Heyl Royster

 

FOIA Requires Disclosure of Public Records, Not Information

Despite being called the Freedom of Information Act (“FOIA”), an appellate court in Illinois recently reminded us that FOIA really entitles the public to records, but not necessarily information. In Chicago Tribune Company v. The Department of Financial and Professional Regulation, 2014 IL App (4th)130427, the Chicago Tribune filed suit after The Department of Financial and Professional Regulation denied the Tribune’s FOIA request for the number of initial claims received by the Department against certain named physicians. In defense of the lawsuit, the Department argued that it did not maintain any record tracking the number of claims made to enable them to respond to plaintiff’s request. The Court ruled in favor of the Department and in doing so relied on the legislative intent behind FOIA, as set forth in Section 1 of FOIA, which includes the following:

This Act is not intended to create an obligation on the part of any public body to maintain or prepare any public record which was not maintained or prepared by such public body at the time when this Act becomes effective, except as otherwise required by applicable local, State or federal law.
5 ILCS 140/1.

Consequently, FOIA requests to public bodies must reasonably identify a public record to be produced and not general data, information, or statistics. The fact that the Department would have had to compile the information and essentially create a new document in order to respond indicated the FOIA request was not in fact for a public record in the Department’s possession.

This case also provides us with one other reminder, and that is the importance of citing all reasons for the denial of a FOIA request in the initial response. By way of background, the Department initially denied the Chicago Tribune’s request claiming the documents were exempt as part of the Department’s investigative files. Prior to filing a lawsuit, the Chicago Tribune filed a request for review with the Public Access Counselor at the Attorney General’s Office who ultimately issued a letter finding against the Department. The Chicago Tribune then filed the subject lawsuit, and for the first time, the Department raised the argument that it does not actually maintain such information. The Chicago Tribune argued that the Department could not now raise such a defense because the Department did not raise it in its denial letter or even with the Public Access Counselor. The Court found however, that it was proper for the Court to consider all possible defenses under FOIA, not just those initially claimed by the Department with the Public Access Counselor, based on the language of the statute. More importantly, though, the Court points out that had the Public Access Counselor issued a binding opinion as opposed to letter, the Department may have in fact lost its right to claim such a defense.

In conclusion, it is important when responding to FOIA requests to assess whether the request is actually for a public record or an inquiry for information not already maintained or created by the public body; if the latter, a denial may be in order but any such denial letter should reference the fact that the request is not for a public record which the public body possesses. Due to the potential for financial penalties and the requester’s ability to collect attorney’s fees and costs, public bodies should consult with their attorney if there is any question as to the appropriate basis for a denial.