PAC Confirms Copyright Material Should Not Be Disclosed Under FOIA but May Be Inspected

In a nonbinding determination letter issued on April 10, 2019, the Office of the Attorney General’s Public Access Counselor (“PAC”) once again held that copies of copyright material, such as certain assessments, are not available through the Illinois Freedom of Information Act (“FOIA”). Instead, a requester may be allowed to inspect the material. Further, the PAC reiterated that the Illinois School Student Records Act (“ISSRA”) outlines the exclusive process for parents to access their children’s school student records. Therefore, it is inappropriate to request student testing information under FOIA.

A parent submitted a FOIA request to Township High School District No. 214 asking for a copy of her student’s Vineland-3 assessment results. The District, through the Assistant Superintendent, denied the request because the assessment is protected by copyright. However, the Assistant Superintendent invited the parent to the District to review her student’s assessment results. The parent filed a request for review with the PAC challenging the District’s decision on two grounds. First, the parent objected that the Assistant Superintendent responded to the request because she was not the designated FOIA officer. Second, the parent contested the District’s claim that the material was protected by copyright because her daughter had access to it.

The PAC determined both of the parent’s objections were misplaced. First, the PAC explained that under Section 3.5(a) of FOIA, a public entity may have multiple FOIA officers and the FOIA officers can have designees respond to the requests. 5 ILCS 140/3.5(a). The District, therefore, acted appropriately when the Assistant Superintendent, rather than the FOIA officer, responded to the FOIA request.

Second, the PAC agreed with the District that FOIA cannot be a tool to access material otherwise protected by copyright. Under FOIA, information that is protected from disclosure by state or federal law cannot be disclosed pursuant to FOIA. 5 ILCS 140/7(1)(a). Copyright material is protected under Section 106 of the Copyright Act (17 U.S.C. § 106) and, therefore, cannot be disclosed without authorization. FOIA is not a proper tool to challenge copyright claims. Citing its own precedent, the PAC held that when material appears to be copyright protected, it is appropriate for the public body to invite a requester to inspect the material and not provide the requester with copies. Again, the PAC found the District acted appropriately.

Additionally, the PAC noted that the student’s test results are exempt from disclosure under FOIA. Specifically, Section 7.5(r) of FOIA prohibits the disclosure of school student records; and the only way for a parent to access those records is through ISSRA. 5 ILCS 140/7.5(r).

In this decision, the PAC reiterated that testing material which appears to be copyrighted, as well as student responses to the tests, are exempt under FOIA and should not be disclosed.

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