By Ryan R. Morton (Winter 2019)
A Freedom of Information Act (FOIA) request for emails regarding two dozen entities sent over two-and-a-half years was not overly burdensome, according to a recent binding opinion from the Public Access Counselor (PAC) of the Illinois Attorney General’s Office. As long as a significant public interest in the information exists, and there is no overwhelming impact on the public body, a burdensome FOIA request still must be answered.
On July 12, 2018, Ted Cox, an online journalist, submitted a FOIA request to the Governor’s Office requesting “any emails sent by or to” one of seven individuals, including then-Governor Bruce Rauner and his wife, Diana. The request specified that the emails should relate to “nominations for appointment” to any of the two dozen state agency boards listed, including every public university’s Board of Trustees. The request also asked for any responsive documents in those individuals’ possession, beyond emails.
A week later, the Governor’s Office responded to Cox, claiming that his request was “unduly burdensome” pursuant to Section 3(g) of FOIA (5 ILCS 140/3(g)), because it was “overbroad and vague.” Under the Act, when a public body cites this exemption when denying a request, the requester must be given an opportunity “to reduce the request to manageable proportions.” Cox did amend his request the next day, by removing his request for “any documents,” leaving only his request for emails. He also removed four of the boards from his list and told the Governor’s Office that he would work with the office to set out a “reasonable timeline for production.”
Despite these attempts to reduce the burden, the Governor’s Office still denied Cox’s FOIA request, again citing Section 3(g). In its denial, the Governor’s Office stated that a preliminary search of emails yielded 44,536 emails that might be responsive to Cox’s request, though many would likely be irrelevant. Every email would need to be manually reviewed for responsiveness and redactions, which would be unduly burdensome, the office claimed.
Cox then asked the PAC to review the denial. The PAC provided a relatively quick response on October 9, 2018 and determined that the Governor’s Office violated FOIA by not providing the emails Cox requested. (Public Access Opinion 18-013) In reaching that conclusion, the PAC considered (1) the scope of the request; (2) the search conducted by the Governor’s Office; and (3) the burden on the public body.
Scope of Request
One of the Governor’s Office’s objections to the FOIA request was that it was “overbroad and vague,” partly because Cox did not identify any search terms to be used to find responsive emails. The Governor’s Office claimed that without specific names of appointees or other search terms, the office would need to cast too large a net to find emails that might be responsive. Without those terms, it had no way of knowing if an email was directly or indirectly related.
The PAC pointed out that several courts interpreting FOIA have stated that the Act only requires that public records be “reasonably identified” so an agency can determine what records are being requested. In requesting emails, Cox identified the (1) senders or recipients, 2) topic of conversation, and 3) specific boards involved. That was a sufficiently narrow request. FOIA does not require that the requestor provide search terms in his request. The requestor only needs to provide enough information so that the public body can determine the appropriate terms.
Search of Records
When a public body searches for records, it “must use search terms that are reasonably calculated to locate all responsive records,” according to the PAC. The Governor’s Office found 44,536 potentially responsive emails by searching each individual’s emails for 40 keywords, including the names of the boards both spelled out and abbreviated. The PAC determined that since Cox’s request was narrowly tailored, this initial search was unreasonably broad, yielding thousands of irrelevant results.
However, the Governor’s Office also conducted a second search, adding the word “appoint,” which resulted in only 1,783 responsive emails that might be responsive. The Governor’s Office argued that this subsequent search was still too broad, as “appoint” could be referring to appointments to other boards, or calendar appointments. At the same time, the search might leave out responsive emails, where only “nominate”, or some similar word, was used.
The PAC determined this was not a sufficient excuse to deny the request. First, public bodies are not required to locate every responsive record; they only need to perform a reasonable search. Second, after reviewing that smaller batch of emails, the Governor’s Office would be able to remove any inapplicable records. Therefore, the 44,536 number was greatly inflated to support the Section 3(g) exemption.
Burden of the Request
To determine whether a narrowed FOIA request is still “unduly burdensome” under Section 3(g), courts consider whether “the burden on the public body outweighs the public interest in the information.” The Governor’s Office argued that searching through 44,536 emails for responsive records and privileged information would negatively impact the performance of its other office duties.
The PAC did not buy this argument, however. Although responding to FOIA requests can be burdensome, that burden must be met unless there is a clear reason why it would be undue. The PAC reiterated that the actual number of emails is 1,783—not 44,536—thus creating a much lower burden for the public body. Conversely, “there is a significant public interest in the disclosure of information concerning appointments to governmental bodies that perform important public functions.” Therefore, the Governor’s Office failed to show how its burden outweighed that important public interest.
School districts often receive lengthy FOIA requests involving many types of public records, including emails. With so many buildings and employees—as well as unique privacy concerns that require tailored redactions—it might be tempting for school officials to simply use the “unduly burdensome” exemption. This PAC opinion, however, makes it clear that requestors will often receive the benefit of the doubt, as courts and the Attorney General err on the side of disclosure. If you are uncertain about how to best respond to a FOIA request, your attorney will be able to provide you with strategies to potentially limit both you your district’s time and liability in responding to FOIA requests.