Shehadeh v. Madigan ( 2013 )

2013 IL App (4th) 120742FILED
October 4, 2013
NO. 4-12-0742 Carla Bender
th
4 District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
JAMAL SHEHADEH, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Sangamon County
LISA MADIGAN, Illinois Attorney General, ) No. 12MR248
Defendant-Appellee. )
) Honorable
) John Schmidt,
) Judge Presiding.
______________________________________________________________________________
JUSTICE HOLDER WHITE delivered the judgment of the court, with opinion.
Presiding Justice Steigmann and Justice Harris concurred in the judgment and
opinion.
OPINION
¶1 In March 2012, plaintiff, Jamal Shehadeh, filed a complaint pursuant to the
Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1 to 11.5 (West 2012)), alleging the
Attorney General was improperly withholding records. The previous month, plaintiff had
requested from the Attorney General "copies of any publications, opinions, reports or other
records that would or could be used for guidance by [the Attorney General's] office or any other
public body in complying with Illinois' FOIA laws." The Attorney General responded that
complying with plaintiff's request would be unduly burdensome under section 3(g) of FOIA. 5
ILCS 140/3(g) (West 2012). Following an August 2012 hearing, the circuit court granted the
Attorney General's motion for summary judgment, dismissing plaintiff's complaint.
¶2 Plaintiff appeals, arguing the circuit court erred by granting summary judgment
because (1) the Attorney General did not prove its search for records was adequate, (2) FOIA did
not obligate plaintiff to narrow the scope of his search, and (3) the Attorney General failed to
show the production of plaintiff's requested records would unduly burden its operations.
¶3 We affirm.
¶4 I. BACKGROUND
¶5 On February 11, 2012, plaintiff sent a letter to the Attorney General's office,
requesting records pursuant to FOIA. Specifically, plaintiff sought "copies of any publications,
opinions, reports or other records that would or could be used for guidance by [the Attorney
General's] office or any other public body in complying with Illinois' FOIA laws." A file stamp
indicates the Attorney General's office received plaintiff's letter on February 16, 2012. On
February 24, 2012, a FOIA officer at the Attorney General's office sent plaintiff a response,
stating the office had determined producing copies of all records that would or could be used as
guidance would be unduly burdensome under section 3(g) of FOIA (5 ILCS 140/3(g) (West
2012)). According to the officer, a search of the Attorney General's records retrieved over 9,200
potentially responsive files and complying with plaintiff's request would be unduly burdensome
because staff would have to go through each file by hand to determine which records were
responsive and then review and redact information from those responsive records to protect
against the release of exempt information. The officer requested plaintiff narrow the scope of his
request "to bring it within manageable proportions pursuant to section 3(g) of the FOIA."
Specifically, the officer asked plaintiff to provide "information regarding those FOIA issues or
the particular exemptions for which [plaintiff sought] guidance."
¶6 On February 27, 2012, plaintiff responded to the FOIA officer's letter by mail,
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stating that, pursuant to section 3(d) of FOIA, the Attorney General's office could not assert the
unduly burdensome exemption or request that plaintiff narrow his search because the office
received plaintiff's letter on February 16, 2012, nine days before the office sent its response.
Plaintiff stated that "[e]ven excluding weekends and holidays," the office failed to "comply with
the five day requirement." Plaintiff further asserted he did not believe his request was too broad,
but rather, that the office was "attempting to circumvent [its] obligations under the FOIA."
Plaintiff asked that the Attorney General provide him copies of his February 11, 2012, and
February 27, 2012, letters as well as the records he had requested.
¶7 Before the FOIA officer responded to plaintiff, on February 28, 2012, plaintiff
sent a letter to the Attorney General's Public Access Counselor (Counselor), requesting the
Counselor review the FOIA officer's actions. In his letter, plaintiff again asserted the FOIA
officer failed to respond to his request within five days and thus could not assert the unduly
burdensome exemption.
¶8 On March 8, 2012, the FOIA officer responded to plaintiff, explaining the
Attorney General's office had responded to plaintiff's request within the requisite five-day time
frame. With respect to the records plaintiff requested, the officer reiterated the statements in her
February 24, 2012, letter that plaintiff's request was overly broad and unduly burdensome. The
officer again asked plaintiff to narrow his request, suggesting plaintiff provide information
regarding the specific FOIA issues or exemptions for which he sought guidance. Per plaintiff's
request, the officer provided copies of plaintiff's February 11, 2012, and February 27, 2012,
letters.
¶9 On March 9, 2012, the Counselor responded to plaintiff's February 28, 2012,
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letter. The Counselor determined the FOIA officer responded within five business days after
receiving plaintiff's letter. Further, the Counselor found the Attorney General's office's assertion
that compliance with plaintiff's FOIA request would be unduly burdensome was proper in light of
the officer's assertions that over 9,200 potentially responsive files existed. The Counselor noted
that the office complied with section 3(g) of the FOIA by offering plaintiff an opportunity to
narrow his request, but plaintiff declined to do so. Accordingly, the Counselor determined no
further inquiry was necessary.
¶ 10 On March 15, 2012, plaintiff filed a FOIA complaint in the circuit court of
Sangamon County, alleging the Attorney General was "improperly withholding records from the
Plaintiff in violation of t[he] FOIA." Plaintiff again pointed out section 3(d) of the FOIA (5
ILCS 140/3(d) (West 2012)) required public bodies to respond to FOIA requests within five
business days.
¶ 11 In May 2012, the Attorney General filed a motion for summary judgment pursuant
to section 2-1005 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-1005 (West 2012)),
asserting the office had (1) complied with FOIA and (2) responded to plaintiff's request within
the statutory time frame. In the alternative, the Attorney General argued plaintiff's complaint
should be dismissed because plaintiff failed to comply with section 2-606 of the Civil Code (735
ILCS 5/2-606 (West 2012)) when plaintiff failed to attach the FOIA-related correspondence to
his complaint.
¶ 12 Later that month, plaintiff filed a response, asserting summary judgment was
inappropriate because the Attorney General's office had not proved it properly conducted its
search and that the production of records would be unduly burdensome. Plaintiff further
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contended (1) he had no obligation to attempt to narrow his request under section 3(g) of the
FOIA prior to seeking judicial review; and (2) the Attorney General's response was not timely.
Plaintiff also filed a motion for leave to file an amended complaint, attaching thereto the FOIA-
related correspondence.
¶ 13 Following an August 2012 telephone hearing, the circuit court allowed plaintiff
leave to file his amended complaint. Thereafter, the court granted the Attorney General's motion
for summary judgment "[f]or the reasons set forth in the [Attorney General's] office's Motion for
Summary Judgment," dismissing plaintiff's complaint.
¶ 14 This appeal followed.
¶ 15 II. ANALYSIS
¶ 16 On appeal, plaintiff argues the circuit court erred by granting summary judgment
because (1) the Attorney General's office did not prove its search for records was adequate, (2)
FOIA did not obligate plaintiff to narrow the scope of his search, and (3) the Attorney General's
office failed to show the production of plaintiff's requested records would unduly burden its
operations.
¶ 17 A. The Relevant Statutory Provisions
¶ 18 Before addressing plaintiff's claims, we first outline the relevant FOIA provisions.
¶ 19 Section 3(a) of the FOIA provides that a public body "shall make available to any
person for inspection or copying all public records," except records specifically exempted by
section 7 of the FOIA. 5 ILCS 140/3(a) (West 2012). However, pursuant to section 3(g), a
public body may decline to comply with a FOIA request "calling for all records falling within a
category" if "compliance with the request would be unduly burdensome for the complying public
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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) (West 2012). Before invoking the section
3(g) exemption, the public body must provide the requester "an opportunity to confer with it in
an attempt to reduce the request to manageable proportions." 5 ILCS 140/3(g) (West 2012). The
public body must also specify, in writing, the reasons producing the records would be unduly
burdensome and the extent to which compliance would burden the public body's operations. 5
ILCS 140/3(g) (West 2012).
¶ 20 Plaintiff pursued two avenues of review for individuals whose FOIA requests are
denied. Under section 9.5 of FOIA, a person may file a request for review with the Attorney
General's Public Access Counselor, who "shall determine whether further action is warranted." 5
ILCS 140/9.5(a), (c) (West 2012). The Counselor may resolve a request for review by mediation,
by issuing a binding opinion, or "by a means other than the issuance of a binding opinion." 5
ILCS 140/9.5(f) (West 2012). Conversely, section 11 of FOIA allows "[a]ny person denied
access to inspect or copy any public record by a public body" to file in the circuit court a "suit for
injunctive or declaratory relief." 5 ILCS 140/11(a) (West 2012).
¶ 21 Having outlined the FOIA provisions governing plaintiff's contentions, we now
turn to the merits of those contentions.
¶ 22 B. Whether the Circuit Court Erred by Granting Summary Judgment
¶ 23 Plaintiff argues the circuit court erroneously granted summary judgment because
(1) the Attorney General's office did not prove its search for records was adequate, (2) FOIA did
not obligate plaintiff to narrow the scope of his search, and (3) the Attorney General's office
failed to show the production of plaintiff's requested records would unduly burden its operations.
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¶ 24 Summary judgment may be granted where "the pleadings, depositions, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law." 735
ILCS 5/2-1005(c) (West 2012). We review a circuit court's entry of summary judgment de novo.
Standard Mutual Insurance Co. v. Lay, 2013 IL 114617, ¶ 15, 989 N.E.2d 591.
¶ 25 In this case, plaintiff challenges the Attorney General's claim of the unduly
burdensome exemption. "A request that is overly broad 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." National Ass'n of Criminal Defense
Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, 17, 924 N.E.2d 564, 577 (2010).
¶ 26 1. Plaintiff's Claim That the Attorney General's Search Was Inadequate
¶ 27 Plaintiff first argues the Attorney General's office did not prove the adequacy of
its search. According to plaintiff, the Attorney General's office needed to "explain the types of
files it maintains, the search terms employed, and that all files expected to contain the records
requested were searched."
¶ 28 First, we note that section 3(g) of FOIA does not contain such a requirement. 5
ILCS 140/3(g) (West 2012). Moreover, we agree with the Attorney General that plaintiff's FOIA
request was patently broad on its face, as it sought any publication or record that would or could
be used by any public body to comply with Illinois's FOIA provisions. Accordingly, the Attorney
General's response, explaining the burden that complying with plaintiff's request would cause,
was sufficient to claim a section 3(g) exemption in this case.
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¶ 29 Plaintiff cites a series of federal cases for the proposition that a public agency
must prove the adequacy of its search. First, we note that federal court decisions are persuasive
but not binding on state courts and "Illinois courts have repeatedly noted that the Illinois version
of the FOIA is different from the federal version and is, therefore, subject to a different
interpretation." Rockford Police Benevolent & Protective Ass'n, Unit No. 6 v. Morrissey, 398 Ill.
App. 3d 145, 153, 925 N.E.2d 1205, 1212 (2010). Moreover, the cases cited by plaintiff are
inapposite because they involved allegedly missing or irretrievable documents. See SafeCard
Services v. Securities and Exchange Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (the agency
claimed certain requested documents had been mistakenly destroyed or were missing); Miller v.
United States Department of State, 779 F.2d 1378, 1384 (8th Cir. 1985) (the plaintiff argued the
agency conducted an inadequate search because that search did not uncover certain documents);
Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-14 (D.C. Cir. 2003) (the plaintiff
challenged the agency's search as inadequate because the agency did not find documents
responsive to the plaintiff's request and the agency initially delayed its search). Here, the
Attorney General's office has not claimed its search failed to uncover certain documents or that
those documents no longer exist; rather, the Attorney General's office claimed its search revealed
over 9,000 documents and thus compliance with plaintiff's FOIA request would be unduly
burdensome.
¶ 30 Plaintiff also cites Bluestar Energy Services, Inc. v. Illinois Commerce Comm'n,
374 Ill. App. 3d 990, 871 N.E.2d 880 (2007), for the proposition that a defendant agency has the
burden of showing its search was adequate. Bluestar is inapposite, however, because Bluestar
involved a claimed section 7 exemption, not a section 3(g) exemption. Bluestar, 374 Ill. App. 3d
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at 991, 871 N.E.2d at 882. We do not believe an agency claiming a section 3(g) exemption is
required to show the adequacy of its search where, as here, the breadth of plaintiff's request is
evident from the face of the plaintiff's request.
¶ 31 2. Plaintiff's Claim That He Was Not Required To Narrow His Request
¶ 32 Plaintiff also argues summary judgment was inappropriate because "[n]othing
within the plain language" of section 3(g) of FOIA requires a requestor to confer with a public
body to narrow the scope of the requestor's search before seeking judicial review. We agree with
plaintiff that FOIA does not contain such a requirement; on the other hand, however, nothing in
FOIA precluded the Attorney General from continuing to assert the unduly burdensome
exemption after plaintiff refused to narrow his request.
¶ 33 3. Plaintiff's Claim That Compliance Was Not Unduly Burdensome
¶ 34 Finally, plaintiff argues the Attorney General failed to show the burden of
complying with plaintiff's FOIA request outweighed the public interest in compliance. We
disagree. First, we find unpersuasive plaintiff's assertion that the Attorney General's office
needed to provide affidavits of staff members or otherwise prove its claim that producing
plaintiff's requested documents would be unduly burdensome. Section 3(g) of FOIA requires
only that a public body specify in writing the reasons compliance would be unduly burdensome
and the extent to which compliance would burden the operations of the public body. 5 ILCS
140/3(g) (West 2012). Here, the Attorney General's office satisfied section 3(g) by explaining its
staff members would have to go through all of the 9,200 potentially responsive documents by
hand to determine whether they were responsive and to review and redact exempt information
from those records. Although plaintiff is correct that various Illinois decisions construing section
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7 of FOIA have stated a public body must supply a detailed justification for claiming a section 7
exemption in order to allow adequate adversarial testing (see, e.g., Illinois Education Ass'n v.
Illinois State Board of Education, 204 Ill. 2d 456, 464, 791 N.E.2d 522, 527 (2003)), plaintiff's
case involves a section 3(g) unduly burdensome exemption, and the Attorney General
sufficiently explained the nature of the undue burden of complying with plaintiff's request.
¶ 35 As a corollary argument, plaintiff asserts that the review of 9,200 records would
not be unduly burdensome for the Attorney General "given the substantial resources at the
disposal of the [Attorney General]." We are not persuaded. Requiring the Attorney General's
staff to review 9,200 records would impede the staff's ability to respond to other FOIA requests
and perform its other duties in a timely fashion. Likewise, we find little merit in plaintiff's claim
that the "significant interest in the means, methodology, and criteria the [Attorney General's]
Public Access Bureau utilizes when issuing advisory and binding opinions" under section 9.5 of
FOIA outweighs the burden of complying with plaintiff's FOIA request. As the Attorney General
points out, the primary source of guidance for compliance with FOIA—the statute itself— is
already readily available to the public.
¶ 36 Based on the foregoing, we conclude the circuit court properly granted the
Attorney General's motion for summary judgment.
¶ 37 III. CONCLUSION
¶ 38 For the reasons stated, we affirm the circuit court's judgment.
¶ 39 Affirmed.
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