Improper Basis for Assessing Fees for Copies of Records Maintained in an Electronic Format

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Dear Mr. Golden and Ms. Sanchez:

This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2024)). For the reasons discussed below, this office concludes that the City of Markham (City) assessed an improper fee in response to Mr. Joshua Golden's September 8, 2025, FOIA request.

On that date, Mr. Golden submitted a FOIA request to the City seeking a copy of the call for service or police report that he filed earlier that day; he specified that he wished to receive the record via e-mail.' On September 16, 2025, the City denied the request, stating that On September 26, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the City, accompanied by a letter requesting a detailed written explanation of the legal and factual basis for the fee referenced by the City, as well as a detailed explanation for any FOIA exemptions that the City asserted to be applicable to the requested record.* On October 7, 2025, a City employee stated in a telephone conversation with a Supervising Attorney in the Public Access Bureau that the City was searching for the City ordinance upon which it based the fee and was still preparing a response. On October 14, 2025, having not received the City's response, this office sent a second copy of the Request for Review to the City, again requesting a written explanation of its response to Mr. Golden's FOIA request.> On October 17, 2025, the City furnished its response, which did not assert that any exemptions in section 7 of FOIA (5 ILCS 140/7 (West 2024)) permitted the City to deny the request. Instead, the City directed this office to fees listed on the City's website.° On that same date, this office forwarded a copy of the City's answer to Mr. Golden and notified him of his opportunity to reply in writing.’ Mr. Golden replied on that same date, asserting that FOIA did not permit the City to charge him a fee for the record.°

ANALYSIS

Section 3(b) of FOIA (5 ILCS 140/3(b) (West 2024)) provides: "Subject to the fee provisions of Section 6 of this Act, each public body shall promptly provide, to any person addresses fees for records maintained in electronic format:

When a person requests a copy of a record maintained in an electronic format, the public body shall furnish it in the electronic format specified by the requester, if feasible. If it is not feasible to furnish the public records in the specified electronic format, then the public body shall furnish it in the format in which it is maintained by the public body, or in paper format at the option of the requester. A public body may charge the requester for the actual cost of purchasing the recording medium, whether disc, diskette, tape, or other medium. * * * Except to the extent that the General Assembly expressly provides, statutory fees applicable to copies of public records when furnished in a paper format shall not be applicable to those records when furnished in an electronic format. (Emphasis added.)

In Sage Information Services v. Humm, 2012 IL App (Sth) 110580, § 18, the Illinois Appellate Court observed that section 6(a) of FOIA "does not allow a fee in excess of the cost of the electronic medium for the reproduction of electronic records unless another statute expressly provides that the fees for producing paper records also apply to electronic copies."

In its response to this office, the City stated that the fees for reports such as the requested record could be found on the City website and included a screenshot showing a portion of the Police Department's section of the "FAQs" page of the website.” That portion states: "Incident Reports are $10 for non-residents and $5 for Markham Residents. All accident reports are $5."!° The City did not, however, cite any provision of FOIA or any other law that establishes fees for incident reports. The City sent its response to this office via e-mail and attached an electronic copy of the record responsive to Mr. Golden's FOIA request in Portable Document Format.'' Because it is apparent that the City could fulfill Mr. Golden's request in the manner he requested, via e-mail, without the need for a recording medium, the City may assess a °E-mail from [FOIA Officer, City of Markham], to [Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General] (October 17, 2025).

The City has not identified a statute that authorizes it to charge a $5 fee for incident reports requested by residents and a $10 fee for incident reports requested by non- residents. Even if the City has adopted a municipal ordinance establishing those fees, a municipal ordinance is not a statute. Naperville v. Lerch, 198 Ill. App. 3d 578, 583-84 (1990) (distinguishing a municipal ordinance from a statute and holding that a trial court improperly awarded attorneys' fees pursuant to a municipal ordinance when "the absence of a statute or an agreement of the parties precludes the recovery of attorney fees|.|"). Because the General Assembly has not expressly authorized a statutory fee in excess of the cost of the recording medium for electronic copies of incident reports and because the City does not need a recording medium to furnish the incident report at issue to Mr. Golden via e-mail, as he requested, the City is precluded from assessing Mr. Golden a fee for the requested report. Accordingly, the City violated section 6(a) of FOIA.4

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 September 8, 2025, Mr. Joshua Golden submitted a FOIA request to the City of Markham seeking a copy of the call for service or police report that he filed earlier that day, specifying that he wished to receive the record via e-mail.

2) On September 16, 2025, the City denied the request and stated that Mr. Golden should contact the Markham Police Records Department to purchase the report at a cost of $5 for residents and $10 for non-residents.

3) On September 17, 2025, this office recetved Mr. Golden's complete Request for Review contesting the City's response.

4) On September 26, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the City, accompanied by a letter requesting a detailed written explanation of the City's response to Mr. Golden's FOIA request, including a detailed legal and factual basis 125 ILCS 140/6(b) (West 2024).

135 ILCS 140/6(a) (West 2024).

5) On October 17, 2025, the City furnished its written response via e-mail, along with a copy of the requested report in Portable Document Format.

6) On that same date, the Public Access Bureau forwarded a copy of the City's written answer to Mr. Golden and notified him of his right to reply.

7) On that same date, Mr. Golden replied.

8) Section 6(b) of FOIA provides: "Except when a fee is otherwise fixed by statute, each public body may charge fees reasonably calculated to re1mburse its actual cost for reproducing and certifying public records and for the use, by any person, of the equipment of the public body to copy records." Section 6(a) of FOIA, which governs fees for copies of electronic records, provides that a public body may only charge a requester "for the actual cost of purchasing the recording medium, whether disc, diskette, tape, or other medium[,]" unless "the General Assembly expressly provides[]" otherwise.

9) The City maintains the requested record in electronic format and can provide it to Mr. Golden via e-mail in Portable Document Format, with no cost for a recording medium.

10) The General Assembly has not established any other fees for the requested record.

Therefore, it is the opinion of the Attorney General that the City of Markham assessed an improper fee in response to Mr. Joshua Golden's September 8, 2025, Freedom of Information Act request. Accordingly, the City is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Golden with a copy of the withheld record without the assessment of a fee.

et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a 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 Illinois and Mr. Joshua Golden as defendants. See 5 ILCS 140/11.5 (West 2024).

Very truly yours,

KWAME RAOUL ATTORNEY GENERAL

By: py Veo R. Douglas Rees Chief Deputy Attorney General that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-013)

upon:

Mr. Joshua Golden 3114 West 163rd Street Markham, Illinois 60428 [email protected] Ms. Anita Sanchez Office Associate for the Mayor's Office City of Markham 16313 South Kedzie Avenue Markham, Illinois 60428 [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, Ilinois on November 14, 2025.

Pol port st— Leah Bartelt Public Access Counselor LEAH BARTELT Public Access Counselor Public Access Bureau Office of the Attorney General 115 South LaSalle Street, 30th Floor Chicago, Illinois 60603 (312) 814-6437