In a recent decision, the Illinois Appellate Court held that the nonexistence of requested documents is an affirmative defense to a complaint grounded in the Freedom of Information Act. The court also clarified that public bodies do not need to provide a detailed factual basis for denying a request when responsive records do not exist. For public bodies, the case is a reminder of the benefits in the FOIA context of implementing a legally compliant records destruction schedule.

In Barner v. Fairburn, Chadwick Berner requested dispatch transcripts, police reports, witness statements, traffic tickets, and other evidence for certain days. The police department denied the request in part; although it had a responsive incident report, it had no dispatch transcripts because the system did not retain information after a certain amount of time. Barner filed a complaint, alleging that the department violated FOIA because it did not provide him with specified documents or specific reasons for the denial of his request.

In court, the Police Department argued that it gave Berner all the records it had and that the case was moot because the nonexistence of any additional requested records was an affirmative defense against the lawsuit. The Illinois Appellate Court agreed with the police department.

The court explained that FOIA “does not compel public bodies to turn over information the public bodies do not normally retain.” Because the police department did not have a practice of retaining dispatch transcripts past a prescribed amount of time, the records requested by the plaintiff effectively were not in existence. The police department could not have violated FOIA when it failed to produce the requested dispatch transcripts.

The court also rejected Barner’s claim that the police department provided insufficient detail for the reason it denied the request. It said that the plain language of Section 9 of FOIA does not require the public body to produce a “detailed factual basis” for its denial where it is not claiming a specific exemption. When a public body claims it is exempt from producing records pursuant to a FOIA request, it is implying that the records exist, but that there is a recognized exemption to its requirement to produce such records under FOIA.

Here, the police department made clear that the records in question either never existed or were no longer in existence; therefore, the police department was not claiming an exemption to FOIA that would require a detailed factual basis for denial. Thus, the response satisfied FOIA.