Cook County Medical Examiner's Office allowed to charge $5 per page fee for photographs of inquest files

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Dear and Ms. Felicione:

2016, the Medical Examiner' s Office responded by stating that if wished to receive., copies of the records, the cost would be $ 655. 00 pursuant to section 4- 7001 of the Counties Code 55 ' ILCS 5/ 4- 7001 ( West 2016)), which authorized a coroner' s office to charge $ 5. 00 per page for transcripts of sworn testimony. The Medical Examiner's Office stated that if wished to inspect the records, he should contact its office to schedule a time for inspection; however, he would not be permitted to photograph the records during the inspection. contacted the Medical Examiner' s Office seeking clarification of the basis for prohibiting photography during inspection. On July 19, 2016, the Medical Examiner's Office responded by stating that if took photographs of the records, it would assess the $ 5. 00 per page fee authorized by section 4- 7001 of the Counties Code because photographs are the same as copies. On July 26, 2016, submitted a Request for Review to this office contesting the Medical Examiner' s Office' s refusal to allow him to photograph the records during inspection without charge.

On August 1, 2016, this office sent a copy of the Request for Review to the Medical Examiner' s Office and asked it to respond to allegations. On August 15, 2016, Legal Affairs for the Office of the Cook County Board President provided this office with a written answer on behalf of the Medical Examiner' s Office. On August 17, 2016, this office • sent a copy of the Medical Examiner' s Office' s answer to he replied on July 25, 2017.

DETERMINATION

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 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. No fees shall be charged for the first 50 pages of black and white, letter or legal sized copies requested by a requester. The fee for black and white, letter or legal sized copies shall not exceed 15 cents per page. ( Emphasis added.)

Section 4- 7001 of the Counties Code provides:

Coroner' s fees. The fees of the coroner' s office shall be as follows:

1. For a copy of a transcript of sworn testimony: $ 5. 00 per page.

2. For a copy of an autopsy report ( if not included in transcript): 50. 00.

deceased. In counties of less than 1, 000, 000 population, the State' s attorney shall collect such fees out of the estate of the deceased.

All fees under this Section collected by or on behalf of the coroner' s office shall be paid over to the county treasurer and deposited into a special account in the county treasury. Moneys in the special account shall be used solely for the purchase of electronic and forensic identification equipment or other related supplies and the operating expenses of the coroner' s office.

Although section 4- 7001 states that all coroner' s fees " shall be certified by the court" and collected " out of the estate of the deceased[,]" that statutory language pre -dates FOIA. See, e. g., Laws 1919, p. 554, § 1. The subsequent enactment of FOIA by the General Assembly, with its specific reference to fees fixed by statute in section 6( b), provides guidance on how to interpret the applicability of the fees for coroner' s records in section 4- 7001 of the Counties Code. See Mitsuuchi v. City of Chicago, 125 Ill. 2d 489, 497 (.1988) (" Legislativeenactments per page fee contemplated by section 6( b) of FOIA. See Phoenix Bond & Indemnity Co. v. Pappas, 194 Ill. 2d 99, 106 ( 2000) ( holding that a statute should not be construed in a way that would defeat its purpose or yield an absurd or unjust result). Consequently, this office concludes that the fee provision in section 4- 7001 of the Counties Code applies to copies of records provided in response to FOIA requests submitted to a coroner or medical examiner' s office.

Turning to the issue of photographing the inquest records, in a case decided prior to the enactment of FOIA that was cited by Mr. Costin in his Request for Review, the Illinois Appellate Court held that the common law right to inspect records included the right to photograph records. People ex. rel. Gibson v. Peller, 34 I11. App. 2d 372 ( 1962). In Peller, the parents of students enrolled in a school district sought to inspect the district' s financial records. At the time of inspection, the parents brought a professional photographer to photograph the records. The district refused to allow the records to be photographed. The district asserted that the parents " have the right to look, examine and inspect with the naked eye the public records and copy by hand these public records, but they have no right to photograph the records." Peller, 34 Ill. App. 2d at 375. The court disagreed stating:

Modern photography is accurate, harmless, noiseless, and time saving. It does nothing more than capture that which is seen with the naked eye. Neither defendants nor the public can be harmed by the reproduction of the records exactly as they exist. The fact that more modern methods of copying are devised should not lessen the basic right given under the common law. Peller, 34 Ill. App. 2d at 375.

In its response to this office, the Medical Examiner' s Office did not contest right to make photographs during his inspection of the inquest files; rather, it asserted only that he would be assessed the fee authorized by the Counties Code for any photographs taken of those records. The Medical Examiner' s Office stated that there were. 38 pages of sworn testimony in the coroner' s inquest for the death of Thomas F. Kelly and 93 pages of sworn testimony for the death of Andrew A. Kelly. The Medical Examiner' s Office asserted that the $ 5. 00 fee per page of sworn testimony in section 4- 7001 of the Counties Code would applyto any photographs taken by during his inspection of the records.

In this matter, seeks to photograph inquest files for which the Counties Codes establishes a fixed fee. A public body may not charge a fee to inspect records; however, is not merely seeking to inspect the records but to reproduce them. The court in Peller recognized that the right to photograph accompanied the right to inspect under common law. The General Assembly has since enacted FOIA, which provides the right to inspection or copying of public records and includes the reproducing of records by photograph within the definition of "copying" in section 2( d) of FOIA. In addition, the General Assembly did notstate that, the statutory fees for copies of public records shall not apply to photographs of those records unless expressly provided, as it did in section 6( a) of FOIA ( 5 ILCS 140/ 6( a) ( West 2016)) for records furnished in electronic format.

Section 4- 7001 of the Counties Code does not distinguish between the format of the copy or whether the copy is made by the requester or the Medical. Examiner' s Office when assessing the $ 5. 00 per page fee for copies. Further, unlike fees such as those in section 6( b) of FOIA that are intended to allow a public body to recover its actual cost of reproducing the record, the express purpose of the fees in section 4- 7001 of the Counties Code is to provide a funding mechanism for a coroner' s office to obtain identification equipment and to cover its operating expenses related to death investigations. Construing the fee provision in the Counties Code to allow a requester to generate his or her own copies by photographing coroner' s records without charge would defeat the purpose of this provision. See Phoenix Bond & Indemnity Co., 194 Ill. 2d at 106. Accordingly, under section 6( b) of FOIA, the Medical Examiner' s Office did not improperly respond to Mr. Costin' s FOIA request by stating that it would assess a $ 5. 00 per page fee for any photographs taken of the inquest files.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. Please contact me at ( 217) 782- 9054, mhartman@atg. state. il.us, or the Springfield address on the first page if you have questions. This letter serves to close this file.

Very truly yours,

MATT HARTMAN

Assistant Attorney General Public Access Bureau 43174 f 6a fee proper co