Thursday, November 1st, 2018

PAC Opinion Underscores the Importance of Having a Factual, Articulable Basis for Denying a FOIA Request as Unduly Burdensome

In October, the Office of the Attorney General’s Public Access Counselor (PAC) published Public Access Opinion 18-013 which reiterated the elements of the test for undue burden laid out in section 3(g) of the Illinois Freedom of Information Act (FOIA).

This PAC opinion arose from a July 2018 FOIA request to the Office of the Governor from news outlet One Illinois seeking e-mails pertaining to nominations for appointment to any of thirteen specific boards, councils, and commissions and any of the Boards of Trustees for the State’s public Universities. The request also sought documents prepared by or in the possession of seven individuals pertaining to nominations for appointment to the organizations identified. The Governor’s Office replied that the request would be unduly burdensome pursuant to section 3(g) of FOIA and requested that One Illinois narrow its request.

One Illinois did narrow its request, but the Governor’s Office again denied the request as unduly burdensome as its initial search yielded 44,536 potentially responsive emails. Upon this second denial, One Illinois sent a request for review to the Public Access Bureau. After investigating the matter, the PAC issued an opinion which concluded that the Governor’s Office violated the requirements of FOIA and directed it to provide One Illinois with copies of the requested e-mails, subject to appropriate redaction.

As an initial matter, the PAC determined that the Governor’s Office’s initial search was not “a reasonable search tailored to the nature of a particular request” using search terms that are reasonably calculated to locate all responsive records. A subsequent search which contained the term “appoint,” was a more appropriate search criteria and identified only 1,783 potentially responsive emails.

Section 3(g) of FOIA provides: “Requests calling for all records falling within a category shall be complied with unless compliance with the request would be unduly burdensome for the complying public body and there is no way to narrow the request and the burden on the public body outweighs the public interest in the information.”

The Governor’s Office stated that compliance with Mr. Cox’s request would require it to review the e-mails identified in its search individually to determine responsiveness and whether any exemptions may apply. The Governor’s Office, however, did not provide a specific factual basis to support its claim that conducting such a review of the 1,783 potentially responsive emails would unduly burden the Governor’s Office’s operation.

Furthermore, the Governor’s Office did not demonstrate that the burden of reviewing and redacting the responsive e-mails would outweigh the significant public interest in the records. The e-mails concerned the appointment of individuals to State organizations that created and exerted influence over a wide range of public policies relating to the State’s receipt and use of public funds.

This opinion underscores the importance of the test for undue burden laid out in section 3(g) of FOIA. A public body seeking to deny a FOIA request must be prepared to demonstrate why compliance with the request would constitute an undue burden to that public body’s operations. Furthermore, the public body must also articulate why that burden outweighs the public interest in the requested records.

David W. McArdle

Author: David McArdle, Matt Marcellis