Questions and Answers on Library Law: 
The Freedom of Information Act, Part 2

This column will appear regularly in Illinois Libraries and will address commonly asked questions on library law. If you have questions you would like addressed in the column, please send them to "Q and A on Library Law," Illinois Libraries, at the address listed on the table of contents. The first column in this series, published in the Fall 1998 issue of Illinois Libraries, introduced the basic concepts of the Freedom of Information Act (FOIA). This column continues with common questions that may arise under the FOIA:

Q: Can a library charge a fee for the provision of requested public records?

A: Under the FOIA, a public body is allowed to charge fees only to reimburse its actual cost for reproducing and certifying public records, and for the use by the public equipment by the public body to copy records. The public body is not allowed to charge for any staff time necessary to retrieve or review the records. Therefore, all salary costs associated with filling requests for public records must be absorbed by the public body. The allowable fees must be charged according to a standard scale of fees, and the fee scale must be made public. If a public body knowingly charges a fee that exceeds its actual cost of reproduction and certification, the excessive fee is considered to be a denial of access to public records for the purpose of judicial review.

One exception to the rule stated above exists for records prepared or received prior to July 1, 1984 (the effective date of the Illinois FOIA). For those records, the actual cost of retrieval and review may be charged, in addition to the cost of reproducing and certifying them.

Q: What if the requestor asks for a waiver of the library's fees?

A: Records are to be furnished without charge or at a reduced charge, as determined by the public body, if the person making the request stated the specific purpose for the request and indicated that a waiver or reduction of the fee is in the public interest. A waiver or reduction of the fee is in the public interest if the principal purpose of the request is to obtain information regarding the health, safety and welfare or the legal rights of the general public and is not for the principal purpose of personal or commercial benefit. In setting the amount of waiver or reduction, the public body may take into consideration the number of records requested and the cost of copying them.

Q: Can a library deny a request for records if requested for a commercial purpose?

A: No. Although the preamble to the FOIA states that it is not intended "for the purpose of furthering a commercial enterprise," a recent Illinois Supreme Court case held that this statement in the preamble of the act, but not repeated in the body of the act, did not have any substantive legal effect. In Leiber c. Board of Trustees of Southern Illinois University, 176 111.2d 401 (1997) the university was required to give a private housing provider the names and addresses of individuals who had contacted the university about freshman housing. Since the requested information did not fall into any specific statutory exception, it could not be denied merely because the requestor had a commercial purpose.

Q: Must any purpose be stated in a request for information?

A: No. The FOIA says only that each public body shall make available to any person submitting a written request a copy of any non-exempt public record. Moreover, the FOIA pertains only to the availability of information and does not in any way protect or limit

* 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 public library districts in Illinois as well as other local government units.

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the use of information received. Zientana v. Long Creek Township, 211 111.App3d 226 (4th Dist. 1991).

However, if a request for records is accompanied by a request for a waiver or reduction of fees for the production of the records, the specific purpose must be stated and an indication given of why such waiver or reduction of fees is in the public interest.

Q: Can a library establish its own rules and regulations regarding the provision of records requested under the FOIA?

A: A library may adopt rules and regulations, in conformity with the FOIA, setting forth the times and places where records will be made available and the persons from whom such records may be obtained. We recommend that such rules and regulations clarify that records prepared or received prior to July 1, 1984, include the actual cost of retrieval and review of records in addition to the cost of reproducing and certifying them. Furthermore, because the FOIA does not provide a time limit within which a notice of appeal from any denial of records must be mailed to the board president, such rules and regulations might provide that notice of appeal from a denial must be mailed to the board president within 14 days after notification of a denial.

Note, however, that any adopted rules must conform with the FOIA. Therefore, a library cannot create new exceptions to disclosure not included in the statute, or change timelines or inflated fees. Rules may only indicate how a library will conform with the FOIA's requirements, not whether the library will do so.

Q: Does the FOIA require a library to create any records it does not already keep or have?

A: No; however Section 4 of the FOIA requires all public bodies to prepare, prominently display at each of its offices, make available for public inspection and copying, and mail out if requested, each of the following two directions:

A. A brief description of the public body including (1) a short summary of its purpose, (2) a block diagram of its functional subdivisions (3) the total amount of its operating budget, (4) the number and location of all of its separate offices, (5) the approximate number of full-time and part-time employees, and (6) the identification and membership of all boards, commissions and committees.

B. A brief description of how and from whom (title and address of employees) public records may be requested and any fees permitted to be charged to the public under Section 6 of the Act.

Most of the information required in paragraph A can probably be obtained from a financial statement contained in a recent bond prospectus, if the library has one.

In addition, public bodies must list (catalog) all types or categories of records under their control, which were prepared or received after July 1, 1984. Records prepared or received prior to July 1, 1984, need not be listed. However, once such a list has been prepared, it will in all likelihood, also cover all records under public body's control prior to July 1, 1984. This list of records must be made available to the public for inspection and copying, be "reasonably" current, and be "reasonably" detailed in order to assist the public in obtaining access to public records.

In the event the library has stored its records in the computer, it must provide the public with a description of how the records may be obtained in a form comprehensible to persons lacking knowledge of computer language or print formats. The definition of "public records" includes computer tapes within its scope, and computer tapes must be made available to the public. AFSCME v. County of Cook, 136 111.2d 334 (1990).

Q: What records are exempt from disclosure under FOIA?

A: Section 7 of the FOIA contains a rather long list of exemptions (as well as exceptions to some of the exemptions). It is not our intent to include the entire list, but to highlight some of the more important exemptions, which include:

1. Information which, if disclosed, would constitute a "clearly unwarranted invasion of personal privacy," unless disclosure is consented to in writing by the individual whose privacy is being invaded. Section 7 further states that disclosure of information that "bears on the public duties" of public employees and officials shall not be considered an invasion of personal privacy. This section raises several questions that should be answered by a library's attorney before requested material is withheld or released. For example, when is such an invasion "clearly unwarranted?" Also, in light of the intent of the FOIA expressed in Section 1, if the

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disclosure would not "clearly" be an invasion of privacy, would the FOIA require disclosure? In addition, when would an invasion of personal privacy be "warranted?"

A question also arises regarding what information may "bear on" the public duties of library officials and employees. If the FOIA is to be construed liberally as it indicated, might not almost all information regarding such officials and employees have some "bearing on" their public duties and thus be required to be disclosed, despite the Act's avowed goal to avoid invasions of privacy? This question and any other question regarding interpretation of the words used in these statutory exemptions should be brought to the library's attorney for answers.

2. Personnel files and personal information on employees, appointed or elected officials or applicants for those positions. A case involving a union's request to the Teachers' Retirement System for the names, addresses, home telephone numbers and number of years in the system of all the system's enrollees found that information exempt from disclosure. Healy v. Teachers' Retirement System, 200 111.App.3d 240 (1990), appeal denied, 135 111.2d 556 (1990).

3. Investigatory records complied for local administrative law enforcement purposes or for internal matters, but only under certain specified circumstances. However, such records must be disclosed unless certain specifically listed criteria are met.

4. Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed or policies or actions are formulated. However, a specific record or relevant portion thereof is not exempt when the record is publicly cited and identified by the head of the pubic body.

5. Proposal and bids for any contract, grant or agreement. Information prepared by or for the body in preparation of a bid solicitation is exempt until and award or final selection is made.

6. Minutes of meetings allowed is to be kept confidential under the Illinois Open Meetings Act.

7. Certain limited communications with the attorney for the library (seek advice about what may or may not be included), as well as materials prepared for a criminal, civil or administrative proceeding upon the request of the attorney as well as materials prepared for an internal audit.

8. Certain administrative or technical information associated with automated data processing. (See Subsection (p) of Section 7).

9. Documents or materials related to collective bargaining matters, but not including the final contact or agreement.

10. Records regarding real estate (purchases and sales) negotiations up until the time the negotiations are concluded. (See Section 7(s) regarding eminent domain matters.) See, Osran v. Bus, 226 111.App.3d 704 (1992).

11. Certain information related to an intergovernmental risk management association, self-insurance pool or jointly self-administered heath and accident cooperative or pool.

12. Information related solely to the internal personnel rules and practices of a public body.

13. Insurance or self insurance (including any intergovernmental risk management association or self insurance pool) claims, loss or risk management information, records, data, advice or communications.

Conclusion:

Our next column will complete Freedom of Information Act issues and move on to general issues arising under the Open Meetings Act.

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