By: Brittany Flaherty Theis
Late last week the Second District of the Illinois Appellate Court issued an opinion in a Freedom of Information Act case – Hites v. Waubonsee Community College, 2018 IL App (2d) 170617. The appellate court reversed and remanded the circuit court’s determination that Waubonsee Community College (“WCC”) complied with the Freedom of Information Act (“FOIA”) when it denied as “unduly burdensome” seven FOIA requests from the plaintiff.
Still in contention during this appeal were FOIA requests for seven sets of electronic data – all of which could be obtained by WCC from two of its databases; the Banner and the Driver Safety databases. First, the circuit court determined responding to the seven remaining FOIA requests would be unduly burdensome based on testimony regarding the weeks it would take WCC personnel to complete the responses if prepared while also managing standard work duties. Second, the circuit court held that WCC’s written FOIA response, which provided plaintiff with an opportunity to narrow his requests, was sufficient to show there was no way to narrow the request. Third, in concluding that the undue burden exemption applied, the circuit court characterized the public interest at issue as plaintiff’s desire to speculate about what businesses WCC might frequent.
On appeal, the plaintiff argued that WCC failed to establish any of the three necessary elements of an undue burden under Section 3(g) of the FOIA, which are:
- That compliance with the FOIA request as stated would be unduly burdensome;
- That there was no way to narrow the requests; and
- That the burden on the public body outweighs the public interest in the information requested.
Specifically, the plaintiff urged that a proper undue-burden analysis under FOIA should focus on the time needed to actually retrieve the records, not on time estimates inflated by tasks beyond retrieval. The court agreed. It held that it was improper to “pad” the time estimates for responding to the FOIA request with time that staff would spend performing other activities. This practice unreasonably inflates the impact of the requests. In this case, the expert speculated that each request would take a week to respond to when considering all of the employee’s work duties. However, the responses themselves would each take about a day. The court found that difference persuasive.
The second element of an undue burden exemption requires that there be no way to narrow the request. The appellate court found the circuit court’s decision in this regard to also be in error. The requirement in Section 3(g) – that a public body “’before invoking this exemption shall extend to the person making the request an opportunity to confer to reduce the request to manageable proportions’” – is not the same as Section 3(g)’s requirement that there be no way to narrow the request. Here, WCC did provide such an opportunity, but the circuit court made no findings regarding whether the plaintiff’s FOIA requests could be narrowed. For that reason, the appellate court held it was an error to conclude the undue burden exemption applied.
As to the third element, the appellate court held that the circuit court mischaracterized the public interests at issue based on “a selective and incomplete reading of the record.” The court reiterated that the Illinois Supreme Court “has made clear that the public has a legitimate interest in how its tax dollars are spent,” which the appellate court believed supported the reasons plaintiff set forth for his requests in this case.
Notably, the appellate court found that although those erroneous factual findings regarding elements one and three were sufficient to support reversal, it also did not agree that the burden on WCC outweighed the public interest in the data. The circuit court relied upon one case that had found an undue burden, Shehadeh 2013 IL App (4th) 120742. In Shehadeh, a response from the public body would have required the review of 9200 documents by hand to determine which documents were responsive to a very broad request, followed by additional review to determine whether redactions would be required. The court explained that a “FOIA request that is ‘overly broad and requires the public body to locate, review, redact and rearrange for inspection a vast quantity of material that is largely unnecessary to the requestor’s purpose’ constitutes an undue burden.”
The appellate court in this case, however, distinguished plaintiff’s requests explaining that having a staff member electronically search for a narrow dataset is simply not comparable to the burden of physically reviewing over 9000 documents for general guidance on complying with FOIA. The plaintiff’s requests in this case would require neither weeks of full-time work nor would they require redactions.
As this Hites case makes clear, application of the undue burden exemption of the Freedom of Information Act to requests for records is highly fact intensive. Whether it is appropriate to rely upon the exemption will depend upon the nature of the request(s) and relevant records, the time and effort required to respond, whether an opportunity to narrow the request has been provided and whether the request could otherwise be narrowed, and the public interests involved. Whitt Law regularly assists public bodies seeking to satisfy their obligations under the Freedom of Information Act. If you have questions regarding this case, or the Freedom of Information Act generally, please contact Whitt Law Attorney Brittany Flaherty Theis.
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