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Monday, October 7, 2013

FOIA Request for Attorney General Records Denied as Unduly Burdensome

The Illinois Attorney General's office often wears two hats when it comes to the Illinois Freedom of Information Act.  First, the Attorney General is a "public body" subject to the FOIA.  Second, the Attorney General office is home to the Public Access Counselor, the "enforcer" of the FOIA (as well as the Open Meetings Act). 
Recently, the Attorney General had occasion to wear both hats (public body subject to FOIA and enforcement agency).  In  Shehadeh v Madigan, 2013 IL App (4th) 120742 (October 4, 2013), the AG office received and denied a FOIA request, and then issued an opinion finding that the denial was appropriate.  Without even mentioning the potential conflict of interest in this unlikely scenario, both the circuit court and appellate court ruled in favor of the Attorney General, finding that the Attorney General's denial of the request based on the unduly burdensome exception was proper.
The facts leading up to that decision, including a timeline of events, are summarized below: 
  • On February 11, 2013, the plaintiff filed a FOIA request with the Attorney General for "copies of any publications, opinions, reports or other records that would or could be used for guidance by [the Attorney General's] office or any other public body in complying with Illinois' FOIA laws."
  • On February 15, 2012, the Attorney General stamped the FOIA request as received.
  • On February 24, 2012, the Attorney General responded to the FOIA request by stating that the office had determined that producing copies of all of the requested records would be unduly burdensome under Section 3(g) of FOIA.  The response asserted that a search had turned up 9,200 potentially responsive records, and that it would be unduly burdensome for staff to go through each file to determine which of these records were responsive and then review and redact exempt information from those responsive records.  The response also requested that plaintiff narrow his request.
  • On February 27, 2012, plaintiff responded that the response was untimely because it was not meet the 5 business day requirement of FOIA.  Plaintiff also rejected the request to narrow and stated that the office was trying to circumvent FOIA.
  • On February 28, 2012, plaintiff filed an appeal with the Public Access Counselor of the Attorney General's office.
  •  On March 8, 2012, the Attorney General responded to plaintiff's 2/27/12 letter by stating its response  was timely, and reiterating its unduly burdensome argument.
  • On March 9, 2012, the PAC office of the Attorney General responded to plaintiff's 2/28/12 appeal by stating that the Attorney General's response was timely and finding that the request was unduly burdensome in light of the 9,200 potential responsive records.
  • On March 15, 2012, plaintiff filed suit in circuit court.  The circuit court ruled in favor of the Attorney General, finding that it had complied  with FOIA. 
On appeal, the appellate court agreed with the lower court, finding that the Attorney General properly cited and used the "unduly burdensome" exception to FOIA, for the reasons that follow: 
First, a public body is not required to prove the adequacy of its search for requested records.  Here, the Attorney General asserted that its search turned up over 9,000 records, and that was sufficient for the court.
Second, nothing in FOIA precluded the Attorney General from asserting the unduly burdensome exception even after plaintiff refused to narrow his request.
Third, the Attorney General was not required to provide affidavits of staff members or otherwise prove its claim that producing the records would be unduly burdensome.  Section 3(g) only requires a public body to specify in writing the reasons compliance would be unduly burdensome and the extent to which compliance would burden the operations of the public  body.  Here, the Attorney General explained that staff would have to go through 9,000 records to determine if they were responsive and then review and redact exempt information.  That was sufficient justification for the court.
The court also rejected plaintiff's argument that the Attorney General has substantial resources at its disposal to deal with FOIA requests, finding that reviewing these documents would impede staff's ability to "perform its other duties in a timely fashion."
This case is an important one for public bodies, as there has been little or no guidance from the courts on what is meant by the "unduly burdensome" exception to FOIA.  Although FOIA is clear that a public body is entitled to use this exception after it has requested that a requester narrow a FOIA request, many public bodies have been hesitant to use this exception because of the very liberal review of FOIA challenges, particularly by the PAC office of the Attorney General, where all but one PAC binding opinion has gone against the public body. 
Public bodies now appear to have permission to use this exception, and a road map as to how to cite this exception by first requesting that the requester narrow his or her request, and if he or she refuses, citing written support for the exception by explaining why compliance would be unduly burdensome and the extent of those burdens.  One would hope that the PAC and the courts will now be receptive to public body use of this exception so long as the public body's use is reasonable and justified.


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