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Wednesday, October 28, 2015

More Guidance on What is "Unduly Burdensome" under FOIA?

As I've noted in past blog posts, there is very little guidance in FOIA as to what constitutes "unduly burdensome" to justify a denial of a large FOIA request.  There is one reported case on use of this exemption. That case involved a FOIA request to the Attorney General herself. There, an appellate court upheld the Attorney General's denial of a request as unduly burdensome where the request would require the AG to compile and review 9,000 records.  You can read more about this case here.

Just last week, some additional guidance came out of the Public Access Counselor's (PAC) office of the Attorney General on what that office finds unduly burdensome. On October 16th, a requester filed a FOIA request with the PAC requesting 2 items.  First, the request asked for copies of all advisory opinions issued by the PAC in response to allegations that a public body violated the Open Meetings Act under 9.5(g) of FOIA. Second, the request asked for copies of any opinions provided to public bodies in response to a public body's request for guidance under 9.5(h) of FOIA. 2015 PAC 038066

With respect to the second request, the PAC responded that it had no such records. Although section 9.5(h) has been around since 2010, apparently the PAC has never responded to a public body's request for guidance under either FOIA or the OMA.

In response to the first request, the PAC determined that the request was unduly burdensome. Specifically, the PAC noted that there were 1,819 responsive records, or approximately 3,638 pages of records. The PAC noted that it would take over 90 hours to complete the review and redaction of these records. As a result, the PAC requested that the requester narrow the scope of the request or it would be denied. The PAC suggested that the request be narrowed to a 2 or 3 month time frame or by specific, identified issues. 

Many of you know that I have expressed my opinion that the PAC (the enforcer of transparency in Illinois) could be far more transparent itself by posting these advisory opinions on its website. These opinions would be helpful by providing public bodies with guidance on issues such as what might constitute "unduly burdensome," or how to interpret the public comment requirement of the OMA. Yet, not only are these advisory opinions not available on the PAC's website, according to this letter, they may not be available through FOIA. It certainly seems to be 90 hours well spent to post these advisory opinions online and make them publicly available and accessible. It would also go a long way to demonstrating the importance of transparency by all public officials, including those charged with enforcing these transparency laws.  

Post Authored by Julie Tappendorf


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