FOIA Lawsuit Dismissed Where Requested Records Did Not Exist
In response to a FOIA request seeking policies and rules regarding statements by accused persons during custodial interrogations, a Sheriff’s Office responded that it did not have responsive records in its possession or custody. The requestor sued the Sheriff’s Office alleging that its response violated FOIA, and sought a court order requiring the Sheriff’s Office to produce the requested records. The Sheriff’s Office moved to dismiss the case, supported by an affidavit from its administrative assistant responsible for maintaining its records that the assistant conducted a thorough search of the Sheriff’s Office records and did not find any responsive records. After the circuit court ruled in favor of the Sheriff's Office and dismissed the case, the requestor appealed.
In Hickman v. Mann, the an Illinois Appellate Court upheld the dismissal of the case. The court rejected the requestor’s argument that the circuit court should have struck the assistant’s affidavit because she was not the Sherriff’s Office designated FOIA officer, noting that FOIA’s plain language allows a public body’s FOIA officer or their designee to perform required duties under FOIA, including conducting a reasonably diligent search for records responsive to a FOIA request. Because the assistant had worked for the Sheriff’s Office for 14 years and her duties included maintaining its records, the assistant was authorized to attest that the Sherriff’s Office did not have records responsive to the FOIA request.
The Court also rejected the requestor’s various speculative arguments that the Sheriff’s Office had policies and rules responsive to his request within its possession or custody. First, the court determined that just because a state law contains requirements for recording custodial interrogations in certain situations does not prove that the Sheriff’s Office adopted policies or rules to comply with the law. Second, just because the requestor sent a similar FOIA request to a different agency that had enacted and disclosed a written policy does not establish that the Sheriff’s Office adopted a similar policy. Third, while FOIA requires public bodies to maintain a list of “reasonably current list of all types or categories of records under its control,” a public body’s failure to do so is not actionable under FOIA. The Court concluded that the Sheriff's Office was not required to create records in response to this FOIA request and if the policy that was requested in the FOIA request does not exist, then the nonexistence of the requested documents is a defense to a FOIA lawsuit.
Post Authored by Eugene Bolotnikov, Ancel Glink
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