FOIA Does Not Require Creation of Records
Anyone familiar with the Illinois Freedom of Information Act is aware that the law states that public bodies are not required to create new records to satisfy a FOIA request. FOIA is intended to open up to public inspection existing public records, not create a new burden on public bodies to create new documents. Newspaper reporters should certainly be well familiar with the law given the number of FOIA requests they routinely and regularly file with public bodies. So should the PAC, the state agency tasked with enforcing FOIA. Yet, an appellate court had to remind the Chicago Tribune and the PAC that a state agency did not have to answer questions, analyze data, or create new records in Chicago Tribune Co. v. Department of Financial and Professional Regulations (March 6, 2014).
The Chicago Tribune had filed multiple requests with the DFPR regarding medical licenses. Specifically, the Tribune wanted the DFPR to disclose the number of license holders who have been identified as sex offenders, the names of those license holders, the number of complaints that had been filed against those license holders, how they were resolved, and similar information. A supplemental request asked for a timeline of each case where a license holder had been disciplined by the DFPR, and asked whether the DFPR had been aware of criminal charges.
The DFPR responded by providing certain records, but denying the Tribune's request for other records as exempt from disclosure. With respect to the Tribune's request for answers to its questions, the DFPR responded that it did not maintain the number of complaints in the ordinary course of business.
The Tribune appealed to the PAC, who found the DFPR in violation of FOIA for not disclosing the number of complaints, as requested by the Tribune. The Tribune also sued the DFPR in circuit court claiming it violated FOIA for not answer its question as to the number of complaints filed against license holders. The trial court ruled in favor of the Tribune, and the DFPR appealed.
First, the appellate court addressed the Tribune's argument that the DFPR waived its argument that FOIA doesn't require the creation of records during the PAC appeal, finding that there is no mention of waiver under FOIA.
Second, the court held that FOIA provides a right of access to public records. Here, the Tribune was not seeking public records, but was requesting that the DFPR perform a review of its investigative files and prepare a tally of the claims. FOIA, however, was not intended to create any obligation on the part of a public body to prepare a record that was not already maintained or in existence. The court noted that the Tribune's request was more like an interrogatory in a civil action than a request for records under FOIA. Because the Tribune's request would have required the DFPR to create new records it didn't maintain, the court reversed the ruling by the trial court and PAC, finding no violation of FOIA.
This is a good decision for public bodies, as it reinforces the intent of FOIA, which is to provide access to public records maintained by a public body. FOIA does not require a public body to answer questions, analyze data, or create new records.
Post Authored by Julie Tappendorf, Ancel Glink
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