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Illinois Appellate Courts Focus on FOIA

Higher Education K-12 Education

Last week, the Illinois Appellate Court issued three separate opinions addressing the scope of the Illinois Freedom of Information Act (FOIA). The opinions provide additional guidance related to what constitutes a reasonable search, whether information on private devices are subject to FOIA, and penalties related to the failure to comply with a nonbinding Public Access Counselor opinion.

What constitutes a reasonable search?

In Sherrod v. City of Kankakee, 2020 IL App (3d) 190374-U, an inmate filed two FOIA requests with the City of Kankakee seeking records regarding a murder of which he was convicted. The City provided responsive records in its custody and possession and denied potions of the request for records it was unable to locate. The inmate filed a request for review with the Illinois Attorney General’s Public Access Counselor (PAC), which ordered the City to provide a requested video in VHS format, instead of the DVD format originally provided. The inmate filed a lawsuit after the City failed to provide the video in the VHS format.

The circuit court dismissed the case, holding that the City conducted an adequate search for the requested information and provided all responsive records in its possession. The Third District Appellate Court, recognizing that the passage of time and technological advancements may make the production of the requested format unfeasible, affirmed the circuit court’s holding. The court found that the test to determine if a search is reasonable depends on whether it was reasonably calculated to discover the requested documents and not whether it uncovered every existing document. The court further found persuasive the City’s affidavit detailing the search and found it established that the City acted in good faith.

When are communications on personal devices subject to FOIA?

Since the 2013 Illinois Appellate Court decision, City of Champaign v. Madigan, three categories of emails and text messages sent to or from personal technology devices are “public records” subject to FOIA: messages (1) received by a majority of a quorum of the public body or its committee, (2) sent or received during a public meeting, or (3) forwarded to a publicly issued device or electronic address. Since then, at least one trial court in Cook County held that an email or text message an alderman sent or received on his personal device did not constitute a public record, finding that a public body cannot act through one alderman alone. Ahmad v. City of Chicago, 16 CH 15152 (2017). The PAC, however, has continued to reassert its interpretation that FOIA governs any record that deals with the transaction of public business, regardless of whether that record is maintained on a public or private device. See 2017 PAC 50558.

Last week, the First District Illinois Appellate Court held that communications pertaining to public business within City officials’ personal text messages and e-mail accounts that were the subject of the lawsuit are public records under FOIA.  

In Better Government Association v. City of Chicago Office of Mayor, 2020 IL App (1st) 190038, the BGA filed a lawsuit claiming that the City violated FOIA by failing to inquire whether City officials had any personal text messages and e-mails that were responsive to its request. Though the First District acknowledged that City officials are not themselves public bodies, it rejected the argument that their communications about public business are not public records. Additionally, a significant fact in this case was that the City officials subject to the requests had the authority to make unilateral decisions on behalf of the City. Therefore, those individuals could function as public bodies without any official meeting having been convened. Finally, the court provided insight into what would satisfy FOIA’s requirement to conduct a reasonably diligent search, indicating that the City was required to inquire whether relevant officials used their personal accounts for public business and if so, whether their personal accounts contained responsive records. 

Accordingly, public entities, particularly those located in the First District, should discourage officials and employees from conducting public business through their personal technology and accounts. Additionally, when officials are named in a FOIA request, public entities should inquire into whether those officials use their personal account for public business and whether their personal accounts or devices contain any responsive records in order to satisfy FOIA’s requirement of conducting a reasonably diligent search for responsive records. The question left unresolved, however, is if a single member of a public body (a school board member or city council member) using the member’s private device but discussing public business has created a record subject to FOIA. A single public body member is not the public body and generally cannot act unilaterally, unlike the City officials subject to the FOIA request in this case. While this recent court decision may not specifically answer that question, individual public body members should be weary of using private devices to discuss public business.

Will failing to comply with a nonbinding PAC opinion subject a public body to civil penalties?

In Boggan v. FOIA Office of the Department of Corrections, 2020 IL App (4th) 190347-U, the Fourth District Appellate Court denied an individual’s request for penalties on the grounds that the public entity failed to comply with a nonbinding advisory opinion.

In Boggan, an inmate filed a request for review with the PAC after the Dixon Correctional Center (DCC) responded to his request that it did not possess any responsive records. The PAC issued a nonbinding advisory opinion finding that DCC failed to conduct a reasonably diligent search. The inmate filed a lawsuit, seeking civil penalties against DCC for acting in bad faith by willfully and intentionally failing to comply with his request after he did not receive additional records pursuant to the nonbinding advisory opinion.

The Fourth District rejected the inmate’s request for civil penalties, finding such penalties are not available for failing to comply with a nonbinding advisory opinion. The court reasoned that a rebuttable presumption that a public body willfully and intentionally failed to comply with FOIA exists only when a public body fails to comply with a binding opinion. Accordingly, in the absence of a finding of willful and intentional noncompliance, the court held civil penalties were unwarranted.