Illinois Attorney General: Public Body Cannot Delete Record After Receipt of FOIA Request

“FOIA is a record access law, not a record retention law.” We have all said it, the statute supports it, and no court has held otherwise. A recent opinion from the Illinois Attorney General Public Access Counselor calls that maxim into question, however, after a public body has received a FOIA request. FOIA officers and others with FOIA responsibilities should be aware of this decision and understand the implications for recordkeeping, at least until the matter is further clarified by an Illinois court.

In Public Access Opinion 19-013, an Illinois city received a FOIA request for a taped city council gathering. The city had the record at the time of the request. It denied the request, however. Although the meeting had been scheduled as a meeting of the Committee of the Whole, there was no quorum present at the gathering. After denying the request, the city deleted the recording of the gathering.

On request for review, the PAC considered whether the recording was a public record subject to the requirements of the FOIA and, if so, whether the city was obligated to preserve the recording after receiving the FOIA request.

Not surprisingly, the PAC found that the recording was a public record. It was undisputed that three members of the city council gathered at the municipal building and discussed public business. Although a forum was not present, the meeting had been noticed as a Committee of the Whole meeting, the city clerk recorded the gathering, and it pertained to the transaction of public business.

Remarkably, however, the PAC also found that the public body violated the FOIA when it destroyed the recording after receiving a FOIA request. The PAC acknowledged that the FOIA does not contain any express requirement that public bodies preserve records either before or after receiving a FOIA request. That is the purview of another Illinois law, the Local Records Act, and general public policy prohibiting destruction of government records that are required to be retained for the benefit of the public. The PAC cited to the FOIA, however, which requires that public bodies must “make available to any person for inspection or copying all public records” and “promptly provide, to any person who submits a request, a copy of any public record required to be disclosed.” If a public body could simply destroy a record after receiving a FOIA request to avoid releasing it, that would defeat the purpose of the FOIA. Instead, “[i]f a public body wishes to deny a request for a public record in its possession, it must issue a proper notice of denial in accordance with [the] FOIA.”

Of course, the city had issued a letter of denial before deleting the record. The PAC opinion thus raises the important question of for how long the PAC expects public bodies to maintain records merely because a FOIA request has been made. Although the PAC decision expressed concern about abuse by public bodies, it seemingly ignored the potential for abuse by requesters. Although a court may disagree with the PAC’s interpretation, until it does public bodies should be aware of the PAC’s expectation that records be maintained for at least some period of time after a request is made. For more information on this or any other FOIA issue, contact the authors of this article or another Franczek attorney.