Hites v. Waubonsee Cmty. Coll.

2018 IL App (2d) 170617

117 N.E.3d 408

427 Ill.Dec. 23

Daniel HITES, Plaintiff-Appellant,

v.WAUBONSEE COMMUNITY COLLEGE, Defendant-Appellee,

No. 2-17-0617

Appellate Court of Illinois, Second District.

Opinion filed July 20, 2018

Elizabeth Cutri, Adam M. Kaufmann, and Jeremy D. Roux, of Kirkland & Ellis LLP, of Chicago, for appellant.

Paulette A. Petretti, of Scariano, Himes and Petrarca, Chtrd., of Chicago, for appellee.

JUSTICE SPENCE delivered the judgment of the court, with 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.

¶ 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, 404 Ill.Dec. 636, 56 N.E.3d 1049. 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 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 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 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 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...