FOIADetermination Letter (non-binding)Violation foundFees & Burdensome Requests

Illinois State Police improperly charged $20 DVD fee under FOIA

The requester was charged a fee for a DVD copy of in-car traffic stop video footage.

Date issued: February 21, 2018
Request number(s): 31244
Public body: Illinois State Police
Statute(s): 5 ILCS 140/6
Exemption(s) discussed: 7(1)(b) — Private information 7(1)(c) — Personal privacy 7(1)(d)(vi) — Would endanger the life or safety of law enforcement or others
Outcome: Improperly assessed fees

Plain-language summary

A citizen requested video records from the Illinois State Police and was charged $20 for a DVD copy. The Attorney General's office ruled that the police department improperly assessed the fee because it failed to respond to the request within the required time limits under FOIA. Alternatively, even if the response had been timely, the fee was set by an administrative rule, not by a statute, and therefore could not be charged under FOIA. The PAC requested that the police department reimburse the citizen for the $20 fee.

Legal question

Whether a public body may charge a fee for records that is set by administrative rule rather than by statute, in light of the fee provisions of FOIA.

Holding

The Illinois State Police improperly assessed a $20 fee for a DVD copy of requested records because it failed to respond to the FOIA request within the statutory time limits, and alternatively because the fee was set by administrative rule, not by statute, and therefore did not supersede FOIA's fee provisions.

Summary

The requester sought records from the Illinois State Police, including in-car video footage, and the PAC determined that the agency improperly charged a $20 fee for the DVD copy.

feescopying costsadministrative rulesreimbursement

Reading view (1,413 words)

This reading view follows the source PDF's positioned text blocks. Page headers, repeated office furniture, and lower-margin notes are kept out of the narrative; source notes are available below. Reconstruction is automatic and imperfect — the PDF is the authoritative version, and it's linked on this page.

Dear and Ms. Davis:

for release. Please remit a check in the amount of $20. 00 for the DVD, made payable to the Illinois State Police[.]" 3 objected to the fee but paid ISP the $ 20. 00 and received the DVD. In his Request for Review, disputes the $ 20. 00 fee.

On October 7, 2014, this office forwarded a copy of the Request for Review to ISP and asked it to explain its receipt and handling of FOIA request in light of section 3( d) of FOIA ( 5 ILCS 140/ 3( d) ( West 2014)). This office specifically requested that ISP respond to assertion that ISP was precluded from charging fees because ISP did not provide a timely response to his FOIA request. On October 10, 2014, ISP provided this office with a written response but did not address whether it was precluded from charging fees due to its untimely response; rather ISP asserted that it had authority to charge a $ 20.00 fee for the disc under section 6( b) of FOIA ( 5 ILCS 140/ 3( d) ( West 2014)) and section 1298. 40( 6) of the Illinois Administrative Code ( 20 Ill. Adm. Code § 1298.40( b) ( West 2014), last amended at 37 I11. Reg. 8041, effective June 3, 2013). On October 21, 2014, this office forwarded a copy of ISP' s response to he did not reply.

documented for this office that there was a delay in transmission of the e-mail that prevented it from receiving the request until July 28, 2014. Accordingly, based on the available information, ISP was required to respond by August 1, 2014, or properly extend its response time by that date, which it did not do. Moreover, even assuming that ISP had received FOIA request on July 28, 2014, and properly extended its time to respond by 5 business days, ISP's response would have been due on August 11, 2014. However, ISP did not provide a response to his FOIA request until August 12, 2014. Section 3( f) of FOIA ( 5 ILCS 140/ 3( 0 (West 2014)) provides that "[ a] public body that fails to respond to a request within the time permitted for extension but thereafter provides the requester with copies of the requested public records may not impose a fee for those copies." ( Emphasis added.) ISP' s response to this office appears to contend that such restrictions are limited to fees imposed under FOIA's fee provisions, not those fixed by other statutes. See 5 ILCS 140/ 6( b) ( West 2016). The plain language of sections 3( d) and 3( 0, however, prohibits a public body from imposing a fee— regardless of its source— for copies if it fails to issue a timely response to a request. Because ISP failed to issue its response or extend the time for its response within the requisite time periods, section 3( d) of FOIA prohibits it from charging the $ 20. 00 fee.

Even supposing that ISP had provided a timely response to it would not have been allowed to charge the $ 20.00 fee set forth in the Administrative Code.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. This file is closed. If you have any questions, please contact me at 312- 814- 5201 or at the Chicago address listed on the first page of this letter.

EDIE STEINBERG

Assistant Attorney General Public Access Bureau 31244 f 3d untimely fee improper 3f untimely fee improper pd sa

Notes from the original PDF (3)

This determination letter is issued pursuant to section 9. 5( 0 of the Freedom of Information Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)). For the reasons that follow, the Public Access Bureau concludes that that the Illinois State Police ( ISP) improperly assessed fees in response to FOIA request. On July 25, 2014, submitted a FOIA request to ISP bp' e- mail seeking copies of various records including videos of a traffic stop taken earlier that day. On August 4, 2014, ISP asserted that it received response on July 28, 2014, and extended its time to respond by five business days, to August 11, 2014, pursuant to section 3( e) of FOIA ( 5 ILCS 140/ 3( e) ( West 2014). 2 On August 12, 2014, ISP partially denied FOIA request pursuant to sections 7( 1)( b), 7( 1)( c), and 7( 1)( d)( vi) of FOIA ( 5 ILCS 140/ 7( 1)( b), ( 1)( c), 1)( d)( vi) ( West 2014)) and informed that it has " one DVD of in -car video available E- mail from to FOIA_ Officer@isp. state. il. us ( July 25, 2014, 10: 29 a. m.). 2E -mail from Lieutenant Steve Lyddon, FOIA Officer, [ Illinois State Police] to August 4, 2014). 100 West Randolph Street, Chicago, Illinois, 60601 • ( 312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806 1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416
DETERMINATION All records in the custody or possession of a public body are presumed to be open to inspection or copying." 5 ILCS 140/ 1. 2 ( West 2016); see also Southern Illinoisan v. Illinois Department ofPublic Health, 218 I11. 2d 390, 415 ( 2006). Section 3( d) of FOIA provides, in pertinent part: 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. ( Emphasis added.) While ISP claims that it did not receive the FOIA request until July 28, 2014, submitted his FOIA request to ISP by e- mail on July 25, 2014, at 10: 29 a.m. ISP has not 3E -mail from Lieutenant Steve Lyddon, FOIA Officer, [ Illinois State Police] to August 12, 2014).
Section 6 of FOIA sets forth the permissible fees for copying records requested pursuant to FOIA, which apply "[ e] xcept when a fee is otherwise fixed by statute." ( Emphasis added.) 5 ILCS 140/ 6( b) ( West 2014). Instead of citing a statute authorizing the fee that it assessed, ISP cited a provision of the Administrative Code that authorizes a copying fee of $20.00 for a video tape. If the General Assembly had intended for fees fixed by both statutes and administrative rules to apply to records requested under FOIA, it would have done so expressly as it did in crafting the section 7( 1)( a) exemption to apply to records that statutes, as well as administrative rules implementing statutes, prohibit from being disclosed. The Public Access Bureau has consistently determined that a fee set forth in the Administrative Code does not supersede the fee provisions of FOIA because that fee was not fixed by statute. See, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 39015, issued January 6, 2016; Ill. Att' y Gen. PAC Req. Rev. Ltr. 17989, issued February 5, 2014. In accordance with the conclusions expressed in this letter, we request ISP to reimburse the $ 20. 00 he paid to ISP for the DVD.