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Monday, June 5, 2023

PAC Rejects City's Reliance on "Unduly Burdensome" Provision to Deny FOIA Request

The PAC recently issued a binding opinion finding a public body in violation of FOIA by improperly denying a request as unduly burdensome. PAC Op. 23-007.

A requester submitted a FOIA request for "all emails" sent or received or circulated by a city's planning and development department in calendar year 2021 relating to a particular parcel of land owned by the municipality. The city responded by requesting additional information about the request, including the name or email address of specific city employees, the timeframe for the search, and any specific search terms or criteria for the search. The requester replied that it was not required to identify specific employees for its request for emails and that the other requested information was already described in the original FOIA request. The city then notified the requester that it was treating the request as "unduly burdensome" under section 3(g) of FOIA because it would require the city to review all department emails to determine which were responsive to the request. The requester subsequently filed a request for review with the PAC. The city did not file a response.

The PAC reviewed section 3(g) of FOIA and determined that it requires a public body to explain the reasons why a request would be unduly burdensome and the "extent to which compliance will so burden the operations of the public body." Here, the PAC found that the city did not adequately explain why or how the request was unduly burdensome. The PAC also noted that public bodies are expected to make "judgment calls" about the manner in which to conduct a search for responsive records. When a request asks for "all emails," the PAC acknowledged that a public body isn't required to search every email account of every employee and official ut instead will need to make a "judgement call" to identify specific employees whose emails are reasonably likely to contain responsive records since the public body is in a better position than members of the public to know which employees are likely to have sent or received emails on a particular subject. 

In conclusion, the PAC determined that the city's insistence that the requester identify specific employees or email addresses to be unreasonable, and the city's reliance on the "unduly burdensome" provision of section 3(g) of FOIA to be improper and directed the city to conduct a search of its email system for the requested records.


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