In Chicago Recycling Coalition v. City of Chicago Department of Streets and Sanitation, an Illinois appellate court found that the search for responsive records conducted by the City of Chicago Department of Streets and Sanitation (“Department”), was consistent with the Freedom of Information Act (“FOIA”) and that FOIA does not require public bodies to make a demand on a third party who is delinquent or otherwise non-compliant with its obligation to submit reports.
The Department received a FOIA request seeking records related to recycling and waste management, including reports that third-party private haulers were required by city ordinance to submit to the Department. The Department responded to the request by producing responsive records that were in its possession but that did not include all reports that should have existed because certain third-party haulers failed to submit required reports to the Department. The FOIA requester alleged that the Department did not conduct a reasonable search for responsive documents because it did not ask third-party haulers to provide the missing reports.
The appellate court found that the Department adequately searched for third-party private hauler reports by searching and producing the records it had in its possession. The court rejected the argument that the Department had an obligation to request the missing reports from the third-party haulers under FOIA, because there was no evidence that the missing reports existed. While the reports would have been responsive to the request, the court determined that FOIA does not impose an obligation on a public body to compel a nonpublic, third-party entity to create and submit a record, even if the submission of such record is mandated by law. Finally, the court found that the Department did not violate FOIA by failing to produce residual rates and contamination data because the Department adequately searched for and produce records it had in its possession and was not required to produce additional records pursuant to FOIA.
This case serves as a reminder that a public body’s obligation to conduct a search for documents to respond to a FOIA request is not without limits. Records in the possession of a third party can be subject to FOIA, and a public body’s obligation to conduct a reasonable search for records can mean that the public body must request records from a third party. At the same time, public bodies are not obligated to seek records from third parties if they are not likely to possess responsive records. Whether a search is reasonable will be a case-by-case determination, so be sure to document all search efforts.
Source: Chicago Recycling Coalition v. City of Chicago Department of Streets and Sanitation, 2023 IL App (1st) 220154
