FOIA changes ring in 2015

The arrival of 2015 brings with it some key changes to the Illinois Freedom of Information Act.

These FOIA changes include the following:

*A public body no longer must provide copies of records posted on the public body’s website.

*A public body now may in some cases charge for time spent redacting public records for "commercial requests."

*A public body now has more time to respond to “voluminous requests” and may, in some cases, charge fees to provide the records electronically in response to such requests.

These changes to FOIA were created by HB 3796, which was passed by the General Assembly over the veto of outgoing Governor Pat Quinn. The new FOIA changes went into effect December 3, 2014.

For most public bodies, the provision regarding website access to records will have the most significant impact. While public bodies in the past had to provide records regardless of whether they were already available online, FOIA no longer requires them to do so. Section 8.5 of FOIA now provides that “a public body is not required to copy a public record that is published on the public body’s website.”

When faced with a request for a record that is available online, the public body may now simply direct the requester to the appropriate website. If a requester is unable to access the requested record on the website, however, the requester may resubmit the FOIA request with a statement that the requester is unable to reasonably access the record online. In such cases, the public body must then provide a copy of the record to the requester.

The other key FOIA change is that it now allows a public body to charge fees in some cases for redactions to public records made for a “commercial purpose.”

A request is deemed to be for “commercial purpose” when the requester intends to use any part of a public record or records, or information derived from public records, in any form for sale, resale, or solicitation or advertisement for sales or services.”

Prior to HB 3796, a public body was allowed to charge a commercial requester up to $10 for each hour spent in excess of eight hours for searching for and retrieving a public record. However, public bodies were not allowed to charge this fee for time spent reviewing and redacting the public records. Now, FOIA permits a public body to include the time spent “examining the record for necessary redactions” as part of the eight-hour threshold “grace period” before the $10-per-hour fees can be imposed.

Finally, HB3796 creates a new procedure for responding to “voluminous requests” and allows for the charging of additional fees. Under a new subsection 2(h), a “voluminous request” is defined by any of the following criteria:

*a request that asks for more than five different categories of records;

*a combination of requests submitted within a period of 20 business days that ask for more than five different categories of records;

*a request that requires the compilation of more than 500 letter or legal-sized pages of public records, unless a single requested record exceeds 500 pages.

When a public body receives a “voluminous request” it still must respond within five business days. However, the public body may now notify the requester that the public body is treating the request as a “voluminous request,” provide its reasons for doing so, and provide the requester 10 days in which to amend its request so that it is no longer treated as voluminous.

If the requester does not respond or amend its request within the 10 business days, the public body then has five business days to either provide a response or to request an additional 10 business days to provide a response.

In addition, FOIA now allows the public body to charge voluminous requesters a fee to provide public records electronically. The fees are graduated, running from $20 to $100, depending on the amount of megabytes of data needed to provide the records. If a public body charges a requester, it must provide a full accounting of all the fees charged.