OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEV omen" November 13. 2017 Via electmnic mail Via mail Ms. Christina McClemon Associate General Counsel. FOIA Officer Office ofthe Governor, State James 11 Thompson Center 100 West Randolph Street, Suite 16-100 Chicago, Illinois 60601 RE: FOIA Requests for Review - 2017 PAC 49845; 2017 PAC 49984 Dear Mr. Haji-Sheikh and Ms. McClemnn: This determination is issued pursuant to section 95(1) of the Freedom of Information Act (FOIA) (S ILCS 140/9150) (West 2016)). For the reasons that follow, the Public Access Bureau concludes that the Office of the Governor (Govemor's Office) violated the requirements ofFOlA by failing to provide timely responses 10 Mr. Michael Haji-Sheikh's FOIA requests. On September 4. 2017, Mr. Haji-Sheikh submitted a FOIA request to the Govemor's Office seeking all communications conceming Dr, Doug Baker and the investigation by the Office of the Executive Inspector General between Beth Purvis or Sam Buck and any one of eight listed individuals. Mr, Haji-Sheikh submitted a second FOIA request to the Governor's Office Ihe same day seeking a table listing all e-mails to or from Sam Buck between July 1. 2016, and August 1, 2017. On September 12, 2017, the Governor's Office extended the time for response to both oer, Haji-Shcikh's September 4, 2017' FOIA requests by five business days pursuant to section 3(e)(vi) (5 ILCS (West 2016)). On September 28, 2017, the Public Access Bureau received a Request for Review from Mr, Haji-Sheikh alleging that the Govemor's Olfice had not responded to his FOIA request for communications between 51m, 52m - minim-1090 - (217115572771 - 121717824040 100 West Randolph smut. "11:11:15.60601 (smut-3000 - Trv- (sizuimm - ru: (312)311-3306 1001 Fm Mun. Cubuudalz. 52901-10131 my 4015) swam-rm (515132976016 Mr. Michael Haji -Sheikh Ms. Christina McClernon November 13, 2017 Page 2 Ms. Purvis, Mr. Buck, and the eight individuals. On October 8, 2017, Mr. Haji -Sheikh submitted a Request for Review to the Public Access Bureau alleging that the Governor's Office did not respond to his second FOIA request for a table of Mr. Buck' s e- mails. On October 3, 2017, this office sent copies of the Requests for Review to the Governor' s Office and asked it to ( 1) provide a summary of its receipt and handling of Mr. Haji Sheikh' s FOIA requests, ( 2) to promptly respond to the requests if it had not yet done so. The Public Access Bureau did not receive a response from the Governor' s Office. On October 26, 2017 and October 27, 2017, this office sent the Governor' s Office additional letters requesting that it respond to Mr. Haji -Sheikh' s Requests for Review. The Public Access Bureau did not receive a response. On November 3, 2017, an Assistant Attorney General in the Public Access Bureau sent an e- mail to the FOIA Officer for the Governor' s Office and another member of the Governor' s Office' s legal staff seeking responses to Mr. Haji -Sheikh' s Requests for Review. To date, this office has not received a response or any information indicating that the Governor' s Office has provided records or otherwise responded to Mr. Haji -Sheikh' s FOIA requests. DETERMINATION It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with this Act." 5 ILCS 140/ 1 West 2016). Under section 1. 2 of FOIA ( 5 ILCS 140/ 1. 2 ( West 2016)), "[ a] ll records in the custody or possession of a public body are presumed to be open to inspection or copying." Section 3( a) of FOIA (5 ILCS 140/3( a) ( West 2016)) provides that "[ e] ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8. 5 of this Act." The procedures for responding to a FOIA request are clear. Section 3( d) of FOIA 5 ILCS 140/ 3( d) ( West 2016)) provides that " each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection ( e) of this Section." A public body may extend the time for response under section 3( e) of FOIA ( 5 ILCS 140/ 3( e) ( West 2016)) " for not more than 5 business days from the original due date" for any of seven listed reasons in the section. Section 3( f) of FOIA (5 ILCS 140/ 3( 1) ( West 2016)) further provides that: When additional time is required for any of the above reasons, the public body shall, within 5 business days after receipt of the request, notify the person making the request of the reasons for extension and the date by which the response will be forthcoming. Failure to respond within the time permitted for Mr. Michael Haji -Sheikh Ms. Christina McClernon November 13, 2017 Page 3 extension shall be considered a denial of the request. A public body that fails to respond to a request within the time permitted for extension but thereafter provides the requester with copies of the requested public records may not impose a fee for those copies. A public body that requests an extension and subsequently fails to respond to the request may not treat the request as unduly burdensome under subsection ( g). It is undisputed that the Governor' s Office extended the time for response to Mr. Haji -Sheikh' s FOIA requests by five business days to September 19, 2017, and did not respond within the time permitted for extension. Nor has this office received a copy of the Governor' s Office' s responses to Mr. Haji -Sheikh or any other information indicating or documenting that it provided Mr. Haji -Sheikh with the records specified in his requests. The Governor' s Office' s failure to respond within the time permitted by the extensions constitutes a denial of the requests, and a violation of section 3( 0 of FOIA. In accordance with the conclusions expressed in this determination, this office requests that the Governor' s Office take immediate and appropriate action to provide Mr. Haji - Sheikh with the responsive records that it possesses, subject only to permissible redactions under section 7 of FOIA ( 5 ILCS 140/ 7 ( West 2016), as amended by Public Acts 100- 026, effective August 4, 2017; 100- 201, effective August 18, 2017). If any records are redacted or withheld, the Governor' s Office must provide written notices of denial that include " a detailed factual basis for the application of any exemption claimed[.]" 5 ILCS 140/ 9( a) ( West 2016). This office reminds the Governor' s Office that section 3( t) of FOIA provides that a] public body that fails to respond to a request within the time permitted for extension but thereafter provides the requester with copies of the requested public records may not impose a fee for those copies." Section 3( 0 also precludes a public body that requests an extension and fails to issue a response within the time permitted for extension from denying a request as unduly burdensome. The Governor' s Office should be mindful of its obligation to issue timely responses to FOIA requests by all persons in accordance with section 3( 0 of FOIA. Mr. Haji -Sheikh submitted his FOIA requests on September 4, 2017, which was the Labor Day holiday. The Public Access Bureau has consistently held that when a public body observes a legal holiday under section 17( a) of the Promissory Note and Bank Holiday Act ( 205 ILCS 630/ 17( a) ( West 2016)), that day is not counted as a business day for purposes of determining when a public body' s response to a FOIA request is due. See, e.g., III. Att'y Gen. PAC Req. Rev. Ltr. 47756, issued June 20, 2017, at 5. Labor Day is not counted as a business day because it is a legal holiday that was observed by the State of Illinois; thus, September 19, 2017, was the 10th business day after September 5, 2017. Mr. Michael Haji-Sheikh Ms. Christina McCiemon November 13, 2017 Page 4 The Public Access Counselor has determined that resolution of these matters do not require the issuance oft: binding opinian This letter shall serve to close these matters. If you have any questions, you may Contact me at (217) 782-9054, mhaflman@alg,stateeilius, or the Springfield address ttsted on the first pagc ofthis tenet. Vety truly yours, MA TMAN Assistant Attorney General Pubiic Access Bureau 49845 49934 {Ed no pb response sa