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Tuesday, November 22, 2016

Complete Failure to Respond to FOIA is a Violation

It's the year end rush for the Illinois Attorney General to publish binding Public Access Counselor (PAC) opinions.  Today's opinion is interesting more for what it didn't say, than what it did.

Last week, the PAC issued PAC 16-010, finding the Chicago Public Schools (CPS) in violation of FOIA for failing to timely respond to a FOIA request. The Sun-Times had filed a FOIA request seeking copies of all invoices submitted to CPS from an auditing company. The newspaper received an automatic email reply from CPS stating as follows:
Due to the high volume of FOIA requests received by CPS, we are unable to fulfill your request within 5 business days. Section 3(e)(vi) of FOIA permits CPS to extend the response time to 10 business days if a request cannot be fulfilled in 5 business days without unduly burdening or interfering with the operations of the District. We hereby extend the response time to your FOIA request to 10 business days in accordance with 5 ILCS 140/3(e)(vi).
A month after submitting the request to CPS, the newspaper filed a request for review with the PAC alleging that it still had not received a response to its FOIA request.  

It will come as no surprise that the PAC found CPS in violation of FOIA for its complete failure to respond to the FOIA request. What is interesting is what the PAC didn't address - whether the "auto-extension" email used by CPS to automatically extend the time for response to all FOIA requests by an additional 5 business days is sufficient under FOIA. Certainly, public bodies are expressly authorized to take a 5 day extension under section 3(e)(vi), so long as it informs the requester as to which of the statutory reasons it relies on for extending the time. Apparently, the PAC found CPS' rationale in its "auto-extension" (that the extension was needed due to a high volume of FOIA requests) an adequate justification for the additional 5 day response time. Of course, the fact that CPS did not respond within the statutory time period, as extended, or properly deny the request, resuling in the PAC's finding that CPS violated FOIA.

Post Authored by Julie Tappendorf


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