If the FOIA coordinator knows or has reason to know that all or a portion of the requested information is available on the website, the township will notify the requestor in its written response that all or a portion of the requested information is available on its website. The written response, to the degree practicable in the specific instance, will include a webpage address where the requested information is available or directions to arrive at the information requested.
Section 8.5 of FOIA (5 ILCS 140/8.5) provides that a public body is not required to copy a public record that is published on the public body’s website; rather, the public body must notify the requester that the public record is available online and direct the requester to the website. If a person is unable to reasonably access the record online, he or she may re-submit the request and advise the public body that he or she could not access the record, and the public body must then respond as provided in section 3. The specific language is:
Sec. 8.5 Records maintained online.
(a) Notwithstanding any provision of this Act to the contrary, a public body is not required to copy a public record that is published on the public body’s website. The public body shall notify the requester that the public record is available online and direct the requester to the website where the record can be reasonably accessed.
(b) If the person requesting the public record is unable to reasonably access the record online after being directed to the website pursuant to subsection (a) of this Section, the requester may re-submit his or her request for the record stating his or her inability to reasonably access the record online, and the public body shall make the requested record available for inspection any copying as provided in Section 3 of this Act.
Despite the reference to “information” in its title, FOIA is actually an open records act, providing access to public records maintained by public bodies. Section 2 of FOIA defines the term “public records” as follows:
“Public records” means all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information and all other documentary materials pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body. 5 ILCS 140/2(c).
The physical characteristics of records are not relevant in classifying them as “public records”, because the definition expressly extends to all records regardless of their physical form of characteristics. Rather, the important factors in determining whether a record is a “public record” are:
(1) Whether the record pertains to the transaction of public business of the public body; and
(2) Whether the record was prepared by or for, or was or is being used by, was received by, or is a in the possession of or under control of the public body.
Public bodies are required to provide records in accordance with the provisions of the Act. Public officials or employees, however, are not required to answer questions or to explain the meaning of the records in response to a FOIA request. Section 3.3 of the FOIA (5 ILCS 140/3.3) provides that “[t]his Act is not intended to compel public bodies to interpret or advise requesters as to the meaning or significance or the public records”.
Further, a public body is not required to compile data that it does not ordinarily maintain or to create new records in response to FOIA requests. See Kenyon v. Garrels, 184 III. App. 3d 28, 32 (4th Dist. 1989).
Simply gathering or compiling information that a public body does ordinarily maintain, however, is not creating a new record. In Bowe v. Evanston Community Consolidated School District 65, 128 III. 2d 373 (1989), a school district argued that it should not be required to produce several years of test score data in a masked and scrambled format because that would require creating a new, non-exempt record. The Illinois Supreme Court disagreed, holding that neither deleting exempt portions of a record nor scrambling information in a record constitutes creation of a new record. Bowie, 129 III. 2d at 382; see also Hites v. Waubonsee Community College, 2016 IL app (2d) 150836 (2016) (the data in the college’s databases are “public records”; a public body may be required to compile and recognize information that it already maintains electronically in the ordinary course of business).
Public Records in the Possession of a Contractor Performing a Governmental Function for a Public Body Are Public records of the Public Body.
FOIA provides that requests for the public records must be made in writing, although a public body may, in its discretion, honor an oral request. If it is not possible to honor an oral request while the requesting party waits, the requester may be asked to put that request into writing. See 5 ILCS 140/3(c).
Many public bodies make a form available for FOIA requests, which can be convenient for both the requester and the public body. However, a public body cannot require that a request be submitted on its form, through its online portal, or a certain format. Further, a public body may not require a requester to specify the purpose for a request, except to determine whether the records are requested for a commercial purpose or in conjunction with a request for a fee waiver. FOIA does not require a request to be signed or to include the requester’s name. See 5 ILCS 140/3(c).
Written requests may be submitted to a public body via a personal delivery, mail, fax, or other means available to the public body (such as e-mail). As a person may request one or more specified records or may request all records failing with a category. The request must, however, reasonable identify the records have been requested. Kenyon v. Garrels, 184 III. App. 3d 28 (4th Dist. 1989). All requests for inspection or copying that are received by a public body shall immediately be forwarded to its OFIA officer or his or her designee. A public body’s delay in forwarding the FOIA request to the FOIA officer does not extend the time period for a response.
Upon receipt of a request, every public body is required to permit inspection or to provide copies of the any requested records that are subject to disclosure under FOIA. FOIA sets out a timetable to which all public bodies must adhere when processing requests for public records. Except as otherwise provided in FOIA, the public body must respond within 5 business days after receipt of the request. Failure to respond within this time period is considered a denial of the request. See 5 ILCS 140/3(d).
A “business day” means a day during the week, Monday through Friday. Saturday’s Sundays and State holidays are not business days and are not counted in computing the 5 business day time period.
For example, assume a public body received a FOIA request on a Monday. For purposes of calculating the response period, the next business day, Tuesday, is counted as the first business day. Saturday and Sunday are not business days, therefore the fifth business day, by which the public body must generally respond, is the following Monday.
Even if a public has office hours on fewer than 5 days per week, each business day (i.e., weekday), not just the days on which the public office is open, must be counted when calculating the time for a FOIA response.
NOTE: The time periods for complying with or denying FOIA requests for records made for a commercial purpose, requests made by recurrent requesters, or voluminous requests are subject to the provisions of sections 3.1, 3.2, and 3.6 for FOIA, respectively. See 5 ILCS 140/3(i).
In limited circumstances, section 3(e) of FOIA provides that the period for response may be extended by the public body for up to 5 additional days form the original due date for response. The time for response may be extended if:
(i) the requested records are stored in whole or in part at other locations than the office having charge of the requested records;
(ii) the request requires the collection of a substantial number of specified records;
(iii) the is couched in categorical terms and requires and extensive search for the records responsive to it;
(iv) the requested records have not been located in the course of routine search and additional efforts are being made to locate them;
(v) the requested records require examination and evaluation by personnel having the necessary competence and discretion to determine if they are exempt for disclosure or should be disclosed only with the appropriate deletions;
(vi) the request for records cannot be completed with by the public body within 5 business days without unduly burdening or interfering with the operations of the public body; or
(vii) there is a need for consultation, which shall be conducted with all practicable speed, with another public body or among two or more components of a public body having a substantial interest in the determination or in the subject matter of the request. 5 ILCS 140/3(e).
A public body may unilaterally extend the time for response if one or more of these seven reasons apply. When an extension of time for response is taken for any of these reasons, the public body must, within 5 business days after receipt of the original request, notify the requester in writing and specify the reason for the extension and the date when a response will be forthcoming. Failure of the public body to respond within the extended period is considered a denial of the request. See5 ILCS 140/3(e).
“The plain language of FOIA gives a public body in receipt of a records request the unilateral ability to extend its own response deadline by five days. [ ] Only extensions of more than five days require the written agreement of the requesting party.” (Emphasis in original.) Sargent Shriver national Center on Poverty Law, Inc. v. Board of Education of the City of Chicago, 2018 IL App (1st) 171846, ¶25 (2018).
A person making a request for records and the public body may agree to extend the time for compliance for a period to be determined by the parties. If the requester and the public body agree in writing to extend the period for production, a failure by the public body to comply with the statutory deadlines is not treated as a denial of the request for the records. See 5 ILCS 140/3(e). A failure by the public body to respond by the extended due date, however, will constitute a denial of that request.
In locating records responsive to a FOIA request, FOIA requires a public body to perform a “reasonable search tailored to the nature of a particular request”. Campbell v. United States Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998).
What is a “reasonable search”?
A search must be reasonably calculated to discover all relevant documents.
A public body is not required to search every record system but it cannot limit its search to only one record system if there are others that are likely to contain the requested information.
See Better Government Association v. City of Chicago, 2020 IL App (1st) 190038 (2020) (concluding that the public body did not demonstrate that it conducted a reasonably adequate search for all responsive records because it did not ask the public employees named in the FOIA request whether they possessed responsive records in their personal e-mail accounts).
A FOIA request may be granted, denied, or granted in part and denied in part.
Each public body denying a request for public records, whether in whole or in part, must notify the requester in writing of the decision to deny the request and include:
1) The reasons for denial, including a detailed explanation of the factual basis for any exemption claimed; and
2) The names and titles or positions of each person responsible for denial.
Each Notice of denial must also:
3) Inform the requester of his or her right to seek review by the Public Access Counselor; and
4) Provide the address and phone number for the Public Access Counselor; and
5) Inform the requester of the right to judicial review under section 11 of FOIA. 5 ILCS.
A public body’s failure to respond to a FOIA request within 5 business days constitutes a denial of the request.
If a public body fails to respond to a request within 5 business days, or within an extension of the period for response if one is properly taken, but subsequently provides the requester with copies of the requested records, the public body may not impose a fee for copying those documents.
Further, if the public body fails to respond within the applicable statutory time period, it may not treat the request as being unduly burdensome under subsection 3(g) of FOIA. See 5 ILCS 140/3(f).
The right to inspect public records is a fundamental right guaranteed by FOIA. Although a person may obtain copies of records, a public body may not require a requester to purchase copies of records in order to gain access to them. Further, if a public body determines to redact portions of records which the requester seeks to inspect under one of the statutory exemptions, the public body cannot charge the requester for the redacted copies it creates in order to satisfy the request to inspect.
When a person requests copies of records, it is the obligation of a public body to provide the records in the format in which they are maintained, if so requested; a public body may not elect to furnish records in a different format. American Federation of State County & Municipal Employees, AAL-CIO County of Cook, 136 III. 2d 334, 345-47 (1990. For example, if a person requests paper copies of records that are maintained in a paper format, the public body cannot comply with the request by unilaterally deciding to furnish the records in a an electronic format.
Electronically maintained records present additional issues because of the many formats and programs that public bodies may use. When a person requests a copy of a record maintained in an electronic format, the public body must furnish it in the electronic format specified by the requester, if feasible to do so. If it is not feasible to furnish the public records in the specified electronic format, then the public body may furnish it in the format in which it is maintained by the public body, or in paper format, at the option of the requester. See 5 ILCS 140/6(a).
For these purposes, it is “feasible” for a public body to furnish records in a specified format if it has the capability to do so with the equipment and programs at its disposal. Thus, if a public body maintains records in a format other than that which a requester has specified, but can convert those records electronically to the specified format with equipment that the public body currently has, it must do so. In general, a public body is not required to obtain new programs or equipment solely to comply with a FOIA request.
If a public body receives a request for access to a record that contains information that is exempt for disclosure but also contains information that is not exempt, the public body must separate the exempt from the nonexempt information and disclose the nonexempt information. See 5 ILCS 140/7(1); Bowie v. Evanston Community Consolidated Scholl District, 128 III. 2d 373. 380 (1989). This is referred to as a redaction.
If copies of the records are requested in paper format, redaction of exempt information may by accomplished by blacking out the information or similar means. If such information is maintained only on computer tapes or disks, however, the public body may be required to prepare a computer program that will segregate the exempt and nonexempt information; this is not considered the creation of a new record, for purposes of FOIA. Hamer v. Lentz, 132 ILLL 2d. 49, 56 (1989).
When a person has requested to inspect records containing both exempt and nonexempt information, rather than to obtain copies, the only practical method of complying me be to prepare redacted copies of the document for inspection. In such circumstances, the public body may not require the requester to pay a copying fee in order to inspect the redacted records.
Section 6 of FOIA provides the authority for a public body to charge fees for reproducing or certifying records. Except when a fee is otherwise fixed by statue, a public body may charge fees “reasonably calculated to reimburse its actual cost for reproducing and certifying public records[.]” 5 ILCS 140/6(b). The fee for black and white, letter, or legal sized copies may not exceed 15 cents per page. However, no fees may be charged for 50 pages of black and white, letter or legal sized copies provided to a requester.
If a public body copies in color or in a size other than letter or legal size, the public body may charge its actual cost for reproducing the records.
In calculating its actual cost for reproducing records or for the use of the equipment of the public body to reproduce records, a public body may not include the costs of any search for and review of the records, or any other personnel costs associated with reproducing the records, except as provided for commercial or voluminous request, more fully discusses later in this training.
The imposition of a fee in excess of the amounts permitted under FOIA constitutes a denial of the request for purposes for review by the Public Access Counselor or the courts.
If a person requests a copy of a record that is maintained in an electronic format, the public body must furnish it is the electronic format specified by the requester, if feasible. If it is not feasible to furnish the public record in the specified electronic format, then the public body shall furnish it in either the format in which it is maintained by the public body, or in a paper format, at the option of the requester.
When public body responds to a request for records maintained in an electronic format, the public body may charge the requester for the actual cost of purchasing the recording medium, whether disc, diskette, tape, or other medium. Except for commercial requests, a public body may not charge the requester for the costs of any search for and review of the records or other personnel costs associated with reproducing the records.
Except to the extent that FOIA or another statue expressly provides, statutory fees applicable to copies of public records when furnished in a paper format are not applicable to those records when furnished in an electronic format. In other words, the public body cannot impose a per page fee for the number of pages of records included in the electronic record, even if the public body printed the records to redact them, and then re-scanned them to provide to the requester. Special rules, however, apply to fees for requests determined to be “voluminous”; those fee provisions are covered in the section of this training on “voluminous requests”.
If a person requesting records states the specific purpose for the request and indicates that a waiver or redaction of the fee is in the public interest, the public body shall determine whether a redaction or waiver is appropriate. Waiver or redaction of the fee in in the public interest if the principal purpose of the request is to access and disseminate information regarding the health, safety, and welfare or the legal right of the general public, and is not for the principal purpose of personal or commercial benefit. In determining the amount of the waiver or redaction, the public body may take into consideration the amount of materials requested and the cost of copying them. The decision whether to grant a fee or reduction or waiver is within a public body’s discretion.
A public body must comply with requests for all records falling within a specific category unless compliance with the request would be “unduly burdensome” for the public body. Before declining to comply with a request as unduly burdensome, the public body must extend to the requester an opportunity to reduce the request to manageable proportions. If a public body determines that the burden on the public body outweighs the public interest in obtaining the information, and that there is no way to narrow the request, it must notify the requester in writing, specifying the reason why it would be unduly burdensome and the extent to which compliance would so burden the operation of the public body. Such a response is treated as a denial of the FOIA request. See 5 ILCS 140/3(g).
Repeated requests from the same person for the same records that are unchanged or identical to records that have previously been disclosed or properly denied under FOIA shall be deemed unduly burdensome. Repeated requests for the same records but in different formats may also be considered unduly burdensome, if the public body has properly responded to the previous requests. See AFSCME v. Count of Cook, 136 III, 2d 334 (1990).
Please note that if a public body has not previously furnished the records in response to a FOIA request or property denied a FOIA request for the same records, it may not treat the repeat request as unduly burdensome.
“Recurrent requester” is defined in section 2(g) of FIOA as a person who, during the 12 months immediately preceding the request, has submitted to the same public body:
(i) a minimum of 50 requests for records,
(ii) a minimum of 15 requests for records within a 30-day period, or
(iii) a minimum of 7 requests for records within a 7-day period.
Section 2(g) further provides that:[r]equests made by news media and non-profit, scientific, or academic organizations shall not be considered in calculating the number of requests made in the time periods in this definition when the principal purpose of the requests is (i) to add access and disseminate information concerning new and current or passing events, (ii) for articles of opinion or features of interest to the public, or (iii) for the purpose of academic, scientific, or public research or education. (Emphasis added.)
On request may identify multiple records to be inspected or copied. 5 ILCS 140/2(g). In calculating the number of FOIA requests submitted by an individual, a public body should not count a single FOIA request with multiple parts as multiple FOIA requests.
Within 5 business days after receiving a request from a recurrent requester, a public body must notify the requester:
1) That the request is being treated as a recurrent request;
2) The reasons why the request is being treated as a recurrent request; and
3) That they public body will send an initial response within 21 business day after the receipt of the request, in accordance with subsection 3.2(a) of FOIA.
The public body shall also notify the requester of the proposed responses that can be asserted to a recurrent requester.
The public body must respond to a request for records from and recurrent requester with 21 business days of receipt of the request by:
1) Providing the records;
2) Providing an estimate of the time when the records will be furnished and the fees to be charged, which the public body may require the requester to pay in full before copying the responsive documents;
3) Denying the records pursuant to one of the more exemptions in the Act; or
4) Advising the requester that the request is unduly burdensome and extending an opportunity to the requester to narrow the request to manageable proportions. 5 ILCS 140/3.2(a).
Unless the records are exempt from disclosure, a public body shall comply with a request within a reasonable period considering the size and complexity of the request. 5 ILCS 140/3.2(c).
If a public body receives a request or requests for a very large number of records, as defined below, it may be able to designate the request as voluminous and obtain additional time to respond.
Section 2(h) of FOIA defines a “voluminous request”:
(h) “Voluminous request” means a request that:
(i) includes more than 5 individual requests for more thatn 5 different categories of records or a combination of individual requests that total more than 5 different categories of records in a period of 20 business days; or
(ii) requires the compilation of more than 500 letter or legal-sized pages of public records unless a single requested record exceeds 500 pages. “Single requested record” may include, but is not limited to, one report, form, e-mail, letter, memorandum, book, map, microfilm, tape, or recording.
Section 2(h) definition, continued:
“Voluminous request” does not include a request made by news media and non-profit, scientific, or academic organization if the principal purpose of the request is: (1) to access and disseminate information concerning news and current or passing events; (2) for articles of opinion or features of interest to the public; or (3) for the purpose of academic, scientific, or public research or education.
For the purposes of this subsection (h), “request” means a written document, or oral request, if the public body chooses to honor oral request, that is submitted to a public body via personal delivery, mail, telefax, electronic mail, or other means available to public body and that identifies the particular record or records the requester seeks. One request may identify multiple individual records to be inspected or copied.
Section 3.6 of FOIA details how to handle a request that is determined to be “voluminous”.
5 ILCS 140/3.6
If a public body determines that a FOIA request is a voluminous, the notification required to be given to a requester is very detailed.
Please note, however, that once a public body property notifies a requester that his or her FOIA request is voluminous, the burden is on the requester to specify whether he or she will amend the request. Failure to respond to a notice that a FOIA request is voluminous or failure to work with a public body to amend the request so the public body no longer treats it as voluminous can result in being charged higher fees under section 6 of FOIA.
Section 6(a) provides, in part, with respect to electronic records, that: “[i]f a request is not a request for a commercial purpose or a voluminous request, a public body may not charge the requester for the costs of any search for and review of the records or other personnel costs associated with reproducing the records”. (Emphasis added.) This section must be read in conjunction with the rest of section 6.
Section 6(a-5) of FOIA allows a public body to charge fees for reproducing electronic records in response to a voluminous request, as specified in that section.
Section 6(f) provides that a public body may charge for certain time spent responding to a commercial request. Despite the language above, section 6(f) provides that “[t]he provisions of this subsection (f) apply only to commercial requests”. With limiting language, public bodies may charge fees for time spent by personnel searching for and retrieving records ONLY when responding to a request for commercial purposes. (Commercial requests are covered separately in this training). Section 6(f) also provides: “[a] public body may charge up to $10 for each hour spent searching for and retrieving a requested record or examining the record for necessary redactions”. Again, however, the provisions of 6(f) apply only to commercial requests.
Section 9.5 of FOIA allows a person to appeal a public body’s determination that his or her request is voluminous:
(b-5) A person whose request to inspect or copy a public record was treated by a public body, except the General Assembly and committees, commissions, and agencies thereof, as a voluminous request under Section 3.6 of this Act may file a request for review with the Public Access Counselor for the purpose of reviewing whether the public body property determined that the request was a voluminous request.
The Freedom of Information Act is a piece of legislation that grants public access to documents or other data in the possession of a government agency or public authority unless the information falls into a category that is specifically excluded from the terms of the legislation.
MOLINE TOWNSHIP ADMINISTRATION
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