By: Brittany Flaherty Theis
The Freedom of Information Act (“FOIA”) provides a method for opening governmental records to the light of public scrutiny. According to Illinois’ public policy, the FOIA allows access by all persons to public records in order to promote transparency and accountability of public bodies at all levels. Although public bodies have the “fundamental obligation” to operate openly and provide public records as expediently and efficiently as possible, the FOIA does not create an obligation on the part of any public body to maintain or prepare any public record not otherwise created in the ordinary course of business or required by law.
In a recent opinion, the Fourth District Appellate Court reiterated that the FOIA does not require public bodies to prepare new records in order to answer general questions submitted within a FOIA request. Chicago Tribune Co. v. Dept. of Financial and Prof. Regulation, 2014 IL App (4th) 130427 (4th Dist. 2014). In Chicago Tribune, the plaintiff (the “Tribune”) submitted multiple FOIA requests. At issue before the court was the Tribune’s request that the Department disclose the number of initial claims received by the Department against 22 named physicians licensed by the Department. In order to determine the number of initial claims or complaints against particular physicians, employees of the Department would need to review each paper file bearing the name of the physician and count the number of claims or complaints.
The Public Access Counselor had issued a letter finding that the Department “failed to sustain its burden of establishing that disclosure of the number of Initial Complaints filed against a specific physician is exempt” under FOIA. Upon review in the circuit court, the court granted summary judgment in favor of the Tribune. The appellate court, however, reversed and remanded with instructions for the circuit court to enter an order granting the Department’s motion for summary judgment and denying the Tribune’s motion for summary judgment.
The appellate court explained that the Tribune essentially requested that the Department compile “the number of initial claims the Department received for a set of 22 physicians.” A response to this request would have required the Department to create a new record because the Department does not maintain a record of the initial claims received against individual license holders. The court held that the request amounted to a “general inquiry question,” which public bodies are not required answer. Because the Tribune’s request would have required the Department to create records it did not maintain or was not required to maintain by law, the appellate court reversed the circuit court’s judgment.
As a side note, the Tribune claimed the Department waived this defense because it was not stated in the initial denial letters or in the proceedings before the Public Access Counselor. The appellate court determined that the defense was not waived because review under Section 11(f) of the FOIA is de novo review. Therefore, the Department had not waived its argument that the circuit court erred in granting the Tribune summary judgment where the Department does not maintain the number of initial claims against individual physicians and it has no duty to compile information to satisfy a FOIA request.
Whitt Law has attorneys experienced in analyzing FOIA requests and assisting public bodies in their responses. If you have any questions or would like assistance responding to a FOIA request, please contact Whitt Law Attorney Brittany Flaherty Theis.