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Thursday, January 29, 2015

First PAC Opinion of 2015 Finds Public Body in Violation of FOIA

In the first binding opinion of 2015, the PAC found a public body in violation of FOIA for refusing to provide records to the PAC for review and failing to adequately demonstrate that the records were exempt from disclosure.   PAC 15-001

Mr. Holtz submitted a FOIA request to the Illinois Department of Financial and Professional Regulation (IDFPR) asking for a variety of records relating to a complaint against licensed engineers. the IDFPR denied the request, asserting various exemptions under FOIA.  On appeal, the PAC requested the IDFPR to send the responsive records and any additional support for the exemptions. The IDFPR responded that disclosure of the records would violate a licensee's procedural due process rights.  The IDFPR did not provide copies of the responsive records to the PAC.  

The PAC first noted that section 9(b) of FOIA requires a public body to provide a "detailed factual basis for the application of any exemption claimed."  The IDFPR simply cited the exemptions, and the PAC determined that violated section 9(b).

Second, the PAC determined that the IDFPR's refusal to provide copies of the responsive records for confidential review violated section 9.5(c) of FOIA which requires a public body to "provide copies of records requested and...otherwise fully cooperate with the Public Access Counselor."

Third, with respect to the cited exemptions, the PAC rejected all of the IDFPR's stated exemptions for denial of the request for records relating to the investigation of a licensee, because (1) it did not offer any detailed facts to support the cited exemptions and (2) it did not provide copies of the records for the PAC to review to determine whether the cited exemptions were valid.

Finally, the PAC found the IDFPR in violation of FOIA for failing to conduct a "reasonable search" for records when it referred the requester to the IDFPR's website for meeting minutes.  This opinion did not consider P.A. 98-1129, which added a new section 8.5 (reprinted below) that allows public bodies to direct people to the public body's website for records.  That may be because the law became effective in December of 2014, a couple of months after the initial FOIA request was filed with the IDFPR.  
Sec. 8.5. Records maintained online. 
   (a) Notwithstanding any provision of this Act to the contrary, a public body is not required to copy a public record that is published on the public body's website. The public body shall notify the requester that the public record is available online and direct the requester to the website where the record can be reasonably accessed. 
    (b) If the person requesting the public record is unable to reasonably access the record online after being directed to the website pursuant to subsection (a) of this Section, the requester may re-submit his or her request for the record stating his or her inability to reasonably access the record online, and the public body shall make the requested record available for inspection or copying as provided in Section 3 of this Act.
Post Authored by Julie Tappendorf


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