An Illinois Appellate Court recently issued an opinion on the timeliness of FOIA responses where a request is quarantined by a public body’s email software service. Balzer v. Northeast Illinois Regional Commuter Railroad Corporation.

On July 31st, a requester
emailed a FOIA request to the public body’s FOIA officer seeking various contract records. However, the FOIA officer did not learn about
the FOIA request until the next business day because the
public body’s third-party email software service (Mimecast) flagged the email
as suspicious and quarantined the FOIA request in its security queue. On August
1st, Mimecast sent the public body’s FOIA account a notification that the
FOIA request was held in queue, and the public body’s FOIA officer received the
FOIA request that day. The public body reached out to the requester on August 1st to ask the requester to narrow the request because it was unduly burdensome. The requester refused to narrow the request, and the public body formally denied the FOIA
request as unduly burdensome pursuant to Section 3(g) of FOIA on August 8th, the sixth business day after the request was sent, but only the fifth
business day after the FOIA officer became aware of it.

The requester sued the
public body, claiming the public body’s response was untimely. The circuit
court ruled in favor of the public body, finding that FOIA’s five-business-day
response window only begins when the public body actually receives and
acknowledges receipt, which according to the circuit court meant that the response was due on August 8th.

However, on appeal, the Appellate Court ruled in favor of the requester, finding that the public body
received the request on July 31st (the day that Mimecast received the request and quarantined it), so the public body’s August 8th response was untimely under FOIA.

The Appellate Court acknowledged that FOIA does not
define when a FOIA request is deemed received by a public body. However, the Court found that the request at issue was “received” by the public
body when Mimecast received it on July 31st, regardless of whether Mimecast
or the public body were aware of it, and regardless of whether Mimecast was
operated by a third-party rather than by the public body. The Appellate Court held that FOIA does not “toll” a public body’s five-business-day response obligation because a system
that the public body itself created or adopted caused an internal delay in a
request reaching its FOIA officer, so the public body’s August 8th denial of
the request was untimely.

The Appellate Court also held that the public body waived its ability to
deny the request as unduly burdensome pursuant to Section 3(g) of FOIA because its response was untimely.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink