General Assembly Overrides Governor’s Veto to Provide Relief From Voluminous FOIA Requests

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General Assembly Overrides Governor’s Veto to Provide Relief From Voluminous FOIA Requests

December 8, 2014

On December 3, 2014, the Illinois Senate joined the House in voting to override Governor Quinn’s veto of HB3796. These votes clear the way for public bodies to recover fees incurred in responding to “voluminous requests,” a new designation that has been added to the Illinois FOIA by HB3796. Governor Quinn had vetoed the bill on grounds that the bill “reduces government transparency [and] . . . make[s] it more difficult for citizens to obtain a large volume of records.” Many public bodies, however, are inundated with single requests for information that encompass a variety of different records. The new amendments to FOIA will ease the burden of complying with these requests.

What is a “voluminous” request? A “voluminous” request is defined as a request that: (i) includes more than five individual requests for more than five different categories of records or a combination of individual requests that cover more than five different categories of records in a period of 20 business days; or (ii) requires the compilation of more than 500 letter or legal-sized pages of public records unless a single requested record (e.g., one report, form, e-mail, letter, memorandum, book, map, microfilm, tape, or recording) exceeds 500 pages. It is notable that the definition includes not only a single request, but also takes into consideration requests from a single requestor over a period of time—a requestor cannot necessarily circumvent the definition by breaking a voluminous request into multiple smaller requests.

Response options for “voluminous” requests. The new law requires a public body to notify a requestor that a request is being treated as a “voluminous” request and allows the requestor an opportunity to modify the request in a manner that is not “voluminous.” The requestor is under no obligation to modify the request, however. If the request continues to qualify as “voluminous”, the public body may then impose fees for time spent by personnel in excess of eight hours searching for and retrieving requested records or examining the records for necessary redactions. These charges may not exceed $10 for each such hour spent. In addition, the law creates new fees that can be charged for electronic data associated with voluminous requests. These fees are in addition to fees authorized for any FOIA request associated with copies in excess of 50 pages and the actual cost of electronic recording medium (like a flash drive or CD). The law contains a number of specific procedural requirements and notices that must be provided in processing a “voluminous” request and assessing fees. These requirements obviously should be carefully reviewed by a public body before it treats a request as “voluminous”. This is especially true, in light of the fact that the law allows a “voluminous” determination to be reviewed by the Attorney General’s Public Access Counselor.

Online information does not need to be reproduced. As a further measure for streamlining the administration of FOIA, HB3796 adds a new section to FOIA that addresses records maintained online. If a public body receives a FOIA request for public records that are published on the public body’s website, the public body may now direct the requestor to the website. Previously, a public body was required to provide the actual record in response to a request, even if the record was available online. The law does still require a public body to provide the actual record if the person is unable to access the record online.

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HB3796 gives public bodies new tools for responding to FOIA requests that can be deemed as “voluminous.” However, until authoritative guidance is provided by the Illinois Attorney General’s Office and Courts on how to interpret this new law, public bodies are advised to consult legal counsel before making a “voluminous” determination.

The CBS LLP Legal Advisory is prepared for general information purposes only. The summaries of recent court opinions and other legal developments are not necessarily inclusive of all the recent legal authority of which you should be aware when making your legal decisions. Thus, while every effort has been made to ensure accuracy, you should not act on the information contained herein without seeking more specific legal advice on the application and interpretation of these developments to any particular situation.
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