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“Reasonable Access” to Online Records Under FOIA

April 6th, 2016

Garlick v. Naperville Township, 2016 IL App (2d) 150381-U

In a recent Rule 23 Opinion, the Second District Appellate Court has for the first time, interpreted the recently enacted portion of the FOIA pertaining to records that may be found online.

With a change effective in December 2014, the FOIA provides “a public body is not required to copy a public record that is published on the public body’s website.  The public body shall notify the requestor that the public record is available online and direct the requestor to the website where the record can be reasonably accessed.”  5 ILCS 140/8.5

Pursuant to the FOIA, Garlick requested Naperville Township provide him property details and assessment data for the entire township including a database in the format maintained by the township and all other subdirectory material on each parcel.  The township denied his request under Section 8.5 and directed the requestor to the township’s website which allowed a user to individually query each parcel by PIN number or address.  Users are unable to query more than one parcel at a time.

Based on this response, the requestor filed a lawsuit in DuPage County alleging the township violated the FOIA because compiling the amount of data he was requesting one property at a time was not feasible.  The township responded that because the information was available online, it was not required to produce any material in response to the request.  Rather, under Section 8.5 all the public body is required to do is point the requestor to the website where they can find the requested information.

The trial court agreed with the township and granted its motion to dismiss.  The Appellate Court reversed.  While the Appellate Court did not per se disapprove of the township’s response, it found the case resolves around the requirement the record “be reasonably accessed”.  The Court found whether the requested data can be reasonably accessed is a question of fact more properly the subject of a summary judgment motion or trial.  As such, the trial court erred in dismissing the complaint at the pleading stage.  Since the requestor’s complaint pleads the response of the township does not provide reasonable access, the case should be allowed to go forward to develop facts on access to the data.

Since this is a case of first impression and an unpublished opinion, public bodies should be wary going forward in denial of FOIA requests under Section 8.5 inasmuch as clear rules on how to apply this new portion of the FOIA have yet to be developed.