Binding PAC Opinion Provides Guidance on "Unduly Burdensome" Provision of FOIA
Two binding opinions were recently issued by the PAC - that's 2 in one month and it's only November 10th! We'll report on these over the next two days.
In PAC Op. 16-008, the PAC found a public body in violation of FOIA for improperly denying a FOIA request as unduly burdensome. The request asked for digital copies of emails between a City official and planning consultants from June 1 through July 1, 2016. The FOIA officer responded that the request would be unduly burdensome as there were more than 50 emails, consisting of over 100 pages, plus attachments, and asked the requester to narrow the request. The requester responded by filing a complaint with the PAC, objecting to the denial.
The City responded to the complaint by stating that it did not deny the request, but simply asked the requester to narrow the scope of the request because it could take several hours by two City employees to compile and review the documents for appropriate redactions.
The PAC provided some guidance on how the "unduly burdensome" provision of FOIA works.
First, the PAC stated that the act of informing a requester that a request is unduly burdensome and asking the requester to narrow it is, in and of itself, a denial under FOIA. The City argued that it had not intended the request to narrow as a denial, and should had an opportunity to decide to provide the documents had the requester responded that it would not narrow its request. The PAC rejected that argument, stating that FOIA provides that a request to narrow is a denial.
Second, the PAC analyzed whether the request was "unduly burdensome" under FOIA. Interestingly, the PAC cited the Shehadeh v. Madigan case, which involved the Attorney General's own use of the unduly burdensome provision of FOIA to deny a request involving about 9,000 records. In that case, as you may recall, the court held that the Attorney General did not violate FOIA when it denied the request as unduly burdensome. Nevertheless, the PAC did not take the same position with the City's use of that same provision in this case. Instead, the PAC determined that in this case, "compliance with the requirements of this Act is a primary duty of public bodies to the people of this State." The PAC acknowledged that retrieval and review of 174 pages of documents might impose a burden but ultimately concluded that the City failed to show that compliance "would so burden the operations of the City as to outweigh the public interest in the disclosure of the requested records." In other words, compliance with the FOIA request outweighed the burden to the City in this case, but when a request involves the Attorney General, the opposite holds true.
In sum, the PAC found the City in violation of FOIA for improperly denying the request as unduly burdensome.
What is interesting about this case is that the PAC didn't reject the City's argument that compliance would impose a burden on the City's operations. Instead, the PAC found that the public interest in these documents outweighed any burden, and that the City failed to demonstrate with specificity how compliance would constitute a significant burden on City operations. So, if a public body is going to use the unduly burdensome language in responding to a FOIA request, it will need to provide significant detail about how and why compliance would be an undue burden. Frankly, in my opinion, the City appeared to do just that in explaining how many hours it would take to review the documents, how many staff members would be involved, the number of employees in the office, and the other duties these employees had. It really is not clear how much more information the City could have provided.
Post Authored by Julie Tappendorf
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