Questions and Answers on Library Law:
The Freedom of Information Act

Welcome to our new column that will appear regularly in Illinois Libraries. This column will address commonly asked questions on library law. If you have questions you would like addressed in this column, please send them to: "Q and A on Library Law," Illinois Libraries, at the address on the title page of this issue. Our first column addresses common issues that may arise under the Freedom of Information Act:

Q: What is a "public body" covered by the Freedom of Information Act?

A: The definition of a public body in the Freedom of Information Act (FOIA) 5 ILCS 140/1 et seq. is the same as the definition of a public body contained in the Open Meetings Act (OMA). The definition contained in each Act indicated that public body includes all legislative, executive, administrative or advisory bodies of a library or library district, and "any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue." While there can be doubt as to exactly what constitutes a subsidiary body, some clear examples would be committees or bodies established by action of the library board. For example, a library system, as defined in Illinois statutes at 75 ILCS 10/2, formed by action of the boards of several libraries, is clearly a subsidiary body under both Acts. Also, all subcommittees of a library board and all committees established by such a board are subject to the Act. A committee, however, that is not established by the board and does not report to the board, such as a Friends of the Library group, is not subject to the Act.

Q: Which public records are covered by FOIA?

A: The term "public records" means all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, recorded information and all other documentary information prepared, used, received, possessed or under the control of the public body.

Although the Act provides numerous exemptions from disclosure, none of those exemptions are based on the form a record might take. Exemptions are based on the content of the record.

Note that a library or library district is not required to create new records to comply with requests for information. The Act applies only to existing records or to records that might become established by law or by the library board or director.

Section 2(c) of the FOIA lists 14 examples of records that must be made available for public inspection and copying.

Q: Must records of the materials a person checks out of the library be provided if requested?

A: No. Under the Library Records Confidentiality Act, 75 ILCS 70/1, registration and circulation records of a library are confidential information. They may not be made public except pursuant to court order. However, a library may make available reasonable statistical reports on the number of library cardholders and book circulation, as long as no individual is identified in those reports.

Q: Who may request records under FOIA?

A: Any individual, corporation, partnership, firm, organization or association acting individually or as a group.

Q: Must requests for records be submitted in writing?

A: No. Records also may be requested in person. However, it may not be possible to fill a request while

* Scott Uhler and Janet Petsche are partners, and Rinda Allison is an associate with the law firm of Klein, Thorpe and Jenkins, Ltd. with offices in downtown Chicago and Orland Park. The firm concentrates in the representation of public libraries and library districts in Illinois as well as other local government units.

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the party waits. Moreover, the seven-day time limit and the appeal procedures are tied to written requests. Therefore, it would be advisable to reduce the request to writing either by a form that the requesting person fills out or by a memorandum completed by a staff member.

A library is under no legal obligation to provide records on the spot. It can elect to do so where the request is straightforward and easily accommodated.

Q: Who is responsible for complying with requests for records?

A: The Act puts the burden for compliance on the "public body," which is the library board. It also places a number of responsibilities on the "head of the public body," which is the head librarian or library director. A library is authorized by the Act to deny access to certain records by invoking the exemptions cited in the law, and the library is required to hear appeals where another employee has denied access. It is recommended that the library board or librarian designate specific employees to handle the initial FOIA request so that the library director can handle controversial requests on appeal (and thus have time to carefully consider the request and seek legal advice as needed).

Q: When is a request for records "unduly burdensome"?

A: The Act allows public bodies greater latitude when faced with requests for records that are "unduly burdensome." An "unduly burdensome" request would be one requiring more than seven working days to fill or one that is being denied altogether due to the unreasonable burden. If the request will take more than seven working days to respond to, the library must invoke the additional seven days permitted under the Act by notifying the requesting party by letter expressly stating "it would unduly burden or interfere with the operations of this library to fill the request within the initial seven working days."

An "unduly burdensome" request would be one that is so broad or general that library employees cannot reasonably comply without disrupting the work of the library or without excessive cost. Court decisions interpreting the Federal Freedom of Information Act have tried to apply a balancing test, weighing the burden of the request against the public's need to see the records. The Illinois law requires the library to meet with the requesting person to reduce the request to manageable size. If that fails, the request may be denied as being "unduly burdensome."

Repeated requests for the same records by the same person can likewise be considered unduly burdensome.

Conclusion

Our next column will continue to address general issues faced by libraries in implementing a FOIA policy and in properly responding to FOIA requests. Following an examination of the more common questions that tend to arise under FOIA, we will explore the general issues that arise under the Open Meetings Act.

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