Denial of Request for 44,536 Emails as Unduly Burdensome Violated FOIA
During my recent time working at the Department of Education’s Office for Civil Rights, I worked with the Federal Freedom of Information Act, which does not contain an unduly burdensome exemption. I certainly missed the days of working with the Illinois FOIA, where unduly burdensome requests can be rejected outright, saving public entities an immense amount of time and personnel hours. A recent binding opinion from the Illinois Attorney General Public Access Counselor, however, serves as an important reminder to all of us who work with the Illinois FOIA of important limits to the unduly burdensome exemption.
The PAC decision involved a request to the Governor’s Office by One Illinois, a nonprofit online news outlet, for emails relating to appointments to thirteen state boards, councils, and commissions between 2016 and 2018. The Governor’s Office denied the request as unduly burdensome, arguing that a preliminary search yielded more than 44,000 potentially responsive emails, which it said it would have to manually review to fulfill the request.
The PAC found that the denial violated the FOIA. First, the PAC rejected the claim that the requester was required to provide search terms to the Governor’s Office to further narrow down the search results from 44,000. The requester had precisely described the emails that were responsive to his request, by specifically identifying both the individuals who sent or received the emails and the subject matter of the emails (nominations for appointment to a specific list of entities). That is all that the FOIA requires.
Second, the PAC rejected the Governor’s Office’s argument that it could not limit the responsive emails with additional search terms. It was the Governor’s Office’s responsibility to show that its search was adequate, and the fact that its initial search resulted in so many emails, many of which were unresponsive, suggested that the initial search was “unreasonably broad and therefore inadequate.” The Governor’s Office also acknowledged that it had done an additional search within the 44,000 emails, using the word “appoint,” and that search yielded only 1,783 emails. The PAC rejected the Governor’s Office’s argument that the narrowed search would exclude many relevant emails, noting that public bodies are not required “to actually locate all responsive records to fulfill its obligation to perform a reasonable search” and that the Governor’s Office had not shown that the search would have been “so under-inclusive as to be inadequate.” This was particularly true where the requester, when notified by the PAC of the narrowed request, stated he wished to receive the responsive emails identified in the search. Because it determined that responding to a request for 1,783 emails would not be unduly burdensome, the PAC found the denial of the request was improper.
This case is an important reminder that even if an initial search for responsive records returns many records that must be reviewed, the public body should consider whether further search terms could further limit the number of documents. The public body should not put the onus on the requester to come up with search terms and should remember that it is not required to identify every single responsive record to conduct an adequate search. The public body should, however, include the requester in conversations about what search terms are being considered and what limitations may result from their use. The PAC’s decision that it was not unduly burdensome to respond to 1,783 emails is also notable, although each request is different and, depending on the content at issue, there are still situations where such a volume of responsive records could render a request unduly burdensome.