OFFICE OF THE ATTORNEY GENERAL

STATE OF ILLINOIS

KWAME RAOUL
ATTORNEY GENERAL

July 20, 2020

Via electronic mail

Ms. Dannee Polomsky

263 Indiana Street
Elmhurst, Illinois 60126
d_ polomsky@yahoo. com

RE: FOIA Request for Review — 2020 PAC 63498

Dear Ms. Polomsky:

The Public Access Bureau has received the enclosed response to your Request for
Review from the Elmhurst Community Unit School District No. 205 ( School District). You
may, but are not required to, reply in writing to the School District' s enclosed response. If you
choose this option, you must submit your reply to this office within 7 business days of your
receipt of this letter. 5 ILCS 140/ 9. 5( d) ( West 2018). Please send a copyof your reply to the
School District as well.

If you have any questions, please contact me at ( 312) 814- 5383,

clucentemccullough@atg. state. il. us, or the Chicago address below.

Very truly yours,

Liu, ru- b._-PlQ02-

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

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
July 20, 2020
Page 2

Enclosure

cc: Via electronic mail

Ms. Ellen Walsh
Freedom of Information Officer

Elmhurst Community Unit School District No. 205

162 South York
Elmhurst, Illinois 60126

emwalsh@elmhurst205. org

cc: Via electronic mail

Ms. Emily Tulloch

Associate
Franczek P. C.
300 South Wacker Drive, Suite 3400
Chicago, Illinois 60606
ET@franczek. com.
 FRANCZEK
300 SOUTH WACKER DRIVE, SUITE 3400 I CHICAGO. IL 60606
T: 312. 986. 0300 I F: 312. 986. 9192 I FRANCZEK. COM

EMILY M. TULLOCH

312. 786. 6542

et@franczek. com

July 15, 2020

VIA ELECTRONIC MAIL

Christina M. Lucente- McCullough

Assistant Attorney General
Public Access Bureau
100 West Randolph Street
Chicago, Illinois 60602.
clucentemccullough@atg. state. il. us

Re: Response to Request for Review - 2020 PAC 63498

Dear Ms. Lucente- McCullough:

This law firm represents Elmhurst Community Unit School District. 205 (" School
District"). The School District received your June 29, 2020 letter regarding Ms. Dannee
Polomsky' s request for Public Access Counselor review of the School District' s decision to deny
Ms. Polomsky' s May 21, 2020 request under the Freedom of Information Act. Per your request,
this letter provides support for the School District' s contention that Ms. Polomsky' s FOIA request
was unduly burdensome.

Ms. Polomsky submitted a FOIA request to the School District on May 21, 2020. In the
May 21, 2020 request, Ms. Polomsky requested the following records:

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, directions or suggestions for potential remote and/ or e -learning during the 2020-
2021 academic year, for kindergarten through 12th grade and special education/ transition.

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The District identified the request as unduly burdensome on May 22, 2020 in a phone call
and offered Ms. Polomsky the opportunity to narrow her request. On May 26, 2020, Ms. Polomsky
notified the School District that she was not willing to narrow her request. On May 26, 2020, the
School District properly extended the timeframe for its response to June 5, 2020, pursuant to
Section 3( e) of the FOIA. On June 3, 2020, the School District denied the request as unduly
burdensome pursuant to Section 3( g) of the FOIA and again provided Ms. Polomsky the

opportunity to narrow her request to reduce it to manageable proportions.

On June 9, 2020, Ms. Polomsky submitted an amended FOIA request to the School District,
requesting the following records:

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;

2. 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 file dated March 11, 2020 through May 29, 2020; and

3. Any proposals, plans, direction, or suggestions considered for potential remote and/ or e -
learning instruction during the 2020- 2021 academic year.

Further, on June 10, 2020, Ms. Polomsky amended this request to include the following:

1. Any side letter to the Elmhurst Community Unit School District 205 and Elmhurst
Teachers' Council Local 571 American Federation of Teachers July 1, 2018 -. June 30,

2021 Agreement or any similar document pertaining to expectation of teachers in response

to the COVID- 19 emergency;

2. Any notes or minutes from the meeting during which a conclusion was made that the
document was final/ ready to send to the DuPage Regional Office of Education; and

3. Any other District 205 policies pertaining to teacher responsibilities.

On June 16, 2020, the School District responded to Ms. Polomsky' s amended requests,
providing her with records responsive to her first request in the June 9, 2020 request. However,
the School District stated in its response that the District was not in possession of any responsive
records to Ms. Polomsky' s second and third requests. The School District provided Ms. Polomsky
responsive documents to the first part of her. June 10, 2020 request. Ms. Polomsky appealed to the
PAC on June 18, 2020. The School District understands the following to be at issue in her appeal:
The School District' s response that her May 21, 2020 FOIA request was unduly
burdensome; and
The School District' s response that there were no responsive records to portions of her June
9, 2020 and June 10, 2020 requests.

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March 21, 2020 Request

The School District' s response that Ms. Polomsky' s requests were unduly burdensome is
authorized under Section 3( g) of the FOIA. It is not possible for the School District to respond to
Ms. Polomsky' s request without creating an undue burden on the School District' s employees
responsible for responding to the FOIA. The School District performed a search of all e- mail
correspondence between March 11, 2020 and May 20, 2020 that included the terms " e - learning"
or " remote learning" from the following administrator e- mail accounts:
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

This search produced approximately 8, 500 e- mails. 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.

Further, . the School District received Ms. Polomsky' s May 21, 2020, June 9, 2020, and
June 10, 2020 requests after Illinois Governor J. B. Pritzker issued a stay- at- home order related to
the COVID- 19 pandemic. Accordingly, it is not possible for the School District to respond to Ms.
Polomsky' s request while the stay- at- home order is in place without creating an undue burden on
the School District' s employees responsible for responding to the FOIA. To review the

approximately 8, 500 potentially responsive e- mails, the employees necessary to facilitate the
FOIA response would need to physically go into the School District office to compile and produce
the responsive records. Not only would this work take a significant time to complete due to the
number of potentially responsive records, but it necessitatesthat the employees have actual
physical access to the School District' s. facilities. While the stay- at- home orders did not suspend
the FOIA, the orders and the COVID- 19 pandemic have certainly impacted FOIA and specifically
the unduly burdensome analysis.

Due to the volume of the records, this task goes beyond what is reasonably expected of a
public body in complying with the FOIA and will disrupt the duly -undertaken work of the School
District in violation of the purposes of the FOIA. 5 ILCS 140/ 1. The FOIA is not. intended to
unduly burden public resources or to disrupt the work of a public body when the burden of the
public body outweighs the public interest in the information. 5 ILCS 140/ 1. As part of its June 3
response, the School District also provided Ms. Polomsky with anopportunity to narrow her
request, to which she did not avail herself. Therefore, the unreasonable burden that would be placed
on School District employees to respond to this request at this time authorized the FOIA Officer
to categorize Ms. Polomsky' s request as unduly burdensome.

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June 9, 2020 and June 10, 2020 Requests

In response to Ms. Polomsky' s request for " 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 between
March 11, 2020 and. May 29, 2020," the School District stated that there were no documents

responsive to the request. To search for documents responsive to Ms. Polomsky' s request, David
Smith, the District' s now -retired Executive Director of Technology, performed a search of
correspondence including the term " EC -5 E -Learning Resources" sent between March 11, 2020
and March 29, 2020 from the following administrator e- mail accounts:
Dave Moyer, Superintendent
David Smith, Executive Director

Scott Grens, Assistant Superintendent for Innovation and Growth

Nikki Tammaru, Assistant Superintendent for Learning and Leadership Development

Bev Redmond, Executive Director of Communications
Chris Whelton, Assistant Superintendent of Finance and Operations
Michael Volpe, Interim Assistant Superintendent of Student Services
Marianne Lemke, Executive Director of Research and Program Analysis
Mark Cohen, Assistant Superintendent of Human Resources

Although the School District 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.

In response to Ms. Polomsky' s request for " any proposals, plans, direction, or suggestions
considered for potential remote and/ or e -learning .instruction during the 2020- 2021 academic
year,"
the School District stated that there were no documents responsive to this request. In arriving
at this determination, the School District' s 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.

The School District looks forward to hearing from you as you conclude your review. The
School District will take no further action on this matter until so directed by your office.

Sincerely,

Emily M. Tulloch

cc: Kathy Schmitt, Elmhurst CUSD 205 FOIA Officer

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