A Refresher on the Freedom of Information Act (“FOIA”)

Post authored by: Ava Caffarini

In 1983, the Illinois General Assembly passed the Freedom of Information Act (“FOIA” or the “Act”). 5 ILCS 140/1, et seq. The purpose of the Act is to make public records available for public inspection and copying. Better Gov’t Ass’n v. Illinois High Sch. Ass’n, 2017 IL 121124, ¶ 23. The Act provides:

It is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act. Such access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.

5 ILCS 140/1. To promote these policy objectives, the Act explicitly creates a presumption that all records in the custody or possession of a public body are open to inspection or copying and puts the burden on the public body to rebut this presumption. 5 ILCS 140/1.1. As such, if a member of the public submits a FOIA request to a public body for information that is (1) a public record and (2) in possession of that public body, the information requested should generally discoverable and must be provided by that public body.   

The FOIA is a powerful tool that makes a great deal of information available to the public. The purpose of this primer is to assist the reader in determining what information is available through a FOIA request, from whom, and what to do if a FOIA request is denied.

  1. What Is a Public Body Under the Act?

The Act defines public bodies in very broad terms:

[A]ll legislative, executive, administrative, or advisory bodies of the State, state universities and colleges, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees, or commissions of this State, any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees thereof, and a School Finance Authority created under Article 1E of the School Code.

5 ILCS 140/2. The breadth of this definition means that the FOIA applies to every government agency at every level of government, and even to private bodies under certain circumstances. Better Gov’t Ass’n v. Illinois High Sch. Ass’n, 2017 IL 121124, ¶ 26 (reciting the following elements as determinative as to whether an entity is a public body: “(1) the extent to which the entity has a legal existence independent of government resolution, (2) the degree of government control exerted over the entity, (3) the extent to which the entity is publicly funded, and (4) the nature of the functions performed by the entity.”).[1]

Examples of persons and entities which qualify as public bodies under the Act include the City of Chicago Police Department, a private healthcare contractor working with the Illinois Department of Corrections, the State’s Attorney’s office, each department within the City of Chicago, and school districts. Dumke v. City of Chicago, 2013 IL App (1st) 121668; Rushton v. Dep’t of Corr., 2019 IL 124552; In re Appointment of Special Prosecutor, 2017 IL App (1st) 161376; Duncan Publishing, Inc. v. City of Chicago, 304 Ill.App.3d 778 (1st Dist. 1999); Stern v. Wheaton-Warrenville Cmty. Unit Sch. Dist. 200, 233 Ill. 2d 396, 398 (2009).

Examples of entities which do not qualify as public bodies under the Act include the Illinois State High School Association, the clerk of an Illinois circuit court, and the judiciary.[2] Better Gov’t Ass’n v. Illinois High Sch. Ass’n, 2017 IL 121124; Newman, Raiz & Shelmadine, LLC v. Brown, 394 Ill. App. 3d 602, 606 (1st Dist. 2009). Interestingly, an individual alderman is not considered a public body. However, if that same alderman used a phone issued by a public body to communicate with constituents, those communications are considered to be within the control of a public body for the purposes of the FOIA. City of Champaign v. Madigan, 2013 IL App (4th) 120662.

  • What is a Public Record under the Act?

The Act also broadly defines the term “public records” as follows:

[A]ll records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information and all other documentary materials pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body.

5 ILCS 140/2(c). Examples of records which qualify as public records under the Act include arrest records, criminal history records,  superintendent employment contracts, settlement agreements entered into by any public body, and text messages between an alderman and his constituents. 5 ILCS 140/2.15; 5 ILCS 140/2.20; Rushton v. Dep’t of Corr., 2019 IL 124552; Duncan Publishing, Inc. v. City of Chicago, 304 Ill.App.3d 778 (1st Dist. 1999); Stern v. Wheaton-Warrenville Cmty. Unit Sch. Dist. 200, 233 Ill. 2d 396, 398 (2009). City of Champaign v. Madigan, 2013 IL App (4th) 120662.

Generally, a public body must comply with a FOIA request unless an exemption applies. Turner v. Joliet Police Dep’t, 2019 IL App (3d) 170819, ¶ 20.

The Act sets out a very long list of documents which are exempt from disclosure in response to a FOIA request, including, but not limited to, the following: (1) information prohibited from disclosure by federal or state law; (2) personal information contained in public records that, if disclosed without consent, would constitute an invasion of personal privacy; (3) records created for law enforcement purposes which, if disclosed, would interfere with the proceeding in some way; (4) records that relate to the security of correctional institutions; (5) trade secrets and commercial or financial information from a person or business; (6) proposals to a government entity, if disclosure would frustrate procuring the bid; and (7) minutes of closed meetings. 5 ILCS 140/7.[3] If a requested record contains a mixture of exempt and non-exempt information, the requested record may be produced with the information redacted. 5 ILCS 140/7(1.5). These exemptions are narrow, and the burden is on the public body to prove through clear and convincing evidence that the claimed exemption applies to a particular requested record. 5 ILCS 140/1.2; 5 ILCS 140/9.5(f). Stern v. Wheaton-Warrenville Cmty. Unit Sch. Dist. 200, 233 Ill. 2d 396, 406 (2009); Turner v. Joliet Police Dep’t, 2019 IL App (3d) 170819, ¶ 10.

Public bodies are also able to deny a categorical request on the basis that compliance with such a request would be unduly burdensome. 5 ILCS 140/3(g). The Act states:

Requests calling for all records falling within a category shall be complied with unless compliance with the request would be unduly burdensome for the complying public body and there is no way to narrow the request and the burden on the public body outweighs the public interest in the information.

5 ILCS 140/3(g). Illinois courts have explained that an unduly burdensome request is one that is overbroad and “requires the public body to locate, review, redact and arrange for inspection a vast quantity of material that is largely unnecessary to the [requestor’s] purpose constitutes an undue burden.” Shehadeh v. Madigan, 2013 IL App (4th) 120742, ¶ 25. However, the public body must confer with the person making the request in an attempt to reduce the request to a manageable proportion. 5 ILCS 140/3(g).

Importantly, business owners operating within the state of Illinois must be cognizant of the fact that the Act allows for discovery of information about their private businesses. This occurs whenever public records are requested that pertain in some way to a private business, such as a request seeking building permits. Even more information is available through the FOIA about businesses that contract with public bodies. The Act states:

A public record that is not in the possession of a public body but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the public body, and that directly relates to the governmental function and is not otherwise exempt under this Act, shall be considered a public record of the public body, for purposes of this Act.

5 ILCS 140/7(2). This provision of the Act creates a circumstance where a public body may ask a private business to produce documents within its possession which are responsive to a FOIA request. However, like a public body, the private business may refuse to produce responsive documents, if the requested documents fall within one of the exemptions to the Act identified under 5 ILCS 140/7.

  • How to Request Records under FOIA.

Submitting a FOIA request is a straightforward task. Requests for inspection or copies should be made in writing to the public body in possession of the records requested. 5 ILCS 140/3(c). The written request may be submitted via personal delivery, mail, telefax, e-mail, or any other means utilized by the public body. 5 ILCS 140/3(c). Most public bodies have information on their website about how to submit a FOIA request, which includes the name and contact information of the FOIA officer.[4] See, e.g., Website for the Will County Land Use Department, available at https://www.willcountyillinois.com/County-Offices/Economic-Development/Will-County-Land-Use-Department/FOIA-Information (last visited April 8, 2021); Website for the Chicago Police Department, available at https://home.chicagopolice.org/information/freedom-of-information-act-foia/ (last visited April 8, 2021). Usually, such requests can be submitted by e-mail. Public bodies often provide specific forms for FOIA requests, though it is expressly against the law for the public body to require the use of a specific form. 5 ILCS 140/3.

Generally, public bodies will ask whether a particular FOIA request was submitted for a commercial purpose. This is to determine the rules and deadlines that govern the FOIA request. Once a public body receives a FOIA request submitted for a non-commercial purpose, it has five days to respond; the public body has twenty-one days to respond to commercial requests. If the information requested is not provided to a non-commercial request within  five days, the request is deemed denied. If the public body cannot comply with the request within the specified time frame, it may request an extension of time. 5 ILCS 140/3(e).

  • What to do if your FOIA request is denied.

A public body denying a request must notify the requester in writing of its decision to deny the request, the reasons for the denial, a detailed explanation for the facts supporting the denial, and the names and titles of each officer responsible for the denial. 5 ILCS 140/9(a). Each denial must also notify the requestor of the right to review by the Public Access Counselor, provide contact information for said counselor, and notify the requester of the right to judicial review of the denial. 5 ILCS 140/9(a). If the denial is premised upon an exemption from Section 7 of the Act, the public body also must cite to applicable authority allowing for the denial. 5 ILCS 140/9(b). After a denial, the requestor has two options to appeal the denial: (1) report the denial to a Public Access Counselor, or (2) file a lawsuit.

The requestor must file for review with the Public Access Counselor within 60 days after the date of final denial. The request for review must be in writing, signed by the requester, and must include a copy of the request and responses from the public body.[5] 5 ILCS 140/9.5(a). Likewise, a person whose request was denied on the basis that it was voluminous may file a request for review with a Public Access Counselor to determine whether the denial was proper. 5 ILCS 140/9.5(b-5). The Public Access Counselor will determine whether further action is warranted and investigate if necessary. The procedures for the Public Access Counselor’s investigation are set forth in 5 ILCS 140/9.5.

The requester may also file suit for injunctive or declaratory relief if access to public records is denied. 5 ILCS 140/10(a). If the public body is of the State, suit may be filed in the circuit court for the county where the public body’s principal office is located or where the requester resides. 5 ILCS 140/10(b). If the public body is a municipality or any other public body that is not of the State, suit may be filed in the circuit court of the county where the public body is located. 5 ILCS 140/10(c). The circuit court has jurisdiction to enjoin the public body from withholding public records and to order the production of any public records improperly withheld. 5 ILCS 140/10(d). The court may conduct an in camera inspection to determine if records may be withheld for any reason allowed by the Act. 5 ILCS 140/10(f).

The court may also compel compliance with a request through the court’s contempt powers. 5 ILCS 140/10(g).

A successful party may receive reasonable attorney’s fees and costs. 5 ILCS 140/10(i). Further, if the public body intentionally failed to comply or acted in bad faith the court may impose a civil penalty of $2,500 to $5,000 for each violation. 5 ILCS 140/10(j). The court also may impose an additional penalty of up to $1000 for each day the violation continues if the public body does not comply within 30 days, the court’s order is not on appeal or stayed, and the court does not grant the public body additional time to comply. 5 ILCS 140/10(j).

FOIA provides a powerful tool for any person seeking to find additional information about the workings of government. However, the since the provisions of the Act also provide government bodies with a number of reasons to deny a particular FOIA request, the assistance of an attorney who is familiar with the ins and outs of the FOIA—and the ways certain public bodies routinely attempt to deny FOIA requests for certain information—will more than likely increase the chances that a member of the public will be able to obtain requested records and/or successfully a public body’s FOIA request denial.

[1] The definitions of “public body” under the FOIA and the Illinois Open Meetings Act are identical.

[2] The Act also explicitly provides that it is not applicable to the following bodies: “[A] child death review team or the Illinois Child Death Review Teams Executive Council established under the Child Death Review Team Act, or a regional youth advisory board or the Statewide Youth Advisory Board established under the Department of Children and Family Services Statewide Youth Advisory Board Act.”

[3] The list of exemptions provided by 5 ILCS 140/7 is quite long and should be reviewed independently from this article for a better understanding of the information exempted from the Act.

[4] Each public body must designate an employee to handle the FOIA requests, which is referred to as a FOIA officer. 5 ILCS 140/3.5.

[5] This option is not available for requests that were made for a commercial purpose. However, it is available if the public body unilaterally treated a non-commercial request as if it were a commercial request. 5 ILCS 140/9.5(b).

About the Author:

Ava Caffarini is an associate at Johnson & Bell, Ltd., focusing her practice area on professional liability, business litigation, nursing malpractice, and insurance defense. Ava is a graduate of the John Marshall Law School and has a B.S. in Molecular and Cellular Biology from the University of Illinois at Urbana-Champaign.

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