Chicago Public Schools did not violate FOIA by refusing to create custom report

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Chicago Public Schools 42 West Madison Street Chicago, Illinois 60602 On November 20, 2023, this office sent a copy of the Request for Review to CPS and asked it to provide a detailed explanation of the legal and factual bases for asserting that it does not maintain a responsive record, addressing whether it used the method described, or any other method, to try to furnish the record in question. To the extent CPS argued that it was not required to try to run the report/retrieve the record, this office asked CPS to address whether the data concerns CPS' transaction of public business and how retrieving the data would go beyond what the court in Hites v. Waubonsee Community College, 2016 IL App 2d) 150836, concluded public bodies must do with respect to processing FOIA requests for such data compilations. On January 2, 2024, CPS provided a copy of a backlog trend report for this office' s confidential review and its answer. On January 18, 2024submitted a reply. DETERMINATION All records in the custody or possessionof a public body are presumed to be open to inspection or copying." 5 ILCS 140/ 1.2 ( West 2022); see also Southern Illinoisan v. Ilinois Department of PublicHealth, 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 requirea public body to compile data that it does not ordinarily keep. Chicago Tribune Co. v. Department of requests are ' carried over' on a monthly basis in 2023." 6 CPS further argued that while FOIA concerns copying records, meaning reproducing them,? " producing this record would not constitute the reproduction of any record, but rather the initial production of a new record, containing new data." ( Emphasis in original.)[$]

According to CPS, the data compilations the court in Hites v. Waubonsee Community College concluded must be disclosed are distinguishable because request seeks not information generated and stored by a public body, but a calculation derived from that information. CPS analogized this matter to two cases on which the Hites court relied, Chicago Tribune Co. v. Department ofFinancial do Professional Regulation, 2014 IL App (4th) 130427, 133, and National Security Counselors v. Central Intelligence Agency, 898 F. Supp. 2d 233, 271 ( D. D.C. 2012). Just as the request in Chicago Tribune Co. asked the public body " to perform an action ( a review of its investigative files) in order to prepare a new record (a tally as to the number of claims)," CPS argued, the Backlog Trend Report would be a new record and requested that the district perform an action, in giving specific directions to the FOIA Office to follow in order to prepare a new record that contains backlog calculations." 9 Similarly, just as the federal district court in National Security Counselors " held that producing a listing' of a database search, such as a listing of the first 100 FOIA requests in a given year, constituted the creation of a new record * * * because the request sought information about categories improperly sought the creation of new records because the public body did not maintain the requested totals in its databases; CPS argued that like Chicago Tribune Co., such a request improperly asks a public body to perform a calculation, and like National Security Counselors, such a request seeks information about public records rather than records themselves. Hites, 2016 IL App (2d) 150836, ¶ 79.

Acknowledging that raw data in a database is subject to disclosure, CPS suggested tha" consider requesting only underlying data within GovQA (such as a report reflecting the open and closed date of all requests received in a certain timeframe) from which he can conduct his own calculations."" CPS additionally asserted:

A] ssuming arguendo that the Backlog Report is an existing public record subject to release, this request still fails to cite a specific public record for review. The slide referenced byl• details a multitude of options surrounding the production of the Backlog Trend Report, such as viewing the backlog by request type, assigned department, assigned staff, or the option to include only past due requests. Accordingly, as there are variations on how this report can be pulled, the request fails to cite a specific record for review in failing to specify what filters to apply or data to include. This is particularly true because the district has not created and does not utilize such a report, so there is no uniform or already established format that can be presumed to be requested here. 11 1 In his reply, did not address Hites, but argued that the federal appellate court in Center for Investigative Reporting v. United States Department ofJustice, 14 F.4th 916 9th Cir. 2021) rejected CPS's position on what constitutes the creation of a new record and specifically overturn[ ed]" National Security Counselors. 13 In Centerfor Investigative ownership, annually from 2006 to the present,' because FOIA establishes a right of access to existing agency records only, and searching its trace database would require the creation of a new record." Centerforinvestigative Reporting, 14 F.4th at 937. As with the court in Hites, the court in Centerfor Investigative Reporting concluded that " using a query to search for and extract a particular arrangement or subset of data already maintained in an agency' s database does not amount to the creation of a new record[.]" Centerfor Investigative Reporting, 14 F.4th at 938. ATF acknowledged that its relevant database " include[ d] ' close- out codes' for each trace, including those related to law enforcement and government agencies [,]" and that it could search the database to identify those law enforcement traces, but had not searched the database in response to the request for aggregate data. Centerfor Investigative Reporting, 14 F.4th at 939- 40. The court explained:

ATF can theoretically respond to [ the] request in at least two ways. First, it could search the [ relevant] database for records tagged with the relevant close- out codes and produce the resulting traces or list of traces, with any necessary redactions, for [the requester] to tabulate. * * * Second, ATF could produce the precise statistical aggregate data that [the requester] seeks, with no further counting or analysis required, if, for example, a query or queries for the relevant close- out codes produces a " hit count" reflecting the number ofrecords involving a firearm traced to law enforcement, the number of matching records is contained in [ the database' s] metadata, or if the database produces an otherwise responsive result separate from the trace data itself. Center for Investigative Reporting, 14 F.4th at 940.

Nonetheless, the court acknowledged that " these are only theoretical possibilities" because the record in the case was insufficient to determine whether the requested data " could be produced by a reasonable search of the [ relevant] database or would require more significant human We reject the bright -line distinction some courts have made between producing " particular points of data" and producing a listing or index" of a database. [ Citation.] It cannot be that some arrangements of data available through a query of a database are records" created and obtained by an agency, while others are not. Centerfor Investigative Reporting, 14 F.4th at n. 21.

argued that National Security Counselors ultimately signifies that " any information the system can produce is a public record." 16 Yet, conceded that CPS was correct that his request did not specify parameters for the Backlog Trend Report among different available parameters. stated: " I would like the report as it is shown on the slide I included: for all request types, for all assigned departments and staff, without restricting it to past due requests, viewed by month." 17 The court in Centerfor Investigative Reporting, though critical of certain analysis in National Security Counselors, did not overturn that case because it is from a different judicial circuit. More significantly, the federal appellate court in Centerfor Investigative Reporting did not, and could not have, overturned Hites, because Hites is an Illinois appellate decision construing Illinois' FOIA. See Kauffman v. Wren, 2015 IL App (2d) 150285, 1144 ( lower federal court decisions are not binding on Illinois courts). Hires remains good law in Illinois and is the controlling precedent for this Illinois FOIA matter.

Again, the Hites court concluded that a public body was not required to provide certain requested aggregate data, such as " the total number of all out -of -district students in the fall of 2011," because although it possessed underlying data, it "did not maintain the requested 14Letter from Attorney General ( January necessary to determine precisely what information he was seeking. Under these circumstances, CPS' s response to request did not violate FOIA. may wish to take CPS up on its suggestion to " consider requesting only underlying data within GovQA ( such as a report reflecting the open and closed date of all requests received in a certain timeframe) from which he can conduct his own calculations[,]" 8 in alignment with the first of the two " theoretical possibilities" in Center for Investigative Reporting, 14 F.4th at 940.

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

Very truly yours, JOSHUA M. JONES Deputy Bureau Chief Public Access Bureau