Right-Wing Group Sues New Trier for FOIA Denials

One of those stories where there are no good guys

There’s a story out of New Trier: New Trier sued for denying FOIA request related to Holocaust Remembrance Day activity. ¹ You can get a little bit more background on the overall story in this Chicago Tribune article.

A conservative activist group affiliated with the Federalist Society is suing New Trier for denying their FOIA request for the following information;

Email communications in the possession of employees Niki Dizon; Denise Dubravec; Gail Gamrath; Christopher Johnson; Joanne Panopoulos; Dan Paustian; Paul Sally; Peter Tragos; Paul Waechtler; Timothy Hayes; Patricia Savage-Williams; Kiran Subhani; and Chimille Tillery, between the dates of January 1, 2024, and February 15, 2024, that contain the terms “Holocaust”, “Palestine”, or “Gaza.”

Their claim is that New Trier improperly denied a FOIA request as “unduly burdensome.” You can read the full text of their lawsuit at this link.

The Illinois FOIA statute does permit public bodies to reject requests for being too burdensome. Here’s the specific exemption from the law:

(g) 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 burden the operations of the public body. Such a response shall be treated as a denial of the request for information.

I’ve had some requests rejected for this reason. For instance, here’s a rejection related to me trying to find emails related to District 65’s CREATE65 program. My request yielded 1,200 emails related to the program. To be fair to the government, these types of requests (“give me all emails about X”) require a lot of work on their end - someone has to go through all the emails and redact personal information, etc. Furthermore, FOIA isn’t designed as a tool to go fishing - you kind of need to know what you’re looking for.

As a journalist, when I get a denial like this, I have three choices

• Learn more information to narrow your request (usually what I do).

• Go to bat and sue or complain to the IL Attorney General, which is usually a losing battle.

• Give up and move on.

I’m not a fan of Parents Defending Education, I think they’re a bunch of right wing trolls who probably intend to use information to publicly shame people for private political beliefs. But I think they’ve got a pretty strong case here:

• They requested 45 days of emails, which is a lot but not crazy.

• They requested 13 people, which is a lot but most of them are semi-public officials: superintendents, principals, and so on. I think there are only one or two educational staff on that list. One of the recipients is the President of the ETHS Board of Education.

• Their request is relatively in the interest of the public - there was a Chicago Tribune story on the subject matter and a lot of journalists were poking around the story at the time (including me - see below).

• New Trier didn’t tell them why it was burdensome. Usually, like in my case, they tell you how many emails or records there are. This is common practice - District 65 and the City of Evanston both do this with a burdensome denial.

• New Trier’s claim that “the School District would likely need to utilize the services of its outside legal counsel to review the records at a significant cost to taxpayers” is non-sense. This is not the burden of the requester, otherwise every government would just reject everything for this.²

Furthermore, there seems to be some dispute on how hard it would be to actually get the records. In the suit, Parents Defending Education argue;

Further, the records are all part of the same medium of communication: email. A simple directive to each of Defendant’s employees to conduct a three-keyword-search of his or her email inbox could yield all the requested results in seconds.

But it’s even easier than that! New Trier uses Office 365, which has administrative tooling to export emails that match terms exactly like this. This is a single query from one of the IT folks against Microsoft’s eDiscovery tool.

With that said, New Trier is a sophisticated actor when it comes to FOIA requests. For instance, in February 2024, I submitted a FOIA request for the original records behind a sign on the Freshman Campus from 2016-2023.

New Trier responded with a denial (no records exist) while at the same time seeming to indicate that the records did, in fact, exist. 🤔

No responsive records, but we are sharing additional information to address what we believe is a misunderstanding in your request. The 8”x 11” sign you are referring to was created in the fall of 2016 by a faculty member. That sign was not approved for display. A copy of the approved 2016 sign and the communication from our equity team that accompanied it is attached. We understand that two copies of the unapproved sign were inadvertently still displayed on campus, and they have been removed.

They went so far as to provide a letter sent out in 2016 and an alternate sign that was theoretically made in 2016. My request was asking for the original document that was hung up, not the one they approved. The law doesn’t care whether they’ve approved it or not!

I ended up not going further with the sign story, I didn’t think it was newsworthy - a lot of places hung up signs like this after the 2016. From interviews, I got the sense it just sat there and collected dust.

Anyway, stay tuned.

1. I submitted a FOIA for some records at the same time. I had a much more narrow request which came back with no records. I was working on essentially the same story and didn’t find a really compelling case to write about - it seemed like 95% rumors. I did end up writing a story on a similar subject, but the Holocaust Remembrance Day story just didn’t seem to meet my standard of evidence.

2. It’s not even prima facie clear why this is true. The request was for the terms “holocaust”, “palestine” and “gaza” - not private student information or anything that seems like it would require extensive legal review. I don’t see why Pat Savage-Williams’ opinions on Gaza, for instance, require the lawyers.