Hites v. Waubonsee Community College , 2016 IL App (2d) 150836 ( 2016 )

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Hites v. Waubonsee Community College, 2016 IL App (2d) 150836
Appellate Court DANIEL HITES, Plaintiff-Appellant, v. WAUBONSEE
Caption COMMUNITY COLLEGE, Defendant-Appellee.
District & No. Second District
Docket No. 2-15-0836
Filed June 6, 2016
Modified upon
denial of rehearing July 13, 2016
Decision Under Appeal from the Circuit Court of Kane County, No. 14-CH-398; the
Review Hon. David R. Akemann, Judge, presiding.
Judgment Affirmed in part and reversed in part; cause remanded.
Counsel on Reid P. Huefner, of Kirkland & Ellis LLP, of Chicago, for appellant.
Appeal
Paulette A. Petretti and Anthony G. Scariano, both of Scariano, Himes
& Petrarca, Chtrd., of Chicago, for appellee.
Panel JUSTICE SPENCE delivered the judgment of the court, with opinion.
Justices Hutchinson and Zenoff concurred in the judgment and
opinion.
OPINION
¶1 Plaintiff, Daniel Hites, requested data from defendant, Waubonsee Community College
(WCC), pursuant to the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq.
(West 2014)). The data he sought were “raw inputs” for fields on WCC’s student registration
forms, as well as zip codes of students in specified classes and the total numbers of students in
specified classes. WCC responded that it did not have documents responsive to his requests.
¶2 Plaintiff sought recourse in the circuit court, and WCC moved to dismiss his complaint
under section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2014)).
After an evidentiary hearing, the circuit court dismissed plaintiff’s complaint because his
requests were not for public records under FOIA.
¶3 On appeal, plaintiff argues that his requests were for public records under FOIA. For the
reasons contained herein, we affirm in part and reverse in part, because 7 of plaintiff’s 13
requests were for public records under FOIA.
¶4 I. BACKGROUND
¶5 A. Plaintiff’s Complaint and FOIA Requests
¶6 Plaintiff filed his complaint against WCC on March 18, 2014. He sought (1) an order for
WCC to produce the nonexempt public records he requested, (2) a declaration that WCC
willfully and intentionally failed to comply with FOIA and a civil penalty for each violation,
and (3) an award of attorney fees and costs.
¶7 Plaintiff made his first FOIA requests on January 6, 2011. WCC provided documents
responsive to some but not all of plaintiff’s requests. Plaintiff made additional FOIA requests
on February 14, 2013. This second set of requests formed the basis for the current litigation.
Plaintiff requested:
(1) The zip codes of all people taking the National Safety Council’s Defensive
Driving Course (DDS-4) in 2011.
(2) The zip codes of all people taking GED classes in the fall of 2011 at the Aurora
campus.
(3) The zip codes of all people taking English as a second language (ESL) classes in
the fall of 2011 at the Aurora campus.
(4) The total number of registered students without social security numbers in the
fall of 2011 at the Aurora campus.
(5) The raw input for the “city” field on the student registration forms for all
students registered in the fall of 2011 at the Aurora campus.
(6) The raw input for the “county code” field on the student registration forms for
all students registered in the fall of 2011 at the Aurora campus.
(7) The raw input for the “U.S. Citizen” field on the student registration form for all
students registered at the Aurora campus in the fall of 2011.
(8) The raw input for the “Are you in the United States on a visa—nonresident
Alien” field on the student registration forms for all students registered in the fall of
2011 at the Aurora campus.
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(9) The total number of registered students by year from 1995 to 2008 at the Aurora
campus.
(10) The total number of registered students by year from 1995 to 2008 taking ESL
classes at the Aurora campus.
(11) The total number of registered students by year from 1995 to 2008 taking
Adult Basic Education (ABE)/GED classes at the Aurora campus.
(12) The total number of registered students from 1995 to the present taking classes
at Beaupre Elementary School, Family Focus, Hermes Elementary School, Rollins
Elementary School, St. Mark’s Lutheran Church, and Westminster Presbyterian
Church (as shown on page AS of the fall 2009 workforce development noncredit
course schedule).
(13) The total number of out-of-district students in the fall of 2011 at the Aurora
campus.
(14) A copy of the charter for WCC.
(15) The mailing addresses of WCC trustees.
¶8 WCC responded to plaintiff’s requests on February 21, 2013. It provided the same
response to requests (1) through (13): “The college does not aggregate this information as there
is no purpose for the college to do so. Therefore, there is no responsive document to your
request.”
¶9 In an August 2, 2013, letter, plaintiff replied to WCC’s response. Plaintiff maintained that
the requested information should be provided. In the event that WCC was unwilling to
reconsider its position, plaintiff alternatively requested that WCC provide a complete copy of
its databases housing the requested information. WCC responded on August 8 that it would not
change its position or alternatively provide a complete copy of its databases. Plaintiff and
WCC exchanged more letters in which plaintiff asserted that WCC needed to provide the
requested information and WCC claimed that it was not required to do so.
¶ 10 On September 3, 2013, plaintiff requested that WCC furnish a description of how the
requested information could be obtained. On September 11, WCC responded that it was not
required by FOIA to answer questions. Rather, FOIA allowed only access to public records.
¶ 11 On October 11, 2013, plaintiff proposed a “final attempt at compromise” via letter, with
which he included an Adobe-based script that could automate the redaction process, in an
effort to minimize WCC’s alleged burden. The letter described the script’s functioning and
use. WCC responded that it could not use the Adobe-based script but that, even if it could, the
script would not diminish the burden of retrieving the requested information. It therefore
declined to provide the information.
¶ 12 B. Motion to Dismiss
¶ 13 On May 2, 2014, WCC filed a motion to dismiss plaintiff’s complaint under section 2-619
of the Code (735 ILCS 5/2-619 (West 2014)). WCC moved to dismiss for lack of jurisdiction
(735 ILCS 5/2-619(a)(1) (West 2014)) or, alternatively, because the complaint was barred by
an affirmative matter (735 ILCS 5/2-619(a)(9) (West 2014)). The affirmative matter was that
FOIA did not require WCC to create new records to respond to plaintiff’s requests. WCC
argued that plaintiff improperly requested it to provide general data and aggregate statistics
and did not reasonably identify a public record. To wit, WCC argued that “the gravamen of
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plaintiff’s Complaint is that the College will not compile data and information for him,” but
FOIA was not designed to compel such compilation of data. WCC further argued that
compliance with plaintiff’s requests would be significantly burdensome, that it had properly
invoked per se exemptions under FOIA, and that plaintiff’s complaint should be barred by
laches.
¶ 14 On September 17, 2014, the court set an evidentiary hearing to address WCC’s burden in
complying with plaintiff’s requests and to determine the availability of alternative methods of
providing plaintiff the information he sought.
¶ 15 C. Evidentiary Hearing
¶ 16 The court held an evidentiary hearing over the course of three days—March 4, 6, and 12,
2015—and we summarize the relevant testimony. Terrence Felton, WCC’s chief information
officer (CIO), testified as to WCC’s databases as follows. WCC had two databases with
information responsive to plaintiff’s FOIA requests: the Banner database (Banner), which
housed GED files, and the Driver Safety database. Banner was a relational database made by
Oracle, and WCC used it to handle “every major function” at WCC, including finance,
financial aid, student records, and inventory. Banner tracked all sorts of student information,
including a student’s name, address, and zip code, and what courses a student took and when
he or she took them. It also stored the county in which a student lived, whether a student was a
United States citizen, and whether a student lived within the school district. Information in
Banner flowed two ways: an authorized user could look up information such as a student’s
name or zip code and could also enter a student’s name or zip code into the system. WCC
employed two IT employees who could extract information from WCC’s database by writing a
program to do so. For example, it was possible to search Banner for the name and zip code of
all students taking an ESL class in 2011. Felton continued, “[y]ou could write a program to do
pretty much anything you want.” It “would take a while,” but it was possible to write a
program to extract from Banner everything that plaintiff sought in his FOIA requests.
¶ 17 The Driver Safety database was also a relational database. WCC could search it and extract
information from it just as it could with Banner. The Driver Safety database tracked students’
names, zip codes, and classes taken.
¶ 18 Alexander Deligtisch, a director in information management services with AlixPartners,
was accepted by the circuit court as a data analytics expert, and he testified as follows. He
worked in litigation analytics, which included work with attorneys on behalf of their clients
with databases, for purposes of commercial litigation. He had spent 19 years working with data
analytics. He worked with databases, both relational and nonrelational, on a daily basis, and he
often worked to extract responsive data without also extracting personally identifying
information.
¶ 19 He identified both Banner and the Driver Safety database as relational databases, which
were systems that stored data in a grid format. Relational databases were common and widely
used by businesses. Relational databases were like Excel spreadsheets, with data organized in
columns and rows, forming tables. Each database would usually contain many tables. Searches
across multiple tables were not only possible but were the purpose of a relational database. For
instance, the relational database allowed for a search of the zip codes of all students taking a
particular class. In order to perform such a search for zip codes, one would have to write code
to perform the search, but this did not constitute writing a program. Rather, the query would
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essentially say, “ ‘Go to this table, look at these columns, pull out this data and put it in a
spreadsheet or a grid for me.’ ” Writing the necessary query would take less than one minute.
¶ 20 Deligtisch thus believed that it was possible to respond to plaintiff’s request for, for
example, the zip codes of all students taking the DDS-4 in 2011. It would require the user to
identify the tables or the field names that contained the data. Then, the user would enter a short
language command, around 10 to 20 words, and the database would provide the information in
a grid that looked like an Excel spreadsheet. Relational databases allowed the user to quickly
extract the data and put it in an Excel format. He analogized running a search query on a
relational database to going to a filing cabinet and pulling out certain responsive files.
¶ 21 D. Circuit Court Ruling
¶ 22 On July 22, 2015, the circuit court issued its findings and order on WCC’s section 2-619
motion to dismiss. It addressed only plaintiff’s February 14, 2013, FOIA requests, because it
determined that plaintiff’s complaint did not seek relief related to his January 6, 2011, FOIA
requests.
¶ 23 The circuit court began its analysis by examining Chicago Tribune Co. v. Department of
Financial & Professional Regulation, 2014 IL App (4th) 130427, which it found instructive.
There, the plaintiff sought various information from the Department of Financial and
Professional Regulation (Department), including the number of license holders who had ever
been identified as sex offenders; the number of medical professionals who were identified as
sex offenders; the numbers, respectively, of initial claims, complaints, and formal complaints
received against these sex offenders; and the dates of these claims, complaints, and formal
complaints, and how and when they were resolved. Id. ¶¶ 5-6. The parties filed cross-motions
for summary judgment, with the Department arguing, in part, that it did not keep the types of
records requested and that FOIA did not require it to create such records. Id. ¶¶ 1, 14. The
circuit court denied the Department’s motion for summary judgment and granted summary
judgment in favor of the plaintiff. Id. ¶ 16. The appellate court reversed, reasoning that the
plaintiff had not requested “public records” as defined by FOIA. Id. ¶ 32. Rather, the plaintiff’s
request was more akin to an interrogatory in a civil action than a FOIA request for records. Id.
A proper FOIA request had to identify a public record, not general data, information, or
statistics. Id. ¶ 33. Accordingly, the Department did not need to answer the plaintiff’s
“ ‘general inquiry question’ ” concerning the number of initial claims, because doing so would
require creating a new record. Id. ¶ 36.
¶ 24 The circuit court here then turned to plaintiff’s FOIA requests. It reasoned that plaintiff,
like the plaintiff in Chicago Tribune, was requesting that WCC provide tallies of data instead
of existing public records. Specifically, the circuit court identified five of plaintiff’s requests:
(4) the total number of registered students at the Aurora campus without social security
numbers in the fall of 2011; (9) the total number of registered students by year at the Aurora
campus from 1995 to 2008; (10) the total number of registered students taking ESL classes at
the Aurora campus from 1995 to 2008; (11) the total number of registered students taking
ABE/GED classes at the Aurora campus from 1995 to 2008; and (12) the total number of
registered students from 1995 to the present taking classes at other locations, including Beupre
Elementary School and Hermes Elementary School. Seeking such numerical tallies did not
constitute requests for public records under FOIA. “Simply put, if [WCC] already aggregated
such data and statistics, then any resulting documents aggregating said information would be
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subject to FOIA.” But, in the absence of such data aggregation, FOIA did not compel WCC to
compile data or answer plaintiff’s questions. Therefore, the circuit court dismissed the five
aforementioned FOIA requests.
¶ 25 The circuit court next addressed plaintiff’s request that WCC conduct database queries
responsive to his specific requests. It disagreed with plaintiff’s argument that each data
point—for example, the zip codes of individual students—constituted a public record. While it
recognized that records maintained in an electronic format are subject to the FOIA disclosure
rules, plaintiff sought to expand the definition of public records to include every unique data
point in a database. Plaintiff relied on Kalven v. City of Chicago, 2014 IL App (1st) 121846, to
support that each piece of data in WCC’s databases was a public record, but the circuit court
disagreed that Kalven supported plaintiff’s assertion. The salient distinction, the court stated,
was that the documents sought in Kalven had already been prepared and maintained, whereas
WCC did not prepare and maintain documents with the aggregate data that plaintiff sought.
¶ 26 Nor was the circuit court persuaded by plaintiff’s citation to Southern Illinoisan v. Illinois
Department of Public Health, 218 Ill. 2d 390 (2006). The circuit court explained that the court
in Southern Illinoisan did not order the defendants to query their database in response to the
plaintiff’s FOIA request. Rather, it ordered the defendants to produce portions of their cancer
registry that listed the information sought. Id. at 398. While the opinion did not explicitly
establish that the documents requested were previously available, the case’s prior history
established that they were.
¶ 27 Accordingly, the circuit court held that FOIA did not require that WCC conduct database
queries to create a new report for plaintiff.
¶ 28 The circuit court’s final consideration was whether plaintiff’s FOIA requests created an
undue burden on WCC. The undue burden related to copying and redacting physical records,
such as registration forms and new student information forms. The circuit court ultimately
found that the production of thousands of heavily redacted student forms constituted a burden
that outweighed the public’s interest in obtaining the requested information.
¶ 29 For all these reasons, the circuit court granted WCC’s section 2-619(a)(9) motion to
dismiss plaintiff’s complaint, based on affirmative matters defeating the claims.1
¶ 30 Plaintiff timely appealed.
¶ 31 II. ANALYSIS
¶ 32 A motion to dismiss pursuant to section 2-619(a)(9) of the Code admits the legal
sufficiency of the complaint but asserts an affirmative matter that avoids the legal effect of or
defeats the claim. Donovan v. Community Unit School District 303, 2015 IL App (2d) 140704,
¶ 15. Our review is generally de novo. Law Offices of Nye & Associates, Ltd. v. Boado, 2012 IL
App (2d) 110804, ¶ 12. However, when the trial court grants the motion after an evidentiary
hearing, “we review whether the trial court’s findings of fact are against the manifest weight of
the evidence while reviewing the questions of law de novo.” Id.
1
The court did not conclude that the complaint should be dismissed under section 2-619(a)(1) for
lack of jurisdiction.
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¶ 33 A. Plaintiff’s Argument
¶ 34 Plaintiff argues that the circuit court erred in dismissing his complaint. Plaintiff frames the
issue as whether searching for and producing information from a database creates a new
document. He argues that the circuit court erred when it held that the data residing in a public
database or the database itself was not a public record under FOIA. He does not challenge the
circuit court’s ruling with respect to WCC’s undue burden to produce physical records. We
detail the components of plaintiff’s argument in turn.
¶ 35 First, plaintiff argues that Illinois courts have held that FOIA applies to digital records. For
example, in Hamer v. Lentz, 132 Ill. 2d 49, 56-57 (1989), our supreme court held that
information stored on computer tape had to be made available to the plaintiff for inspection and
copying. In ordering the defendant to disclose the requested information, the court suggested
that, if necessary, the defendant would have to prepare a computer program to generate a hard
copy of the information stored electronically. Id. at 56. In Southern Illinoisan, the plaintiff
sought information stored in the defendants’ cancer registry database, including zip codes,
cancer types, and dates of diagnosis. Southern Illinoisan, 218 Ill. 2d at 394. There, the court
held that the defendants had to disclose the requested information because the information was
not exempt. Id. at 427. In Kalven, 2014 IL App (1st) 121846, ¶ 29, the appellate court held that
records maintained in a database were public records because they were prepared, used,
possessed, and controlled by a public body. Here, plaintiff is seeking individual data fields in
WCC’s databases, whereas the records of data sought in Kalven were already compiled (id.
¶¶ 4, 5). Plaintiff argues that this distinction does not alter the FOIA analysis because FOIA
does not differentiate between compilations of data and individual data fields—both are public
records that must be disclosed in response to a FOIA request. See Illinois Attorney General,
Illinois Freedom of Information Act Frequently Asked Questions By the Public 5 (2010),
http://www.illinoisattorneygeneral.gov/government/FAQ_FOIA_Public.pdf (public bodies
have to perform searches of databases of information in response to FOIA requests).
¶ 36 Next, plaintiff argues that federal FOIA case law has consistently held that nonexempt data
in a public body’s database is a public record. Illinois’s FOIA statute was modeled after the
federal FOIA (Roulette v. Department of Central Management Services, 141 Ill. App. 3d 394,
400 (1986)), and case law interpreting the federal statute may guide Illinois courts interpreting
the state statute (Cooper v. Department of the Lottery, 266 Ill. App. 3d 1007, 1012 (1994)). In
case law interpreting the federal FOIA, courts have found that individual pieces of data
residing in a database are subject to disclosure. National Security Counselors v. Central
Intelligence Agency, 898 F. Supp. 2d 233, 270 (D.D.C. 2012) (“In responding to a FOIA
request for ‘aggregate data’ *** an agency need not create a new database or a [sic] reorganize
its method ***, but if the agency already stores records in [its] electronic database, searching
that database does not involved [sic] the creation of a new record.”). Additionally, “fields of
data” in a database, which are what plaintiff is requesting here, are subject to FOIA. Long v.
United States Department of Justice, 450 F. Supp. 2d 42, 48 (D.D.C. 2006). A public body may
even be compelled to turn over an entire database to the extent that the information is not
exempt from disclosure. National Security Counselors, 898 F. Supp. 2d at 272.
¶ 37 Plaintiff continues that, in addition to digital records being subject to disclosure and federal
courts permitting disclosure of data from databases, we would thwart the purposes of FOIA if
we hold that data in a database is not a public record. The circuit court made a distinction
between individual fields of data in a database and the compilation of the same data in a single
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document or report—holding that the latter was a public record and the former was not.
Plaintiff argues that this distinction was erroneous and, if upheld, would allow a public body to
evade FOIA simply by storing data from a public record as individual fields of data in a
database.
¶ 38 Plaintiff references Deligtisch’s testimony from the evidentiary hearing, where he
explained that electronic databases were created to allow for the easy storage and retrieval of
information. He explained that databases could store massive amounts of data in an orderly
fashion and that relational databases—like those WCC employed—stored data in a grid
format, similar to an Excel spreadsheet. The information in WCC’s databases, including zip
codes and course numbers, was initially generated by students when they registered for classes.
Registration was completed via an online form or a paper application. Regardless of the form
used, the information was input into WCC’s databases as individual entries of data, with each
entry constituting a unique data field.
¶ 39 Plaintiff argues that inputting the information from student registration forms—which are
public records under FOIA—did not destroy the public nature of the information or preclude
its disclosure under FOIA. To hold otherwise would create an exception that would allow
public bodies to evade FOIA obligations. That is, by storing the data from public records in a
database, a public body like WCC could effectively shield that public information from any
and all FOIA disclosure requests.
¶ 40 Plaintiff’s final argument is that, alternatively, the information in WCC’s databases is
subject to disclosure because each database is a single public record. That is, if we were to hold
that WCC’s databases each constitute a single public record, FOIA would compel disclosure of
the requested information. Federal courts have held that an entire database is subject to
disclosure (National Security Counselors, 898 F. Supp. 2d at 272), and the Illinois Attorney
General has stated that databases are public records under FOIA (In re Michaelson, 2002 Ill.
Att’y Gen. Op. No. 02-009, at 1). Here, redaction of exempt information in each database
would render the entire database responsive to plaintiff’s requests. Just as a FOIA request for a
hard copy of a document would require “masking” exempt information that is comingled with
responsive, nonexempt information, WCC could comply with plaintiff’s requests via a simple
query command to prevent disclosure of comingled, exempt information.
¶ 41 Accordingly, plaintiff argues, the data fields in WCC’s databases are public records, and
producing the requested information is not creating a new record under FOIA.
¶ 42 B. WCC’s Response
¶ 43 WCC responds with three primary arguments that the complaint was properly dismissed:
(1) plaintiff did not request public records under FOIA, (2) the Illinois case law that plaintiff
relies on is inapposite, and (3) it is unnecessary to look to federal case law for guidance in this
case. We detail each argument as follows.
¶ 44 First, WCC argues that plaintiff’s FOIA requests improperly sought documents that did not
exist, and, under Chicago Tribune, 2014 IL App (4th) 130427, it was under no obligation to
create new documents in response to the FOIA requests. In Chicago Tribune, the plaintiff
sought various information that the defendant claimed it did not maintain in an accessible
format. The appellate court agreed with the defendant, holding that the plaintiff did not seek
public records as defined by FOIA. Id. ¶ 32. Rather, the plaintiff had requested that the
defendant prepare a tally of claims made against certain license holders, which would have
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required the defendant to create a new record. Id. ¶¶ 32, 36. Accordingly, the court held that the
defendant did not have to respond to the plaintiff’s FOIA request, because FOIA did not
compel it to generate new records. Id. ¶ 37. WCC argues that plaintiff’s requests here mirror
the improper request made in Chicago Tribune, because plaintiff requested “total numbers” or
tallies of information and compilations of data such as zip codes. Under Chicago Tribune,
these requests would constitute the generation of new records, and FOIA does not compel
WCC to create new records.
¶ 45 Second, WCC argues that plaintiff’s Illinois case law does not address the issues that this
case presents. WCC argues that Kalven, 2014 IL App (1st) 121846, ¶¶ 28-29, and Southern
Illinoisan v. Department of Public Health, 319 Ill. App. 3d 979, 983 (2001), are
distinguishable in that the data requested in both cases was readily available. Likewise, the
records sought in Hamer, 132 Ill. 2d at 55-56, were maintained in the course of the defendant’s
business and thus were subject to disclosure. In contrast, plaintiff is requesting information that
has not been compiled and stored in WCC’s databases.
¶ 46 WCC further argues that the Attorney General’s opinion in In re Michaelson is not on
point. There, the Attorney General addressed whether the State Board of Elections voter
registration database was exempt from disclosure under FOIA. He opined that it was not
exempt from disclosure. However, WCC points out that the opinion did not include a
discussion of the statutory exemptions for electronic data or personal and private information,
which WCC raised in the circuit court and which applied to plaintiff’s FOIA requests.
¶ 47 WCC argues that a more apt comparison to plaintiff’s requests is found in Chicago Tribune
Co. v. Board of Education of the City of Chicago, 332 Ill. App. 3d 60 (2002). There, the court
held that the records requested were exempt from disclosure under section 7(1)(b)(i) of FOIA
(5 ILCS 140/7(1)(b)(i) (West 2002)). 2 Because the data requested fell within a per se
exemption, the defendant properly refused to disclose the information. Board of Education,
332 Ill. App. 3d at 69. WCC argues that, likewise, it invoked applicable per se exemptions
pursuant to sections 7(1)(o) (information associated with automated data processing operations
that, if disclosed, would jeopardize the security of the system or its data) and 7(1)(u)
(information that might lead to disclosure of secret or confidential information) of FOIA, as
well as private and personal exemptions protecting student registration forms under,
respectively, sections 7(1)(b) and 7(1)(c).
¶ 48 Third, WCC argues that consulting federal FOIA law is unnecessary to resolve this appeal.
WCC argues that federal authority is merely persuasive even when Illinois statutes are
modeled after their federal counterparts and that it should be consulted only when Illinois lacks
authority on point. See Fitzgerald v. Chicago Title & Trust Co., 72 Ill. 2d 179, 184 (1978);
People v. Crawford Distributing Co., 53 Ill. 2d 332, 338-39 (1972) (looking to federal antitrust
law for persuasive guidance on question arising under the Illinois Antitrust Act, because of a
dearth of applicable Illinois precedent). WCC disagrees that Roulette and Cooper, which
plaintiff argues support using federal law as a guide to interpreting FOIA, control here. Rather,
WCC argues that Fitzgerald and Crawford control because Roulette and Cooper addressed
FOIA issues different from those presented in this appeal.
2
Section 7 of FOIA has been amended since Chicago Tribune was published. The exemption for
personal information that would constitute a “clearly unwarranted invasion of personal privacy” is now
found in section 7(c) (5 ILCS 140/7(c) (West 2014)).
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¶ 49 WCC argues that, even if we were to consider plaintiff’s federal authority, that authority
actually supports WCC’s position. For instance, the court in National Security Counselors
noted a tension between, on the one hand, searching a database and, on the other hand, creating
a new record or conducting research. National Security Counselors, 898 F. Supp. 2d at 270-71.
This distinction between searching and either creating records or performing research
remained “somewhat muddled.” Id. at 270. The court explained that producing a listing or
index of records was different from producing particular points of data, which were the
equivalent of the records themselves. Id. at 271. “This is because a particular listing or index of
the contents of [the] database would not necessarily have existed prior to a given FOIA
request.” Id. WCC argues that this holding conforms with its position that a public body does
not have to compile information in response to a FOIA request.
¶ 50 WCC next addresses plaintiff’s reliance on Long. While plaintiff claims that Long holds
that individual fields of information in databases are subject to disclosure under FOIA, WCC
argues that the issue in Long was whether exemptions applied to records that the defendant
already maintained, not whether the defendant was required to create records that it did not
already maintain. See Long, 450 F. Supp. 2d at 53-80 (analyzing multiple claimed
exemptions). By contrast, WCC argues, exemptions apply here and plaintiff is improperly
requesting that it create new records.
¶ 51 WCC concludes that, “[q]uite simply, there are no reports setting forth the information as
requested by plaintiff in either paper or electronic format.” And under FOIA, it is under no
obligation to respond to plaintiff’s requests by creating a new record that it did not previously
prepare or maintain.
¶ 52 C. Our Resolution
¶ 53 The purpose of FOIA is to “open governmental records to the light of public scrutiny.”
(Internal quotation marks omitted.) Stern v. Wheaton-Warrenville Community Unit School
District 200, 233 Ill. 2d 396, 405 (2009). The legislature adopted FOIA to provide the public
with access to public records, in order to promote transparency and accountability in
government. 5 ILCS 140/1 (West 2014) (delineating public policy and legislative intent behind
FOIA). Under FOIA, public records are assumed to be open and accessible, and we liberally
construe the statute in order to provide the public with easy access to government information.
Better Government Ass’n v. Zaruba, 2014 IL App (2d) 140071, ¶ 19. Statutory exemptions to
disclosure are to be interpreted narrowly so as not to defeat FOIA’s purpose. Southern
Illinoisan, 218 Ill. 2d at 416.
¶ 54 Whether a statutory exemption applies is not at issue on appeal. WCC invoked exemptions
pursuant to sections 7(1)(o) and 7(1)(u) (5 ILCS 140/7(1)(o), 7(1)(u) (West 2014)), related to
disclosure of its entire databases. However, the dismissal of the complaint was based on
plaintiff’s February 14, 2013, FOIA requests, which did not seek WCC’s entire databases.
WCC also invoked private and personal exemptions pursuant to sections 7(1)(b) and 7(1)(c),
related to disclosure of student registration forms, but it admits that such forms could be
redacted to display only nonexempt information. Importantly here, the requests at issue are not
for the physical copies but for the zip codes, numbers of registered students, and raw input for
the fields of the cities, counties, citizenship, and visa statuses of registered students. These
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specific requests do not implicate the definition of “private information” under section 2(c-5).3
Rather, plaintiff specifically seeks nonexempt information stored in WCC’s databases.
¶ 55 Also not at issue is whether plaintiff’s requests constituted an undue burden on WCC. The
issue of an undue burden, as addressed in the circuit court’s order, pertained to plaintiff’s
requests for physical records, and plaintiff’s appeal relates only to his requests for electronic
records from WCC’s databases. Furthermore, it is not disputed that WCC is a “public body”
under FOIA (5 ILCS 140/2(a) (West 2014)).
¶ 56 Finally, there is no jurisdictional issue. WCC argued in its motion to dismiss that plaintiff
did not present a case or controversy necessary to establish jurisdiction, because plaintiff was
not denied access to any public records. This argument put the cart before the horse: at issue is
whether the information sought constitutes public records.
¶ 57 Whether the dismissal of plaintiff’s complaint was proper depends on the following two
issues: (1) whether the data on WCC’s databases constitutes public records and (2) whether
plaintiff’s FOIA requests required WCC to create new records. We first address whether
WCC’s databases, and the data therein, are public records. FOIA defines “public records” as:
“[A]ll records, reports, forms, writings, letters, memoranda, books, papers, maps,
photographs, microfilms, 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) (West 2014).
For information or documentation to qualify as a “public record” under the plain language of
section 2(c), it must (1) pertain to the transaction of public business and (2) have been one of
the following: (a) prepared by a public body, (b) prepared for a public body, (c) used by a
public body, (d) received by a public body, (e) possessed by a public body, or (f) controlled by
a public body. See City of Champaign v. Madigan, 2013 IL App (4th) 120662, ¶ 30
(considering whether electronic communications sent by city council members via personal
devices during a city council meeting were public records under FOIA). The definition of
“public records” is “expansively defined” (Stern, 233 Ill. 2d at 405), and FOIA is accorded a
liberal construction (id. at 411). In this expansive definition of “public records,” the legislature
recognizes that information or documentation may be stored in myriad media, some physical
and some not. Illinois case law has long held that electronic records may be public records
subject to FOIA. See Hamer, 132 Ill. 2d at 55-57 (affirming disclosure of records stored on
computer tape).
¶ 58 The circuit court was not persuaded that data points in a database were public records. For
example, in the circuit court’s view, a copy of a registration form stored electronically as a
PDF file would be a public record, but the entry into a WCC database of a zip code, which may
3
FOIA defines “private information” as “unique identifiers, including a person’s social security
number, driver’s license number, employee identification number, biometric identifiers, personal
financial information, passwords or other access codes, medical records, home or personal telephone
numbers, and personal email addresses.” 5 ILCS 140/2(c-5) (West 2014). It also may include, with
exceptions, “home address and personal license plates.” Id.
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have been included in that registration form, would not. It saw plaintiff’s position as greatly
expanding the definition of “public record” by applying it to individual data points.
¶ 59 As we explain, we disagree with the circuit court’s view. It is important to recognize that a
database, by its nature, functions differently than a traditional physical record. To this end, the
circuit court was correct that Kalven and Southern Illinoisan did not provide conclusive
guidance as to data stored on databases. In Southern Illinoisan, 218 Ill. 2d at 393-94, the
plaintiff sought documents relating to the incidence of cancer, which were located on the
defendants’ cancer registry. In Kalven, 2014 IL App (1st) 121846, ¶ 1, the plaintiff again
sought documents, this time related to police misconduct. The circuit court here did not
disagree that electronically stored documents were subject to FOIA. Kalven and Southern
Illinoisan clearly required the disclosure of electronic records under FOIA. Rather, it disagreed
that points of data stored in a database constituted public records, because FOIA does not
compel disclosure of general data, information, or statistics. Chicago Tribune Co., 2014 IL
App (4th) 130427, ¶ 33. The question, therefore, is whether data fields or points of data—as
opposed to complete reports or listings—stored electronically are subject to FOIA.
¶ 60 Illinois case law does not provide direct guidance regarding disclosure of data stored in a
database. Therefore, we agree with plaintiff that we may turn to federal case law for guidance.
State Journal-Register v. University of Illinois Springfield, 2013 IL App (4th) 120881, ¶ 21
(when a novel Illinois FOIA issue arises, courts often look to cases interpreting the federal
FOIA statute); see Crawford Distributing Co., 53 Ill. 2d at 338-39 (explaining that federal law
can provide nonbinding guidance when Illinois has a dearth of law on point). Not only is there
a dearth of Illinois case law on point, but also our legislature patterned FOIA after the federal
FOIA, and it is established that in interpreting our FOIA we may look to federal case law
construing the federal statute. Cooper, 266 Ill. App. 3d at 1012; Roulette, 141 Ill. App. 3d at
400; cf. Ballard RN Center, Inc. v. Kohll’s Pharmacy & Homecare, Inc., 2015 IL 118644, ¶ 40
(finding it well settled that we may consider federal case law for guidance on class action
issues because the Illinois class action statute was patterned after Rule 23 of the Federal Rules
of Civil Procedure). It is therefore appropriate that we consider federal authority to aid our
analysis, but we are not bound by that authority.
¶ 61 Turning to federal case law, federal courts have found that databases—which house
aggregations of data and do not merely store documents—are subject to FOIA disclosure. See
Multi Ag Media LLC v. Department of Agriculture, 515 F.3d 1224, 1226, 1233 (D.D.C. 2008)
(USDA crop data database was not exempt from FOIA disclosure); Long, 450 F. Supp. 2d at
86-87 (ordering release of nonexempt data fields from the defendant’s database).
¶ 62 Particularly helpful here is the district court’s discussion of federal FOIA (FFOIA)
requests for “aggregate data” in National Security Counselors. The dispute involved specific
denials of requests for records as well as challenges to the CIA’s overarching policies and
practices. National Security Counselors, 898 F. Supp. 2d at 242. One policy that the plaintiff
complained of was the CIA’s refusal to process FFOIA requests for “aggregate data,” such as
database listings. Id. at 243. The CIA denied such requests either because an adequate search
would require unreasonable effort or because FFOIA did not require that it create new records,
conduct research, or analyze data. Id. at 269. The district court noted that the CIA was correct
that FFOIA imposed no duty to create new records. Id. Rather, in dispute was whether the
plaintiff’s FFOIA requests for aggregate data actually required it to create new records or
conduct research. Id.
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¶ 63 The court held that an agency need not create a new database or reorganize its method of
archiving data to respond to a FFOIA request. Id. at 270. However, if the agency already stores
information in a database, searching the database does not create a new record. Id. Likewise,
sorting a database to make information intelligible does not create a new record because
“ ‘[c]omputer records found in a database rather than a file cabinet may require the application
of codes or some form of programming to retrieve the information.’ ” Id. (quoting H.R. Rep.
No. 104-795, at 22 (1996)). Sorting a database by a particular data field, such as date, category,
or title, is just another form of searching that is within the scope of an agency’s duty to respond
to FFOIA requests. Id. In reaching these conclusions, the district court considered the 1996
amendments to FFOIA, which provided context for agencies in responding to FFOIA requests
in an increasingly computerized age. Id. at 269. Instructive amendments were the expansion of
the definition of “record” to include information “in any format including an electronic
format” and the expansion of the definition of “search” to include review “by automated
means.” Id. at 270.
¶ 64 Nevertheless, the district court noted that the distinction between, on the one hand,
searching the database and, on the other hand, creating new records or performing research
was “somewhat muddled.” Id. A tension existed between the “well-settled prohibition” on
requiring public bodies to create new records and the effort to make the contents of electronic
databases accessible to FFOIA requests. Id. “When points of data are stored in a database, that
data can often be manipulated in myriad ways, only some of which are likely to qualify as mere
‘searching’ within the meaning of [FFOIA].” Id. The problem was drawing the line between
searching a database and creating new records or conducting research. Id. at 270-71.
¶ 65 The district court continued by providing an example of each. On the one hand, “producing
particular points of data” was proper, as these were “the records themselves.” Id. at 271. On the
other hand, producing a listing or index of database search results was the creation of a new
record. Id. This was because the listing or index did not exist before the FFOIA request. Id.
However, the agency would have to release the nonexempt records themselves, if requested.
Id. Accordingly, the district court drew the following distinction: A FFOIA request for a listing
or index of a database’s contents that seeks information about those contents, as opposed to the
contents themselves, requests a new record. Id.
¶ 66 The district court ultimately held that the plaintiff had not stated a claim against the CIA
concerning its aggregate data policy. Id. at 272. This was because the plaintiff’s single request
for the underlying records (the plaintiff also made requests for database listings, which, as
discussed, were improper) was insufficient to allege the existence of a CIA policy or practice
to refuse to produce the contents of electronic databases. Id. The district court concluded its
discussion of aggregate data by pointing out that, although the CIA could refuse to produce
database listings, FFOIA actually required it to produce, on request, the contents of entire
databases to the extent that those contents were not exempt from disclosure. Id. Therefore, it
suggested, it might be in the CIA’s interest to produce database listings upon request, because
that would be less burdensome than prompting FFOIA requesters to instead seek the reams of
data underlying those listings. Id.
¶ 67 We find the district court’s logic persuasive, and for the following reasons we hold that the
data in WCC’s databases are “public records” under FOIA, so long as the data pertain “to the
transaction of public business” and were “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.” See 5 ILCS
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140/2(c) (West 2014) (providing the definition of “public records”). Similar to the 1996
FFOIA amendments, our statute explicitly provides that “public records” include “reports,
forms, writings, *** 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.” (Emphasis added.) Id. “Public
records” are clearly not limited to physical documents—audio recordings, for example, can be
public records. See DesPain v. City of Collinsville, 382 Ill. App. 3d 572, 579 (2008) (holding
that the plaintiff was entitled to inspect the original audiotapes of recordings of city council
meetings). Furthermore, “copying” under FOIA means the “reproduction of any public record
by means of any photographic, electronic, mechanical or other process *** developed and
available to the public body.” (Emphasis added.) 5 ILCS 140/2(d) (West 2014).
¶ 68 It is clear, therefore, that FOIA comprehends that records will be stored and reproduced
electronically. It is also clear that Illinois courts permit disclosure of electronic records under
FOIA. See, e.g., City of Champaign, 2013 IL App (4th) 120662, ¶ 43 (city council members’
communications on personal electronic devices during city council meetings were subject to
FOIA disclosure). Plaintiff’s argument—that distinguishing between individual data points
and compilations of data in a discrete document would thwart the purposes of FOIA—is well
taken. Databases are crucial to a world with ever-increasing generation of, and use for, data.
Yet, by making a distinction between compiled electronic records and the raw data in a
database, the circuit court effectively authorized shielding public information from disclosure
by merely inputting the data into a database, instead of continuing to store individual
registration forms, electronically or otherwise. WCC should not be able to input information
from public records into a database and, in turn, shed its duty to disclose that same information
under FOIA.
¶ 69 Contrary to WCC’s argument, the Attorney General’s opinion in In re Michaelson supports
our holding. The Attorney General opined that a database was subject to FOIA disclosure. In re
Michaelson, 2002 Ill. Att’y Gen. Op. No. 02-009, at 1. In fact, it was undisputed that the State
Board of Elections voter registration database was a public record under section 2(c) of FOIA
(5 ILCS 140/2(c) (West 2002)). In re Michaelson, 2002 Ill. Att’y Gen. Op. No. 02-009, at 2.
The only dispute was whether any exemptions from disclosure applied, and the Attorney
General opined that the database was not exempt from disclosure. Id. at 4.
¶ 70 Here, the distinction between compiled records, such as student registration forms, and the
data from those records entered in a database is a distinction of form, not substance. We are to
accord FOIA a liberal interpretation, aligned with our public policy favoring transparent and
accountable government. See Zaruba, 2014 IL App (2d) 140071, ¶ 19. WCC input data from
student registration forms into its Banner and Driver Safety databases. Felton confirmed that
information responsive to plaintiff’s requests resided in the databases, and Deligtisch testified
that the databases were designed to be searched for the responsive data plaintiff sought. The
databases were akin to giant Excel spreadsheets, storing and organizing information as WCC
saw fit. In fact, WCC used Banner for “every major function,” including finance, financial aid,
student records, and inventory. See 5 ILCS 140/2(c) (West 2014). To hold that this data stored
on WCC’s databases does not constitute public records would ascribe too rigid a definition to
“public records” and would contravene the purpose of FOIA to promote governmental
transparency and accountability. Accordingly, data in WCC’s databases constitutes public
records under FOIA because such data is clearly “recorded information *** pertaining to the
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transaction of public business *** prepared by *** being used by *** or under the control of
[a] public body.” 5 ILCS 140/2(c) (West 2014).
¶ 71 Moreover, the distinction between a database and its individual data points for purposes of
what constitutes a public record is a red herring. A database is an aggregation of data, not a
discrete document. Data may continuously be input into the database, deleted from it,
reorganized, reproduced, and manipulated. The common characteristics of public records are
that they are information or documentation pertaining to a public body’s operation that the
public body prepared, used, or had under its control. See 5 ILCS 140/2(c) (West 2014); cf.
Reppert v. Southern Illinois University, 375 Ill. App. 3d 502, 506-07 (2007) (employment
contracts that met the definition of “public records” under FOIA were not shielded from
disclosure merely by being physically stored in an exempt personnel file). Here, the data is
information generated and stored by WCC and pertaining to WCC’s business as a public body.
Therefore, the data is a public record. A request for the entire databases is no more than a
request for all of the data. That is, each database is subject to FOIA only insofar as the data is
information pertaining to public business that WCC prepared, used, or controlled. Deligtisch’s
analogy to file cabinets is helpful: the database is akin to a file cabinet, and the data that
populates the database is like the files. FOIA permits a proper request for a single file, some of
the files, or all of the files.
¶ 72 Having decided that data in WCC’s databases constitutes public records, we turn to
whether plaintiff’s requests required WCC to generate new records. Generally, a request to
search and produce data stored in a database is not a request to generate a new record. See
Hamer, 132 Ill. 2d at 56 (FOIA required a public body to create a computer program, if
necessary, to generate a hard copy of information stored on computer tape); National Security
Counselors, 898 F. Supp. 2d at 270 (searching a database does not create a new record, and
sorting a database by a particular field is one way of searching). In order to reproduce the
records in the database, it is necessary to search the database for responsive data.
¶ 73 An electronic search that the public body can perform meets the definition of “copying”
under FOIA. 5 ILCS 140/2(d) (West 2014) (“ ‘Copying’ means the reproduction of any public
record by means of any photographic, electronic, mechanical or other process *** now known
or hereafter developed and available to the public body.”). In fact, our Attorney General
advises that public bodies must perform searches of their databases for information responsive
to FOIA requests. Illinois Attorney General, Illinois Freedom of Information Act Frequently
Asked Questions By the Public 5 (2010), http://www.illinois attorneygeneral.gov/
government/FAQ_FOIA_Public.pdf (public bodies have to perform searches of databases of
information in response to FOIA requests). A computerized search is necessary because a
database is an electronic aggregation of data, and the data is the stored records. See National
Security Counselors, 898 F. Supp. 2d at 270 (Congress understood that computer records in a
database might require application of code to retrieve the information).
¶ 74 However, our analysis does not end here. While a search for data on WCC’s databases is
permissible under FOIA because the data constitutes public records, we acknowledge the
tension cited in National Security Counselors between, on the one hand, performing a search
and, on the other hand, creating a new record or performing research. Therefore, we must
determine whether plaintiff’s requests improperly sought creation of a new record.
¶ 75 WCC relies on Chicago Tribune, 2014 IL App (4th) 130427, to argue that plaintiff did not
request mere searches but instead requested that it generate new records. There, the appellate
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court reasoned that, although FOIA provided a right of access to public records, the plaintiff
was not seeking disclosure of public records as defined by FOIA. Id. ¶ 31. The plaintiff was
essentially requesting that the defendant compile the number of initial claims and complaints
received against licensed physicians. Id. ¶ 36. Importantly, the defendant did not maintain a
record of the requested number of claims. Id. FOIA did not require that the defendant answer
the plaintiff’s “ ‘general inquiry question,’ ” which was more akin to an interrogatory in a civil
action than a request for records under FOIA. Id. ¶¶ 32, 36. If a document in response to the
plaintiff’s request already existed, it would have been subject to FOIA, but FOIA was not
designed to compel the compilation of data not ordinarily kept by the public body. Id. ¶ 34
(quoting Kenyon v. Garrels, 184 Ill. App. 3d 28, 32 (1989)). In order to answer the general
inquiry, the defendant would have needed to create a new record, and therefore it did not have
to answer the plaintiff’s request. Id. ¶ 37.
¶ 76 The holding in Chicago Tribune is consistent with the rationale of National Security
Counselors, which we have followed thus far. There, the district court held that producing a
listing of a database search—such as a listing of the first 100 FOIA requests in a given
year—was the creation of a new record. National Security Counselors, 898 F. Supp. 2d at 271.
A requested listing, unlike requested particular points of data from a database, did not exist
prior to a FOIA request. Id. A request for a listing sought information about public records; it
did not seek the records themselves. Id.
¶ 77 A listing of search results is analogous to a tally of the number of complaints in Chicago
Tribune. Both are information about or derived from public records. Neither existed prior to a
FOIA request. Both require the public body to answer the requester’s general inquiry as
opposed to disclosing public records.
¶ 78 Turning to plaintiff’s February 14, 2013, FOIA requests, the circuit court identified five
requests that improperly sought the creation of new records. They were plaintiff’s requests (4),
(9), (10), (11), and (12), which respectively requested the total number of registered students
without social security numbers in the fall of 2011; the total number of registered students by
year from 1995 to 2008; the total number of registered students by year taking ESL classes
from 1995 to 2008; the total number of registered students by year taking ABE/GED classes
from 1995 to 2008; and the total number of registered students from 1995 to the present taking
classes at specified off-campus locations.
¶ 79 We agree with the circuit court that these requests, as well as request (13), for the total
number of all out-of-district students in the fall of 2011, improperly required WCC to create
new records. Importantly, WCC did not maintain the requested totals in its databases.
Nevertheless, plaintiff asked WCC to compile tallies of students, just as the plaintiff requested
tallies in Chicago Tribune, 2014 IL App (4th) 130427, ¶¶ 32, 36. Plaintiff’s requests went
beyond a search for records—that is, the data in the databases—and instead improperly sought
information about those records. National Security Counselors, 898 F. Supp. 2d at 271. At oral
argument, plaintiff conceded that these requests were improper. Nevertheless, we note that
FOIA does not necessarily preclude the disclosure of the underlying information sought in
these six requests. Rather, it was the form of the requests—seeking totals instead of the
underlying records—that was improper. As plaintiff argued at oral argument, requests for
totals as opposed to the underlying records might be easier for WCC to respond to. FOIA does
not require that WCC respond to these six requests, but it also does not preclude its response.
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¶ 80 Plaintiff’s remaining requests—for zip codes of students in particular classes in particular
years, “raw input” for specifically identified fields on the student registration forms from
particular years, a copy of the WCC charter, and the mailing addresses of WCC trustees—do
not involve the creation of new records. Rather, these requests require only a search of WCC’s
Banner and Driver Safety databases for information that was already compiled. The zip codes
and “raw input” requests will require computerized searches of the databases that might
involve the creation of code, but our supreme court has held that an agency may be required to
create a computer program to retrieve electronic information. Hamer, 132 Ill. 2d at 56.
Furthermore, the application of such code or programming to retrieve stored information, or to
sort a database by particular data fields (e.g., by zip code or “raw input” for a specific
registration-form field), does not create a new record. See National Security Counselors, 898
F. Supp. 2d at 270.
¶ 81 Both Felton and Deligtisch testified that conducting the necessary searches was possible.
In particular, Felton testified that Banner tracked student zip codes, as well as what courses
students took and when they took them. Deligtisch testified that searching across these
different data fields was not only possible but was the purpose of relational databases, such as
Banner and the Driver Safety database. For example, plaintiff’s request (2) was for the zip
codes of all persons taking GED classes at the Aurora campus in the fall of 2011. Per the
testimony of Felton and Deligtisch, a request for the zip codes within the set parameters was a
request for information already present in Banner. Therefore, the request did not involve
creating a new record. Importantly, plaintiff did not request new information or information
about the zip codes, nor did he request an answer to a general inquiry question. Rather, he
sought a specific type of compiled data—zip codes—for certain persons at WCC. The same
logic applies to the other requests for zip codes and the requests for “raw input.”
¶ 82 III. CONCLUSION
¶ 83 The circuit court erred in dismissing plaintiff’s complaint as it related to his requests (1)
through (3) and (5) through (8), because data on WCC’s Banner and Driver Safety databases
constitute public records under FOIA, and the requests require searches for information
already stored and would not require creating new records. However, the circuit court properly
dismissed plaintiff’s requests (4) and (9) through (13), which sought total numbers of students,
because these requests would require that WCC create new records. We therefore affirm in part
and reverse in part the section 2-619 dismissal and remand for further proceedings consistent
with this opinion.
¶ 84 Affirmed in part and reversed in part; cause remanded.
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