Readers of our FR Alerts may recall that in late 2012, the Fifth District of the Illinois Appellate Court clarified the narrow circumstances in which a public body may charge fees greater than those in the Freedom of Information Act (FOIA) when producing electronic records. In a recent decision, Sage Information Services v. Suhr, the Second District Illinois Appellate Court agreed with the Fifth District in a similar case and further clarified the narrow circumstances when excess fees may be authorized by a competing statute.

In Suhr, the Winnebago County Freedom of Information Officer charged fees greater than those allowed under the FOIA for a request for certain electronic records by Sage Information Services. The FOIA allows a public body to charge only the cost of purchasing the electronic medium on which electronic records are produced, such as a CD or tape, except where another statute expressly authorizes greater fees. The FOIA Officer argued that the fees were justified under Section 9-20 of the Property Tax Code, which allows charging a “reasonable fee” for copying and producing records under the Code. The FOIA Officer charged the requesters $6,290.45 for such “reasonable fee.”

The Second District Appellate Court found that the public body could not charge more than the FOIA allowed. It reasoned that the Property Tax Code did not expressly provide for fees in excess of those authorized by the FOIA for electronic records. The Property Tax Code does not specifically authorize greater fees for electronic records, only for paper records. Nor does it expressly provide that the same fees could be charged for electronic records as the statute authorizes could be charged for paper records.

This case highlights the nuanced statutory construction required before a public body may rely on a statute other than the FOIA to charge excess fees for a FOIA response. Public bodies that wish to rely on fee provisions in other statutes are encouraged to consult with legal counsel before deciding to do so.