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The Freedom of Information Act (“FOIA” or “Act”), 5 ILCS 140/1 et seq., continues to present complications and problems for local governments. In Public Access Opinion 18-007 dated June 26, 2018, the Public Access Counselor (“PAC”) recently addressed the proper interpretation and use of Section 3(g) of the Act, which deals with repeated requests from the same person for the same records.

On November 7, 2017, Duaa Eldeib submitted a FOIA request to the Illinois Department of Corrections (IDOC). Shortly thereafter, IDOC responded by providing Ms. Eldeib with copies of certain records, pointing Ms. Eldeib to the Illinois’ General Assembly for other records and asserting that it did not possess certain additional records requested by Eldeib.  On February 2, 2018, Ms. Eldeib filed a Request for Review with the Public Access Bureau, alleging that IDOC’s response was incomplete.  The Public Access Bureau denied her request, citing Section 9.5(a) of the Act, which provides that all Request for Review must be filed not more than 60 days after a FOIA denial. However, the PAC also suggested to Ms. Eldeib that she resubmit her FOIA request for the same records to get around Section 9.5(a) of the Act.

Taking the advice of the PAC, on March 6, 2018, Ms. Eldeib submitted a new FOIA request to IDOC asking for the same records she requested on November 7, 2017. In response, IDOC denied her request, this time citing Section 3(g) of the Act, which provides that “[r]epeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under [FOIA] shall be deemed unduly burdensome [and can be rejected by the responding government].” Unsatisfied with IDOC’s denial, Ms. Eldeib filed a Request for Review on March 15, 2018.

The PAC sided with Ms. Eldeib’s second Request for Review, and found that IDOC improperly denied her March 6, 2018 FOIA request. According to the PAC, the plain language of Section 3(g) of the Act allows a public body to deny a request as unduly burdensome when it is made by the “same person for the same records that are unchanged or identical to records previously provided or properly denied.”  As a result, in order to deny a request under Section 3(g), the public body must have previously provided all of nonexempt records requested or properly denied a prior request from the same requester for the same records.  Therefore, the PAC held that IDOC could not properly deny the request pursuant to Section 3(g) unless it had already provided all the records requested or properly denied the request.  Because IDOC did not demonstrate that it had either provided the requester with all of the nonexempt records requested or had properly denied some or all of the previous request, the PAC determined that IDOC improperly denied Ms. Eldeib’s request as unduly burdensome.

Local governments should take note of this ruling when dealing with individuals who repeatedly request records.

 

For more information, please contact your Tressler attorney.