Duty to Respond to FOIA Requests

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Dear Mr. Schweickert and Mr. McCabe:

1.) Any and all agreements, including any amendments thereto, between Kankakee County and World Fuel Services, Inc.

2.) Any and all Ordinances/Resolutions passed by Kankakee County which authorizes [sic] the execution of any agreement and/or amendment between Kankakee County , and World Fuel Services, Inc.|"!

On October 29, 2019, Mr. Schweickert e-mailed the County to iriform it that the response to his FOIA requést was overdue.”

~ On October 30, 2019, Mr. Schweickert submitted a Request for Review to the Public Access Bureau alleging that the County had failed to respond to his FOIA request.? On November 7, 2019, the Public Access Bureau forwarded a copy of the Request for Review to the County, along with a letter asking whether it had received and responded to Mr. Schweickert's FOIA request.* The November 7, 2019, letter also requested that, if the County had received the request but 'had not yet responded to Mr. Schweickert, it do so and provide this office with a copy-of its response. The County did not respond to the Public Access Bureau's November 7, 2019, correspondence.

~ On December 3, 2019, the Public Access Bureau sent a second copy of Mr. Schweickert's Request for Review to the County, and another letter asking it to respond to the FOIA request and to provide this office with a copy of its response.° The County did not — respond to the Public Access Bureau's December 3, 2019, correspondence.

| On December 12, 2019, Mr. Schweickert sent an e-mail to Mr. McCabe anid another FOIA requester and copied an Assistant Attorney General (AAG) in the Public Access Bureau on his e-mail. Specifically, Mr. Schweickert noted that earlier that day, he had received an e-mail from Mr. McCabe that was addressed to another FOIA requester. Although the e-mail from Mr. McCabe contained the subject line "FOIA response PAC 60399," which is the case number of this Request for Review, it concerned a different FOIA request. Mr. Schweickert's e- mail advised Mr. McCabe that he appeared to have been sent the e-mail in error, but pointed out that he still had not received a response from the County to his FOIA request. 6 Later on December 12, 2019, Mr. McCabe responded to Mr. Schweickert by stating that'the County was still "trying to locate the documents you requested" and apologized for "the mix up and the delay in getting your request filled."” On December 13, 2019, the AAG e-mailed Mr. McCabe and Mr. Schweickert, stating that the Public Access Bureau had not yet received a response from the County, either.2> The AAG's December 13, 2019, e-mail also included copies of the November 7, 2019, and the December 3, 2019, correspondence from this office and noted that if the Public Access Bureau did not receive a response promptly, the officé would be compelled to conclude that the County had violated FOIA.° The County did not respond to this e-mail correspondence.

| On December 19, 2019, an AAG in the Public Access Bureau spoke with Mr. McCabe, who verified that the County had received the FOIA request from Mr. Schweickert and confirmed that he had received at least one letter from this office concerning this Request for — Review.'® Mr. McCabe stated that he spoke to Mr. Schweickert after receiving the FOIA request to better understand what records Mr. Schweickert sought.'' He informed the AAG that because he and other County employees were still searching for the requested records, he could not provide a specific time frame for issuing a response to Mr. Schweickert, but anticipated that the County would respond soon.'? Mr. McCabe also informed the AAG that he had told Mr. Schweickert that the County was still searching for responsive records. !7 On December 27, 2019, Mr. Schweickert notified this office that he still had not received a response from the County." )

On December 27, 2019, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days, to February 11, 2020, pursuant to section 9.5(f) of FOIA.'° On January 7, 2020, and January 21, 2020, Mr. Schweickert confirmed that he still had not received a response to his October 21, 2019, FOIA request.!® !7 | As of the date of the issuance of this binding opinion, this office has not received effective July 12, 2019) provides that "[e]ach 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 to - respond to a request received may not treat the request as unduly . burdensome under subsection (g).

' The County did not respond t to Mr. Schweickert'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 2018), as amended by Public Act 101-081, effective July 12, 2019), or denying the request in writing. The County’ 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 Attorney General finds that:

1) On October 21, 2019, Mr. Scott Schweickert, on behalf of Schweickert Law Group, LLC, submitted a FOIA request to Kankakee County seeking copies of any agreements between Kankakee County and World Fuel Services, Inc., and any ordinances or resolutions passed by Kankakee County that authorized the execution of such agreements. Mr. Schweickert did not receive a response to his request.

2) On October 30, 2019, Mr. Schweickert submitted a Request for Review to the Public Access Counselor and the Public Access Bureau because the County had not responded 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 140/9.5(a) (West 2018)).

3) On November 7, 2019, the Public Access Bureau forwarded a copy of Mr. Schweickert's Request for Review to the County, along with a letter asking the County to advise this office whether it had received and responded to Mr. Schweickert S October 21, 2019, FOIA request. The County did not respond to this office's inquiry.

4) On December 3, 2019, this office sent the County an additional copy of the Request for Review and this office's November 7, 2019, letter, along with a letter inquiring as to the status of the County's response to this office. The County did not respond to that inquiry, either.

5) On December 19, 2019, the County's FOIA Officer, Mr. Ken McCabe, confirmed for an AAG in the Public Access Bureau that the County had received Mr. Schweickert's October 21, 2019, FOIA request as well as correspondence from this office concerning Mr. Schweickert's Request for Review. Mr. McCabe indicated that the County was searching for responsive records and would respond soon.

6) On December 27, 2019, this office extended the time within which to. issue a binding opinion by 30 business days, to February 11, 2020, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter.

7) On January 7, 2020, and January 21, 2020, Mr. Schweickert confirmed for this office that the County had not responded to his Tequest. — 8) As of the date of the issuance of this binding opinion, this office has not - received a response to its inquiries nor has this office received any information indicating that the County has responded to Mr. Schweickert's request.

|” Therefore, it is the opinion of the Attorney General that the County has violated section 3(d) of FOIA by failing, within five business days after receiving Mr. Schweickert's October 21, 2019, FOIA request, to provide copies of the requested records, to extend the time for its response pursuant to section 3(e) of FOIA, or to deny the request in whole or in part. Accordingly, the County is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Schweickert with all records responsive to his October 21, 2019, request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2018), as amended by Public Acts 101-434, effective January 1, 2020; 101-452, effective January 1, 2020; 101-455, effective August 23, 2019).'8 If the County determines that any portion of the responsive records is exempt from disclosure under section 7, it 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 2018)). - . .

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 2018). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Scott J. Schweickert as defendants. See 5 ILCS 140/11.5 (West 2018).

| roe | a. Sincerely,”

7 | KWAME RAOUL ; ATTORNEY. GENERAL- Brent D. Stratton 7! Chief Deputy Attorney General copy of the foregoing Binding Opinion (Public Access Opinion 20-002) upon:

Mr. Scott J. Schweickert Schweickert Law Group, LLC 2101 Marquette Road Peru, Illinois 61354 [email protected] Mr. Ken McCabe Freedom of Information Officer ' Kankakee County | 3000 South Justice Way | Kankakee, Illinois 60901 ! [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