While the state’s law covers electronic records, reporters often are at the mercy of an agency that can decide in what format data will be made available and whether the agency will do a custom search. Reporters find that many agencies delay requesters. Because documentation for databases is not necessarily public information, reporters may be denied file layouts, which are crucial to analyzing any database. In addition, some databases that are readily available in other states, are not public record in Illinois.
The law. Under
the Freedom of Information Act, public records are "all records, . . .
cards, tapes, recordings, electronic data processing records, recorded information
and all other documentary materials, regardless of physical form or characteristics."
Copying is "reproduction of any public record by means of any photographic,
electronic, mechanical or other process, device or means." 5 Ill. Comp.
Stat. 140/2(c)-(d). Under Illinois law, the requester can choose a format for
receiving records. There is no statutory basis for this outcome, but case law
suggests that the requester can choose a format.
Agencies must "furnish
upon request a description of the manner in which public records stored by means
of electronic data processing may be obtained in a form comprehensible to persons
lacking knowledge of computer language or printout format." 5 Ill. Comp.
Stat. 140/5. The statute allows an agency to withhold "administrative or
technical information associated with automated data processing operations,
including but not limited to software, operating protocols, computer program
abstracts, file layouts, source listings, object modules, load modules, user
guides, documentation pertaining to all logical and physical design of computerized
systems, employee manuals, and any other information that, if disclosed, would
jeopardize the security of the system or its data or the security of materials
exempt under this Section." 5 Ill. Comp. Stat. 140/7(p). Any public record
may be reproduced in a digitized electronic format. Public records scheduled
for disposal after the statutorily mandated retention period may be digitized
for record-keeping. (Pub. Act 90-701, amending ch. 116, para. 43/107, effective
July 1, 1999). A public body may not grant any person or entity, whether by
contract, license or otherwise, the exclusive right to access or disseminate
any public record or court record. 116 Ill. Comp. Stat. 203; 25 Ill. Comp. Stat.
13.
Cases &
opinions. Courts have required agencies to do customized searches of their
files when requesters will pay for necessary computer programming. The supreme
court suggested some limits on that ruling. For example, the request should
not interfere with an agency’s other services and the request should not
"place an onerous burden on the agency." Family Life League v.
Dept. of Public Aid, 493 N.E.2d 1054 (Ill. 1986). However, "mere administrative
inconvenience is not enough to override . . . the right of access," especially
when the requester is willing to pay for programming to excise non-disclosable
material. Hamer v. Lentz, 525 N.E.2d 1045 (Ill. App. Ct. 1988). Segregating
exempt from non-exempt material and "scrambling a record" to ensure
privacy of test scores are not "unduly burdensome" and do not constitute
creation of a "new" record. Bowie v. Evanston Community Consolidated
School Dist., 538 N.E.2d 557 (Ill. 1989). "When voter registration
records [are] on computer tapes, it makes no sense and accomplishes no legitimate
purpose to force individuals and organizations to copy the information from
[printed documents] rather than from the tape. . . . Therefore, as a general
rule, interested individuals and organizations may copy computer tapes containing
voter registration records." Ill. Op. Att’y Gen. S-1323, 1975-76 Report,
p. 219 (Dec. 15, 1977). An agency must provide data in the format requested,
such as computer tape, unless it can cite a specific exemption listed in the
statute. The mere fact that the same information had already been provided in
a printout does not justify denial of a request for a copy of the computer tape.
AFSCME v. County of Cook, 555 N.E.2d 361 (Ill. 1990).
The voter registration
database maintained by the State Board of Elections is not exempt from disclosure
under subsection 7(1)(a) of the FOI Act. The registration record cards from
which the voter registration database is created are public records open to
inspection by the public. It is equally clear that the General Assembly has
enacted express limitations upon the use of information contained in electronic
voter records. Although the statutes cited expressly prohibit political committees
or individuals from . . . using the computer tapes or computer discs or other
electronic data processing information containing voter registration information
for . . . commercial solicitation or other business purposes," sections
4-8, 5-7 and 6-35 of the Code do not "specifically prohibit" the disclosure
of the electronic voter registration records to the public. Ill. Op. Att’y
Gen. 02-009 (Aug. 28, 2002).
Fees.
An agency may charge only for the "actual cost" of copying a record
or for "use . . . of the equipment of the public body to copy records."
The fee may not include "the costs of any search for and review of the
record . . . unless otherwise provided by State statute." The agency may
waive fees when releasing information "is in the public interest."
5 Ill. Comp. Stat. 140/6. Courts have allowed agencies to charge for computer
programming to excise material exempt from public disclosure. Family Life
League v. Dept. of Public Aid, 493 N.E.2d 1054 (Ill. 1986); Hamer v.
Lentz, 525 N.E.2d 1045 (Ill. App. Ct. 1988).
It has long been
recognized that public officers may collect fees only as authorized by law.
Crocker v. Finley (1984), 99 Ill. 2d 444, 452; Dille v. Rice (1905), 120 Ill.
App. 353, 358. Although, under the provisions of division 3-5 of the Counties
Code, a county recorder is authorized to charge for, or receive a fee related
to, the filing of various instruments, 55 Ill. Comp. Stat. 5/3-5018, and the
certifying of specified records, 55 Ill. Comp. Stat. 5/3-5039, nothing in the
provisions of the Code, the Electronic Commerce Security Act, the FOI Act or
any other pertinent statutory provisions either expressly or impliedly authorizes
a county recorder to collect a fee for the examination of the county recorder’s
records, either electronically or otherwise. Ill. Att’y Gen. Op. 00-012
(Oct. 12, 2000).
Software. While the definition of public records does not specifically address software, software nonetheless may be available if it would otherwise fit within the definition, such as if the requested software were "electronic data processing records" or "documentary materials." See 5 Ill. Comp. Stat. 140/2(a). Likewise, software that generally fits the definition of the records exempted from disclosure under 5 Ill. Comp. Stat. 140/7(1) may be exempted as well. Note also that the exemption contained in 5 Ill. Comp. Stat. 140/7(1)(p) does specifically exempt "[a]dministrative or technical information associated with automated data processing operations, including but not limited to software . . . that, if disclosed, would jeopardize the security of the system or its data or the security of materials exempt" under 5 Ill. Comp. Stat. 140/7.
GIS. A Senate bill exempting computer geographic system
information from the state’s FOI Act became law on July 11, 2002. (SB 1706;
P.A. 92-0645, eff. July 11, 2002) In June 2003, an exemption allowing media access to the information was added to the law. (SB 539, eff. July 1, 2003)
"The county
board of any county that provides and maintains a countywide map through a Geographic
Information System (GIS) may provide for an additional charge of $3 for filing
every instrument, paper, or notice for record in order to defray the cost of
implementing or maintaining the county’s Geographic Information System."
Ill. Att’y Gen. Op. 00-012 (Oct. 12, 2000).
Resources. Illinois Press Association