by Maureen Anichini Lemon (Fall 2016)
In a recent ruling, the Illinois Second District Appellate Court qualified the long-held rule that public bodies do not have to “create a new record” to comply with the Freedom of Information Act (“FOIA”) in Hites v. Waubonsee Community College, 2016 IL App (2d) 150836 (2016). The Hites court ruled that a public body must provide individual data fields from its electronic database even if the public body has to create a computer program to retrieve such electronic information.
Daniel Hites sought “raw inputs” for fields on Waubonsee Community College’s (“WCC”) student registration forms including: (1) the zip code of all people taking certain GED classes; (2) the zip code of all people taking certain ESL classes; and (3) the zip code of all people taking a specific defensive driving course. Hites also sought the raw input on student registration forms of such fields as the “city,” “county code,” and “U.S. Citizen” fields. Finally, Hites requested the ‘total number’ of various data points, including the total number of registered students by year from 1995 to 2008, the total number taking ESL classes, and the total number taking GED classes during the same time frame. WCC denied each of these requests, noting that no record or document existed that aggregates the information requested.
Hites filed a lawsuit challenging WCC’s refusal to release the requested data points. The trial court dismissed Hites’ case in its entirety. Regarding the request for “total numbers” of various data points, the trial court ruled that WCC did not have to provide them because WCC did not maintain a record that identified the total numbers as requested. Because WCC did not maintain the requested totals in its databases, WCC did not have to answer Hites’ general inquiry regarding total numbers. This request went beyond a search for records (data in the databases) and instead sought information about those records. The appellate court noted that it was the form of the request – seeking totals instead of the underlying records – that was improper.
Regarding the remaining issues, the trial court also supported WCC’s refusal to disclose the data requested. At trial WCC’s chief information officer had testified that the information sought by Hites was maintained electronically, yet none of the information was compiled in an existing record. To extract the information, one of WCC’s IT employees would have to write a computer program to compile the data into a ‘new’ record. Because FOIA does not require an entity to create a new record, WCC argued it was justified in denying the request. The trial court agreed since WCC had not previously aggregated the data and statistics into a record. While the data could be found on the original student registration forms, the trial court concluded that it would be an undue burden to require WCC to copy and redact thousands of student registration forms.
On appeal, the Second District Appellate Court agreed that WCC was not required to provide “total numbers” when no data base contained that specific piece of information. Yet, regarding the remaining issues, the appellate court disagreed, reversing and remanding the matter back to the trial court for further proceedings. The appellate court concluded that (1) the electronic data points requested by Hites that are contained in WCC’s electronic database (e.g., zip codes; raw input data) are public records, and (2) WCC could provide the requested data without creating a new record.
The appellate court opined that data fields or points of data – as opposed to complete records or listings – stored electronically are also public records subject to FOIA. Because Illinois case law does not provide direct guidance on whether individual data points are records, the appellate court relied on a decision in the federal case of National Security Counselors v. CIA, 898 F.Supp.2d 233 (D.D.C. 2012). There, an entity sued the CIA under the federal FOIA for “aggregate data” maintained electronically and the federal court determined that such data constitutes a “public record.” Applying the logic of the federal court, the Hites court held that the individual data points in an electronic database are public records if they otherwise meet the definition of a public record under FOIA.
The appellate court rejected WCC’s argument that it would have to create a new record to release the requested data points. Rather, the appellate court ruled that creating a computer program to retrieve electronic information, and applying the code or programming to retrieve stored information or to sort a database by particular data fields, does not create a new record. Thus, WCC should have disclosed the zip codes, and other raw input (such as the “city” field) from the student registration forms.
In the wake of Hites, public bodies may no longer indiscriminately deny requests for public records with the once sacred response, “No record exists that is responsive to the FOIA request.” Rather, public bodies must distinguish between requests for individual data points within an electronic database that are subject to FOIA (even if the public body must create a computer code to retrieve the information), and requests for records that truly do not exist or requests for information about records (e.g., totals) that are not subject to FOIA.
If you have any questions upon receipt of a FOIA request, please contact Maureen Lemon or any other Ottosen Britz attorney with whom you have worked.