New FOIA Amendments Affect Public Bodies’ Responses to Requests
Effective immediately, the General Assembly overrode the Governor’s veto to approve new amendments to the FOIA, which are designed to reduce the burden on public bodies. Public Act 98-1129 provides the following: 1) a definition of a “voluminous request”; 2) additional time to respond to a “voluminous request”; 3) the ability to charge fees for a “voluminous request”; 4) the ability to charge fees for examining records for redactions for a commercial request; and 5) that public bodies are not required to provide copies of records that are available on a public body’s website.
The amendments define a “voluminous request” as a request that 1) includes more than five individual requests for more than five different categories of records or a combination of individual requests that total requests for more than five different categories of records in a period of 20 business days; or 2) requires the compilation of more than 500 letter or legal-sized pages of public records unless a single requested record exceeds 500 pages.
Requests made by news media and non-profit, scientific, or academic organizations cannot be considered “voluminous requests” if the principal purpose of the request is: 1) to access and disseminate information concerning news and current or passing events; 2) for articles of opinion or features of interest to the public; or 3) for the purpose of academic, scientific, or public research or education.
How to Respond to a “Voluminous Request”
Within five business days after receipt of a “voluminous request,” a public body must notify the requester of the following:
- That the public body is treating the request as a “voluminous request”;
- The reasons why the public body is treating the request as a “voluminous request”;
- That the requester must respond to the public body within ten business days after the public body’s response was sent and specify whether the requester would like to amend the request in such a way that the public body will no longer treat the request as a “voluminous request”;
- That if the requester does not respond within ten business days or if the request continues to be a “voluminous request” following the requester’s response, the public body will respond to the request and assess any fees the public body charges pursuant to the FOIA;
- The public body has five business days after receipt of the requester’s response or expiration of the time for the requester’s reply, whichever is earlier, to respond to the request;
- Of the requester’s right to review of the determination by the PAC as well as the address and phone number for the PAC; and
- That if the requester fails to accept or collect the responsive records, the public body may still charge the requester for its response.
- The public body must provide the requester ten business days from the date the public body’s response is sent to specify whether he/she would like to amend the request in such a way that the public body will no longer treat the request as a “voluminous request.”
- If the request continues to be voluminous following the requester’s response, the public body must respond within five business days after receiving the requester’s reply or expiration of the time for the requester’s reply, which is ten days. The response must 1) include an estimate of the fees to be charged which the public body may require the person to pay in full before copying the requested documents; 2) deny the request pursuant to an exemption; 3) notify the requester that the request is unduly burdensome and extend an opportunity to the requester to attempt to reduce the request to manageable proportions; or 4) provide the records requested.
- The time for response by the public body may be extended for not more than ten business days from the final day for the requester to respond to the public body’s notification.
- The person making a request and the public body may agree in writing to extend the time for compliance for a period to be determined by the parties. If the requester and public body agree to extend the period, a failure by the public body to comply with any previous deadlines will not be treated as a denial of the request for records.
Fees for “Voluminous Requests”
If a “voluminous request” is for electronic records and those records are not in a PDF format, the public body may charge the following rates:
- Up to $20 for not more than 2 megabytes of data
- Up to $40 for more than 2 but not more than 4 megabytes of data
- Up to $100 for more than 4 megabytes of data
If a “voluminous request” is for electronic records that are in a PDF format, the public body may charge the following rates:
- Up to $20 for not more than 80 megabytes of data
- Up to $40 for more than 80 megabytes but not more than 160 megabytes of data
- Up to $100 for more than 160 megabytes of data
If records consist of both PDF and non-PDF documents, the public body can separate the fees and charge under both schedules. If a public body charges fees, it must provide the requester with an accounting of all fees, costs, and personnel hours in connection with the request for public records.
Fees for Commercial Requests
Prior to the amendment, a public body could charge up to $10 for each hour spent by personnel in searching for and retrieving requested records for commercial requests. The public body cannot assess fees for the first eight hours spent by personnel in searching for or retrieving a requested record. The amendment now provides that a $10 fee may also be charged for the time a public body spends examining records for redactions pursuant to a request. The amendment, however, did not require that the first eight hours spent examining records for redactions be without charge. Therefore, it appears that a public body could charge $10 an hour for each hour the public body spends examining records for redactions for commercial requests.
A public body is not required to copy a public record that is published on the public body’s website, but the public body must notify the requester that the public record is available online and direct the requester to the website where the record can be reasonably accessed. If a requester is unable to reasonably access the record online after being directed to the website, the requester may re-submit the request for records.