                             2018 IL App (2d) 170617 

                                  No. 2-17-0617

                            Opinion filed July 20, 2018 

______________________________________________________________________________

                                              IN THE


                              APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

DANIEL HITES,                          ) Appeal from the Circuit Court
                                       ) of Kane County.
      Plaintiff-Appellant,             )
                                       )
v.                                     ) No. 14-CH-398
                                       )
WAUBONSEE COMMUNITY COLLEGE, ) Honorable
                                       ) David R. Akemann,
      Defendant-Appellee,              ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE SPENCE delivered the judgment of the court, with opinion.
       Presiding Justice Hudson and Justice Schostok concurred in the judgment and opinion.

                                            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.
2018 IL App (2d) 170617


¶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. 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



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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



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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



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2018 IL App (2d) 170617


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



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2018 IL App (2d) 170617


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 run by the State of Illinois.

¶ 16   On cross-examination, counsel first questioned Felton about the Banner database. Felton

stated that Banner was a relational database made by Oracle and housed by WCC and that the

school had been using Banner since 2007. Banner tracked, among other things, students’ names,

street addresses (including county), and ZIP codes. It tracked the names, times, and locations of

courses that students had taken, and it also stored information about whether students resided in

or out of the district and were U.S. citizens. A user with access to the Banner database could

search and extract information from the database, including ZIP codes.

¶ 17   Felton agreed that Banner could be searched for the names and ZIP codes of all students

taking ESL classes in 2011, explaining that “[y]ou could write a program to do pretty much

anything you want.” It was possible to write programs to respond to all of plaintiff’s FOIA

requests for information from the Banner database. Counsel then asked whether “that would all

come out of the DAISI database,” to which Felton responded, “No.” Counsel continued, “[t]hat

would all come out of the Banner database?” and Felton responded, “Yes.” Felton did not know

much about DAISI, and WCC did not own, operate, or maintain DAISI.



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2018 IL App (2d) 170617


¶ 18   After this exchange about DAISI, counsel turned to the Driver Safety database. Felton

testified that the Driver Safety database operated similarly to Banner.         It was a relational

database, and it tracked students’ names, ZIP codes, and classes taken, including when and

where those classes were taken. As in Banner, it was possible to write a program to search and

extract students’ ZIP codes for a certain driver safety class at a certain campus. As in Banner,

“[y]ou can write a program to do anything.”

¶ 19   When asked why writing each program would take a week, Felton answered, “because

those people have other responsibilities.” When asked whether it would take someone a week to

actually write a program to search the Banner or the Driver Safety database, he answered no.

When asked how long a staff member would take to extract the ZIP codes of all students taking

the National Safety Council’s Defensive Driving Course in 2011—assuming that the person did

nothing but write the program—Felton said that he “would give them a day.” Felton’s one-day

timeframe applied to each of plaintiff’s remaining FOIA requests. 1 Felton explained that he had

two staff members who could write programs to respond to plaintiff’s FOIA requests. Both staff

members were systems analysts who had held their positions for at least 10 years. He had

consulted with them about plaintiff’s FOIA requests, and they told him that responding to each

request would take about a day.

¶ 20   Deligtisch testified next, and our summary of his testimony is drawn in part from our

prior opinion, Hites I, 2016 IL App (2d) 150836, ¶¶ 18-20. Deligtisch was accepted by the

circuit court as an expert in the field of database analytics, and he testified as follows. He

       1
           Felton testified that one of plaintiff’s FOIA requests would have taken two or three

days, but that specific request is not at issue here, as we affirmed the dismissal of that request in

our prior opinion.



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worked with databases, both relational and nonrelational, on a daily basis, and he often worked

to extract responsive data without extracting personally identifying information. He identified

both the Banner and the Driver Safety databases as relational databases, which stored data in a

grid format, although he admitted that he had not personally worked on those databases.

Relational databases were common and widely used by businesses. Relational databases were

like Excel spreadsheets, organizing data in columns and rows, forming tables. “One would

expect [a relational database] to have many tables.”

¶ 21   Searches across multiple tables not only were possible but were the purpose of a

relational database. For instance, a relational database allowed for a search of the ZIP codes of

all students taking a particular class—“from the perspective of these relational databases, it really

[did not] matter if there [were] ten rows of students or 20 million rows of students.” In order to

perform a search for ZIP codes, one would have to write code to perform the search, but this did

not constitute writing a program. Rather, the query would essentially say, “ ‘Go to this table,

look at these columns, pull out this data and put it in a spreadsheet or a grid for me.’ ” Writing

the necessary query would take less than one minute, and the entire process—from writing the

query to producing a chart with the requested data—would take two to five minutes. Each query

would be a short language command, around 10 to 20 words, and the database would provide the

information in a grid that looked like an Excel spreadsheet. Relational databases allowed the

user to quickly extract the data and put it in an Excel format.

¶ 22   Deligtisch did not believe that he needed to work with the Banner or the Driver Safety

database to render his opinion, because every relational database was set up in the same format

and utilized the same code and tools. He analogized running a search query on a relational

database to pulling out responsive files from a filing cabinet.



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¶ 23   Plaintiff testified as follows. His interest in WCC and its governance went back to

around 2010. WCC was located in a “special service area,” which meant that those in the area

got “taxed a little bit more than any other place in Aurora.” The tax funds went to an oversight

committee called Aurora Downtown, and the committee’s goals were “to help revitalize,

beautify, and bring back downtown.” He was a member of Aurora Downtown, and he was the

chairman of the parking committee when Aurora Downtown was founded. In his function as

parking-committee chairman, he noticed that Aurora’s downtown parking study was “out of

balance” and that the study underestimated the number of parking spots for WCC’s new

downtown campus by up to 800 spots. Plaintiff had walked around the downtown campus and,

he stated, “you really don’t see any students out there. There aren’t any businesses that work

with them. It has not had any real economic benefit.” He wanted to find out who the students

were, how to market to them, and how the committee could orient WCC to help reinvigorate

downtown Aurora.

¶ 24   At this point, the court interrupted, stating that it did not understand how plaintiff’s

testimony was related to the issue before the court. Counsel responded that the testimony went

toward establishing the public interest that needs to be balanced with the burden of compliance.

¶ 25   Later in plaintiff’s testimony, counsel returned to the public-interest issue, asking him

whether there were other reasons, beyond inconsistencies in the parking study, that made him

believe that the information he sought from WCC was for the public good. Plaintiff answered

that WCC had a responsibility to help the community “move along” and to live up to its

commitments to the community after “spending $45 million on a new campus.” There were

“numerous agreements” between WCC and Aurora in which Aurora gave WCC incentives and




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preferential treatment, and the requested information could help show whether WCC was

operating in the best interests of Aurora and whether those agreements should be reconsidered.

¶ 26   Plaintiff continued that he was not against WCC having its campus downtown, but he

wanted to make sure that WCC was serving Aurorans. He wanted to see the downtown campus

“balanced out,” and he worried that WCC’s catering to GED and ESL students from outside

Aurora resulted in students from Aurora attending classes at campuses outside Aurora instead of

at the downtown campus that was built for them.

¶ 27                 C. Circuit Court’s Order Granting WCC’s Motion to Dismiss

¶ 28   On June 10, 2017, the court granted WCC’s motion to dismiss, finding that WCC had

shown that compliance with plaintiff’s FOIA requests would constitute an undue burden.

¶ 29   The circuit court first recounted the relevant testimony of Felton, Deligtisch, and plaintiff

from the March 2015 evidentiary hearing. It noted that plaintiff testified that he had become

interested in the requested information when he was part of Aurora Downtown. Plaintiff wanted

to determine a way to market WCC’s downtown Aurora campus in an effort to revitalize

downtown businesses. The court continued that plaintiff also stated that he wanted to determine

whether WCC was fulfilling the promises it made in spending $45 million on a new campus.

The court cited his testimony that there were “ ‘numerous agreements between [WCC] and the

City of Aurora where Aurora [was] giving incentives *** to [WCC] that would have to be

reconsidered if it’s showing that [WCC] is not working in the best interests of Aurora’ ” and that

he wanted to ensure that Aurora students were not being sent out of the city to go to classes on

the campus in Sugar Grove.

¶ 30   The circuit court then moved to its undue-burden analysis, stating that, in order for a

FOIA request to be unduly burdensome, three elements had to be present: (1) compliance with



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the request as stated must be unduly burdensome, (2) there must be no way to narrow the

request, and (3) the burden on the public body must outweigh the public interest in the

information. The court looked to cases on the issue. The only case the court cited in which an

undue burden was found was Shehadeh v. Madigan, 2013 IL App (4th) 120742, ¶¶ 5, 34-35,

which addressed a request to manually review over 9000 physical records to determine whether

those “publications, opinions, reports, or other records” could be used by the Attorney General

(AG) for guidance in complying with the FOIA. For instances where no undue burden was

found, the court cited several authorities, including National Ass’n of Criminal Defense Lawyers

v. Chicago Police Department, 399 Ill. App. 3d 1, 14-17 (2010) (no undue burden where

redacting documents would take 150 hours, or approximately 20 personnel days, but the burden

did not outweigh the public interest), and an AG opinion, 2016 Ill. Att’y Gen. Op. No. 16-008, at

7-8, http://foia.ilattorneygeneral.net/pdf/opinions/2016/16-008.pdf (Drumm opinion) (no undue

burden although request for city official’s e-mails would yield at least 174 responsive pages and

would require review for possible redaction, with only one IT staff member and one FOIA

officer available, who each had other duties). The court, citing Hites I, also looked to federal

authority for guidance, including a case in which a search for 1711 names in a database did not

constitute an undue burden. Hall v. Central Intelligence Agency, 881 F. Supp. 2d 38, 53 (D.D.C.

2012). The court stated that, in the absence of direction from this court or our supreme court, it

would look to the most recent appellate court decision, namely, Shehadeh.

¶ 31   The court concluded that the undue-burden exemption applied to plaintiff’s remaining

FOIA requests. It first explained that WCC had complied with the FOIA by responding to

plaintiff’s FOIA requests in writing and providing him an opportunity to narrow his requests




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when WCC stated, in its response to the requests, “[t]o the extent Mr. Hites has a proposal to

narrow his requests, please contact us.”

¶ 32    Next, the court found Felton’s testimony credible in explaining WCC’s burden in

complying with plaintiff’s FOIA requests. Felton was “in a superior position to estimate the

amount of time it would take to query the databases *** compared to Mr. Deligtisch.” Felton

testified that responding to just one of plaintiff’s requests would take his staff at least a week,

and the court concluded that responding to all would require “well beyond 150 hours, or twenty

personnel days, and would likely be more time-consuming than redacting 174 responsive pages.”

¶ 33    The court continued that compliance would impede WCC staff members’ ability to

perform their other duties in a timely manner. Citing WCC’s status brief, it found that some of

the requests would require searching databases “not in the control” of WCC, including DAISI. It

also concluded that WCC “would be required to compensate its programmers to spend several

weeks or months on responding to these requests, which might include overtime and/or hiring

extra staff.”

¶ 34    Finally, the court found that WCC’s burden outweighed the public interest. It found that

plaintiff’s interest was to “learn what demographics of students are attending each WCC campus

in order to speculate about what businesses that the students might frequent.” His interest was

not comparable to the public importance of requests for data that would improve lineup protocols

and remedy mistaken eyewitness identifications.        See National Lawyers Ass’n of Criminal

Defense Lawyers, 399 Ill. App. 3d at 15-16. Furthermore, the court found that plaintiff’s interest

made “assumptions about demographics of students and the economic growth that these students

might bring to downtown Aurora, which is not based on any evidence.” Accordingly, the court

granted WCC’s motion to dismiss.



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¶ 35   Plaintiff timely appealed.

¶ 36                                     II. ANALYSIS

¶ 37                                A. The Parties’ Positions

¶ 38   On appeal, plaintiff argues that we should reverse the circuit court’s order granting

WCC’s section 2-619 motion to dismiss, because WCC did not establish that compliance with

his requests would be unduly burdensome. Plaintiff argues that, under the FOIA, exceptions to

disclosure should be read narrowly, including the “unduly burdensome” exception under section

3(g) (5 ILCS 140/3(g) (West 2016)). He argues that WCC failed to establish any of the three

necessary elements of an undue burden: (1) that compliance with his FOIA requests as stated

would be unduly burdensome, (2) that there was no way to narrow the requests, and (3) that the

burden on WCC outweighed the public interest in the information requested.

¶ 39   Addressing the first element, plaintiff argues that WCC’s description of its alleged

burden was not sufficiently detailed for adversarial testing. Moreover, he contends that WCC

could easily extract the requested information from its databases.     He argues that WCC’s

databases are typical Oracle databases designed for storing and retrieving the type of data

requested and that Felton testified that the data could be retrieved from WCC’s databases.

Plaintiff cites Deligtisch’s testimony that the entire retrieval process would take a matter of

minutes.

¶ 40   Plaintiff also argues that WCC’s alleged burden was improperly padded with time that

staff members would spend performing other activities. He argues that Felton’s estimate of each

search taking a week to perform assumed that the search would be improperly done and need to

be repeated; included conversations about the search; and included his staff members’ other

duties. Plaintiff urges that a proper FOIA undue-burden analysis should focus on the time



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needed to actually retrieve the records, not on time estimates inflated by tasks beyond the

retrieval.

¶ 41    Plaintiff next argues that the circuit court’s reasoning on undue burden was flawed. The

court relied on one case that found an undue burden, Shehadeh, 2013 IL App (4th) 120742,

because it was “the most recent decision of the Illinois Appellate Court” on the matter. Plaintiff

contends that the court’s focus on Shehadeh ignored the totality of precedent in Illinois and that

its application of Shehadeh did not actually support a finding of undue burden in this case. To

wit, he argues that the FOIA request in Shehadeh would have required staff to go through each

file by hand to locate responsive documents, whereas here the data requested was already

collected and stored on WCC’s databases.        No WCC staff member would have to review

documents or redact information. Plaintiff stresses that the purpose of having a database is that it

is more efficient and easier to use than storing and reviewing hard copies of documents.

¶ 42    Turning to the second element, plaintiff argues that WCC has not established that there

was no way to narrow his requests. He argues that, if his requests can be narrowed, then WCC

did not meet that requirement for the undue-burden exemption; and if his requests cannot be

narrowed, then the circuit court’s finding that his requests were unduly burdensome would

effectively shield WCC from all future FOIA requests for information from its electronic

databases.

¶ 43    Finally, plaintiff argues that WCC has not established that its alleged burden outweighs

the public interest in the information requested.       Citing his testimony at the March 2015

evidentiary hearing, plaintiff argues that he was concerned that WCC was not fulfilling the

promises that it made to Aurora in spending $45 million on a new campus. WCC also had

various agreements in which Aurora gave it incentives and preferential treatment, and plaintiff



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sought to make sure that WCC was acting in Aurora’s best interests. He argues that how public

funds are spent is consistently deemed a matter of great public importance (see, e.g., Family Life

League v. Department of Public Aid, 112 Ill. 2d 449, 453 (1986)) and that the burden of a

straightforward search of WCC’s databases does not outweigh this legitimate public interest.

¶ 44   WCC responds as follows. It contends that the circuit court’s order was well reasoned

and correct. The circuit court found Felton to be credible, including his testimony that it would

take around a week to respond to each of plaintiff’s FOIA requests. The court believed that

Felton was in a better position than Deligtisch to opine on WCC’s databases. Based on Felton’s

testimony, the court concluded that WCC employees would have to spend in excess of 150

hours, or 20 personnel days, to comply with the requests and that compliance would require

overtime pay and might entail hiring additional staff. It also found that plaintiff’s interest in

obtaining the data was not comparable to the public importance of improving lineup protocols.

¶ 45   WCC continues that Shehadeh is controlling authority that supports affirming the circuit

court’s order. WCC stresses that the circuit court heard testimony over three days at the

evidentiary hearing, considered over 100 exhibits, and provided plaintiff adequate opportunity to

test and examine WCC’s witnesses.

¶ 46   In addition, WCC argues that plaintiff “relies on the argument that somewhere on [its]

database, it is possible to find the information he is seeking,” ignoring that the Banner database is

“complex and handles every major function” at the college. 2 Per Felton’s testimony, his staff

       2
           WCC also argues that its student registration forms “are only maintained in hard copy

form and are not scanned” into its databases. It goes on to describe its storage of paper records,

citing the testimony of another WCC employee from the evidentiary hearing. It is unclear why

WCC is arguing about its physical records here, where only requests for electronic data are at



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would have to create a program to respond to each request, and each program would take a week

to develop. Moreover, during this week, the staff member would be taken away from regularly

assigned duties. Extraction would be complex, and Felton had only two staff members capable

of doing it. WCC continues that, if “the programmers were directed to devote themselves

entirely to [plaintiff’s] FOIA project, it might be possible to take one day to complete each of the

requests,” but this dedication to a singular task would be “significantly detrimental” to its

operations.

¶ 47     WCC next turns to DAISI, arguing that it does not control that database or the data on it.

It argues that, “similarly,” the Driver Safety database contains information from third parties and

that WCC has an obligation to keep much of the students’ driver-safety data confidential. WCC

suggests that redaction would be necessary, adding to its burden. 3

¶ 48     Finally, WCC argues that plaintiff’s arguments are “unfounded” and that Deligtisch’s

opinions were not grounded in facts or reasonable inferences. WCC refers to Deligtisch as a “so-

called ‘expert,’ ” stressing his lack of personal experience with the Banner and the Driver Safety

databases. 4

¶ 49                                   B. Standard of Review




issue.
         3
             This argument again contemplates searches of physical records that are not at issue in

this appeal.
         4
             Over WCC’s objection, the circuit court accepted Deligtisch as an expert in the field of

database analytics and permitted his testimony pursuant to Illinois Supreme Court Rule 702 (eff.

Jan. 1, 2011).



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¶ 50   A motion to dismiss under section 2-619 admits the legal sufficiency of the plaintiff’s

claim but asserts certain defects or defenses outside the pleadings that defeat the claim.

Sandholm v. Kuecker, 2012 IL 111443, ¶ 55. Generally, our review of a section 2-619 dismissal

is de novo. Davidson v. Gurewitz, 2015 IL App (2d) 150171, ¶ 9. In addition, whether an

exemption applies under the FOIA is a matter of statutory construction, which as a question of

law is reviewed de novo. Garlick v. Naperville Township, 2017 IL App (2d) 170025, ¶ 44; see

Nelson v. Kendall County, 2014 IL 116303, ¶ 22 (reviewing statutory construction of a FOIA

definition de novo and noting that de novo review was also appropriate because the case was

dismissed pursuant to section 2-619).

¶ 51   Where the circuit court conducts an evidentiary hearing, as it did here, we review whether

the court’s factual findings were against the manifest weight of the evidence, while still

reviewing questions of law de novo. Offord v. Fitness International, LLC, 2015 IL App (1st)

150879, ¶ 15; Kirby v. Jarrett, 190 Ill. App. 3d 8, 13 (1989) (following an evidentiary hearing on

a section 2-619 motion to dismiss, a reviewing court must review “not only the law but also the

facts, and may reverse the trial court order if it is incorrect in law or against the manifest weight

of the evidence”). A finding is against the manifest weight of the evidence only if the opposite

conclusion is clearly evident or the finding itself is unreasonable, arbitrary, or not based on the

evidence presented. Offord, 2015 IL App (1st) 150879, ¶ 16. Accordingly, we will review under

the manifest-weight-of-the-evidence standard the circuit court’s factual findings in its dismissal

order, and we will review de novo the ultimate dismissal for a section 3(g) undue burden.

¶ 52                                    C. Resolution

¶ 53   We agree with plaintiff that the circuit court erred in granting WCC’s section 2-619

motion to dismiss. The parties agreed to proceed on the evidence adduced at the March 2015



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evidentiary hearing. After careful review of that evidence, we hold that many of the circuit

court’s necessary findings in support of its dismissal order were against the manifest weight of

the evidence. We explain as follows.

¶ 54   Under the FOIA, “[a]ll records in the custody or possession of a public body are

presumed to be open to inspection or copying.” 5 ILCS 140/1.2 (West 2016). The FOIA was

enacted, in part, to help people make “informed political judgments” and monitor government

“to ensure that it is being conducted in the public interest.” Id. § 1. The FOIA was not,

however, intended to unduly burden public resources. Id.

¶ 55   Section 3(g) of the FOIA exempts disclosure where (1) a request for all records falling

within a category would be unduly burdensome for the complying public body, (2) there is no

way to narrow the request, and (3) the burden on the public body outweighs the public interest in

the information. Id. § 3(g); National Ass’n of Criminal Defense Lawyers, 399 Ill. App. 3d at 15.

As a threshold matter, section 3(g) requires that the public body extend to the person making the

request an opportunity to confer with it in an attempt to narrow the request. Heinrich v. White,

2012 IL App (2d) 110564, ¶ 21 (citing 5 ILCS 140/3(g) (West 2010)). Any public body, such as

WCC, that asserts that a record is exempt from disclosure “has the burden of proving by clear

and convincing evidence that it is exempt.” 5 ILCS 140/1.2 (West 2016).

¶ 56   In its dismissal order, the circuit court determined that complying with plaintiff’s requests

would unduly burden WCC, satisfying the first element of the FOIA’s section 3(g) exemption.

In reaching its conclusion, it found that Felton was a credible witness and that he was in a

superior position to Deligtisch to testify about searching WCC’s databases. The circuit court

was in the best position to evaluate witness credibility, and we will not substitute our judgment

for the circuit court’s or reweigh the evidence. See Sullivan v. Kanable, 2015 IL App (2d)



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141175, ¶ 10 (under the manifest-weight-of-the-evidence standard, a reviewing court will not

substitute its judgment for that of the circuit court regarding credibility of witnesses or the

weight to be given the evidence). Accordingly there was no error in the circuit court’s relying on

Felton’s testimony over Deligtisch’s. Nevertheless, the circuit court had to make findings that

were reasonable and based on Felton’s actual testimony.

¶ 57   The circuit court’s findings on whether plaintiff’s requests would unduly burden WCC

were not supported by Felton’s testimony. We find persuasive plaintiff’s argument that WCC’s

alleged burden was improperly padded with time that staff would spend performing other

activities. The record shows that on direct examination Felton’s testimony that his staff would

take a week to respond to each request was qualified by his explaining that they had other job

responsibilities to attend to. These other responsibilities existed prior to and independent of

plaintiff’s requests. On cross-examination, Felton clarified that the time required to actually

respond to each request was about one day. Even assuming a full 8 hours of work per request, it

would take only 56 hours to respond to all seven of plaintiff’s requests—not “well beyond 150

hours, or 20 personnel days.” If the staff spread those hours out over time—for example, by

spending one hour per work day responding to plaintiff’s requests—they could work on their

normal tasks for the rest of the day and it would be more accurate to say that they would spend

five hours per week responding to the requests, not that they would spend a whole week. By

focusing on the gross time required to respond to each request, the court conflated WCC’s

alleged burden with its normal operations, unreasonably inflating the impact of the requests.

Thus, the court’s findings that WCC would take at least a week to respond to each request and

that compliance would take “well beyond 150 hours, or twenty personnel days” were not based

on the evidence presented.



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¶ 58   The circuit court made other findings that were against the manifest weight of the

evidence. Citing WCC’s post-remand brief, the circuit court found that plaintiff’s requests

would require WCC to search databases outside its control, including DAISI. The record does

not support this conclusion and, in fact, clearly supports the opposite conclusion, that WCC

would not be required to search databases outside its control. Felton testified that the data

plaintiff requested was available on the Banner and the Driver Safety databases and that his staff

could extract the data from those databases. For the seven FOIA requests relevant to this appeal,

Felton’s testimony made clear that the data for one request could be extracted from the Driver

Safety database (ZIP codes for the students taking the National Safety Council’s Defensive

Driving Course) and that the data for the other six requests could be extracted from the Banner

database. At no point at the evidentiary hearing did any witness suggest that WCC had to search

DAISI to respond to any of the seven requests. Rather, after WCC’s counsel had asked Felton

about DAISI on direct examination, plaintiff’s counsel asked Felton to clarify where the

requested data would come from, in the following exchange:

               “Q: And you could write a program to extract everything that Mr. Hites is asking

       for in his FOIA requests out of the Banner system, is that right?

               A: Well, I would need clarification on the registration question.

               Q: And once you got clarification on the registration question, you could write a

       program that would—

               A: Yes.

               Q: Provide you with all the information required by Mr. Hites in his FOIA

       requests?

               A: It would take a while, but, yes.



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                  Q: And that would all come out of the DAISI database?

                  A: No.

                  Q: That would all come out of the Banner database?

                  A: Yes.”

WCC’s argument that it would have to search DAISI to respond to plaintiff’s requests is simply

false.   Accordingly, the circuit court’s finding that compliance would require a search of

databases outside WCC’s control was against the manifest weight of the evidence.

¶ 59     In addition, the circuit court found that compliance with the FOIA requests would require

WCC to compensate staff for spending several weeks or months responding to the requests and

that its costs might include overtime or hiring additional staff.         These findings are also

unsupported by the record. We have already determined that the record does not support that it

would actually take several weeks or months to respond to the requests. During much of that

time, staff would simply be performing their normal duties. Further, the only testimony relevant

to the costs of the electronic searches at issue here—as opposed to the physical records searches

that are no longer at issue—was Felton’s response on rebuttal as to whether WCC might incur

overtime costs. He responded, “Possibly, yeah,” and then explained how his staff would manage

the requests by spreading the time spent responding over days or weeks. There was no testimony

that compliance would necessarily require additional compensation, let alone how much

compensation. And there was no testimony that WCC would hire additional staff to respond to

the requests at issue. 5

         5
             The only testimony suggesting that WCC would hire additional staff came from Tracey

Petryka, a WCC employee, in the context of a search of physical records. She testified that

certain document collection, which would also include redaction, would take two months and



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¶ 60    The second element of an undue burden requires that there be no way to narrow the

request. 5 ILCS 140/3(g) (West 2016). 6 Here, the circuit found that WCC had complied with

the FOIA by responding to plaintiff’s requests in writing and offering him an opportunity to

narrow his requests. These findings were not against the manifest weight of the evidence, but

they go toward the threshold requirement under section 3(g)—that a public body “[b]efore

invoking this exemption *** shall extend to the person making the request an opportunity to

confer *** to reduce the request to manageable proportions.” Id. This requirement is not the

same as section 3(g)’s requirement that there be no way to narrow the request. See Heinrich,

2012 IL App (2d) 110564, ¶¶ 21-22 (explaining that the defendant needed to confer to narrow

the request in order to invoke the undue-burden exemption, and then separately explaining the

three elements of an undue burden for consideration on remand, including that there be no way

to narrow the request). Here, the circuit court made no findings about whether plaintiff’s

requests could be narrowed, and it was error to conclude that the undue-burden exemption

applied absent such findings.

¶ 61    For the third element, the court weighed plaintiff’s desire “to speculate about what

businesses the students might frequent” against WCC’s alleged burden. Not only have we

that WCC would need to hire temporary employees to fill in for staff members helping in the

document collection and redaction. As noted, requests for physical records are no longer at issue

in this case.
        6
            “Requests calling for all records falling within a category shall be complied with unless

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.” (Emphasis added.) Id.



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already determined that the court’s findings regarding WCC’s burden were against the manifest

weight of the evidence—which upsets the court’s balancing between the burden and the public

interest—but also the court’s statement of the public interest is based on a selective and

incomplete reading of the record. Before reaching its conclusions, the court correctly cited

plaintiff’s testimony that he requested the data to determine whether WCC was fulfilling the

promises it made following its construction of a new campus; whether WCC was working in

Aurora’s best interests; whether numerous agreements between WCC and Aurora, in which the

city gave WCC incentives and preferential treatment, might need to be reconsidered; and

whether Aurora students were being sent to campuses outside Aurora. Yet, in its conclusions,

the court identified only one public interest: to learn student demographics in order to speculate

about businesses students might frequent.

¶ 62   Our supreme court has made clear that the public has a legitimate interest in how its tax

dollars are spent. Family Life League, 112 Ill. 2d at 456. Plaintiff testified to interests similar to

the public’s interest in how tax dollars are spent. He testified that WCC was receiving benefits

from Aurora and that, even if those benefits were not direct tax dollars, Aurora’s preferential

treatment of WCC came with public opportunity costs. We also note that plaintiff testified that

Aurora Downtown received tax proceeds for its oversight. Therefore, any “speculation” about

businesses was not about simply the businesses but about pursuing the committee’s publicly

funded mission to better downtown Aurora.                Promoting local business and economic

development would be a logical component of the committee’s mission. Furthermore, in the

persuasive Drumm opinion cited by the circuit court, there was a “significant public interest” in

the disclosure of communications between the city manager, whose work had a “focus on the

long term objectives regarding the City’s future,” and the private firm the city hired to assist in



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several redevelopment projects.          2016 Ill. Att’y Gen. Op. No. 16-008, at 7-8,

http://foia.ilattorneygeneral.net/pdf/opinions/2016/16-008.pdf. Plaintiff testified similarly that he

sought the data to help determine whether WCC’s new campus was benefitting Aurorans and

whether its agreements with the city might need to be reconsidered. That is, he was interested in

whether the campus development in downtown Aurora was serving Aurora’s best interests.

Thus, limiting the public interest to speculation on local business development was not supported

by the record.

¶ 63   In summary, the circuit court’s findings as to the first and third elements of an undue

burden were against the manifest weight of the evidence, and it failed to make a necessary

finding related to the second element. While reversal is appropriate based on the erroneous

factual findings (see Offord, 2015 IL App (1st) 150879, ¶ 15 (reversal is appropriate if an order

is incorrect in law or against the manifest weight of the evidence)), we also do not believe that

the record supported dismissal for an undue burden. In particular, we do not believe that the

burden on WCC outweighed the public interest in the data.

¶ 64   We first note that this case is readily distinguishable from Shehadeh, the one case the

circuit court cited that found an undue burden. In Shehadeh, the AG’s office would have had to

review 9200 documents by hand in order to determine which of those documents were

responsive to plaintiff’s request for “ ‘copies of any publications, opinions, reports or other

records that would or could be used for guidance by [the AG’s] office or any other public body

in complying with Illinois’ FOIA laws.’ ” Shehadeh, 2013 IL App (4th) 120742, ¶¶ 5, 34. Then,

after determining which documents were responsive, it would have had to identify and redact

exempt information from those documents. Id. ¶ 34. The Shehadeh court held that this burden

on the AG’s office satisfied section 3(g), and it also determined that the plaintiff’s FOIA request



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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.” (Emphasis in original.) Id.

¶¶ 28, 34. Here, plaintiff’s FOIA requests were for specific datasets from the Banner and the

Driver Safety databases and did not involve any hand review or redaction. Having a staff

member electronically search for a narrow dataset, such as the ZIP codes of students from a

specific year and class, is simply not comparable to the burden of physically reviewing over

9000 documents for general guidance on complying with the FOIA.

¶ 65   A FOIA request that is “overly broad and requires the public body to locate, review,

redact and rearrange 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, 399 Ill. App. 3d at 17. In National Ass’n of Criminal Defense Lawyers, the court

reversed a grant of summary judgment in favor of the defendant, the Chicago Police Department

(CPD), denying the plaintiff’s requests for certain data, files, and photographs. Id. at 17-18. The

court noted that the CPD did not have to access every document in its files and that the plaintiff’s

request specifically targeted the files relevant to its study of mistaken identification. Id. at 17.

The court concluded that “ ‘several weeks of full-time work by [CPD] personnel who need to

possess a high level of knowledge and sophistication’ ” was not sufficiently burdensome to

outweigh the public interest in the plaintiff’s study of wrongful convictions based on mistaken

eyewitness identification. Id. at 15, 17.

¶ 66   Moreover, the FOIA evinces a public policy in favor of disclosure, and exceptions to

disclosure are to be read narrowly. 5 ILCS 140/1 (West 2016). Records are presumed to be

open, and the public body has the burden of proving by clear and convincing evidence that the

data sought is exempt from disclosure. Id. § 1.2. With this in mind, the burden on WCC staff to



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extract the requested data does not outweigh the public interest in the requested information. On

the one hand, the burden here is less than the burden in National Ass’n of Criminal Defense

Lawyers or Shehadeh. Compliance would not require several weeks of full-time work, nor

would anyone have to spend time redacting files. Plaintiff’s requests targeted specific sets of

data, and the record supports that the requests could be completed by one person in, at most,

seven days of actual work. WCC’s arguments that database extraction is “complex” and that

compliance would be “significantly detrimental” to its operations are conclusory and fall short of

the clear and convincing evidence necessary to support a FOIA exemption. On the other hand,

the public has a legitimate interest in how WCC is benefitting the community in which it

operates and from which it receives benefits. Similar to the significant public interest in the

Drumm opinion, plaintiff testified that he seeks the disclosures to help determine whether

WCC’s new Aurora campus is serving Aurora and its students. See 2016 Ill. Att’y Gen. Op. No.

16-008, at 7-8, http://foia.ilattorneygeneral.net/pdf/opinions/2016/16-008.pdf (finding significant

public interest in public official’s communications with private firm related to city

redevelopment projects). He testified that Aurora and WCC had “numerous agreements,” that

WCC received benefits and preferential treatment from Aurora, and that he worried that Aurora

students were being sent to campuses outside Aurora. In addition, plaintiff was a part of Aurora

Downtown, which received public funds to promote the interests of Aurora, and his role with the

oversight committee spurred his FOIA requests. Therefore, the burden does not outweigh the

public interest in the information, and WCC did not satisfy the requirements for an undue-burden

exemption.

¶ 67                                  III. CONCLUSION




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¶ 68   The circuit court erred in granting WCC’s section 2-619 motion to dismiss plaintiff’s

complaint, based on the FOIA’s section 3(g) undue-burden exemption. Its findings on the

necessary elements of an undue burden were either absent or against the manifest weight of the

evidence.   In addition, the record did not support that WCC’s burden of compliance with

plaintiff’s FOIA requests outweighed the public interest in the information. Therefore, we

reverse the judgment of the Kane County circuit court and remand for proceedings consistent

with this opinion.

¶ 69   Reversed and remanded.




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