By Benjamin Schuster and Mark Burkland
In normal times, a public body’s compliance with the Freedom of Information Act (“FOIA”) can be difficult. In this challenging time of the COVID-19 outbreak, compliance may be nearly impossible. This is especially true as public employees are asked to work from home or are under quarantine and may not have access to the records being requested.
We offer the following practical strategies to assist public bodies in complying with their FOIA obligations during the COVID-19 emergency. Our strategies are consistent with the guidance issued by the Illinois Attorney General yesterday, March 17.
Public Bodies Can Ask Requesters to Extend the FOIA Deadline
A public body is required to respond to most FOIA requests within five business days after it receives the request, and the public body can extend the deadline by five business days if it needs more time to respond. If a request is for a commercial purpose, the public body has up to 21 working days to respond to the request. (See our thoughts below on how a COVID-related closure may affect this 21-day deadline.)
If compliance with these deadlines is not practical during the COVID-19 emergency, a public body can ask a FOIA requester to agree on an extension of the deadline. A FOIA officer can call or email the requester and ask if the requester will provide the public more time to respond to the FOIA request in light of the COVID-19 emergency. We anticipate that most FOIA requesters will be reasonable in allowing extra time to respond.
Requests that Cannot be Processed During the COVID-19 Emergency May be Unduly Burdensome
If a requester is unwilling to give the public body additional time to respond to a FOIA request, then the public body may consider denying the FOIA request as unduly burdensome. The Attorney General has recognized this option under the current emergency circumstances. We recommend that this approach be used only as a last resort, based on the severity of the circumstances. We note, however, that Section 3(g) of FOIA supports that approach:
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.
Responding to a FOIA request made under normal circumstances may be easy for a public body, but that same request may pose an undue burden on the public body under extraordinary circumstances such as the COVID-19 emergency. The burden is real if there is no staff available to dig through the requested records or if the search for records would put a staff member in harm’s way. Public bodies should consider denying a request pursuant to Section 3(g) of FOIA under such circumstances.
Public bodies should remember, however, that FOIA requires public bodies to first offer a FOIA requester the opportunity to confer with the public body before denying the request as unduly burdensome.
FOIA’s Statutory Deadlines Toll When A Public Body Is Closed
Finally, in the event a public body shuts down its general business operations in response to the COVID-19 emergency, the deadline to respond to FOIA requests tolls because the days of closure do not constitute either “business” or “working days,” just like a recognized holiday does not count as business or as a day. Public bodies are not compelled to respond to FOIA requests during the period in which the public body is closed.
It should be noted, however, that the fact a public body trims its staff down to its essential employees, or closes its facilities to the public, probably does not mean that a public body is “closed” for purposes of calculating FOIA deadlines.
Elrod Friedman LLP recognizes that the COVID-19 emergency is changing rapidly, and we will continue to monitor the impacts on local government as things change. Please contact any of our attorneys with any questions or concerns regarding your community’s obligations to respond to FOIA requests, or any other questions regarding the COVID-19 emergency.