OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATYORNEY GENERAL January 10. 2018 Via eleclranic mail Via electronic mail Ms. Christina McClemon Associate General Counsel FOIA Officer Office of the Governor West Randolph Street. Suite 16-100 Chicago, Illinois 60601 christinamcclemon@illinuis.gov RE: FOIA Request for Reviewr 2017 PAC 49522 Dear Mr. Hajiesheikh and Ms. MCClemDn: This deiennination is issued pursuant to section 9.5(f) afthe Freedom of lnfurmation Act (FOIA) (5 140/956) (West 2016)). For the reasuns that follow, the Public Access Bureau concludes that the response by the Office of the Governor (Governor's Office) to Mr. Michael Haji-Sheikh's July 26, ml 7, FOIA request violated FOIA. on that date, Mr. Haji-Sheikh submitted a FOIA request to the Governor's Office seeking emails between: (1) any member ofthe Governor's staff and Dennis Barsema from January l, 2016 to the present; and (2) any member otthe Northern University Board of Trustees and the Govcmor's staiiand the Govemer over outgoing President Douglas Baker since January 1, 2015. On August 2, 2017, the Govemor-s Office responded by extending its time to respond to Mr. Haji-Sheikh's request by five business days. citing section 3(e)(iv) of FOIA (5 (West 2016)) On August 9. 2017, the Governors omee denied Mr. IIaji-Shelkh's request as unduly burdensome pursuant to section 3(g) oiFOlA (5 140/3(g) (West 20m) and invited Mr Haji-Sheikh to narrow his request. Mr. Haji-Sheikh submitted narrowed requests on August 9, and September so 20l7. To date, according to the available information, the Governor's Office has not provided Mr. Haj i-Sheikh with records responsive to ?105an Swami - (217)732~1090 rim tilitissam Fax too - (SIDEWJWD - mum-3w - Fax laminates moi Essr Mnin tilinots 629m - lblit 519-5400 (slit 519-6401 'Flax islit mule Mr. Michael Haji -Sheikh Ms. Christina McClernon January 10, 2018 Page 2 his request. 1 In this Request for Review, Mr. Haji -Sheikh challenged the Governor' s Office' s assertion that his original request was unduly burdensome. He stated that he made a similar FOIA request to Northern Illinois University (University) concerning communications about Douglas Baker Office would and " need NIU gives me a to substantively few emails review 1, 428 and the Governor['] s office says * * * ['] the 2 responsive emails[.']" On September 25, 2017, this office sent a copy of the Request for Review to the Governor's Office and asked it to provide a detailed written explanation of the factual and legal bases for the assertion that fulfilling Mr. Haji -Sheikh' s request would cause an undue burden on its operations. This office also asked the Governor' s Office to explain how it determined that it possessed 1, 428 e- mails responsive to Mr. Haji -Sheikh' s request, including a summary of the searches that it performed to locate responsive records, any locations or databases that were searched and any individuals who were contacted as part of the search. The Governor' s Office did not respond to this office' s September 25, 2017, correspondence. On October 12, 2017, this office forwarded a second copy of the Request for Review to the Governor' s Office and asked the Governor's Office to respond as soon as possible to this office' s September 25, 2017, letter of inquiry, noting that section 9. 5( c) of FOIA ( 5 ILCS 140/ 9. 5( c) ( West 2016)) requires a public body to fully cooperate with the Public Access Counselor within seven business days of receiving a Request for Review. Again, the Governor' s Office did not respond. On November 7, 2017, an Assistant Attorney General in the Public Access Bureau sent an e- mail to the Governor' s Office' s FOIA Officer requesting an update on the status of the Governor' s Office' s response to this office' s September 25, 2017, correspondence. To date, the Governor' s Office has not responded to this office' s inquiries. DETERMINATION Section 3( g) of FOIA provides: Requests calling for all records falling within a category shall be complied with unless compliance with the request would be unduly burdensome for the complying public body and there is no way to narrow the request and the burden on the public body outweighs the public interest in the information. Before invoking Mr. Haji -Sheikh filed separate Requests for Review concerning his two narrowed requests. This office found that the Governor's Office violated FOIA by failing to respond to Mr. Haji -Sheikh within the time permitted by section 3( 0 of FOIA ( 5 ILCS 140/ 3( 0 ( West 2016)). See I11. Att' y Gen. PAC Rev. Ltr. 49845, 49984, issued November 13, 2017. 2E -mail from Michael Haji -Sheikh to the Public Access [ Bureau, Office of the Attorney General] September 4, 2017). Mr. Michael Haji -Sheikh Ms. Christina McClernon January 10, 2018 Page 3 this exemption, the public body shall extend to the person making the request an opportunity to confer with it in an attempt to reduce the request to manageable proportions. If any public body responds to a categorical request by stating that compliance would unduly burden its operation and the conditions described above are met, it shall do so in writing, specifying the reasons why it would be unduly burdensome and the extent to which compliance will so burden the operations of the public body. Such a response shall be treated as a denial of the request for information. Illinois courts have employed a balancing test to determine whether the public interest in disclosure of the requested records outweighs the burden of compliance on the public body under section 3( g). In National Assn of Criminal Defense Lawyers v. Chicago Police Department, 399 I11. App. 3d 1, 15 ( 1st Dist. 2010), the Appellate Court explained that "[ i] n order for the exemption to apply, compliance must be unduly burdensome, there must be no way to narrow the request, and the burden on the public body must outweigh the public interest in the information." The court in National Ass' n analyzed whether the production of records concerning a study on eyewitness identification procedures would pose an undue burden to the Chicago Police Department ( CPD). Counsel for CPD estimated that redacting the responsive records would take 150 hours, equating to 20 personnel days. National Assn, 399 I11. App. 3d at 14. The court found that there was a significant public interest in disclosing records concerning examining eyewitness identification procedures. National Ass' n, 399 Ill. App. 3d at 15. Moreover, the court found that the request was " specifically target[ ed]" and that " the information requested [ was] essential to a meaningful review of" the study on eyewitness identification procedures, distinguishing requests which necessitate extensive review of extraneous materials: A request that is overly broad and requires the public body to locate, review, redact and arrange for inspection of a vast quantity of material that is largely unnecessary to the appellants' purpose constitutes an undue burden." National Assn, 399 I11. App. 3d at 17, citing American Federation of Gov' t Employees, Local 2782 v. United States Dep' t of Commerce, 907 F. 2d 203, 208- 09 D. C. Cir. 1990). The court concluded that the burden of identifying and redacting the responsive records, although significant, did not outweigh the vital public interest in disclosure of the records. National Assn, 399 Ill. App. 3d at 17. In contrast, Shehadeh v. Madigan, 2013 IL App ( 4th) 120742, 996 N.E. 2d 1243 2013), concluded that the burden of compliance with a request outweighed the public interest in disclosure of the records. In that case, the requester sought any and all records that could be used for guidance on complying with FOIA. The Attorney General' s Office responded that compliance with the request as submitted would be unduly burdensome because its search identified 9, 200 potentially responsive files that would have to be reviewed manually to confirm whether or not the records were responsive to the request, and then those that were responsive Mr. Michael Haji -Sheikh Ms. Christina McClernon January 10, 2018 Page 4 would have to be reviewed again for permissible redactions. Shehadeh, 2013 IL App ( 4th) 120742, ¶ 5, 996 N.E. 2d at 1245. The court found the request to be " patently broad on its face, as it sought any publication or record that would or could be used by any public body to comply with Illinois' s FOIA provisions." ( Emphasis in original.) Shehadeh, 2013 IL App ( 4th) 120742, 28, 996 N.E. 2d at 1248. The court also found that the requester failed to identify a public interest that outweighed the burden of compliance on the Attorney General' s Office. Shehadeh, 2013 IL App ( 4th) 120742, ¶ 35, 996 N. E. 2d at 1249. Thus, the court concluded that the Attorney General' s Office did not violate FOIA by denying the request as unduly burdensome. Shehadeh, 2013 IL App ( 4th) 120742, ¶ 35, 996 N.E. 2d at 1249. The records requested by Mr. Haji -Sheikh concern communications between the Governor' s Office and the University Board of Trustees regarding former University President Douglas Baker. Former President Baker was a subject of a publicly released Office of the Executive Inspector General ( OEIG) report that found that he mismanaged the University by allowing the improper hiring of individuals into certain positions.' In light of the OEIG report, there is a significant public interest in disclosure of information regarding the Governor' s Office' s communications with University trustees regarding President Baker. The Governor' s Office indicated in its response to Mr. Haji -Sheikh that it identified 1, 428 responsive e- mails. As noted above, the Governor' s Office did not respond to our inquiry seeking an explanation for how it determined that it had 1, 428 potentially responsive records. Mr. Haji -Sheikh explained in his Request for Review that he submitted a similar FOIA request to the University and its search yielded significantly fewer responsive records. In the Request for Review concerning Mr. Haji -Sheikh' s FOIA request to the University, this office determined that the University conducted a reasonable search for records. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 49524, issued January 10, 2018. Without information from the Governor' s Office concerning its search for responsive records, this office is unable to determine whether the 1, 428 records to which it referred are potentially responsive and would have to be reviewed. Even assuming that the Governor' s Office does possess 1, 428 potentially responsive e- mails, the Governor' s Office did not describe the extent to which review of the e- mails would burden its operations, specifying neither the staffing, nor the time required for review. Although compliance with Mr. Haji -Sheikh's request may be a significant task, the Governor' s Office has not provided information from which this office could conclude that the burden of compliance outweighs the significant public interest in the disclosure of responsive records. See National Ass' n, 399 I11. App. 3d at 17 ( a request for records concerning a specific topic is not unduly burdensome when there is a compelling public interest in disclosure even if compliance with the request would require 20 personnel days of work by employees of the public body); Bowie v. 31n re: Douglas Baker et at, OEIG Case No. 14- 01383, available at https:// www. illinois. gov/ eec/ Documents/ 05. 25. 17% 20Baker% 20Cunningham% 2OLatham% 20and% 2oHooker% 20 Re I eased% 20Report. pdf. Mr. Michael Haji-Sheikh Ms. Christina McClemon January 10, 2018 Page 5 Evanslart Camm'y Dist, 65, 168 Ill. App. 3d 101, l12(lstDisI. 1988) defendants will have to expend valuable labor and computer time to comply with plaintiffs' request does not impose a burden on defendants outweighing the public interest in the see also 111. Att'y Gen. Pub. Acc. Opt Not 16-008, issued November 1, 2016, at 8 ("Compliance with any FOIA request entails an burden, but the issue is whelher the public interest in disclosure justifies the burden") (internal quotation omitted) Accordingly. this office concludes that the Govemor's omee improperly dcnicd Mr. l-lajivsheikh's July 26. 2017. request pursuant to section 3(g) of In accordance with the conclusions of this letter>> this office requests that the Governor's Office compile records responsive to Mr. HajirSheikh's request and furnish those responsive records to him, subject to any appropriate redactions under section 7 ofFOlA (5 ILCS 140/7 (West 2016), as amended by Public Acts 1004326. effective August 4, 2017, 100>> 20], effective August 18, 2017). The Public Access Counselor has determined that rcsolution of this matter does not require the issuance of a binding opinion This letter serves to close this matter. If you have any questions, please contact me at the Springfield address on the first page of this letter Dr at LHarIer@alg.sti1Ie.iltus. Very tmly yours, LAURA S. HARTER Assistant General Public Access Bureau 49522 f3g und burd improper sa