In 2023, a requester
submitted several FOIA requests to a city police department seeking law
enforcement records regarding himself. The city’s response letter denying the request stated that (1) the records were exempt under 7(1)(a) and (2) “NO RECORDS FOUND.” The requester then sued the city claiming it improperly withheld responsive records to his requests in violation of FOIA. The city filed a motion to dismiss which acknowledged that the city’s response should have only noted that the city had no responsive records rather than citing a FOIA exemption. The circuit court granted the city’s motion and dismissed the case finding that the city’s
search did not identify any responsive records to the requests, and, therefore,
the city cannot withhold records that do not exist. The requester appealed the
circuit court’s decision, alleging that (1) the circuit court improperly
dismissed his complaint, and (2) that the circuit court should have awarded
attorney’s fees to the requester.

In Turner
v. Vedra, the Illinois Appellate Court upheld the dismissal of the case. First, the Appellate Court determined that the non-existence of
responsive records is an affirmative defense to a FOIA complaint. In this case,
the Appellate Court determined that the city performed a reasonably diligent
search that did not identify any records responsive to the requests, and the
adequacy of the city’s search was supported by affidavits from the city’s FOIA
officer and records department supervisor. Because the requester failed to
allege any facts to indicate that records existed, or provide a
counter-affidavit to rebut the city’s good faith affidavits, the Appellate Court determined that the circuit court properly dismissed the requester’s
complaint.

Second, the Appellate Court
rejected the requester’s claim for attorneys fees because (1) the requester was
not a prevailing party in his FOIA litigation, and (2) the requester, as a pro
se litigant, is not entitled to an award of attorneys fees under FOIA.

Post Authored by Eugene Bolotnikov, Ancel Glink