A recent ruling in Illinois appellate court could challenge just how free governments are to deny public records requests simply because those records are available on a website.
The Illinois Second District Appellate Court on Feb. 22 overturned a dismissal in the case of Garlick v. Naperville Township, stating that the township could not reject a Freedom of Information Act (FOIA) request for its full property records database solely because the records were available on its website.
Jamel Greer, an attorney with Franczek Radelet P.C., of Chicago, who has been following the case, said the core of the case is a new section in Illinois’ FOIA rules. Section 8.5 allows governments to reject requests for copies of records, provided a requester can “reasonably access” those records online.
“That’s the point of contention, the information is there, but it’s kind of in piecemeal form,” Greer said. “The plaintiff is alleging that [Naperville Township officials] have this whole list in its entirety and they’re refusing to turn that over.”
The plaintiff in the case, Warren Garlick, argued that the design of the website required a separate search for each individual record. Given the number of records and the amount of time required for each search, he estimated that a list of the records would require 2,600 hours of effort.
The township did not dispute that estimate in its request to dismiss the case, according to the appellate justices. In their opinion, they said the website did not allow Garlick to “reasonably access” all 32,000 estimated records, in accordance with the FOIA exemptions.
FOIA laws were updated by the Illinois legislature in 2014 to add the new options for rejecting records copy requests. The law was vetoed by former Gov. Pat Quinn. The Illinois General Assembly then voted to override the veto that December.
As the case moves forward, Greer warns that municipalities and other governments should be careful about denying FOIA requests under the new rules, as the courts have given no clear direction on defining what constitutes "reasonable access."
“It’s going to be difficult to assert this when you’re not sure if the information is reasonably accessible,” Greer said. “And that’s going to put you in a jam.”
Greer noted the appeals court did not attempt to define what "reasonable access" is, only to say that Naperville Township did not meet those requirements in this request. He said it’s not clear whether the next court will seek to define the term when the issue arises again, noting courts could set a broader precedent or leave it to be decided on a case-by-case basis
“This is just another instance in which a law is made and now we’re just waiting to see what that means,” he said.