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Monday, March 26, 2018

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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