Duty to Respond to FOIA Requests

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Dear Mr. Martin and Ms. Hoosman:

This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2016)). For the reasons discussed below, this office concludes that the City of East St. Louis (City) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2016)) by failing te comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Kaley J, Martin.

BACKGROUND

On October 26, 2017, Mr. Martin submitted a FOIA request to the City seeking copies of "all records responsive to Courtney Logan's meeting schedule for the months of March 2016, April 2016, May 2016 and June 2016[,]" specifying that the records should include "correspondence and communication in regards to dates, time, place and who the meetings were with[.]"' Mr. Martin sent the request via e-mail to "[email protected]," which, according to the City's webpage,’ is the e-mail address of City Manager Daffney Moore, and to Mike Wagner, who, the City previously explained to this office in a separate, unrelated matter,? has served as the City Attorney.* Mr. Martin also copied, among others, City Clerk Dorene Hoosman on the request.

On November 6, 2017, Mr. Martin e-mailed a Request for Review to the Public Access Bureau alleging that the City had failed to respond to his FOIA request.> On November 8, 2017, the Public Access Bureau forwarded a copy of the Request for Review to the City, together with a letter asking it to advise this office whether it had received and responded to Mr. Martin's FOIA request. If it had not yet responded to Mr. Martin, this office requested that the City do so and provide this office with a copy of the response.° The City did not respond to the Public Access Bureau's November 8, 2017, correspondence.

. On November 21, 2017, Mr. Martin sent an e-mail to the Public Access Bureau stating that the City had not responded to his request.’ On November 22, 2017, an Assistant Attorney General (AAG) in the Public Access Bureau sent a letter to Clerk Hoosman, which inquired as to the status of the City's response.® Copies of the Request for Review and this office's November 8, 2017, letter were attached to the correspondence. The City did not respond to this letter.

On December 8, 2017, the AAG left a voicemail for Clerk Hoosman to check the status of the City’s response. Later that same day, Clerk Hoosman returned the call and explained that she forwards all FOIA requests from Mr. Martin to the City Attorney and that the City had provided Mr. Martin with the records he requested in response to a previous request. The AAG stated that the City was required to respond to this FOIA request, whether by providing responsive records or denying the request as an unduly burdensome repeated request under section 3(g) of FOIA (5 ILCS 140/3(g) (West 2016)). Clerk Hoosman stated that she would forward the request to the new City Attorney and that the City would respond to Mr. Martin by Monday, December 11, 2017."

On January 2, 2018, the AAG left a voicemail with Clerk Hoosman asking about the status of the City's response. Clerk Hoosman did not respond.

On January 3, 2018, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days, to February 21, 2018, pursuant to section 9.5(f) of FOIA.'© On January 10, 2018, the AAG contacted Clerk Hoosman and left a message with one of her office staff. In a return telephone call, Deputy City Clerk Christopher Powell explained that Clerk Hoosman would forward the matter to the new City Attomey.'' As of the issuance of this binding opinion, this office has not received a written response from the City or confirmation from Mr. Martin that he has received a response to his October 26, 2017, FOIA request.!

ANALYSIS

"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA]." 5 ILCS 140/1 (West 2016). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2016)) provides that "[eJach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act." Section 3(d) of FOIA further.

provides:

Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of-the requested public records may not impose a fee for such copies. A public body that fails te respond to a request received may not treat the request as unduly burdensome under subsection (g).

The City did not respond to Mr. Martin's FOIA request within five business days after its receipt by either complying with his request, extending the time for its response pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West 2016)), or denying the request in writing. The City's failure to comply with the requisite procedures violated section 3(d) of FOIA.

FINDINGS AND CONCLUSIONS

After full examination and giving due. consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attomey, General finds that:

py On October 26, 2017, Mr. Kaley Martin submitted a FOIA request to the City of East St. Louis via e-mail seeking copies of records concerning Courtney Logan's meeting schedule for the months of March 2016, April 2016, May 2016, and June 2016. Mr. Martin did not receive a response to his request, 2) On November 6, 2017, Mr. Martin submitted a Request for Review and asked - the Public Access Counselor and the Public Access Bureau to review the City's failure to respond to his FOIA request. The Request for Review was timely filed and otherwise complies with the requirements of section 9,.5(a} of FOIA (5 ILCS 140/9,S(a) (West 2016)).

3) On Noveniber 8, 2017; the Public ‘Access Bureau forwarded a copy of Mr. Martin's Request for Review to the City, and asked the Cify to advise this office whether it had responded to Mr. Martin's October 26, 2017, FOIA request. The City did not respond to » this office’ s inquiry. .

4) On November ”, 2017, the Public Access Bureau sent a copy of the Request for Review and a letter inquiring as to the status of the City's response. The City did not respond.

5) Ina December 8, 2017, telephone conversation with an AAG in the Public Access Bureau, Clerk Hoosman explained that she forwards all FOIA requests from Mr. Martin to the City Attorney and stated that the City had provided Mr. Martin with the records in response to a previous FOIA request. However, Clerk Hoosman stated that she would forward the request to the new City Attorney and that the City would respond to Mr. Martin by Monday, December 11, 2017.

6) On January 3, 2018, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5(9 of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter.

7) On January 16, 2018, Mr. Martin confirmed to this office by telephone that the City had not responded to his request. .

8) As of the issuance of this binding opinion, this office has not received confirmation that the City has responded to Mr. Martin's request.

Therefore, it is the opinion of the Attorney General that the City has violated section 3(d) of FOIA by failing to respond to Mr. Martin's request for public records as required by the Act. Accordingly, the City is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Martin with all records responsive to his October 26, 2017, request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2016), as amended by Public Acts 100-026, effective August 4, 2017; 100-201, effective August 18, 2017).!> Ifthe City determines that any portion of the responsive records i is exempt from disclosure under section 7, the City is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2016)).

This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law, 735 ILCS 5/3-101 et seq. (West 2016). An aggrieved patty may obtain judicial review of the decision by filing a Because the City did not comply with the statutory requirements for zesponding to Mr. Martin's FOIA request, the City is precluded from m treating the request as unduly burdensome or imposing copying fees for complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Hlinois and Mr. r. Kaley Martin as defendants. See 5 ILCS 140/11. 5. (West 2016). we . Sincerely, ;

‘LISAMADIGAN

ATTORNEY GENERAL

Michael J. Luke Counsel to the Attorney General cc: Mr: C.J. Baricevic Chatham & Baricevic copy of the foregoing Binding Opinion (Public Access Opinion 18-003) upon:

Mr. Kaley J. Martin. Cyber-Path Integrated IT Solutions 28 South 87th, Suite 001 Belleville, Illinois 62223 kaleym@cyber-path net The Honorable Dorene Hoosman City Clerk/FOIA Officer City of East St. Louis 301 River Park Drive East St. Louis, [linois 62201 [email protected] Mr. C.J. Baricevic Chatham & Baricevic 107 West Main Street, Suite 1 Belleville, [limois 62220 ¢[email protected] by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on February 21, 2018.

ud £ Watt SARAH L. PRATT ——— Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General $00 South Second Street Springfield, Illinois 62701 (217) 557-0548