Improper Denial of a Request as Unduly Burdensome

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Dear Mr. Devlin and Ms. Morgan:

This binding opinion is 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 2020)). For the reasons discussed below, this office concludes that the City of Chicago (City) Department of Planning and Development (Department) violated the requirements of FOIA by improperly denying Mr. Hugh Devlin's February 16, 2023, FOIA request as unduly burdensome.

BACKGROUND

On February 16, 2023, Mr. Devlin submitted a FOIA request to the Department seeking the following records:

All emails, sent or received by the Department of Planning and Development ("the Department"), or circulated internally to the Department, in calendar year 2021, emails all or in part regarding the City-owned property at 6435-6445 N California Ave, commonly known as the former Northtown branch of the Chicago Public Library, and all emails containing any of the following keywords:

"6435-6445 N California" or "6435 N California" or "6445 N California" or "6435-6445 California’ or "6435 California" or "6445 California" or "Northtown library" or "Northtown branch." ]

Within an hour, the Department sent Mr. Devlin notification through its public records center stating:

Below are the things that we need in order to perform email searches:

1) the name and/or email address of the City of Chicago Custodian/Employee; 2) the timeframe for the search; 3) any specific search terms, correspondence, or criteria for the search.

Please, remember that use words such [as] "ALL" may lead to your request being unduly burdensome.!!

Later that afternoon, Mr. Devlin informed the Department:

1. Please see the attach[ed] determination letter "Re: FOIA Request for Review-2022 PAC 71720; City FOIA No.: 0021799"

sent to you on July 20, 2022 from the Illinois Attorney General Public Access Bureau, in which you were informed: "A requester generally is not required to identify specific employees in order to reasonably describe e-mails concerning a particular subject matter."

2. Time frame is specified in the request, please see.

3. Search terms are included in the request, please see. Please reply with all responsive records.!*!

Shortly thereafter, the Department denied Mr. Devlin's FOIA request as unduly burdensome pursuant to section 3(g) of FOIA (5 ILCS 140/3(g) (West 2020)), informing him:

In order to effectively run an email search, Department of Planning and Development needs the following search parameters: (1) the e-mail address(es) or employee name(s) of the account(s) you wish searched; (2) key words you wish to search for; and (3) the time frame to be searched. Without search parameters, Department of Planning and Development would need to review all department emails to determine whether any are responsive to your request. Such an undertaking would pose an immense burden on the Department of Planning and Development."

The Department also informed Mr. Devlin that if he agreed to narrow his request, he "must submit a revised written request to my attention. Department of Planning and Development will take no further action or send you any further correspondence unless and until your request is narrowed in writing."° On February 16, 2023, Mr. Devlin submitted a Request for Review with the Public Access Counselor (PAC), in which he contested the Department's denial of his FOIA request as unduly burdensome.® On February 17, 2023, Mr. Devlin furnished the documents required to complete his submission.’

On March 3, 2023, the Public Access Bureau sent a copy of the Request for Review to the Department along with a letter asking it to provide a detailed written response explaining the factual and legal bases for the assertion that compliance with Mr. Devlin's request would be unduly burdensome, and describing any Department efforts to search for responsive e- mails.’ The Department did not respond to the Public Access Bureau's March 3, 2023, correspondence. On March 20, 2023, an Assistant Attorney General (AAG) in the Public Access Bureau telephoned the Department's FOIA Officer, Ms. LaShonda Morgan. During the telephone conversation, Ms. Morgan confirmed that the Department received the Public Access Bureau's March 3, 2023, letter, and stated that the Department would respond by March 27, 2023.° The Department, however, did not respond. On March 29, 2023, the Public Access Bureau sent a second letter to the Department stating that this office had not received a response to its March 3, 2023, letter, attaching a copy of that letter, and requesting a response to that letter.!° The Department did not respond to the Public Access Bureau's March 29, 2023, letter.

On April 18, 2023, this office extended the time within which to issue a binding opinion by 30 business days, to May 31, 2023, pursuant to section 9.5(f) of FOIA (5 ILCS 140/9.5(f£) (West 2020))."!

As of the date of the issuance of this binding opinion, this office has not received a response from the Department.

7E-mail from Hugh Devlin to Public Access [Bureau, Office of the Attorney General] (February

ANALYSIS

"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOJA]." 5 ILCS 140/1 (West 2020). "All records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt." 5 ILCS 140/1.2 (West 2020). FOIA is liberally construed in favor of disclosure, while the exemptions are narrowly construed. Southern Illinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 416 (2006); Rushton v. Dep't of Corrections, 2019 IL 124552, 415, 160 N.E.3d 929, 934 (2019).

Section 9.5(c) of FOIA As an initial matter, section 9.5(c) of FOIA (5 ILCS 140/9.5(c) (West 2020)) provides that that each public body "shall provide copies of records requested and shall otherwise fully cooperate with the Public Access Counselor." The Department failed to cooperate with the PAC by providing the basic information this office requested to determine if the Department met its burden of proving that Mr. Devlin's FOIA request was unduly burdensome. Accordingly, the Department's lack of cooperation hampered this office's review of this matter. Nevertheless, this office will address the applicability of section 3(g) of FOIA because Mr. Devlin still is seeking the records and because the Department's rationale for denying the request as unduly burdensome raises a significant legal issue that requires clarification.

Section 3(g) of FOIA Section 3(g) of FOIA provides, in pertinent part:

Requests calling for all records falling within a category shall be complied with unless compliance with the request would be unduly burdensome for the complying public body and there is no way to narrow the request and the burden on the public body outweighs the public interest in the information. Before invoking this exemption, the public body shall extend to the person making the request an opportunity to confer with it in an attempt to reduce the request to manageable proportions. If any public body responds to a categorical request by stating that compliance would unduly burden its operation and the conditions described above are met, it shall do so in writing, specifying the reasons why it would be unduly burdensome and the extent to which compliance will so burden the operations of the public body. Such a response shall be treated as a denial of the request for information. (Emphasis added.)

"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 [requester's] purpose constitutes an undue burden." National Ass'n of Criminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, 17 (1st Dist. 2010). "[A] public body asserting a section 3(g) exemption must make a clear and convincing showing that the burden of compliance outweighs public interest in the disclosure of the requested records." Sargent Shriver National Center on Poverty Law, Inc. v. Board of Education, 2018 IL App (Ist) 171846, 938, 122 N.E.3d 729, 738 (2018). "What constitutes a clear and convincing showing of undue burden will likely vary from case to case, depending on the broadness of the request, the level of detail provided in the public body's response, and the nature of the parties' exchange." Sargent Shriver National Center on Poverty Law, Inc, 2018 IL App (1st) 171846, 938, 122 N.E.3d at 738.

Mr. Devlin's original request identified (1) the subject matter of the records he sought: City-owned property at 6435-6445 North California Avenue, commonly known as the former Northtown branch of the Chicago Public Library; (2) eight keywords to be used by the Department to conduct its search, and (3) a one-year time frame for the search: the calendar year 2021. After the Department notified him that in order for it to conduct a search, he needed to provide keywords to search for the e-mails, the time frame to be searched, and the e-mail addresses or employee names of the accounts that he wanted searched, Mr. Devlin responded that his FOIA request set forth the keywords and time frame, and asserted that he need not identify names to use in the search. The Department then denied his request as unduly burdensome, explicitly asking him to narrow the request by providing a time frame, which he had already identified as the calendar year 2021, by providing keywords to be searched, which were already specified in the FOIA request, and by providing the e-mail addresses or employee names associated with the accounts that he wanted searched. Mr. Devlin was unwilling to submit names or e-mail addresses.

FOIA requires that a request "reasonably identify a public record[.]" Chicago Tribune Co. v. Department of Financial and Professional Regulation, 2014 IL App (4th) 130427, 933, 8 N. E. 3d 11, 19 (2014). A request that identifies the documents sought based upon a description of their contents constitutes a proper FOIA request. Bocock v. Will County Sheriff, 2018 IL App (3d) 170330, 950, 100 N.E.3d 649, 658 (2018) (request seeking documents showing which detainees had purchased stamps in a given time period constituted a proper FOIA request).

In Gun Owners of America, Inc., v. F.B.I., 594 F. Supp. 3d 37, 40-41 (D.D.C. 2022), a federal district court considered whether a requester reasonably described records by requesting all communications over a period of almost six years between the Virginia Department of State Police and the F.B.I. involving certain voluntary background checks or special permits for voluntary background checks or firearm related permits. The F.B.I. asserted that the request did "not contain enough descriptive information to permit a search" of its records partly because it did not identify members of the Virginia Department of State Police that communicated with the F.B.I. Gun Owners of America, Inc., 594 F. Supp. 3d at 46. The court rejected that argument:

[D]etermining whether the communication was with the Virginia State Police is a straightforward inquiry with clear and obvious criteria. A FOIA request is not deficient just because it does not provide the name or email address of every individual whose communications are sought—the request's description need only be "reasonable" to implicate the agency's obligations under the statute. Gun Owners of America, Inc., 594 F. Supp. 3d at 46.

The court added that "an agency may not refuse even to begin searching for documents just because the requester did not spell out its requested search parameters." Gun Owners of America, Inc., 594 F. Supp. 3d at 49."

Requests for records, particularly e-mails about particular matters, frequently require public bodies to make judgment calls about the appropriate personnel to consult and the manner in which to conduct its search. When a request for e-mails is not expressly limited to specific employees or e-mail accounts, FOIA does not require the public body to search every account; instead, the public body may conduct an adequate search by identifying the employees whose e-mail accounts are reasonably likely to contain responsive records, and taking measures reasonably calculated to locate such records. See Better Gov't Ass'n v. City of Chicago, 2020 IL App (lst) 190038, 431, 169 N.E.3d 1066, 1076 (2020) (whether a particular search is reasonable depends on the specific facts and is judged on a case-by-case basis; the crucial issue is whether the search was reasonably calculated to locate the requested documents); Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998) ("FOIA demands only a reasonable search tailored to the nature of a particular request. When a request does not specify the locations in which an agency should search, the agency has discretion to confine its inquiry to a central filing system if additional searches are unlikely to produce any marginal return[.]"). Further, public employees and officials who are knowledgeable about the operations of their public body are in a better position than members of the public to know which employees and officials are likely to have sent or received e-mails about particular subjects.

In this office's March 3, 2023, letter to the Department, the Public Access Bureau asked the Department to explain whether it took any steps to ascertain which employee e-mail accounts were reasonably likely to contain responsive records. The Department did not respond to this office. The Department's response to Mr. Devlin implies that no search was conducted, as the Department indicated that it needed Mr. Devlin needed to provide "the e-mail address(es) or employee name(s) of the account(s)"!? in order for the Department to perform a search.'* In addition to a public body generally being in a better position than members of the public to identify which employees would likely have responsive e-mails, identifying relevant employees appears especially feasible in this matter because the Department touted the proposed sale of the former library branch in a June 22, 2022, press release. The Department stated:

Owned by the City of Chicago, the 11,400-square foot building at 6435 N. California Ave. would be sold for $962,786 to the nonprofit Forging Opportunities for Refugees in America (FORA).

FORA, a privately funded organization that provides educational services to refugees in Chicago, would relocate from nearby offices and expand its literacy programs within the former library.

FORA's offer to purchase the building was the highest of three bids received by the City this spring. A 2021 appraisal placed the property's "as is" value at $630,000."

Accordingly, if the Department determined that it needed particular names of employees to conduct its search, it should have ascertained which Department employees worked on the project regarding the former Northtown branch of the Chicago Public Library and either asked those employees to search their e-mails for the specified keyword terms for the year 2021 or arranged for the City's information technology department to perform such a search.

Instead, the Department unreasonably insisted that Mr. Devlin provide the names or e-mail addresses of employees who may have sent or received responsive e-mails. The Department failed to acknowledge that Mr. Devlin provided a time frame for the search as well as keywords for the Department to conduct a search. The absence of employee names or e-mail addresses from the request does not render the request unduly burdensome on its face. The Department's denial of the request failed to specify "the reasons why it would be unduly burdensome and the extent to which compliance will so burden the operations of the public body." 5 ILCS 140/3(g) (West 2020). Nor has the Department demonstrated that the burden of complying with the request outweighs the public interest in disclosure of the requested records.!° Accordingly, this office concludes that the Department failed to meet its burden of proving that Mr. Devlin's FOIA request was unduly burdensome pursuant to section 3(g) 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 February 16, 2023, Mr. Hugh Devlin submitted a FOIA request to the City of Chicago Department of Planning and Development seeking copies of e-mails regarding City- owned property located at 6435-6445 North California Avenue, commonly known as the former Northtown branch of the Chicago Public Library, for the calendar year 2021. Mr. Devlin provided the Department eight keywords to use in conducting its search.

2) Within an hour, the Department sent Mr. Devlin notification that to conduct a search, it needed a timeframe for the search, search terms for the search, and the name or e-mail address of the employee who possessed the records.

3) Later that afternoon, Mr. Devlin informed the Department that his request provided the timeframe and keywords, and that he was not required to provide the names or e- mail addresses of employees who possessed responsive records.

4) Shortly thereafter, on February 16, 2023, the Department denied Mr. Devlin's request as unduly burdensome under section 3(g) of FOIA. In its denial letter, the Department informed Mr. Devlin that the request was unduly burdensome because it could not conduct an effective search without a timeframe for the search, search terms, and names of employees or e- mail addresses of the accounts that Mr. Devlin wanted the Department to search.

5) On February 16, 2023, and February 17, 2023, Mr. Devlin submitted the documents required to file a Request for Review with the Public Access Counselor contesting the Department's denial of his request as unduly burdensome. Mr. Devlin's 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 2020)).

6) On March 3, 2023, the Public Access Bureau sent a copy of the Request for Review to the Department along with a letter asking it to provide a written response explaining the factual and legal bases for the assertion that compliance with Mr. Devlin's request would be unduly burdensome. The letter also asked the Department to describe its efforts to search for the e-mails, including any steps taken to ascertain which employees are reasonably likely to maintain responsive e-mail records, and to explain why the burden of compliance outweighs the public interest in disclosure of this information. The Department did not respond.

7) On March 20, 2023, the Department's FOIA officer informed an Assistant Attorney General in the Public Access Bureau that the Department received the Public Access Bureau's March 3, 2023, letter, and stated that the Department would respond to the letter by March 27, 2023. The Department, however, did not respond. On March 29, 2023, the Public Access Bureau sent a letter to the Department stating that this office had not received a response to its March 3, 2023, letter, attaching a copy of that letter, and requesting a response to that letter. The Department did not respond to the Public Access Bureau's March 29, 2023, letter.

8) On April 18, 2023, this office extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter.

9) Section 9.5(c) of FOIA (5 ILCS 140/9.5(c) (West 2020)) provides that each public body "shall provide copies of records requested and shall otherwise fully cooperate with the Public Access Counselor." The Department's failure to cooperate with the Public Access Counselor hampered the review of this matter.

10) Section 3(g) of FOIA provides that "[r]equests calling for all records falling within a category shall be complied with unless compliance with the request would be unduly burdensome for the complying public body and there is no way to narrow the request and the burden on the public body outweighs the public interest in the information." Section 3(g) of FOIA also provides that if a public body responds to a request by stating that compliance would unduly burden its operations, "it shall do so in writing, specifying the reasons why it would be unduly burdensome and the extent to which compliance will so burden the operations of the public body."

11) Mr. Devlin's FOIA request identified the type of records he wanted searched, e-mails, and the subject of the request, City-owned property at 6435-6445 North California Ave, commonly known as the former Northtown branch of the Chicago Public Library. The request also specified eight keywords to be used by the Department to conduct its search, and limited the time frame for the search to calendar year 2021.

12) The Department's denial of the request inaccurately stated that Mr. Devlin did not provide a time frame and keywords for the search.

13) The Department also denied the request as unduly burdensome because Mr. Devlin did not provide employee names or e-mail addresses that he wanted searched. Because a public body rather than a member of the public is typically in a better position to know the names and e-mail addresses of public employees who would maintain records pertaining to specific topics, a requester is not required to identify specific employees or employee e-mail addresses in order to reasonably describe e-mails concerning a particular subject matter. The failure to provide such information does not render a FOIA request unduly burdensome.

14) The Department failed to fulfill its obligation to specify in writing the reasons why complying with Mr. Devlin's request would be unduly burdensome and the extent to which compliance would burden its operations.

15) The Department did not demonstrate that complying with Mr. Devlin's FOIA request would be unduly burdensome.

Therefore, it is the opinion of the Attorney General that the Department's denial of Mr. Devlin's request violated the requirements of FOIA. Accordingly, the Department is hereby directed to take immediate and appropriate action to comply with this opinion by either conducting a search of its e-mail system for the calendar year 2021 for the eight keywords Mr. Devlin provided, or by ascertaining which employees are likely to have sent or received e-mails regarding the specified City property and arranging for searches of their e-mails for the calendar year 2021 which contain the eight keywords Mr. Devlin provided. The Department is directed to provide Mr. Devlin with copies of the responsive e-mails, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2021 Supp.), as amended by Public Acts 102-752, effective January 1, 2023; 102-753, effective January 1, 2023; 102-776, effective January 1, 2023; 102-791, effective May 13, 2022; 102-1055, effective June 10, 2022). Ifthe Department 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 2020)).

This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in 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. Hugh Devlin as defendants. See 5 ILCS 120/7.5 (West 2020).

Very truly yours,

KWAME RAOUL ATTORNEY GENERAL

{2S Brent D. Stratton Chief Deputy Attorney General served a copy of the foregoing Binding Opinion (Public Access Opinion 23-007) upon:

Mr. Hugh Devlin 2322 West Estes Avenue Chicago, Illinois 60645 [email protected] Ms. LaShonda Morgan FOIA Officer City of Chicago Department of Planning and Development 121 North LaSalle Street, Room 1000 Chicago, Illinois 60602 DPDFOIA @cityofchicago.org 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 Chicago, Illinois on May 26, 2023.

Steve Silverman Bureau Chief Steve Silverman Bureau Chief Public Access Bureau Office of the Attorney General 100 West Randolph Street Chicago, Illinois 60601 (312) 814-6756