Creation of New Records Not Required By FOIA
The Illinois Appellate Court recently addressed the issue of the creation
of new records under FOIA. In Martinez
v. Cook County State’s Attorney’s Office, Martinez submitted a FOIA request
to the State's Attorney's Office (SAO), seeking “each instance in which information obtained using a
cell site simulator… was used in a criminal prosecution….” The SAO denied the request, claiming that FOIA does not require a public body to release nonexistent
records, and even if the records did exist, compliance would be unduly
burdensome. The SAO contended there was no way of knowing if any
cases exist or the identity of criminal cases where a cell site simulator was
used to obtain evidence.
In response to the denial, Martinez requested that the
SAO send an email to every attorney in the office, asking them to identify
any cases in which such evidence was obtained. He also requested that the SAO conduct a server-wide search of emails. The SAO again responded
with a denial, arguing that the request was unduly burdensome. The SAO offered to discuss narrowing the requests and Martinez subsequently narrowed his
requests to only “terrorism and narcotics cases.” The SAO again denied
the narrowed request as nonexistent, unduly burdensome, and exempt under
attorney-client privilege, attorney work product, and the deliberative process
exemption.
Martinez then sued the SAO alleging violations of
FOIA. The trial court ruled in favor of the SAO ,
and the Appellate Court affirmed. The Appellate Court found that the
first request sought “instances,” not actual records. The Court has previously
held that the requested records must be reasonably identified as a record, and
not a request for data, information, or statistics which an agency may not
generally create. The Court found that the SAO's denial was proper as FOIA does
not require a public body to create new records in response to a FOIA request. As for the second request, the
Court noted that the request was presented as a question, and FOIA does not
require the public body to answer questions. Further, the Court noted
that the second request sought a search, not a public record. As such,
the Court found that both denials were warranted.
Post Authored by Erin Pell, Ancel Glink
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