OFFICE OF THE ATTORNEY GENERAL

STATE OF ILLINOIS

KWAME RAOUL
ATTORNEY GENERAL

October 21, 2020

Via electronic mail

Ms. Dannee Polomsky
263 Indiana Street
Elmhurst, Illinois 60126
D_polomsky@yahoo.com

Via electronic mail

Ms. Ellen Tulloch
Associate
Franczek P.C.
300 South Wacker Drive, Suite 3400
Chicago, Illinois 60606
ET@franczek.com

RE: FOIA Request for Review – 2020 PAC 63498

Dear Ms. Polomsky and Ms. Tulloch:

This determination is issued pursuant to section 9.5(f) of the Freedom of

Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2018)). For the reasons that follow, the
Public Access Bureau concludes that Elmhurst Community Unit School District No. 205 (School
District) did not violate FOIA by denying Ms. Dannee Polomsky's May 21, 2020, FOIA request
as unduly burdensome. The Public Access Bureau also concludes, on the other hand, that the
School District did not demonstrate that it conducted a reasonable search for records responsive
to Ms. Polomsky's June 9, 2020, FOIA request.

On May 21, 2020, Ms. Polomsky submitted a FOIA request to the School District
seeking copies of all communications sent, posted, or received by five named School District
officials1 between March 11, 2020, and May 21, 2020, consisting of:

1
Dave Moyer, Superintendent; Nikki Tammaru, Assistant Superintendent for Learning and
Leadership Development; Leslie Weber, Director of Curriculum; Marianne Lemke, Executive Director of Research
and Program Analysis; Michelle Thompson, Director of Literacy.

500 South Second Street, Springfield, Illinois 62701 • (217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046
100 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806
601 South University Ave., Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416
Ms. Dannee Polomsky
Ms. Ellen Tulloch
October 21, 2020
Page 2

[1] suggestions, guidance and direction pertaining to

kindergarten through fifth grade (as a whole and grade-
specific) remote learning and e-learning, including but not
limited to objectives, requirements, curriculum live/Google
Meet/Zoom instruction, providing student feedback and
grading/evaluation;

[2] expectations of elementary school educators during stay at

home orders and/or between March 11, 2020 through May 29,
2020. This includes during instructional days, Act of God/
Emergency days (March 16-20), remote professional learning
days, Friday, May 22, and also May 26-29, 2020;

[3] any plans, direction, or suggestions for potential remote

and/or e-learning during the 2020-2021 academic year, for
kindergarten through 12th grade and special
education/transition.[2]

On May 22, 2020, the School District's FOIA officer contacted Ms. Polomsky to ask that she
narrow her FOIA request by providing search terms; Ms. Polomsky replied that her request was
not limited to e-mails and that the superintendent and his cabinet should be able to locate
responsive records. On May 26, 2020, Ms. Polomsky officially informed the School District that
she would not be narrowing her FOIA request. Later that day, the School District extended its
time to respond until June 5, 2020, pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West
2018), as amended by Public Act 101-081, effective July 12, 2019).

On June 3, 2020, the School District responded that Ms. Polomsky's request as
written posed an undue burden pursuant to section 3(g) of FOIA (5 ILCS 140/3(g) (West 2018),
as amended by Public Act 101-081, effective July 12, 2019), and offered her another opportunity
to narrow her request to manageable proportions. The School District stated that it had
performed a broad search "[d]ue to the lack of specificity regarding search terms" and had
located over 8,500 potentially responsive e-mails, many of which would likely contain exempt
information and thus warrant a close review.3

On June 4, 2020, Ms. Polomsky contacted the School District's FOIA officer and
asked various questions regarding how the School District searched for responsive records. On

2
FOIA Request from Dannee Polomsky to [Ellen] Walsh (May 21, 2020).
3
Letter from Ellen Walsh, Freedom of Information Officer, Elmhurst Community Unit School
District 205, to Dannee Polomsky (June 3, 2020).
Ms. Dannee Polomsky
Ms. Ellen Tulloch
October 21, 2020
Page 3

June 8, 2020, the School District responded to Ms. Polomsky's questions, stating that the e-mail
search terms it had used for the five accounts during the specified time period were "e-learning"
or "remote learning."

On June 9, 2020, Ms. Polomsky submitted a follow-up FOIA request to the

School District seeking:

[1] All GoogleDoc documents stored in a file named Remote

E-learning Resources for Staff and Elementary Principals, or in
a file with a similar name. This may mean documents that were
intact and/or updated between March 11, 2020 and May 29,
2020 or those currently available/retrievable, if the March 11-
May 29 versions are not available;

[2] Between March 11, 2020 and May 29, 2020, all
communications between or among David Moyer and any and
all members of the Superintendent's cabinet pertaining to any
document in the Remote E-learning Resources for Staff and
Elementary Principals (or similarly-named) file;

[3] Any proposals, plans, direction, or suggestions considered

for potential remote and/or e-learning instruction during the
2020-2021 academic year.[4]

On June 16, 2020, the School District responded that the file name that most closely resembled
the file folder Ms. Polomsky was seeking was "EC-5 E-Learning Resources." The School
District provided her with copies of records responsive to part one of her request, but asserted
that it possessed no documents responsive to parts two and three.

On June 18, 2020, this office received Ms. Polomsky's Request for Review
contesting the School District's assertions that her May 21, 2020, request was unduly
burdensome and that it possessed no records responsive to parts two and three of her June 9,
2020, request.5

On June 29, 2020, this office sent a copy of the Request for Review to the School
District and asked it to provide a detailed explanation of its legal and factual bases for asserting

4
E-mail from Dannee [Polomsky] to [Ellen] Walsh (June 9, 2020).
5
Although Ms. Polomsky also discussed a request she submitted on June 10, 2020, she did not ask
this office to review any component of the School District's response.
Ms. Dannee Polomsky
Ms. Ellen Tulloch
October 21, 2020
Page 4

that Ms. Polomsky's May 21, 2020 request is unduly burdensome. Additionally, this office
asked the School District to provide a detailed description of its search for records responsive to
the June 9, 2020, amended request, and to explain how it came to the conclusion that it possessed
no records responsive to parts two and three of that request.

On July 15, 2020, counsel for the School District provided this office with a
written response. On July 20, 2020, this office forwarded a copy of the School District's
response letter to Ms. Polomsky; she replied on July 28, 2020. In particular, Ms. Polomsky
argued "there is broad public interests in the documents responsive to my requests * * * Parents
had a variety of experiences with remote learning, and have expressed the need for its
definition."6

DETERMINATION

All public records in the possession or custody of a public body are "presumed to
be open to inspection or copying." 5 ILCS 140/1.2 (West 2018); see also Southern Illinoisan v.
Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). A public body "has the burden of
proving by clear and convincing evidence" that a record is exempt from disclosure. 5 ILCS
140/1.2 (West 2018).

Section 3(g) of FOIA

Section 3(g) of FOIA provides, in pertinent part:

Requests calling for all records falling within a category

shall be complied with unless compliance with the request would
be unduly burdensome for the complying public body and there is
no way to narrow the request and the burden on the public body
outweighs the public interest in the information. Before invoking
this exemption, the public body shall extend to the person making
the request an opportunity to confer with it in an attempt to reduce
the request to manageable proportions. If any public body
responds to a categorical request by stating that compliance would
unduly burden its operation and the conditions described above are
met, it shall do so in writing, specifying the reasons why it would
be unduly burdensome and the extent to which compliance will so

6
Letter from Dannee Polomsky to Christina M. Lucente-McCullough, Assistant Attorney General,
Public Access Bureau (July 27, 2020), at 4.
Ms. Dannee Polomsky
Ms. Ellen Tulloch
October 21, 2020
Page 5

burden the operations of the public body. Such a response shall be

treated as a denial of the request for information.

In its answer to this office, the School District maintained that Ms. Polomsky's
May 21, 2020, request posed an undue burden. The School District confirmed that it searched
for e-mails from the five accounts between March 11, 2020 and May 20, 2020, containing either
the term "e-learning" or the term "remote learning," and located approximately 8,500 e-mails.
The School District argued:

Based on that amount of records, the School District would have to

spend considerable time and manpower to compile, review, and
consolidate the documents. Additionally, once the School District
had an opportunity to compile and review the records, they would
need to be shared with legal counsel for review of possible
exemptions, as the records likely contained identifying student
information, personal information, and pre-decisional records,
which are exempt from disclosure under the FOIA.[7]

The School District also argued that Governor Pritzker's "stay-at-home" order during the early
months of the COVID-19 pandemic contributed to the burden involved in physically retrieving
records.

In her reply, Ms. Polomsky disputed the School District's unduly burdensome
arguments by claiming that her three FOIA requests were the only ones received by the School
District between April 14, 2020, and June 16, 2020. She also argued:

It is hard to believe that five persons could have sent or received

8,500 emails on the subject topic in 10 weeks. Nowhere in the
Response does District 205 state that it made any effort to have the
five individuals look at their own documents to see which ones
were responsive, nor does the District state that it took any
additional steps to refine its search and reduce the number of
potentially responsive emails.[8]

7
Letter from Emily M. Tulloch to Christina M. Lucente-McCullough, Assistant Attorney General,
Public Access Bureau (July 15, 2020), at 3.
8
Letter from Dannee Polomsky to Christina M. Lucente-McCullough, Assistant Attorney General,
Public Access Bureau (July 27, 2020), at 3.
Ms. Dannee Polomsky
Ms. Ellen Tulloch
October 21, 2020
Page 6

Ms. Polomsky's three-part May 21, 2020, FOIA request broadly sought
communications regarding e-learning or remote learning sent, posted, or received during the first
months and weeks of the COVID-19 pandemic by five School District officials who would be
expected to have engaged in extensive communications about those subjects given their
respective positions. The School District's use of the search terms "e-learning" and "remote
learning" was a reasonable method of ascertaining the amount of potentially responsive e-mails,
given that the request expressly concerns those subjects; it is unclear how the School District
could craft an appropriate search without using those terms. Although 8,500 is a large sum of e-
mails, it does not appear implausible that thousands of e-mails would need to be reviewed for
responsiveness and the potential applicability of various FOIA exemptions. This alone poses a
substantial burden. Additionally, as Ms. Polomsky noted, her request was not limited to e-mails;
it necessitated a search of other types of records, including paper ones. The burden of searching
for and reviewing those records imposes an additional burden on the District's operations. It
does not appear that having the five officials attempt to gather responsive records would
significantly alleviate the burden of the request given its use of vague, general terms, such as
"suggestions" and "guidance." While there is a significant public interest in how schools have
planned for remote learning and e-learning, it appears that the heavy burden of complying with
the request outweighs the public interest in disclosure of the full sum of the responsive records.
The School District met the procedural requirements of section 3(g) by responding in a timely
manner and offering Ms. Polomsky the opportunity to narrow her request. Under these
circumstances, this office concludes that the School District's did not improperly deny Ms.
Polomsky's May 21, 2020, request as unduly burdensome.

Reasonable Search for Records

When presented with a FOIA request, a public body is required to conduct a

"reasonable search tailored to the nature of [that] particular request." Campbell v. U.S. Dep't of
Justice, 164 F. 3d 20, 28 (D.C. Cir. 1998). "Although a public body is not required to perform
an exhaustive search of every possible location, the body must construe FOIA requests liberally
and search those places that are 'reasonably likely to contain responsive records.'" Better
Government Ass'n v. City of Chicago, 2020 IL App (1st) 190038, ¶31, __ N.E.3d __ (2020)
(quoting Judicial Watch, Inc. v. U.S. Dep't of Justice, 373 F. Supp. 3d 120, 126 (D.D.C. 2019)).
A public body must use search terms that are reasonably calculated to locate all responsive
records. Hall v. C.I.A., 668 F. Supp. 2d 172, 183-84 (D.D.C. 2009). "At all times the burden is
on the [public body] to establish the adequacy of its search." Rugiero v. U.S. Department of
Justice, 257 F.3d 534, 547 (6th Cir. 2001).

In its response to this office, the School District reiterated that it did not possess
records responsive to parts two and three of Ms. Polomsky's June 9, 2020, FOIA request.
Addressing part two, the School District stated that its then-Executive Director of Technology
Ms. Dannee Polomsky
Ms. Ellen Tulloch
October 21, 2020
Page 7

searched correspondence containing the term "EC-5 E-Learning Resources" sent during the
relevant timeframe from nine e-mail accounts. The School District stated that although it
"engaged in a thorough search for records responsive to this request, the search did not result in a
return of any e-mail correspondence or documents that were responsive."9 Additionally, the
School District stated that its "FOIA officer requested that Superintendent David Moyer provide
any responsive documents. Dr. Moyer engaged in a thorough review for documents responsive to
the request and ultimately found that the School District was not in possession of any responsive
documents."10

This office is unable to conclude from the available information that the School
District performed a reasonable search for records responsive to Ms. Polomsky's June 9, 2020,
request. Although the School District searched for correspondence containing the full title of the
file folder at issue, the School District did not indicate that it searched for the titles or subject
matters of any documents within that folder, despite Ms. Polomsky's inclusion in her request of
the language "pertaining to any document in" the file. Thus, the search term used by the School
District was not reasonably-calculated to locate all records responsive to the second part of the
request. It is also unclear how the School District construed the language in part three of the
request seeking "proposals, plans, direction, or suggestions"; Ms. Polomsky noted that in a
memorandum from the superintendent to the School District's Board of Education (Board) dated
May 29, 2020, the superintendent stated that four committees consisting of 78 teachers,
administrators, Board members, and parents and community members had been formed to create
a plan for the 2020-2021 school year. The memorandum indicated that the committees began
meeting the week of June 1, 2020. It is unclear if or how the District determined whether the
committees had generated any records containing "guidance" or other responsive information at
the time of the request. The School District's brief statement that the superintendent performed a
search is insufficient for this office to conclude that the School District's search was reasonably
calculated to locate records responsive to the full scope of Ms. Polomsky's request. In particular,
the School District did not provide information concerning a search of recordkeeping systems
other than its e-mail system, or any other details about how the superintendent searched.
Therefore, the Public Access Bureau concludes that the School District did not demonstrate that
it performed a reasonable search for records responsive to Ms. Polomsky's June 9, 2020, FOIA
request.

This office requests that the School District perform a supplemental search for
records responsive to parts two and three of Ms. Polomsky's June 9, 2020, request and issue a

9
Letter from Emily M. Tulloch to Christina M. Lucente-McCullough, Assistant Attorney General,
Public Access Bureau (July 15, 2020), at 4.
10
Letter from Emily M. Tulloch to Christina M. Lucente-McCullough, Assistant Attorney General,
Public Access Bureau (July 15, 2020), at 4.
Ms. Dannee Polomsky
Ms. Ellen Tulloch
October 21, 2020
Page 8

supplemental response to Ms. Polomsky, providing her with copies of any additional responsive
records it locates (subject to permissible redactions under section 7 of FOIA (5 ILCS 140/7
(West 2018), as amended by Public Acts 101-434, effective January 1, 2020; 101-452, effective
January 1, 2020; 101-455, effective August 23, 2019). If the School District locates no
additional records, it should issue a supplemental response describing the specific measures that
were taken to search for records.

The Public Access Counselor has determined that resolution of this matter does
not require the issuance of a binding opinion. This letter shall serve to close this matter. If you
have any questions, please contact me at (312) 814-5383, clucentemccullough@atg.state.il.us, or
the Chicago address listed on the first page of this letter.

Very truly yours,

CHRISTINA M. LUCENTE-MCCULLOUGH
Assistant Attorney General
Public Access Bureau

63498 f 3a search improper 3g und burd proper sd