Chief Procurement Office for General Services commercial purpose FOIA denial not reviewable by PAC

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Dear

This determination is issued pursuant to section 9.5(c) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(c) (West 2022), as amended by Public Act 103 -069, effective January 1, 2024 ). For the reasons that follow, the Public Access Bureau has no authority to take further action in this matter.

On June 10, 2024, Mr. Sean Dailey , Senior Client Director at AHEAD, submitted a FOIA request to the Chief Procurement Officefor General Services (Office ) seeking copies of e-mails related to the decision to cancel a bid that AHEAD was awarded . On June 17 , 2024, the Office denied your request pursuant to sections 7(1)(f), 7(1)(h), and 7(1)( m) of FOIA, 1 and cited section 8.5 for materials posted on its website.2 On June 20 , 2024 , this office received your Request for Review contesting the Office' s denial on behalf of AHEAD. When this office asked Section 9.5(a) of FOIA4 allows a person whose FOIA request has been denied to seek review of that denial with the Public Access Counselor. However, section 9.5(b) of FOIA 5 creates an exception, providing that a "person whose request to inspect or copy a public record is made for a commercial purpose as defined in subsection ( c -10) of Section 2 of this Act may not file a request for review with the Public Access Counselor." 6 Under the plain language of this provision, the Public Access Counselor's review process is not available to a person whose request was made for a commercial purpose.

Although it does not appear that Mr. Dailey marked the FOIA request to the Office as hav ing a commercial purpose, the request was submitted on behalf of AHEAD, which provides commercial services in Illinois .7 Your confirmation that the request is for a bid protest demonstrates the commercial nature of the request. The Public Access Bureau has determined that a request for the purpose of a potential bid protest is a commercial request. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 47083, issued April 4, 2017, at 2 ("A request that seeks records for use in efforts to obtain a business contract has a commercial purpose."). Accordingly, section 9.5(b) of FOIA precludes this office from reviewing the substance of the Office's denial. Please note that you have the option of filing suit against the Office for injunctive or declaratory relief pursuant to section 11 of FOIA (5 ILCS 140/11 (West 2022 )).

This letter serves to close this file. If you have questions, please contact me at joshua .jones@ilag. gov or (773) 590 -7951.

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