We don’t see a lot of FOIA cases out of the appellate courts but two were issued yesterday that offer some guidance to public bodies on challenges to FOIA denials.
In Barner v. Fairburn, 2019 IL App (3d) 180742, Barner sued the Canton Police Department after the Department denied his FOIA request for a copy of dispatch transcripts for a particular time-period on May 12, 2015, as well as other police records during that time period. The Department provided a copy of an incident report but not the dispatch recording, stating in its response that the recording was no longer available because the dispatch system only keeps recordings for a few months. Barner sued, claiming the Department violated FOIA because it did not provide the requested records. He also claimed that the FOIA response was insufficient because it did not provide specific reasons for the denial of his request. The circuit court dismissed the case, and Barner appealed. 
On appeal, the Department argued that the dismissal was proper because FOIA does not compel a public body to turn over information the public body does not retain. The Department supported its argument with an affidavit that the FOIA Officer searched for the requested records and was unable to provide the recording because it no longer existed. 
The appellate court agreed with the Department that it did not violate FOIA by failing to turn over records that did not exist at the time of the request, citing to previous cases holding that “The nonexistence of requested documents is a cognizable affirmative defense to a complaint grounded in FOIA.” The court also rejected Barner’s argument that the Department’s response was inadequate because it did not provide a “detailed factual basis” for the denial, holding that this particular requirement of FOIA only applies when the public body is claiming an exemption for a denial.