American Federation of State, County & Municipal Employees v. County of Cook

555 N.E.2d 361, 136 Ill. 2d 334, 86 A.L.R. 4th 763, 144 Ill. Dec. 242, 1990 Ill. LEXIS 60

• Court: Illinois Supreme Court
• Decided: May 23, 1990
• Docket: 68677
• Status: Published

Opinions

JUSTICE RYAN

delivered the opinion of the court:

This is an appeal from a decision of the first district of the appellate court that reversed the ruling of the circuit court of Cook County. The circuit court determined that defendants, Cook County and George Dunne, as president of the county board, must furnish plaintiff, the American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME), with certain information requested pursuant to the Illinois Freedom of Information Act (Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq.) (Act), in the form of a computer tape, which plaintiff wanted, rather than a printout, which defendants furnished.

The appellate court reversed this ruling, holding that the furnisher of information need only provide the requested information in a reasonably accessible format, and that the computer printout sufficed. (182 Ill. App. 3d 941.) We granted plaintiff’s petition for leave to appeal (107 Ill. 2d R. 315). While we agree with the appellate court’s conclusion that the circuit court did not properly decide this case, we cannot concur with the appellate court’s reasoning.

On several occasions during October and November 1986, representatives of AFSCME made requests for information pursuant to the Act to Thomas P. Beck, Cook County comptroller. The requests were made using preprinted forms on which the requester typed the following sentence above the line requiring a specific identification of the information being requested: “See attached list: Names of employees by department with job title, rate of pay, and work locations.” Attached to the requests was a list of several departments that are under the control of the Cook County board. The requesters checked the portion of the form asking the furnisher to copy the information and signed the portion of the form authorizing a $0.10 copying charge per page and a $1 document certification fee. Defendants furnished the requested information shortly thereafter in the form of a computer printout.

On November 26, 1986, Robert Lawson, a representative of AFSCME, sent a letter to Mr. Beck asking for essentially the same information, with the apparent addition of the offices of State’s Attorney, county clerk, chief administrator, and highway safety, and several federally funded programs, on computer tape or diskette, offering to pay any reasonable costs incurred in providing the information. Mr. Beck denied the request in a letter dated December 1,1986, stating as follows:

“In reply to your request of November 26, 1986, for information on computer tape or diskette, your request is denied.

The majority of the information you requested was already supplied to your union by my office within the last two weeks and I know your union is also requesting the same information from various elected officials.”

Melissa Auerbach, counsel for Mr. Lawson, repeated the request in a letter dated December 17, 1986. Ms. Auerbach urged Mr. Beck to supply the information because, she stated, “[ijnformation maintained by your agency on computer tape or diskette is *** clearly subject to release under [the Act], and must be made available for inspection and copying pursuant to a proper request.” In response to this inquiry, Mr. Beck sent a letter to Ms. Auerbach, dated December 31, 1986, again denying the request. Mr. Beck stated that the information had already been provided, that the information was not stored in the format requested and that the State’s Attorney’s office advised him that he was not required to furnish the information on computer tape or diskette. Ms. Auerbach then sent a letter, dated January 5, 1987, to William M. Doyle, chief administrative officer, appealing Mr. Beck’s denial. (Ill. Rev. Stat. 1985, ch. 116, par. 210.) Mr. Doyle responded, in a letter dated February 11,1987, as follows:

“Having reviewed this matter with our attorneys, we take the position that we have already complied with the Freedom of Information Act by providing your client, AFSCME, the information requested in hard copy.

It is our continued position that the Act does not require us to now provide that same information on computer tape.”

Plaintiff filed its complaint for injunctive relief on March 5, 1987, alleging essentially that defendants failed to respond to plaintiff’s November 26, 1986, request,- and that defendants had a duty to do so because information stored on computer tape is subject to inspection and copying pursuant to the Act. (Ill. Rev. Stat. 1985, ch. 116, par. 203(a).) Defendants answered the complaint by admitting most of plaintiff’s allegations, but further stating that defendants had supplied all of the information in printed format before plaintiff filed suit and that, as a matter of law, the Act does not require that the provider of information furnish the same information in the form of a computer tape or diskette.

Plaintiff filed a motion for summary judgment, stating that the issue to be decided was “whether, when certain information is maintained by a public body on computer tape, a person is entitled, under the Freedom of Information Act, to obtain a copy of that tape.” Plaintiff’s motion was accompanied by an affidavit by Roy M. Heffner, a data processing systems consultant, who stated that the cost of entering the data on computer would be $900, most of which could be avoided if the computer tape was provided.

Defendants responded by stating that “the Freedom of Information Act [citation] creates no right to receive information on computer tape where the requested information has been previously provided in a reasonably accessible format.” Defendants’ response was accompanied by an affidavit from Mr. Beck stating that his office’s practice was to respond to requests such as plaintiff’s by providing a printout so to “ensure the accuracy and consistency of the material; and because a visually readable print-out is the most generally accessible format.” Defendants also filed a motion for judgment on the pleadings to the same effect.

After conducting hearings and analyzing the memoranda accompanying the parties’ motions, the circuit court granted plaintiff’s motion for summary judgment and denied defendants’ motion for judgment on the pleadings. The court, in applying a balancing test, found that there was no greater burden on defendants in providing the information on computer tape, but the inconvenience to plaintiff in having to physically transfer the data to its computer rather than merely copying the tape was great.

The appellate court reversed both rulings. It held, adopting the standard set forth in Dismukes v. Department of the Interior (D.C. Cir. 1984), 603 F. Supp. 760, that the agency that is asked to provide the information “need only provide responsive, nonexempt information in a reasonably accessible form,” and that defendants complied by providing the information in the form of a printout. (182 Ill. App. 3d at 946.) We hold that the appellate court erred by applying the standard set forth in Dismukes to the Illinois Act. However, we are also not satisfied that the circuit court heard sufficient evidence or made sufficient findings of facts to dispose of this matter.

The initial inquiry is whether the computer tape that plaintiff requested is generally within the scope of the Act. The Illinois Act is a clearly stated statute. It provides generally that “persons are entitled to full and complete information regarding the affairs of government.” (Ill. Rev. Stat. 1985, ch. 116, par. 201.) The Act is not designed, though, to provide access to information to the extent that it disrupts the efficient functioning of a government agency. The Act, therefore, creates a simple mechanism whereby a public body must comply with a proper request for information unless it can avoid providing the information by invoking one of the narrow exceptions provided in the Act.

The Act states that, upon receiving a request, “[e]ach public body [must] make available to any person for inspection or copying all public records.” (Ill. Rev. Stat. 1985, ch. 116, par. 203.) “Public records” means, among other things, “tapes, recordings, electronic data processing records, recorded information and all other documentary materials, regardless of physical form or characteristics.” (Ill. Rev. Stat. 1985, ch. 116, par. 202(c).) This definition, therefore, includes computer tapes within its scope. See also Long v. United States Internal Revenue Service (9th Cir. 1979), 596 F.2d 362, 365 (Federal Freedom of Information Act applies to computer tapes).

As such, upon receiving a proper request for a copy of a computer tape, defendants were obligated either to comply or state clearly upon ,what exception it was relying to avoid compliance. Section 7 of the Act (Ill. Rev. Stat. 1985, ch. 116, par. 207) enumerates several exceptions under which a public body may avoid information disclosure. None of these appear relevant to this case. Section 3 of the Act, however, which creates the duty to make public records available for inspection and copying, contains its own internal exception. Subsection (f) states that a public body may avoid compliance if it would prove to be “unduly burdensome,” and the burden cannot be avoided. (Ill. Rev. Stat. 1985, ch: 116, par. 203(f).) This subsection also states that repeated requests for the same public record are presumed to be unduly burdensome. As stated earlier, the term “public records” means, among other things, “recorded information.” Therefore, if one generally requests recorded information, as may have been the case here, that person may not request the same recorded information soon thereafter, even if the requester asks for the recorded information in a different physical format.

Having reviewed the statute and the record in this case, we can attempt to apply the facts, to the extent that they were presented in the lower court, to the law. As indicated earlier in this opinion, defendants complied with plaintiff’s original request for information. Defendants rejected plaintiff’s subsequent request that specified the form in which plaintiff was requesting the information, however. Defendants have provided several reasons for their denial of plaintiff’s request. Some that are found in the correspondence and some that defendants raised after plaintiff filed suit might have merit, some clearly do not.

First, defendant contended that the information requested in the November 26, 1986, letter had been provided in the form requested two weeks prior to that request. While the record indicates that this is substantially true, the trial court did not address this factual issue, or whether the November 26, 1986, letter constituted a “repeated request” for the purpose of the Act.

Defendant also contended that the information requested was not stored in the format requested. While this might also provide a valid reason for denying plaintiff’s request, because the provider of information is not required to prepare its records in a new format merely to accommodate a request for certain information, it was also not presented to the circuit court, nor did the circuit court address it.

Another one of defendants’ responses to plaintiff’s request for information stated that they were not required to furnish information on computer tape. This is not correct. If plaintiff has properly made a request for a copy of the computer tape, which as we stated earlier is a public record, and defendants cannot properly invoke an exception to their duty to make the computer tape available for copying, the plaintiff’s request should be honored. To avoid the defense of “repeated requests” the plaintiff should have in the first request asked for a copy of the computer tape.

Similarly, defendant now argues, and a majority of the appellate court specifically found, that a public body may choose the format in which it releases information so long as the requester is provided reasonable access to the information, regardless of the format that was requested. This is likewise incorrect. The Act states that public bodies must make public records available for inspection and copying, unless they can avoid doing so by invoking an exception that is provided in the Act. Computer tapes are public records and must, therefore, be made available to the public. The Act does not state that a public body may reply to information requests by supplying different public records than those for which the requester asked. Rather, the public body must make the public record available, including computer tapes, unless it can properly invoke an exception. It is the public body’s burden, moreover, to establish that an exception applies.

Both parties, and the appellate court, cite several cases in support of their positions. While we think that the Illinois Act speaks for itself, and none of the cases that the parties cite construe the Illinois Act, we will nevertheless examine the significance of the various authorities cited.

Plaintiff first calls this court’s attention to Menge v. City of Manchester (1973), 113 N.H. 533, 311 A.2d 116. This case was brought by a college professor pursuant to New Hampshire’s “right to know law” to force the defendant to make a computer tape available. The Menge court first found that computer tapes are public records for the purpose of the New Hampshire law. It further stated that, “[t]aking into account the practical realities of the situation, we believe it not only possible, but in accord with our law and what seems to be its basic philosophy, to so construe the statute as to permit plaintiff to have the reproduced tapes at his expense.” (Menge, 113 N.H. at 538, 311 A.2d at 119.) While this and other cases plaintiff cites support its general position, which we addressed earlier in this opinion, that computer tapes are public records, they do not shed light on the factual questions to be decided in the present case. See also Whorton v. Gaspard (1965), 239 Ark. 715, 393 S.W.2d 773 (voting lists available for copying); Direct Mail Service, Inc. v. Registrar of Motor Vehicles (1937), 296 Mass. 353, 5 N.E.2d 545 (right to inspect and copy automobile registrations); Ortiz v. Jaramillo (1971), 82 N.M. 445, 483 P.2d 500 (affidavits of registration on magnetic tape subject to copying); Lorain County Title Co. v. Essex (1976), 53 Ohio App. 2d 274, 373 N.E.2d 1261 (microfilm is a public record).

The case upon which defendants and the appellate court primarily rely, Dismukes v. Department of Interior (D.D.C. 1984), 603 F. Supp. 760, is more on point, but we decline to interpret the Illinois Act as narrowly as the Dismukes court interpreted the Federal Freedom of Information Act and as the appellate court in this case interpreted the Illinois Act. In Dismukes, the plaintiff specifically requested certain information in the form of a computer tape. Defendant responded by denying the request for a copy of the computer tape, but offered the same information in the form of microfiche cards. Plaintiff brought suit seeking to enforce its original request. The court granted defendant’s motion for summary judgment. The court found that the requester of information may not dictate the format in which the information will be provided, and that the furnishing public body “need only provide responsive, nonexempt information in a reasonably accessible form.” (603 F. Supp. at 763.) The reasons that the Dismukes court gave for adopting this rule, while perhaps consistent with the Federal Freedom of Information Act, are clearly not applicable to the Illinois Act.

The Dismukes court first reasoned that the agency furnishing the information can provide it in a form that varies from that which was requested if the different form does not alter the content of the information. The court came to this conclusion because it found that what was important was the information content of the record and not the record itself for the purpose of the Federal Freedom of Information Act. The Federal statute appears to require only that “public information” be made available. (5 U.S.C. §552 (Supp. I 1976).) The Illinois Act, however, requires that “public records,” which include computer tapes, be made available. That is, the Illinois Act is not solely concerned with content, it also requires that information be made available in the form in which it is normally kept.

Because the focus of the Federal statute is on the content of the information, the Dismukes court essentially shifted the burden to the plaintiffs to demonstrate that the form in which the information was provided in some way changed its content: “[N]either plaintiff nor any document in the record suggests that the quantum of information contained in the microfiche varies in any way from that recorded on the computer tape.” (603 F. Supp. at 762.) The Illinois Act, however, does not contemplate such burden-shifting. Under the Illinois Act, having received a proper request to inspect or copy a public record, the public body must either comply or state why it cannot comply. It is not sufficient in Illinois for a public body to furnish a public record that does not conform and then force the requester to explain why the record furnished is inadequate.

The Dismukes court also concluded that the furnisher of information may choose the form in which it provides it so long as the form chosen does not, as a practical matter, deny access to the information. That is, for the purpose of the Federal statute, according to the Dismukes court, only if the public body provides the information in an extremely inconvenient form has it failed to comply with the request. Again, in Illinois the focus is different. Under the Illinois Act, once a proper request has been made, the public body must either comply, or explain why it cannot. One legitimate reason for choosing not to comply is that the burden on the public body in producing a specific public record is too great, in which case the two parties can agree to, or a court can impose, a more manageable solution, such as providing an alternate public record that contains substantially the same information. A public body may not in Illinois, however, as it did in Dismukes, provide a public record that does not conform to the request and then force the requester to explain why it will not suffice.

The Dismukes court also accepted the defendant’s contention that it was providing the information in the form of microfiche because “microfiche is the format more likely to be readable by the largest number of requesters.” (603 F. Supp. at 762.) So too, in the present case, defendants argue that a computer printout is the most accessible form. The Dismukes court does not address the question, however, of why information cannot be provided in a different form to different requesters. In Illinois, the Act requires an individualized determination for each request. While it might be excusable for a public body not to provide information in a specified form if its historic policy has been to provide the same information in a different form and to deviate would create a burden, it is not excusable for a public body to set its policy after receiving a request with which it chooses not to comply, as appears to be the case here. Again, though, this is a factual question that has not yet been addressed below.

Because of the many distinctions raised above between Dismukes and the Illinois law, we find that the appellate court erred in adopting the standard set forth in Dismukes for the Illinois Act. We cannot, however, merely reinstate the circuit court’s ruling. While we hold here that computer tapes are public records and, therefore, subject to inspection and copying, the circuit court must still determine if defendants properly invoked any exception to their general duty to make public records available for inspection and copying. One obvious possible exception is that the November 26, 1986, request constituted a repeated request and was, therefore, unduly burdensome. There may be other valid reasons why defendants should not furnish the information on computer tape. For instance, at oral argument it was suggested that the means of verifying the accuracy of the information contained on the computer tape was more difficult than on the printout. These and other matters may be considered by the circuit court in determining whether or not the request for a computer tape should be honored.

As such, we affirm the appellate court’s judgment reversing the circuit court’s granting of plaintiff’s motion for summary judgment. We do so for different reasons, however. While we think that the circuit court has yet to decide whether defendants properly invoked a statutory exception to their duty to make public records available for inspection and copying, we reject the conclusion of the appellate court that the circuit court erred in granting plaintiff’s motion for summary judgment because, as a matter of law, a public body has complied with the Act by providing reasonable access to nonexempt information. We also disagree with the appellate court as to its reversal of the circuit court’s denial of defendants’ motion for judgment on the pleadings. We remand the cause to the circuit court and direct it to conduct further proceedings consistent with this opinion.

Appellate court affirmed; cause remanded with directions.