In responding to FOIA requests, public bodies have no obligation to answer general inquiry questions or create records that are not already maintained.
A recent appellate court decision has reaffirmed that FOIA requestors have no right to force public bodies to gather information not already kept in the ordinary course of business. In Chicago Tribune v. Dept. of Fin. And Prof’l Reg., 2014 IL App (4th ) 130427, the court held that pubic bodies have no duty to provide responses to general inquiries or to keep records that are not already maintained or required to be maintained.
The Chicago Tribune (Tribune) submitted two FOIA requests to the Department of Financial and Professional Regulations (DFPR). Both requests sought information regarding Departmental prosecutions of licensed medical professionals who were registered sex offenders. In particular, the Tribune wanted the “total number” of initial claims, complaints, and formal complaints issued against certain doctors. The DFPR responded by providing a “list of 17 individuals, their professional license numbers, case numbers associated with each individual, the date each case was opened … the status of the individual’s license” and “information and documents specific to all the cases in which a Formal Complaint was filed.” With regards to other, more general information that was requested, the Department stated it did not maintain such information in an accessible format.
Eventually the Tribune filed suit alleging that the DFPR had improperly withheld “the number of claims or informal complaints filed against each of the identified physicians.” In its response, the DFPR argued that it was not required to prepare the types of records sought and that it did not “in the ordinary course of business, maintain or generate records showing” the requested information. The DFPR filed a motion for summary judgment, to which the Tribune responded with its own cross-motion for summary judgment. In May 2012, the circuit court ruled against the DFPR and granted the Tribune’s motion for summary judgment.
In reversing the decision of the circuit court, the appellate court examined FOIA’s statutory language, acknowledging that FOIA is meant to provide a right of access to “public records,” but is “not intended to create an obligation on the part of any public body to maintain or prepare any public record which was not [already] maintained.” The appellate court found that the Tribune did not seek disclosure of ‘public records’ as that term is defined in FOIA, but was seeking the Department to perform a review of its investigative files and prepare a tally of the number of initial claims made against certain license holders. The court viewed the request as “more akin to an interrogatory in a civil action that a request for records brought pursuant to FOIA.”
In reaching its decision, the court relied heavily on its ruling in Kenyon v. Garrels, 184 IL App 3d 28 (1989), where it held that FOIA “is not designed to compel the compilation of data the governmental body does not ordinarily keep,” and “does not compel the agency to provide answers to questions posed by the inquirer.”
Tribune tells us that public bodies are not required to create records that they do not already maintain, nor are they required to answer general inquiries. Keep in mind, however, even though a request may be improper, a public body must still deny the request within five (5) business days of receipt.
* Allen Yow is a partner at the law firm of Rammelkamp Bradney, P.C. where he concentrates in school law, family law, municipal law, and trial practice/ligitation.