University of Illinois not required to create aggregated survey data under FOIA

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 Mr. Sullard:

This determination is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2022), as amended by Public Act 103-069, effective January 1, 2024).

On October 26, 2023, submitted a FOIA request to the University of Illinois (University) seeking copies of the following records:

I am requesting the following information, aggregated by the combination of instructor and course name. Firstly, the count of students that filled out the survey. Additionally, for each non-open- ended question on the ICES Online survey, I am requesting the name of the question, and the mean and median answer to the question by the students.

On November 2, 2023, the University extended its time to respond to request pursuant to two sub-sections of section 3(e) of FOIA (5 ILCS 140/3(e)(vi), (vii) West 2022). On November 9, 2023, the University provided certain records responsive to FOIA request but stated that "[ p]ortions of these records have been redacted or withheld pursuant to" 2 sections 7(1)(a) and 7(1)(j)(ii) (5 ILCS 140/7(1)(a), ( 1)(j)(ii) (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) as well as section 7.5(q) of FOIA. 3 In invoking sections 7(1)(a) and 7.5(q), the University cited section 10 of the Personnel Record Review Act (PRRA) 820 ILCS 40/10 (West 2022). 4 That same day, submitted the above- referenced Request for Review to this office contesting the University' s response. argued that he didn't "believe there is existing case law in the state of Illinois that covers invoking 140/7(1)(j)(ii) and would like to get clarity on what exactly this exception is meant to cover." 5 On November 29, 2023, this office sent a copy of the Request for Review to the University and asked it to provide a representative sample of the records that were withheld and an unredacted copy of the records that were provided to for this office's confidential review. Additionally, this office asked the University to provide a detailed explanation of the factual and legal bases for the applicability of the cited exemptions to the withheld or redacted records.

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 2022); see also Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). However, a " requester is entitled only to records that an agency has in fact chosen to create and retain." Yeager v. Drug Enforcement Administration, 678 F.2d 315, 321 (D.C. Cir. 1982). FOIA does not require a public body to compile data that it does not ordinarily keep. Chicago Tribune Co. v. Department of Financial & Professional Regulation, 2014 IL App 4th 130427, ¶ 34; see also Kenyon v. Garrels, 184 Ill. App. 3d 28, 32 (1989) ( a public body is not required to create records in order to respond to a FOIA request); 5 ILCS 140/1 (West 2022) ( FOIA " is not intended to create an obligation on the part of any public body to maintain or prepare any public record which was not maintained or prepared by such public body at the time when this Act becomes effective[.]").

In Chicago Tribune Co. v. Department of Financial & Professional Regulation, the Illinois Appellate Court analyzed how a FOIA request for "the number of claims or informal complaints filed against * * * identified physicians" had to be handled. ( Emphasis in original.) 2014 IL App (4th) 130427, ¶ 4. The court noted that FOIA does not obligate public bodies to answer questions or generate new records, and that "[ a] request to inspect or copy must reasonably identify a public record and not general data, information, or statistics." Chicago Tribune Co., 2014 IL App (4th) 130427, ¶ 33. Because the request would have required the public body to manually review its paper files and tally the number of initial claims made against the identified physicians rather than provide existing responsive records ( the public body did not possess a record reflecting the number of claims), the court held that it was a general inquiry question, to which FOIA did not require a response. Chicago Tribune Co., 2014 IL App (4th) 130427, ¶ 36.

This office has carefully reviewed the University' s confidential response, and additional e-mail correspondence with the University, which clarified and confirmed that the University has not compiled the mean and median information requested. 7 Although the University may possess the underlying data from which means and medians could be derived, FOIA does not require the University to perform calculations and/or analysis to compile records reflecting this information. Because the University is not obligated to create such records, this office will not address the applicability of the sections 7(1)(a), 7(1)(j)(ii), and 7.5(q) exemptions that the University cited in denying the request.

To avoid confusion, when the University responds to FOIA requests that seek multiple records, as sought in this request, the University should respond in a manner that allows the requester to understand which parts it is granting, which parts it is denying, and which parts seek records it does not possess.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. If you have any questions, please contact me at katherine. goldsmith@ilag. gov. This letter serves to close this file.

Very truly yours, KATIE GOLDSMITH Assistant Attorney General Public Access Bureau 78934 f no vio univ