Illinois Municipal League Annual Conference

ILLINOIS MUNICIPAL LEAGUE ANNUAL CONFERENCE

SEPTEMBER 18, 2015

FREEDOM OF INFORMATION ACT UPDATE

– PREPARED BY –

MICHAEL T. JURUSIK GREGORY T. SMITH SUMMARY OF THE FREEDOM OF INFORMATION ACT 5 ILCS 140/et seq.

This handout summarizes the recent legislation, binding Public Access Counselor (“PAC”) opinions and court decisions related to the Illinois Freedom of Information Act (“FOIA”), 5 ILCS 140/1 et seq.

SUMMARY OF NEW LEGISLATION THAT AFFECTS OR AMENDS FOIA

Public Act 98-1129

Effective: December 3, 2014

Public Act 98-1129 amended FOIA by setting forth guidelines for replying to voluminous requests. The Public Act defined "voluminous request" as a request that includes more than five (5) individual requests for more than five (5) different categories of records or multiple requests in a period of twenty (20) days for records in five (5) different categories. Voluminous requests can also include requests that require the compilation of over five hundred (500) pages of public record, unless one (1) single requested record happens to exceed five hundred (500) pages. However, requests by news media, non-profits, scientific or academic organizations are not considered a voluminous request. The Public Act also requires public bodies to respond to the requestor within five (5) days to notify him or her that the request was voluminous and give the requestor a chance to amend the request. The public body then has an additional ten (10) days from the date of response to produce the necessary documents. The Public Act also allows public bodies to charge specified amounts for voluminous requests, depending on the amount of electronic data. Additionally, the Public Act provides that, with specified exceptions, a public body is not required to copy and make available for public inspection a public record that is published on the public body's website.

Public Act 99-0298

Effective: August 6, 2015

Public Act 99-0298 adds an exemption to records that are required to be disclosed. The Public Act provides that records requested by persons committed to or detained by the Department of Human Services or Department of Corrections under the Sexually Violent Persons Commitment Act are exempt from disclosure if those materials: (i) are available in the library of the facility where the individual is confined; (ii) include records from staff members' personnel files, staff rosters, or other staffing assignment information; or (iii) are available through an administrative request to the Department of Human Services. The Public Act clarifies that provisions of the Act do not supersede the confidentiality provisions for law enforcement or arrest records of the Juvenile Court Act of 1987. The Public Act additionally amends the Juvenile Court Act of 1987 and provides that inspection and copying of law enforcement records maintained by law enforcement agencies that relate to a minor who has been investigated, arrested or taken into

351985_1 2 custody before his or her 18th birthday are subject to certain restrictions. The Public Act provides that information which is or was prohibited from disclosure by the Juvenile Court Act of 1987 is exempt from disclosure.

351985_1 3 SUMMARY OF RECENT FOIA COURT DECISIONS

Better Gov't Ass'n v. Zaruba

2014 IL App (2d) 140071, 21 N.E.3d 516

The Illinois Appellate Court held that records disclosing the vehicles and persons who were the subjects of Law Enforcement Agencies Data System (“LEADS”) inquiries conducted by the Sheriff's teenage son were protected from disclosure under Section 7(1)(a) of FOIA. The Court was required to interpret the term “LEADS data” as defined by 20 Ill. Adm. Code 1240.80 of the Administrative Code. In doing so, the Court noted that, even if a statute does not specifically provide that records are exempt from disclosure under the FOIA, or otherwise contain an explicit prohibition against public disclosure, records are nonetheless exempt where the plain language contained in a State or Federal statute reveals that public access to the records was not intended. After looking at all of the relevant sections of the Administrative Code, the Court held that the regulations specifically prohibit the Sheriff from disclosing information regarding the inquiries performed by LEADS users. Therefore, the information was exempt from disclosure under Section 7(1)(a) of FOIA.

Ward v. Weisbaum

2015 IL App (3d) 130852 (Unpublished)

The plaintiff in this case sought the home addresses of two (2) notary publics because he wanted to serve them with summonses in a separate case involving his property. The Director of the Index Department of the Office of the Secretary of State provided him with the notary public applications for the two (2) individuals in question, which included their employer addresses, but their home addresses were redacted. The Director claimed that the individuals’ home addresses were private information under Section 7(1)(b), but the plaintiff claimed that the information could be disclosed under Section 7(1)(c) because the information pertained to the public duties of the two (2) public employees. The Court held that the home addresses of the notary publics were indeed private information under Section 7(1)(b) of FOIA. Therefore, it was not necessary to consider the plaintiff’s argument that the addresses were not exempt personal information under Section 7(1)(c). The court also noted that, while personal information may be disclosed under Section 7(1)(c) if written consent is obtained from the subject of the information, there is no consent provision for private information exempt under Section 7(1)(b).

Shehadeh v. Office of Executive Inspector Gen. for Agencies of Illinois Governor

2015 IL App (5th) 130232 (Unpublished)

The Illinois Appellate Court held that the Circuit Court correctly granted summary judgment in favor of the defendant, the Office of Executive Inspector General for the Agencies of the Illinois

351985_1 4 Governor (“OEIG”). In this case, the plaintiff, acting pro se, filed a complaint pursuant to FOIA claiming that the OEIG failed to respond to his FOIA request for a particular record. Instead, his requests were returned to him in the mail unopened. The OEIG did not dispute that it failed to respond to plaintiff's FOIA request within the statutory five (5) business days time frame. However, the pleadings established that, during the pendency of the court action, but before a trial was held, the OEIG turned over to plaintiff the record he had requested. This rendered the plaintiff’s FOIA claim moot, and necessitated ruling in the OEIG’s favor on summary judgment. Additionally, the plaintiff could not collect attorney’s fees because he was a pro se litigant and the record did not establish a willful or intentional failure to comply with FOIA, but merely showed that the returned mailings were due to a simple bureaucratic error.

351985_1 5 SUMMARY OF BINDING OPINIONS ISSUED BY THE PUBLIC ACCESS COUNSELOR

PAC Opinion 14-011, issued September 19, 2014 Duty to Respond to FOIA Requests Public Access Opinion 14-011 found that the City of Harvey had violated Section 3(d) of FOIA by failing to comply with, deny or otherwise appropriately respond to four FOIA requests from Chicago Tribune reporters within five (5) business days of receipt. The reporters made two (2) FOIA requests on June 20, 2014. The City of Harvey acknowledged the receipt of only one (1) of those requests, even though the requests were both emailed to the same email address within minutes of each other. The City did not provide the documents sought, deny the request, or extend the time to respond for over a month. The reporters then sent a follow-up email on July 23, 2014, asking when they might receive a response to the two requests. There was no response. Additionally, the same two reporters filed two (2) additional FOIA requests on July 11, 2014, but heard no response. A week later, on July 18, 2014, the reporters followed up the request and re-sent it to someone else they believed to be the new FOIA officer. The new FOIA officer responded by acknowledging the receipt of the request and advising the reporters that the request had been sent to the City’s Planning Department. After not hearing back about any of the four (4) requests, the reporters sought the help of the Public Access Bureau on August 1, 2014. The PAC contacted the City regarding the requests twice, and each time was assured that a response was forthcoming. However, as of the date of the binding opinion, the City never responded to the requestors or the PAC with responsive documents. Therefore, the PAC held that the City violated Section 3(d) of FOIA for failing to comply with requests within five (5) business days of the request. Even when construing the facts liberally in favor of the City as to when they actually received the requests, it is still clear that they did not respond within the required timeframe.

PAC Opinion14-013, issued October 14, 2014 Photocopies of Records Exempt under 7(1)(e-5) Public Access Opinion 14-013 found that the Illinois Department of Corrections (“IDOC”) did not violate FOIA when it denied an inmate’s request for documents, when the documents requested were available in the library where he was confined. On April 16, 2014, Adam Escamilla submitted a FOIA request to the IDOC seeking copies of several IDOC Administrative Directives. On April 28, 2014, IDOC denied the request, citing Section 7(1)(e-5) of FOIA, which exempts from disclosure “records requested by persons committed to the Department of Corrections if those materials are available in the library of the correctional facility where the inmate is confined.” The legislative history of Section 7(1)(e-5) of FOIA indicates that the General Assembly intended for that provision to ease the administrative burden associated with requiring IDOC to furnish inmates with copies of records that are available for inspection in the libraries of the facilities in which inmates are confined. Because it is undisputed that the records Mr. Escamilla requested were available for inspection in the library of the facility in which he was confined, it is the opinion of the Attorney General that the IDOC properly denied the FOIA request.

351985_1 6 PAC Opinion 14-014, issued November 20, 2014 Duty to Respond to FOIA Requests Public Access Opinion 14-014 addressed the City of Harvey’s duty to comply with a FOIA request. The Office of the Attorney General concluded that the city violated Section 3(d) of FOIA by failing to either comply with, to deny or to otherwise appropriately respond to a FOIA request submitted by a Chicago Tribune reporter, within five (5) business days following its receipt. The reporter was seeking information pertaining to an entity known as CHANGE Illinois, including all permits granted to the entity by the City. After the City failed to respond to a follow-up communications from both the reporter and from the Public Access Bureau, the Public Access Counselor issued this opinion. The PAC found that the City’s failure to respond to the reporter’s FOIA request in any manner over a period of a month-and-a-half violated Section 3(d) of FOIA.

PAC Opinion 14-015, issued November 25, 2014 Employment Applications Public Access Opinion 14-015 found that the Village of Winnetka violated FOIA by not disclosing an employee’s résumé and employment application. The requestor wanted the Assistant Director of Public Works’ résumé and employment application, but the Village denied his request on the grounds of Section 7(1)(c), which prohibits the disclosure of personal employee information, and Section 7.5(q), which exempts disclosure of information prohibited from disclosure by the Personnel Records Review Act. In a letter justifying its decision to the PAC, the Village also asserted the information should not be disclosed based on Section 7(1)(f) and Section7(1)(b). On review, the PAC held that the Section7(1)(c) exemption did not apply because the employment application and résumé bear on the employee’s public duties as Assistant Public Works Director, and are thus not exempt from disclosure. Furthermore, the PAC found that there was a compelling interest in the disclosure of public employees’ credentials to determine if the hiring complied with applicable laws, rules and regulations; that public interest outweighs the employee’s right to privacy of the information contained on his application and résumé. Additionally, the PAC found that Section 7.5(q) did not apply because the Personnel Records Review Act does not prohibit the disclosure of résumés or employment applications, and that Section 7(1)(f) also did not apply because, even though the requested documents were provided to assist the Village in making a decision, the information contained in those documents is purely factual and did not reflect the Village’s own deliberative process. Last, unique identifying information such as home address, personal phone numbers and email addresses, and signatures that might be found on the documents in question, could properly be redacted in compliance with Section7(1)(b). Because none of the cited exemptions apply in this situation to fully exempt disclosure, the Village should have disclosed the employee’s employment application and résumé with any unique identifying information, per Section 7(1)(b), redacted.

PAC Opinion 14-016, issued December 2, 2014 Disclosure of Terms of Lease Agreements Public Access Opinion 14-016 addresses whether a public body must disclose terms of lease agreements for the rental of public property if it believes the information will give competitors an unfair advantage. The PAC found that the Metropolitan Pier and Exposition Authority (“MPEA”) violated FOIA by denying a reporter’s request for lease agreements, including financial terms and square footage data, for rental space for conventions and trade shows held at McCormick Place. MPEA denied the request because the financial terms of the leases and the square footage data was exempt under Section 7(1)(g), which exempts disclosure of trade secrets, because it claimed that releasing that data would undermine future negotiations and give competitors an unfair advantage. It also claimed that it would be unduly burdensome for the

351985_1 7 agency to have to go through all of the leases and redact the financial and square footage information. After reviewing the circumstances of the case, the PAC held that the Section 7(1) (g) exemption does not apply to the financial terms of a lease or information regarding square footage. That relevant part of the exemption only applies to information received from a private entity that could then be disclosed by a public entity, and it did not apply to a public body’s own business transactions. Additionally, the PAC noted that other federal courts have agreed and held that government contracts do not qualify as trade secrets. Also, the PAC further determined that even if the exemption did apply, MPEA did not establish by clear and convincing evidence how releasing the lease’s financial terms and square footage information would cause competitive harm to the entity or its leaseholders. The PAC also rejected MPEA’s second argument that the terms of the lease agreements constituted a “valuable formula” under Section 7(1)(i) that would produce public loss if disclosed. The PAC also noted that, under Section 2.5 of FOIA, local public entities are required to make public records relating to the receipt and use of public funds, and the request clearly fell into the category of “receipt of public funds.” Finally, the financial and square footage information was not exempt from disclosure, the entity would not have to redact the information and, therefore, the request would not be unduly burdensome.

PAC Opinion 15-001, issued January 15, 2015 Disclosure of Records of the State Board of Professional Engineers Public Access Opinion 15-001 found that the Illinois Department of Financial and Professional Regulation (“IDFPR”) violated the requirements of FOIA by refusing to provide records to the PAC for review and by failing to demonstrate that the requested records were exempt from disclosure. In this case, someone requested records related to a complaint against a professional engineer from the IDFPR including any meeting minutes where the complaint was discussed. The IDFPR claimed that the information was exempt under Sections 7(1)(a), (b), (c), (d)(ii), (d)(iv) and (f), and that the meeting minutes were easily accessible and searchable online. When asked to elaborate by the PAC in October 2014, the IDFPR only expanded on its argument for Section 7(1)(a) by stating that the records were exempt because the licensee has a right to a “blemish free” license and because the Professional Engineering Practice Act (“PEP Act”) of 1989 did not intend to authorize public access to documents regarding a licensee investigation. However, the IDFPR did not supply the PAC with any potential responsive documents for the PAC to review, despite several requests. First, the PAC determined that the IDFPR violated Section 9(a) of FOIA because its initial response to the requestor was not detailed enough because it only identified the sections of FOIA it was believed were relevant and recited the statutory language without further explanation. The PAC also rejected the IDFPR’s claim that the PEP Act prohibited the release of records related to investigations. Additionally, the PAC rejected the IDFPR’s argument about licensee having a right to a “blemish free” record because, as noted in Abcarian v. McDonald, 617 F.3d 931 (7th Cir. 2010), that phrase refers to the right of someone to be free of actual disciplinary sanctions on their license without due process, not just what a third party might think about the licensee based on an investigation that did not result in anyone being charged. Last, the IDFPR conceded it did not conduct a search of relevant meeting minutes because it believed the records were already available to him, so the PAC held that the department also violated FOIA by failing to do a reasonable search for documents.

351985_1 8 Public Access Opinion 15-002, issued January 23, 2015 Home Rule Ordinance Does Not Supersede FOIA, Trade Secrets, Deliberative Process Public Access Opinion 15-002 holds that the Village of Rosemont violated the requirements of FOIA by denying, in part, a reporter’s request for copies of certain Village contracts and related correspondence with a third party who represented independent interests. On behalf of the Chicago Tribune, the reporter submitted an undated FOIA request to the Village seeking “all documents related to singer Garth Brooks’ appearance at the Allstate Arena.” On October 6, 2014, the Village provided the reporter with some responsive records. However, the Village redacted certain financial information from the documents provided and withheld other records, citing as its bases Sections 7(1)(b), (7(1)(f) and 7(1)(g) of FOIA. Specifically, the Village withheld emails in which ticket pricing for the Garth Brooks concerts was being formulated and decided pursuant to Section 7(1)(f), which exempts from disclosure preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated. The Village also redacted rental amounts from the contact and other records it provided pursuant to Section 7(1)(g) of FOIA, which exempts from disclosure certain trade secrets and commercial or financial information. After a “Request for Review” was filed with the PAC by the reporter, the Village adopted an ordinance purporting to exempt from disclosure the type of financial information that it withheld in this matter. The PAC determined that the Village’s ordinance is ineffective to supersede the requirements of FOIA, because prescribing conditions for accessing governmental records is a matter of Statewide, rather than local, concern, and therefore does not pertain to the Village’s government and affairs for purposes of exercising the home rule powers. Moreover, the financial terms of contracts with public bodies are expressly subject to disclosure under the Illinois constitution and Section 2.5. Therefore, financial terms of contracts with public bodies are not exempt from disclosure as trade secrets under Section 7(1)(g). Finally, the emails the Village was withholding were between the concert promoter and Allstate Arena, not between Village employees, or Village employees and the Allstate Arena. Because the concert promoter was representing independent interests in his communication with the Village, the emails cannot be withheld under the deliberative process exemption. The Village was directed to take immediate action to comply with this binding opinion.

PAC Opinion 15-004, issued June 17, 2015 Settlement Agreements Public Access Opinion 15-004 found that the City of Markham violated FOIA by denying a woman’s request for a copy of a settlement agreement the City had entered into and related records. The City maintained that it had withheld the records under Section 7(1)(c), which exempts “personal information” from disclosure, and because the settlement agreement contained a non-disclosure agreement. The PAC stated that, under Section 2.20, all settlements entered into by a public body are subject to inspection by the public, provided they can be redacted of personal information. Additionally, even if there was a non-disclosure agreement in the settlement agreement that stated the City could not release the terms of the agreement, this clause would be unenforceable because it was contrary to the express language of FOIA. See also PAC Opinion 14-004. The PAC also determined that the Section 7(1)(c) exemption would not apply in this case, like the City claimed. The public had a large interest in seeing documents concerning the use of public funds, which outweighed any concern the plaintiff may have had for keeping the information private. The public has a right to know where and to whom public funds go. Also, because the plaintiff in the lawsuit subject to the settlement agreement was a former police officer who was suing the City regarding her termination from that position, the information about the lawsuit and settlement agreement directly related to the plaintiff’s public duties. Therefore, again, the Section 7(1)(c) exemption would not apply.

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