Ensuring Open and Honest Government

Illinois Freedom of Information Act:
Responding to requests under the Freedom of Information Act:
A Guide for Government Agencies

How must a public body comply with a request for public records?

How much time does a public body have to process a request for public records?

What procedures must a public body follow in denying a request for public records?

Suggestions for implementing the Freedom of Information Act.

How must a public body comply with a request for public records?

Every public body is required to permit inspection or, upon submission of a written request, to provide copies of any requested records that are subject to disclosure under the Act. When copies are requested, the public body may charge fees reasonably calculated to reimburse it for the actual cost of reproducing and certifying public records. These fees, however, cannot include any of the cost of searching for the requested records, and cannot exceed the cost of reproduction.

The Act provides that documents shall be furnished without charge or at a reduced charge where the public determines that waiver or reduction of fees "is in the public interest." A waiver or reduction is "in the public interest" if the primary purpose of the request for access is to disseminate information for the benefit of the general public and not for personal or commercial benefit. A request made by the news media is not for "commercial benefit" when the principal purpose of the request is to obtain and disseminate information regarding the health, safety, and welfare or the legal rights of the general public. (Subsection 6[b].)

It should also be stressed that the fundamental right guaranteed by the Act is the right of inspection and that, while a person may obtain copies of records requested, he or she is not required to purchase copies of records in order to gain access to them. In addition, subsection 3(a) prohibits public bodies from granting to anyone the exclusive right to gain access to and to disseminate any public record.

How much time does a public body have to process a request for public records?

The Act provides a timetable to which all public bodies must adhere when processing requests for public records. When a written request for public records is submitted, a public body is required either to comply with or deny the request "promptly." The term "promptly" is not defined in the Act, but the term implies that a public body should respond to requests as quickly as practicable. Absent extraordinary circumstances, the public body must respond within seven working days of the request. Failure to respond within this time period is considered a denial of the request under the Act.

Under extraordinary circumstances, the Act provides that the seven day period for response may be extended for up to seven additional working days. Subsection 3(d) provides that the time period may be extended if:

• the requested records are stored in whole or in part at other locations than the office having charge of the requested records;

• the request requires the collection of a substantial number of specified records;

• the request is couched in categorical terms and requires an extensive search for the records responsive to it;

• the requested records have not been located in the course of routine search and additional efforts are being made to locate them;

• the requested records require examination and evaluation by personnel having the necessary competence and discretion to determine if they are exempt from disclosure under section 7 of this Act or should be revealed only with appropriate deletions;

• the request for records cannot be complied with by the public body within the time limits prescribed by subsection 3(c) without unduly burdening or interfering with the operations of the public body; or

• there is a need for consultation, which shall be conducted with all practicable speed, with another public body or among two or more components of a public body having a substantial interest in the determination or in the subject matter of the request.
When additional time is required for any of these reasons, the public body must notify the person making the request by letter specifying the reason for the delay and the date when either the records will be released or the denial of the request will be made. This letter must be sent within the original seven day period. The extended time period cannot be longer than seven extra working days, and if a response is not made within that extended period, the request will be considered denied.

A similar maximum period for reply is placed upon heads of public bodies when a requesting person appeals the denial of a request for records. When the requesting party appeals to the head of a public body, the head of the public body or his designee must determine whether the records will be released and notify the requesting party of his determination within seven working days.

What procedures must a public body follow in denying a request for public records?

When a request for public records is denied by a public body, that body must, within seven working days, or within any extended compliance period provided for in the Act, notify the person who made the request, by letter, of the decision to deny the request. The letter must explain the reasons for the denial, and give the names and titles of all persons responsible for the denial.

When a denial is based upon one of the exemptions enumerated in the Act, the denial letter must specify the exception authorizing the denial. The letter must also explain that the requesting party can appeal the denial to the head of the public body. If the head of the body or his designee denies such an appeal, he must explain in his letter of denial that the requesting person has a right to judicial review of his decision. (Judicial review is discussed under question XIII.)

The Act also requires that copies of all letters of denial be retained by the public body, and be kept in a single office file that is open to the public. The file must be indexed both by type of exception asserted and, to the extent feasible, by the types of records requested. (See discussion under question VIII above.)

Suggestions for implementing the Freedom of Information Act

The Freedom of Information Act does not fully specify the procedures that public bodies must follow to implement its provisions. Consequently, public bodies have to take some basic steps to comply with the Act. A few suggestions to assist public bodies in compliance are set forth below.

Section 5 of the Act requires public bodies to maintain, and make available for inspection and copying, a list of all types and categories of records prepared or received after July 1, 1984. The list required by section 5 of the Act must contain all types of records, including those exempt from disclosure under section 7. The list should be reviewed periodically to ensure that it accurately reflects the current records of the public body.
The head of the public body should also confer with the directors or heads of divisions or subdivisions of the public body, and with counsel for that body, to make preliminary determinations as to what records of the body may be exempt from public inspection under section 7. This will reduce the need for case-by-case or ad hoc review of requests for records. This process will also reduce the time needed to respond to requests and will provide guidance to those who handle requests on a day-to-day basis. Note that these preliminary determinations are not final, and only provide guidelines within which a request for disclosure should be decided.

The public body should also consider what documents, if any, will be furnished free of charge under subsection 6(b) of the Act, which provides that public bodies may furnish documents free of charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest. Such a preliminary determination will assist public bodies in responding to requests more efficiently.

The body should periodically review and update the types of documents that are required to be maintained under the Act. These documents are described in question VIII above and include a list of records, a description of how records are available (discussed below), a brief description of the public body, and a description of the means whereby records stored through data processing can be obtained by the public.

Public bodies should periodically review the procedures they have established for carrying out the Act, or, if none have previously been established, consider doing so. Subsection 3(g) of the Act authorizes the promulgation of rules in this regard. It is suggested that such rules establish the times and places where records will be available, the persons within the body who will respond to requests, and the manner of response. The rules may establish a fee schedule for access to records consistent with section 6 of the Act. Subsection 3(b) also requires public bodies to certify records when so requested, and therefore, procedures for certifying records should be included in the rules. In accordance with section 4 of the Act, the rules describing the methods whereby records can be acquired must be displayed at each office of the public body, and must be prepared so that copies of those rules can be mailed out when requested.

Because written requests are so important to the procedures outlined in the Act, the body should have a request form to be filled out when personal requests are made. Forms should be tailored to fit the needs of the public body.

The body should be certain that its procedure for denial of requests complies with the provisions of section 9 of the Act. In general, letters of denial must explain the reasons for denial of a request and must inform the requesting person of his right to appeal the denial. Letters of denial of appeal must comply with the provisions of section 10.