New PAC Opinion Stands as a Valuable Reminder to All Public Bodies

Author: Kevin A. Chrzanowski

March 30, 2016

On March 25, 2016, the Illinois Attorney General’s Office handed down Public Access Opinion 16-003 finding that Harvey School District 152 violated section 3(f) of FOIA (“Act”) by failing to respond to a FOIA request submitted to the District. While this opinion does not establish a new precedent in terms of FOIA interpretation, it highlights the importance of properly counting the time by which a response is due and the requirement that a public body must respond to a request.

On December 10, 2015, a four-part FOIA request was submitted to the District seeking emails for particular school employees, cell phone information, text messages, and employment related documents. On December 18, 2015, the district responded to the requestor via email by attaching a letter to the email acknowledging its receipt of the request on December 11, 2015, and extending the time period for its response an additional 5 days to December 29, 2015. On January 27, 2016, the requestor filed a Request for Review with the Public Access Bureau alleging that the District failed to respond to the request. On February 1, 2016, the Public Access Bureau sent correspondence to the District requesting the District to notify the Bureau whether it received and responded to the request and if it had not yet responded, to do so and provide a copy of its response to the Bureau. The District did not respond to the Bureau’s February 1, 2016, correspondence. On February 18, 2016, a second correspondence was sent to the District requesting the status of the District’s response to the request. As of the date of the Public Access Opinion, no response was received by the Bureau regarding the status of the District’s response to the FOIA request.

The first issue addressed in the opinion is the proper calculation of the 5 business day extension period provided in the Act. In this case, the District improperly extended the deadline 6 days to December 29, 2015. The District properly excluded weekends and Christmas as business days within which it was obligated to respond, however, the District’s response was due by the end of business on Monday, December 28, 2015. This miscalculation brings to the forefront the proper calculation of time within which there must be a response to a FOIA request. It is important to take note that the Act requires a response within 5 business days, unless this time period is extended by an additional 5 business days from the original due date. It is clear that weekends and state holidays are excluded under the Act and are therefore not considered “business days.” In this case, the opinion does not address whether the District offices were open or closed on December 28, 2015 following the Christmas holiday. It is advisable that a public body treat any day which is not a weekend date or a state holiday as a “business day” for purposes of calculating the appropriate time to respond to a FOIA request.

The second issue addressed in the opinion is the District’s failure to respond to the FOIA request.  The opinion states that a complete failure to respond violates the Act. As a result, the District was ordered to provide all records responsive to the request, subject only to permissible redactions allowed under the Act. Additionally, the District was ordered to issue a denial letter in compliance with section 9(a) of the Act for any records that it deemed exempt from disclosure. This opinion makes it clear that an outright failure to respond to a request within the time limits set forth in the Act will leave the public body in no better of a position than it was upon receiving the original FOIA request. As a result, a public body must timely respond to a FOIA request to avoid a clear violation of the Act.