Hites v. Waubonsee Cmty. Coll.

56 N.E.3d 1049

404 Ill.Dec. 636

Daniel HITES, Plaintiff–Appellant

v.WAUBONSEE COMMUNITY COLLEGE, Defendant–Appellee.

No. 2–15–0836.

Appellate Court of Illinois, Second District.

Opinion Filed June 6, 2016.

Modified Upon Denial of Rehearing July 13, 2016.

Reid P. Huefner, of Kirkland & Ellis LLP, of Chicago, for appellant.

Paulette A. Petretti and Anthony G. Scariano, both of Scariano, Himes & Petrarca, Chtrd., of Chicago, for appellee.

OPINION

Justice SPENCE delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Daniel Hites, requested data from defendant, Waubonsee Community College (WCC), pursuant to the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1, et seq. (West 2014)). The data he sought were “raw inputs” for fields on WCC's student registration forms, as well as zip codes of students in specified classes and the total numbers of students in specified classes. WCC responded that it did not have documents responsive to his requests.

¶ 2 Plaintiff sought recourse in the circuit court, and WCC moved to dismiss his complaint under section 2–619 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2–619 (West 2014) ). After an evidentiary hearing, the circuit court dismissed plaintiff's complaint because his requests were not for public records under FOIA.

¶ 3 On appeal, plaintiff argues that his requests were for public records under FOIA. For the reasons contained herein, we affirm in part and reverse in part, because 7 of plaintiff's 13 requests were for public records under FOIA.

¶ 4 I. BACKGROUND

¶ 5 A. Plaintiff's Complaint and FOIA Requests

¶ 6 Plaintiff filed his complaint against WCC on March 18, 2014. He sought (1) an order for WCC to produce the nonexempt public records he requested, (2) a declaration that WCC willfully and intentionally failed to comply with FOIA and a civil penalty for each violation, and (3) an award of attorney fees and costs.

¶ 7 Plaintiff made his first FOIA requests on January 6, 2011. WCC provided documents responsive to some but not all of plaintiff's requests. Plaintiff made additional FOIA requests on February 14, 2013. This second set of requests formed the basis for the current litigation. Plaintiff requested:

(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 GED classes in the fall of 2011 at the Aurora campus.

(3) The zip codes of all people taking ESL classes in the fall of 2011 at the Aurora campus.

(4) The total number of registered students without social security numbers in the fall of 2011 at the Aurora campus.

(5) The raw input for the “city” 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 “county code” field on the student registration forms for all students registered in the fall of 2011 at the Aurora campus.

(7) The raw input for the “U.S. Citizen” field on the student registration form for all students registered at the Aurora campus in the fall of 2011.

(8) 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.

(9) The total number of registered students by year from 1995 to 2008 at the Aurora campus.

(10) The total number of registered students by year from 1995 to 2008 taking ESL classes at the Aurora campus.

(11) The total number of registered students by year from 1995 to 2008 taking ABE/GED classes at the Aurora campus.

(12) The total number of registered students from 1995 to the present taking classes at Beaupre Elementary School, Family Focus, Hermes Elementary School, Rollins Elementary School, St. Mark's Lutheran Church, and Westminster Presbyterian Church (as shown on page AS of the fall 2009 workforce development noncredit course schedule).

(13) The total number of out-of-district students in the fall of 2011 at the Aurora campus.

(14) A copy of the charter for WCC.

(15) The mailing addresses of WCC trustees.

¶ 8 WCC responded to plaintiff's requests on February 21, 2013. It provided the same response to requests (1) through (13): “The college does not aggregate this information as there is no purpose for the college to do so. Therefore, there is no responsive document to your request.”

¶ 9 In an August 2, 2013, letter, plaintiff replied to WCC's response. Plaintiff maintained that the requested information should be provided. In the event that WCC was unwilling to reconsider its position, plaintiff alternatively requested that WCC provide a complete copy of its databases housing the requested information. WCC responded on August 8 that it would not change its position or alternatively provide a complete copy of its databases. Plaintiff and WCC exchanged more letters in which plaintiff asserted that WCC needed to provide the requested information and WCC claimed that it was not required to do so.

¶ 10 On September 3, 2013, plaintiff requested that WCC furnish a description of how the requested information could be obtained. On September 11, WCC responded that it was not required by FOIA to answer questions. Rather, FOIA allowed only access to public records.

¶ 11 On October 11, 2013, plaintiff proposed a “final attempt at compromise” via letter, with which he included an Adobe-based script that could automate the redaction process, in an effort to minimize WCC's alleged burden. The letter described the script's functioning and use. WCC responded that it could not use the Adobe-based script but that, even if it could, the script would not diminish the burden of retrieving the requested information. It therefore declined to provide the information.

¶ 12 B. Motion to Dismiss

¶ 13 On May 2, 2014, WCC filed a motion to dismiss plaintiff's complaint under section 2–619 of the Code (735 ILCS 5/2–619 (West 2014) ). WCC moved to dismiss for lack of jurisdiction (735 ILCS 5/2–619(a)(1) (West 2014)) or, alternatively, because the complaint was barred by an affirmative matter (735 ILCS 5/2–619(a)(9) (West 2014)). The affirmative matter was that FOIA did not require WCC to create new records to respond to plaintiff's requests. WCC argued that plaintiff improperly requested it to provide general data and aggregate statistics and did not reasonably identify a public record. To wit, WCC argued that “the gravamen of plaintiff's Complaint is that the College will not compile data and information for him,” but FOIA was not designed to compel such compilation of data. WCC further argued that compliance with plaintiff's requests would be significantly burdensome; that it had properly invoked per se exemptions under FOIA; and that plaintiff's complaint should be barred by laches.

¶ 14 On September 17, 2014, the court set an evidentiary hearing to address WCC's burden in complying with plaintiff's requests and to determine the availability of alternative methods of providing plaintiff the information he sought.

¶ 15 C. Evidentiary Hearing

¶ 16 The court held an evidentiary hearing over the course of three days—March 4, 6, and 12, 2015—and we summarize the relevant testimony. Terrence Felton, WCC's chief information officer (CIO), testified as to WCC's databases as follows.

WCC had two databases with information responsive to plaintiff's FOIA requests: the Banner database (Banner), which housed GED files, and the Driver Safety database. Banner was a relational database made by Oracle, and WCC used it to handle “every major function” at WCC, including finance, financial aid, student records, and inventory. Banner tracked all sorts of student information, including a student's name, address, and zip code, and what courses a student took and when he or she took them. It also stored the county in which a student lived, whether a student was a United States citizen, and whether a student lived within the school district. Information in Banner flowed two ways: an authorized user could look up information such as a student's name or zip code and could also enter a student's name or zip code into the system. WCC employed two IT employees who could extract information from WCC's database by writing a program to do so. For example, it was possible to search Banner for the name and zip code of all students taking an ESL class in 2011. Felton continued, “[y]ou could write a program to do pretty much anything you want.” It “would take a while,” but it was possible to write a program to extract from Banner everything that plaintiff sought in his FOIA requests.

¶ 17 The Driver Safety database was also a relational database. WCC could search it and extract information from it just as it could with Banner. The Driver Safety database tracked students' names, zip codes, and classes taken.

¶ 18 Alexander Deligtisch, a director in information management services with AlixPartners, was accepted by the circuit court as a data analytics expert, and he testified as follows. He worked in litigation analytics, which included work with attorneys on behalf of their clients with databases, for purposes of commercial litigation. He had spent 19 years working with data analytics. He worked with databases, both relational and nonrelational, on a daily basis, and he often worked to extract responsive data without also extracting personally identifying information.

¶ 19 He identified both Banner and the Driver Safety database as relational databases, which were systems that stored data in a grid format. Relational databases were common and widely used by businesses. Relational databases were like Excel spreadsheets, with data organized in columns and rows, forming tables. Each database would usually contain many tables. Searches across multiple tables were not only possible but were the purpose of a relational database. For instance, the relational database allowed for a search of the zip codes of all students taking a particular class. In order to perform such a search for zip codes, one would...