Just last month we wrote about the Public Access Counselor office citing the "unduly burdensome" exemption under FOIA in response to a request for copies of that office's advisory opinions. The PAC had advised the requester that because there were over 3000 records that would require review and redaction, it would be unduly burdensome for the PAC to comply with the request. As we noted in our post, because the public body involved in that request was the same office that enforces FOIA, the response could provide some guidance on what the PAC finds "unduly burdensome."
This week, we got a little more insight into the "unduly burdensome" exemption in a newly issued binding PAC opinion. PAC Op. 15-011. Here, on June 22, 2015, a labor union representative filed a FOIA request with IDOT for all certified payrolls for projects awarded in Christian County from June 2014 to present. On July 22, 2015, IDOT responded that it had received the request on July 11, 2015, and requested that he narrow his request to specific contracts as complying with the original request would be unduly burdensome. The requester refused to narrow his request, and instead filed a request for review with the PAC. IDOT defended its actions with the PAC by stating that each certified payroll record contained a variety of exempt information, including social security numbers and other private information, and redaction of the hundreds of pages of records would be a very labor intensive project.
The PAC first determined that IDOT failed to respond to the FOIA request within the statutory time frame. Under section 3(d), a public body that "fails to respond to a request received may not treat the request as unduly burdensome under subsection (g)." Although IDOT did respond to the request, the PAC interpreted this sentence to also apply to untimely responses. As a result, IDOT was precluded from treating the request as unduly burdensome.
Even though the PAC could have concluded its opinion there, it elected to address the issue of whether IDOT could have denied the request as unduly burdensome had it issued a timely response. The PAC noted that this required it to determine whether the public interest in disclosure of the records outweighs the burden of compliance on the public body. In this case, the PAC found that redaction of the certified payroll records would not be unduly burdensome because section 2.10 of FOIA expressly provides that certified payroll records are public records, subject to redaction. Although the PAC recognized that review and redaction of these records was a "burden" on IDOT, it did not find that burden to be undue, in light of the public interest in a union having access to these records. Specifically, the PAC noted that:
Compliance with any FOIA request imposes some administrative burden on a public body. The issue is whether the public interest in disclosure justifies the burden.In short, the PAC found IDOT in violation of FOIA. That makes it 0-11 for public bodies in 2015.