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Thursday, January 28, 2021

PAC Issues First Binding Opinion of 2021 on Unduly Burdensome FOIA Requests

In September 2020, a requestor submitted a FOIA request seeking subpoenas received by the Chicago Police Department (CPD) from federal agencies and search warrants served on CPD in August 2020. CPD denied the request as unduly burdensome, and subsequently offered the requestor an opportunity to submit a new FOIA request. After the requester’s attempts to confer with CPD to reduce the request to manageable proportions were ignored, the requestor appealed the denial of his FOIA request with the PAC. 

In PAC Op. 21-001, the first binding opinion of 2021, the PAC concluded that the CPD violated FOIA by improperly denying a FOIA request as unduly burdensome under Section 3(g) and improperly denying responsive grand jury subpoenas under FOIA Section 7(1)(a). Specifically, the PAC found that CPD did not first offer the requester an opportunity to "meet and confer" so the requester could narrow the scope of the burdensome request to manageable proportions. Instead of conferring with the requestor before denying the request, CPD’s written response to the requestor omitted any mention of an opportunity to confer and invited the requestor to submit a new request. 

Although FOIA does not specify the scope of required dialogue between the parties, the PAC argued that CPD’s refusal to participate in any meaningful exchange with the requestor, and ignoring the requestor’s efforts to confer, clearly did not fulfill the requirement specified in Section 3(g). Indeed, the PAC reasoned that the requirement to confer before denying a request as burdensome would be meaningless if a public body could simply refuse to follow through on an offer to confer when the requestor asks to do so. In addition to CPD’s failure to confer with the requestor, the PAC concluded that CPD also improperly denied the request as burdensome without specifying facts explaining why complying with parts of the FOIA request would burden CPD’s operations. 

The PAC also found that CPD improperly denied the responsive grand jury subpoenas under FOIA exemption 7(1)(a), which exempts information specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law. While CPD claimed the responsive subpoenas were exempt under the Code of Criminal Procedure of 1963, the PAC clarified that the Code only prohibits a State’s Attorney, not police departments, from disclosing matters occurring before a grand jury in Illinois, and the Code does not encompass federal grand jury subpoenas. 

Public bodies should make sure that their communications with requesters about "unduly burdensome" requests clearly provide an opportunity to the requester to confer with the public body about the request in order to narrow it to a more manageable proportion. Certainly, if a requester asks for a meeting to discuss a request that the public body has deemed unduly burdensome, the public body should accommodate that request. Public bodies should also provide details in their "unduly burdensome" communication as to why the request would be unduly burdensome -i.e., it would take X hours and Y staff members to search, compile, and review the requested records which are estimated to be Z number of records. These details will help support a denial if the requester refuses to narrow the request when offered the opportunity.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink


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