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Thursday, September 11, 2014

Village Violates FOIA By Not Searching All Records Systems

The PAC issued its 10th opinion for 2014 recently, finding a public body in violation of FOIA.  PAC Op. 14-010.  A news reporter filed a FOIA request with Sauk Village asking for records pertaining the village clerk's and a trustee's trip to Washington DC for the "Building One America Summit."  The Village responded that it had no responsive public records because the trip was not sponsored, approved, or funded by the Village and the trip did not "relate to official actions" nor did it involve the transaction of public business or affairs.  The reporter filed a complaint with the PAC, and the PAC concluded  that (1)  the records were public records and (2)  the Village failed to conduct a reasonable search, and ordered the Village to "search all recordkeeping systems - including the Village Clerk's records that are likely to contain responsive information concerning the summit and to provide those records" to the reporter.   The Village responded again that there were no responsive records.

Eight months later, the reporter filed another FOIA request for records relating to the summit.  The Village denied portions of the request on the basis that the request were unchanged or identical to the previous request and that the Village had no responsive records.  The reporter again appealed to the PAC.

Citing federal cases interpreting the federal FOIA, the PAC stated that a public body is required to conduct a "reasonable search tailored to the nature of a particular request." In this case, the PAC determined that the Village did not prove that it made any efforts to locate records responsive to the request.  

Based on this opinion and a previous opinion issued earlier this year, the PAC's position is that a public body must not only conduct a search for records, but it also has an obligation to prove to the PAC that it conducted a search "of all records systems likely to contain responsive records."  The PAC's opinion is supported solely by federal case citations, presumably because there are no Illinois court cases that have interpreted the Illinois FOIA to require such proof.  

There is no argument that a public body should conduct a reasonable search for records in response to a FOIA request.  The PAC is taking that a step further, however, by requiring a public body to prove that it conducted a search of all records systems.  In those situations where there simply are no responsive records, the burden will be on the public body to somehow prove that these records don't exist - in essence, prove a negative.  It's not clear how a public body can do that shy of providing access to its paper files and turning over passwords to its electronic records systems to let the PAC do its own search.  

Post Authored by Julie Tappendorf

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