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Monday, March 7, 2016

Appellate Court Reverses Dismissal of FOIA Based on “Reasonable Access”

Section 8.5 of FOIA was recently enacted to allow public bodies to refer requesters to the public body's website to access public records. We have reported on this blog previously how this FOIA amendment it benefits both public bodies and requesters by (1) encouraging more transparency of public records and (2) eliminating some of the administrative burden on public bodies to respond to individual requests, where the records are already available online.  Recently, a court had to interpret section 8.5, and specifically the provision that requires the records to be "reasonably accessed" on the website.

In this case, Garlick submitted a FOIA request to Naperville Township asking for property details and assessment data for the entire township. Specifically, he wanted the database in its native format, and the “N07” root/parent directory and all sub-directories, including jpeg files.  The Township assesses real property for taxation purposes and has information on about 32,000 real estate records and parcels, all available on the Township's website.  The Township responded by referring Garlick to the Township's website where the records were available electronically, and cited section 8.5 of FOIA, which allows a public body to refer a requester to its website for posted materials.

Garlick then filed suit against the Township alleging a violation of FOIA. He argued that requiring him to launch 32,000 independent web searched to obtain the information he requested in his FOIA request violated the Act’s purpose.  He also argued that copying the database would not constitute the creation of a new record.

The Township responded that FOIA no longer requires a public body to copy records that are available online, that Garlick had reasonable access to the records, and that FOIA does not require a public body to create records in a specific format.  The trial court ruled in the Township’s favor, finding that Section 8.5 of the Acct was applicable.

Garlick appealed and the appellate court reversed the trial court’s decision.  The court reviewed the language of section 8.5, which states as follows: 
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.  5 ILCS 140/8.5(a).  
The court held that requiring Garlick to perform 32,000 searches (which according to Garlick would require around 2,600 hours of his time) was enough to raise a question as to whether the records requested by Garlick could be "reasonably accessed" as required by section 8.5.  The court then sent the case back to the trial court to make that determination. Garlick v. Naperville Township, 2016 IL App (2d) 150381-U (February 22, 2016).

We will continue monitoring this case to see how the court holds.

Post authored by Erin Baker, Ancel Glink


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