June 3, 2025
The Circuit Court for McHenry County, Illinois recently entered what may be a first-of-its-kind opinion, in which the Court barred a person from submitting Freedom of Information Act (FOIA) requests to McHenry County without prior approval from the Court.
In People of the State of Illinois v. Geng (Case No. 25 CH 5), the McHenry County State’s Attorney filed a complaint for permanent injunctive relief to prevent the requester from filing additional FOIA requests, after the requester submitted approximately 175 FOIA requests to various county officials, many of which, according to the State’s Attorney, were “frivolous, vexatious, and intended solely to harass and intimidate public officials and employees.” The FOIA requests began when the requester first disagreed with the County’s COVID policies. After being charged later (and independently) with driving on a suspended license, the requester intensified the number of submitted FOIA requests. The requests included demands for such records as the registrations for all judges, clerks, and attorneys with the British Accredited Registry (an accreditation body with no jurisdiction in the United States) and the results of psychiatric examinations for various judges and public officials.
The requester did not appear in court or respond in any way to the lawsuit. Therefore, the Court entered a default judgment, granting the State’s Attorney’s request for a permanent injunction to prevent the requester from filing additional FOIA requests without leave from the Court. The Court found that the County “has the right to be free from Freedom of Information Act requests that are frivolous, vexat[ious] [SIC], often nonsensical, and intended solely to harass and disrupt McHenry County department heads, elected officials, and employees from carrying out the work of the public body.”
Interestingly, in making its ruling, the Court did not cite to any provision of FOIA. FOIA allows public bodies to deny individual requests that are “unduly burdensome” and designate requesters that submit a multitude of FOIA requests to a public body over qualifying time periods “recurrent requesters,” thereby allowing public bodies additional time to respond. But FOIA contains no provision that disqualifies a requester from filing FOIA requests with a public body or permits a public body to ignore requests simply because a requester previously filed a large number of FOIA requests or because those requests were frivolous and intended to be disruptive. One is left to wonder whether the Court would have been less inclined to enter the permanent injunction had the requester appeared and mounted any sort of defense.
While the McHenry County Circuit Court may have created a new way for public bodies to prevent vexatious FOIA requesters from submitting FOIA requests, litigation is a costly remedy, and one that might be useful only in the most extreme of circumstances
What is evident from the McHenry case—the relief granted notwithstanding—and what nearly every FOIA officer in Illinois already knows, is that FOIA is no longer efficiently serving its aims. Public bodies are compelled to dedicate more and more resources to respond to an ever-growing number of FOIA requests, many of which are overly broad and do little to achieve transparency or to hold public officials and employees accountable.
Most of the public bodies Elrod Friedman represents have experienced double-digit growth year-over-year in the number of FOIA requests they receive. This ever-growing burden has also saddled the Attorney General’s Public Access Counselor (PAC) with the responsibility to adjudicate more and more FOIA disputes. Based on the PAC’s own annual reports, it too has experienced double-digit growth year-over-year in the number of challenges filed by requesters. This is why it is not uncommon, and understandable, for the PAC to take years to issue rulings.
How did this happen? The answer in large part is that FOIA has not been modernized to keep pace with the advent of electronic records.
When FOIA was enacted in Illinois, public bodies could much more easily locate records—FOIA officers just had to open the file drawer and find the records at issue. Emails and other electronic records did not exist or were not widely used. Further, there were natural deterrents built into FOIA that disincentivized vexatious FOIA requesters or those who were merely curious, but had no significant interest in obtaining public records: requesters had to mail in or physically deliver their requests to the public body. FOIA once required most requesters to pay fees to obtain records. Public bodies could charge requesters $0.10 a page for paper copies for each page in excess of 50 pages. All of these controls have been almost totally eviscerated because FOIA requests can now be submitted online and the fees are not easily applied to electronic records.
While FOIA has been amended several times over the past two decades, few of those changes address the modern-day realities of electronic records. If anything, public bodies are under greater burden due to several new mandates to create and maintain more electronic records than ever, such as requiring all police officers to use body cameras. While there may be vital public interests served through these mandates, FOIA has not been amended to adjust for this burden.
Due to the advent and ubiquitous use of email and electronic record storage, public bodies have exponentially more records than they did thirty years ago. So it is far harder to locate records responsive to even well-crafted FOIA requests—to say nothing about the numerous FOIA requests that seek “any and all” records related to a specific topic.
Requesters are submitting more FOIA requests than ever because they can do so easily from their own computers and cellphones, and without having to spend any time or money to do so and without having to utilize standard request forms. And requesters no longer must pay to receive records because they have a right to receive them electronically, so fees for paper copies cannot be charged.
Worst of all, because public bodies face the ever-increasing burden of FOIA, the public is losing the very transparency and accountability that FOIA was meant to achieve. When FOIA officers are overwhelmed by FOIA, they cannot be expected to accurately and efficiently respond timely to requests in a manner that advances FOIA’s goals.
So how can FOIA be fixed?
One simple amendment: FOIA should be amended to allow public bodies to charge fees to FOIA requesters that submit FOIA requests. Of course, the fee should not be so high that only those who can afford the fees are entitled to transparency. But allowing even a small fee would accomplish many aims:
- A fee would deter a vexatious requester from submitting a multitude of FOIA requests with the intent to disrupt government.
- A fee would prevent people who do not have a sufficient interest in the records from submitting requests (many a curious neighbor may not submit a request if they know their interest is only fleeting).
- If fees were charged based on the number of responsive pages, requesters would be more targeted in their requests. They would limit their requests to specific records instead of seeking “any and all records relating to…” a particular matter.
- A fee would allow public bodies to fund better software to search for records and hire more FOIA officers to meet the public’s imperative that government remain transparent. To this end, the General Assembly could mandate that all fees obtained from FOIA requesters be used exclusively for the processing FOIA requests.
The idea of allowing public bodies to charge fees for FOIA requests is far from novel. In fact, the General Assembly allows public bodies to charge fees for certain types of records. For example, a law enforcement agency is permitted to charge requesters seeking traffic crash reports $5.00 per report. But the law does not otherwise provide public bodies the authority to charge similar fees for other types of records.
The time for this sort of reform is well-past due.