                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           Shehadeh v. Madigan, 2013 IL App (4th) 120742




Appellate Court              JAMAL SHEHADEH, Plaintiff-Appellant, v. LISA MADIGAN, Illinois
Caption                      Attorney General, Defendant-Appellee.



District & No.               Fourth District
                             Docket No. 4-12-0742


Filed                        October 4, 2013


Held                         Summary judgment was properly entered for the Attorney General in
(Note: This syllabus         plaintiff’s action challenging the Attorney General’s claim that complying
constitutes no part of       with plaintiff’s request under the Freedom of Information Act for copies
the opinion of the court     of publications or other records that could provide guidance in complying
but has been prepared        with Freedom of Information Act laws would be unduly burdensome,
by the Reporter of           since a request that is overly broad and requires the location and
Decisions for the            inspection of a vast quantity of material largely unnecessary to the
convenience of the           requestor’s purpose is an undue burden, the Act did not require the
reader.)
                             Attorney General’s office to prove the adequacy of its search, plaintiff’s
                             refusal to narrow his request did not bar the Attorney General from
                             continuing to assert the unduly burdensome exemption, and the statute
                             itself is the primary source of guidance on the issue of compliance with
                             the Act.


Decision Under               Appeal from the Circuit Court of Sangamon County, No. 12-MR-248, the
Review                       Hon. John Schmidt, Judge, presiding.



Judgment                     Affirmed.
Counsel on                 Jamal Shehadeh, of Taylorville, appellant pro se.
Appeal
                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, and Laura M. Wunder, Assistant Attorney General, of
                           counsel), for appellee.


Panel                      JUSTICE HOLDER WHITE delivered the judgment of the court, with
                           opinion.
                           Presiding Justice Steigmann and Justice Harris concurred in the judgment
                           and opinion.




                                             OPINION

¶1           In March 2012, plaintiff, Jamal Shehadeh, filed a complaint pursuant to the Illinois
        Freedom of Information Act (FOIA) (5 ILCS 140/1 to 11.5 (West 2012)), alleging the
        Attorney General was improperly withholding records. The previous month, plaintiff had
        requested from the Attorney General “copies of any publications, opinions, reports or other
        records that would or could be used for guidance by [the Attorney General’s] office or any
        other public body in complying with Illinois’ FOIA laws.” The Attorney General responded
        that complying with plaintiff’s request would be unduly burdensome under section 3(g) of
        FOIA. 5 ILCS 140/3(g) (West 2012). Following an August 2012 hearing, the circuit court
        granted the Attorney General’s motion for summary judgment, dismissing plaintiff’s
        complaint.
¶2           Plaintiff appeals, arguing the circuit court erred by granting summary judgment because
        (1) the Attorney General did not prove its search for records was adequate, (2) FOIA did not
        obligate plaintiff to narrow the scope of his search, and (3) the Attorney General failed to
        show the production of plaintiff’s requested records would unduly burden its operations.
¶3           We affirm.

¶4                                       I. BACKGROUND
¶5          On February 11, 2012, plaintiff sent a letter to the Attorney General’s office, requesting
        records pursuant to FOIA. Specifically, plaintiff sought “copies of any publications, opinions,
        reports or other records that would or could be used for guidance by [the Attorney General’s]
        office or any other public body in complying with Illinois’ FOIA laws.” A file stamp
        indicates the Attorney General’s office received plaintiff’s letter on February 16, 2012. On
        February 24, 2012, a FOIA officer at the Attorney General’s office sent plaintiff a response,
        stating the office had determined producing copies of all records that would or could be used

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       as guidance would be unduly burdensome under section 3(g) of FOIA (5 ILCS 140/3(g)
       (West 2012)). According to the officer, a search of the Attorney General’s records retrieved
       over 9,200 potentially responsive files and complying with plaintiff’s request would be
       unduly burdensome because staff would have to go through each file by hand to determine
       which records were responsive and then review and redact information from those responsive
       records to protect against the release of exempt information. The officer requested plaintiff
       narrow the scope of his request “to bring it within manageable proportions pursuant to
       section 3(g) of the FOIA.” Specifically, the officer asked plaintiff to provide “information
       regarding those FOIA issues or the particular exemptions for which [plaintiff sought]
       guidance.”
¶6          On February 27, 2012, plaintiff responded to the FOIA officer’s letter by mail, stating
       that, pursuant to section 3(d) of FOIA, the Attorney General’s office could not assert the
       unduly burdensome exemption or request that plaintiff narrow his search because the office
       received plaintiff’s letter on February 16, 2012, nine days before the office sent its response.
       Plaintiff stated that “[e]ven excluding weekends and holidays,” the office failed to “comply
       with the five day requirement.” Plaintiff further asserted he did not believe his request was
       too broad, but rather, that the office was “attempting to circumvent [its] obligations under
       the FOIA.” Plaintiff asked that the Attorney General provide him copies of his February 11,
       2012, and February 27, 2012, letters as well as the records he had requested.
¶7          Before the FOIA officer responded to plaintiff, on February 28, 2012, plaintiff sent a
       letter to the Attorney General’s Public Access Counselor (Counselor), requesting the
       Counselor review the FOIA officer’s actions. In his letter, plaintiff again asserted the FOIA
       officer failed to respond to his request within five days and thus could not assert the unduly
       burdensome exemption.
¶8          On March 8, 2012, the FOIA officer responded to plaintiff, explaining the Attorney
       General’s office had responded to plaintiff’s request within the requisite five-day time frame.
       With respect to the records plaintiff requested, the officer reiterated the statements in her
       February 24, 2012, letter that plaintiff’s request was overly broad and unduly burdensome.
       The officer again asked plaintiff to narrow his request, suggesting plaintiff provide
       information regarding the specific FOIA issues or exemptions for which he sought guidance.
       Per plaintiff’s request, the officer provided copies of plaintiff’s February 11, 2012, and
       February 27, 2012, letters.
¶9         On March 9, 2012, the Counselor responded to plaintiff’s February 28, 2012, letter. The
       Counselor determined the FOIA officer responded within five business days after receiving
       plaintiff’s letter. Further, the Counselor found the Attorney General’s office’s assertion that
       compliance with plaintiff’s FOIA request would be unduly burdensome was proper in light
       of the officer’s assertions that over 9,200 potentially responsive files existed. The Counselor
       noted that the office complied with section 3(g) of the FOIA by offering plaintiff an
       opportunity to narrow his request, but plaintiff declined to do so. Accordingly, the Counselor
       determined no further inquiry was necessary.
¶ 10        On March 15, 2012, plaintiff filed a FOIA complaint in the circuit court of Sangamon
       County, alleging the Attorney General was “improperly withholding records from the


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       Plaintiff in violation of t[he] FOIA.” Plaintiff again pointed out section 3(d) of the FOIA (5
       ILCS 140/3(d) (West 2012)) required public bodies to respond to FOIA requests within five
       business days.
¶ 11        In May 2012, the Attorney General filed a motion for summary judgment pursuant to
       section 2-1005 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-1005 (West
       2012)), asserting the office had (1) complied with FOIA and (2) responded to plaintiff’s
       request within the statutory time frame. In the alternative, the Attorney General argued
       plaintiff’s complaint should be dismissed because plaintiff failed to comply with section 2-
       606 of the Civil Code (735 ILCS 5/2-606 (West 2012)) when plaintiff failed to attach the
       FOIA-related correspondence to his complaint.
¶ 12        Later that month, plaintiff filed a response, asserting summary judgment was
       inappropriate because the Attorney General’s office had not proved it properly conducted its
       search and that the production of records would be unduly burdensome. Plaintiff further
       contended (1) he had no obligation to attempt to narrow his request under section 3(g) of the
       FOIA prior to seeking judicial review; and (2) the Attorney General’s response was not
       timely. Plaintiff also filed a motion for leave to file an amended complaint, attaching thereto
       the FOIA-related correspondence.
¶ 13        Following an August 2012 telephone hearing, the circuit court allowed plaintiff leave to
       file his amended complaint. Thereafter, the court granted the Attorney General’s motion for
       summary judgment “[f]or the reasons set forth in the [Attorney General’s] office’s Motion
       for Summary Judgment,” dismissing plaintiff’s complaint.
¶ 14        This appeal followed.

¶ 15                                        II. ANALYSIS
¶ 16        On appeal, plaintiff argues the circuit court erred by granting summary judgment because
       (1) the Attorney General’s office did not prove its search for records was adequate, (2) FOIA
       did not obligate plaintiff to narrow the scope of his search, and (3) the Attorney General’s
       office failed to show the production of plaintiff’s requested records would unduly burden its
       operations.

¶ 17                           A. The Relevant Statutory Provisions
¶ 18        Before addressing plaintiff’s claims, we first outline the relevant FOIA provisions.
¶ 19        Section 3(a) of FOIA provides that a public body “shall make available to any person for
       inspection or copying all public records,” except records specifically exempted by section
       7 of FOIA. 5 ILCS 140/3(a) (West 2012). However, pursuant to section 3(g), a public body
       may decline to comply with a FOIA request “calling for all records falling within a category”
       if “compliance with the request would be unduly burdensome for the complying public body
       and there is no way to narrow the request and the burden on the public body outweighs the
       public interest in the information.” 5 ILCS 140/3(g) (West 2012). Before invoking the
       section 3(g) exemption, the public body must provide the requester “an opportunity to confer
       with it in an attempt to reduce the request to manageable proportions.” 5 ILCS 140/3(g)


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       (West 2012). The public body must also specify, in writing, the reasons producing the
       records would be unduly burdensome and the extent to which compliance would burden the
       public body’s operations. 5 ILCS 140/3(g) (West 2012).
¶ 20        Plaintiff pursued two avenues of review for individuals whose FOIA requests are denied.
       Under section 9.5 of FOIA, a person may file a request for review with the Attorney
       General’s Public Access Counselor, who “shall determine whether further action is
       warranted.” 5 ILCS 140/9.5(a), (c) (West 2012). The Counselor may resolve a request for
       review by mediation, by issuing a binding opinion, or “by a means other than the issuance
       of a binding opinion.” 5 ILCS 140/9.5(f) (West 2012). Conversely, section 11 of FOIA
       allows “[a]ny person denied access to inspect or copy any public record by a public body”
       to file in the circuit court a “suit for injunctive or declaratory relief.” 5 ILCS 140/11(a) (West
       2012).
¶ 21        Having outlined the FOIA provisions governing plaintiff’s contentions, we now turn to
       the merits of those contentions.

¶ 22           B. Whether the Circuit Court Erred by Granting Summary Judgment
¶ 23       Plaintiff argues the circuit court erroneously granted summary judgment because (1) the
       Attorney General’s office did not prove its search for records was adequate, (2) FOIA did not
       obligate plaintiff to narrow the scope of his search, and (3) the Attorney General’s office
       failed to show the production of plaintiff’s requested records would unduly burden its
       operations.
¶ 24       Summary judgment may be granted where “the pleadings, depositions, and admissions
       on file, together with the affidavits, if any, show that there is no genuine issue as to any
       material fact and that the moving party is entitled to a judgment as a matter of law.” 735
       ILCS 5/2-1005(c) (West 2012). We review a circuit court’s entry of summary judgment
       de novo. Standard Mutual Insurance Co. v. Lay, 2013 IL 114617, ¶ 15, 989 N.E.2d 591.
¶ 25       In this case, plaintiff challenges the Attorney General’s claim of the unduly burdensome
       exemption. “A request that is overly broad and requires the public body to locate, review,
       redact and arrange for inspection a vast quantity of material that is largely unnecessary to the
       [requestor’s] purpose constitutes an undue burden.” National Ass’n of Criminal Defense
       Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, 17, 924 N.E.2d 564, 577 (2010).

¶ 26          1. Plaintiff’s Claim That the Attorney General’s Search Was Inadequate
¶ 27       Plaintiff first argues the Attorney General’s office did not prove the adequacy of its
       search. According to plaintiff, the Attorney General’s office needed to “explain the types of
       files it maintains, the search terms employed, and that all files expected to contain the records
       requested were searched.”
¶ 28       First, we note that section 3(g) of FOIA does not contain such a requirement. 5 ILCS
       140/3(g) (West 2012). Moreover, we agree with the Attorney General that plaintiff’s FOIA
       request was patently broad on its face, as it sought any publication or record that would or
       could be used by any public body to comply with Illinois’s FOIA provisions. Accordingly,


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       the Attorney General’s response, explaining the burden that complying with plaintiff’s
       request would cause, was sufficient to claim a section 3(g) exemption in this case.
¶ 29        Plaintiff cites a series of federal cases for the proposition that a public agency must prove
       the adequacy of its search. First, we note that federal court decisions are persuasive but not
       binding on state courts and “Illinois courts have repeatedly noted that the Illinois version of
       the FOIA is different from the federal version and is, therefore, subject to a different
       interpretation.” Rockford Police Benevolent & Protective Ass’n, Unit No. 6 v. Morrissey, 398
       Ill. App. 3d 145, 153, 925 N.E.2d 1205, 1212 (2010). Moreover, the cases cited by plaintiff
       are inapposite because they involved allegedly missing or irretrievable documents. See
       SafeCard Services v. Securities & Exchange Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991)
       (the agency claimed certain requested documents had been mistakenly destroyed or were
       missing); Miller v. United States Department of State, 779 F.2d 1378, 1384 (8th Cir. 1985)
       (the plaintiff argued the agency conducted an inadequate search because that search did not
       uncover certain documents); Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-14
       (D.C. Cir. 2003) (the plaintiff challenged the agency’s search as inadequate because the
       agency did not find documents responsive to the plaintiff’s request and the agency initially
       delayed its search). Here, the Attorney General’s office has not claimed its search failed to
       uncover certain documents or that those documents no longer exist; rather, the Attorney
       General’s office claimed its search revealed over 9,000 documents and thus compliance with
       plaintiff’s FOIA request would be unduly burdensome.
¶ 30        Plaintiff also cites BlueStar Energy Services, Inc. v. Illinois Commerce Comm’n, 374 Ill.
       App. 3d 990, 871 N.E.2d 880 (2007), for the proposition that a defendant agency has the
       burden of showing its search was adequate. BlueStar is inapposite, however, because
       BlueStar involved a claimed section 7 exemption, not a section 3(g) exemption. BlueStar,
       374 Ill. App. 3d at 991, 871 N.E.2d at 882. We do not believe an agency claiming a section
       3(g) exemption is required to show the adequacy of its search where, as here, the breadth of
       plaintiff’s request is evident from the face of the plaintiff’s request.

¶ 31         2. Plaintiff’s Claim That He Was Not Required To Narrow His Request
¶ 32       Plaintiff also argues summary judgment was inappropriate because “[n]othing within the
       plain language” of section 3(g) of FOIA requires a requestor to confer with a public body to
       narrow the scope of the requestor’s search before seeking judicial review. We agree with
       plaintiff that FOIA does not contain such a requirement; on the other hand, however, nothing
       in FOIA precluded the Attorney General from continuing to assert the unduly burdensome
       exemption after plaintiff refused to narrow his request.

¶ 33           3. Plaintiff’s Claim That Compliance Was Not Unduly Burdensome
¶ 34       Finally, plaintiff argues the Attorney General failed to show the burden of complying
       with plaintiff’s FOIA request outweighed the public interest in compliance. We disagree.
       First, we find unpersuasive plaintiff’s assertion that the Attorney General’s office needed to
       provide affidavits of staff members or otherwise prove its claim that producing plaintiff’s
       requested documents would be unduly burdensome. Section 3(g) of FOIA requires only that

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       a public body specify in writing the reasons compliance would be unduly burdensome and
       the extent to which compliance would burden the operations of the public body. 5 ILCS
       140/3(g) (West 2012). Here, the Attorney General’s office satisfied section 3(g) by
       explaining its staff members would have to go through all of the 9,200 potentially responsive
       documents by hand to determine whether they were responsive and to review and redact
       exempt information from those records. Although plaintiff is correct that various Illinois
       decisions construing section 7 of FOIA have stated a public body must supply a detailed
       justification for claiming a section 7 exemption in order to allow adequate adversarial testing
       (see, e.g., Illinois Education Ass’n v. Illinois State Board of Education, 204 Ill. 2d 456, 464,
       791 N.E.2d 522, 527 (2003)), plaintiff’s case involves a section 3(g) unduly burdensome
       exemption, and the Attorney General sufficiently explained the nature of the undue burden
       of complying with plaintiff’s request.
¶ 35       As a corollary argument, plaintiff asserts that the review of 9,200 records would not be
       unduly burdensome for the Attorney General “given the substantial resources at the disposal
       of the [Attorney General].” We are not persuaded. Requiring the Attorney General’s staff to
       review 9,200 records would impede the staff’s ability to respond to other FOIA requests and
       perform its other duties in a timely fashion. Likewise, we find little merit in plaintiff’s claim
       that the “significant interest in the means, methodology, and criteria the [Attorney General’s]
       Public Access Bureau utilizes when issuing advisory and binding opinions” under section
       9.5 of FOIA outweighs the burden of complying with plaintiff’s FOIA request. As the
       Attorney General points out, the primary source of guidance for compliance with FOIA–the
       statute itself–is already readily available to the public.
¶ 36       Based on the foregoing, we conclude the circuit court properly granted the Attorney
       General’s motion for summary judgment.

¶ 37                                   III. CONCLUSION
¶ 38       For the reasons stated, we affirm the circuit court’s judgment.

¶ 39       Affirmed.




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