| by Michael Graham

1. Introduction to Illinois Freedom of Information Act (FOIA)

The Illinois Freedom of Information Act or “FOIA” is a state law that gives private citizens the right to request and view documents and data from the Illinois state government, as well as from local municipal governments.

FOIA is one of the strongest tools that citizens, government watchdogs and journalists have to hold government officials accountable and ensure their local and state governments are operating transparently.

This guide explains how the FOIA process works, along with providing some information as to what is or is not accessible under FOIA. This information is not legal advice and should not be relied upon as such. Furthermore, this guide deals primarily with FOIA requests being made on behalf of individuals or non-profit/educational organizations. FOIA requests that are commercial in nature have additional requirements and restrictions that are not covered here.

 

2. What You Can Obtain with FOIA

All records in the custody or possession of a government body are open to the public for inspection or copying, unless specific information is exempt from being disclosed. A person submitting a FOIA request is never required to provide a reason for the request in order to obtain the requested information.

FOIA allows public access to “public records” controlled by a “public body.” If a FOIA request is denied, the burden falls on the government office to prove by clear and convincing evidence that a record is exempt. The only limitations that would exempt information from being disclosed in a FOIA is explicitly listed in FOIA law.

The applicable information available for FOIA requests and the rules governing FOIA requests include the items listed below.

“Public records”—Public records are defined as any of the following items, if those items pertain to public business:

“Public bodies”—Public bodies are defined as:

A public body is responsible for a public record if the record was prepared by or for, was used or is being used by, was received by, is possessed by, or is under the control of that public body. The form in which a record is kept (i.e., electronic, paper file) can never prevent a record from being obtained via FOIA.

The following are explicitly NOT public bodies under FOIA:

In addition to the general access to public records, the following categories of records are explicitly subject to FOIA:

The following information must be furnished no later than 72 hours of the arrest at issue:

Records may be withheld if they contain information from the three bullets below and it is determined that disclosure may interfere with law enforcement proceedings, endanger the life or safety of any person, or compromise the security of a correction facility.

 

3. Limitations on FOIA

FOIA requests are a strong tool for gaining access to public records, but there are some significant limitations to what can be accessed by FOIA requests. The two most common limitations of FOIA requests are:

Exempted records—Records that are exempt from FOIA requests include:

This does not include an individual’s name. Information such as an individual’s name is considered “personal information.” This is an extremely important distinction, as private information is presumed to be exempt unless required by state or federal law, or a court order. Personal information, such as an individual’s name, is not presumed to be exempt and would be exempted only under the circumstances laid out below.

Unduly burdensome 

Public bodies are authorized to deny a FOIA request if they deem the request to be “unduly burdensome.” A public body may invoke this exemption only if:

  1. Fulfilling the request would be unduly burdensome on the public body;
  2. There is no reasonable way to narrow the request; and
  3. The burden on the public body outweighs the public interest in the information.

Before claiming this exemption, the public body must contact the requester and give the requester an opportunity to narrow the FOIA request.

If a public body uses this exemption, the public body must provide the requester with a written explanation specifying the reasons why it would be unduly burdensome to comply with the request and the extent to which compliance will actually burden the operations of the public body.

There are not many clear rules about what does or does not constitute an undue burden. Illinois courts tend to use a balancing test between the burden imposed by the request and the value of the requested information. In a case from 2013, an Illinois court found that there was an undue burden when a FOIA request would have required the Illinois attorney general to review over 9,000 documents to fulfill a request for “records that would or could be used for guidance by [any] public body in complying with Illinois’ FOIA laws.” The court found that the request would “require the public body to locate, review, redact and arrange for inspection a vast quantity of material that is largely unnecessary to the requestor’s purpose,” and that this constitutes an undue burden.

However, in a case from 2010, an Illinois court found that a FOIA request that would require “several weeks of full-time work by [government] personnel who need to possess a high level of knowledge and sophistication” did not constitute an undue burden. In that case, the National Association of Criminal Defense Lawyers requested a large amount of information from a number of Illinois police departments in order to study the reliability of eyewitness identification in criminal cases. The important public interest of the requested information, which the court deemed “of vital importance to our criminal justice system,” played a significant role in the court’s determination.

FOIA Format

Below is a sample of an effective FOIA. The last paragraph should be included on every FOIA request. The actual request information is contained in the middle two paragraphs:

The following Freedom of Information Act request is being made on behalf of Project Six. Pursuant to 5 ILCS 140/3(a), we request you provide us the following public records in an appropriate electronic format:

All electronic correspondence sent or received (including via “cc” and/or “bcc”) between January 25, 2015 (01/25/15) and February 10, 2015 (02/10/15) by Jennifer Weathers (an employee at the Department of Family and Support Services), where meet the following criteria:

(1)   The corresponding sender or recipient was Christian Riley, a City of Chicago employee, using the email address chloe.rasmas@cityofchicago.org

Included in the response to this request, and pursuant to 5 ILCS 140/9, we request you include a detailed factual basis for the application of any exemption claimed, including a citation to any supporting legal authority, as well as the name, title and position of each person responsible for the claim of exemption and/or denial.

There are a number of features of note in the request language:

  1. Most importantly, the request is in categorical terms. The request should be framed so that a responding public body can determine without any further analysis whether a document is or is not part of the records being requested. Here, the responder needs only to determine if an email was sent or received within a set of dates, and the sender/recipient are the two city employees named. Any given email will either fit, or not fit, these criteria, without the responder needing to do any further analysis.

For a further example, suppose you wished to FOIA emails concerning a particular subject matter, such as a new zoning ordinance, “The Zoning Act of 2016.” It would be ineffective to request all emails “concerning The Zoning Act of 2016.” A better, categorical request would be all emails in which the phrase “Zoning Act of 2016” appears.

  1. The language is also narrow and specific. Narrow and specific requests leave less room for interpretation/ambiguity, and therefore are likely to lead to faster, more complete responses.
  2. The language highlights the public connections in the request. If an individual is a public employee, that should be noted, as well as the department/agency he or she works for.

 

4. FOIA Process

The following is the standard process for filing a FOIA at Project Six. If a FOIA request is denied or otherwise not complied with, our potential remedies are spelled out in Section 7 (Remedies for Denial).

  1. Draft the request with what you are looking for and which public body is most likely to be in possession/control of the requested records.
  2. Send the FOIA to the appropriate public body/FOIA officer.
  3. Within 5 business days, the public body must either fulfill the request, deny the request, or ask for an extension. If the request is denied, the public body must notify the requester in writing, stating the reasons for the denial and including a detailed factual basis. An extension may be requested only for the following reasons:
    • The requested records are stored in locations other than the office to which the request was sent.
    • The request requires the collection of a substantial amount of records.
    • The request is couched in categorical terms and requires an extensive search.
    • The requested records could not be found via routine search and additional efforts must be made to locate them.
    • The requested records require examination and evaluation to determine if they are exempt/need redactions.
    • The request for records cannot be complied with by the public body within the 5-day timeframe without unduly burdening the public body.
    • There is need for consultation with another public body or two or more components of a public body having a substantial interest in the requested records.
  4. If a public body needs an extension and cites an appropriate reason, the public body may unilaterally extend the time for response by 5 days. The public body and the requester may also mutually agree on an extension beyond the timeframe(s) listed.
  5. If a public body fails to respond within the initial 5-day window, but afterward fulfills the request, the public body may not charge any fees for the request and may not treat the request as unduly burdensome.

 

5. Fees

Under the Illinois FOIA statute, public bodies may charge fees in some situations. The statute also allows for fees explicitly imposed by other state statutes. This section will cover only the fees spelled out in the Illinois FOIA statute. Any fee imposed must be accompanied with an accounting of all fees, costs and personnel hours in connection with the request.

Imposing any fee other than those spelled out above constitutes a denial of the FOIA request. The following are explicit fees that may not be charged.

Fees may be waived or reduced if the requester states the specific purpose of the request and indicates that a waiver or reduction of the fee is in the public interest. Waiver or reduction of the fee is in the public interest “if the principal purpose of the request is to access and disseminate information regarding the health, safety and welfare or the legal rights of the general public and is not for the principal purpose of personal or commercial benefit.” The decision whether or not to waive or reduce any fees is at the discretion of the public body.

 

6. Remedies for Denial

Review by public access counselor 

If a request is denied, the requester may ask for review by the Public Access Counselor, who is housed within the Office of the Illinois Attorney General. The request for review must be made within 60 days of the denial. The request must be in writing, must be signed by the requester, and must include a copy of the FOIA request, as well as any responses from the public body.

If the Public Access Counselor believes there is merit to the review, the counselor will send a formal request for the relevant records to the relevant public body. The request should be made within 7 days of the counselor receiving a request for review. The public body will provide copies of the requested records within 7 days of receiving the counselor’s formal request. If the public body does not comply, the counselor may issue a subpoena for the relevant records.

The public body may, but is not required to, supply a written answer regarding the request to the counselor. The counselor will forward a copy of any such answer to the requester. The requester then may, but is not required to, respond to the written answer within 7 business days. The requester must provide a copy of any response to the public body.

Unless the counselor extends the time (by no more than 30 days, requires a written notice), the counselor will issue a written opinion within 60 days of the request for review. The opinion is binding. The counselor does have the option of attempting to resolve the dispute via mediation or some avenue other than issuing a binding opinion.

Administrative Review 

If a request is denied or otherwise unfilled, the requester may file suit for injunctive and/or declaratory relief. If the denial is from a public body of the state, the suit must be filed in the circuit court for the county in which the public body has its principal office or where the requester resides. If the denial is from a public body of a municipality, the suit must be filed in the circuit court for the county in which the public body is located. If the requester prevails, the court may award the requester reasonable attorneys’ fees. If a court determines the public body willfully and intentionally failed to comply with Illinois’ FOIA statute, the court may impose a fine of $2,500 to $5,000 on the public body for each occurrence.

 

7. The Power of FOIA

The Freedom of Information Act is one of the most powerful tools the media, watchdogs and taxpayers have to hold government accountable and act as independent oversight for our public bodies.

It is important always to remember that the public has a right to information about how their government is operating and how tax dollars are being spent. Ensuring government is operating effectively and efficiently is not the same as accusing them of misconduct or corruption. But without open and transparent government operations, it’s impossible to tell the difference.