"The Freedom of Information Act Amended," March 31, 2012

The following alert was originally published September 8, 2011, by the law firm of Raysa & Zimmermann LLC, which merged with Tressler LLP effective March 31, 2012.

In the past month, Governor Quinn signed two bills into law, Public Act 97-0385 and Public Act 97-0579 (the "Acts"), which amend the sections of the Freedom of Information Act ("FOIA"), 5 ILCS 140/1, et seq. relating to permissible fees charged by public bodies, recurrent requesters, and preapproval of denials by the Public Access Counselor ("PAC"), as well as adding an exemption relating to a minor’s personal information.

Public Bodies May Now Charge Fees for "Searching" and "Retrieving" Requested Records
Public Act 97-0579 amends Section 6 of FOIA by adding a subsection (f) which provides that a public body may charge commercial requesters the actual cost of retrieving and transporting public records from an off-site storage facility if the records are maintained by a third-party storage company under contract with the public body.

Subsection (f) also provides that a public body may charge up to $10 for each hour spent by personnel in searching for and retrieving a requested record. This fee also comes with restrictions in that the request must be a commercial request and the public body cannot charge for the first eight hours spent "searching for and retrieving" those records.

Specifically, Public Act 97-0579 amended Section 6 of FOIA in the following manner:

. . .

(f) A public body may charge up to $10 for each hour spent by personnel in searching for and retrieving a requested record. No fees shall be charged for the first 8 hours spent by personnel in searching for or retrieving a requested record. A public body may charge the actual cost of retrieving and transporting public records from an off-site storage facility when the public records are maintained by a third-party storage company under contract with the public body. If a public body imposes a fee pursuant to this subsection (f), it must provide the requester with an accounting of all fees, costs, and personnel hours in connection with the request for public records. The provisions of this subsection (f) apply only to commercial requests.

As indicated above, if the public body elects to charge fees pursuant to subsection (f), the public body must "provide the requester with an accounting of all fees, costs, and personnel hours in connection with the request for public records."

"Recurrent Requestor" Is Defined
Public Act 97-0579 amended Section 2 of FOIA as well as creating Section 3.2. Section 2 is amended by creating a definition for the term "recurrent requester." Section 3.2 is amended to provide for how public bodies must handle requests from recurrent requesters.

The newly created definition of "recurrent requester" in Section 2 of FOIA provides that a recurrent requester is a person who: (i) in the past year has made at least 50 requests; (ii) has made 15 requests within a 30-day period; or (iii) has made seven requests within a seven-day period. The definition, however, excludes news media and non-profit, scientific or academic organizations if the purpose is to report information to the public or for research or educational purposes.

Specifically, Public Act 97-0579 amended Section 2 of FOIA by adding the following language:

. . .

(g) "Recurrent requester", as used in Section 3.2 of this Act, means a person that, in the 12 months immediately preceding the request, has submitted to the same public body (i) a minimum of 50 requests for records, (ii) a minimum of 15 requests for records within a 30-day period, or (iii) a minimum of 7 requests for records within a 7-day period. For purposes of this definition, requests made by news media and non-profit, scientific, or academic organizations shall not be considered in calculating the number of requests made in the time periods in this definition when the principal purpose of the requests is (i) to access and disseminate information concerning news and current or passing events, (ii) for articles of opinion or features of interest to the public, or (iii) for the purpose of academic, scientific, or public research or education.

For the purposes of this subsection (g), "request" means a written document (or oral request, if the public body chooses to honor oral requests) that is submitted to a public body via personal delivery, mail, telefax, electronic mail, or other means available to the public body and that identifies the particular public record the requester seeks. One request may identify multiple records to be inspected or copied.

Furthermore, Public Act 97-0579 created Section 3.2 under FOIA, which provides that public bodies must notify a requester within five business days if it is treating the requester as a "recurrent requester." The public body then has 21 days to respond to the request.

Specifically, Section 3.2 of FOIA states the following:

(a) Notwithstanding any provision of this Act to the contrary, a public body shall respond to a request from a recurrent requester, as defined in subsection (g) of Section 2, within 21 business days after receipt. The response shall (i) provide to the requester an estimate of the time required by the public body to provide the records requested and an estimate of the fees to be charged, which the public body may require the person to pay in full before copying the requested documents, (ii) deny the request pursuant to one or more of the exemptions set out in this Act, (iii) notify the requester that the request is unduly burdensome and extend an opportunity to the requester to attempt to reduce the request to manageable proportions, or (iv) provide the records requested.

(b) Within 5 business days after receiving a request from a recurrent requester, as defined in subsection (g) of Section 2, the public body shall notify the requester (i) that the public body is treating the request as a request under subsection (g) of Section 2, (ii) of the reasons why the public body is treating the request as a request under subsection (g) of Section 2, and (iii) that the public body will send an initial response within 21 business days after receipt in accordance with subsection (a) of this Section. The public body shall also notify the requester of the proposed responses that can be asserted pursuant to subsection (a) of this Section.

(c) Unless the records are exempt from disclosure, a public body shall comply with a request within a reasonable period considering the size and complexity of the request.

No Appeal Right for Commercial Requesters
Public Act 97-0579 amended Section 9.5 of FOIA by explicitly prohibiting a commercial requestor from filing a request for review with the PAC. The one exception to this prohibition is that an individual may file a request for review for the limited purpose of appealing the public body’s treatment of the request as a commercial request.

Specifically, Public Act 97-0579 amended Section 2 of FOIA by adding the following language:

. . .

(b) A person whose request to inspect or copy a public record is made for a commercial purpose as defined in subsection (c-10) of Section 2 of this Act may not file a request for review with the Public Access Counselor. A person whose request to inspect or copy a public record was treated by the public body as a request for a commercial purpose under Section 3.1 of this Act may file a request for review with the Public Access Counselor for the limited purpose of reviewing whether the public body properly determined that the request was made for a commercial purpose. . . .

Public Bodies No Longer Need to Seek Pre-Approval Authorization From the PAC of Its Intent to Deny Records Pursuant to Sections 7(1)(c) or 7(1)(f)
Previously, public bodies were required to notify the PAC of its intent to deny records pursuant to either the Unwarranted Invasion of Personal Privacy exemption [§7(1)(c)] or the Preliminary Draft exemption [§7(1)(f)]. Public Act 97-0579 amends Section 9.5 of FOIA by completely removing this requirement. Therefore, public bodies no longer have to notify the PAC before exempting documents or redacting information pursuant to either Section 7(1)(c) or 7(1)(f) of FOIA.

Two Additional Exemptions Related to Minors
Public Act 97-0385 amended Section 7 of FOIA by adding two exemptions, which exempt the personal information of the participants of programs that are targeted primarily to minors. It is also important to note that Section 7 has also been amended so that there are no longer two separate exemptions listed as subsection (cc) – one is now subsection (cc) and the other is subsection (dd).

Specifically, Public Act 97-0385 amended Section 7 of FOIA by adding the following exemptions:

(dd) The names, addresses, or other personal information of persons who are minors and are also participants and registrants in programs of park districts, forest preserve districts, conservation districts, recreation agencies, and special recreation associations.

(ee) The names, addresses, or other personal information of participants and registrants in programs of park districts, forest preserve districts, conservation districts, recreation agencies, and special recreation associations where such programs are targeted primarily to minors.