The Appellate Court recently ruled in favor of a public body in a FOIA case that involved records and data that the public body did not maintain or keep. Chicago Recycling Coalition v. City of Chicago Department of Streets and Sanitation.

The Coalition filed a FOIA request with the City seeking a number of records, including third-party hauler reports submitted to the City as required by a City ordinance and residual rate and contamination data regarding non-recyclable materials collected from receptacles. The City provided the Coalition with copies of third party hauler reports, as well as other data submitted by third party haulers relating to rate and contamination data. The Coalition filed a lawsuit claiming that the City violated FOIA by not turning over all third-party hauler reports and by not providing rate and contamination data relating to City services. The City argued that it had searched its records and did not have reports from all of its third party haulers (some of the third party haulers had not submitted reports to the City as required by the Ordinance) and that it did not create, keep, or maintain rate and contamination data for services provided directly by City employees. The circuit court ultimately ruled in the City’s favor, and the Coalition appealed.

On appeal, the Appellate Court upheld the ruling in favor of the City, finding no violation of FOIA.

First, the Court held that the City was only obligated to turn over records it actually had in its possession, and that it had no obligation to reach out to the third-party haulers to have them create reports to submit to the City. Although the Court acknowledged that the City’s ordinance required the haulers to file these reports, FOIA was not the mechanism to enforce that ordinance nor did the City’s ordinance provide a basis for defining a public body’s obligations under FOIA. The Court concluded that since “FOIA does not obligate a public body to create a new record, it also does not obligate a public body to compel a nonpublic, third-party entity to create and submit a record, even if the submission of such record is mandated by law.”

As to the residual rate and contamination data, the Court acknowledged that the City had submitted an affidavit of a City official certifying that the City does not create, maintain, or keep this data where services are provided by City employees rather than third-party haulers. As a result, the Court found no violation of FOIA in the City’s denial of this data, holding that “an agency cannot improperly withhold records that it does not maintain.”