Hites v. Waubonsee Community College , 427 Ill. Dec. 23 ( 2018 )

2018 IL App (2d) 170617 No. 2-17-0617
Opinion filed July 20, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
DANIEL HITES, ) Appeal from the Circuit Court
) of Kane County.
Plaintiff-Appellant, )
)
v. ) No. 14-CH-398
)
WAUBONSEE COMMUNITY COLLEGE, ) Honorable
) David R. Akemann,
Defendant-Appellee, ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SPENCE delivered the judgment of the court, with opinion.
Presiding Justice Hudson and Justice Schostok concurred in the judgment and opinion.
OPINION
¶1 This is an appeal from the circuit court’s order granting the motion of defendant,
Waubonsee Community College (WCC), to dismiss the complaint of plaintiff, Daniel Hites,
pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2016)).
Plaintiff’s initial complaint sought certain disclosures of public records, including electronic data
from WCC’s databases, pursuant to the Freedom of Information Act (FOIA) (5 ILCS 140/1 et
seq. (West 2016)). On remand following a prior appeal from a dismissal, seven FOIA requests
for electronic data remained in plaintiff’s complaint. The circuit court determined that WCC’s
compliance with those seven remaining FOIA requests would be unduly burdensome under
section 3(g) of the FOIA (id. § 3(g)) and dismissed the complaint. We reverse and remand.
2018 IL App (2d) 170617
¶2 I. BACKGROUND
¶3 Plaintiff filed his initial complaint against WCC on March 18, 2014, seeking both
physical and electronic records pursuant to the FOIA. In May 2014, WCC moved to dismiss the
complaint, arguing, inter alia, that plaintiff’s requests would improperly require it to create new
records. Following an evidentiary hearing in March 2015—the relevant portions of which we
summarize infra—the circuit court granted the motion to dismiss. The court determined that
plaintiff’s requests for electronic data would impermissibly require WCC to create new records
and that plaintiff’s requests for physical records would constitute an undue burden on WCC. It
did not address whether the requests for electronic data would be unduly burdensome.
¶4 On appeal, we affirmed in part, reversed in part, and remanded. Hites v. Waubonsee
Community College (Hites I), 2016 IL App (2d) 150836, ¶¶ 83-84. We determined that data on
two of WCC’s databases—the Banner and the Driver Safety databases—were public records
subject to disclosure under the FOIA (id. ¶¶ 67-72) but that some of plaintiff’s requests for
electronic data would require the creation of new records (id. ¶ 79). We therefore affirmed the
dismissal of plaintiff’s requests that would require the creation of new records and reversed on
those requests that would not. Id. ¶ 83. The appeal did not concern plaintiff’s dismissed
requests for physical records, and we did not address whether the requests for electronic data
would constitute an undue burden, as that issue was not properly before us. Id. ¶ 55. On
remand, the following FOIA requests were at issue: (1) the ZIP codes of all people taking the
National Safety Council’s Defensive Driving Course (DDS-4) in 2011, (2) the ZIP codes of all
people taking general equivalency diploma (GED) classes in the fall of 2011 at the Aurora
campus, (3) the ZIP codes of all people taking English as a second language (ESL) classes in the
fall of 2011 at the Aurora campus, (4) the raw input for the “city” field on the student registration
-2­
2018 IL App (2d) 170617
forms for all students registered in the fall of 2011 at the Aurora campus, (5) the raw input for
the “county code” field on the student registration forms for all students registered in the fall of
2011 at the Aurora campus, (6) the raw input for the “U.S. Citizen” field on the student
registration forms for all students registered in the fall of 2011 at the Aurora campus, and (7) the
raw input for the “Are you in the United States on a visa—nonresident Alien” field on the
student registration forms for all students registered in the fall of 2011 at the Aurora campus.
¶5 A. Post-Remand Briefing
¶6 WCC moved to dismiss the remaining FOIA requests and filed a post-remand status brief
on April 12, 2017, arguing that its compliance with the remaining requests would be unduly
burdensome. WCC argued that it presented evidence of an undue burden at the March 2015
evidentiary hearing when it sought to rebut the testimony of Alexander Deligtisch, plaintiff’s
expert witness, and that the record otherwise established that searching for and extracting the
requested electronic data would be unduly burdensome. It argued that its database system was
complex, handling every major function at WCC, and that the data requested did not reside in
any single database or report. WCC cited testimony from the March 2015 hearing that it would
take WCC staff at least a week to develop a program to respond to each of plaintiff’s remaining
FOIA requests.
¶7 WCC continued that in Hites I we “made a finding” that WCC had two databases with
information responsive to plaintiff’s FOIA requests, namely, the Banner and the Driver Safety
databases. It argued that “[t]his finding is not supported by the record.” WCC also noted that
Deligtisch suggested that WCC could obtain responsive information from the Data and
Information System Illinois (DAISI) database. WCC argued that this assertion was incorrect
because it did not control, maintain, or operate DAISI. WCC stood ready to provide evidence
-3­
2018 IL App (2d) 170617
for its assertions, including the testimony of its programmers, at an additional evidentiary
hearing.
¶8 Plaintiff also filed his status brief on April 12, 2017. He stated that the “question of
burden imposed by [his] requests for information from WCC’s databases *** was not raised in
WCC’s motion, and thus [was] not yet properly before the court.” In the alternative, he argued,
the motion could be decided on the existing record and should be denied. In particular, plaintiff
argued that he had presented evidence that established the “minimal time and effort” that would
be required for WCC’s compliance with his FOIA requests, including that WCC had access to
the relevant databases and that the data was extractable by WCC employees. He cited
Deligtisch’s testimony that an information technology (IT) professional would be able to search
for the requested data in less than one minute; that the results could easily be exported into an
Excel spreadsheet; and that all of plaintiff’s requests could be answered in about five minutes.
Plaintiff also offered to provide supplemental evidence, such as the user manuals for the relevant
databases, at the court’s request.
¶9 On April 19, 2017, the circuit court found that the issue of undue burden was properly
before it. The court would consider WCC’s pending motion to dismiss based on the current
record.
¶ 10 B. March 2015 Evidentiary Hearing
¶ 11 We now recount the relevant testimony from the March 2015 evidentiary hearing on
which the circuit court based its findings.
¶ 12 Terrence Felton testified as follows. He was the chief information officer at WCC, and
his duties included responding to FOIA requests. WCC maintained multiple databases. The
Banner database stored information regarding GED and ESL classes and it also handled “every
-4­
2018 IL App (2d) 170617
major function of the college,” including financial aid, human resources, and inventory. The
Banner database had over 3500 tables and was around 250 gigabytes in size. Information related
to the National Safety Council’s Defensive Driving Course was stored on a separate, “massive”
database, the Driver Safety database. The information stored on both the Banner and the Driver
Safety databases included ZIP codes for students.
¶ 13 The information plaintiff requested resided on the Banner and the Driver Safety
databases, but WCC did not have programs to retrieve the data. Retrieval would require writing
a program to search the appropriate database and produce a file. Felton believed that it would
take “at least a week” for one person to write a program to retrieve from the Driver Safety
database the ZIP codes for the students taking the defensive driving course. A member of his
staff would have to write the program, and only a select few were available to do so. Writing the
program would “just sort of be another multiple thing [sic] that they were doing.” A staff
member would have to write a different program to retrieve from the Banner database the ZIP
codes for the students taking ESL courses in 2011 and yet another program to retrieve the ZIP
codes for the students taking GED classes in 2011. Writing each additional program would
require an additional week of work by his staff, “given everything else that they’re doing from an
operational standpoint.” They would have to “stop doing their other jobs and do this.” When
asked later, on rebuttal, whether compliance with plaintiff’s FOIA requests could result in
overtime costs, he responded “Possibly, yeah.” He explained that, “given the vast amounts of
data requested,” the searches could not be done all at once. Instead, they would have to be done
over multiple days or weeks when there was time for his staff to perform them.
¶ 14 Turning to the “raw input” request for the “city” field on student registration forms,
Felton testified that a staff member would again have to write a program, run it on the Banner
-5­
2018 IL App (2d) 170617
database, and output the file. He would also need to “clear up this question about ‘Registered,’ ”
as WCC did not store data points on who was registered. It would again take a week to write a
program and retrieve the responsive data. The same process would apply to the requests for the
raw input for the county code, U.S. citizen, and nonresident-alien fields on the registration forms,
with WCC requiring a week to respond to each request.
¶ 15 After discussing retrieval of information from the Banner and the Driver Safety
databases, counsel asked Felton about other databases. He testified that WCC had other
databases and that it also had access to DAISI, which the school used but did not maintain.
DAISI was run by the State of Illinois.
¶ 16 On cross-examination, counsel first questioned Felton about the Banner database. Felton
stated that Banner was a relational database made by Oracle and housed by WCC and that the
school had been using Banner since 2007. Banner tracked, among other things, students’ names,
street addresses (including county), and ZIP codes. It tracked the names, times, and locations of
courses that students had taken, and it also stored information about whether students resided in
or out of the district and were U.S. citizens. A user with access to the Banner database could
search and extract information from the database, including ZIP codes.
¶ 17 Felton agreed that Banner could be searched for the names and ZIP codes of all students
taking ESL classes in 2011, explaining that “[y]ou could write a program to do pretty much
anything you want.” It was possible to write programs to respond to all of plaintiff’s FOIA
requests for information from the Banner database. Counsel then asked whether “that would all
come out of the DAISI database,” to which Felton responded, “No.” Counsel continued, “[t]hat
would all come out of the Banner database?” and Felton responded, “Yes.” Felton did not know
much about DAISI, and WCC did not own, operate, or maintain DAISI.
-6­
2018 IL App (2d) 170617
¶ 18 After this exchange about DAISI, counsel turned to the Driver Safety database. Felton
testified that the Driver Safety database operated similarly to Banner. It was a relational
database, and it tracked students’ names, ZIP codes, and classes taken, including when and
where those classes were taken. As in Banner, it was possible to write a program to search and
extract students’ ZIP codes for a certain driver safety class at a certain campus. As in Banner,
“[y]ou can write a program to do anything.”
¶ 19 When asked why writing each program would take a week, Felton answered, “because
those people have other responsibilities.” When asked whether it would take someone a week to
actually write a program to search the Banner or the Driver Safety database, he answered no.
When asked how long a staff member would take to extract the ZIP codes of all students taking
the National Safety Council’s Defensive Driving Course in 2011—assuming that the person did
nothing but write the program—Felton said that he “would give them a day.” Felton’s one-day
timeframe applied to each of plaintiff’s remaining FOIA requests. 1 Felton explained that he had
two staff members who could write programs to respond to plaintiff’s FOIA requests. Both staff
members were systems analysts who had held their positions for at least 10 years. He had
consulted with them about plaintiff’s FOIA requests, and they told him that responding to each
request would take about a day.
¶ 20 Deligtisch testified next, and our summary of his testimony is drawn in part from our
prior opinion, Hites I, 2016 IL App (2d) 150836, ¶¶ 18-20. Deligtisch was accepted by the
circuit court as an expert in the field of database analytics, and he testified as follows. He
1
Felton testified that one of plaintiff’s FOIA requests would have taken two or three
days, but that specific request is not at issue here, as we affirmed the dismissal of that request in
our prior opinion.
-7­
2018 IL App (2d) 170617
worked with databases, both relational and nonrelational, on a daily basis, and he often worked
to extract responsive data without extracting personally identifying information. He identified
both the Banner and the Driver Safety databases as relational databases, which stored data in a
grid format, although he admitted that he had not personally worked on those databases.
Relational databases were common and widely used by businesses. Relational databases were
like Excel spreadsheets, organizing data in columns and rows, forming tables. “One would
expect [a relational database] to have many tables.”
¶ 21 Searches across multiple tables not only were possible but were the purpose of a
relational database. For instance, a relational database allowed for a search of the ZIP codes of
all students taking a particular class—“from the perspective of these relational databases, it really
[did not] matter if there [were] ten rows of students or 20 million rows of students.” In order to
perform a search for ZIP codes, one would have to write code to perform the search, but this did
not constitute writing a program. Rather, the query would essentially say, “ ‘Go to this table,
look at these columns, pull out this data and put it in a spreadsheet or a grid for me.’ ” Writing
the necessary query would take less than one minute, and the entire process—from writing the
query to producing a chart with the requested data—would take two to five minutes. Each query
would be a short language command, around 10 to 20 words, and the database would provide the
information in a grid that looked like an Excel spreadsheet. Relational databases allowed the
user to quickly extract the data and put it in an Excel format.
¶ 22 Deligtisch did not believe that he needed to work with the Banner or the Driver Safety
database to render his opinion, because every relational database was set up in the same format
and utilized the same code and tools. He analogized running a search query on a relational
database to pulling out responsive files from a filing cabinet.
-8­
2018 IL App (2d) 170617
¶ 23 Plaintiff testified as follows. His interest in WCC and its governance went back to
around 2010. WCC was located in a “special service area,” which meant that those in the area
got “taxed a little bit more than any other place in Aurora.” The tax funds went to an oversight
committee called Aurora Downtown, and the committee’s goals were “to help revitalize,
beautify, and bring back downtown.” He was a member of Aurora Downtown, and he was the
chairman of the parking committee when Aurora Downtown was founded. In his function as
parking-committee chairman, he noticed that Aurora’s downtown parking study was “out of
balance” and that the study underestimated the number of parking spots for WCC’s new
downtown campus by up to 800 spots. Plaintiff had walked around the downtown campus and,
he stated, “you really don’t see any students out there. There aren’t any businesses that work
with them. It has not had any real economic benefit.” He wanted to find out who the students
were, how to market to them, and how the committee could orient WCC to help reinvigorate
downtown Aurora.
¶ 24 At this point, the court interrupted, stating that it did not understand how plaintiff’s
testimony was related to the issue before the court. Counsel responded that the testimony went
toward establishing the public interest that needs to be balanced with the burden of compliance.
¶ 25 Later in plaintiff’s testimony, counsel returned to the public-interest issue, asking him
whether there were other reasons, beyond inconsistencies in the parking study, that made him
believe that the information he sought from WCC was for the public good. Plaintiff answered
that WCC had a responsibility to help the community “move along” and to live up to its
commitments to the community after “spending $45 million on a new campus.” There were
“numerous agreements” between WCC and Aurora in which Aurora gave WCC incentives and
-9­
2018 IL App (2d) 170617
preferential treatment, and the requested information could help show whether WCC was
operating in the best interests of Aurora and whether those agreements should be reconsidered.
¶ 26 Plaintiff continued that he was not against WCC having its campus downtown, but he
wanted to make sure that WCC was serving Aurorans. He wanted to see the downtown campus
“balanced out,” and he worried that WCC’s catering to GED and ESL students from outside
Aurora resulted in students from Aurora attending classes at campuses outside Aurora instead of
at the downtown campus that was built for them.
¶ 27 C. Circuit Court’s Order Granting WCC’s Motion to Dismiss
¶ 28 On June 10, 2017, the court granted WCC’s motion to dismiss, finding that WCC had
shown that compliance with plaintiff’s FOIA requests would constitute an undue burden.
¶ 29 The circuit court first recounted the relevant testimony of Felton, Deligtisch, and plaintiff
from the March 2015 evidentiary hearing. It noted that plaintiff testified that he had become
interested in the requested information when he was part of Aurora Downtown. Plaintiff wanted
to determine a way to market WCC’s downtown Aurora campus in an effort to revitalize
downtown businesses. The court continued that plaintiff also stated that he wanted to determine
whether WCC was fulfilling the promises it made in spending $45 million on a new campus.
The court cited his testimony that there were “ ‘numerous agreements between [WCC] and the
City of Aurora where Aurora [was] giving incentives *** to [WCC] that would have to be
reconsidered if it’s showing that [WCC] is not working in the best interests of Aurora’ ” and that
he wanted to ensure that Aurora students were not being sent out of the city to go to classes on
the campus in Sugar Grove.
¶ 30 The circuit court then moved to its undue-burden analysis, stating that, in order for a
FOIA request to be unduly burdensome, three elements had to be present: (1) compliance with
- 10 ­
2018 IL App (2d) 170617
the request as stated must be unduly burdensome, (2) there must be no way to narrow the
request, and (3) the burden on the public body must outweigh the public interest in the
information. The court looked to cases on the issue. The only case the court cited in which an
undue burden was found was Shehadeh v. Madigan, 2013 IL App (4th) 120742, ¶¶ 5, 34-35,
which addressed a request to manually review over 9000 physical records to determine whether
those “publications, opinions, reports, or other records” could be used by the Attorney General
(AG) for guidance in complying with the FOIA. For instances where no undue burden was
found, the court cited several authorities, including National Ass’n of Criminal Defense Lawyers
v. Chicago Police Department, 399 Ill. App. 3d 1, 14-17 (2010) (no undue burden where
redacting documents would take 150 hours, or approximately 20 personnel days, but the burden
did not outweigh the public interest), and an AG opinion, 2016 Ill. Att’y Gen. Op. No. 16-008, at
7-8, http://foia.ilattorneygeneral.net/pdf/opinions/2016/16-008.pdf (Drumm opinion) (no undue
burden although request for city official’s e-mails would yield at least 174 responsive pages and
would require review for possible redaction, with only one IT staff member and one FOIA
officer available, who each had other duties). The court, citing Hites I, also looked to federal
authority for guidance, including a case in which a search for 1711 names in a database did not
constitute an undue burden. Hall v. Central Intelligence Agency, 881 F. Supp. 2d 38, 53 (D.D.C.
2012). The court stated that, in the absence of direction from this court or our supreme court, it
would look to the most recent appellate court decision, namely, Shehadeh.
¶ 31 The court concluded that the undue-burden exemption applied to plaintiff’s remaining
FOIA requests. It first explained that WCC had complied with the FOIA by responding to
plaintiff’s FOIA requests in writing and providing him an opportunity to narrow his requests
- 11 ­
2018 IL App (2d) 170617
when WCC stated, in its response to the requests, “[t]o the extent Mr. Hites has a proposal to
narrow his requests, please contact us.”
¶ 32 Next, the court found Felton’s testimony credible in explaining WCC’s burden in
complying with plaintiff’s FOIA requests. Felton was “in a superior position to estimate the
amount of time it would take to query the databases *** compared to Mr. Deligtisch.” Felton
testified that responding to just one of plaintiff’s requests would take his staff at least a week,
and the court concluded that responding to all would require “well beyond 150 hours, or twenty
personnel days, and would likely be more time-consuming than redacting 174 responsive pages.”
¶ 33 The court continued that compliance would impede WCC staff members’ ability to
perform their other duties in a timely manner. Citing WCC’s status brief, it found that some of
the requests would require searching databases “not in the control” of WCC, including DAISI. It
also concluded that WCC “would be required to compensate its programmers to spend several
weeks or months on responding to these requests, which might include overtime and/or hiring
extra staff.”
¶ 34 Finally, the court found that WCC’s burden outweighed the public interest. It found that
plaintiff’s interest was to “learn what demographics of students are attending each WCC campus
in order to speculate about what businesses that the students might frequent.” His interest was
not comparable to the public importance of requests for data that would improve lineup protocols
and remedy mistaken eyewitness identifications. See National Lawyers Ass’n of Criminal
Defense Lawyers, 399 Ill. App. 3d at 15-16. Furthermore, the court found that plaintiff’s interest
made “assumptions about demographics of students and the economic growth that these students
might bring to downtown Aurora, which is not based on any evidence.” Accordingly, the court
granted WCC’s motion to dismiss.
- 12 ­
2018 IL App (2d) 170617
¶ 35 Plaintiff timely appealed.
¶ 36 II. ANALYSIS
¶ 37 A. The Parties’ Positions
¶ 38 On appeal, plaintiff argues that we should reverse the circuit court’s order granting
WCC’s section 2-619 motion to dismiss, because WCC did not establish that compliance with
his requests would be unduly burdensome. Plaintiff argues that, under the FOIA, exceptions to
disclosure should be read narrowly, including the “unduly burdensome” exception under section
3(g) (5 ILCS 140/3(g) (West 2016)). He argues that WCC failed to establish any of the three
necessary elements of an undue burden: (1) that compliance with his FOIA requests as stated
would be unduly burdensome, (2) that there was no way to narrow the requests, and (3) that the
burden on WCC outweighed the public interest in the information requested.
¶ 39 Addressing the first element, plaintiff argues that WCC’s description of its alleged
burden was not sufficiently detailed for adversarial testing. Moreover, he contends that WCC
could easily extract the requested information from its databases. He argues that WCC’s
databases are typical Oracle databases designed for storing and retrieving the type of data
requested and that Felton testified that the data could be retrieved from WCC’s databases.
Plaintiff cites Deligtisch’s testimony that the entire retrieval process would take a matter of
minutes.
¶ 40 Plaintiff also argues that WCC’s alleged burden was improperly padded with time that
staff members would spend performing other activities. He argues that Felton’s estimate of each
search taking a week to perform assumed that the search would be improperly done and need to
be repeated; included conversations about the search; and included his staff members’ other
duties. Plaintiff urges that a proper FOIA undue-burden analysis should focus on the time
- 13 ­
2018 IL App (2d) 170617
needed to actually retrieve the records, not on time estimates inflated by tasks beyond the
retrieval.
¶ 41 Plaintiff next argues that the circuit court’s reasoning on undue burden was flawed. The
court relied on one case that found an undue burden, Shehadeh, 2013 IL App (4th) 120742,
because it was “the most recent decision of the Illinois Appellate Court” on the matter. Plaintiff
contends that the court’s focus on Shehadeh ignored the totality of precedent in Illinois and that
its application of Shehadeh did not actually support a finding of undue burden in this case. To
wit, he argues that the FOIA request in Shehadeh would have required staff to go through each
file by hand to locate responsive documents, whereas here the data requested was already
collected and stored on WCC’s databases. No WCC staff member would have to review
documents or redact information. Plaintiff stresses that the purpose of having a database is that it
is more efficient and easier to use than storing and reviewing hard copies of documents.
¶ 42 Turning to the second element, plaintiff argues that WCC has not established that there
was no way to narrow his requests. He argues that, if his requests can be narrowed, then WCC
did not meet that requirement for the undue-burden exemption; and if his requests cannot be
narrowed, then the circuit court’s finding that his requests were unduly burdensome would
effectively shield WCC from all future FOIA requests for information from its electronic
databases.
¶ 43 Finally, plaintiff argues that WCC has not established that its alleged burden outweighs
the public interest in the information requested. Citing his testimony at the March 2015
evidentiary hearing, plaintiff argues that he was concerned that WCC was not fulfilling the
promises that it made to Aurora in spending $45 million on a new campus. WCC also had
various agreements in which Aurora gave it incentives and preferential treatment, and plaintiff
- 14 ­
2018 IL App (2d) 170617
sought to make sure that WCC was acting in Aurora’s best interests. He argues that how public
funds are spent is consistently deemed a matter of great public importance (see, e.g., Family Life
League v. Department of Public Aid, 112 Ill. 2d 449, 453 (1986)) and that the burden of a
straightforward search of WCC’s databases does not outweigh this legitimate public interest.
¶ 44 WCC responds as follows. It contends that the circuit court’s order was well reasoned
and correct. The circuit court found Felton to be credible, including his testimony that it would
take around a week to respond to each of plaintiff’s FOIA requests. The court believed that
Felton was in a better position than Deligtisch to opine on WCC’s databases. Based on Felton’s
testimony, the court concluded that WCC employees would have to spend in excess of 150
hours, or 20 personnel days, to comply with the requests and that compliance would require
overtime pay and might entail hiring additional staff. It also found that plaintiff’s interest in
obtaining the data was not comparable to the public importance of improving lineup protocols.
¶ 45 WCC continues that Shehadeh is controlling authority that supports affirming the circuit
court’s order. WCC stresses that the circuit court heard testimony over three days at the
evidentiary hearing, considered over 100 exhibits, and provided plaintiff adequate opportunity to
test and examine WCC’s witnesses.
¶ 46 In addition, WCC argues that plaintiff “relies on the argument that somewhere on [its]
database, it is possible to find the information he is seeking,” ignoring that the Banner database is
“complex and handles every major function” at the college. 2 Per Felton’s testimony, his staff
2
WCC also argues that its student registration forms “are only maintained in hard copy
form and are not scanned” into its databases. It goes on to describe its storage of paper records,
citing the testimony of another WCC employee from the evidentiary hearing. It is unclear why
WCC is arguing about its physical records here, where only requests for electronic data are at
- 15 ­
2018 IL App (2d) 170617
would have to create a program to respond to each request, and each program would take a week
to develop. Moreover, during this week, the staff member would be taken away from regularly
assigned duties. Extraction would be complex, and Felton had only two staff members capable
of doing it. WCC continues that, if “the programmers were directed to devote themselves
entirely to [plaintiff’s] FOIA project, it might be possible to take one day to complete each of the
requests,” but this dedication to a singular task would be “significantly detrimental” to its
operations.
¶ 47 WCC next turns to DAISI, arguing that it does not control that database or the data on it.
It argues that, “similarly,” the Driver Safety database contains information from third parties and
that WCC has an obligation to keep much of the students’ driver-safety data confidential. WCC
suggests that redaction would be necessary, adding to its burden. 3
¶ 48 Finally, WCC argues that plaintiff’s arguments are “unfounded” and that Deligtisch’s
opinions were not grounded in facts or reasonable inferences. WCC refers to Deligtisch as a “so-
called ‘expert,’ ” stressing his lack of personal experience with the Banner and the Driver Safety
databases. 4
¶ 49 B. Standard of Review
issue.
3
This argument again contemplates searches of physical records that are not at issue in
this appeal.
4
Over WCC’s objection, the circuit court accepted Deligtisch as an expert in the field of
database analytics and permitted his testimony pursuant to Illinois Supreme Court Rule 702 (eff.
Jan. 1, 2011).
- 16 ­
2018 IL App (2d) 170617
¶ 50 A motion to dismiss under section 2-619 admits the legal sufficiency of the plaintiff’s
claim but asserts certain defects or defenses outside the pleadings that defeat the claim.
Sandholm v. Kuecker, 2012 IL 111443, ¶ 55. Generally, our review of a section 2-619 dismissal
is de novo. Davidson v. Gurewitz, 2015 IL App (2d) 150171, ¶ 9. In addition, whether an
exemption applies under the FOIA is a matter of statutory construction, which as a question of
law is reviewed de novo. Garlick v. Naperville Township, 2017 IL App (2d) 170025, ¶ 44; see
Nelson v. Kendall County, 2014 IL 116303, ¶ 22 (reviewing statutory construction of a FOIA
definition de novo and noting that de novo review was also appropriate because the case was
dismissed pursuant to section 2-619).
¶ 51 Where the circuit court conducts an evidentiary hearing, as it did here, we review whether
the court’s factual findings were against the manifest weight of the evidence, while still
reviewing questions of law de novo. Offord v. Fitness International, LLC, 2015 IL App (1st)
150879, ¶ 15; Kirby v. Jarrett, 190 Ill. App. 3d 8, 13 (1989) (following an evidentiary hearing on
a section 2-619 motion to dismiss, a reviewing court must review “not only the law but also the
facts, and may reverse the trial court order if it is incorrect in law or against the manifest weight
of the evidence”). A finding is against the manifest weight of the evidence only if the opposite
conclusion is clearly evident or the finding itself is unreasonable, arbitrary, or not based on the
evidence presented. Offord, 2015 IL App (1st) 150879, ¶ 16. Accordingly, we will review under
the manifest-weight-of-the-evidence standard the circuit court’s factual findings in its dismissal
order, and we will review de novo the ultimate dismissal for a section 3(g) undue burden.
¶ 52 C. Resolution
¶ 53 We agree with plaintiff that the circuit court erred in granting WCC’s section 2-619
motion to dismiss. The parties agreed to proceed on the evidence adduced at the March 2015
- 17 ­
2018 IL App (2d) 170617
evidentiary hearing. After careful review of that evidence, we hold that many of the circuit
court’s necessary findings in support of its dismissal order were against the manifest weight of
the evidence. We explain as follows.
¶ 54 Under the FOIA, “[a]ll records in the custody or possession of a public body are
presumed to be open to inspection or copying.” 5 ILCS 140/1.2 (West 2016). The FOIA was
enacted, in part, to help people make “informed political judgments” and monitor government
“to ensure that it is being conducted in the public interest.” Id. § 1. The FOIA was not,
however, intended to unduly burden public resources. Id.
¶ 55 Section 3(g) of the FOIA exempts disclosure where (1) a request for all records falling
within a category would be unduly burdensome for the complying public body, (2) there is no
way to narrow the request, and (3) the burden on the public body outweighs the public interest in
the information. Id. § 3(g); National Ass’n of Criminal Defense Lawyers, 399 Ill. App. 3d at 15.
As a threshold matter, section 3(g) requires that the public body extend to the person making the
request an opportunity to confer with it in an attempt to narrow the request. Heinrich v. White,
2012 IL App (2d) 110564, ¶ 21 (citing 5 ILCS 140/3(g) (West 2010)). Any public body, such as
WCC, that asserts that a record is exempt from disclosure “has the burden of proving by clear
and convincing evidence that it is exempt.” 5 ILCS 140/1.2 (West 2016).
¶ 56 In its dismissal order, the circuit court determined that complying with plaintiff’s requests
would unduly burden WCC, satisfying the first element of the FOIA’s section 3(g) exemption.
In reaching its conclusion, it found that Felton was a credible witness and that he was in a
superior position to Deligtisch to testify about searching WCC’s databases. The circuit court
was in the best position to evaluate witness credibility, and we will not substitute our judgment
for the circuit court’s or reweigh the evidence. See Sullivan v. Kanable, 2015 IL App (2d)
- 18 ­
2018 IL App (2d) 170617
141175, ¶ 10 (under the manifest-weight-of-the-evidence standard, a reviewing court will not
substitute its judgment for that of the circuit court regarding credibility of witnesses or the
weight to be given the evidence). Accordingly there was no error in the circuit court’s relying on
Felton’s testimony over Deligtisch’s. Nevertheless, the circuit court had to make findings that
were reasonable and based on Felton’s actual testimony.
¶ 57 The circuit court’s findings on whether plaintiff’s requests would unduly burden WCC
were not supported by Felton’s testimony. We find persuasive plaintiff’s argument that WCC’s
alleged burden was improperly padded with time that staff would spend performing other
activities. The record shows that on direct examination Felton’s testimony that his staff would
take a week to respond to each request was qualified by his explaining that they had other job
responsibilities to attend to. These other responsibilities existed prior to and independent of
plaintiff’s requests. On cross-examination, Felton clarified that the time required to actually
respond to each request was about one day. Even assuming a full 8 hours of work per request, it
would take only 56 hours to respond to all seven of plaintiff’s requests—not “well beyond 150
hours, or 20 personnel days.” If the staff spread those hours out over time—for example, by
spending one hour per work day responding to plaintiff’s requests—they could work on their
normal tasks for the rest of the day and it would be more accurate to say that they would spend
five hours per week responding to the requests, not that they would spend a whole week. By
focusing on the gross time required to respond to each request, the court conflated WCC’s
alleged burden with its normal operations, unreasonably inflating the impact of the requests.
Thus, the court’s findings that WCC would take at least a week to respond to each request and
that compliance would take “well beyond 150 hours, or twenty personnel days” were not based
on the evidence presented.
- 19 ­
2018 IL App (2d) 170617
¶ 58 The circuit court made other findings that were against the manifest weight of the
evidence. Citing WCC’s post-remand brief, the circuit court found that plaintiff’s requests
would require WCC to search databases outside its control, including DAISI. The record does
not support this conclusion and, in fact, clearly supports the opposite conclusion, that WCC
would not be required to search databases outside its control. Felton testified that the data
plaintiff requested was available on the Banner and the Driver Safety databases and that his staff
could extract the data from those databases. For the seven FOIA requests relevant to this appeal,
Felton’s testimony made clear that the data for one request could be extracted from the Driver
Safety database (ZIP codes for the students taking the National Safety Council’s Defensive
Driving Course) and that the data for the other six requests could be extracted from the Banner
database. At no point at the evidentiary hearing did any witness suggest that WCC had to search
DAISI to respond to any of the seven requests. Rather, after WCC’s counsel had asked Felton
about DAISI on direct examination, plaintiff’s counsel asked Felton to clarify where the
requested data would come from, in the following exchange:
“Q: And you could write a program to extract everything that Mr. Hites is asking
for in his FOIA requests out of the Banner system, is that right?
A: Well, I would need clarification on the registration question.
Q: And once you got clarification on the registration question, you could write a
program that would—
A: Yes.
Q: Provide you with all the information required by Mr. Hites in his FOIA
requests?
A: It would take a while, but, yes.
- 20 ­
2018 IL App (2d) 170617
Q: And that would all come out of the DAISI database?
A: No.
Q: That would all come out of the Banner database?
A: Yes.”
WCC’s argument that it would have to search DAISI to respond to plaintiff’s requests is simply
false. Accordingly, the circuit court’s finding that compliance would require a search of
databases outside WCC’s control was against the manifest weight of the evidence.
¶ 59 In addition, the circuit court found that compliance with the FOIA requests would require
WCC to compensate staff for spending several weeks or months responding to the requests and
that its costs might include overtime or hiring additional staff. These findings are also
unsupported by the record. We have already determined that the record does not support that it
would actually take several weeks or months to respond to the requests. During much of that
time, staff would simply be performing their normal duties. Further, the only testimony relevant
to the costs of the electronic searches at issue here—as opposed to the physical records searches
that are no longer at issue—was Felton’s response on rebuttal as to whether WCC might incur
overtime costs. He responded, “Possibly, yeah,” and then explained how his staff would manage
the requests by spreading the time spent responding over days or weeks. There was no testimony
that compliance would necessarily require additional compensation, let alone how much
compensation. And there was no testimony that WCC would hire additional staff to respond to
the requests at issue. 5
5
The only testimony suggesting that WCC would hire additional staff came from Tracey
Petryka, a WCC employee, in the context of a search of physical records. She testified that
certain document collection, which would also include redaction, would take two months and
- 21 ­
2018 IL App (2d) 170617
¶ 60 The second element of an undue burden requires that there be no way to narrow the
request. 5 ILCS 140/3(g) (West 2016). 6 Here, the circuit found that WCC had complied with
the FOIA by responding to plaintiff’s requests in writing and offering him an opportunity to
narrow his requests. These findings were not against the manifest weight of the evidence, but
they go toward the threshold requirement under section 3(g)—that a public body “[b]efore
invoking this exemption *** shall extend to the person making the request an opportunity to
confer *** to reduce the request to manageable proportions.” Id. This requirement is not the
same as section 3(g)’s requirement that there be no way to narrow the request. See Heinrich,
2012 IL App (2d) 110564, ¶¶ 21-22 (explaining that the defendant needed to confer to narrow
the request in order to invoke the undue-burden exemption, and then separately explaining the
three elements of an undue burden for consideration on remand, including that there be no way
to narrow the request). Here, the circuit court made no findings about whether plaintiff’s
requests could be narrowed, and it was error to conclude that the undue-burden exemption
applied absent such findings.
¶ 61 For the third element, the court weighed plaintiff’s desire “to speculate about what
businesses the students might frequent” against WCC’s alleged burden. Not only have we
that WCC would need to hire temporary employees to fill in for staff members helping in the
document collection and redaction. As noted, requests for physical records are no longer at issue
in this case.
6
“Requests calling for all records falling within a category shall be complied with unless
compliance with the request would be unduly burdensome for the complying public body and
there is no way to narrow the request and the burden on the public body outweighs the public
interest in the information.” (Emphasis added.) Id.
- 22 ­
2018 IL App (2d) 170617
already determined that the court’s findings regarding WCC’s burden were against the manifest
weight of the evidence—which upsets the court’s balancing between the burden and the public
interest—but also the court’s statement of the public interest is based on a selective and
incomplete reading of the record. Before reaching its conclusions, the court correctly cited
plaintiff’s testimony that he requested the data to determine whether WCC was fulfilling the
promises it made following its construction of a new campus; whether WCC was working in
Aurora’s best interests; whether numerous agreements between WCC and Aurora, in which the
city gave WCC incentives and preferential treatment, might need to be reconsidered; and
whether Aurora students were being sent to campuses outside Aurora. Yet, in its conclusions,
the court identified only one public interest: to learn student demographics in order to speculate
about businesses students might frequent.
¶ 62 Our supreme court has made clear that the public has a legitimate interest in how its tax
dollars are spent. Family Life League, 112 Ill. 2d at 456. Plaintiff testified to interests similar to
the public’s interest in how tax dollars are spent. He testified that WCC was receiving benefits
from Aurora and that, even if those benefits were not direct tax dollars, Aurora’s preferential
treatment of WCC came with public opportunity costs. We also note that plaintiff testified that
Aurora Downtown received tax proceeds for its oversight. Therefore, any “speculation” about
businesses was not about simply the businesses but about pursuing the committee’s publicly
funded mission to better downtown Aurora. Promoting local business and economic
development would be a logical component of the committee’s mission. Furthermore, in the
persuasive Drumm opinion cited by the circuit court, there was a “significant public interest” in
the disclosure of communications between the city manager, whose work had a “focus on the
long term objectives regarding the City’s future,” and the private firm the city hired to assist in
- 23 ­
2018 IL App (2d) 170617
several redevelopment projects. 2016 Ill. Att’y Gen. Op. No. 16-008, at 7-8,
http://foia.ilattorneygeneral.net/pdf/opinions/2016/16-008.pdf. Plaintiff testified similarly that he
sought the data to help determine whether WCC’s new campus was benefitting Aurorans and
whether its agreements with the city might need to be reconsidered. That is, he was interested in
whether the campus development in downtown Aurora was serving Aurora’s best interests.
Thus, limiting the public interest to speculation on local business development was not supported
by the record.
¶ 63 In summary, the circuit court’s findings as to the first and third elements of an undue
burden were against the manifest weight of the evidence, and it failed to make a necessary
finding related to the second element. While reversal is appropriate based on the erroneous
factual findings (see Offord, 2015 IL App (1st) 150879, ¶ 15 (reversal is appropriate if an order
is incorrect in law or against the manifest weight of the evidence)), we also do not believe that
the record supported dismissal for an undue burden. In particular, we do not believe that the
burden on WCC outweighed the public interest in the data.
¶ 64 We first note that this case is readily distinguishable from Shehadeh, the one case the
circuit court cited that found an undue burden. In Shehadeh, the AG’s office would have had to
review 9200 documents by hand in order to determine which of those documents were
responsive to plaintiff’s request for “ ‘copies of any publications, opinions, reports or other
records that would or could be used for guidance by [the AG’s] office or any other public body
in complying with Illinois’ FOIA laws.’ ” Shehadeh, 2013 IL App (4th) 120742, ¶¶ 5, 34. Then,
after determining which documents were responsive, it would have had to identify and redact
exempt information from those documents. Id. ¶ 34. The Shehadeh court held that this burden
on the AG’s office satisfied section 3(g), and it also determined that the plaintiff’s FOIA request
- 24 ­
2018 IL App (2d) 170617
was “patently broad on its face, as it sought any publication or record that would or could be
used by any public body to comply with Illinois’s FOIA provisions.” (Emphasis in original.) Id.
¶¶ 28, 34. Here, plaintiff’s FOIA requests were for specific datasets from the Banner and the
Driver Safety databases and did not involve any hand review or redaction. Having a staff
member electronically search for a narrow dataset, such as the ZIP codes of students from a
specific year and class, is simply not comparable to the burden of physically reviewing over
9000 documents for general guidance on complying with the FOIA.
¶ 65 A FOIA request that is “overly broad and requires the public body to locate, review,
redact and rearrange for inspection a vast quantity of material that is largely unnecessary to the
[requestor’s] purpose” constitutes an undue burden. National Ass’n of Criminal Defense
Lawyers, 399 Ill. App. 3d at 17. In National Ass’n of Criminal Defense Lawyers, the court
reversed a grant of summary judgment in favor of the defendant, the Chicago Police Department
(CPD), denying the plaintiff’s requests for certain data, files, and photographs. Id. at 17-18. The
court noted that the CPD did not have to access every document in its files and that the plaintiff’s
request specifically targeted the files relevant to its study of mistaken identification. Id. at 17.
The court concluded that “ ‘several weeks of full-time work by [CPD] personnel who need to
possess a high level of knowledge and sophistication’ ” was not sufficiently burdensome to
outweigh the public interest in the plaintiff’s study of wrongful convictions based on mistaken
eyewitness identification. Id. at 15, 17.
¶ 66 Moreover, the FOIA evinces a public policy in favor of disclosure, and exceptions to
disclosure are to be read narrowly. 5 ILCS 140/1 (West 2016). Records are presumed to be
open, and the public body has the burden of proving by clear and convincing evidence that the
data sought is exempt from disclosure. Id. § 1.2. With this in mind, the burden on WCC staff to
- 25 ­
2018 IL App (2d) 170617
extract the requested data does not outweigh the public interest in the requested information. On
the one hand, the burden here is less than the burden in National Ass’n of Criminal Defense
Lawyers or Shehadeh. Compliance would not require several weeks of full-time work, nor
would anyone have to spend time redacting files. Plaintiff’s requests targeted specific sets of
data, and the record supports that the requests could be completed by one person in, at most,
seven days of actual work. WCC’s arguments that database extraction is “complex” and that
compliance would be “significantly detrimental” to its operations are conclusory and fall short of
the clear and convincing evidence necessary to support a FOIA exemption. On the other hand,
the public has a legitimate interest in how WCC is benefitting the community in which it
operates and from which it receives benefits. Similar to the significant public interest in the
Drumm opinion, plaintiff testified that he seeks the disclosures to help determine whether
WCC’s new Aurora campus is serving Aurora and its students. See 2016 Ill. Att’y Gen. Op. No.
16-008, at 7-8, http://foia.ilattorneygeneral.net/pdf/opinions/2016/16-008.pdf (finding significant
public interest in public official’s communications with private firm related to city
redevelopment projects). He testified that Aurora and WCC had “numerous agreements,” that
WCC received benefits and preferential treatment from Aurora, and that he worried that Aurora
students were being sent to campuses outside Aurora. In addition, plaintiff was a part of Aurora
Downtown, which received public funds to promote the interests of Aurora, and his role with the
oversight committee spurred his FOIA requests. Therefore, the burden does not outweigh the
public interest in the information, and WCC did not satisfy the requirements for an undue-burden
exemption.
¶ 67 III. CONCLUSION
- 26 ­
2018 IL App (2d) 170617
¶ 68 The circuit court erred in granting WCC’s section 2-619 motion to dismiss plaintiff’s
complaint, based on the FOIA’s section 3(g) undue-burden exemption. Its findings on the
necessary elements of an undue burden were either absent or against the manifest weight of the
evidence. In addition, the record did not support that WCC’s burden of compliance with
plaintiff’s FOIA requests outweighed the public interest in the information. Therefore, we
reverse the judgment of the Kane County circuit court and remand for proceedings consistent
with this opinion.
¶ 69 Reversed and remanded.
- 27 ­