A state appeals panel has determined the Illinois Freedom of Information Act doesn’t obligate Chicago to force contracted waste haulers to file annual reports or respond to requests for documents containing data it doesn’t compile.
Justices, however, expressed disappointment in the apparent failure by city officials to make any real attempt to force the haulers to comply with their duties under the ordinance to file the reports.
The Chicago Recycling Coalition sued the Chicago Department of Streets and Sanitation in September 2019, alleging FOIA violations for failing to produce and conduct an adequate search for requested records. The Coalition said a city ordinance requires third-party haulers to submit an annual report to the department, but the agency responded to its FOIA request with only 43 reports and no explanation for why it didn’t produce reports from the other 72 haulers. According to the Coalition, the department also failed to produce complete information on residual rates and recycling contamination in what are commonly known as blue carts.
On cross motions for summary judgment, Cook County Circuit Court Judge Caroline Moreland ruled in favor of Streets and Sanitation with regards to the hauler reports, finding the department produced everything it had on hand. But Moreland ruled for the Coalition regarding the other information, determining the department didn’t produce its own data or explain how it searched for the missing information.
Both parties filed motions to reconsider, and in January 2022 Moreland entered summary judgment in favor of Streets and Sanitation, agreeing the department didn’t maintain the residual and contamination data and therefore couldn’t violate FOIA for failing to produce such information. She further said the city doesn’t maintain control over the hauler reports until it receives them.
The Coalition challenged those findings before the Illinois First District Appellate Court. Justice Sanjay Tailor wrote the panel’s opinion, filed Aug. 11; Justices Carl Walker and Sharon Oden Johnson concurred. Walker wrote a special concurrence, joined by Oden Johnson.
On appeal, the Coalition argued the department didn’t adequately search for the hauler reports because it never demanded the companies submit the missing reports, nor did it use authority under a city recycling ordinance to levy fines for missing paperwork.
“An adequate search was performed when the department searched its records for the third-party private hauler reports and turned over every such report in its possession,” Tailor wrote. “FOIA does not impose an obligation on the department to make a demand on a third-party private hauler who is delinquent or otherwise noncompliant with its obligation to submit its report to the department.”
The panel said the Coalition’s position “is based entirely on conjecture and speculation” concerning whether the missing reports actually exists, and although it acknowledged what “would appear to be systemic noncompliance by third-party private haulers,” granting the Coalition's request to force the city to compel the haulers to produce the reports would represent an impermissible expansion of FOIA powers.
Regarding residual and contamination data, the panel agreed the Coalition failed to show the information it seeks exists in city records, nor did it make a case the department could obtain such information on request.
In his special concurrence, Walker stressed he agreed with Tailor’s opinion regarding third-party hauler reports, but he added the city should have at least requested the haulers comply with the ordinance and submit the reports in an attempt to fulfill the FOIA request for information the city should have possessed under the ordinance.
“While the department met its legal obligation in conducting a reasonable search, I find it troubling that more than 63% of city-contracted haulers failed to produce the required reports,” Walker wrote. “It is also concerning that the department did not go above its legal duty and simply ask those haulers to comply. In the interest of full disclosure, the department ‘ought’ to have asked the noncomplying haulers for the relevant information.”