Demystifying “unduly burdensome” under FOIA
The Illinois Freedom of Information Act (the Act) declares that “…all persons are entitled to full and complete information regarding the affairs of government….”1 The term “all persons” includes all types of organizations, all Illinois citizens, citizens from other states, and individuals from other countries.2 The phrase “full and complete information” is not defined by the Act, but it serves as the appropriate focal point for FOIA officers when reviewing FOIA requests and guides officers to make full and complete disclosures unless an appropriate exemption applies.
The Act provides that every person is entitled to complete information about Illinois governmental agencies. However, the Act includes various types of exclusions including approximately 70 enumerated exemptions,3 an unknown number of exemptions under the umbrella of 5 ILCS 140/7(1)(a),4 and the “unduly burdensome” exemption.5
The vast majority of exemptions require close review before they are applied to a request, but the unduly burdensome exemption requires very careful attention because the result is likely to completely deny, as opposed to completely fulfill, a FOIA request. The issue for practitioners and requesters is to determine when this broad exclusion can be invoked. Prior to invoking the unduly burdensome exemption, the Act supplies a process to be used which includes asking the requester to narrow the request. Once this process is exhausted without resolution, the FOIA officer must answer three questions:
1. Would compliance unduly burden the public body?
2. Can the request be narrowed? and
3. Is the burden on the public body outweighed by the public interest in receiving the information?6
While the statute lacks guidance for practitioners who must decide how and when to invoke this exemption, both the courts and the Attorney General’s Public Access Counselor (PAC) provide important guideposts. In addition, recent changes to the Act that provide for increased penalties and fees provide strong incentives for FOIA officers to be right each and every time this exemption is used.
A recent binding opinion issued by the PAC provides a great starting point because it addresses a common issue – e-mails. In the matter of Drumm and the City of Collinsville, Public Access Opinion No. 16-008, issued November 1, 2016, the request sought emails sent from one city employee to one city vendor for a one month period.7 A search by the city produced more than 50 e-mails and approximately 100 total pages plus attachments.8 At first glance, such a request does not appear to be unduly burdensome, and in fact the PAC found that it was not.9
However, complying with a request for dozens of e-mails and hundreds of pages is not as simple as it may appear. A FOIA officer must carefully read each document or risk the inadvertent disclosure of personal or private information. For example, this author once received a request for a copy of a contract with the musical group REO Speedwagon. The contract itself was standard and needed only a few redactions, but artists and performers typically include riders and additional agreements regarding lighting, sound, food preferences and so on. In this case, a rider was provided by the band’s manager that was several pages of fine print. Judging by the slightly askew appearance of the words and the level of blurriness, this rider was likely several generations old. Buried deep within the agreement was a list that included the names of each member of the band. Next to each name was a number – a nine-digit number. In fact, it was a list of Social Security numbers which were then redacted prior to disclosure.
FOIA officers are not always aware of the information contained in documents, and while a request such as the one described in the City of Collinsville matter may seem easy to fulfill, both time and expertise are required to conduct a proper review. The PAC’s opinion in this matter provides a baseline for complying with requests for emails in particular and gives guidance to dealing with potentially (unduly) burdensome requests in general. The City’s response that two employees would be required to “devote several hours” to retrieving and reviewing the records was considered by the PAC, but as provided in the three question analysis listed above, the PAC found that the burden on the city was outweighed by the public interest in producing the documents.10
The PAC has established the baseline for compliance, and courts have provided guidance regarding the outer limits of information a public body is expected to provide. One such case involves a request submitted to the Attorney General for publications and reports that were used by that office as guidance for assisting entities with complying with the Act. Shehadeh v. Madigan, 2013 IL App (4th) 120742, 996 N.E.2d 1243 (2013). In its response to the request, the Attorney General’s office stated that its review produced over nine thousand potentially responsive documents.11 If a public body could review (and apply redactions) at the rate of 30 documents per hour, at least 300 hours would be needed to complete such a review. In affirming the circuit court’s ruling in favor of the Attorney General, the appellate court held that the unduly burdensome exemption was appropriately applied because compliance with the request would interfere with the office’s ability to perform its other work including its responsibility to respond to other FOIA requests.12
Based on these two cases, FOIA officers and requesters have a general idea that a request for 50 e-mails plus attachments is not unduly burdensome. On the other hand, requests for 9,000 documents may be unduly burdensome depending on the outcome of the public interest balancing test. In this age of digitization, it is becoming less common to consider denial of a request because of the burden of retrieving documents from boxes or a storage facility, but the responsibility to review these newer digitized records remains the same. We now know that a review that takes two people a few hours to complete is not unduly burdensome.