Duty to Respond to FOJA Requests

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Dear Mr. Both and Ms. Anderson:

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 2022)). For the reasons discussed below, this office concludes that the City of Harvey (City) violated section 3(d) of FOJA (5 ILCS 140/3(d) (West 2022)) by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Shahnawaz Hasan.

BACKGROUND

On August 3], 2023, Mr. Hasan submitted a FOIA request to the City seeking "[a]ny and all documents that identify amounts billed to the City of Harvey by the Law Firm Ancel Glink or Kathleen Kunkle during the period January 1, 2022, to date."! The request also sought records identifying real property the City sought to acquire through the Cook County No Cash Bid Program in 2023, as well as related "correspondence, Resolutions Requesting Participation In The Cook County No Cash Bid Program, including any Third Party Requestor Affidavits, Affidavits of Intent, Certifications regarding the No Cash Bid Request, lists or schedules of properties to be acquired and Affidavits of Occupancy."* The FOIA request was stamped as received by the Harvey City Clerk as of August 31, 2023, at 2:22 p.m.*? As contact information, the request listed the mailing address for American Kitchen Delights and an American Kitchen Delights e-mail address for Mr. Dennis Both.* On October 2, 2023, this office received, on behalf of American Kitchen Delights, a Request for Review from Mr. Dennis Both in which he alleged that the City had failed to respond to Mr. Hasan's FOIA request.? On December 8, 2023, Mr. Both clarified to this office via telephone that Mr. Hasan is the owner of American Kitchen Delights and submitted the FOIA request on behalf of the company; Mr. Both is an attorney for the company.° On October 10, 2023, the Public Access Bureau e-mailed the FOIA Officer for the City a copy of the Request for Review and a letter asking whether the City had received and responded to Mr. Hasan's FOIA request.’ The October 10, 2023, letter also requested that if the City had not yet responded, it do so and provide this office with a copy of its response.* The City did not respond to the Public Access Bureau's October 10, 2023, correspondence.

On October 27, 2023, the Public Access Bureau sent a letter via U.S. Postal Mail to the Deputy City Clerk, Ms. Cheryl Anderson, stating that this office had not received a response to its October 10, 2023, letter, attaching a copy of that letter, and requesting a response.’ This office also e-mailed a copy of that correspondence to the City Clerk's e-mail address.!° The City did not respond to the Public Access Bureau's October 27, 2023, letter.

On November 16, 2023, an Assistant Attorney General (AAG) in the Public Access Bureau called the City Clerk's telephone number but was unable to reach the City's FOIA Officer. On December 1, 2023, this office extended the time for issuing a binding opinion by 30 business days, pursuant to section 9.5(f) of FOIA."

As of the date of the issuance of this binding opinion, this office has not received confirmation or any indication from the City or Mr. Both that the City has responded to the FOIA request at issue in this matter.

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 2022). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2022)), "[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying."

Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2022)) 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).

Section 3(e) of FOIA (5 ILCS 140/3(e) (West 2022)) permits a public body to extend its response time by no more than five business days for any of seven enumerated reasons. Any additional extension requires a written agreement between the requester and the public body. 5 ILCS 140/3(e) (West 2022).

The City did not respond to Mr. Hasan's August 31, 2023, FOIA request within five business days after its receipt by either complying with the request, extending the time for its response pursuant to section 3(e) of FOIA, or denying the request in writing. The failure of the City to comply with the requisite response 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 August 31, 2023, Mr. Shahnawaz Hasan, on behalf of American Kitchen Delights, submitted a FOIA request to the City of Harvey seeking copies of records relating to billings for two specific law firms and the City's attempts to acquire real property via Cook County's No Cash Bid Program.

2) On October 2, 2023, Mr. Dennis Both, attorney for American Kitchen Delights, submitted the documents required to file a Request for Review with the Public Access Counselor alleging that the City had not responded to Mr. Hasan's FOIA request. Mr. Both'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 2022)).

3) On October 10, 2023, the Public Access Bureau forwarded a copy of the Request for Review to the City along with a letter asking whether the City had responded to Mr. Hasan's FOIA request. The City did not respond.

4) On October 27, 2023, the Public Access Bureau sent a second letter to the City's FOIA officer, via both e-mail and U.S. Postal Mail, stating that the Public Access Bureau had not received any indication that the City had responded to Mr. Hasan's FOIA request. The City did not respond.

5) On November 16, 2023, the Public Access Bureau attempted unsuccessfully to reach the City's FOIA officer via telephone.

6) On December 1, 2023, the Public Access Bureau extended the time in 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.

7) As of the date of the issuance of this binding opinion, this office has received no information indicating that the City has responded to Mr. Hasan's August 31, 2023, FOIA request.

Therefore, it is the opinion of the Attorney General that the City of Harvey has violated section 3(d) of FOIA by failing, within the statutory time for responding to Mr. Hasan's August 31, 2023, FOIA request, to provide copies of the requested records or to deny the request in writing in whole or in part. Accordingly, the City is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Hasan with copies of all records responsive to the August 31, 2023, request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2022), as amended by Public Acts 103-154, effective June 30, 2023; 103-462, effective August 4, 2023; 103-446, effective August 4, 2023).!? If the City 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 2022)).

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 2022). 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. Dennis Both as defendants. See 5 ILCS 140/11.5 (West 2022).

Sincerely,

KWAME RAOUL ATTORNEY GENERAL By: pee Brent D. Stratton Chief Deputy Attorney General served a copy of the foregoing Binding Opinion (Public Access Opinion 23-017) upon:

Mr. Dennis Both American Kitchen Delights 15320 Cooper Avenue Harvey, Illinois 60426 [email protected] Ms. Cheryl Anderson Deputy City Clerk City of Harvey 15320 Broadway Avenue Harvey, Illinois 60426 [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 Chicago, Illinois on December 27, 2023.

Steve Silverman Bureau Chief