2018 IL App (1st) 163153
Ill. App. Ct.2018Background
- On Dec. 31, 2014, Freddy Martinez filed a FOIA request to the Cook County State’s Attorney’s Office seeking records for each instance where evidence obtained via cell‑site simulators ("stingrays"/IMSI catchers) was used in criminal prosecutions, including case identifiers, charges, outcomes, how/by whom the information was obtained, and any court orders.
- The State’s Attorney’s Office (CCSAO) denied the request, asserting FOIA does not require production of nonexistent records and that complying would be unduly burdensome because it does not maintain a searchable list or database identifying such cases.
- Martinez sent a follow‑up e‑mail proposing that CCSAO (1) ask all attorneys to identify cases from memory and (2) conduct a server‑side e‑mail search for "stingray," "IMSI catcher," and "cell site simulator." CCSAO treated that as a separate FOIA request and denied it as unduly burdensome.
- The parties conferred and narrowed the requests to terrorism and narcotics cases; CCSAO again denied, adding that if responsive documents existed they likely would be exempt (attorney‑client, work product, deliberative process, law‑enforcement investigatory privileges).
- Martinez sued under FOIA. After cross‑motions for summary judgment, the trial court granted summary judgment for CCSAO, concluding the requests (as phrased) either sought creation of records/compilations the agency did not maintain or were otherwise unduly burdensome; Martinez appealed.
- The appellate court affirmed, holding the requests sought compilations or actions (searches/answers) rather than reasonably described public records and FOIA does not require creation of new records or answers to questions.
Issues
| Issue | Martinez's Argument | CCSAO's Argument | Held |
|---|---|---|---|
| Whether the FOIA requests reasonably describe existing public records or instead require creation/compilation of new records | Martinez: Requests identify discrete records (case files) and CCSAO must search and produce them; the follow‑up e‑mail was just an effort to narrow the request | CCSAO: Requests ask for compilations, lists, or actions (searches/attorney queries) the office does not maintain and FOIA does not require creation of new records or answers | Held: Requests do not reasonably describe records but seek compilations/new records or actions; FOIA does not compel creation of such records or answers; summary judgment for CCSAO affirmed |
| Whether treating Martinez’s e‑mail as a new FOIA request was improper | Martinez: e‑mail was an interim narrowing step; agency should have sought clarification or interpreted in favor of disclosure | CCSAO: The e‑mail added a new subject (e‑mails) and came after a written denial, so it was a new request | Held: CCSAO did not err in treating the e‑mail as a new FOIA request |
| Whether CCSAO’s failure to search (per Castiglione affidavit) defeated summary judgment | Martinez: Affidavit is storytelling; lack of search creates a factual dispute | CCSAO: Affidavit shows agency lacks any database or index and that a file‑by‑file search would be unduly burdensome | Held: Affidavit adequately supported that responsive compilations do not exist and that the requests called for creation/compilation, so summary judgment was appropriate |
| Whether CCSAO was required to confer before invoking the undue‑burden exemption | Martinez: agency should have followed FOIA procedural requirements | CCSAO: the parties did confer and narrowed requests | Held: Although CCSAO’s timing might have been imperfect, parties did confer and narrowed requests, so court addressed the merits and affirmed summary judgment |
Key Cases Cited
- Performance Marketing Ass’n v. Hamer, 2013 IL 114496 (de novo review of FOIA summary judgment)
- Chicago Tribune Co. v. Department of Financial & Professional Regulation, 2014 IL 130427 (FOIA does not require creation or compilation of data agencies do not maintain)
- Kenyon v. Garrels, 184 Ill. App. 3d 28 (1989) (FOIA requires a reasonable description of existing records, not a general request for data)
- Hamer v. Lentz, 132 Ill. 2d 49 (1989) (FOIA does not compel creation of new records)
- National Ass’n of Criminal Defense Lawyers v. Chicago Police Dept., 399 Ill. App. 3d 1 (2010) (public body must offer requester opportunity to confer before invoking undue‑burden exemption)
- Southern Illinoisan v. Illinois Dept. of Public Health, 218 Ill. 2d 390 (2006) (public records are presumed open; FOIA construed liberally and exemptions narrowly)