A recent Chicago Tribune editorial, “The burden of transparency” asks a provocative question: does the unduly burdensome exemption in the Illinois Freedom of Information Act (FOIA) allow an unfair loophole for public bodies to avoid producing public records? The Tribune editorial calls upon lawmakers to remove the unduly burdensome provision from the Illinois law. The federal Freedom of Information Act and public access laws in many other states include similar provisions and so the questions raised in the editorial could be applicable across the country. But courts and lawmakers considering such challenges should keep in mind the serious countervailing interests of public bodies – and the public taxpayers who fund them – before taking drastic measures like removing unduly burdensome exemptions from public access laws.
The editorial was written against the backdrop of a recent Illinois lawsuit, For the Good of Illinois v. State of Illinois, Office of Comptroller, 13CH00257, which was filed in the Circuit Court of Cook County in early January. As explained in the complaint, For the Good of Illinois (FGI) operates a website, www.openthebooks.com, which is a searchable website that contains financial records from public bodies. According to the FGI website, the website includes “7 million lines of public employment data covering over 95% of Illinois public employment and $236 billion of public employment pay, pension and worker compensation claims.” The complaint indicates that that FGI obtained such information from, among other public bodies, 944 local school districts and 36 colleges and universities.
In April, 2012, FGI submitted a request for records to the Illinois Office of the Comptroller under the Illinois FOIA. The request sought a copy of financial records from the Comptroller showing payments made to vendors of the State of Illinois. The Comptroller denied the request as unduly burdensome, saying that “[t]he requested records would number in the millions” and that “[t]he review, redaction, and arrangement of all 2011 vendor payments would take multiple staff members, dedicated solely to this request more than three days to complete.”
FGI appealed the decision to the Illinois Attorney General’s Public Access Counselor (PAC). In its response to the PAC, the Comptroller explained that when she took office in January, 2011, she inherited a computer system that contains “voluminous data which presents difficulty in extracting.” FGI maintains that the Comptroller’s response – and the fact that the other public bodies who received identical requests from FGI responded without any undue burden – indicated that any undue burden associated with the Comptroller’s response was due to its own inefficiency in maintaining records.
The Chicago Tribune editorial suggests that this undue burden “loophole” is an “absurd exemption” that has allowed governments to “exploit[ ] the exemption to duck legitimate records requests.” The Tribune editors argued that “[t]he exemption provides a disincentive to user-friendly record keeping. If governments can avoid releasing clearly public documents by asserting that it would be too much trouble to produce them, why in the world would they maintain records any other way?” The editorial suggests that lawmakers should remove the exception from the law completely or, at least, “insist that state agencies build their databases from the ground up to promote transparency, not to thwart it.”
Although a reasonable requirement that public bodies not use technology as an excuse to thwart public access to records might have a place in public records laws like FOIA, any suggestion that the undue burden exemption should be removed completely from this or any other FOIA law ignores the importance of the exception for preventing abuse of the FOIA system by requesters. Since the most recent overhaul of the Illinois FOIA law in 2009, our clients and other public bodies have reported an uptick in the number of FOIA requests they must address, and many of the requests are broad and categorical and would require significant diversion of public resources to address. The undue burden exemption provides a much needed protection against these types of requests.
This important protection for public bodies and public resources is especially justifiable where public access laws in Illinois and elsewhere have been interpreted in a way to that mitigates the risk of abuse by public bodies. In Illinois, for example, the FOIA law requires that a public body give a requester an opportunity to narrow a request before the public body can deny the request as unduly burdensome. This second bite at the apple ensures that a requester has a fair opportunity to craft a manageable request. Similarly, Illinois courts have made clear that the mere fact that a public body will have to expend valuable labor and computer time to respond to a request does not warrant invoking the exemption. For example, one Illinois court determined that where a FOIA request sought information about an issue that had garnered national attention on an issue of vital importance to the criminal justice system, a public body could not claim an undue burden even if it must dedicate full-time personnel who possess a high level of knowledge and sophistication for several weeks to fulfill the request. Although there are questions about if and how such a standard would be applied on different facts, the case makes clear that protections are in place for FOIA requesters to challenge a public body’s use of the undue burden exemption. Where FOIA requests seek less weighty information, however, and where the burden on the public body is disproportionately severe, the undue burden exemption is an important way to protect public resources against unduly burdensome FOIA requests.
