In This Issue:
- When Records Are Not Reasonably Accessible
- To Disclose or Not to Disclose? That is the Question When Weighing Competing Interests of Public Disclosure and Confidentiality of Records Following a Grand Jury Investigation
- Summary of Binding 2017 PAC Opinions
When Records Are Not Reasonably Accessible
The Illinois Freedom of Information Act (FOIA) was amended in December, 2014 to provide that a public body is not required to copy a public record that is published on the public body's website. 5 ILCS 140/8.5. The exception requires that the requester be able to "reasonably access" the record online after being directed to the website by the public body. A recent Illinois Appellate Court decision, Garlick v. Naperville Township, found that copyrighted materials are not properly challenged under FOIA.
Mr. Garlick requested an electronic copy of Naperville Township's real-property database in its native file format. The request was declined stating that it did not have possession of or access to the records in native file format (5 ILCS 140/6(a)), nor was it required to create such a file. (5 ILCS 140/1). Mr. Garlick was directed to its website, where he could search for the records on a parcel-by-parcel basis. 5 ILCS 140/8.5 (Records maintained online). JRM Consulting, Inc. (JRM) asserted confidentiality, trade-secret and copyright claims over the intellectual property.
Mr. Garlick apparently didn't like this and filed suit for declaratory judgment arguing that access to the data base in this manner did not constitute reasonable access. Mr. Garlick argued that there was substantially more information stored within the database than what was published online. He argued the Township was compelling him to launch 32,000 independent web database searches and such an endeavor would involve over 2,600 hours of time.
Mr. Garlick further argued that the township cannot claim JRM's trade-secret and copyright protections as an exemption on the ground that public data is so inextricably intertwined with the copyrightable elements of its design that the public data cannot be extracted without revealing these copyrightable elements.
The court found this argument failed as the Township offered to provide all of the contents of the database excluding the software and such satisfied the request. The Township's motion to dismiss was granted. The second district court of appeals reversed and remanded holding Mr. Garlick had properly pleaded a reasonable access claim. Any question as to whether the database was sufficiently available on the website was thus a question of fact that should be decided at a later stage in the trial.
On remand, cross motions for summary judgment were filed. The Township's motion was granted and the Court found that two statutory exemptions applied to preclude disclosure of the database in its native file format because of JRM's assertions of confidentiality, trade-secret and copyright protection. The exemption applicable in this case was (5 ILCS 104/7(1)(a)).
- Information specifically prohibited from disclosure by federal or state law or rules and regulations implementing federal or state law.
Hence, the Trade Secrets Act precluded disclosure of the database in its native format because JRM had not consented to the disclosure. The court found that challenges to the validity of trade-secret or copyright claims were not proper proceedings under FOIA.
What's the key takeaway of this ruling?: In Illinois, persons are entitled to full and complete information regarding the affairs of the government and the official acts and policies of those who represent them. Courts liberally construe FOIA to achieve this goal. The Act also provides restraints on access to information, but these exemptions are narrowly construed. It is important for public entities to be aware of these situations where copyright or contractual obligations may prevent disclosure of records under FOIA.
To Disclose or Not to Disclose? That is the Question When Weighing Competing Interests of Public Disclosure and Confidentiality of Records Following a Grand Jury Investigation
The appeal consolidated two cases as to competing interests of...
