The Second District Appellate Court recently addressed the question of when an electronic record is a public record subject to FOIA and when a public agency is required to release information from an electronic database. In Hites v. Waubonsee Community College, the Court concluded that requests for public information stored in electronic databases are subject to FOIA but also drew a distinction between FOIA requests that seek information that can be recovered through a simple search, versus requests about information stored in a public body’s database that would require it to create a new record in order to respond to the request.
The FOIA requests at issue in this case sought various types of information located within the Waubaonsee Community College’s (WCC) databases, ranging from “zip codes of individuals taking GED and ESL classes” to “total number of registered students without social security numbers or the total number of registered students from 1995-2008 who took ESL classes.” The college denied the requests because it did not aggregate such information. The circuit court granted summary judgement in favor of WCC, holding that the FOIA did not require it to conduct database queries to create a new report for the requester.
On appeal, the Court examined whether the information sought constitutes public records. The Court reversed in part, holding that the data requested within WCC’s database (e.g. zip codes of all people taking National Safety Council’s Defensive Driving Court) were public records under FOIA because such data is clearly recorded information pertaining to the transaction of public business prepared by a public body. The Court determined that running a search for records in WCC’s databases did not constitute creating a new record, in the same way that looking through a file cabinet for a particular file or all files does not create a new record. The Court also held that requests for listings (e.g. total number of registered students from 1995-2008 who took ESL classes) were improper because this information did not exist prior to the request. The Court determined that those requests went beyond a simple search for records, not because the records were not subject to FOIA, but because the form of the requests were improper.
The Court also expressed concern that as the use of electronic records grows, drawing a distinction between raw data and compiled electronic records in a database might give public bodies the ability to shield public information from review and shed its duty to disclose such information by merely storing it in a database. In the Court’s view, this would contravene the FOIA’s purpose of promoting transparency and accountability. The Court’s holding is a reflection of its intent to maintain the spirit of FOIA, while mitigating the burden placed on public bodies in reproducing electronic information that is subject to FOIA. Districts must now be aware that storing documents electronically or inputting information into a data base will not shield the information from release under FOIA. Where the line is between searching for records and generating a new report may still be hard to parse and Districts should consult legal counsel if faced with such a FOIA request.