TAX ANALYSTS,
Plaintiff,
v.
ILLINOIS DEPARTMENT OF REVENUE
Defendant.
IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT
SANGAMON COUNTY, ILLINOIS
ORDER
The Freedom of Information Act (“FOIA”) case is before the Court on the parties’ cross motions for summary judgment, which were supported by legal memoranda, exhibits and declarations. The Court also heard oral argument from counsel. Upon consideration of the cross-motions and the entire record, the Court finds that as a matter of law, defendant has failed to sustain its burden by “clear and convincing evidence,” as is required by sections 1.2 and 11(f) of the FOIA (5 ILCS 140/1.2 and 11(f)), and that summary judgment should be entered in favor of plaintiff.
Defendant’s case centered on a contention that producing the requested “audit manual” would be “unduly burdensome” within the meaning of section 3(g) of the FOIA (5 ILCS 140/3(g)). The plain meaning of that provision precludes this argument.
Plaintiffs request pursuant to the Act seeks a single record, not “all records falling within a category” of records. In addition, plaintiff did narrow its request in response to defendant’s request and submitted sworn testimony, which the Court credits, of the public interest in disclosure of the requested information. The elements of an “unduly burdensome” defense are therefore not met. See National Ass ’n of Criminal Defense Lawyers v. Chicago Police Department, 399 111. App. 3d 1, 15 (1st Dist. 2010).
Defendant submitted two declarations purporting to identify how many hours would be required to redact exempt from non-exempt portions of the requested manual. Even if the “unduly burdensome” exemption were applicable here, these declarations would be unpersuasive for failing to demonstrate that the chapters sampled for review are representative of the manual as a whole or why review of these materials by two different teams took significantly different amounts of time — or whether this review identified any non-exempt portions.
As to the substantive exemptions, defendant submitted no declarations or other evidence to support the claim that the requested manual, in its entirety, should be viewed as part of a pre-decisional policy-making process protected by 5 ILCS 140/7(1)(f). This argument is undercut by defendant’s description of the manual as a “reference guide” or “guideline” — in other words, a document created outside of and independently of any decision regarding a specific audit. It is thus not a document created as part of an agency’s process for making a specific policy decision, as in Harwood v. McDonough, 344 111. App. 3d 242 (1st Dist. 2003). It is instead a document that recites existing departmental policy and is used as a resource used to execute that policy.
There is no indication that the requested manual discusses individual taxpayers or active investigations, which distinguishes this case from Griffith Lab. v. Metropolitan Sanitary District, 168 111. App.3d 341 (1988), which construed an exemption that defendant initially cited in denying the request, but then abandoned, namely, the exemption for records that would interfere with an active, concrete law enforcement investigation (5 ILCS 140/7(a)(d)(i)).
Defendant also cites 5 ILCS 140/7(1)(5)(v), which allows the withholding of any “unique or specialized investigative techniques” that are not “generally used or known or used,” the disclosure of which would produce “demonstrable harm” to defendant. Defendant failed to submit any declarations that identify any such items. That omission is fatal, as the exemption allows withholding of records "only to the extent” that such a specific showing can be made and can be considered by the Court in camera. Defendant cites a decision of the Public Access Counselor in 2011 PAC 13591 (Oct. 30, 2018), which opined that defendant may withhold documents dealing with defendant’s audit practices because portions of those records contain exempt material. The PAC decision is flawed, however, because the statute permits withholding “only to the extent that” such portions exist and are identified. Whatever value the PAC decision may have as advice to defendant as to the types of specific information that may be withheld,, the litigation of an FOIA case in this Court requires sworn testimony — not assertions of counsel — that identifies and explains why specific portions of the requested manual satisfy the statutory requirements. There is no such showing here.
The Defendant had ample opportunity to provide affidavits from knowledgeable Department personnel in order to meet its evidentiary burden to establish that this exemption might apply. Indeed, the cases cited by the Defendant make clear that those affidavits should have included a declaration or declarations from personnel with relevant knowledge that (1) identified specific portions of the requested manual, by chapter, page, paragraph and (if need be) specific lines, that contain “unique or specialized investigative techniques”; (2) identified those “techniques” by name or description of their function, (3) explained specifically why those techniques are not “generally used or known” to the public, and (4) identified and explained the “demonstrable harm” that would flow from disclosure. Any such declaration could then have been responded to by Plaintiff, and be judged against the “clear and convincing evidence” standard in the FOIA. Defendant’s failure to submit any such evidence is fatal to its effort to assert that exemption on this record.
Although defendant focused its argument and declarations on the “unduly burdensome” claim, defendant did not ask the Court to bifurcate the case and to decide that issue first. Instead, defendant sought summary judgment on all issues based on the existing record, notwithstanding specific challenges from plaintiff that the record was inadequate to support summary judgment in defendant’s favor.
Accordingly, and on the present record, the Court DENIES defendant’s motion and grants plaintiffs motion for summary judgment. Final judgment is entered in plaintiffs favor. It is therefore this 18th day of December, 2019:
ORDERED that defendant’s motion for summary judgment is hereby DENIED and that plaintiffs motion for summary judgment is hereby GRANTED, and it is further
ORDERED that defendant shall provide plaintiff with the requested record within thirty calendar days.
Jack Davis
Associate Judge