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FOIA Does Not Require Public Bodies to Compel Production of Third-Party Records 

Labor & Employment Publications

The Illinois Appellate Court recently ruled that the Freedom of Information Act (FOIA) does not obligate a public body to produce records that it does not already maintain in response to a FOIA request. Further, the Court held that public entities are not required to compel third parties to create or submit records, even when the third party is required by law to submit records, to respond to a FOIA request. 

At issue in Chicago Recycling Coalition v. Chicago Department of Streets and Sanitation was a FOIA request the Chicago Recycling Coalition (“CRC”) submitted to the Chicago Department of Streets and Sanitation (“Department”) for reports created by third-party private haulers and records related to recycling contamination data. In response, the Department provided the CRC with responsive records in its possession. The CRC filed suit against the Department, claiming that the Department violated the FOIA by failing to conduct an adequate search for records because the Department did not compel the third-party haulers to submit certain responsive records. In support of their claim, the CRC noted that a local ordinance required third-party haulers to submit the requested reports to the Department. While the Department produced the reports in its possession, it did not produce records related to third-party reports that were never submitted to the Department. The CRC argued that it was the Department’s responsibility to compel third-party haulers to submit timely reports in accordance with the local ordinance. Further, the CRC claimed that the Department failed to provide comprehensive data related to recycling contamination. In response, the Department reasoned that it did not create, keep, or maintain the type of data requested. The circuit court ruled in the Department’s favor, holding that the Department was not required to create records or produce records not in its possession for purposes of the FOIA. 

The Illinois Appellate Court affirmed the circuit court’s ruling and found for the Department. In support of its holding, the Appellate Court reasoned that the FOIA does not require the Department to ask the third-party haulers to create and submit the required reports. While the third-party haulers were required to submit reports pursuant to a local ordinance, the Court reasoned that the FOIA was not the proper enforcement mechanism with respect to that requirement. Ultimately, the Court found that the Department did not violate the FOIA because it had a systematic method of collecting and organizing third-party hauler reports and produced all reports that were submitted and maintained by the Department. Accordingly, the Court found that the Department appropriately used all reasonable efforts to secure and produce any records responsive to the initial request.

In addition, the Court held that the Department did not violate the FOIA when it only produced limited records related to recycling contamination data. The Court confirmed that the Department was not required to produce records it did not maintain, nor was it required to create such records to respond under the FOIA.

This decision is an important reminder of the scope of a public body’s responsibility under the FOIA. A public body is not required to create records or, in general, retrieve records from a third-party that are not already maintained by the public body to comply with the FOIA. This analysis may, however, be different if the third-party is performing services directly for the public body, which were not the facts presented here. If you have any questions regarding the FOIA, please reach out to one of the authors of this post or any Franczek attorney. 

*Also authored by Brenton Villasenor, a second-year law student at Loyola University Chicago School of Law, is a Loyola Education Practicum Student at Franczek P.C. The Practicum, part of Loyola’s education law curriculum, was created to provide law students with practical experience at education law firms and organizations. Students receive academic credit for their Practicum experience.