FOIA Changes in Regards to “Recurrent Requesters”

Change in legislation allows governmental bodies more time to respond

By Richard M. Joseph

richard.joseph@mhtlaw.com

On August 26, 2011, Governor Quinn signed into law an amendment to the Illinois Freedom of Information Act (the “Act”) designed to provide additional time for public bodies to respond to requests of “recurrent requesters”.

The new law is being criticized, both by governmental bodies, as not providing enough protection from nuisance requesters, and by watchdog groups as having a chilling effect upon an individual’s right to seek information from governmental bodies.

The “recurrent requester” provision of the law allows governmental bodies to delay responses for up to 21 days in the event the person requesting the response (i) has filed 50 requests for records within the year, (ii) filed 15 requests for records within a 30-day period, or (iii) filed 7 requests for records within a 7-day period.  Without such modification, the governmental body was required to respond within 5 days or, under certain limited circumstances, request a 5-day extension.

The modification defines a “recurrent requester” to exclude news media and non-profit, scientific, or academic organizations where the principal purpose of the request is to access and disseminate information concerning news and current events, for articles of opinion, or features of interest to the public, or for academic, scientific, or public research or education.

Within five business days after receiving a request from a “recurrent requester”, the public body is required to notify the requester that the public body is treating the request as a request from a recurrent requester under subsection (g) of Section 2 of the Illinois Freedom of Information Act, set forth the reasons why the public body is treating the request as a request from a recurrent requester, and that the public body will send an initial response within 21 days after receipt in accordance with the Act.

In addition to sending the five-day notice discussed above, when a Freedom of Information Act Request is received from a “recurrent requester”, the public body must respond within 21 days.  Such response must (i) provide to the requester an estimate of the time required by the public body to provide the records requested and an estimate of the fees to be charged, (ii) deny the request pursuant to one or more of the exemptions set forth in the Act, (iii) notify the requester that the request is unduly burdensome and extend an opportunity to the requester to attempt to reduce the request to manageable proportions, or (iv) provide the records requested.  The public body may require the requester to pay in full any fees to be charged before copying the requested documents.

The law then provides that, unless the records are exempt from disclosure, the public body shall comply with the request “within a reasonable period considering the size and complexity of the request”.

Anyone who is deemed by a public body to be a “recurrent requester” can appeal their status to the Illinois Attorney General’s Office.

In addition to the recurrent requester modification, the law has also been changed to now allow a public body to charge a search fee up to $10.00 for each hour spent by personnel in searching for and retrieving records requested for a commercial purpose, although no fee shall be charged for the first eight hours spent by personnel in searching for or retrieving a requested record.  Thus, this fee modification will not be of significant import to most governmental bodies in responding to typical requests under the Freedom of Information Act.

Finally, the law was changed to provide that a person whose request to inspect or copy a public record is made for a commercial purpose may not file a request for a review with the Public Access Counselor.  That having been stated, when a person whose request to inspect or copy a public record is treated by the public body as a request for a commercial purpose (as opposed to being identified by the requester for a commercial purpose) the requester may file a request for review with the Public Access Counselor of the Attorney General’s Office for the limited purpose of reviewing whether the public body properly determined that the request was made for a commercial purpose.