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Public Access Opinion 19-013

Obligation to Preserve Records

Freedom of Information Act - FOIA
Case: Public Access Opinion 19-013
Date: Tuesday, December 31, 2019

The City of Bunker Hill (City) violated FOIA by deleting, and thus failing to provide, a requested record in response to a FOIA request. On September 12, 2019, the Requestor requested the audio recorded minutes from the City’s Committee of the Whole meeting on September 11, 2019. On September 19, 2019, the City returned the FOIA request form the Requestor had completed with a handwritten note in the margin stating that the City’s attorney had stated on September 18, 2019 that the September 11, 2019 meeting was not an actually meeting because there was no quorum present and so there was no need to fulfill the FOIA request. The next day, the Requestor submitted the matter to the PAC for review.

When the PAC phoned the City on October 4, 2019, it was informed that the audio recording was deleted after the City received Requestor’s FOIA request. Further investigation revealed that upon the City attorney’s advice, the City deleted the audio recording after the attorney had advised that the September 11, 2019 meeting was not an actual meeting.

The PAC first determined that the audio recording was a “public record” under FOIA Section 2(c), which defines public records to include all records – including recordings – in the possession of a public body which pertain to the transaction of public business. The PAC next determined that the City possessed the audio recording when it received the FOIA Request, and no provision of FOIA authorizes a public body to destroy responsive records after receiving a FOIA request. Thus, the City should have either provided the audio recording to the Requestor or issued a proper denial in accordance with Section 9(a) of FOIA. As a result, the PAC ordered the City to determine whether it could retrieve the deleted recording and, if so, provide the Request with a copy. It further ordered the City to create protocols to ensure that, in the future, it appropriately complies with FOIA requests and that it preserve responsive records after receiving a FOIA request for them.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.