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Hites v. Waubonsee Community College

Court of Appeals of Illinois, Second District

July 20, 2018

DANIEL HITES, Plaintiff-Appellant,
v.
WAUBONSEE COMMUNITY COLLEGE, Defendant-Appellee,

          Appeal from the Circuit Court of Kane County., No. 14-CH-398, Honorable David R. Akemann, Judge, Presiding.

          SPENCE JUSTICE delivered the judgment of the court, with opinion. Presiding Justice Hudson and Justice Schostok concurred in the judgment and opinion.

          OPINION

          SPENCE JUSTICE.

         ¶ 1 This is an appeal from the circuit court's order granting the motion of defendant, Waubonsee Community College (WCC), to dismiss the complaint of plaintiff, Daniel Hites, pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2016)). Plaintiff's initial complaint sought certain disclosures of public records, including electronic data from WCC's databases, pursuant to the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2016)). On remand following a prior appeal from a dismissal, seven FOIA requests for electronic data remained in plaintiff's complaint. The circuit court determined that WCC's compliance with those seven remaining FOIA requests would be unduly burdensome under section 3(g) of the FOIA (id. § 3(g)) and dismissed the complaint. We reverse and remand.

         ¶ 2 I. BACKGROUND

         ¶ 3 Plaintiff filed his initial complaint against WCC on March 18, 2014, seeking both physical and electronic records pursuant to the FOIA. In May 2014, WCC moved to dismiss the complaint, arguing, inter alia, that plaintiff's requests would improperly require it to create new records. Following an evidentiary hearing in March 2015-the relevant portions of which we summarize infra-the circuit court granted the motion to dismiss. The court determined that plaintiff's requests for electronic data would impermissibly require WCC to create new records and that plaintiff's requests for physical records would constitute an undue burden on WCC. It did not address whether the requests for electronic data would be unduly burdensome.

         ¶ 4 On appeal, we affirmed in part, reversed in part, and remanded. Hites v. Waubonsee Community College (Hites I), 2016 IL App (2d) 150836, ¶¶ 83-84. We determined that data on two of WCC's databases-the Banner and the Driver Safety databases-were public records subject to disclosure under the FOIA (id. ¶¶ 67-72) but that some of plaintiff's requests for electronic data would require the creation of new records (id. ¶ 79). We therefore affirmed the dismissal of plaintiff's requests that would require the creation of new records and reversed on those requests that would not. Id. ¶ 83. The appeal did not concern plaintiff's dismissed requests for physical records, and we did not address whether the requests for electronic data would constitute an undue burden, as that issue was not properly before us. Id. ¶ 55. On remand, the following FOIA requests were at issue: (1) the ZIP codes of all people taking the National Safety Council's Defensive Driving Course (DDS-4) in 2011, (2) the ZIP codes of all people taking general equivalency diploma (GED) classes in the fall of 2011 at the Aurora campus, (3) the ZIP codes of all people taking English as a second language (ESL) classes in the fall of 2011 at the Aurora campus, (4) the raw input for the "city" field on the student registration forms for all students registered in the fall of 2011 at the Aurora campus, (5) the raw input for the "county code" field on the student registration forms for all students registered in the fall of 2011 at the Aurora campus, (6) the raw input for the "U.S. Citizen" field on the student registration forms for all students registered in the fall of 2011 at the Aurora campus, and (7) the raw input for the "Are you in the United States on a visa-nonresident Alien" field on the student registration forms for all students registered in the fall of 2011 at the Aurora campus.

         ¶ 5 A. Post-Remand Briefing

         ¶ 6 WCC moved to dismiss the remaining FOIA requests and filed a post-remand status brief on April 12, 2017, arguing that its compliance with the remaining requests would be unduly burdensome. WCC argued that it presented evidence of an undue burden at the March 2015 evidentiary hearing when it sought to rebut the testimony of Alexander Deligtisch, plaintiff's expert witness, and that the record otherwise established that searching for and extracting the requested electronic data would be unduly burdensome. It argued that its database system was complex, handling every major function at WCC, and that the data requested did not reside in any single database or report. WCC cited testimony from the March 2015 hearing that it would take WCC staff at least a week to develop a program to respond to each of plaintiff's remaining FOIA requests.

         ¶ 7 WCC continued that in Hites I we "made a finding" that WCC had two databases with information responsive to plaintiff's FOIA requests, namely, the Banner and the Driver Safety databases. It argued that "[t]his finding is not supported by the record." WCC also noted that Deligtisch suggested that WCC could obtain responsive information from the Data and Information System Illinois (DAISI) database. WCC argued that this assertion was incorrect because it did not control, maintain, or operate DAISI. WCC stood ready to provide evidence for its assertions, including the testimony of its programmers, at an additional evidentiary hearing.

         ¶ 8 Plaintiff also filed his status brief on April 12, 2017. He stated that the "question of burden imposed by [his] requests for information from WCC's databases *** was not raised in WCC's motion, and thus [was] not yet properly before the court." In the alternative, he argued, the motion could be decided on the existing record and should be denied. In particular, plaintiff argued that he had presented evidence that established the "minimal time and effort" that would be required for WCC's compliance with his FOIA requests, including that WCC had access to the relevant databases and that the data was extractable by WCC employees. He cited Deligtisch's testimony that an information technology (IT) professional would be able to search for the requested data in less than one minute; that the results could easily be exported into an Excel spreadsheet; and that all of plaintiff's requests could be answered in about five minutes. Plaintiff also offered to provide supplemental evidence, such as the user manuals for the relevant databases, at the court's request.

         ¶ 9 On April 19, 2017, the circuit court found that the issue of undue burden was properly before it. The court would consider WCC's pending motion to dismiss based on the current record.

         ¶ 10 B. March 2015 Evidentiary Hearing

         ¶ 11 We now recount the relevant testimony from the March 2015 evidentiary hearing on which the circuit court based its findings.

         ¶ 12 Terrence Felton testified as follows. He was the chief information officer at WCC, and his duties included responding to FOIA requests. WCC maintained multiple databases. The Banner database stored information regarding GED and ESL classes and it also handled "every major function of the college," including financial aid, human resources, and inventory. The Banner database had over 3500 tables and was around 250 gigabytes in size. Information related to the National Safety Council's Defensive Driving Course was stored on a separate, "massive" database, the Driver Safety database. The information stored on both the Banner and the Driver Safety databases included ZIP codes for students.

         ¶ 13 The information plaintiff requested resided on the Banner and the Driver Safety databases, but WCC did not have programs to retrieve the data. Retrieval would require writing a program to search the appropriate database and produce a file. Felton believed that it would take "at least a week" for one person to write a program to retrieve from the Driver Safety database the ZIP codes for the students taking the defensive driving course. A member of his staff would have to write the program, and only a select few were available to do so. Writing the program would "just sort of be another multiple thing [sic] that they were doing." A staff member would have to write a different program to retrieve from the Banner database the ZIP codes for the students taking ESL courses in 2011 and yet another program to retrieve the ZIP codes for the students taking GED classes in 2011. Writing each additional program would require an additional week of work by his staff, "given everything else that they're doing from an operational standpoint." They would have to "stop doing their other jobs and do this." When asked later, on rebuttal, whether compliance with plaintiff's FOIA requests could result in overtime costs, he responded "Possibly, yeah." He explained that, "given the vast amounts of data requested," the searches could not be done all at once. Instead, they would have to be done over multiple days or weeks when there was time for his staff to perform them.

         ¶ 14 Turning to the "raw input" request for the "city" field on student registration forms, Felton testified that a staff member would again have to write a program, run it on the Banner database, and output the file. He would also need to "clear up this question about 'Registered, '" as WCC did not store data points on who was registered. It would again take a week to write a program and retrieve the responsive data. The same process would apply to the requests for the raw input for the county code, U.S. citizen, and nonresident-alien fields on the registration forms, with WCC requiring a week to respond to each request.

         ¶ 15 After discussing retrieval of information from the Banner and the Driver Safety databases, counsel asked Felton about other databases. He testified that WCC had other databases and that it also had access to DAISI, which the school used but did not maintain. DAISI was run by the State of Illinois.

         ¶ 16 On cross-examination, counsel first questioned Felton about the Banner database. Felton stated that Banner was a relational database made by Oracle and housed by WCC and that the school had been using Banner since 2007. Banner tracked, among other things, students' names, street addresses (including county), and ZIP codes. It tracked the names, times, and locations of courses that students had taken, and it also stored information about whether students resided in or out of the district and were U.S. citizens. A user with access to the Banner database could search and extract information from the database, including ZIP codes.

         ¶ 17 Felton agreed that Banner could be searched for the names and ZIP codes of all students taking ESL classes in 2011, explaining that "[y]ou could write a program to do pretty much anything you want." It was possible to write programs to respond to all of plaintiff's FOIA requests for information from the Banner database. Counsel then asked whether "that would all come out of the DAISI database," to which Felton responded, "No." Counsel continued, "[t]hat would all come out of the Banner database?" and Felton responded, "Yes." Felton did not know much about DAISI, and WCC did not own, operate, or maintain DAISI.

         ¶ 18 After this exchange about DAISI, counsel turned to the Driver Safety database. Felton testified that the Driver Safety database operated similarly to Banner. It was a relational database, and it tracked students' names, ZIP codes, and classes taken, including when and where those classes were taken. As in Banner, it was possible to write a program to search and extract students' ZIP codes for a certain driver safety class at a certain campus. As in Banner, "[y]ou can write a program to do anything."

         ¶ 19 When asked why writing each program would take a week, Felton answered, "because those people have other responsibilities." When asked whether it would take someone a week to actually write a program to search the Banner or the Driver Safety database, he answered no. When asked how long a staff member would take to extract the ZIP codes of all students taking the National Safety Council's Defensive Driving Course in 2011-assuming that the person did nothing but write the program-Felton said that he "would give them a day." Felton's one-day timeframe applied to each of plaintiff's remaining FOIA requests.[1] Felton explained that he had two staff members who could write programs to respond to plaintiff's FOIA requests. Both staff members were systems analysts who had held their positions for at least 10 years. He had consulted with them about plaintiff's FOIA requests, and they told him that responding to each request would take about a day.

         ¶ 20 Deligtisch testified next, and our summary of his testimony is drawn in part from our prior opinion, Hites I, 2016 IL App (2d) 150836, ¶¶ 18-20. Deligtisch was accepted by the circuit court as an expert in the field of database analytics, and he testified as follows. He worked with databases, both relational and nonrelational, on a daily basis, and he often worked to extract responsive data without extracting personally identifying information. He identified both the Banner and the Driver Safety databases as relational databases, which stored data in a grid format, although he admitted that he had not personally worked on those databases. Relational databases were common and widely used by businesses. Relational databases were like Excel spreadsheets, organizing data in columns and rows, forming tables. "One would expect [a relational database] to have many tables."

         ¶ 21 Searches across multiple tables not only were possible but were the purpose of a relational database. For instance, a relational database allowed for a search of the ZIP codes of all students taking a particular class-"from the perspective of these relational databases, it really [did not] matter if there [were] ten rows of students or 20 million rows of students." In order to perform a search for ZIP codes, one would have to write code to perform the search, but this did not constitute writing a program. Rather, the query would essentially say," 'Go to this table, look at these columns, pull out this data and put it in a spreadsheet or a grid for me.'" Writing the necessary query would take less than one minute, and the entire process-from writing the query to producing a chart with the requested data-would take two to five minutes. Each query would be a short language command, around 10 to 20 words, and the database would provide the information in a grid that looked like an Excel spreadsheet. Relational databases allowed the user to quickly extract the data and put it in an Excel format.

         ¶ 22 Deligtisch did not believe that he needed to work with the Banner or the Driver Safety database to render his opinion, because every relational database was set up in the same format and utilized the same code and tools. He analogized running a search query on a relational database to pulling out responsive files from a filing cabinet.

         ¶ 23 Plaintiff testified as follows. His interest in WCC and its governance went back to around 2010. WCC was located in a "special service area," which meant that those in the area got "taxed a little bit more than any other place in Aurora." The tax funds went to an oversight committee called Aurora Downtown, and the committee's goals were "to help revitalize, beautify, and bring back downtown." He was a member of Aurora Downtown, and he was the chairman of the parking committee when Aurora Downtown was founded. In his function as parking-committee chairman, he noticed that Aurora's downtown parking study was "out of balance" and that the study underestimated the number of parking spots for WCC's new downtown campus by up to 800 spots. Plaintiff had walked around the downtown campus and, he stated, "you really don't see any students out there. There aren't any businesses that work with them. It has not had any real economic benefit." He wanted to find out who the students were, how to market to them, and how the committee could orient WCC to help reinvigorate downtown Aurora.

         ¶ 24 At this point, the court interrupted, stating that it did not understand how plaintiff's testimony was related to the issue before the court. Counsel responded that the testimony went toward establishing the ...


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