also “intentional

deception, dishonesty, or failure to meet an obligation or duty,” while “otherwise” is an adverb

modifying the verb “acted” and means “in a different way or manner.” Merriam-Webster Online

Dictionary, www.merriam-webster.com/dictionary/bad%20faith (last visited Dec. 12, 2025)

[https://perma.cc/38R8-WQKT]; Merriam-Webster Online Dictionary, www.merriam-

webster.com/dictionary/otherwise (last visited Dec. 12, 2025) [https://perma.cc/3MR2-UFJ7].

¶ 49 Thus, to warrant civil penalties, the City’s failure to comply with FOIA had to be done

deliberately and by intention/design or the City had to in some different way act dishonestly or

fail to fulfill its statutory duty. But see Williams v. Bruscato, 2021 IL App (2d) 190971, ¶ 15

(declining to honor the disjunctive, “or,” and concluding that civil penalties are warranted only

when a public body “intentionally *** deliberately, by design, and with a dishonest purpose”

fails to comply with FOIA (emphasis added)); Thomas, 2023 IL App (1st) 211656, ¶ 15 (cases

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cited therein following Williams). Ultimately, a plaintiff moving for civil penalties must establish

that they are warranted. 6 Williams, 2021 IL App (2d) 190971, ¶ 17.

¶ 50 Subsection 11(j) of FOIA as Applied to this Case

¶ 51 Here, the City does not dispute it failed to comply with the FOIA deadlines, but

maintains the record “is devoid” of evidence establishing intentional, willful, or bad faith

conduct on its part. 7 It relies on Skelton’s affidavit. As stated, Skelton attested that he did not

provide Tobias the records by June 2, 2023, because he did not have them at that time. He further

attested that he also did not provide the records when received “on [the] advice of counsel” and

due to the complaint Tobias filed. To reiterate, according to Skelton’s affidavit, he sought

records from the city-issued cell phone of Guidice on May 26, 2023. As Guidice was not then

enrolled in the archiving system, the search must have occurred at a later date, but Skelton

attested he received responsive texts on July 13, 2023. Mayor Johnson’s city-issued cell phone

was searched on August 24, 2023, revealing no responsive texts. Skelton himself also searched

Mayor Johnson’s personal cell phone on August 11, 2023, locating various text messages

between Mayor Johnson and Davis Gates. The City ultimately produced the public records on

November 20, as part of its summary judgment motion.

¶ 52 Tobias argues the City failed to offer a good-faith explanation for the delay. Relying on

BlueStar Energy Services, Inc. v. Illinois Commerce Comm’n, 374 Ill. App. 3d 990 (2007), the

City responds that good faith must be presumed from Skelton’s affidavit. See City of Chicago v.

Janssen Pharmaceuticals, Inc., 2017 IL App (1st) 150870, ¶¶ 26-29 (finding Bluestar

superseded by statute). In Bluestar (relying on Carney v. United States Department of Justice, 19

6 Nothing in section 11(j) precludes a court from sua sponte imposing a civil penalty on a public body for failing to comply with FOIA. 5 ILCS 140/11(j) (West 2022). 7 We note that in the City’s answer, it admitted that it had not produced the records and that it was also aware of FOIA’s statutory deadlines.

19 No. 1-24-1435

F.3d 807, 812 (2nd Cir. 1994)), the court observed that where affidavits supply facts that an

agency has conducted a thorough search and give reasonably detailed explanations for why

withheld documents are exempt, they are adequate on their face to sustain the agency’s burden

under FOIA at summary judgment; further discovery is unnecessary. BlueStar, 374 Ill. App. 3d

at 996-97. Bluestar asserted the “[a]ffidavits submitted by an agency are accorded a presumption

of good faith.” (Internal quotation marks omitted.) Id. at 997.

¶ 53 We find the City’s reliance on Bluestar misplaced where the City’s affidavit in this case

reveals an admitted FOIA violation with the almost two-month search delay and a sixth-month

delay in records production. Also, as explained immediately below, all of the initial exemptions

were abandoned. The affidavit thus was not “adequate” on its face in that regard, and this rebuts

any presumption of good faith. Dovetailing with this point, the affidavit was not reasonably

detailed. See id. at 996-97; see also Kelly, 2019 IL App (1st) 170780, ¶ 24 (noting, affidavits that

are conclusory or overly vague or sweeping are insufficient). Skelton’s statement that he did not

have the documents on June 2, 2023, when due, offers no explanation for why the cell phone

searches were conducted months later; it could be an innocent, perfectly justifiable explanation,

or not. However, summary judgment should be denied when reasonable people can “draw

divergent inferences from undisputed facts.” Outboard Marine Corp. v. Liberty Mutual

Insurance Co., 154 Ill. 2d 90, 102 (1992). At the very least, this delay raises a question of fact

regarding whether the City’s violation was in bad faith. Bad faith encompasses dishonesty and a

failure to meet an obligation with due diligence. 8 See Smith v. Airoom, Inc., 114 Ill. 2d 209, 222

8 We agree with the City that a delay, by itself, does not constitute grounds for a civil penalty under subsection 11(j). The legislature expressly acknowledged that there could be some delays, with the consequences held against the public body. See 5 ILCS 140/3 (West 2022) (noting, “A public body that fails to respond to a request within the requisite periods *** but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to

20 No. 1-24-1435

(1986) (noting, “due diligence” requires a party to have “a reasonable excuse for failing to act

within the appropriate time”).

¶ 54 Pointing to Skelton’s affidavit, the City also cites the ongoing litigation as reason for the

delay in handing over records. The City writes, “it was not ‘bad faith’ for the City to take the

time to review the matter and follow standard litigation procedures” or “consider its litigation

strategy.” The City adds this “does not support an inference that it deliberately violated FOIA.”

We reject this position for a number of reasons.

¶ 55 First, Skelton’s affidavit does not address litigation strategy. Second, and most notably,

the City filed its answer to Tobias’s June complaint on August 4, 2023, denying the claim that it

had failed to adequately search for responsive records. That same date, the City also filed

affirmative defenses asserting the records were exempt and, accordingly, Mayor Johnson’s text

messages “were properly withheld.” See supra ¶ 7. Yet, Skelton did not search Mayor Johnson’s

city-issued or personal cell phone until mid-to-late August, which was after the City filed its

answer and affirmative defenses. The City admitted as much during oral arguments in the trial

court, with its lawyer stating, “I did not have the texts at the time of my answer.”

¶ 56 “Standard litigation procedures” do not include claiming FOIA exemptions without

having obtained and reviewed the underlying records at issue. 9 That practice is contrary to the

respond to a request received may not treat the request as unduly burdensome under subsection (g).”). However, as set forth, it is not clear whether the delay in this case was willful, intentional, or otherwise in bad faith, which is prohibited. 9 The City justifies its conduct, arguing that its appearance and answer were due August 6, 2023, within 30 days of service and before Skelton could effectuate the searches of Mayor Johnson’s cell phones. In so arguing, the City relies on Illinois Supreme Court Rule 181(a) (eff. July 17, 2020), but that rule applies only when the summons expressly requires an appearance within 30 days. The summons in this case was silent in that regard. Likewise, after an appearance under Rule 181(a), the trial court then directs the timeline for the answer or another appropriate motion. In other words, Rule 181 does not require a defendant to file affirmative defenses without first reviewing the underlying documents.

21 No. 1-24-1435

letter and spirit of FOIA. See 5 ILCS 140/7 (West 2022) (requiring a public record, with any

elected redactions due to exemptions, to be available for inspection and copying); Id. § 9(b)

(requiring a denial claiming an exemption to include “a detailed factual basis and a citation to

supporting legal authority”); Special Prosecutor, 2019 IL 122949, ¶ 25 (“FOIA’s exceptions to

disclosure are to be construed narrowly so as not to defeat the intended statutory purpose.”). To

hammer our point, the City could not provide a detailed factual basis for an exemption because it

had not read all the requested records when it claimed the exemption.

¶ 57 Third, the “litigation” defense also does not hold water where the City later abandoned all

of the claimed exemptions. 10 Except for some personal communications from Mayor Johnson’s

own cell phone, which were redacted because they did not pertain to the transaction of public

business, all of the requested records were required to be produced. See 5 ILCS 140/1.2 (West

2022) (noting that a public body’s records “are presumed to be open to inspection or copying”).

Fourth, the City has not adequately explained why it did not simply send the requested records to

Tobias via its attorney around the time the devices were searched. See Green, 2022 IL 127229,

¶ 37 (under FOIA, the government must provide public records as expediently and efficiently as

possible). We further reject the City’s argument that it attached the documents to its summary

Second, that the litigation dates outpaced the City’s search dates does not eliminate the question of why the search dates were delayed initially. As Tobias observes, FOIA requires a public body to comply with a request, at most, in 10 business days. 5 ILCS 140/3(d) (West 2022). Likewise, the City could have easily sought a continuance to file its answer and affirmative defenses but chose not to. Both parties also dispute whether the City’s attorney violated Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018), which provides that an attorney’s signature on a pleading signifies it is “well grounded in fact” and “warranted by existing law” after reasonable inquiry and not filed for “any improper purpose,” such as “unnecessary delay or needless increase in the cost of litigation.” We need not enter into this fray, as we are tasked only with deciding whether the record, when read in a light most favorable to the nonmoving party, creates a question of fact as to whether the City was willful and intentional in violating FOIA or otherwise acted in bad faith. 10 In its written order, the trial court noted that the City had not claimed a statutory exemption for the text messages from Mayor Johnson’s personal cell phone but, rather, claimed the redacted material did not qualify as a public record under FOIA. See 5 ILCS 140/2(c) (West 2022).

22 No. 1-24-1435

judgment motion, instead of producing them sometime beforehand during litigation, because

Tobias did not submit a discovery request for evidence. Tobias responds, and we agree, that this

argument fails where the “production of responsive records in a FOIA case is not ‘evidence,’ ”

but “the very relief being sought.” The City’s line of reasoning also contradicts its arguments,

discussed below, that Tobias is not entitled to discovery on civil penalties.

¶ 58 Last, the records consisted of only four pages with a single redaction, which raises the

question of why the City would need “time to consider its litigation strategy,” as it now claims.

That does not appear to be an acceptable excuse. The foregoing smacks of dishonesty and a lack

of due diligence, which could amount to bad faith. See Smith, 114 Ill. 2d at 222 (noting, in

determining the reasonableness of an excuse, all circumstances must be considered, including the

conduct of the litigants and their attorneys); cf. Edgar County Watchdogs, 2023 IL App (3d)

210520, ¶¶ 33, 35 (affirming the denial of a civil penalties petition, where the township

reasonably interpreted the plaintiff’s FOIA request as onerous and sought to recoup costs that,

although not statutorily supported, did not reflect bad faith).

¶ 59 Staake is instructive. There, this court concluded that questions of fact remained as to

whether the Department of Corrections (DOC), in bad faith, withheld records sought by an

inmate under FOIA. Staake, 2022 IL App (4th) 210071, ¶ 51. We noted that the DOC claimed

exemptions without offering a detailed factual basis and only produced the redacted records after

the inmate initiated litigation. Id. ¶¶ 48-49. The DOC changed its reasoning for withholding a

record when it was clear the alleged exemption did not save the DOC from producing the

document. Id. ¶ 50. This court, accordingly, reversed the trial court’s granting of summary

judgment to the DOC and remanded for further proceedings as to civil penalties. Id. ¶ 58.

23 No. 1-24-1435

¶ 60 As in Staake, here, the process of withholding documents, the significant delay, and the

mid-litigation production of records warrant further scrutiny. 11 Questions of fact remain

regarding whether the City acted in bad faith, if not intentionally and willfully. Based on the

foregoing, the City failed to fulfill its burden of persuasion and production as the moving party.

See Williams v. Covenant Medical Center, 316 Ill. App. 3d 682, 688-89 (2000). Even assuming

the City did fulfill its burden, thus shifting it to the nonmovant, Tobias has pointed to facts in the

pleadings that would arguably entitle him to civil penalties. See id. at 689 (noting that a party

opposing summary judgment may rely solely upon the pleadings to create a question of material

fact).

¶ 61 Relief Requested

¶ 62 Tobias requests that we remand the matter for further discovery. Initially, the City argues

that Tobias forfeited this issue by failing to file an Illinois Supreme Court Rule 191(b) (Jan. 4,

2013) affidavit seeking discovery. See Kleiber v. Freeport Farm & Fleet, Inc., 406 Ill. App. 3d

249, 261 (2010) (finding the plaintiff forfeited the argument that granting the defendant summary

judgment was premature, where she failed to seek a continuance and file a Rule 191(b) affidavit

for additional discovery).

¶ 63 Here, however, the City moved for summary judgment as to civil penalties by pointing

out the absence of evidence supporting Tobias’s assertion of penalties in his complaint. See

Illinois State Bar Ass’n Mutual Insurance Co. v. Mondo, 392 Ill. App. 3d 1032, 1036 (2009); see

also Jiotis v. Burr Ridge Park District, 2014 IL App (2d) 121293, ¶ 25 (noting that, in a Celotex-

type motion, the defendant asserts the nonmovant’s evidence is insufficient to avoid judgment as

Whether litigation prompted the records’ production is also a relevant inquiry when considering 11

whether to award attorney fees. See Uptown People’s Law Center, 2014 IL App (1st) 130161, ¶ 20 (noting, successful plaintiffs may obtain attorney fees regardless of the extent to which they prevail, however slight); see also Martinez, 2022 IL App (4th) 210290, ¶¶ 43, 46.

24 No. 1-24-1435

a matter of law); Williams, 316 Ill. App. 3d at 688 (identifying the “Celotex test”). A plaintiff is

not required to comply with Rule 191(b) where, as here, a defendant files a Celotex-type

summary judgment motion. See Jiotis, 2014 IL App (2d) 121293, ¶ 26; Williams, 316 Ill. App.

3d at 692. “Although a plaintiff must comply with Rule 191(b) when a defendant has

affirmatively shown that it is entitled to judgment, it is quite another matter to require such

compliance when defendant, at an early stage, merely suggests that plaintiff is unable to prove

his case.” Williams, 316 Ill. App. 3d at 692.

¶ 64 The City also effectively argues that Tobias, by pursuing discovery, is improperly filing

an “independent claim for civil penalties.” We reject this assertion, even if the City forfeited it

below, as Tobias argues. See Finko v. City of Chicago Department of Administrative Hearings,

2016 IL App (1st) 152888, ¶ 24 (“Failure to raise an issue before the trial court forfeits review of

that issue on appeal.”). Tobias’s pursuit of penalties is directly tied to his declaratory judgment

action filed against the City for FOIA violations. See In re Marriage of Best, 228 Ill. 2d 107, 117

(2008) (discussing declaratory actions). As stated, notwithstanding the documents’ mid-litigation

production, which satisfied part of Tobias’s requested relief, civil penalties still may be

warranted for the violations. See Staake, 2022 IL App (4th) 210071, ¶¶ 31-32. The remedy

available is entirely dependent on subsection 11(j). In his complaint, Tobias requested as relief

the civil penalties under 11(j), and he also requested a further investigation in response to the

City’s summary judgment motion. Even the City’s case on which it relied, BlueStar, 374 Ill.

App. 3d at 996-97, notes that discovery is a natural progression following summary judgment in

FOIA cases. Accordingly, we reject the City’s argument challenging Tobias’s request for

discovery.

25 No. 1-24-1435

¶ 65 We similarly reject the City’s claim that an evidentiary hearing would be inappropriate.

See, e.g., Hites, 2016 IL App (2d) 150836, ¶¶ 14-20 (trial court held an evidentiary hearing on

the defendant public body’s motion to dismiss). The City merely rehashes arguments regarding

its summary judgment motion that we have already rejected. However, given that subsection

11(j) permits the circuit court to impose only at most $5,000 for each violation, we expect the

parties to be expeditious in resolving the civil penalties matter. See 5 ILCS 140/11(j) (West

2022). A short evidentiary hearing would seem to be the more suitable route.

¶ 66 III. CONCLUSION

¶ 67 Based on the foregoing, we affirm the granting of summary judgment in favor of the City

in part and reverse the granting of the summary judgment in part, as to the matter of civil

penalties. We remand for further proceedings consistent with this decision on whether civil

penalties are warranted.

¶ 68 Affirmed in part and reversed in part; cause remanded.